On March 8, 2017, the Washington Supreme Court refused to accept review of a decision by the Court of Appeals affirming reliance on an exception to minimum instream flows. In Center for Environmental Law and Policy, et al. v. Washington Department of Ecology, et al. the Court of Appeals affirmed the water right issued to the Okanogan County Public Utility District for the Enloe Dam project. The Court of Appeals’ opinion will provide significant support to water right applicants relying on explicit exceptions set forth in instream flow rules. [Center for Environmental Law and Policy, et al. v. Washington Department of Ecology, et al., 196 Wn.App. 360, 383 P.3d 608 (2016).]

The Court of Appeals pointed out that Ecology did not approve the Enloe Dam water right under the “overriding considerations of the public interest” exception. Instead, the court explained that Ecology did not need to invoke the “OCPI” exception because it was applying the regulatory exception in the Similkameen rule, which was adopted under Ecology’s rulemaking authority: “Therefore, whether Ecology can decrease the minimum instream flow via a regulatory exception has been resolved.”

The Supreme Court’s decision not to disturb the Court of Appeals’ analysis will provide much-needed clarity to water right permitting after Foster, a decision, which some litigants read broadly to exalt numeric minimum instream flows above the context in which they were established. Under the Court of Appeals’ decision, specific exceptions set forth in the same regulation as a minimum instream flow cannot simply be ignored.

(Sarah Mack)