Earlier in August, the Washington State Supreme Court ruled in favor of a rule which sets the minimum summer flows on the Spokane River during drought conditions.
The Center for Environmental Policy and Law and others argued the state Department of Ecology (Ecology) rule was defective, not taking into account the needs of community recreational and aesthetic use and only looking at the fish’s needs.
Ecology sets the rate flow at 850 cubic feet per second. The court ruled Ecology has the authority to set the minimum and did not act arbitrarily.
Justice Barbara Madsen said in the unanimous decision that Ecology can implement rules based on values it views to be in need of protection. The rule was not arbitrary and capricious because Ecology considered the values that the challengers were concerned with.
“We brought this case because we believed the law was clear: Ecology was required to protect the Spokane River to protect and when possible enhance wildlife, fish, scenic, aesthetic and other environmental values, while also protecting navigation,” said Andrew Hawley, staff attorney for the Western Environmental Law Center. “Despite this clear direction from the legislature, this ruling allows Ecology to pick and choose winners and losers, literally leaving some folks high and dry.”
Background
The Spokane River originates at Coeur d’Alene Lake in Idaho and flows west for approximately 111 miles to the Columbia River in eastern Washington. The Spokane River and the Spokane Valley-Rathdrum Prairie (SVRP) Aquifer are located in eastern Washington and encompass portions of Spokane, Spokane Valley, Liberty Lake, and Millwood. The river and the aquifer are shared resources between Idaho and Washington.
In 1998, Ecology sought to begin working with local tribes and governments to establish cooperative watershed planning to establish instream water flows. Because no consensus could be reached, Ecology choose to use a study from Washington State Department of Fish and Wildlife’s Dr. Hal Beecher. The study recommended water flows of 850 cubic feet per second during June 16 through Sept. 30, looking at rainbow trout and mountain whitefish’s needs.
During the rulemaking period in January 2014, Ecology responded to comments that top scientists had vetted the flows, and they met the needs to protect the instream resources of the Spokane River.
The subject of recreational, aesthetic, and navigational flows was addressed during the watershed planning process and comment period. Ecology explained why it chose not to set flows based on recreational needs stating, “While [the flows] are based on fish habitat studies, the instream flow levels established in [the] rule will preserve wildlife, scenic, aesthetic, and other environmental values in the Spokane River, in accordance with RCW 90.54.020.”
After the rule’s final adoption, challengers petitioned Ecology to change the rules in 2016, stating the flows were too low. Challengers also argued that in adopting the rule, Ecology had failed “to fulfill its responsibilities under the public trust doctrine, and they moved to supplement the record.”
In June 2019, the Washington Court of Appeals ruled—while it is not required—Ecology should consider other uses and impacts on them when making rules. Since fish were the only focus, the court held the in-stream flow rule was arbitrary and capricious and, therefore not legal.
Ecology asserted the issues were addressed during Avista’s Federal Energy Regulatory Commission relicensing process for their hydroelectric facilities.
The river and aquifer
The SVRP Aquifer is a bi-state aquifer, spanning across Washington and Idaho, which means its use is subject to different political and legal standards as it crosses state and county lines.
Spokane Riverkeepers stated, “The instream flow rule is both important and symbolic for the Spokane River and its viable future. It is important because it validates the river’s right to exist. Any new subject’s right to use the Spokane River will be junior to the river’s flow rules. In a way, however, this rule is still symbolic to an extent.”
Washington state has a “first in time, first in right” clause, where senior water rights supersede junior rights.
David Stearns, an associate at the law firm Schwabe, Williamson and Wyatt, told WLJ,“How court’s ruling and the instream flow rule affects ranchers who withdraw water from the aquifer depends on the priority dates of their water rights.
“Water rights issued before Feb. 27, 2015, the effective date of the instream flow rule, can still be exercised as they always have. But anyone who withdraws groundwater within the SVRP Aquifer under water rights that arose after the rule’s effective date could have their right cut off during low-flow years when the regulatory flows are not met.
“This applies whether the right is secured with a permit or is exempt from permitting under the groundwater code.
Even though senior rights can still be exercised without being cut off in low-flow years, the instream flow rule does make changing them more difficult. The Washington Supreme Court has established very strict rules governing what counts as impairment of an instream flow so that any changes to a water right that reduce regulatory instream flows by any amount for any period of time are not allowed.”
Steans recommended for water right holders to keep meticulous records of their water rights and records that document historical water use. Farmers or ranchers who want to establish a new water right or change an existing water right within an area with instream flows should speak to Ecology’s regional staff to understand how instream flow rules could impact their plans. If they have particular concerns about their water rights, they can always discuss their questions with a consultant or attorney who knows about Washington’s water rights.
“It will be interesting to know who Ecology will pick to be the winners and losers going forward. We were told a few months ago that the Department [Ecology] had a lot of interest in increasing their department’s focus on the Spokane watershed area,” Cody Hoseth of Lone Crow Ranch told WLJ. “As cattle producers, the importance of working with the Department of Ecology will be an ever-increasing necessity.” — Charles Wallace, WLJ editor
