The Washington State
Supreme Court issued a decisive 6-3 decision in a Skagit County water rights case yesterday. The Court upheld the
Swinomish Tribe’s challenge of a rule negotiated between the Department of
Ecology and Skagit County. You can read the decision here.
The Supreme Court rejected Ecology's view that new development could take water away from the water left in streams for fish, wildlife, and recreation based on "overriding considerations of the public interest." Of particular interest to Whatcom County, the Supreme Court rejected the idea that rural wells are different from any other water use because they take just a little bit of water. And it cited the Growth Management Act to support its view.
Whatcom County just lost a lawsuit based on its failure to
protect water quality and availability under the Growth Management Act. It will be interesting to see if any of this
makes a dent north of the Skagit County line.
One prediction is pretty safe, and that is that the local
Tea Party will be hopping mad that “United Nations Agenda 21” has taken over
the State of Washington. Because facts
never get in the way of this claim, it will not matter that Washington's instream flow
laws were passed decades before the U.S. signed Agenda 21. Under the rule of socialist U.N. lackey George H.W. Bush.
I do hope that the "anonymous" local Tea Party blog, the Whatcom Excavator, is mad enough at the Supreme Court to do one of its
cartoons where it dresses people in superhero costumes, as it did for the four Whatcom
Wins County Council candidates:
 |
| Starting at the top, clockwise: Barry Buchanan, Rud Browne, Carl Weimer, Ken Mann |
The Supreme Court would look nice in tights, I think.
Anyway -- for the water wonks among us, here's a summary.
Ecology had adopted a rule that allowed year-round
out-of-stream uses for “domestic,
municipal, commercial/industrial, agricultural irrigation, and stock watering,”
even when the new uses of water would not leave enough water in streams to
protect in-stream flows necessary for “fish, wildlife, recreation, navigation,
scenic and aesthetic values.”
Ecology
found that the amount of water that would be taken out of streams was “less
than an amount that would have significant impacts on fish populations in the
river system” and found that the water withdrawals would meet “overriding
considerations of the public interest.”
As the
court summarized Ecology’s analysis,
On the benefits side Ecology placed the gained economic
productivity in the river basin that Ecology determined would ensue from the
water reservations over a 20-year period. Also on the benefits side, Ecology
says that sources of water other than new withdrawals are as a practical matter
unavailable and that without the reservations, new withdrawals for a number of
beneficial water uses--stock watering, domestic, municipal, industrial, and
agricultural uses--would be subject to interruption in times of low flow.
Ecology found that impact on aquatic resources and recreational uses would be
very small, and there would not be significant harm to fish and wildlife, with only a
"small loss" to fisheries over 20 years. Ecology determined the
significant benefits clearly overrode the potential harm.
The court didn’t just say no, it said hell no. In what might be called “a severe
butt-kicking” in legal terms, the court found:
[A] minimum flow set by rule is an existing water right that
may not be impaired by subsequent withdrawal or diversion of water from a river
or stream. The exception in [state law that Ecology relied on, RCW
90.54.020(3)(a)] is a narrow exception, not a device for wide-ranging
reweighing or reallocation of water through water reservations for numerous
future beneficial uses.
Later in the case, the Court gave Ecology a little schooling
on the purpose of instream flows: The Court’s
discussion might be a helpful history lesson for all of us:
Although there were no
"minimum flows or levels" or "base levels" to begin with, as
time passed and the state's population increased demands on water resources
also increased. While appropriative beneficial uses of water frequently remove
water from the stream or lake, many other uses require that stream flows be
maintained, including fish production, recreation, navigation, and power
production. Growing, competing demands for water led to a number of new laws
over time, and among these are acts and statutes designed to further the goal
of retaining sufficient water in streams and lakes to sustain fish and
wildlife, provide recreational and navigational opportunities, preserve scenic
and aesthetic values, and ensure water quality.
In 1955,* the Legislature declared the policy of the State to be
that sufficient water flow be maintained in streams to support fish populations
and authorized rejection of water right applications if these flows would be
impaired. LAWS OF 1955, ch. 12, § 75.20.050 (codified as amended at RCW
77.57.020).
In 1969,* the legislature enacted the Minimum Water Flows and
Levels Act, chapter 90.22 RCW. This is the act that authorized Ecology to
establish, by administrative rule, minimum flows or levels to protect instream
flows necessary for fish and other wildlife, recreation and aesthetic purposes,
and water quality. RCW 90.22.010 provides in part:
The department of ecology may
establish minimum water flows or levels for streams, lakes or other public waters
for the purposes of protecting fish, game, birds or other wildlife resources,
or recreational or aesthetic values of said public waters whenever it appears
to be in the public interest to establish the same. In addition, the department
of ecology shall, when requested by the department of fish and wildlife to
protect fish, game or other wildlife resources under the jurisdiction of the
requesting state agency, or if the department of ecology finds it necessary to
preserve water quality, establish such minimum flows or levels as are required
to protect the resource or preserve the water quality described in the request
or determination.
The court concluded that, under the 1969 act, “a minimum flow or level cannot impair existing
water rights and a later application for a water permit cannot be approved if
the water right sought would impair the minimum flow or level.”
It’s interesting to note that the Court explicitly rejected
the idea that exempt wells should be treated differently from other water
users:
The dissent engages in a
"factual analysis" intended to show that exempt well uses and rural
public water supply systems qualify under a cost-benefit analysis for
consideration under the overriding-considerations exception. But the analysis
simply shows what is always true--there are hardships attendant to any water
right with a later priority date and too little water available to satisfy all
rights. The dissent also claims that the reallocations of water for exempt well
users and rural public water systems should be permitted since they involve
only small quantities of water and will have little impact on minimum flows.
But the overriding-considerations exception is not a grant of general authority
to reallocate water subject to existing water rights regardless of whether the
impact on minimum flows and instream uses would be substantial or slight.
And because saying this once apparently didn’t make its
point strongly enough, the Court said it twice:
The dissent says that allowing the
reservations for rural public water supply systems and exempt wells is a matter
of necessity if rural development and lifestyle is to be possible. In every
basin where water is unavailable, the same can be said to be true. The
legislature is well aware that water availability is a significant issue. It
has enacted numerous laws reaching various aspects of the issue. See, e.g., Kittitas County v. E. Wash.
Growth Mgmt. Hr'gs Bd., 172 Wn.2d 144, 175, 256 P.3d 1193 (2011) (noting that
planning for rural growth requires that
water quality and availability be protected under the Growth Management Act,
chapter 36.70A RCW (citing RCW 36.70A.020(10), .070(1), .070(5)(c)(iv)))
"In every basin where water is unavailable" includes much of Whatcom County. Water availability is a significant issue. What will we do about it?
Elect some superheroes of our own, I hope.
*Pre-Agenda 21 dates.
