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Swinomish win water rights case against Ecology

By Rachel Lerman
Skagit Valley Herald

Posted 10/7/2013

The state Supreme Court ruled Thursday that the state Department of Ecology overstepped its authority in a water rights decision that would allow rural landowners to gain access to water.

The 6-3 ruling invalidates Ecology’s amendment to the 2001 Skagit River Instream Flow Rule and reverses a 2010 trial court decision against the Swinomish Indian Tribal Community.

The Swinomish objected to Ecology’s use of the “overriding consideration of public interest” provision, saying new water withdrawals from the basin by rural landowners put salmon in danger.

The high court ruled that Ecology’s amendment, which created 27 reservations of water that could be used for noninterruptible uses, exceeded the agency’s authority because it is too broad.

The amendment relies on an exception that can be used to withdraw water “where it is clear that overriding consideration of the public interest will be served.” Ecology used this amendment, determining the impact on aquatic resources would be small, and the benefits of new development would outweigh the costs.

However, Thursday’s ruling said the amendment conflicts with the state water code that prohibits water usage where it would impair minimum flows. Ecology used the exception to reallocate priority of water rights, the ruling stated, and “nothing in the limited number of words in the exception can be said to grant such expansive power.”

Minimum flow rights, such as the 2001 law, are treated as other water rights, which are given priority based on seniority.

Now, landowners who have built in various basins since 2001 are put in flux — they may no longer have legal access to ground water.

For now, said state Assistant Attorney General Alan Reichman, who is representing Ecology in this case, landowners using the water are not in violation of the ruling.

“Folks will not be in violation unless the stream flows aren’t being met,” he said. “Currently, the flows are being met.”

The question of what to do next will get more serious when the flows aren’t being met, usually in late summer or early fall. Ecology, which regulates water rights, has the power of enforcing them.

“At this juncture in time, they do not appear to be inclined to exercise enforcement,” Reichman said.

Ecology is looking to find mitigation water, or purchase existing water rights that were established before 2001 to re-purpose for homeowners to use.

Ecology said it has no plans at this time to ask the court to reconsider, Reichman said.

“We’ve got our work cut out for us here, but we are committed to coming up with some water supply solutions here for these homeowners and these businesses,” said Dan Partridge, communications manager for the water resources program at Ecology said.

It is too early to tell if this ruling will have statewide ramifications on other established water reservations, he said.

Future landowners and developers need to specify an adequate water source in order to get a building permit. They will have to find water elsewhere, said Bob Powell, general manager for Skagit Public Utility District, who is an original signatory of the 2001 rule. Given the current state of this ruling, he assumes those parties would need to either use trucked water or public water, he said.

“We can certainly extend the system,” he said. “But it’s expensive.”

The Swinomish tribe said Thursday it was still analyzing the court’s ruling, but said the future of the landowners’ water sources was up to Ecology, which is the regulator.

“We really don’t know what Ecology or the county will do now that the landowners are in this position,” said Larry Wasserman, environmental policy manager for the tribe.

He went on to say the tribe is thankful for the decision, which will provide ongoing protection for the salmon in the water.

“We would have preferred to work together to find a solution to everyone’s water needs, as we did prior to the original 2001 Rule,” Brian Cladoosby, chairman for the tribe, said in a prepared statement. “But, Ecology chose to go it alone with the county and we were left without any option other than calling the problems with the 2006 Rule amendments to the attention of a court. If we hadn’t acted, the stream flows needed to support our diminishing salmon stocks would have been further impacted.”

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