The State of Washington water laws follow a “first in time, first in right” clause, wherein senior water rights supersede junior rights. This is especially important in times of water shortage, since those with senior standing are guaranteed their water rights before those with junior standing. It is also important to note that no individual or group can own state water; rather, rights to use are granted to specific subjects. The actual water belongs to the public.
In Spokane, the City has senior water rights to the SVRP Aquifer dating back to their year of priority in 1907. However, the Department of Ecology created an instream flow rule for the Spokane River and Spokane Valley Rathdrum Prairie (SVRP) Aquifer which went into effect on February 27, 2015. The purpose of this is to protect the river’s minimum flow to ensure the protection of fish populations, recreational use, and aesthetic value, especially during drought years. This means that while the city’s rights to water use are senior to the River’s flow guidelines, all new users’ rights will be junior to the River’s.
Nonetheless, in 2016, the Center for Environmental Law and Policy, American Whitewater, and the Sierra Club filed an appeal of the instream flow rule on the basis that the 850cubic feet per second (cfs) summer instream flow minimum too narrowly focused on fish habitats and not enough on recreational use; 850cfs is too low for recreational use of the river. This appeal was validated on June 26, 2019 with a clarification on August 20th. Unfortunately, the clarification states that the only invalidated section of the Instream Flow Rule is the 850cfs during the summer months. Practically, this means that there is no instream flow rule during the summer months; therefore, water pumping can continue as is usual. This being said, the Department of Ecology appealed to the Washington State Supreme Court on September 18, 2019 to review the decision for the summer instream flow rule. It may take up to a few months for the Court to make a decision.
It is important to note the relationship between the SVRP Aquifer and the Spokane River. The SVRP Bi-State Study of 2007 found that withdrawals from the aquifer result in lower flows in the Spokane River. The droughts in 2015 showed this relationship between the aquifer and river – increased pumping of the aquifer resulted in decreased discharge into the river. Moreover, forces outside of Washington are impacting stream flow in the river. For one, the SVRP Aquifer is a bi-state aquifer, spanning across Washington and Idaho, which means its use is subject to different political and legal standards as it crosses state and county lines. Additionally, changes in climate also affect recharge rates of the aquifer and flow rates of the river – this was shown during the 2015 drought and will be exacerbated by a projected decrease in snow-pack in future years.
Drought seasons, such as the one of 2015, can have an extreme effect on the River’s flows. Prevention measures must be put in place so as to ensure the protection of water availability for the public, habitat, and future generations.
The instream flow rule is both important and symbolic for the Spokane River and its viable future. It is important because it validates the river’s right to exist. Any new subject’s right to use the Spokane River will be junior to the River’s flow rules. In a way, however, this rule is still symbolic to an extent. The city’s right to the aquifer comes senior to the River’s, so the city could still theoretically pump water passed the instream flow minimums.
Responsible water use has not always been a priority for the City or its residents. Poor water use can have a significant effect on the Spokane River and SVRP Aquifer.
This being said, the City of Spokane has a responsibility to protect the viability of the Spokane River. With current and future threats of climate change, increasing population, and increasing water use demand, the city has a responsibility to ensure present and future water needs for not only Spokane’s citizens, but the ecosystem in which we live. These responsibilities must also ensure tribal voices and demands, including the future of salmon returning to the ecosystem. The Spokane Water Systems Plan (revised in 2016) outlines these responsibilities, claiming the Water Department has a commitment to meeting the needs of the present while also safeguarding future demand. Moreover, in accordance with Spokane Municipal Code 13.045.050, the City of Spokane will not sell or transfer water rights without the vote of City Council, will set minimum seasonal river flow goals, and will commit to water conservation. 13.045.050 also calls on the City to create a comprehensive water conservation plan within twenty months of the adoption of this Chapter (i.e. April 2020).
Instream flow guidelines have been put in place and the city has committed to promote water conservation, but there is still much to do. We need to make sure that water conservation planning is robust, has a stakeholder process, and is tied to outcomes and deliverables. We ask the City:
1. To develop policies that ensure water conservation benefits are dedicated to ensuring healthy river flows. To achieve this, it is necessary to pass a new instream flow guideline for summer flows that replace the currently redacted 850cfs minimum.
2. To set aside some of its senior water rights to protect river flows, especially during drought years, as Chapter 4 of the Spokane Water System Plan even claims that the City should potentially place some of its water rights into trust status in order to protect river flows.
3. To formalize a comprehensive, performance based water conservation plan that pulls from successful cities, such as the 2009 Salt Lake City Comprehensive Water Conservation Plan. The plan should include all stakeholders to the river and be goal-oriented, cost-effective, and practical.
In essence, the Department of Ecology’s Instream Flow Rule is important because it gives the river a right to exist that will be senior to new water use permits. Nonetheless, we must continue this work to make the river’s flow guidelines stronger and ensure the city’s senior water rights do not hinder the river’s stream flow. The instream flow guidelines are one part to the City’s responsibility to the River, the public, and the future.