The Washington Department of Ecology won’t require 483 well owners in the Skagit Basin to stop using water to comply with a recent Supreme Court decision.
The question arose following an Oct. 3 Washington Supreme Court decision that declared that Ecology had no authority to create “water reserves” to support further development in the area.
The Swinomish Indian Tribal Community brought the case, arguing that Ecology wrongly extended water rights when it made water available for residential construction in certain portions of Skagit County. They said Ecology had incorrectly invoked a portion of the law that allows the agency to make water decisions based on an “overriding consideration of public interest.”
The tribes said in so doing Ecology reduced the amount of water available for salmon populations.
The court agreed, saying the agency’s authority is “very narrow,” and requires extraordinary circumstances before the minimum flow water rights can be impaired.
The decision reinstated the 2001 Skagit Instream Flow Rule. Under that rule, water rights established on or after April 14, 2001, are subject to curtailment when the “senior minimum instream flow rights” are unmet.
Ecology Director Maia Bellon said her agency would use its “enforcement discretion” to allow continued water use in the 475 homes and eight businesses that have relied on the reservations since 2001.
On the home front
Clallam County officials, home owners and real estate and construction professionals took notice of the court’s decision because under the new Dungeness Water Management Rule, in place since January, Ecology established similar reserves in the Dungeness Valley to ensure rural development in eastern Clallam County didn’t grind to a halt.
In writing the Dungeness Rule, Ecology again asserted “an overriding consideration of the public interest.”
The impact on the local rule, if any, has yet to be determined. Amanda Cronin, who manages the Dungeness Water Exchange for the Washington Water Trust, said the exchange is continuing to operate as usual, providing “mitigation water” for a fee for new home builders. Currently only water for indoor use is available for sale.
Dale Pernula, director of planning and development for Skagit County, said the impact of the court decision on Skagit, at least in the short term, will be minimal. He said because the reserves had begun to be depleted, the county already had stopped issuing permits within the smaller subdivisions. “Some are served with public utility water and you can build there,” he said.
He described the area without water as “a major portion of the unincorporated area of (Skagit County).”