a critique of the state's instream resource protection program

WORKING DRAFT

A CRITIQUE OF THE WASHINGTON STATE'S
INSTREAM RESOURCE PROTECTION
LAWS AND REGULATIONS

By

John J. Hollowed
Center for Natural Resource Policy

Habitat_Director@msn.com

Larry Wasserman
Center for Natural Resource Policy
lwass@sos.net


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The views and opinions expressed herein are those of the authors only and
do are not necessarily represent those of their employers, Boards of
Directors, or committees thereof. The authors make neither express or
implied warranties in regard to the use of the materials herein. Each
attorney must depend upon his or her own knowledge of the law and expertise
in the use or modification of this report.

WWW.CNRP.ORG


Draft: June 26, 2001







ACKNOWLEDGEMENTS

The Center for Natural Resource Policy (CNRP) would like to thank the
Bullitt Foundation, Northwest Indian Fisheries Commission, and its member
tribes for their financial and in-kind matching support to this project.
We would also like to thank Ms. Rachael Paschal for her input and
constructive recommendations. In addition, we appreciate the kind
assistance of Dr. Hal Beecher (WDFW), Brad Caldwell, Barb Tovrea, and Doug
Rushton (WDOE). We sincerely appreciate the support of those who have
contributed to this report.


Table of Contents



EXECUTIVE SUMMARY 8
II. PURPOSE 10
III. BACKGROUND 13
A. Status of the Stocks 13
B. Impacts to the Salmon Resource - Water Withdrawals and Instream
Flows 14
C. Importance of instream flows. 15
D. Instream flows are an essential component to anadromous fish habitat.
17
E. Relationship between instream flows and fish production. 18
F. Water Quality 21
G. Limiting Factors Analysis Reports 22
H. Basin Assessment Reports 26
I. Summary 30
IV. STATE INSTREAM FLOW RELATED POLICIES 36
A. Chelan Process 36
B. The policy position of the Fish and Wildlife Commission: Wild Salmonid
Policy 39
C. The policy position of the Governor 41
1. Extinction is Not An Option: A Statewide Strategy to Recovery
Salmon 41
2. State Agency's Action Plan 41
3. Salmon Recovery Scorecard 42
The instream flow goal for the Governor's Salmon Plan is to: 44
"retain or provide adequate amounts of water to protect and restore
fish habitat." 44
To accomplish this goal, the State intends to: 44
v. State statutory lawS ARE INTENDED TO provide for protection of
instream flows 48
A. Appropriation of water under Washington State law. 48
B. The Washington Water Code recognizes instream uses. 49
C. The appropriation procedure provides opportunities to protect instream
flows. 51
D. Chapter 90.03 provides legislative authority for Ecology to protect
instream flows. 53
1. Streams and lake shall have instream flows or levels protected.
54
2. Minimum flows set by rule constitute existing water rights that
must be protected. 54
3. Department of Ecology has exclusive authority to set flows. 56
4. Ecology can prohibit further appropriations if water is not
available, would impair existing rights, or would be detrimental to the
public welfare. 57
E. Ecology can establish instream flow rules under the Minimum Water
Flows and Levels Act of 1967. 61
F. Ecology can establish instream flow rules under the Water Resources
Act of 1971. 63
G. Ecology has authority to condition water right permits to protect
instream flows. 65
H. Ecology can protect instream flows based on recommendations provided
by the Washington Department of Fish and Wildlife commenting authority. 65
I. In making ground water allocation decisions, Ecology must consider the
effect the proposed ground water withdrawal will have on streams closed by
rule or on minimum flow water rights for fish. 68
J. Ecology can close streams to protect fish. 71
K. Ecology Has The Authority To Address Cumulative Impacts for the
protection of instream flows. 73
L. Ecology has enforcement powers to protect instream flows. 74
M. Trust Water Rights 76
N. Ecology can establish instream flows per the recommendations of
watershed planning groups. 78
VI. OTHER LAWS THE STATE COULD UTILIZES TO HELP PROTECT INSTREAM FLOWS
FOR FISH AND WILDLIFE 81
A. Public Trust Doctrine Water Rights 81
1. Background 81
2. Sources of the Public Trust Doctrine 84
