8009

• UCREFRP Catalog Number: 8009
• Author: Natural Resources Law Center.
• Title: Restoring the Waters.
• USFW Year: 1997.
• USFW - Doc Type: Boulder, CO.
• Copyright Material: YES

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The Board found that the
Department of Ecology has
"no authority for impairing
the public's rights in
instream flows
to serve a private
appropriator's interest."
Washington State Protection of Instream Flows
The State of Washington recently began to
protect instream flow rights more vigor-
ously by rethinking its policy of freely
issuing new water rights. Factors that have
led to this new policy of the Department of
Ecology (Department) include:
^ Projected influx of two million new
residents to Washington in the next two
decades;
^ Continuing degradation of fish popula-
tions and water quality;
^ Potential for regulatory actions against
the state under the Clean Water Act and
Endangered Species Act; and
^ Anew state policy -the 1989 Centen-
nial Accord -requiring reconsideration
of treaty-protected fishing rights that
require adequate instream flows and
habitat.
In 1996, the Pollution Control Hearing
Board (Board), the State of Washington's
water court, issued a landmark decision
that supports the Department's new policy
The decision:
^ Confirmed the protected status of
instream flows;
^ Established standards for consideration
of environmental values in the water
right decision process;
^ Required integrated management of
ground and surface waters; and
^ Applied the public trust doctrine to the
state water code.
The Board's decision was made in response
to appeals of 140 decisions of the Depart-
ment of Ecology denying offstream water
rights. The Department had denied 250
applications, mostly requests for ground
water rights for future municipal supply
and residential/industrial development, to
prevent continued depletion of instream
flows.
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Board Decision Recognizes Surface-
Ground Water Connection
The Board's decision was based on two
important legal concepts. First,
Washington's Surface Water Code, Ground
Water Code and Water Resources Act
mandate that the Department manage
Washington's ground and surface waters as
an integrated resource. Second, senior
water rights, which include minimmn
stream flows set by regulation, are entitled
to protection from impairment by subse-
quent users. The Board also relied on
consensus among testifying hydro-
geologists that all aquifers are connected to
some surface water.