working draft - center for natural resource policy · 2013-08-20 · 1 2 working draft 3 4 a...

1 WORKING DRAFT 2

3

A CRITIQUE OF THE WASHINGTON STATE’S 4 INSTREAM RESOURCE PROTECTION 5

LAWS AND REGULATIONS 6 7

By 8 9

John J. Hollowed 10 Center for Natural Resource Policy 11

12 [email protected] 13

14 Larry Wasserman 15

Center for Natural Resource Policy 16 [email protected] 17

18 19 20 21 22 23 24 25 26 27

The views and opinions expressed herein are those of the authors only and do are not necessarily 28 represent those of their employers, Boards of Directors, or committees thereof. The authors make neither 29 express or implied warranties in regard to the use of the materials herein. Each attorney must depend 30 upon his or her own knowledge of the law and expertise in the use or modification of this report. 31

32 WWW.CNRP.ORG 33

34 35

Draft: June 26, 2001 36

mailto:[email protected]

mailto:[email protected]

http://www.cnrp.org/

A CRITIQUE OF THE WASHINGTON STATE’S AUTHORITIES TO PROTECT INSTREAM FLOWS

2

1 2 3 4

ACKNOWLEDGEMENTS 5 6

The Center for Natural Resource Policy (CNRP) would like to thank the Bullitt 7 Foundation, Northwest Indian Fisheries Commission, and its member tribes for their 8 financial and inkind matching support to this project. We would also like to thank Ms. 9 Rachael Paschal for her input and constructive recommendations. In addition, we 10 appreciate the kind assistance of Dr. Hal Beecher (WDFW), Brad Caldwell, Barb 11 Tovrea, and Doug Rushton (WDOE). We sincerely appreciate the support of those who 12 have contributed to this report. 13

14


3

Table of Contents 1

2 3

EXECUTIVE SUMMARY.................................................................................................8 4 II. PURPOSE.............................................................................................................. 10 5 III. BACKGROUND...................................................................................................... 13 6 A. Status of the Stocks............................................................................................13 7 B. Impacts to the Salmon Resource – Water Withdrawals and Instream Flows ..14 8 C. Importance of instream flows. .........................................................................15 9 D. Instream flows are an essential component to anadromous fish habitat. ........ 17 10 E. Relationship between instream flows and fish production...................................18 11 F. Water Quality ...................................................................................................... 21 12 G. Limiting Factors Analysis Reports ................................................................... 22 13 H. Basin Assessment Reports .............................................................................26 14 I. Summary ............................................................................................................30 15

IV. STATE INSTREAM FLOW RELATED POLICIES .................................................. 36 16 A. Chelan Process .................................................................................................. 36 17 B. The policy position of the Fish and Wildlife Commission: Wild Salmonid Policy .39 18 C. The policy position of the Governor.................................................................41 19 1. Extinction is Not An Option: A Statewide Strategy to Recovery Salmon .........41 20 2. State Agency’s Action Plan .............................................................................41 21 3. Salmon Recovery Scorecard...........................................................................42 22 The instream flow goal for the Governor’s Salmon Plan is to: ............................44 23 “retain or provide adequate amounts of water to protect and restore fish habitat.” 24 ............................................................................................................................44 25 To accomplish this goal, the State intends to:.....................................................44 26

V. STATE STATUTORY LAWS ARE INTENDED TO PROVIDE FOR PROTECTION 27 OF INSTREAM FLOWS ................................................................................................48 28 A. Appropriation of water under Washington State law. .......................................... 48 29 B. The Washington Water Code recognizes instream uses. ................................... 49 30 C. The appropriation procedure provides opportunities to protect instream flows.51 31 D. Chapter 90.03 provides legislative authority for Ecology to protect instream 32 flows. 53 33 1. Streams and lake shall have instream flows or levels protected. ....................54 34 2. Minimum flows set by rule constitute existing water rights that must be 35 protected. ...............................................................................................................54 36 3. Department of Ecology has exclusive authority to set flows............................56 37 4. Ecology can prohibit further appropriations if water is not available, would 38 impair existing rights, or would be detrimental to the public welfare.......................57 39

E. Ecology can establish instream flow rules under the Minimum Water Flows and 40 Levels Act of 1967. ....................................................................................................61 41


4

F. Ecology can establish instream flow rules under the Water Resources Act of 1 1971. 63 2 G. Ecology has authority to condition water right permits to protect instream flows.65 3 H. Ecology can protect instream flows based on recommendations provided by 4 the Washington Department of Fish and Wildlife commenting authority. ...................65 5 I. In making ground water allocation decisions, Ecology must consider the effect 6 the proposed ground water withdrawal will have on streams closed by rule or on 7 minimum flow water rights for fish..............................................................................68 8 J. Ecology can close streams to protect fish........................................................... 71 9 K. Ecology Has The Authority To Address Cumulative Impacts for the protection of 10 instream flows. ........................................................................................................... 73 11 L. Ecology has enforcement powers to protect instream flows. ..............................74 12 M. Trust Water Rights .......................................................................................... 76 13 N. Ecology can establish instream flows per the recommendations of watershed 14 planning groups. ........................................................................................................78 15

VI. OTHER LAWS THE STATE COULD UTILIZES TO HELP PROTECT INSTREAM 16 FLOWS FOR FISH AND WILDLIFE .............................................................................. 81 17 A. Public Trust Doctrine Water Rights.....................................................................81 18 1. Background .....................................................................................................81 19 2. Sources of the Public Trust Doctrine...............................................................84 20 3. Washington State Constitution ........................................................................87 21 4. Washington State Case Law...........................................................................89 22 5. Instream Flows..............................................................................................103 23

B. Federal Reclamation Act................................................................................... 105 24 C. Federal Power Act......................................................................................... 106 25 1. Protection of instream flows is available under the Federal Power Act. ........107 26 2. Minimum streamflow requirements imposed under state law do not bind the 27 Commission..........................................................................................................107 28 3. Instream flows may also be recommended under the § 10 consultation 29 processes. ............................................................................................................107 30 4. The Commission should not compromise fisheries flows. .............................110 31

D. Protection of Instream Flows is Available under the Clean Water Act........... 111 32 E. A state or a tribeasastate may require instream flows to meet applicable water 33 quality standards under the Clean Water Act........................................................... 115 34 F. Endangered Species Act .................................................................................. 116 35 1. ESA and Water Rights ..................................................................................131 36 2. Governmental agencies are also prohibited from “taking” a listed species....134 37 3. Governmental liability under the ESA............................................................135 38 4. Governmental agencies may cause “take” of a listed species through it 39 regulation or permitting,authority, or failing to regulate.........................................137 40

I. Instream Flows Reserved by the Federal Government or through Treaty on 41 behalf of Indian Tribes. ............................................................................................ 141 42 1. Federal and Indian Reserved Water Rights .................................................143 43


5

a. Federal reserved instream water rights. ....................................................143 1 b. Indian instream water rights based on treaty. ............................................151 2

2. The state of Washington has a duty not to allow for the impairment, 3 degradation, or destruction of instream flows that are necessary to sustain the 4 treatyreserved fishing rights of the tribes.............................................................156 5

VII. INSTREAM FLOW REGULATIONS..................................................................... 164 6 A. Process for Setting Flow Levels........................................................................ 164 7 B. A Technical Review of Department of Ecology Flow Setting Methodologies .... 169 8 1. Base Flow Methodology................................................................................170 9 2. TOE Width Methodology ...............................................................................172 10 3. Instream Flow Incremental Methodology (IFIM) ............................................173 11

VIII. CRITIQUE OF THE STATE’S PROTECTION OF INSTREAM RESOURCES ..... 178 12 A. Legislative......................................................................................................... 178 13 1. There is general lack of political will of the legislature to resolve instream 14 resource protection issues....................................................................................178 15 2. The legislative definition of “priority date” for instream flows conflicts with the 16 State’s public trust responsibilities, Clean Water Act and Endangered Species Act 17 requirements, federal water rights, and Tribal treatyreserved rights. ..................180 18 a. Public Trust Responsibilities......................................................................181 19 b. Endangered Species Act Obligations ........................................................184 20 c. Clean Water Act Obligations......................................................................185 21 d. Federal and Tribal Treaty Rights ...............................................................187 22 e. Summary ...................................................................................................191 23

3. The legislature refuses to provide the Department with adequate authorities to 24 protect instream resources. ..................................................................................191 25 4. The legislature has not provided biologically based standards to define 26 appropriate instream flows. ..................................................................................193 27 5. The authority provided to the Washington Department of Fish and Wildlife is 28 woefully inadequate to ensure protection of instream resources..........................194 29 6. The 5,000 gallon exemption authorized by the legislature allows for 30 unmitigated impacts to instream resources. .........................................................197 31 7. Civil penalties under the State’s water resource laws do not deter non 32 compliance. ..........................................................................................................199 33

B. Regulatory ........................................................................................................ 200 34 1. General Comments .......................................................................................200 35 a. The Department of Ecology arbitrarily and capriciously fails to implement 36 state law in establishing instream flow regulations............................................200 37 b. The Department allows for exemptions to the instream flow rules that cause 38 unmitigated impacts to instream resources.......................................................206 39 c. The Department has not provided biologically based standards to define 40 appropriate instream flows................................................................................208 41 d. Most instream flow regulations fail to utilize the best available science and 42 are established for political or outofstream interests.......................................209 43


6

e. Steam closures do not result in flow setting...............................................211 1 f. The use of 50% exceedance values to determine instream flows reduces the 2 overall productivity of watersheds.....................................................................212 3

2. Critique of instream flow methods .................................................................213 4 a. Critique of base flow methodology.............................................................213 5 b. Critique of Toe width methodology ............................................................217 6 c. Critique of IFIM methodology.....................................................................218 7

3. Specific basin comments...............................................................................220 8 a. Nooksack RiverWRIA 1 ............................................................................220 9 b. Snohomish WRIA 7...............................................................................224 10 c. CedarSammamishWRIA 8...................................................................228 11 d. GreenDuwamish WRIA 9 ........................................................................234 12 e. PuyallupWRIA 10 .....................................................................................237 13 f. NisquallyWRIA 11.....................................................................................240 14 g. ChambersCloverWRIA 12 .......................................................................247 15 h. DeschutesWRIA 13...............................................................................247 16 i. KennedyGoldsboroughWRIA 14 .............................................................248 17 j. KitsapWRIA 15 .........................................................................................250 18 k. Chehalis RiverWRIA 22 and 23................................................................251 19 l. Walla WallaWRIA 32 ................................................................................253 20 m. WenatcheeWRIA 45 .............................................................................257 21 n. MethowWRIA 48.......................................................................................267 22 o. OkanoganWRIA 49...................................................................................270 23 p. Little Spokane RiverWRIA 55 ...................................................................272 24 q. Colville RiverWRIA 59 ..............................................................................274 25

1. The legislature and the department have not adequately funded enforcement 26 of the instream resource protection program........................................................277 27 2. The department does not utilize its existing enforcement powers to protect and 28 restore instream flows. .........................................................................................277 29 3. There is virtually no enforcement of current instream flow regulations..........279 30

