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June 7, 2016

The Department of Ecology adopted a new instream flow rule, effective February 27, 2015, for the Spokane River affecting Washington lands overlying the Spokane Valley Rathdrum Prairie Aquifer.  The stated purpose of the instream flow rule is to protect and preserve water for instream resources including fish, wildlife, recreational uses, wastewater management, and hydropower.  Since the rule’s adoption, minimum instream flows apply to all new water uses including new water right permits and permit-exempt ground water withdrawals.  In order to offset impacts to the Spokane River from anticipated future domestic wells, Ecology acquired and placed into trust a senior water right to operate as a water bank to allow uninterruptible water for new permit-exempt domestic groundwater use.

On March 1, 2016, three environmental groups petitioned Ecology to amend the Spokane River rule. The petition objected to the rule’s 850 cfs summer instream flow, asserting that it was not protective of all uses including recreational use for whitewater kayaking.  Ecology denied the request to amend the rule, pointing out that “like Ecology’s other instream flow rules, this rule does not control flows or put more water into the river.  Many of the assertions in the petition appear to assume establishing higher summer instream flow levels in the rule results in those flows appearing in the river each year from June 16 through September 30.  That is a mistaken assumption.  This complex river system and its flow are influenced by a variety of factors including seasonal weather, groundwater use from existing water rights, and operation of hydropower facilities.”  Undeterred, the petitioners have filed a Petition for Declaratory Judgment and Judicial Review of Agency Action and an Administrative Rule in Thurston County Superior Court on May 27, 2016.  Trial is set for September 30, 2016. For more information, visit Ecology’s website or contact Sarah Mack at mack@tmw-law.com.

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