Minimum Streamflows: Washington Supreme Court Rejects Claim of Broad Authority to Override Minimum Streamflow Requirements
The Supreme Court of Washington today issued an opinion sharply limiting the Department of Ecology's authority to limit minimum streamflow requirements to serve "overriding considerations of the public interest." Today's decision, arising from a long-running conflict concerning minimum streamflows on the Skagit River, finds that this statutory language is "very narrow" and Ecology can override minimum streamflows only in "extraordinary circumstances." The Court therefore rejects Ecology's conclusion that it is authorized to make exceptions to minimum flow requirements on a demonstration that net economic benefits will result. As a result, it will be much more difficult for Ecology to accommodate new water withdrawals to support economic development in those basins where withdrawal limits imposed by minimum streamflows have been reached. (Swinomish Indian Tribal Community v. Department of Ecology, No. 87672-0 (issued Oct. 3, 2013)).
In 1969, the legislature adopted a minimum streamflow statute authorizing Ecology to implement minimum streamflows to protect fish, wildlife, water quality, and aesthetic values of the state's streams and rivers. A minimum streamflow is functionally equivalent to any other water right in that it is subject to the venerable "first in time, first in right" principle of Western water law. That is, water users with rights arising after the minimum streamflow is established cannot withdraw water if the withdrawal would impair the minimum streamflow. Today's Supreme Court decision defines the scope of Ecology's authority to authorize water withdrawals that conflict with minimum streamflows "only in those situations where it is clear that overriding considerations of the public interest will be served." RCW 90.54.020(3)(a).