IX. CONCLUSION ..................................................................................................... 285 31 A. Statutory ........................................................................................................... 285 32 B. Instream flow regulations.................................................................................. 287 33

C. ...................................................................................................................................Strategy 34 291 35

APPENDIX A ............................................................................................................... 292 36 SALMON HABITAT REQUIREMENTS AND HUMAN EFFECTS................................ 292 37 Adults .......................................................................................................................... 292 38 APPENDIX B ............................................................................................................... 309 39 SUMMARY OF LIMITING FACTORS REPORTS ....................................................... 309 40 Salmon Streamflow Study ........................................................................................... 309 41 Low Flows.................................................................................................................... 309 42 WILLAPA BASIN ......................................................................................................... 319 43


7

WRIA: WRIA Name ..................................................................................................... 324 1 Report Status............................................................................................................... 324 2 Appendix C: ................................................................................................................. 326 3 Surface Water Source Limitation List .......................................................................... 326 4 APPENDIX D:.............................................................................................................. 381 5 PARTIAL LIST OF IFIM STUDIES CONDUCTED IN WASHINGTON STATE............ 381 6


8

1 2

EXECUTIVE SUMMARY 3 4

The Water Code of 1917, 1 Minimum Water Flows and Levels Act of 1967, 2 Water 5

Resources Act of 1971, 3 and Watershed Planning Act of 1998 4 are Washington State's 6

primary statutory authorities directed at protecting instream flows for our public fisheries 7

resources and their dependent habitats. This report provides a critical analysis of the 8

Washington State law as it related to protection of our instream resources. 9

10

After briefly describing the purposes of this project in Chapter II, we then provide in 11

Chapter III a general review of the status of our salmon and steelhead stocks and 12

impacts to these fisheries resources resulting from water withdrawals. We list those 13

stocks that are listed under the ESA and describe those activities that may be a cause 14

for their demise. We then discuss the importance of instream flows and their 15

relationship to fish habitat and production. 16

17

In Chapter IV, we review recent state policies relating to instream flow protection and 18

regulation. This review includes the Chelan Process, Washington Department of Fish 19

and Wildlife’s Wild Salmon Policy, and the Governor’s Extinction is Not an Option 20

strategy. 21

22

In Chapter V, we begin the review of the various State statutory laws intended to protect 23

instream flows and resources. This review includes the abovementioned statutes but 24

1 RCW 90.03.

2 RCW 90.22.

3 RCW 90.54.

4 RCW 90.82.


9

also discusses the Department of Ecology’s enforcement and other regulatory powers. 1

We also review the role the Washington Department of Fish and Wildlife plays in the 2

protection of our public resources. 3

4

In Chapter VI, we provide an overview of other state and federal laws related to 5

instream flow protection. These laws include the Public Trust Doctrine, Federal 6

Reclamation Act, Federal Power Act, Endangered Species Act, Clean Water Act, 7

federal water rights, and treatyreserved rights to fish and water. In Chapter VII, we 8

review the various state regulations established to protect instream flows and 9

resources. 10

11

Chapter VIII begins the critique of the various statutory and regulatory laws the state 12

utilizes to protect instream resources. We review the deficiencies of these laws and the 13

conflicts they create in relation to a variety of federal laws and the State’s constitution. 14

15

Chapter IX concludes this report by providing various policy, technical, legal, and 16

legislative recommendations. 17

18

19

END OF CHAPTER 20

21


10

II. PURPOSE 1 2

There are a variety of state laws that provide varying degrees of protection for 3

fish habitat. These laws include: 4

5

• Water Code (WC) 6 • Minimum Water Flows and Levels Act (MWFLA) 7 • Water Resources Act (WRA) 8 • Hydraulic Code (HC) 9 • Forest Practices Act (FPA) 10 • Growth Management Act (GMA) 11 • Shoreline Management Act (SMA) 12 • State Environmental Policy Act (SEPA) 13 • Water Quality Laws 14

15

Our intent is to review and critique each of these state laws and programs as 16

they relate to protecting our fisheries resources. For purposes of this report, we 17

will focus on those laws that primarily address instream resource protection, ie. 18

instream flows. We will evaluate the efficacy of these state laws and 19

regulations, identify gaps in the current statutory and administrative system, and 20

offer recommendations to rectify their shortcomings. More specifically, this report 21

will provide: 22

23 • A legal analysis of Washington State laws and regulations regarding the 24

establishment of instream flows pursuant to the 1967 Minimum Water 25 Flows and Levels Act and Water Resources Act of 1971; 26

27 • A compilation of those Water Resource Inventory Areas (WRIA’s) with 28

associated instream flow rules; 29 30

• A historical review of how those flows were established; 31 32

• A technical review of the adequacy of those rules, based on current 33 knowledge of instream flow setting techniques; 34

35


11

• An analysis of the implications of continued utilization of inadequate 1 instream flows in light of current requirements of the Endangered Species 2 Act; 3

4 • An analysis of federal and common law policies that are intended to 5

ensure accountability from our state and local governments to maintain 6 adequate instream flows for fish migration, spawning, and rearing; and 7

8 • Policy, legal, and legislative recommendations. 9

10

The term “instream flow,” at its simplest, describes the basic concept of water 11

flowing within a stream channel. In recent years, however, the term has 12

blossomed to encompass the environmental goal of retaining water in streams 13

and rivers in quantities large and varied enough to protect aquatic ecosystems. 5 14

Indeed, ecologists have adopted alternative terms, such as “natural flow” and 15

“river basin characterization,” to more completely describe the dynamic aspects 16

of instream flow regimes including the magnitude, frequency, duration, timing, 17

and rate of water discharge within the stream channel. 6 18

19

However denominated, the importance of water flow in rivers cannot be 20

understated. Healthy fish populations depend upon adequate stream flow, as 21

suggested by federal listings of 14 salmonid populations in Washington under the 22

Endangered Species Act (ESA). 7 Habitat loss caused by flow depletion is a 23

major factor for listing; the definition of harm to species includes “removing water 24

or otherwise altering streamflow when it is likely to impair spawning, migration or 25

other essential functions”. 8 This definition is dramatically illustrated by recent 26

5 Gillilan, D.M. and T.C. Brown, 1997. Instream Flow Protection, Seeking a Balance in Western Water Use. Island Press. Covelo. 417 pp.

6 Poff, 1997; Ecology, 1999

7 NMFS, 1999

8 NMFS, 1998


12

enforcement actions denying Methow Valley, Washington irrigators access to 1

water rights, based on harm to endangered fish caused by low stream flow. 9 2

3

Flow depletion also causes widespread water quality impairment in state rivers. 4

Washington’s Clean Water Act inventory of degraded water bodies includes 48 5

stream segments explicitly identified as lacking adequate flows. Hundreds of 6

additional streams sustain temperature and dissolved oxygen impairment, 7

pollution factors frequently associated with low flow regimes. 10 Healthy salmon 8

fisheries are at risk when these water quality parameters are violated. 11 9

10

Washington’s endangered species and water quality problems illustrate the 11

inadequacy of state instream protection laws. This paper reviews current state 12

laws, regulations, and programs developed to protect instream flows and offers 13

reasons why the state has failed to achieve the essential goal of preventing harm 14

to our salmon resources and environmental degradation. 15

16

END OF CHAPTER 17

18

19

9 Torvik, 1999

10 Ecology, 1998a

11 Karr, 1995


13

III. BACKGROUND 1 2

Wild salmon and trout are recognized as indicator species of healthy streams, 3

rivers, and ultimately entire ecosystems. Vigorous populations of salmonids are 4

an important component to our aquatic and terrestrial environments in the Pacific 5

Northwest. Salmon migrate between fresh water and saltwater with some 6

species spending several years in fresh water systems as part of their life 7

histories. Salmon occupy a variety of essential habitats during their life history. 8

Resident fish species, which do not migrate to the sea, also utilize river systems 9

at different life stages. 10

11

Salmonids are not abstract considerations and provide significant economic 12

advantages to our society. In addition, fish of all species are an integral part of 13

Native American property rights, traditions, cultures, and are used for tribal 14

ceremonial, commercial, and subsistence purposes. 15

A. Status of the Stocks 16

Alarming declines in salmonids in Washington and surrounding states have 17

caused extreme concern among state and tribal fish managers, commercial and 18

sports fishing interests, and environmental groups. Recent surveys have 19

identified a number of salmonid stocks at risk due to habitat loss, over fishing, 20

loss of genetic fitness and diversity, and reduced marine productivity. A joint 21

tribalstate survey of the status of Washington salmon and steelhead stocks was 22

done in 1992 (Table 1). 12 Of the stocks where enough information was available 23

12 1992 Washington State Salmon and Steelhead Stock Inventory (SASSI), WDFW and Western Washington Treaty Indian Tribes, March 1993. In addition, the National Marine Fisheries Service (NMFS) has conducted a number of reviews of stock status: NOAA Technical Memorandum NMFSNWFSC24, Status Review of Coho Salmon from Washington, Idaho, Oregon, and California, September 1995; NOAA Technical Memorandum NMFSNWFSC25, Status Review of Pink Salmon from Washington, Oregon, and California, February 1996; NOAA


14

to determine status, 42% were identified as either depressed or critical (Table 2). 1

A recent survey of Dolly Varden and bull trout stocks found that only 17% of the 2

stocks were at no immediate risk of extinction. In other studies, 26 salmon or 3

steelhead stocks from Puget Sound and the Washington Coast are at risk of 4

extinction, 8 at moderate risk, and 7 of special concern. 13 5

6

The decline in stock status has lead to the loss of fishing opportunities. In recent 7

years, the ocean coast of Washington has twice been closed to salmon fishing, 8

and fishing has been severely limited in the Columbia River, Strait of Juan de 9

Fuca, Puget Sound, and a number of inside areas. Tribal fishermen, with treaty 10

reserved rights protected under our Constitution, are now catching approximately 11

the same number of fish today than they did prior to the Boldt decision in 1974. 12

NonIndian commercial fishermen are doing no better. In addition, many local 13

and tribal communities have lost their identities and livelihoods due to a loss of 14

their fisheries resource. This has resulted in the loss of social, cultural, religious, 15

biodiversity, and ecological benefits that are important to Washington’s quality of 16

life. 14 17

B. Impacts to the Salmon Resource – Water Withdrawals and 18 Instream Flows 19

Technical Memorandum NMFSNWFSC27, Status Review of Steelhead Salmon from Washington, Oregon, and California, August 1996; NOAA Technical Memorandum NMFSNWFSC32, Status Review of Chum Salmon from Washington, Oregon, and California, December 1997; NOAA Technical Memorandum NMFSNWFSC33, Status Review of Sockeye Salmon from Washington and Oregon, December 1997; NOAA Technical Memorandum NMFSNWFSC35, Status Review of Chinook Salmon from Washington, Idaho, Oregon, and California, February 1998.

13 Nehlson et al. 1991. Pacific Salmon at the crossroads: Stocks at risk from California, Oregon, Idaho, and Washington. Fisheries 16(2):421.

