Changing Course: Revisiting Instream Flow Rulemaking in Washington State Following Swinomish v. Ecology

• Publication year: 2021

CHANGING COURSE: REVISITING INSTREAM FLOW RULEMAKING IN WASHINGTON STATE FOLLOWING SWINOMISH v. ECOLOGY

Haylee J. Hurst

Abstract: Since the adoption of Washington's Water Resources Act in 1971, legal recognition of instream water uses to preserve fish, wildlife, and other environmental values have become firmly entrenched in Washington water law. By establishing "instream flow rules," rules that require a certain amount of water to be left in streams before water may be withdrawn for any new uses, the Washington State Department of Ecology (Ecology) must protect the environment while also managing water to achieve "maximum net benefits" for the people of Washington State. Ecology may only allow new withdrawals of water that will impair established instream flows if it finds that "overriding considerations of the public interest" will be served. In two recent cases, Swinomish Indian Tribal Community v. Washington State Department of Ecology and Foster v. Washington State Department of Ecology, the Washington State Supreme Court invalidated Ecology's reliance on this statutory exception in authorizing water rights that will impair instream flows, instead, interpreting the language of the exception very narrowly.

This Comment analyzes instream flow rulemaking in light of these cases, concluding that the decisions constrain Ecology's ability to adapt existing rules to changing conditions, and that current law is therefore inadequate to address future challenges, including limited water availability and climate change. To better address these challenges, instream flow rules should be both more precise and more responsive to future conditions. To this end, Washington law should require instream flow rules to conform to a "best available science" standard tailored toward achieving healthy fish populations. In addition, investment in infrastructure for Washington's existing Trust Water Rights Program to help expand water banking activities throughout the state, is needed to facilitate market transfers of water to supply unmet instream flows and new out-of-stream uses.

INTRODUCTION

Washington water law is at a crossroads. While water in the Pacific Northwest is generally viewed as plentiful, Washington State exhibits a common truth about water: it is not available at the times and in the places where it is most needed.(fn1) While Washington is known as the "Evergreen State,"(fn2) east of the Cascade Mountains, the state is very dry.(fn3) Statewide, the demand for water is often greatest in areas where water is scarce. For example, major irrigation projects in the Yakima(fn4) and Columbia River(fn5) basins of Eastern Washington allow the arid region to produce many high-value crops, including seventy percent of the nation's apples, contributing billions of dollars to the state's economy.(fn6) In Western Washington, population growth has put increased pressure on water resources, particularly in rural areas where landowners lack access to public water supplies and must therefore locate a private supply.(fn7)

Adding to the challenge, demand for water peaks during the late summer and early fall seasons when the least amount of water is available.(fn8) Melting snowpack feeds many of Washington's rivers and streams throughout the spring and early summer.(fn9) As snowpack declines, groundwater takes the place of snowmelt, supplementing lower stream flows.(fn10) Natural stream flows reach their lowest point in late summer and early fall after the snowpack melts and the weather remains dry.(fn11) During this time, demand for water increases for both agriculture and domestic uses.(fn12) At the same time, sufficient water must be left in streams to sustain salmon and steelhead as they migrate inland to their spawning grounds.(fn13) After years of decline, Washington's salmon populations now represent only a fraction of historic populations.(fn14) In addition to the cultural and economic impact of salmon,(fn15) as an "indicator species," salmon populations reflect the overall health of an ecosystem and are therefore used as a basis for protecting environmental values in Washington's rivers and streams.(fn16)

Managing Washington's water in light of these competing demands for a limited and variable resource is a challenge. During the summer of 2015, a season of record warm temperatures and uncommonly low snowpack resulted in a "severe" drought declaration throughout Washington State.(fn17) With climate change, decreased snowpack, and continued population growth presenting additional future challenges,(fn18) Washington must manage its water with ever-increasing thoughtfulness. Thus far, Washington State has been an innovator in water resource management and has existing tools to help it meet these challenges.

This Comment begins in Part I by describing Washington's existing legal framework for managing its water resources. From its origins in prior appropriation doctrine, which allocates water based on a priority system of "first in time, first in right," the State adopted legislation establishing a comprehensive planning process for water resources and setting forth principles for allocating water among competing uses.(fn19) Washington law now requires minimum amounts of water known as "base flows," "minimum flows," or "instream flows,"(fn20) to be left in its rivers and streams to protect fish, wildlife, and other environmental values.(fn21) Water must also be allocated between competing uses to secure the "maximum net benefits" for the people of Washington State.(fn22)

In Part II, this Comment explains how Ecology establishes required "instream flows" by adopting rules that identify a target flow level that should be met at various locations along a river or stream.(fn23) Ecology uses fish habitat as a baseline for setting these flows.(fn24) Ecology began adopting instream flow rules in the 1970s, and as of April 2015, has adopted rules for twenty-nine of the sixty-two watersheds in Washington.(fn25) As instream flow science advances, Ecology uses methods to set modern instream flow rules that are more precisely tailored to the impacts on salmon and other fish populations than early methods.(fn26) Instream flow rules do not impact water rights that predate them.(fn27) Instead, they help Ecology determine whether additional water is available for new uses, and often result in a finding that water is not available.(fn28)

Part III discusses recent case law that changes the way Ecology must manage water resources.(fn29) In Swinomish Indian Tribal Community v. Washington State Department of Ecology,(fn30) the Washington State Supreme Court invalidated Ecology's interpretation of the "overriding considerations of the public interest" (OCPI) language found in the Water Resources Act.(fn31) This language, known as the "OCPI exception," gives Ecology authority to allow a new use of water to "override" an established instream flow.(fn32) Ecology invoked OCPI to justify setting aside "reservations" of water for future uses that would not be subject to the instream flow rule for the Skagit River.(fn33) The Swinomish Court interpreted the OCPI exception very narrowly, effectively eliminating its use by Ecology as a tool to plan for future water needs in conjunction with existing instream flow rules.(fn34) The Court's recent decision in Foster v. Washington State Department of Ecology(fn35) further confirms that Ecology cannot use OCPI to authorize new water rights that will impair instream flows.

Finally, Part IV evaluates instream flow rulemaking in light of Swinomish and Foster and concludes that a new approach is needed.(fn36) To meet future challenges, instream flow rules should be more precise to reflect advances in instream flow science, and more responsive to future conditions such as climate change.(fn37) This Comment therefore suggests that Washington law should require instream flow rules to conform to a "best available science" standard tailored to provide water needed for fish.(fn38) To facilitate this change, the State should invest additional resources in its existing Trust Water Rights Program to expand water banking activities statewide.(fn39) This program provides infrastructure to facilitate market water rights transfers that can be used to supplement low stream flows and provide water for new out-of-stream uses.(fn40)

I. EVOLUTION OF WATER RESOURCE MANAGEMENT IN WASHINGTON STATE

A. Historical Development of Washington Water Law

In Washington's early history, settlers acquired water rights based on two distinct doctrines: riparian doctrine and prior appropriation doctrine.(fn41) Under the common law riparian doctrine, ownership of riparian land-land that adjoins a body of water such as a river or stream-automatically attached certain water rights.(fn42) Riparian landowners had the right to enjoy the stream flowing in its natural state along their land, for the most part, undiminished by other water users.(fn43) Each riparian also had the right to withdraw "reasonable" amounts of water for use on the adjoining land for purposes like domestic use and agriculture.(fn44) Riparian rights vested at the time title to the land passed from the United States to the landowner, and were appurtenant to the land regardless of whether water was withdrawn and used.(fn45) Each riparian had an equal right to use the water, irrespective of when the water right vested.(fn46)

Local custom also recognized water rights...