On October 3, 2013 the Washington State Supreme Court handed down its long-awaited decision on the Swinomish Indian Tribal Community v. Department of Ecology case (No. 87672-0). This case challenged the authority of Ecology to use the “Overriding Consideration of the Public Interest” (OCPI) clause to set aside water (for future allocation) after an instream flow has been established for a given stream or river. At issue was the use of that clause to amend the Skagit Basin Instream Flow Rule (WAC 173-503) to add reservations of water to the rule in order to facilitate some rural growth within specified sub basins. The court ruled that Ecology erred in several ways in its application of OCPI and clarified that reduction of an established instream flow could only be justified in “extraordinary” circumstances.
This reasserts the inviolable nature of instream water rights once established and significantly constrains the use of OCPI in the context of watershed management. However, the direct effect is limited in that the issue is the amendment of an instream flow rule. Additionally, the court left the door open for application of the OCPI clause on a case-by-case basis rather than a regional or general policy application.
Regardless, in the end the ruling will have a chilling effect on Ecology’s use of OCPI and will likely make the already complex management of surface-water/groundwater systems even more difficult. Some believe that the ruling also implies that instream flows can never be amended to a lower flow once set. I personally do not think this decision necessarily indicates such a constraint (however, I am not an attorney and don’t even pretend to play one on TV). Ecology is currently working to decipher the actual meaning of the ruling to its water resource management program.