Check out the latest edition of our monthly newsletter, Washington Water Watch. In this month’s issue you’ll find an article on the current water bills in the Washington State legislature, an update on CELP’s recent motion for summary judgment in the Leavenworth National fish hatchery case, an article on the Lyre-Hoko watershed, and a notice about our upcoming Spokane event, Winter Waters.
The last issue of 2016 is here! Read a preview of what to expect during the upcoming legislative session, an article by CELP’s Dan Von Seggern on the recent Hirst decision, and a summary of our December CLE.
October 25, 2016
Dan Von Seggern (Center for Environmental Law & Policy)
Court Upholds Dungeness Instream Flow Rule that protects river and fish!
Seattle, WA – On Friday, October 21, 2016, Thurston County Superior Court Judge Gary Tabor upheld the Instream Flow Rule for the Dungeness River basin, denying a challenge from a group of property owners and developers. The Center for Environmental Law and Policy (CELP) intervened in this matter to defend the Rule, working with the Department of Ecology. CELP Staff Attorney Dan Von Seggern argued the case along with Ecology’s attorneys. After the decision, he stated: “This is a win for the environment and for water management in Washington. The Dungeness Rule strikes a balance by protecting streamflows, fish, and senior water users, while still providing water for responsible development. CELP is pleased with Judge Tabor’s decision and hope that this Rule will provide a guide to protecting other rivers in our state.”
In upholding the Rule, Judge Tabor held that the Rule was not unlawful and that Ecology did not exceed its authority when it adopted the Rule. He also reaffirmed that permit-exempt wells are subject to the “first-in-time” system of water appropriations used in Washington.
The Dungeness River is home to steelhead, bull trout, and four salmon species. Most of these fish are listed as “Threatened” under the Endangered Species Act. Low river flows, particularly in summer and early fall, block upstream migration of spawning salmon and risk causing extinction of these fish. Historically, much of the River’s flow has been diverted for irrigation, although irrigators have agreed to limit withdrawals to no more than one-half of the river’s summer flow. Uncontrolled development using private (“permit-exempt”) wells further depleted streamflows and added to the pressure on fish populations. The Dungeness Rule protects instream flows that are needed to support salmon populations and other instream values, while allowing new residential development through mitigated use of water from permit-exempt wells.
The Dungeness watershed is in the rain shadow of the Olympic Mountains and is unique in the Northwest as the only coastal watershed that is dry enough to require irrigation for agricultural crops. The River is relatively short, flowing 32 miles from the Olympic Mountains to the Strait. It is used by chinook, coho, chum, and pink salmon as well as steelhead, cutthroat, and bull trout. All salmon stocks are depressed relative to historic levels, and chinook, chum salmon and bull trout are listed as Threatened under the ESA. Insufficient stream flow has been identified as a key cause of reduced fish levels.
The Dungeness Rule was developed over a 20-year period through a collaborative process that included state, local, and Tribal governments, property owners, environmental groups, and water users. “This rule is an example of how rules can be set to make sure water resources in the rivers and streams are protected,” said Trish Rolfe, CELP’s Executive Director.
Water for development is provided through a water bank, which ensures that streamflows are not depleted by water for development. Amanda Cronin of Washington Water Trust explains that the Dungeness Water Exchange “provides an efficient one-stop shop for individual home builders in the Dungeness Valley. Eligible homebuilders simply begin the building permit process at the County and then submit a mitigation application and one-time payment to the Exchange.”
Judge Tabor ruled from the bench and a written decision is expected in the coming weeks. The case is Bassett et al. v. Ecology, Thurston County case No. 14-2-02466-2.
On November 20, 2014, the Building Industry Association of Washington (BIAW), realtors and farm bureau filed a petition with the Washington Department of Ecology asking the agency to repeal the Skagit River instream flow rule. The Center for Environmental Law & Policy (CELP) opposes the petition as it is inconsistent with recent Supreme Court decision and Washington case law.
“The rule petition is a new prong in the wholesale attack on Washington’s rivers that has been brought by developers for the past several years,” said Rachael Paschal Osborn, interim executive director of the Center for Environmental Law & Policy, “This proposal is inconsistent with state law and last year’s court decision in Swinomish Tribal Community v. State of Washington.”
The Skagit River instream flow rule has been the subject of controversy and court battles for more than a decade. Ecology’s original rule does not allow for unmitigated new domestic wells. Skagit County sued to overturn that rule, causing Ecology to adopt an amendment that created “water reserves” in tributaries to the detriment of river flows. One year ago, the Supreme Court held that rule to be invalid as violating state instream flow laws, causing reinstatement of the original rule.
BIAW’s petition to repeal the original rule incorrectly argues that the 2013 Supreme Court decision is inapplicable, and further ignores other court decisions of the last decade that have interpreted instream flow and domestic well laws. Among other flaws in their arguments, the BIAW fails to recognize the physical impact of new wells on small streams, and that the state is obligated to provide water for all new development, regardless of whether water is available.
“Water scarcity is a big problem in Skagit County and throughout Washington state due to over-allocation of water rights and now, climate change,” said Osborn. “Developers, local governments, and state agencies all must recognize that new water allocation is harmful unless fully mitigated.”
Solutions for Washington State’s water scarcity problems are provided “Proposed Water Management Strategies to Protect Instream Flows and Provide Water for Rural Development.”
- Water for Rural Development June 2014 (CELP)
- Rule Petition by the Building Industry Association of Washington (BIAW) et al
On May 23, the Washington Supreme Court heard oral arguments in Cornelius et al v. Washington Dept of Ecology et al, known by many as the “Washington State University golf course case.” Rachael Paschal Osborn represents the appellants: Scotty Cornelius, the Sierra Club, and the Palouse Water Conservation Network. This case is complicated with many important issues but a key one is whether Ecology is correct in allowing old water rights that were never called “municipal” to be treated as “municipal” under fairly recent Municipal Water Law statute. Ecology’s expansive interpretation of “municipal right” means that Washington State could revive, long unused water rights, and put part of those rights to a brand new golf course in the middle of the Palouse. CELP and other community groups filed a “friend of the court” brief as did several Tribes in support of the Cornelius plaintiffs.
We expect the Supreme Court will issue its decision in 6-8 months.