Do fish have a water right?
Instream flow (the amount of water flowing past a point in the river at a given time) is a regulatory term people in the Coeur d’Alene-Spokane corridor may come to know quite well.
Actions currently being considered by Washington State could affect future water right decisions in the Spokane-Rathdrum aquifer in both Idaho and Washington for years to come. Some may argue this could impede business development and growth, while others may argue such actions place a much needed cultural value to the community’s “Near Nature, Near Perfect” signature.
Agency representatives are presenting their recommendations on Wednesday, September 19th, 1:00 pm to 3:00 pm at the Spokane County’s Water Resources Center, N. 1004 Freya, Spokane, WA.
What’s Being Recommended
In May, Washington State recommended minimum instream flows for the Spokane River. Potentially the most contentious recommendation is a minimum flow of 850 cubic feet per second (cfs) from June 16th to September 30th. The flow is measured at the Spokane River gage, which is just downstream of downtown.
The purpose of setting this flow target is to preserve the values, resources and ecological functions of the river. The trigger is that any number of human actions, from operating dams to supply of our drinking and irrigation water, affects river flows. Setting an in-stream flow assures future decisions on such human actions do not reach a point that aquatic habitat, fish and wildlife species, water quality and other ecological functions cannot be sustained.
Although all ecological functions are considered, fish are often the face of the debate regarding how much flow is enough. Beyond fish having a strong public constituency, natural resource managers also have the most scientific information available to determine their ecological needs. For the Spokane River, instream flow recommendations developed by the Washington Department of Fish and Wildlife (WDFW) in cooperation with Washington Department of Ecology (Ecology) emphasized meeting the needs of rainbow trout and mountain whitefish.
Studies published in 2003, 2004, 2007 and 2011 are the scientific basis of the recommendation. These studies were extensively reviewed with stakeholders and citizens that participated both in the state’s watershed planning process for the Spokane River (coordinated by Spokane County)and the Avista relicensing process, (which was completed in 2009). The hope was that the watershed planning group could reach consensus on an instream flow recommendation. As members could not reach consensus (see attached memo), the state has moved forward with a recommendation. Click here for state caucus agency instream flow recommendation. Click here for instream flow assessment provided by Washington Department of Fish and Wildlife (WDFW). Click here for WDFW presentation being given at Wednesday meeting.
Possible Futures
To make this recommendation binding, the Washington Department of Ecology may pursue a “rule-making”. When complete, rule-making becomes part of the Washington Administrative Code. Its purpose is to provide clarity and a fair playing field when implementing state law.
In Spokane County, new water rights have not been issued since the early 1990’s. As the instream flow is a water right for the river, it will need to be considered in future actions (or actions junior to the instream flow rule). It will have no legal binding force on actions or rights issued prior to the adoption of the flow.
Setting of an instream flow by rule could also create bi-state issues. If water withdrawals in Idaho are contributing to not meeting instream flow requirements, legal remedies to slow or reduce such withdrawals could be sought by downstream entities who believe they are harmed. Over the past ten years, a number of efforts and studies have been formed to find ways to collaboratively work together to avoid such a conflict. The possibility, however, cannot be discounted.