14 Personal communication, Terry Williams, Natural Resource Director, Tulalip Tribes.


15

The influence of man on the marine environment is substantial. We continue to 1

lose approximately 30,000 acres of fish habitat every year to other uses as our 2

population continues to increase in our State. Water withdrawals are but one of 3

the many factors impacting salmonids. Other factors affecting the salmon 4

resource and its habitat include, but are not limited to: 5

6 • Agricultural practices 7 • Bank stabilization 8 • Dam construction/operation 9 • Dredging and dredged spoil disposal 10 • Estuarine alteration 11 • Forest practices 12 • Gravel mining 13 • Grazing 14 • Improperly maintained passage devices (e.g., culverts) 15 • Irrigation water withdrawal, storage, and management 16 • Mineral mining 17 • Point Source Pollution 18 • Road building and maintenance 19 • Sand and gravel mining 20 • Urban or other land use development 21 • Wastewater/pollutant discharge 22 • Water/Instream Flows 23 • Wetland and floodplain alteration 24 • Woody debris/structure removal from rivers and estuaries. 15 25

C. Importance of instream flows. 26

15 See: Spence, B.C., et al., An Ecosystem Approach to Salmonid Conservation, hereinafter “Spence, B.C., et al. 1996”); Washington Department of Fish and Wildlife (WDFW), 1997, Final Environmental Impact Statement for the Wild Salmonid Policy approved by the State Fish and Wildlife Commission, Washington Fish and Wildlife Commission (WFWC), 1997; Policy of Washington Department of Fish and Wildlife and western Washington Treaty Tribes Concerning Wild Salmonids, December 5, 1997, hereinafter “WSP”; Description and Identification of Essential Fish Habitat, Adverse Impacts and Recommended Conservation Measures, Appendix A, Amendment 14 to the Pacific Coast Salmon Plan, PFMC, October 19, 1998.


16

In one of the more comprehensive reviews of scientific literature related to the 1

salmon resource, Spence et al. stated: 2

3 However denominated, the importance of water flow in rivers 4 cannot be understated. Healthy fish populations depend upon 5 adequate stream flow, as suggested by federal listings of 14 6 salmonid populations in Washington under the Endangered 7 Species Act (ESA). 16 8

The flow in streams and rivers represents the integration of the climate, 9

topography, geology, geomorphology, and vegetative characteristics of a 10

watershed. 17 Flow regimes in streams and rivers determine the amount of water 11

available to salmonids and other aquatic organisms, the types of micro and 12

macrohabitats that are available to salmonids and the seasonal patterns of 13

disturbance to aquatic communities. The specific flow requirements of salmonids 14

vary with species, life history stage, and time of year. Local salmonid populations 15

have evolved behavioral and physical characteristics that allow them to survive 16

the flow regimes encountered during each phase of their development. 17

Protection of salmonid habitats requires streamflows to fluctuate within the 18

natural range of flows for the given location and season. 18 19

Impacts to the salmon resource from water withdrawals vary. As summarized by 20

Spence et al: 21

16 National Marine Fisheries Service, 1999. Progress of Species Status Reviews in NMFS Northwest & Southwest Regions. (Updated 4/1/99). 1 p

17 Brian Spence et al. provided one of the more comprehensive assessments to salmon biology and management in “An Ecosystem Approach to Salmonid Conservation” otherwise known as the “Mantech Report.” Summarized below are those sections that address issues relevant to instream flows for salmon.

18 Id. at XX.


17

The effects of water withdrawals includes altered seasonal and 1 dailly flow regimes, reduced water velocities, and reduced 2 discharge volume. Water diversions reduce available habitat area 3 and concentrate organisms, potentially increasing predation and 4 transmission of diseases. Water withdrawals also change the 5 thermal regimes of streams. . . .. Temperatures may increase in 6 shallow reservoirs and where return flows from irrigation have been 7 heated. . . . these changes in water temperatures affect 8 development and smoltification of salmonids as well as influence 9 the success of predators and competitors and the virulence of 10 disease organisms. Dissolved oxygen concentrations may be 11 reduced during both summer and winter from water withdrawals. 19 12

Summarized in Appendix A is a general description of instream flow 13

requirements for each life history stage of salmon. Also included is a summary of 14

human effects to the salmon resource by alteration of instream flows. 15

D. Instream flows are an essential component to anadromous fish 16 habitat. 17

The federal court in United States v. Washington recognized instream flows are 18

essential to all elements of anadromous fish habitat. The Joint Biological 19

Statement in United States v. Washington lists five elements of anadromous fish 20

habitat: 21

22

(1) access to and from the sea, (2) an adequate supply of good 23 quality water, (3) a sufficient amount of suitable gravel for spawning 24 and egg incubation, (4) an ample supply of food, and (5) sufficient 25 shelter. 20 26

27

19 Spence et al. at 8.

20 United States v. Washington (Phase II), 506 F. Supp. 187, 203 (W. D. Wash. 1980); vacated in part on procedural grounds, 759 F.2d 1353 (9th Cir. 1985), quoting U.S. Fish and Wildlife Service et al., Joint Statement Regarding the Biology, Status, Management, and Harvest of the Salmon and Steelhead Resources of the Puget Sound and Olympic Peninsular Drainage Areas of Western Washington (1973).


18

At first glance, instream flows seem to be just one component of the second 1

element, “an adequate supply of goodquality water.” But instream flows are 2

actually a key factor in all five elements. Each requires some level of streamflow, 3

in a range from “minimum” to “optimum” to function properly. 4

5

Some examples: “Access to and from the sea” is impeded if flows are too low to 6

move outmigrating juveniles downstream or attract and allow passage of 7

spawning adults. “An adequate supply of goodquality water” is an issue in 8

almost every stream in the United States v. Washington case area because 9

anadromous fish production is a function of stream discharge “preference curves” 10

allow low flow temperature. “A sufficient amount of suitable gravel for spawning 11

and egg incubation” depends on a balance between streamflows and sediment. 12

“An ample supply of food” on streamflows to transport organic material, maintain 13

benthic production, and a variety of other functions. And “sufficient shelter” 14

requires adequate depths to avoid predation and to provide access to critical 15

edge habitat. 16

17

Salmon stocks have adapted to the natural flow variations of their home streams. 18

While there are some stress and mortality attributable to extreme conditions such 19

as droughts and floods, natural flow regimes are thought to be near optimum for 20

the fish that have evolved in them. On the other hand, artificial manipulation of 21

streamflows is a recent occurrence, and the fish have not adapted. Even in the 22

high precipitation streams of western Washington, there is a correlation between 23

reduced streamflows and anadromous fish production. 24 25

E. Relationship between instream flows and fish production. 26

27

Dr. Hal Beecher (WDFW), a state’s expert on the effects of low flows on fish has 28


19

stated that: 1

“many studies related to fish production and instream flows show a 2 positive relationship between flow and fish, between flow and fish 3 habitat, and between flowdependent habitat and fish.” 21 4

5

Dr. Beecher, has noted that: 6 7

[S]mall streams are more sensitive than larger streams to flow 8 reduction. Flows in small streams are seldom above a level 9 needed to protect habitat. At almost any time, except during a 10 flood, diversion from a small stream will reduce fish habitat. 11

12 . . . 13

14

As stream flow decreases, water at any given point in a channel 15 gets shallower. It usually gets slower. The stream generally gets 16 narrower as stream flow decreases. The net effect of decreasing 17 stream flow is to decrease the volume of water in the stream 18 (shallower and narrower). Less volume is less living space for fish. 19 . . . 20

21 Flow reductions also affect fish through water quality. Water 22 temperature is influenced by flow. High temperatures (70F+) can 23 kill native salmonid fishes. In hot weather streams warm more 24 quickly at low flows, possibly exceeding suitable temperatures for 25 fish. The capacity for water to contain dissolved oxygen also 26 declines at higher temperatures. At the same time, fish require 27 more oxygen at high temperatures. As flow declines, oxygen is 28 less rapidly dissolved in water and may be depleted. . . . 29

30 31

Flow reduction can be detrimental to riparian vegetation. Riparian 32 vegetation serves a number of functions related to fish habitat, in 33 addition to its role as wildlife habitat. Riparian vegetation provides 34 shade that limits stream heating. If flows are reduced so that the 35

21 Hal Beecher, Ph.D., testifying in Jorgensen, et. al. v. PCHB. Dr. Hal Beecher is an instream flow fishery biologist employed by the Washington Department of Fish and Wildlife. Dr. Beecher has been with Fish and Wildlife or its predecessor agencies since 1979. Dr. Beecher is an expert in the field of fishery biology, habitat needs for fish, and the effects of low flows on fish.


20

water is pulled away from bank shading, water may heat more. If 1 flows are reduced so that riparian vegetation wilts and dies back, 2 there will be less shade. Riparian vegetation casts shadows which 3 allow fish to hide from avian predators. Riparian vegetation, 4 particularly larger trees, are future instream cover. The value of 5 such cover increases with size, but reduced flow can reduce 6 growth, thereby limiting future value as instream cover. Riparian 7 vegetation is also a substrate for terrestrial insects, which, by falling 8 into streams from the vegetation, provide a major source of food for 9 fish. 22 10

11 Dr. Beecher also stated: 12

Fish populations are limited by their habitat. They cannot live 13 without adequate habitat. Generally, fish or other animal 14 populations expand to fill their habitat. Conversely, populations 15 decline as habitat declines. 16

17 . . . 18

19 Habitat requirements vary through different stages of the life history 20 of fish, so certain life history stages and the corresponding habitats 21 may limit a population while another life history stage is apparently 22 less limited by habitat. The limiting habitat can change as the 23 environment is modified. For example, extensive water diversion 24 can result in formerly abundant habitat becoming limiting. . . . 25 Inadequate instream flows can be a major contributor to the decline 26 of a stock. . . . Any instream habitat restoration measures for stock 27 recovery require adequate flows. 23 28

29 Dr. Beecher also noted: 30

Small streams are more sensitive than larger streams to flow 31 reduction. Flows in small streams are seldom above a level 32 needed to protect habitat. At almost any time, except during a 33 flood, diversion from a small stream will reduce fish habitat. 24 34

35

22 Jorgensen, et. al. v. PCHBat 78.

23 Id.

24 Id. at 10.


21

Lastly, Dr. Beecher testified: 1

Wildlife are affected both directly and indirectly by flow. Birds and 2 animals on islands can be protected from predators by certain 3 flows. If flow is too low, predators may be able to get to vulnerable 4 colonies. If flows are too high, colonies could be inundated. Many 5 species of wildlife depend on fish for food. If fish are scarce 6 because of low flows the wildlife will suffer. 25 7

8

Specifically, Dr. Beecher has testified: 9 10

The more we learn about streams, flow, and fish, the more we find 11 that water is not surplus. Instream flow is important for each phase 12 of the freshwater life history of anadromous salmonids. 26 13

