In Swinomish Indian Tribal Community v. Washington State Department of Ecology (PDF), the Washington Supreme Court determined that the state Department of Ecology (Ecology) overstepped its statutory authority by issuing an Amended Rule for the Skagit River which both established minimum water flow levels and set aside 27 reservations allowing users to draw on the water even if that use would force the river below that minimum flow level.

Background

Ecology originally promulgated a rule establishing minimum flows for the Skagit River system in 2001. Water uses begun after the rule came into effect would be shut off whenever the water flow fell below the minimum level in order to preserve the flow of water through the river system. In the face of development pressures, Skagit County sued Ecology to challenge the rule. In 2006 Ecology settled the county’s challenge by issuing an Amended Rule carving out 27 “reservations,” or set-asides for new uses that would be allowed to continue drawing water even when the river’s flow fell below the minimum level. In making the reservations, Ecology determined that the reservations would not have a significant impact on the fish in the river system and that important public interests would be advanced by the reservations because they would prevent interruptions in water use for new withdrawals.

The Swinomish Indian Tribal Community challenged the validity of the Amended Rule under the Administrative Procedure Act. The superior court denied the Tribe’s petition and the Tribe appealed to the Supreme Court.

Analysis

The Court (Chief Judge Madsen writing for a six Justice majority) rejected Ecology’s finding that the 27 reservations of water served “overriding considerations of public interest” and were therefore allowed to conflict with minimum river flow levels under RCW 90.54.020(3)(a). The Court held that overriding considerations of public interest was a narrow exception to the legislature’s prioritization of minimum flow rights. On the facts before it, the Court determined that the aggregated private benefits of the reservations did not serve a significantly weight public interest to justify the conflicting water use.

Partial dissent: Justice Wiggins wrote for three Justices who joined the Court in rejecting most of the reservations, but would have remanded to Ecology to make further findings as to whether the reservations for rural public water systems and permit exempt wells standing alone would produce benefits to the public interest that outweighed the ecological impact.

Commentary

The Court interpreted the statute relied upon by Ecology in light of Washington’s century long development of the body of prior appropriation law. The Court found that the legislature intended to protect river flows my treating minimum flow determinations as prior rights to the water which take priority over later beneficial users. Just as a farmer who first draws water from a river to irrigate her crops does not need to let her field go dry to allow a rancher who comes later to water his herd, the public does not need to let its river system fall under a minimum flow level to allow later users to draw water. Ecology is therefore not the administrator of a flexible regulatory scheme but the steward of the public’s vested right to a minimum water flow.

In making this decision, the Court rejected a law and economics approach favored by some courts and commentators by carving out environmental, aesthetic, and recreational values as non-quantifiable by economic cost-benefit analysis. The Court asks, “How does one put a dollar value on being in the presence of crystal clear water coursing down a steep slope through a rock-lined, moss-edged stream bed among evergreen trees, for example?” It is therefore unclear whether the Court would accept future exceptions to minimum flow based on a cost-benefit analysis that sought to factor environmental values into the analysis or whether Ecology will need to run separate cost-benefit and public policy analyses.

It is too soon to tell what this decision will mean for the Skagit river system. The minimum flow levels themselves were subject to a challenge by Skagit County that was only withdrawn subject to the reservations. Now that the reservations have been struck down, the deal between Ecology and the county is presumably off and a renewed challenge to the minimum flow may very well be forthcoming.