A consortium of organizations represented by Olympia attorney Bill Clarke has petitioned the Department of Ecology to repeal the 2001 Skagit basin instream flow rule, Chapter 173-503 WAC. This is the rule that was reinstated by the Supreme Court after its 2013 decision invalidated the 2006 amended Skagit basin rule in Swinomish Indian Tribal Community v. Ecology. The consortium includes Washington REALTORS®, Building Industry Association of Washington, North Puget Sound Association of REALTORS®, Skagit-Island County Building Association, Snohomish-Camano Association of REALTORS®, MasterBuilders of King and Snohomish Counties, Washington State Farm Bureau, and the
Just Water Alliance. A copy of the petition is available on Just Water Alliance’s website at this link.
The petition requests that Ecology repeal the Skagit Basin Rule and replace it with a rule that balances instream and out-of-stream water needs, as required by chapter 90.54 RCW. In the alternative, Petitioners request a determination by Ecology that the Skagit Basin Rule does not require tributary-based mitigation for exempt groundwater uses, and that compliance with the rule is based on the measurement of impacts at the Skagit River mainstem gauge in Mt. Vernon. That would allow Skagit County to issue building permits in rural areas based on permit-exempt wells so long as a mitigation package maintains maintstem river flows, which could be accomplished through agreements with upriver dam owners. Mitigation in many of the tributary areas, such as the Carpenter-Fisher subbasin, is not available, resulting in a moratorium on well drilling and building permits. Ecology director Maia Bellon is expected to respond to the petition in January 2015. If Ecology rejects the petition, a logical next step for the coalition of petitioners is to challenge the validity of the Skagit rule in Thurston County Superior court under the Administrative Procedure Act.