14 If water is taken out of a stream for “consumptive” uses it is not available for 15

instream resources. 27 Outofstream senior water rights to instream flow rules 16

substantially dewater some streams in Washington. 28 Low summer flows result 17

in fewer fish as depicted in data from Bingham Creek (See Figure 1). Flows can 18

be crucial determinant in the health of fish stocks. “Removing too much water 19

outofstream can result in insufficient water for instream resources, including 20

fish.” 29 21

F. Water Quality 22

23

25 Id. at 3.

26 Id. at 16.

27 Rushton, Clifford D., Instream Flows in Washington State; Past, Present, and Future, Draft, July 2000.

28 Id.

29 Id.


22

Almost 700 stream segments have recently been designated in Washington as 1

“water quality limited” under the Clean Water Act of 1977. 30 Washington’s 2

Clean Water Act inventory of degraded water bodies included 48 stream 3

segments explicitly identified as lacking adequate flows. Flow depletion causes 4

widespread water quality impairment in state rivers. In addition, hundreds of 5

other streams sustain temperature and dissolved oxygen impairment, pollution 6

factors frequently associated with low flow regimes. 31 Healthy salmon fisheries 7

are at risk when these water quality parameters are violated. 32 8 9

G. Limiting Factors Analysis Reports 10

For the past several years, the State of Washington has been undergoing a 11

project to identify and assess the “limiting factors” that limit the ability for salmon 12

to be fully sustainable. In 1998, the Washington State Legislature passed 13

Engrossed Substitute House Bill (ESHB) 2496 popularly called “An Act Relating 14

to Salmon Recovery.” This Act was codified in RCW 77.85 and directed the 15

Washington State Conservation Commission to form regional technical advisory 16

groups to complete a statewide salmon habitat limiting factors project. Under the 17

Salmon Recovery Act of 1998, limiting factors were defined to mean “conditions 18

that limit the ability of habitat to fully sustain populations of salmon. These factors 19

are primarily fish passage barriers and degraded estuarine areas, riparian 20

corridors, stream channels and wetlands.” 33 It was intended by the legislature 21

that completion of this project would provide a consistent approach for identifying 22

30 33 U.S.C. §§121 et seq.

31 Washington Department of Ecology, 1998a. Washington’s Candidate 1998 List of Impaired and Threatened Water Bodies – the 303(d) List.

32 Karr, J.R. 1995. Clean Water Is Not Enough. Illahee 11(1&2):5159. 33 RCW 77.85.010(5).


23

habitat functions that require protection and restoration to maintain and increase 1

naturally spawning and selfsustaining populations of salmonids. 2

3

For the purpose of these watershed reports, the Washington Conservation 4

Commission developed a general template to provide for a consistent and 5

comprehensive assessment of habitat limiting factors in watersheds across the 6

state, and to compare and contrast, where possible, habitat conditions between 7

watersheds. These reports were to identify the existing information pertaining to 8

the eight habitat factors listed in the template that potentially could limit salmon 9

production. These include: 1) access to spawning and rearing habitat (e.g. fish 10

blocking culverts); 2) floodplain connectivity; 3) riparian zones; 4) stream channel 11

conditions; 5) water quality; 6) hydrology; 7) lakes and other freshwater habitats; 12

8) nearshore and estuarine habitats; and 9) exotic and opportunistic species. As 13

stated in the limiting factors reports, “[t]he overall goal of the Conservation 14

Commission’s limiting factors project is to identify habitat factors limiting 15

production of salmonids in the state.” 16

17 As stated in the Limiting Factors report for WRIA 29: 18

19

the concept of habitat “limiting factors” has been defined differently 20 in various forums. A common definition of limiting (habitat) factors 21 links the concepts of carrying capacity, life stage, and available 22 habitat. As an example of this definition, In their Final Report: 23 Development and Evaluation of Techniques to Rehabilitate 24 Oregon’s Wild Salmonids, the Oregon Department of Fish and 25 Wildlife defines carrying capacity (in this case for coho) as “the 26 number of wild smolts produced, as determined by freshwater life 27 stage most restricted by the limiting habitat.” The “limiting habitat” is 28 then defined as “that habitat required to support a particular life 29 stage of a given species…but is in the shortest supply relative to 30 habitats required to support other life stages. In this context, the 31 limiting habitat can be considered a limiting factor.” When looking 32 at individual life stages then, the limiting factor for a stream would 33 be that condition which creates the “bottleneck” in the system. For 34


24

example, a system may suffer from two distinct problems: a level of 1 excessive fines in the spawning gravels and excessively high 2 temperatures during the late summer. In this case, the lack of cool 3 water refugia may be the factor limiting the number of smolts 4 leaving the system. A restoration project to clean spawning gravel 5 and correct the source of the sediment input may produce clean 6 spawning gravel and therefor more fry, but excessive temperatures 7 in the late summer will wipe out those gains. In this example, using 8 this definition, excessive temperature is the limiting factor. Once the 9 temperature problem is addressed, the condition of the spawning 10 beds may then become the limiting factor. This example is 11 obviously overly simplified, but serves to demonstrate the concept. 12 In reality, isolating a single, discrete condition as the primary focus 13 for limiting fish production may be difficult at best. Conditions often 14 interact and overlap. High temperatures may result from and 15 interact with a lack of deep pools, loss of floodplain connectivity, 16 and a number of other factors. Separating these conditions into 17 their component parts and assigning values to them is a difficult but 18 important task. Given our current realities of limited funding and 19 resources, it is particularly important that the scarce funds available 20 for restoration are targeted at the most limiting factors. 21

22 Engrossed Substitute House Bill 2496 (the legislation authorizing 23 this report), passed by the 1998 legislature, takes a broader 24 approach to defining limiting factors. The bill defines limiting factors 25 as “…conditions that limit the ability of habitat to fully sustain 26 populations of salmon. These factors are primarily fish passage 27 barriers and degraded estuarine areas, riparian corridors, stream 28 channels, and wetlands.” Under this definition, all habitat 29 conditions that limit salmon and steelhead are considered limiting 30 factors. In the previous example, both the excessive fines and the 31 excessive temperatures would be limiting factors. Based on the 32 legislation’s definition, for the purpose of this report, a limiting factor 33 is any condition of decreased habitat health that has a direct, 34 adverse impact on anadromous fish during one or more life stages. 35

36 The conditions that we call limiting factors are often caused by 37 some related factor. For example, low flow may be caused by 38 upstream water withdrawals. Occasionally, a limiting factor may be 39 linked by a chain of conditions to a problem somewhat removed 40 from the specific Limiting Factor. The previous example of an over 41 abundance of fine sediment in a spawning bed may well apply here. 42 An overabundance of fine sediment in a spawning bed may be 43


25

caused by a failing bank upstream in the system, which in turn may 1 be caused by the loss of riparian function through any number of 2 various management activities. 3

4 For the purposes of this report, these underlying causes are called 5 “site problems.” A site problem is a local, underlying condition that 6 ultimately contributes to one or more limiting factors. In some 7 cases, the site problem may be the immediate and direct cause of 8 the limiting factor. A perched culvert would be a passage barrier. In 9 other cases, as described in the previous paragraph, the site 10 problem may be somewhat removed both in location and in 11 cause/effect relationship from the actual limiting factor. An 12 individual site problem may contribute to more than one limiting 13 factor. A loss of riparian function may contribute to increased 14 downstream temperatures, a lack of pools due to the lack of large 15 woody debris, increased sediment transport, and other negative 16 impacts. Conversely, one limiting factor may have several site 17 problems contributing to it. A temperature exceedence may be 18 caused by a number of separate riparian impacts upstream, and 19 one or more impoundments. These contributing site problems may 20 be of varying significance to the limiting factor in question. Because 21 it is the intent of this report to address the causes of the limiting 22 factors, our focus is on the site problems which ultimately lead to 23 degraded habitat. Performing a short term fix on a chronic problem 24 is shortsighted and in many cases a waste of money and 25 resources. Cleaning gravels is of little long term benefit if the source 26 of the fine sediment input is not corrected. It is the intent of this 27 report that project sponsors will choose restoration projects that 28 address long term problem causes (site problems) as the primary 29 focus of restoration efforts. With long term problem resolution 30 underway (e.g., restoring a riparian zone to stabilize a bank), short 31 term limiting factor correction (such as gravel cleaning) may be 32 entirely appropriate. Because of the necessity to target scarce 33 restoration resources on those factors that have the greatest impact 34 on fish production, a ranked list of site problems is included. 35 As a first effort, we have attempted to gather as much data on 36 these watersheds as possible in a limited amount time. There is 37 undoubtedly much data and information that has been overlooked 38 or otherwise missed. This project is cyclical in nature. Contributions 39 to “fill in the holes” and suggestions to correct mistakes are strongly 40 desired. 41

42


26

Summarized in Appendix B are relevant hydrology/instream flow sections of 1

several limiting factors reports conducted by the State. These summaries 2

include reports for the: 3

4

• Stillaguamish (WRIA 5) 5 • Puyallup (WRIA 10) 6 • Deschutes (WRIA 13) 7 • Straits of Juan de Fuca (WRIA 19) 8 • Willapa (WRIA 24) 9 • Klickitat (WRIA 30) 10 • Entiat (WIRA 46) 11

12

Each and every one of these reports define low flows as limiting factors to 13

salmon and steelhead habitat and production. 14

H. Basin Assessment Reports 15

Human activities have resulted in some streams being so over 16

appropriated that they are nothing but dry streambeds during the low flow 17

period in the summer. In many other streams, flows are reduced well 18

below natural flow levels. Overappropriation conditions occurring in many 19

streams and rivers used by salmon can be found in at least 16 watersheds 20

throughout the state, representing about a quarter of the state’s basins 21

(See Figure 2). These basins also contain 65% of the state’s population. 22

Overappropriation means more water is being withdrawn from rivers and 23

streams in those watersheds, especially in late summer and early fall, 24

when flows are naturally low and when fish need water for migration, 25

spawning or rearing. In some cases, flows that are too low can provide 26

insufficient spawning areas to accommodate all returning adult fish. Flows 27

that are depressed below natural low flows generally cause fish production 28

to decline by reducing the total amount of habitat and food sources 29

available in the stream. Low summer flows are also associated with higher 30


27

water temperature and higher concentrations of pollutants, which can be 1

debilitating or even lethal to fish. 34 2

3

Flow targets are not met many days out of the year in virtually every basin 4

throughout the State where instream flow rules have been established. 5

For example: 6

7

• Instream flow requirements exist at ten locations along streams 8 within the Snohomish watershed, seven of which are have relatively 9 longterm stream gage records. Streamflow trends were analyzed 10 at these seven gages as part of this assessment. Instream flow 11 requirements are not met during portions of the year at most of 12 these seven gages. For instance, since the regulation was 13 established, instream flows on the Snohomish River near Monroe 14 have typically not been met an average of 121 days per year, 15 especially between midJuly and midOctober. Minimum flows are 16 not met during the month of October in half of all years, and are not 17 met during most of the year (except May and early June) in one of 18 ten years. Diversions for water supply are highest during the 19 summer months when stream flows are naturally low; 35 20

21 • Instream flows were not met at the Auburn Gage an average of 103 22

days per year between 1980 and 1992. At the Palmer Gage, 23 instream flow requirements were not met an average of 100 days 24 per year during the same period. In both instances, there appeared 25 to be an upward trend in the number of days that instream flows 26 were not met. 36 27

28 • In addition to the flow restrictions on the main stem of the Green 29

River, all tributaries of the Green are closed to further surface water 30 appropriations. Data from gages on Big Soos and Newaukum 31

34 Citation omitted.

35 Id.

36 Washington Department of Ecology, Draft Initial Watershed Assessment, Water Resource Inventory Area 9, GreenDuwamish River Watershed, OFTR 9501, January 20, 1995.


