Washington State Supreme Court Issues Landmark Ruling: “Overriding Considerations Of The Public Interest” Do Not Justify Reallocating Water Rights From Minimum Instream Flows To New Beneficial Uses

by Perkins Coie

On October 3, 2013, the Washington State Supreme Court ruled in Swinomish Indian Tribal Community v. Wash. Dept. of Ecology (No. 87672-0, Wash. Oct. 3, 2013) that the Department of Ecology exceeded its authority by applying the state water code’s “overriding considerations of the public interest” (OCPI) exception to justify reservations of water for future beneficial uses that would impair existing minimum instream flow rights.  Notwithstanding Ecology’s determination that allowing these uses would be in the public interest and would not significantly impact fish, the court rejected Ecology’s position as being “inconsistent with the statutory context and the entire statutory scheme.”

The court’s 6-3 decision raises many questions and does not provide clear guidance regarding the circumstances under which the OCPI exception may be lawfully invoked.  For example, although the decision addresses Ecology’s improper use of the exception to reserve water for future beneficial uses through rulemaking, the decision also appears to limit Ecology’s ability to use the exception to grant new individual water rights.  At the least, the decision increases the likelihood that Ecology will require water right applicants to demonstrate that any impairments to minimum instream flows will be mitigated to the fullest extent possible before a new water right can be authorized. 

Skagit River Basin Instream Flow Rule and Ecology’s OCPI Finding

Under RCW 90.22.010, Ecology is authorized to—and in some circumstances must—set minimum instream flows to protect fish, game, birds or other wildlife resources, or recreational and aesthetic values.  Once issued, a minimum flow rule constitutes a water right with a priority date that is the same as the effective date of the rule.  As an existing water right, the instream flow is protected by the “first in time, first in right” principle of Western water law, which prohibits impairment by subsequent appropriators.  There is an exception, however, in RCW 90.54.020(3)(a), which provides that withdrawals of water that conflict with minimum instream flows may be authorized “only in those situations where it is clear that overriding considerations of the public interest will be served.”  This exception is commonly referred to as the OCPI exception.

In 2001, Ecology issued its “Skagit River Basin Instream Flow Rule,” which established minimum instream flows for the river basin.  Skagit County challenged the rule, arguing that it would prevent future residential, industrial and agricultural development by making future water uses interruptible during times of low flow.  In 2006, as part of a settlement agreement with the county, Ecology amended the rule to establish small “reservations” of water for future development.  The amendment provided that these future beneficial uses would be allowed to continue even if the existing instream flow requirements were not being met.

Water reservations by Ecology are appropriations of water by rule, which create a water right with a priority date as of the reservation date.  See RCW 90.03.345; 90.54.050.  Once Ecology issues a reservation for a future beneficial use, individual applicants may apply for a permit to obtain the right to put water to the specified beneficial use.  The priority date for the permit is the date of the reservation, rather than the date that the permit application was made.  Like other new water rights, a new water right reservation must satisfy a four-part test before it may be authorized:  Ecology must affirmatively find that (1) water is available, (2) for a beneficial use, and that (3) appropriation will not impair existing rights, or (4) be detrimental to the public welfare.

Here, Ecology acknowledged that the Skagit reservations would impair existing instream flow rights and that water was legally unavailable.  Nonetheless, Ecology concluded that it could still authorize the reservations under the OCPI exception.  Key to Ecology’s decision was that the economic benefits of authorizing the future beneficial uses, $32.9 to 55.9 million over 20 years, outweighed the small monetary loss to fisheries, $5.3 million over 20 years.  Ecology also concluded that providing uninterruptible water to residents, businesses and farms served an important public interest and that the impairment of instream flows would not cause significant harm to fish and wildlife.  Applying a “balancing test,” Ecology found that these and other considerations established a clear showing of overriding consideration of public interest.

“Inconsistent with the Statutory Context and the Entire Statutory Scheme”

The Swinomish Indian Tribal Community objected to Ecology’s use of the OCPI exception to authorize the reservations and brought suit.  On appeal, the Washington State Supreme Court invalidated the 2006 amendment, holding that Ecology’s application of the OCPI exception in these circumstances was “inconsistent with the statutory context and the entire statutory scheme.”  Although the decision provides a litany of reasons for why Ecology “got it wrong” in this particular case, it provides little concrete guidance for how the OCPI exception should be applied in the future, and the full import of the decision is sure to be debated.  A few of the most important takeaways are highlighted below.

  • The OCPI exception is a “very narrow” exception that requires “extraordinary circumstances” and “overriding” considerations of public interest.  A simple “balancing” of costs and benefits is insufficient.  Proposed beneficial uses should be considered individually; aggregating potential benefits is inappropriate because the need for water for population growth would always trump environmental values.  The proposed use must also serve public interests, as opposed to private interests.  Because “the retention of waters instream is as much a core principle of state water use as the other goals, including economic well-being,” the “best use of water does not necessarily mean economically beneficial use,” and “economic gains alone do not justify using RCW 90.54.020(3)(a) to reallocate water” from instream flows.
  • The OCPI exception is not an alternative appropriation process.  The OCPI exception is not to be used “as an alternative method for appropriating water” when the four-part test for a new water right under RCW 90.03.290(3) cannot be satisfied.  Even seemingly insignificant uses cannot not be allowed to “jump to the head of the line” in priority through the use of reservations.  “[T]here are hardships attendant to any water right with a later priority date and too little water available to satisfy all rights,” and this does not justify an “end-run around the normal appropriation process.”
  • Minimum instream flow rights are not a “lesser class” of water rights.  Minimum flow rights are “equivalent to other existing water rights that cannot be impaired by a subsequent appropriation.”  They are not subject to reallocation simply because Ecology “decides that reservations for other beneficial uses would make better use of the state’s water.”  Rather, under the existing statutory scheme, “subsequent rights cannot impair existing flow right[s], and permits to appropriate water from streams with minimum flows set by rule must be conditioned to protect the minimum flows.”  Policy determinations regarding reallocating water from minimum flows to other beneficial uses are determinations for the legislature.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Perkins Coie | Attorney Advertising

Written by:

Perkins Coie

Perkins Coie on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.