Washington Supreme Court Invalidates Department of Ecology Amended Rule Reserving Water from Skagit River

In a very recent decision, the Washington Supreme Court ruled that the Department of Ecology does not have the authority to reallocate water for new beneficial uses when the requirements for appropriating water for these new uses cannot otherwise be met.    The Court’s opinion in Swinomish Indian Tribal Community v. Washington State Department of Ecology can be found here.

The case stems from a 2001 Instream Flow Rule, which established minimum instream flow requirements for the Skagit River Basin.  The 2001 rule prohibits water for new uses when stream flows fall below the minimums established by the rule.  Skagit County and others opposing the rule maintain that the rule effectively precludes new development that requires a year round water supply (i.e. homes, businesses, agriculture, etc.)

Litigation followed publication of this 2001 rule, resulting in a settlement agreement between Skagit County and the Department of Ecology as well as an amended instream flow rule for the Skagit River Basin (“the Amended Rule”).  The Amended Rule establishes reservations for domestic, municipal, commercial/industrial, and agricultural uses, such that water for these new uses would not be shut off during periods when the flows set forth in the 2001 Instream Flow Rule are not met.

Ecology’s justification of the Amended Rule was based upon its belief that the impacts of the Amended Rule to aquatic and recreational uses would be minor; and that the economic benefits of reserving water for new uses would outweigh potential harm.  The Supreme Court, however, ruled that Ecology was not justified in reallocating water that is already subject to a minimum flow requirement based upon a cost benefit analysis.  The Court’s invalidation of the Amended Rule, leaves the 2001 rule intact and development of new uses in Skagit County, which require an uninterrupted year round water supply, uncertain.

Whatcom County is also facing a court ruling regarding its management of water resources.  The County has appealed a June 7, 2013 ruling of the Western Washington Growth Management Hearings Board, which held that the County is not sufficiently protecting it surface water and groundwater resources.  At issue in this case, is whether Whatcom County must further restrict development and/or water withdrawals in its rural areas to better protect water resources.

The Whatcom County case is currently pending in Skagit County Superior Court and the parties have petitioned for direct appeal by the Washington State Court of Appeals.  I will post updates on this case as the matter progresses.