28

Creeks show significant summer flow declines within these two 1 subbasins. These declines can be attributed to a combination of 2 less precipitation, increased ground water withdrawal, and the 3 paving of land surfaces; 37 4

5 • Snoqualmie River target flows near Snoqualmie not met 114 days 6

per year; 38 7 8

• Cedar River target flows in the in King County not met 81 days out 9 of the year. The number of days appears to be increasing; 39 10

11 • Instream flows were not met at the lower Puyallup gage an average 12

of 35 days per year between 1980 and 1993 (see graph at right). At 13 the upper Puyallup gage, instream flow requirements were met 14 between 1980 and 1987, but were not met an average of 37 days 15 from 1987 to 1992. For both gages, the number of days that 16 instream flows were not met appears to have increased since 1980. 17 The tenyear average indicates that low flows have continued to 18 decline despite the establishment of instream flows in 1980; 40 19

20 • In 1976, Ecology established minimum base flows at 29 control 21

stations along the Chehalis River and its tributaries (Chapter 173 22 522 WAC). However, annual flows in the Chehalis have decreased 23 by 300 cfs since 1930 and 800 cfs since 1953, respectively. At the 24 Porter gage the minimum base flows are not met an average of 77 25 days per year; 41 26

27

37 Id.

38 Washington Department of Ecology, Draft Initial Watershed Assessment, Water Resource Inventory Area 7, Snohomish River Watershed, OFTR 9506 at pp. 30 31, March 17, 1995.


40 Washington Department of Ecology, Draft Initial Watershed Assessment, Water Resource Inventory Area 10, PuyallupWhite Watershed, OFTR 9509, March 1995.

41 Washington Department of Ecology, Draft Initial Watershed Assessment, Water Resource Inventory Area 23, Upper Chehalis River Watershed, OFTR 9503, February 1995.


29

• Existing monthly flow data from the Tucannon River near Starbuck 1 from 1915 to 1990 indicate the mean annual flow of the Tucannon 2 River has been declining for the past 31 years. It appears that 3 flows in the Tucannon River are decreasing to levels below 4 recommended flows for protecting fish habitat. Except for several 5 exceptionally wet years in the 1970s, the lowest mean flows over 6 seven consecutive days (7day low flows) have fallen below the 7 IFIM recommendation almost every year. Comparing flow data with 8 recommended flows indicates that river flows fall below the 9 recommended IFIM flow of 65 cfs more than 50 percent of the time 10 during late July, August, and into early September. The number of 11 days when the IFIM flow is not met has increased from 12 approximately 30 days in 1960 to more than 60 days in 1990; 42 13

14 • Streamflows in the Wenatchee River fall below instream flow levels 15

on average 69 days per year at Plain, 69 days per year at 16 Peshastin and 51 days per year at Monitor. Streamflows on Icicle 17 Creek fall below instream levels an average of 66 days per year 18 Wenatchee River target flows near Peshastin not met 30, 57, and 19 45% of the time in August, September, and October, respectively; 43 20

21 • Recent research indicates that on an average annual basis, 22

recommended flows to sustain fisheries are not met for 260 days of 23 the year on the Entiat River. Recommended flows generally are 24 met during the months of April through July, when high runoff 25 occurs. Ecology has completed IFIM studies at several sites on 26 upper and lower reaches of the Entiat River. Based on these 27 studies, Ecology and the Department of Fish and Wildlife have 28 proposed flows that are needed to protect fish habitat on the river. 29 These flow recommendations have not been adopted into rules. 30 Flow data recorded since 1957 indicates that for the time period 31

42 Washington Department of Ecology, Draft Initial Watershed Assessment, Water Resource Inventory Area 35, Tucannon River Watershed, OFTR 9504 February 10, 1995.

43 Washington Department of Ecology, Draft Initial Watershed Assessment, Water Resource Inventory Area 45, Wenatchee River Watershed, OFTR 9512 at pp. 19, June 8, 1995.


30

from July 1 to March 15, river flows are below recommended flow 1 levels for 221 days or 86% of the time; 44 2

3 • Streamflows in the Okanogan River fall below instream flow levels 4

60 days per year on average in the reach below its confluence with 5 the Similkameen River, and 100 days per year above the 6 confluence to Lake Osoyoos. On the Similkameen River, instream 7 flows are not met 75 days per year on average; 45 8

9 • Since the 1970s, instream flows have not been met an average of 10

53 days per year, typically during the summer and fall months on 11 the Little Spokane River. This trend has been increasing in recent 12 years. 46 13

14 • Instream flows are typically not met 50 percent of the time during 15

late summer and fall on the Kettle River. 47 16

I. Summary 17

Under the state water code, and aided by federal laws such as the Federal 18

Power Act, Endangered Species Act, Clean Water Act, the Reclamation Act and 19

various Rivers and Harbors Acts, outofstream water development has 20

proceeded without regard to preserving instream values. The natural flow of 21

numerous streams is fully appropriated in most of the streams throughout the 22

State. Large dams for irrigation, flood control and hydroelectric power generation 23

were built on many rivers throughout the state during the first half of this century. 24

44 Washington Department of Ecology, Draft Initial Watershed Assessment, Water Resource Inventory Area 46, Entiat River Watershed, OFTR 9502, January 10, 1995.

45 Washington Department of Ecology, Draft Initial Watershed Assessment, Water Resource Inventory Area 49, Okanogan River Watershed, OFTR 9514, June 8, 1995.

46 Washington Department of Ecology, Draft Initial Watershed Assessment, Water Resource Inventory Area 55, Little Spokane River Watershed, OFTR 95XX, May 1995.

47 Washington Department of Ecology, Draft Initial Watershed Assessment, Water Resource Inventory Area 60, Kettle River Watershed, OFTR 95XX, May 1995.


31

These developments brought substantial economic and social benefits. However, 1

they also severely damaged the state's economically significant anadromous fish 2

resources. The destruction of fish habitat and fish passage problems caused by 3

depletion of instream flows remains a key environmental problem today in 4

Washington and throughout the Pacific Northwest. A number of fish runs have 5

become extinct and three salmon runs native to the Snake River Basin have 6

recently been listed as endangered or threatened under the Federal Endangered 7

Species Act. Numerous other fish runs in the region are regarded as weak 8

enough to merit listing as well, including over 100 stocks in Washington alone. 9

10 11 12

END OF CHAPTER 13 14


32

1

2

3

4

5

6

7

8

9 CHINOOK CHUM COHO PINK SOCKEYE STEELHEAD

PUGET SOUND North Puget Sound 15 12 14 7 1 22 South Puget Sound 10 23 11 2 3 13 Hood Canal 1 12 9 3 11 Strait of Juan de Fuca 3 8 12 3 14

TOTALS 29 55 46 15 4 60

COASTAL North Coast 21 6 18 3 24 Grays Harbor 9 2 7 10 Willapa 2 6 1 6

TOTALS 32 14 26 3 40

COLUMBIA RIVER Lower Columbia 17 3 17 23 Upper Columbia 30 1 2 18

TOTALS 47 3 18 2 41

WASHINGTON STATE 435 STOCKS 108 72 90 15 9 141 10 Table 1. Status of the salmon stocks in Washington 11

12 13

14

15

16

17

18


33

1

2

3

4

5

6 Pecent of Stocks

HEALTHY DEPRESSED CRITICAL UNKNOWN

Chinook 50.0 32.4 4.6 13.0 Coho 41.1 37.8 1.1 20.0 Chum 67.6 4.2 2.8 25.4 Pink 60.0 13.3 13.3 13.3 Sockeye 33.3 44.4 11.1 11.1 Steelhead 25.5 31.2 0.7 42.6 Table 2. Status of the Stocks, 1993. 7

8

9

10

11


34

1 Figure 2. 62 WATER RESOURCE INVENTORY AREAS (WRIAs) IN 2

WASHINGTON 3 4 5

6 7

1 Nooksack 16 Skokomish Dosewallips

32 Walla Walla 48 Methow

2 San Juan 17 QuilceneSnow 33 Lower Snake 49 Okanogan 3 Lower Skagit Samish

18 Elwah Dungeness

34 Palouse 50 Foster

4 Upper Skagit 19 LyreHoko 35 Middle Snake

51 Nespelem

5 Stillaguamish 20 SoleduckHoh 36 Esquatzel Coulee

52 Sanpoil

6 Island 21 QueetsQuinault 37 Lower Yakima

53 Lower Lake Roosevelt

7 Snohomish 22 Lower Chehalis 38 Naches 54 Lower Spokane 8 Cedar Sammamish

23 Upper Chehalis 39 Upper Yakima

55 Little Spokane

9 DuwamishGreen 24 Willapa 40 Alkali 56 Hangman


35

Squilchuck 10 PuyallupWhite 25 GraysElokoman 41 Lower Crab 57 Middle Spokane 11 Nisqually 26 Cowlitz 42 Grand

Coulee 58 Middle Lake Roosevelt

12 ChambersClover 27 Lewis 43 Upper Crab Wilson

59 Colville

13 Deschutes 28 Salmon Washougal

44 Moses Coulee

60 Kettle

14 Kennedy Goldsborough

29 WindWhite Salmon

45 Wenatchee 61 Upper Lake Roosevelt

15 Kitsap 30 Klickitat 46 Entiat 62 Pend Oreille 31 RockGlade 47 Chelan

1 2 3

4


36

IV. STATE INSTREAM FLOW RELATED POLICIES 1 2

A. Chelan Process 3

4

In May 1990, a large water resources retreat was held at Rosario in the San Juan 5

Islands of Washington. Approximately 150 persons representing the full range of 6

water interests were invited and attended. Attendees organized themselves into 7

caucuses representing tribal, state and local government, and agriculture, 8

business, environment, fisheries, and recreation. Two days of meetings were 9

facilitated and mediated by the Northwest Renewable Resources Center 10

(NRRC). At the end of the two days, the caucuses had agreed to pursue a 11

mediated framework for finally resolving instream flow and water allocation 12

issues. They also established a 24 member "Interim Team" to develop a draft 13

agreement for consideration by the larger group. 14

15

In November 1991, a second retreat of several hundred representatives of the 16

above mentioned caucuses was held in Chelan, Washington. The caucuses 17

eventually came to consensus on the landmark Chelan Process for Water 18

Resources. Among its provisions the Chelan Process provides for the following: 19

20 • Future planning and decisions on water will be guided by the 21

objective to achieve an overall net gain of the productive capacity 22 of fish and wildlife habitats while accommodating growth in a 23 manner that protects the environment of the state. 24

25 • Conservation, enforcement, and public information shall be used to 26

assure proper utilization of existing water supplies. 27

28 • The Water Resources Forum, with representation of the eight 29

Chelan Agreement caucuses, is established to make policy and 30 statutory recommendations, assist implementation of pilot regional 31


37

water resource plans, and monitor and evaluate implementation of 1 the agreement. Forum's decisionmaking is to be by consensus. 2

