Washington Supreme Court Refuses to Allow New Diversions to Reduce In-Stream Flows

The Washington Supreme Court has refused to allow water diversion from a fully appropriated basin to accommodate access for new water users, according to an article by Marten Law.

The court struck down a state Department of Ecology rule on October 3 that had allocated relatively modest amounts of water from the Skagit River basin to new development as an exception to established minimum in-stream flows. Such reservations of water are permitted where “overriding considerations of the public interest will be served.” The court, though, held this to be a “very narrow” exception requiring “extraordinary circumstances” before minimum flows can be impaired.

In the decision in Swinomish Indian Tribal Community v. Washington Department of Ecology, the court held that the Department of Ecology’s rule failed to meet the court’s stringent application of the test, despite evidence the water sought would provide a net economic benefit of between $27.6 million to $50.3 million and have no significant impact on fisheries or other environmental values.

Landowners and businesses seeking to develop new beneficial uses of water throughout the Skagit River basin will now need to find new sources of water in that fully-appropriated basin. More urgently, with hundreds of existing homes already constructed in reliance on this now-illegal water supply, the court’s decision may require those affected to mitigate their water use through the purchase and retirement of other water rights in the basin. The court’s decision invalidates the water rights on which an estimated 475 homes and eight businesses already rely.

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The court’s ruling has implications on exempt small groundwater uses. NGWA has developed information briefs on the “The Regulation of Exempt Wells in the West” and “Domestic Water Well Exemption in the Western United States.” Click here to read the information briefs.