Rural Water Supply versus Instream Flow Protection

Update on Ecology’s New Stakeholder Process and Recent Litigation

by Rachael Paschal Osborn, CELP Senior Policy Advisor

Can Washington’s Water Resources Program ‘just say no’ to new water rights that impair instream flows and harm fish, wildlife and water quality? It’s a question CELP has asked for 20 years, and unfortunately, recent Department of Ecology efforts indicate the answer is still no.

As you may recall, in October 2013, the Washington Supreme Court issued its decision in Swinomish Indian Tribal Community v.  Ecology:  a decision that underscored that instream flow rules are bona fide water rights that  Ecology could not subsequently abrogate in favor of permit exempt wells. That decision has prompted  Ecology to explore with the counties alternative means of supplying water for new development.  At first Ecology was talking only with the counties.  At CELP’s insistence, Ecology opened up its conversations to include interested Tribes and CELP in a new a new stakeholder process, called Rural Water Supply Strategies, to craft responses to the Swinomish decision and others that constrain the use of exempt wells.  For more on the Swinomish decision and its implications see Suzanne’s article, “No Quick Fixes to Competing Demands for Water” (WA-AWRA Newsletter, June 2014).

The first meeting occurred on  Monday, June 16th. CELP is concerned that the process  might become be better described as  “Undermining Washington’s Instream Flow Program”  since the majority of participants asked that Ecology subordinate instream flows  to new wells for rural development. Of particular concern:  suggestions to create a blanket exemption to allow new exempt wells regardless of impacts on instream flows, and to use “out of kind” mitigation to fund habitat restoration disconnected from actual depletion of instream flows caused by new wells.

CELP’s representatives to Ecology’s process include board member Dave Monthie of DLM & Associates; Melissa Bates, founder of Kittitas water advocacy group Aqua Permanenté; and our legislative director, Bruce Wishart.  Melissa and Bruce delivered important messages on June 16, including that:

  • Instream flows are water rights that are entitled to the same protections as out-of-stream rights
  • Ecology is not authorized to utilize out of kind mitigation to substitute for instream flow depletion.
  • When all the water in a basin is fully allocated for existing rights and environmental flows, Ecology must close the basin and ‘just say no’ to new rights.  At that point, full mitigation is needed.
  • Climate change will only make matters worse as snowpack and glaciers recede.   Alternative water supply must focus on demand management, including conservation, use of reclaimed water, and changing our water ethic.

Click here for a complete list of CELP’s Proposed Water Management Strategies. For a detailed analysis of the Swinomish decision, CELP will continue to attend Ecology’s Rural Water-Instream Flow process through September and into the 2015 legislative session, actively promoting the public interest in Washington’s rivers and aquifers.