Late yesterday, the Washington State Court of Appeals Division II ruled in favor of Spokane River advocates, finding that the Washington Department of Ecology (Ecology) failed to protect summertime flows needed by the river, and thousands of boaters, fishers, anglers, and businesses. The court, in rejecting Ecology’s Spokane River rule, underscored that the agency arbitrarily disregarded thousands of public comments, boater surveys, an analysis comparing the aesthetics of different flows, and testimony of river-dependent businesses.
Ecology adopted the Spokane River flow regulation in 2015. Water advocacy groups Center for Environmental Law & Policy (CELP), American Whitewater, and Sierra Club filed an appeal, arguing that the state was required to consider all uses of the river, not just fishery uses, in adopting an instream flow regulation or rule for the river. The court agreed, holding that Ecology did not have discretion to disregard recreational and aesthetic use of the river.
“During hot summer months, Spokane River flows must be protected for community recreational and aesthetic use, as well as fish and wildlife,” said John Osborn, conservation chair for the local Sierra Club’s Upper Columbia River Group. “The Department of Ecology, which has a long record of issuing water rights to the point of endangering rivers and aquifers, should not be allowed to further degrade the Spokane River by leaving open the door for more water rights.”
The court ruled:
- “The [Spokane] river is a central feature of the region’s identity, and Spokane residents view the river as an integral part of their community. (Opinion, p.3)
- Ecology may not “narrowly protect only one instream value that Ecology deems ‘best’”, but must “meaningfully consider a range of instream values . . .” (Opinion, p. 17)
- “Ecology’s explanations for establishing instream flows based only on fish habitat studies without regard to how its proposed flow would protect other values was arbitrary and capricious. Therefore, the resulting Rule is invalid.” (Opinion, p.21)
“The Court recognized that rivers have many valuable uses, and that determining the best flow requires balancing among those uses. If fish need a certain flow, that wins out. But here more water would be better for fish as well as recreational uses. Ecology ignored recreational and aesthetic uses of the river at their peril,” said Andrew Hawley of the Western Environmental Law Center, attorney for the appellants.
“Through the process of setting a minimum instream flow, Ecology chose to ignore the needs of recreational users of the Spokane River,” said Thomas O’Keefe of American Whitewater. “Today the court agreed that a minimum flow of 850 cfs would not be adequate to support rafting, kayaking, and other recreational uses of the river. Ecology must seek to protect multiple instream values and this ruling makes clear that the agency has a responsibility to do that.”
“Today’s decision is a victory for river users and the river environment,” said Dan Von Seggern, attorney with CELP. “By considering only fish habitat and protecting only a near-drought level summer streamflow, Ecology failed the Spokane River ecosystem and its users. Today’s decision means that Ecology must consider all uses of the River and protect the water they depend on.”
“We hope this decision marks a turning point in how the Department of Ecology approaches its task of protecting the people, fish, and wildlife that depend on healthy rivers,” said Andrew Hawley, attorney with the Western Environmental Law Center. “Going forward, we expect to see Ecology make decisions that account for all the beneficial uses our shared rivers have to offer.”
The Department of Ecology could ask the Washington Supreme Court to review the Court of Appeals decision, or accept the decision and go back to work on the Spokane River rule, fully involving the community in adoption of a new rule.
Appellants are Sierra Club, Center for Environmental Law & Policy and American Whitewater, and are represented by attorneys Dan Von Seggern (CELP) and Andrew Hawley (Western Environmental Law Center).
More background is available here.