On November 20, 2014, the Building Industry Association of Washington (BIAW), realtors and farm bureau filed a petition with the Washington Department of Ecology asking the agency to repeal the Skagit River instream flow rule. The Center for Environmental Law & Policy (CELP) opposes the petition as it is inconsistent with recent Supreme Court decision and Washington case law.
“The rule petition is a new prong in the wholesale attack on Washington’s rivers that has been brought by developers for the past several years,” said Rachael Paschal Osborn, interim executive director of the Center for Environmental Law & Policy, “This proposal is inconsistent with state law and last year’s court decision in Swinomish Tribal Community v. State of Washington.”
The Skagit River instream flow rule has been the subject of controversy and court battles for more than a decade. Ecology’s original rule does not allow for unmitigated new domestic wells. Skagit County sued to overturn that rule, causing Ecology to adopt an amendment that created “water reserves” in tributaries to the detriment of river flows. One year ago, the Supreme Court held that rule to be invalid as violating state instream flow laws, causing reinstatement of the original rule.
BIAW’s petition to repeal the original rule incorrectly argues that the 2013 Supreme Court decision is inapplicable, and further ignores other court decisions of the last decade that have interpreted instream flow and domestic well laws. Among other flaws in their arguments, the BIAW fails to recognize the physical impact of new wells on small streams, and that the state is obligated to provide water for all new development, regardless of whether water is available.
“Water scarcity is a big problem in Skagit County and throughout Washington state due to over-allocation of water rights and now, climate change,” said Osborn. “Developers, local governments, and state agencies all must recognize that new water allocation is harmful unless fully mitigated.”
Solutions for Washington State’s water scarcity problems are provided “Proposed Water Management Strategies to Protect Instream Flows and Provide Water for Rural Development.”