Protecting Instream Flows

Jim Rioux works in water policy for the state Department of Health’s division of drinking water. The views expressed here do not represent the positions of the Department of Health.

Editor’s Note: This is the third of a five-part series about laws relating to water rights and usage in Washington state.

Part Three

With the title of his 1993 paper, Jeff Cederholm, a fisheries biologist at the Washington Department of Natural Resources, asked the question “Who speaks for the Salmon?” Cederholm was pointing out that the science of fish biology was overly focused on providing fish to meet human needs, and the result was an entire culture that ignored the natural limitations of the resource.

This fundamental question raised by Cederholm highlights the sad reality that, in spite of all the scientific research on salmon, key decisions about fisheries management are made in closed-session meetings by those with strong political interests. No voice speaks effectively for the resource itself.

In the realm of state water rights, the same question could be posed. In any natural resource management discussion, it is the state, as the legally designated resource manager, that is responsible for speaking for those resources. So the question becomes, how well does the state use its legal mechanisms to speak for the natural resources of the state? Further, how effective are those mechanisms at ensuring that the state’s voice is heard?

The state of Washington, like other western states, adopted a doctrine of prior appropriation into its legal framework (See “Water Rights and Agriculture,” April 2002 issue and “A History of Water Law,” May 2002 issue). That doctrine establishes a legal structure that recognizes water as a scarce resource and allocations are predicated on two fundamental principles: “first in time, first in right” and “use it or lose it.”

The first in time, first in right principle sets up senior and junior water users based upon the date that water was first put to beneficial use. In times of shortage, junior water users forfeit their right to senior users.

The “use it or lose it” principle establishes that if water is not continually put to beneficial use, the right to use that water reverts back to the state for further appropriation. This system was established early in our state’s history. Its purpose was primarily to provide a system for resolving disputes among competing water users and to ensure that water was diverted out of stream by the most efficient mechanism to promote the development.

So how does this structure protect fish or environmental resources? Instream flow protection is provided by state law in three chapters of the state code. Chapter 77.55, adopted in 1949, established the state policy “that flow of water sufficient to support game fish and food fish populations be maintained at all times in the streams of this state.”

This chapter also gives the Department of Ecology authority to deny a water-right permit if flows are not sufficient to support the use of water and support food and game fish populations.

Chapter 90.22 of the RCW, adopted in 1969, gives Ecology the authority to set “minimum water flows or levels for streams, lakes or other public waters for the purposes of protecting fish, game, birds or other wildlife resources or aesthetic values of said public waters whenever it appears to be in the public interest to establish the same.”

Chapter 90.54, adopted in 1971, establishes as state policy that “the quality of the natural environment shall be protected and, where possible, enhanced as follows… perennial rivers and streams of the state shall be retained with base flows necessary to provide for preservation of wildlife, fish, scenic, aesthetic and other environmental values, and navigational values….”

With such strong legislative direction, the state should have no problem using its authority to protect our streams, rivers and lakes. Right? Unfortunately, the issue is more complex. These protections are afforded within the established state water laws, which are based upon the principle of prior appropriation.

An instream flow set by Ecology is established within the water code as a water right. The priority date of that instream flow is the date it was set. The date of the first instream flow set by the state of Washington is 1976. To date, flows have been set in only 21 systems or approximately one-third of the state’s river systems.

Since the majority of water rights for out-of-stream uses were established well before instream flows were set and with no regard to maintaining flows, current (and future) instream flow rules have little regulatory meaning.

To illustrate the result of this system, consider the remarks made by Charles B. Roe, senior assistant attorney general, in a 1986 memorandum to the program manager of Ecology’s water resource program. In that memo, Roe noted that historically, “…the administrator of the water-right permit system…issued water-right permits, which dewatered (dried up) streams.”

This problem was more prevalent east of the Cascade Range but the western part of the state is impacted as well. An initial basin assessment of the Upper Chehalis watershed found that “at the Portage gage, the instream flows are not met an average of 77 days per year.”

Some have taken the position that the trump cards in this flawed system are tribal treaty rights and the Endangered Species Act. One form of treaty rights asserted by tribes would have a priority date of “time immemorial,” recognizing that native populations were putting water to beneficial use thousands of years before the country, let alone the state, established sovereignty over this land.

Federal reserved rights are another option that can be asserted by tribes. In this case the priority date is set at the date that the federal reservation was established, which in most cases predates the state’s out-of-stream water rights. However, tribal rights will not be effective if they are not asserted.

In her paper entitled “Washington Water Law,” presented at the eleventh annual Washington Water Law Conference, Kimberly Ordon noted that “most tribes have not quantified their water rights, making it difficult to protect their rights from impairment.” She goes on to point out that “tribes select the method that best suits them to protect their rights.”

It may not be in the best interest of the tribe to assert their rights under the state’s water laws. One very important reason could be that a particular tribe may consider it critical to deny state authority over something that they possess free and clear as sovereignties beyond the jurisdiction of the state.

Use of the Endangered Species Act to protect instream flows is uncertain as well. Although environmental groups have been successful in federal courts using the ESA, the cases thus far have focused primarily on the failure of federal agencies to properly consult with the agencies responsible for enforcement of the ESA. No court has been asked to directly take on the issue of a conflict between ESA and a state water right or any case that would pit water for a protected species against water for an established municipality.

In fact, one case was recently avoided when the U.S. Fish and Wildlife Service gave notice of potential ESA violations to a group of irrigators holding valid state water rights in the Walla Walla basin. The issue was settled through a negotiated agreement.

It is my opinion that the outcome of such a case, and the controversy that would surround it, would not be favorable for environmental interests, particularly in the climate that currently clouds Washington, D.C., from the Capitol to the White House.

The people of this state should not rely on other governments, tribal or federal, to protect our natural resources. The concept of protecting instream flows within a legal framework established to maximize diversion of water out of stream won’t work by simply adding environmental language to the mix.

Whatever path the state takes to face future challenges, it must recognize that the entities with the greatest stake in the issue cannot come to the table and speak for themselves. It is the state, as the legally designated manager of the state’s natural resources, that must speak for them. And the state’s voice should be strong and clear. §

This article originally appeared in the South Sound Green Pages, a member-supported journal of environmental news and commentary based in Olympia.