Against an undercurrent of conflict, an overflowing Spokane River Forum Conference brings new hopes and ideas for addressing regional water problems

Tim Conner
Center for Justice
January 25, 2008

In the midst of having pulled together a compelling gathering of experts, public officials, environmentalists, engineers and lawyers, Andy Dunau took time, last Thursday night, to drop in at a mostly social gathering of Spokane river enthusiasts.

He was hungry and not expecting to speak. But when the invitation to say a few words came he asked permission to finish swallowing a wedge of bruschetta and then talked about what his organization, the Spokane River Forum, was trying to accomplish. Dunau can’t seem to say anything without interjecting comedy and he succinctly described how Spokane’s image as a “Mayberry RFD” backwater of civic decision-making is changing as the community moves to address the problems and possibilities of the river running through the middle of it all. Part of his purpose, he said, was to continue to bring new ideas and fresh thinkers into the mix of how to solve the sort of complex water quantity and quality problems the Spokane-area faces.

It was vintage Dunau. And so was his moderating of this week’s impressive conference at the CenterPlace hall in the Spokane Valley, where the crowd both days approached 200 people.
Still, on the last half of the second day, Dunau began to challenge his guests to talk more candidly about how they’re getting along, now, with each other. A ripple of nervous laughter bounded through the packed hall when the host purposely aimed his questions at Spokane County’s Bruce Rawls, Inland Empire Paper Company’s Doug Krapas, and the Center for Justice’s lead water lawyer, Rick Eichstaedt, asking each of them to rank on a numeric scale how well they were getting on with each other.

It was Rawls’s fate to be first in line to answer and his loss for words brought a rise of laughter from the audience. Although at least 1.3 billion Chinese have no idea who Bruce Rawls and Rick Eichstaedt are, the people gathered in CenterPlace hall do. As the county’s utilities director, Rawls has emerged as the champion of a wastewater treatment plan that state and federal officials are not yet sure they can even issue a permit for. Eichstaedt and the Center represent Sierra Club which has repeatedly criticized key elements of the county’s approach.

The elements of the disagreement are important because lots of money and the fate of a river and a sole-source aquifer hang in the balance. But the tension that Dunau was trying to puncture also has a lot to do with the question of how relevant and important the law and lawyers should be to solving thorny water and water quality problems. There were plenty of people in the CenterPlace hall who think the law has been an obstacle not just to the county, but to the purpose of protecting the Spokane River and the aquifer that feeds it.

“He didn’t warn me about this question,” Rawls said playfully when the laughter subsided. “Gosh, I don’t know. I don’t think I have a ranking. The interesting thing… Well, let me answer the question, but I’m not going to answer it the way you asked it. Spokane County started wastewater planning in 1999. And we went along until 2003 merrily doing facilities plans and thinking about what we needed to do for the Spokane River. And in 2003 the Board of County Commissioners made a commitment to the quality of the Spokane River and said ‘we will use the most highest technology there is.’ Up until that point in time, Sierra Club really hadn’t really engaged. And so the reason I’m troubled by his [Dunau’s] question is I really didn’t have a ranking five years ago, or six years ago as to whether or not there were good feelings or bad feelings.

When the TMDL [the regulatory process for dealing with the river’s dissolved oxygen problems] started to really take off in 2004 and 2005, we were a bit polarized over what it would take to clean up the river, what technology is achievable, and a number of other questions. And the communications and the level of trust hasn’t always been good. I think the communication is quite good now. I don’t know if the trust level is. Yet. But we are committed to the highest achievable level of technology. And we just signed a contract last week to install that. And so, we’re pretty committed to the Spokane River. I hope that improves the relationship between us as a discharger and the environmental community but I don’t know if I can put a ranking on it.”

To be fair to Rawls, neither Krapas nor Eichstaedt chose to answer the question directly either. Suffice to say, Eichstaedt’s recount of the history of efforts to collaborate on the Spokane River dissolved oxygen problem is a bit different than Rawls’s version. In a clear rebuke to the state officials and consultants who organized the well-publicized dissolved oxygen collaboration in 2005, Eichstaedt reminded the audience that tribal and environmental groups were not actually invited to the collaboration on the same terms as river dischargers.

“I’m going to point out,” he said, “that we had some frustration with that collaborative process, frankly, because we didn’t think it was collaborative. When that process was created, it was made clear that groups like the Spokane Tribe, my clients, the Lands Council, and others were not going to be asked and not be expected to sign on to any sort of agreement. So, creating a collaboration that seeks agreement only among some parties is inherently flawed.”

Ironically and perhaps tellingly, it was the current leader of the largest Spokane River discharger–the City of Spokane–who tactfully reminded the audience of the divisive circumstances in 2004 when the coalition of river dischargers filed a petition with the state (a so-called “Use Attainability Analysis” or UAA) to find a solution by relaxing the state’s water quality standards for the Spokane River.
Here’s how Spokane Mayor Mary Verner approached it, later that afternoon, in answering another one of Dunau’s questions about working toward common purposes:

“I would say that we have to have communication that builds trust. And a lot of times collaboration fails because somebody is perceived to be the enemy. And when it comes to the Spokane River, there is no enemy. If there is an enemy it is us. And I’ve watched conversations around finger-pointing and it’s their fault and they need to go first and really all of us have to take a leap of faith and trust that we’re all in this together and communicate as if we’re all in it together.

