Superheroes on the Washington Supreme Court

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.