3. Washington State Constitution 87
4. Washington State Case Law 89
5. Instream Flows 103
B. Federal Reclamation Act 105
C. Federal Power Act. 106
1. Protection of instream flows is available under the Federal
Power Act. 107
2. Minimum streamflow requirements imposed under state law do not
bind the Commission. 107
3. Instream flows may also be recommended under the § 10
consultation processes. 107
4. The Commission should not compromise fisheries flows. 110
D. Protection of Instream Flows is Available under the Clean Water Act.
111
E. A state or a tribe-as-a-state may require instream flows to meet
applicable water quality standards under the Clean Water Act. 115
F. Endangered Species Act 116
1. ESA and Water Rights 131
2. Governmental agencies are also prohibited from "taking" a listed
species. 134
3. Governmental liability under the ESA. 135
4. Governmental agencies may cause "take" of a listed species
through it regulation or permitting,authority, or failing to regulate.
137
I. Instream Flows Reserved by the Federal Government or through Treaty on
behalf of Indian Tribes. 141
1. Federal and Indian Reserved Water Rights 143
a. Federal reserved instream water rights. 143
b. Indian instream water rights based on treaty. 151
2. The state of Washington has a duty not to allow for the
impairment, degradation, or destruction of instream flows that are
necessary to sustain the treaty-reserved fishing rights of the tribes.
156
VII. Instream Flow Regulations 164
A. Process for Setting Flow Levels 164
B. A Technical Review of Department of Ecology Flow Setting Methodologies
169
1. Base Flow Methodology 170
2. TOE Width Methodology 172
3. Instream Flow Incremental Methodology (IFIM) 173
VIII. CRITIQUE OF THE STATE'S PROTECTION OF INSTREAM RESOURCES 178
A. Legislative 178
1. There is general lack of political will of the legislature to
resolve instream resource protection issues. 178
2. The legislative definition of "priority date" for instream flows
conflicts with the State's public trust responsibilities, Clean Water
Act and Endangered Species Act requirements, federal water rights, and
Tribal treaty-reserved rights. 180
a. Public Trust Responsibilities 181
b. Endangered Species Act Obligations 184
c. Clean Water Act Obligations 185
d. Federal and Tribal Treaty Rights 187
e. Summary 191
3. The legislature refuses to provide the Department with adequate
authorities to protect instream resources. 191
4. The legislature has not provided biologically based standards to
define appropriate instream flows. 193
5. The authority provided to the Washington Department of Fish and
Wildlife is woefully inadequate to ensure protection of instream
resources. 194
6. The 5,000 gallon exemption authorized by the legislature allows
for unmitigated impacts to instream resources. 197
7. Civil penalties under the State's water resource laws do not
deter non-compliance. 199
B. Regulatory 200
1. General Comments 200
a. The Department of Ecology arbitrarily and capriciously fails to
implement state law in establishing instream flow regulations.
200
b. The Department allows for exemptions to the instream flow rules
that cause unmitigated impacts to instream resources. 206
c. The Department has not provided biologically based standards to
define appropriate instream flows. 208
d. Most instream flow regulations fail to utilize the best
available science and are established for political or out-of-stream
interests. 209
e. Steam closures do not result in flow setting. 211
f. The use of 50% exceedance values to determine instream flows
reduces the overall productivity of watersheds. 212
2. Critique of instream flow methods 213
a. Critique of base flow methodology 213
b. Critique of Toe width methodology 217
c. Critique of IFIM methodology 218
3. Specific basin comments 219
a. Nooksack River-WRIA 1 219
b. Snohomish- WRIA 7 223
c. Cedar-Sammamish-WRIA 8 228
d. Green-Duwamish- WRIA 9 233
e. Puyallup-WRIA 10 237
f. Nisqually-WRIA 11 240
g. Chambers-Clover-WRIA 12 246
h. Deschutes-WRIA 13 247
i. Kennedy-Goldsborough-WRIA 14 248
j. Kitsap-WRIA 15 250
k. Chehalis River-WRIA 22 and 23 251
l. Walla Walla-WRIA 32 253
m. Wenatchee-WRIA 45 257
n. Methow-WRIA 48 265
o. Okanogan-WRIA 49 268
p. Little Spokane River-WRIA 55