“That leads me to my second point,” she continued, “which is that we have to have a shared common objective. Again, sometimes we think we have a shared common objective, maybe (she paused). Well, in my experience there was a time at which some of the entities had a shared common objective of a Use Attainability Analysis. A UAA was the shared common objective. I think we’ve moved off of that. And now I think our shared common objective is to meet the water quality standards to the best that we can, knowing ultimately that our water in the Spokane River has to meet the Spokane Tribe’s water quality standards by the time it hits there, downstream.”

Here it’s worth reporting that Spokane Tribal representatives at this week’s conference spoke in dire terms about how decimated the lower Spokane River is as a cold water fishery in part because of chronic low dissolved oxygen problems.

The conference’s keynote speaker on Friday, Steve Fleischli, is a living symbol of the tension between environmental lawyers and municipalities who’ve been slow to invest in solutions to sewage and storm water systems that don’t adequately protect water bodies. A year and a half ago, Fleishli succeeded Robert F. Kennedy, Jr., as president of the international Waterkeeper Alliance, the renowned group that encourages and charters on-the-water monitoring of waterways by citizens looking for evidence of illegal pollution.

Until 2003 Fleischli was making his mark as the leader of the Santa Monica Baykeeper. In that role he was instrumental in helping to gather the evidence for what the U.S. Justice Department calls “one of the largest sewage cases in U.S. history,” involving more than 3,600 documented violations of federal water pollution control laws, violations that resulted, among other things, in Los Angeles-area beaches being closed because of the deposition of human waste on the shore. The lawsuit eventually led to a $2 billion settlement with the City of Los Angeles, whereby the city agreed to modernize its sewage system.

Fleicshli is a lawyer and he began his talk defending and explaining the role of environmental lawyers and litigation.

“Sometimes for the environmental community,” he explained, “it [filing lawsuits] is the only way we can be taken seriously.”

As someone who grew up in Nebraska, Fleischli says he understands how and why bringing lawsuits or threatening litigation is considered un-neighborly or unfriendly in communities that are conflict averse.
And to that, he said, he poses the question: “What’s more offensive, your neighbor breaking the law, or you enforcing the law?”

Yet, in the second half of his talk, Fleischli leaned the other way, admitting that in dealing with complex environmental problems through negotiation there often comes a time when its reasonable to ask the lawyers to leave the room. Moreover, he said, the polarization between environmentalists and polluting businesses and municipalities can obscure the likelihood that leaders in government and industry have resources and ideas that are needed for successful problem-solving.

“The environmental community,” he said, “needs to realize that if we can have these sorts of [constructive] dialogues, the business community can be very productive with the resources they can bring to the table.”

Perhaps it was fitting that in the conference’s closing session, the two speakers sitting next to each other on the far end of the table were CFJ’s Breean Beggs and County Commissioner Todd Mielke who, since taking office in 2005, has been the county’s point person on the river issue. In his remarks, Mielke reiterated what Rawls had said earlier, about the county making and honoring a commitment to use the best technology available to treat wastewater at the new, eight million gallon a day plant it hopes to start building this year.

It’s an arguable point, and Beggs chose not to argue it, waiting instead to pick up on Mielke’s passing comment that “I think we’ve said all along that we have a commitment to re-use in going forward and we have examples of various re-use programs.”

Yet, as Beggs and others had noticed, it was only at this week’s conference that, for the first time, the county unveiled what looked to be a seriously considered range of options for where it can transport wastewater from its new wastewater treatment plant to area manufacturers, golf courses, parks, and wetlands areas. It’s a very promising development, to be sure, but it seems clearly related to the labors of the newest county commissioner, Bonnie Mager, whose patient work with Bruce Rawls led to the county modifying its plan earlier this month to fund studies of alternatives to disposing waste water in the Spokane River.

When it was his time to speak to the issue, Beggs noted how little attention the re-use alternative had received in the years of deliberations leading up to the conference.

“I’m just going to build on Commissioner Mielke’s [remarks] about the re-use,” he said. “For me, I did not hear much about how much more water we can get, or how much cheaper it would be to treat it, by simply conserving it and re-using it. That is now in the conversation, and it’s important.”

An hour later, after most of the large crowd had gathered its notes and coats and driven off, I asked Beggs to assess the two-days and whether the conference had moved the river discussions forward.
“What I liked about the event is that we got so many people involved in the river in the same room, hearing the same information, and that every one had a chance to speak. So everyone heard people speaking, live, rather than reading it in the newspaper, or projecting that and I think just the human nature of our species is that people will get along better, understand each other better, and have a better chance of reaching agreement.”

“As far as where this gets us,” he continued, “I don’t think this gets us anywhere but it sets the foundation for more work. Also, I think it really encouraged people because people saw far the positions have narrowed. That second to last panel, where you had Rick [Eichstaedt], the county [Bruce Rawls] and Inland Empire Paper [Doug Krapas], agreeing on wanting a TMDL and permits, as soon as possible, without appeals, that’s a complete change.”

“A complete change in what sense?” I asked him.

“In what they would have said even six months ago. They would not have all said that at the same time. Or three years ago, they wouldn’t have said it. There was perceived winners and losers under the past proposed TMDLs and so one side or the other would have said no. Now, they can see, or they can imagine, a TMDL that will work and that will satisfy them. They may disagree right now on the exact one.

“The second thing I’ll throw in is that in the room now there’s talk about conservation and re-use as never before, up to and exceeding how many millions of gallons of water the county wants to put through its treatment plant.”