3 • Guidelines are provided for the implementation of pilot regional 4

water resource plans which are to include establishment of 5 instream flow protection measures. The regional plans are to be 6 developed by local planning groups that mirror the makeup of the 7 caucuses involved in the Chelan Agreement. The resulting plans 8 are advisory, but if a plan is based on consensus, implementing 9 agencies are to give it substantial weight. 10

11 • For nonplanning watersheds, a "critical situations" process is 12

established to address disputes that may arise among state, tribal 13 and local governments regarding water resources. 14

15 • Strong support is given for improved water data collection and 16

management to be carried out cooperatively among various 17 government entities. 18

19

Soon after the Chelan Process was reached, the Water Resources Forum began 20

meeting on a monthly basis. The Forum developed recommendations for two 21

key policy issues: instream flows and hydraulic continuity between surface and 22

ground water. It completed work in these areas in early 1993. The following is a 23

summary of Forum's instream flow recommendations: 24

25 • Retain instream flows in all streams. 26

27 • Enhance and restore flows in overallocated streams. 28

29 • Use regional planning as the preferred means for establishing 30

instream flows. 31 32

• Permit variation in instream protection level by region. 33 34

• Use rulemaking where possible, but determine flows casebycase 35 where necessary. 36

37 • Incorporate local, statewide and tribal interests in decisions on 38

water. 39 40


38

• Consider tangible and intangible values. 1 2

• Regard streamflow as part of the overall ecosystem. 3 4

• Use conservation, trust water rights, enforcement, and voluntary 5 transfers to improve streamflows. 6

7 • Retain some streams in a natural or free flowing condition. 8

9 • Improve water data and instream flow methods. 10

11 • Use stream closures as necessary to protect instream values and 12

existing rights. 13 14

• Allow for instream flow waivers, but only in shortterm situations. 15 16

The Forum developed three different processes and objectives that would 17

apply in establishing instream flows; 18

19

• For streams not in a probable regional planning area, instream flows would 20 be set by administrative rule that are optimum to protect, restore and 21 enhance biological integrity of fish and wildlife. (Emphasis added). 22

23 • For streams in a probable regional planning area (regional planning 24

expected within four years), determine conservative interim flows primarily 25 using existing information and professional judgment. Such flows would 26 not be set by rule, but would be used to condition new water rights. 27

28 • For streams in a designated regional planning area, instream flows would 29

be set by rule as part of a comprehensive water allocation plan that 30 considers instream and offstream needs and values. 31

32

The Forum's primary recommendations regarding hydraulic continuity between 33

surface and ground water are as follows: 34

35

• Interrelated ground and surface water should be managed as an 36 integrated hydrogeologic system. 37

38


39

• When hydraulic continuity exists, new appropriations should be 1 approved only if existing rights and instream flows are not impaired. 2 Existing law imposes a standard of no harm to existing rights and 3 instream flows. 4

5 • Cumulative effects of groundwater appropriations in hydraulic 6

continuity with surface water should be considered when 7 considering any new appropriation. 8

9 • Basin hydrogeology should be assessed to determine the relative 10

risk of impairment of existing rights and instream flows due to 11 hydraulic continuity between surface and ground water. 12

13 • The greater the risk to existing rights and instream flows, the 14

greater the burden on the proponent of a new use to show no harm 15 will result if the new use is approved. 16

17 • In areas with high risk, prospective water users should be 18

encouraged to pursue options other than development of new 19 groundwater withdrawals. 20

21 • Anticipated impacts to existing rights and instream flows may be 22

mitigated at the expense of the proponent.' 23 24

Shortly after Forum delivered its instream flow policy recommendations to 25

Ecology, the Washington State Supreme Court ruled on a longstanding legal 26

dispute relating to instream flows. In this decision, the Court upheld Ecology's 27

authority to establish instream flows at the "optimum" level for fish. The decision 28

was consistent with Forum's recommendations. 29

B. The policy position of the Fish and Wildlife Commission: Wild 30 Salmonid Policy 31

The Legislature in 1993 directed the Department of Fish and Wildlife to develop a 32

policy to protect the state's wild salmonids, which include salmon, steelhead, and 33

trout. In 1997, Washington Fish and Wildlife Commission adopted the Wild 34

Salmonid Policy. It was developed in consultation with the public and Western 35

Washington Treaty Tribes. 36


40

The Policy's goal is to restore Washington's stocks of wild salmon and steelhead 1

to healthy, harvestable runs. The policy guides the actions of the Washington 2

Department of Fish and Wildlife that regulates commercial and sport fishing in 3

state waters and manages numerous hatcheries across the state. The WSP also 4

includes habitat standards that must be implemented by various federal and state 5

agencies, local governments, businesses and private individuals to ensure 6

recovery of the salmon resource. It is expected the Governor’s Salmon Recovery 7

Plan will be developed consistent with the WSP. 8

The Department’s instream flow policy is to: 9

10

Maintain or restore the physical processes affecting natural basin 11 hydrology. In addition, manage water use and allocation in a 12 manner that would optimize instream flows for salmonid spawning, 13 incubation, rearing, adult residency, and migration, that would 14 address the need for channelforming and maintenance flows, and 15 that would address the impacts of water withdrawals on estuarine 16 and marine habitats. (Emphasis added). 17

18

The Deparmtent’s instream flow policy is based on “maintenance or restoration of 19

flows through administration of water rights, instream resources programs, water 20

conservation strategies and similar programs.“ Stream flows are affected as well 21

by water withdrawals for offstream use, by certain groundwater withdrawals, and 22

by instream impoundment and release operations to achieve flood control, 23

hydropower, and other societal objectives. 24

The performance measure to be used by the Fish and Wildlife Commission for 25

instream flows is: 26

In streams or basins that provide useable wild salmonid habitat, 27

and where stream flows have been adopted or are being revised, 28

the performance measure will be the stream flow as adopted by 29


41

rule. Where review is requested the objective will be to establish or 1

revise stream flows to optimize habitat conditions for migration, 2

spawning, incubation, and rearing of wild salmonids and their prey. 3

(Emphasis added). 4

C. The policy position of the Governor 5

The Governor's Salmon Recovery Office was established by the Legislature 6

through the Salmon Recovery Planning Act in 1998. The Salmon Office supports 7

Governor Gary Locke's Joint Natural Resources Cabinet. State efforts are 8

coordinated through three work products: a statewide strategy to recover salmon, 9

a state agencies' action plan, and a salmon recovery scorecard. 10

1. Extinction is Not An Option: A Statewide Strategy to 11 Recovery Salmon 12

The Joint Natural Resources Cabinet released this Statewide Strategy to 13

Recover Salmon in September 1999, following an earlier draft. The goal of the 14

Strategy: "Restore salmon, steelhead, and trout populations to healthy and 15

harvestable levels and improve the habitats on which fish rely." The Strategy is 16

designed as a longterm vision or guide for salmon recovery. 17

2. State Agency’s Action Plan 18

The State Agencies' Action Plan was released in May 2000. The Action Plan 19

defines the state's priority activities for shortterm implementation of the Salmon 20

Strategy, 19992001 biennium. The Action Plan does not include all state agency 21

salmonrelated activities. Its focus is new actions or modifications to existing 22

activities that provide additional protection for salmon. 23


42

3. Salmon Recovery Scorecard 1

This Scorecard could be viewed as the state's business plan for salmon 2

recovery. It's the State’s performance management system for tracking data, 3

measuring progress and changing course where needed. The Joint Natural 4

Resources Cabinet released the first draft in November 1999. A final scorecard 5

was released in May 2000. 6

The Governor’s Salmon recovery plan recognizes that: 7

8 appropriate quantities of cool, clean water in streams are a key 9 habitat requirement for sustainable fish production. Minimum 10 streamflow must be of sufficient depth and velocity to allow 11 passage, migration and spawning. 12

13 . . . 14

15

Salmon life cycles are very sensitive to changes in stream flow 16 and, to some extent, time their movements according to flow 17 regimes. Natural base and peak stream flows vary greatly from 18 year to year, seasonally and even on a daily basis. Fish have 19 adapted over thousands of years to the natural flow regime in their 20 individual watersheds. Natural low flows are important for 21 establishment of vegetation along stream banks. High flows add 22 gravel, flush sediments from gravel, create new rearing channels, 23 and perform other important functions. Protection of salmon 24 requires streamflows to fluctuate within the natural flow regime for 25 a given location and season. 48 26

27 The Governor’s Plan also recognize that: 28

29

fish need cool, clean water in adequate amounts and at the right 30

time. Stream flows which are either too high or too low to sustain 31

healthy production levels are among the many factors contributing 32

to the poor status of many naturally reproducing fish stocks. Natural 33



43

flow conditions have been affected by several human activities in 1

the past 100 years, chiefly through the diversion of water from 2

streams for irrigation, municipal and industrial uses, water storage 3

operations, and land use changes. Increases in the frequency and 4

duration of both floods and low flows are having considerable 5

detrimental effects on salmon. 6

7

Human activities have resulted in some streams being so over 8 appropriated that they are nothing but dry streambeds during the 9 low flow period in the summer. In many other streams, flows are 10 reduced well below natural flow levels. Overappropriation 11 conditions occurring in many streams and rivers used by salmon 12 can be found in at least 16 watersheds throughout the state, 13 representing about a quarter of the state’s basins. These basins 14 also contain 65% of the state’s population. Overappropriation 15 means more water is being withdrawn from rivers and streams in 16 those watersheds, especially in late summer and early fall, when 17 flows are naturally low and when fish need water for migration, 18 spawning or rearing. In some cases, flows that are too low can 19 provide insufficient spawning areas to accommodate all returning 20 adult fish. Flows that are depressed below natural low flows 21 generally cause fish production to decline by reducing the total 22 amount of habitat and food sources available in the stream. Low 23 summer flows are also associated with higher water temperature 24 and higher concentrations of pollutants, which can be debilitating or 25 even lethal to fish. 49 26

27

The Governor’s Plan recognizes that the: 28

29

lack of stream flow to sustain healthy production levels is a key 30 factor contributing to the poor status of wild fish stocks.” Streams 31 and rivers in several basins used by salmon are overappropriated, 32 meaning more water is being withdrawn for uses such as irrigation, 33 when flows are naturally low and when fish need water. 34

35



44

Allocation of water in the state is based on a firstcome, firstserved basis. To 1

address the needs of fish and ensure that water is setaside for that purpose, 2

instream flows are established by rule for the amount of water required by fish. 3

However, most major development in and around water occurred before instream 4

flows were established, making water for fish “junior” in right to preexisting water 5

diversions. In addition, fewer than onethird of Washington’s major rivers have 6

had instream flows set by rule, and the few streams that have instream flows 7

established frequently don’t meet the intended goals. For example, the existing 8

instream flows in the Cedar River in King County are not met 81 days out of the 9

year — and the number is increasing. 10

11

“No instream flows have been set in Washington since 1985. Meanwhile, the 12

state’s population has increased by 30% and nearly 20 salmon runs have been 13

listed under the Endangered Species Act.” 14

The instream flow goal for the Governor’s Salmon Plan is to: 15

“retain or provide adequate amounts of water to protect and restore 16 fish habitat.” 17

