In their brief, Earthjustice and CELP argue that the Washington Department of Ecology (Ecology) cannot allow more water to be withdrawn from the troubled Skagit River and its tributaries for new junior water uses because such new uses would further impair stream-flows. Impaired stream-flows damage salmon, other wildlife and communities that depend on the water.
The tribal community’s appeal, filed in 2008, challenges Ecology’s 2006 revision to the in-stream flow rule for the Skagit River and its tributaries.
The Skagit River and some its tributaries consistently fail to meet the basic flow requirements to maintain a healthy river system for fish and people. There are numerous reasons for this including excessive water diversion to development, municipalities and agriculture.
In spite of low flow and poor water quality in some Skagit tributaries, Ecology chose to revise the Skagit flow rule so that it could still give away large additional quantities of water for future uses—domestic, municipal, commercial, industrial, agricultural and livestock watering—at the expense of what’s needed for a healthy in-stream flows. Ecology claimed to do so under the rarely invoked “overriding consideration of public interest” (OCPI) exemption, a gross misreading of Washington’s water laws. The resulting leapfrog of the new junior water rights holders ahead of more senior in-stream water right goes against the basics of Washington’s long-time water laws that have always subscribed to the “first in time, first in right” doctrine.
“Along with the Swinomish Indian Tribal Community, we will not stand by to see critical tributaries of the Skagit reduced to trickles simply because Ecology is unwilling to uphold the law and protect the instream flow reservations that preserve the river and its wildlife,” said Suzanne Skinner of CELP. “The Skagit must be conserved for future generations and we will work to protect the precious water that salmon and people need to survive.”
The conservationists’ brief challenges Ecology’s claim that the “public interest” exemption creates a loophole to ignore protecting basic in-stream flows whenever Ecology finds it convenient or generally desirable to do so. Rather, the public interest doctrine is meant to be used in limited emergencies such as fire suppression or health emergencies. That limited, temporary, emergency use was Ecology’s long-standing position until very recently when it started to stretch the emergency exception into a big, permanent loophole.
“Excessive demand is depriving too many rivers of water, and fish and wildlife are suffering,” said Janette Brimmer, an Earthjustice attorney. “It is Ecology’s job to protect the water resources of the state, but Ecology has chosen to avoid the hard work of protecting water and instead uses the co-called public interest exemption with increasing frequency to hand out water beyond what is actually available. Limiting this exemption to the emergency uses contemplated by the legislature will help protect rivers and streams throughout the state from Ecology’s increasing failure to adequately regulate water use in the state.”
In 2008, the Swinomish Indian Tribal Community challenged Ecology’s revision of the in-stream flow rule for the Skagit. The Superior Court ruled against the tribal community and its members appealed to the Washington State Court of Appeals.