Washington state law requires that instream values including fish, wildlife, and recreation be protected. The Department of Ecology does this through establishment of instream flows that provide a “water right for the river” and protect streamflows adequate to support instream values.
Contacts for more information:
- Dan Von Seggern firstname.lastname@example.org
- Lindsey Schromen-Wawrin email@example.com
The Dungeness River begins high in the Olympic Mountains and flows 32 miles to the Strait of Juan de Fuca. It is used by chinook, coho, chum, and pink salmon, as well as steelhead, cutthroat, and bull trout. The Dungeness chinook, cutthroat and bull trout runs are listed as threatened under the Endangered Species Act. The River also supports Dungeness Bay, a highly productive estuary environment including the Dungeness National Wildlife Refuge. Low-flow levels in the river threaten the salmon runs as well as the river’s ability to support the estuary.
The Dungeness is the only coastal watershed in Washington that is dry enough to require irrigation for agriculture. In fact, the amount of water originally claimed for irrigation exceeds the natural streamflow. Population growth and development in the watershed, particularly the Sequim area, has also increased demand for water for development. Homes in rural areas generally rely on well water. Withdrawal of groundwater can dramatically reduce streamflows, which puts even more pressure on fish and other wildlife.
Washington state law requires that instream values including fish, wildlife, and recreation be protected. The Department of Ecology does this through establishment of instream flows that provide a “water right for the river” and protect streamflows adequate to support instream values. Where an instream flow has been adopted, withdrawals of water that would impair the instream flow are prohibited. Unfortunately, many rivers in Washington lack instream flow protections, largely because of concerns that adoption of instream flows may block development. Unless instream flows are adopted, increasing withdrawals of water for out-of-stream uses will gradually reduce these rivers to levels that cannot support fish.
In 2013, the Department of Ecology finalized its Instream Flow Rule for the Dungeness. The Rule seeks to protect instream values and fish by allowing new residential development based on well water, but requiring that mitigation be provided so that any new water uses do not impair streamflows. A water banking program operated by the Washington Water Trust provides a simple, “one-stop” way for homeowners to secure mitigation water for their well use through a relatively modest one-time payment. Since the Rule was finalized in 2013, over 100 mitigation certificates have been issued, allowing homes to be built and their water use mitigated through the water bank. CELP believes that the Dungeness River Rule provides a template for protecting streamflows, fish, and wildlife, while allowing responsible development. This approach is significant not only in the Dungeness basin, but also in other watersheds that currently lack streamflow protections.
A group of property owners & developers in Clallam County, seeking unlimited water for development without regard to flows in the river, sued to overturn the rule in 2014. If successful, their suit would leave the Dungeness River without protections and cast doubt on future efforts to use this strategy to protect instream flows in other rivers. Because CELP feels that the Rule appropriately protects instream values even while allowing for development, CELP joined the lawsuit as an intervenor, asking that the court uphold the Rule. CELP staff attorney Dan Von Seggern and volunteer attorney Lindsey Schromen-Wawrin are handling this case for CELP.
Thurston County Judge Gary Tabor issued an important preliminary ruling regarding the requirements for adopting an instream flow. Plaintiffs had claimed that a standard for issuing a right to withdraw water for out-of-stream uses, known as the “four-part test,” should apply to instream flows as well. Requiring the four-part test would essentially make it impossible to adopt any further instream flows, threatening the Dungeness along with many other Washington rivers. Along with Ecology’s counsel, Dan and Lindsey successfully defeated plaintiffs’ motion on this issue. A full hearing on the case was held on October 21 2018. The plaintiffs made arguments that would have made establishing new instream flows and regulating new permit-exempt water uses much more difficult, with predictably harmful effects on our state’s rivers. In April 2019, the Court of Appeals affirmed that Ecology did not exceed its statutory authority in adopting the Dungeness Rule or show that the department acted in an arbitrary or capricious manner in doing so.
- Dungeness River Instream Flow Rule (Dept of Ecology)