State Supreme Court rules in Swinomish Tribe’s favor in water dispute

The Washington State Supreme Court ruled in the Swinomish Tribe’s favor on Oct. 3, in a challenge to the Skagit River instream flow rule amendments adopted in 2006 by the Washington Department of Ecology. The court found that Ecology’s amendments were invalid because they were inconsistent with state laws to protect minimum instream flows for fish and other environmental values.

“This decision is a huge victory for Swinomish, for salmon and for the water that salmon need to survive,” said Swinomish Chairman Brian Cladoosby. “Ecology had a choice to do the right thing or the wrong thing in 2006, and unfortunately, it chose to do the wrong thing. The court’s decision vindicates the tribe’s position and confirms that Ecology cannot make an ‘end run’ around laws that protect instream flows for fish.”

The 2006 amendments radically changed Ecology’s original 2001 rule that established minimum instream flow levels for the Skagit River and several important tributaries.

“We spent years collaborating on what became the 2001 rule with the city of Anacortes, the Public Utility District, Skagit County, Upper Skagit and Sauk-Suiattle tribes and the state of Washington,” Cladoosby said. “The result of those efforts was a good rule based on sound science. Our collective agreement provided certainty for agriculture, for the cities, for the county and for the tribes for decades to come.”

In 2004, Skagit County sued Ecology challenging the 2001 rule. Multi-party discussions ensued as the Swinomish and other tribes, water purveyors, and the state tried to resolve the county’s complaints. Eventually, Ecology and the county settled the lawsuit without consulting any of the other parties to the negotiation. In return for Skagit County agreeing to drop its lawsuit, Ecology agreed to adopt the 2006 rule amendments.

The 2006 rule amendments created 27 “reservations” of water for future out-of-stream use for a wide variety of purposes, despite the fact that the senior minimum instream flow right established in 2001 is frequently unmet.

In 2008, the tribe and the city of Anacortes filed a lawsuit challenging the 2006 rule amendments, contending that creating the reservations exceeded Ecology’s authority.

On Oct. 3, the Washington State Supreme Court ruled that “Ecology’s Amended Rule, which made 27 reservations of water for out-of-stream year-round non-interruptible beneficial uses in the Skagit River basin and which would impair minimum flows set by administrative rule, exceeded Ecology’s authority because it is inconsistent with the plain language of the statute and is inconsistent with the entire statutory scheme. The Amended Rule is invalid.”

“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,” Cladoosby said. “If we had not acted, the stream flows needed to support our diminishing salmon stocks would have been further impacted.”

Read the opinion.

For more information, contact: Brian Cladoosby, Swinomish Chairman, (360) 708-7533; Larry Wasserman, Environmental Policy Manager, (360) 466-7250.