A unanimous Washington State Supreme Court recently upheld the Spokane River instream flow rule, WAC 173-557-050, in the face of a challenge brought by environmental and recreation groups. The challengers argued that the Department of Ecology’s (“Ecology”) rulemaking was defective because the agency only considered the needs of fish and did not take into account recreational, navigation, and aesthetic values in setting the minimum summer flow at 850 cubic feet per second (“cfs”). Ctr. for Envtl. Law & Policy v. State, 97684-8, 2020 WL 4516804 (Wash. Aug. 6, 2020). Upholding the rule, the Supreme Court recognized that Ecology has wide latitude over which instream values it chooses to protect, overruling the Court of Appeals’ holding that “Ecology must meaningfully consider the instream values enumerated in RCW 90.54.020(3)(a), and attempt to preserve them to the fullest extent possible.” Ctr. For Envtl. Law & Policy, 9 Wn. App. 2d 746, 764-65, 444 P.3d 622 (2019).

Ecology has the exclusive authority to enact minimum instream flow rules to protect a variety of instream uses. RCW 90.03.247; RCW 90.22.010. Once established by rule, instream flows become water rights within the prior appropriation system, meaning that regulatory flows do not limit senior water users’ ability to exercise their rights when flows are not met. RCW 90.03.345. Instead, only water rights established after the adoption of an instream flow rule need to be curtailed during low flow periods. RCW 90.03.247.

Efforts at cooperative watershed planning for the Spokane River under chapter 90.82 RCW trace back to 1998. When the local governments and tribes engaged in that process failed to reach consensus, Ecology opted to establish minimum flows by rule as contemplated by RCW 90.82.080. Ecology relied on the opinion of an instream flow biologist working for the Department of Fish and Wildlife, Hal Beecher, who recommended that minimum flows of 850 cfs between June 16 and September 30 be adopted based on a number of studies looking at the needs of rainbow trout and mountain whitefish. Ecology took Dr. Beecher’s recommendation and promulgated WAC 173-557-050 in February of 2015.

At the root of the dispute in Center for Environmental Law & Policy are two seemingly contradictory statutory provisions relating to Ecology’s rulemaking authority. RCW 90.22.010 provides that Ecology “may establish minimum water flows or levels for streams … for the purposes of protecting fish, game, birds or other wildlife resources, or recreational or aesthetic values of said public waters.” (Emphasis added.) RCW 90.54.020(3)(a), in contrast, provides, “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.” (Emphasis added.) The challengers argued that RCW 90.54.020 put an affirmative burden on Ecology to consider all of the enumerated values in establishing flows, and that Ecology had unjustifiably focused only on the needs of fish in determining the appropriate minimum instream flows.

The Supreme Court rejected the challengers’ arguments on two grounds. First, the court held that Ecology is not obligated to base its rulemaking on each of the values enumerated in RCW 90.54.020, but can instead implement rules to protect any particular values it views to be in need of protection. In so holding, the court relied on a line of cases that legislative intent and statutory context can overcome the presumption that the legislature’s use of “shall” creates a mandatory duty. 2020 WL 4516804 at *13. In holding that RCW 90.54.020 did not set forth elements that Ecology is required to consider in establishing instream flow rules, the court focused on the statute’s own statement that it sets out “general declaration of fundamentals.” Coupled with other statutes that give Ecology wide discretion in managing Washington’s water resources, the court was satisfied that RCW 90.54.020’s use of “shall” did not impose a mandatory duty on Ecology.

Second, the court held that Ecology’s rulemaking process was not arbitrary and capricious because the agency had, in fact, adequately considered the instream values with which the challengers were concerned. In response to several comments on the proposed rule, Ecology affirmed that the flows it was enacting were protective of many instream values and cited the federal licensing process for the Post Falls Dam located in Idaho, which requires the dam operator to release flows to support recreation, cultural, and aesthetic resources. 2020 WL 4516804 at *6. The court apparently accepted Ecology’s explanation of “why it chose not to set flows based on recreational needs and why setting flows based on those needs is not the same as not considering them.” 2020 WL 4516804 at *7.

This decision affirms Ecology’s broad discretion in determining which instream values warrant protection through the adoption of minimum instream flows, and it signaled that courts will not necessarily require in depth analysis on the part of an agency to avoid having its actions overturned as arbitrary and capricious. Here Ecology decided to focus its rulemaking on protecting fish habitat, and leave water not needed for that purpose available for future appropriators to use.

If you want to know more about how instream flow rules in Washington may impact your water rights, or your ability to secure new water rights, please contact David Stearns in Schwabe’s Seattle office.

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