To accomplish this goal, the State intends to: 18

Establish instream flows for watersheds that support important fish 19 stocks. 20

21 Protect and/or restore instream flows by keeping existing flows and 22 putting water back into streams where flows are diminished by 23 existing uses — especially illegal or wasteful uses or by poor land 24 use practices. 25

26

The State believes that to ensure adequate water for fish requires: 27

28 a collaborative, incentivebased approach, taking immediate 29 actions where needed, using strong enforcement of current 30 regulations, ongoing monitoring, and implementing default actions 31


45

when collaborative efforts fall short of expectations. This will be 1 done within a priority framework based on fish stock status, water 2 availability and conditions, and population growth. In addition, 3 where gaps or legal conflicts with the goals exist, appropriate 4 legislative solutions will be actively pursued. 5

6

It is the State’s intent to protect, and restore instream flows by: 7

8

• Establishing flows in priority watersheds with ESA listings and in 9 watersheds with healthy fish stocks and high population growth 10 pressure. 11

12 • Review and revise existing instream flow rules, including closures, 13

will be a lower priority, but will be accomplished within a set 14 schedule, focusing first where flows are inadequate. 15

16 • Until instream flows are set, either no new water rights will be 17

issued (except for public health and safety emergencies) or interim 18 instream flows will be set. Groundwater connected with surface 19 water will be treated as a surface water source, subject to the same 20 restrictions. 21

22 • Flows will be protected through effective monitoring and 23

enforcement of established instream flows. 24 25

• Future water right permits and changes to water rights, if approved, 26 will be conditioned with instream flows. 27

28 • Stream gauges will be monitored to determine when instream flows 29

are not being met. Instream flows will be protected by regulating 30 affected water rights when the flows are not met. 31

32 • Enforcement against illegal uses and restriction of withdrawals from 33

exempt wells contributing to flow problems will be implemented. 34 35

Flows will be restored through a variety of means to put water back in streams. 36

37

• Flow restoration will be the primary objective in watersheds where 38 flows are diminished by existing uses. 39

40


46

• Each watershed supporting listed fish stocks will have in place a 1 comprehensive strategy for restoring instream flows. 2

3 • Innovative tools, such as water banking, will be explored and 4

supported as appropriate. 5 6

• Applications for grants of public funds for fish screening, diversion 7 passage correction, water conservation, etc., will receive priority 8 where the project includes a return of water for instream flows. 9

10 • Public leasing or purchasing of senior water rights for instream 11

flows will be pursued aggressively. 12 13

• Water conservation and water reuse will be emphasized to augment 14 stream flows and reduce the demand on streams and groundwater. 15

16 • State approvals for hydropower projects will be conditioned with 17

instream flow releases. 18 19

• Enforcement will be carried out against unauthorized diversions, 20 unauthorized uses and waste of water. 21

22 • Locally based collaborative watershed management efforts will be 23

supported if they address establishing, protecting and/or restoring 24 instream flows within a reasonable time. 25

26

The State will try to tailor solutions specifically for each watershed. Deference 27

will be given to collaborative watershed management efforts to establish, protect 28

and restore instream flows, but not if delays risk the extinction of wild salmonids. 29

30

Certain requirements, intended to apply in all watersheds with ESA listings or 31

potential listings, will be implemented first in the highest priority watersheds. The 32

requirements include: 33

34

• Metering and reporting of diversions and withdrawals by all water 35 users. 36

37


47

• Implementation of water conservation and use of reclaimed water 1 where feasible. 2

3 • Strategic enforcement against illegal uses (including wastage). 4

5

Immediate actions will be pursued on a priority basis: 6

• To avoid further decline in fish stocks, the state will collaborate with 7 local groups to identify and implement actions that need to be taken 8 immediately. 9

10 • Immediate actions could include restricting use of exempt wells, 11

enforcing against excessive waste of water and illegal water uses, 12 and requiring strict water conservation measures and water use 13 standards. 14

15 16

END OF CHAPTER— 17 18 19 20 21


1 V. STATE STATUTORY LAWS ARE INTENDED TO PROVIDE FOR 2

PROTECTION OF INSTREAM FLOWS 3 4

There are a variety of federal and state legal mechanisms available to establish 5

and protect instream flows for fish. The State has certain statutory and common 6

law opportunities to protect instream flows for anadromous fish. In addition, the 7

State could utilize its authorities under the federal Clean Water Act to fulfill its 8

responsibility to protect and restore instream flows as discussed in the next 9

chapter. Summarized below are descriptions of statutory means the state could 10

utilize to establish and protect instream flows. 11

12

A. Appropriation of water under Washington State law. 13

14

Regulation of activities affecting water quantity has, with certain major 15

exceptions, been left to the states since the second half of the last century. 50 16

Washington State adopted the system of “prior appropriation” for acquisition and 17

control of water rights in the 1917 Washington Water Code: 51 18

19

The power of the state to regulate and control the waters within the 20 state shall be exercised as hereinafter in this chapter provided. 21 Subject to existing rights all waters within the state belong to the 22 public, and any right thereto, or to the use thereof, shall be 23 hereafter acquired only by appropriation for a beneficial use and in 24 the manner provided and not otherwise; and, as between 25 appropriations, the first in time shall be the first in right. . . . 52 26

50 SAX & ABRAMS, LEGAL CONTROL OF WATER RESOURCES at 298 (1986); California Oregon Power Co. v. Beaver Portland Cement Co..

51 RCW 90.03.005 et. seq.

52 RCW 90.03.010 (1917).


1 Under this law, appropriation became the exclusive means of obtaining a new 2

water right. However, existing riparian rights were not eradicated; therefore 3

Washington is viewed as having a dualistic water rights system. 53 4

5

The focus of the state water code, like legislation passed in many other western 6

states during the early 1900s, was to provide a state controlled process for 7

allocating water to private use principally for economic development. 54 It did not 8

recognize nondiversionary instream uses as beneficial, nor did it provide 9

meaningful protection of public values other than the general requirement that a 10

new appropriation be denied if it would be detrimental to the public interest. 55 11

12

The essence of the prior appropriation doctrine is a person acquires a water right 13

by putting water to a beneficial use; when there is not enough water to go 14

around, firstcomefirstserved. Senior rights are protected over all other 15

subsequently issued water rights. 16

B. The Washington Water Code recognizes instream uses. 17

18 Prior appropriation is the law in most of the 19 Western states; Washington was 19

not unique in adopting the doctrine. But Washington (along with Oregon) is 20

somewhat unique in another respect: one of the major uses of water, natural 21

propagation of fish, is a recognized “beneficial” use of the water and has received 22

extensive legal treatment. 23

53 Ralph W. Johnson, Riparian and Public Rights to Lakes and Streams, 35 Wash. L. Rev. 580, 586 (1960).

54 Kenneth O. Slattery and R. F. Barwin, Protecting Instream Resources in Washington State

55 RCW 90.03.290 (1992).


1

Indeed, instream use of water for fish is recognized as a “beneficial use” 2

presumably entitling the owners of a right to harvest fish to the protection of the 3

Washington Water Code: 4

5

It is the policy of the state to promote the use of the public waters in 6 a fashion which provides for obtaining maximum net benefits arising 7 from both diversionary uses of the state's public waters and the 8 retention of waters within streams and lakes in sufficient quantity 9 and quality to protect instream and natural values and rights. Uses 10 of water for domestic, stock watering, industrial, commercial, 11 agricultural, irrigation, hydroelectric power production, mining, fish 12 and wildlife maintenance and enhancement, recreational, and 13 thermal power production purposes, and preservation of 14 environmental and aesthetic values, and all other uses compatible 15 with the enjoyment of the public waters of the state, are declared to 16 be beneficial. . . . .. 56 17

18 (3) The quality of the natural environment shall be protected and, 19 where possible, enhanced as follows: 20

21 Perennial rivers and streams of the state shall be retained with 22 base flows necessary to provide for preservation of wildlife, fish, 23 scenic, aesthetic and other environmental values, and navigational 24 values. Lakes and ponds shall be retained substantially in their 25 natural condition. Withdrawals of water which would conflict 26 therewith shall be authorized only in those situations where it is 27 clear that overriding considerations of the public interest will be 28 served. 57 29

30

Appropriative water rights vest only when water is put to "beneficial use." 31

“Beneficial use” means . . . fish . . .. 58 32

56 RCW 90.03.005 (Emphasis supplied).

57 RCW 90.54.020 (1) & (3) (a) (Emphasis added).

58 RCW 43.27A.020.


C. The appropriation procedure provides opportunities to protect 1 instream flows. 2

3

The Department utilizes a variety of regulatory mechanisms to protect 4

Washington’s rivers with the goal of ensuring adequate surface water flows for 5

fish, wildlife, recreation and other instream values. Principle among them is the 6

state’s Water Resources Management Program, authorized by the Water 7

Resources Act of 1971 59 and the Minimum Water Flows and Levels Act. 60 The 8

Program creates Instream Resources Protection Programs (IRPPs) within the 9

State. 10

11

To implement the IRPP, the Washington Department of Ecology (Ecology) set 12

numeric flow targets for specific reaches of rivers in 18 basins, adopting the flow 13

targets as formal rules. These flow regimes are treated as legal water right 14

appropriations with priority dates as of rule adoption. In Washington’s “firstin 15

time, firstinright” system of water allocation, the rulebased flows are senior to 16

laterissued water rights, for both surface and hydraulically connected ground 17

waters. 61 Instream flows are protected in Washington State through a variety of 18

regulatory mechanisms. The state is divided, for water allocation purposes, into 19

62 administrative units, called “water resource inventory areas” or WRIAs. In 19 20

WRIAs, the state Department of Ecology has created Instream Resource 21

Protection Programs and established regulatory instream flows or closed the 22

basin to new appropriations. In addition, the state Department of Fish and 23

59 RCW 90.54.

60 RCW 90.22, WAC 173500.

61 Ecology,1998b.


Wildlife has exercised its authority to recommend stream closures and instream 1

flows in most of the watersheds throughout the state. 2

3

Under the authority of the Minimum Flow Act of 1969 and the Water Resources 4

Act of 1971, the state is obligated to maintain base flows in perennial rivers and 5

streams for the purpose of protecting fish and wildlife, navigational, recreational 6

and aesthetic uses, and water quality. 62 These statutes set forth procedures for 7

establishing instream flows, which are recognized in the water code as a form of 8

appropriation equal to offstream water rights. 63 9

10

Minimum instream flows are promulgated as rules in the Washington 11

Administrative Code, Chapter 173500 et seq. Tables set forth quantified flow 12

targets for specific stream gage stations on each stream or river segment within 13

a WRIA. The flow targets change, usually at fifteenday intervals. 14

15

These regulatory flows have a priority of the date of adoption of the rule, and are 16

therefore junior in time to all previously issued water rights. Because of this, on 17

most streams flow targets are not met many days out of the year. Conversely, 18

the flows are senior to all water rights issued after the rulemaking date. New 19

water rights are conditioned on maintenance of the flow targets, and when flow 20

levels drop below those targets, junior rights must be curtailed. 21

22

The regulatory instream flows established pursuant to the Minimum Instream 23

Flow Act, RCW Ch. 90.22 and the Water Resources Act of 1971, RCW Ch. 90.54 24

may be thought of as a form of public trusteeship. The primary distinction is 25

found in the priority date. The public trust dates from statehood, while regulatory 26

