Ecology Director Denies Petition to Repeal Skagit Instream Flow Rule

On January 15, 2015, Ecology Director Maia Bellon denied the latest petition to amend or repeal the 2001 Skagit Basin Instream Flow Rule (Chapter 173-503 WAC), which had been reinstated as a result of the Washington Supreme Court’s decision in Swinomish Indian Tribal Community v. Ecology. The petition was filed in NOvember 2014 by attorney Bill Clarke on behalf of a group of realtors, builders, farmers and the Just Water Alliance. The rationales of the petition were numerous, and included inconsistencies with the 1996 Skagit MOA and state statutes by prohibiting new permit-exempt wells in rural areas. In particular, the petition asserted that the Skagit Rule was damaging water resource management efforts around Washington State, that efforts to provide relief to Skagit Basin property owners through mitigation were being misspent, and that the mitigation effort “perpetuates a fundamentally flawed, unlawful, and unfair regulation.”

Director Bellon’s response perpetuates Ecology’s questionable interpretation of its obligations under the Water Resources Act (chapter 90.54 RCW) as requiring the protection of instream flows at levels higher than natural flows, which results in de facto closures of basins to new year-round consumptive uses of water, without first accounting for out-of-stream needs for human consumption and economic growth. In the Skagit, hundreds of rural property owners are in legal limbo with no valid water right for their homes and others cannot obtain building permits until mitigation is in place, which is not guaranteed. Director Bellon admitted that the situation in the Skagit is difficult, but stated that “[U]nder current law, we could not successfully develop a rule for the Skagit Basin that would create available water for future community growth in rural areas, without a high likelihood of being legally challenged.”

The January 15 letter contains a glimmer of hope for rural property owners in the Skagit. The petition also requested an alternative remedy that Ecology interpret the Skagit Rule as not requiring tributary-based mitigation for permit-exempt uses, and that compliance with the Rule will solely be based on measurement of impacts at the Skagit River main stem gauge in Mount Vernon. This would allow rural property owners in tributary basins to obtain building permits with permit-exempt well systems once a mitigation package for the main stem Skagit River is in place, a feasible project that is expected to be announced in the near future. Ecology agreed that a plain language interpretation of the Skagit Rule would allow junior permit-exempt groundwater uses that would not interfere with instream flows as measured at the Mount Vernon gauge. However, Director Bellon warns that such solutions may be challenged by third parties and would not meet the public interest test for applications that require permits under the Water Code.

With the Fox v. Skagit County case awaiting a final order, the ball is now in Skagit County’s court to determine whether this solution for permit-exempt groundwater uses should be implemented without further action by Ecology or third parties, including the Swinomish Tribe, potentially risking legal challenges against the County. The Petitioners may also challenge the validity of the Skagit Rule in court under the Administrative Procedure Act.

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