62 RCW 90.22.010, 90.54.020.

63 RCW 90.03.345.


flows date only from the 1970’s and 80’s. The state has not explicitly pursued 1

implementation of the public trust as a means to establish and protect instream 2

flows. 64 3

4

The doctrine of riparianism, the original law governing Washington water 5

allocation, provides another legal basis to establish individual instream rights. 6

Early case law and the 1917 Water Code substituted prior appropriation as the 7

dominant water law, while grandfathering in preexisting riparian rights on non 8

navigable streams. In 1985, the Supreme Court ruled that offstream; 9

consumptive riparian rights that had not been put to use by 1932 were forfeited. 65 10

The court did not, however, address instream riparian rights and such do 11

continue to exist. Most commonly, these rights consist of stock watering and 12

other smallscale water uses, but presumably could extend to longstanding 13

environmental or aesthetic uses of a nonnavigable stream. 14

15

Individual persons or entities may also apply for instream water rights to support 16

specific beneficial uses. Most commonly these rights are used for fish 17

propagation or hydroelectric power generation. 66 18

D. Chapter 90.03 provides legislative authority for Ecology to protect 19 instream flows. 20

21

Under RCW 43.27A.090(11), the department of ecology is authorized to adopt 22

such regulations as are necessary to carry out the provisions of the surface and 23


65 Ecology v. Abbott, 103 Wn.2d 686 (1985).

66 RCW 90.54.020(1).


ground water statutes of chapters 90.03 and 90.44 RCW. Four provisions within 1

Chapter 90.03 RCW address minimum flows and/or closures: 2

3

1. Streams and lake shall have instream flows or levels protected. 4 5

Under RCW 90.03.005, it is the policy of the state that waters shall be retained 6

within streams and lakes in sufficient quantity and quality to protect instream and 7

natural values and rights. RCW 90.03.005 states: 8

9 It is the policy of the state to promote the use of the public waters in 10 a fashion which provides for obtaining maximum net benefits 11 arising from both diversionary uses of the state's public waters and 12 the retention of waters within streams and lakes in sufficient 13 quantity and quality to protect instream and natural values and 14 rights. . . .. 15

16

2. Minimum flows set by rule constitute existing water rights that must 17 be protected. 18

19 In contrast to surface water closures, minimum flows established by rule are 20

findings by Ecology that further appropriations can be made so long as certain 21

base flows are maintained. Minimum flows set by rule are an appropriation with a 22

priority date as of the effective date of the rule. 67 23

24

Under RCW 90.03.345, minimum flows or levels established constitute 25

appropriations. RCW 90.03.345 states: 26

27 The establishment of . . . minimum flows or levels under RCW 28 90.22.010 or 90.54.040 shall constitute appropriations within the 29 meaning of this chapter with priority dates as of the effective dates 30 of their establishment. . . .. (Emphasis added). 31

67 RCW 90.03.345.


1

Minimum flows carry the same protections as any other existing water right, 2

pursuant to RCW 90.44.030 and RCW 90.03.290. 68 The Department may issue 3

rights only if existing rights, including instream flows, will not be impaired. 69 The 4

Act expressly protects minimum flows from “withdrawals of water.” Specifically, 5

RCW 90.54.020(3) provides: 6 7

(3) The quality of the natural environment shall be protected and, 8 where possible, enhanced as follows: 9

10 (a) Perennial rivers and streams of the state shall be retained 11

with base flows necessary to provide for preservation of 12 wildlife, fish, scenic, aesthetic and other environmental 13 values, and navigational values. Lakes and ponds shall be 14 retained substantially in their natural condition. Withdrawals 15 of water which would conflict therewith shall be authorized 16 only in those situations where it is clear that overriding 17 considerations of the public interest will be served. 70 18

19 In Postema v. PCHB, 71 the Department of Ecology denied a number of water 20

permits for groundwaters on the basis that groundwater sources were in 21

hydraulic continuity with surface water sources closed to further appropriations. 22

On appeal of Ecology’s decision by the applicants, the PCHB ruled that a 23

groundwater connection exists between the proposed groundwater source and 24

68 To hold otherwise would also potentially impact water rights that have been conditioned on the minimum flows. For example, if water rights junior to the minimum flows were issued, the junior water right holders would have to cease using their water once the flow of the river was below the minimum flow. If Ecology were to issue ground water rights that caused the minimum flows to be reduced, the junior water right holder would have to cease using his/her water right more often, thus impairing the junior water right holder’s right as well as the minimum flow.

69 RCW 90.03.290.

70 Emphasis added. RCW 90.54.020

71 Postema v. Pollution Control Hearing Board, ___ Wn.2d ___, ___, 11 P.3d 726 (2000).


closed surface water body. In all of the basins involved in Postema, Ecology had 1

either set minimum instream flows or had closed surface waters to further 2

appropriation. 3

4 The State Supreme Court found: 5

6 We hold that hydraulic continuity of an aquifer with a stream having 7 unmet minimum flows is not, in and of itself, a basis for denial of a 8 groundwater application . . .. However, where there is hydraulic 9 continuity and withdrawal of groundwater would impair existing 10 surface water rights, including minimum flow rights, then denial is 11 required. Ecology may use new information and scientific 12 methodology as it becomes available and scientifically acceptable 13 for determining hydraulic continuity and effect of groundwater 14 withdrawals on surface waters. 15

16

3. Department of Ecology has exclusive authority to set flows. 17 18

Under RCW 90.03.247, the Department of Ecology has exclusive authority to set 19

minimum instream flows. RCW 90.03.247 states: 20

21 Whenever an application for a permit to make beneficial use of 22 public waters is approved relating to a stream or other water body 23 for which minimum flows or levels have been adopted and are in 24 effect at the time of approval, the permit shall be conditioned to 25 protect the levels or flows. No agency may establish minimum 26 flows and levels or similar water flow or level restrictions for any 27 stream or lake of the state other than the department of ecology 28 whose authority to establish is exclusive, as provided in chapter 29 90.03 RCW and RCW 90.22.010 and 90.54.040. The provisions of 30 other statutes, including but not limited to RCW 75.20.100 and 31 chapter 43.21C RCW, may not be interpreted in a manner that is 32 inconsistent with this section. In establishing such minimum flows, 33 levels, or similar restrictions, the department shall, during all stages 34 of development by the department of ecology of minimum flow 35 proposals, consult with, and carefully consider the 36 recommendations of, the department of fish and wildlife, the 37 department of community, trade, and economic development, the 38


department of agriculture, and representatives of the affected Indian 1 tribes. (Emphasis added). 2

3

4. Ecology can prohibit further appropriations if water is not available, 4 would impair existing rights, or would be detrimental to the public 5 welfare. 6

7 Procedures for the establishment of instream flows can be found in RCW 8

90.03.250340. Section 90.03.290 is the heart of the procedure that prohibits 9

further appropriations if water is not available, would impair existing rights, or 10

would be detrimental to the public welfare. RCW 90.03.290 states: 11

12

When an application complying with the provisions of this chapter 13 and with the rules and regulations of the department has been filed, 14 the same shall be placed on record with the department, and it shall 15 be its duty to investigate the application, and determine what water, 16 if any, is available for appropriation, and find and determine to what 17 beneficial use or uses it can be applied. If it is proposed to 18 appropriate water for irrigation purposes, the department shall 19 investigate, determine and find what lands are capable of irrigation 20 by means of water found available for appropriation. If it is 21 proposed to appropriate water for the purpose of power 22 development, the department shall investigate, determine and find 23 whether the proposed development is likely to prove detrimental to 24 the public interest, having in mind the highest feasible use of the 25 waters belonging to the public. If the application does not contain, 26 and the applicant does not promptly furnish sufficient information on 27 which to base such findings, the department may issue a 28 preliminary permit, for a period of not to exceed three years, 29 requiring the applicant to make such surveys, investigations, 30 studies and progress reports, as in the opinion of the department 31 may be necessary. If the applicant fails to comply with the 32 conditions of the preliminary permit, it and the application or 33 applications on which it is based shall be automatically canceled 34 and the applicant so notified. If the holder of a preliminary permit 35 shall, before its expiration, file with the department a verified report 36 of expenditures made and work done under the preliminary permit, 37 which, in the opinion of the department, establishes the good faith, 38 intent and ability of the applicant to carry on the proposed 39


development, the preliminary permit may, with the approval of the 1 governor, be extended, but not to exceed a maximum period of five 2 years from the date of the issuance of the preliminary permit. The 3 department shall make and file as part of the record in the matter, 4 written findings of fact concerning all things investigated, and if it 5 shall find that there is water available for appropriation for a 6 beneficial use, and the appropriation thereof as proposed in the 7 application will not impair existing rights or be detrimental to the 8 public welfare, it shall issue a permit stating the amount of water to 9 which the applicant shall be entitled and the beneficial use or uses 10 to which it may be applied; Provided, that where the water applied 11 for is to be used for irrigation purposes, it shall become appurtenant 12 only to such land as may be reclaimed thereby to the full extent of 13 the soil for agricultural purposes. But where there is no 14 unappropriated water in the proposed source of supply, or where 15 the proposed use conflicts with existing rights, or threatens to prove 16 detrimental to the public interest, having due regard to the highest 17 feasible development of the use of the waters belonging to the 18 public, it shall be the duty of the department to reject such 19 application and refuse to issue the permit asked for. If the permit is 20 refused because of conflict with existing rights and such applicant 21 shall acquire same by purchase or condemnation under RCW 22 90.03.040, the department may thereupon grant such permit. Any 23 application may be approved for a less amount of water than that 24 applied for, if there exists substantial reason therefor, and in any 25 event shall not be approved for more water than can be applied to 26 beneficial use for the purposes named in the application. In 27 determining whether or not a permit shall issue upon any 28 application, it shall be the duty of the department to investigate all 29 facts relevant and material to the application. After the department 30 approves said application in whole or in part and before any permit 31 shall be issued thereon to the applicant, such applicant shall pay 32 the fee provided in RCW 90.03.470: Provided further, that in the 33 event a permit is issued by the department upon any application, it 34 shall be its duty to notify the director of fish and wildlife of such 35 issuance. (Emphasis supplied.) 36

37

The Washington Supreme Court summarized this section in Stempel 38

v. Department of Water Resources: 72 39

72 82 Wn. 2d 109, 115 (1973).


1

The statute requires the department to make essentially four 2 determinations prior to the issuance of a water use permit: 3

4 (1) what water, if any, is available; 5 (2) to what beneficial uses the water is to be applied; 6 (3) will the appropriation impair existing rights; and 7 (4) will the appropriation detrimentally affect the public welfare. 8

9

Each of these factors is a standalone test. If any of these factors cannot be met, 10

no water right can issue. 11

12

The same appropriation procedure applies to groundwater. RCW 90.44.020 13

integrates surface (Chapter 90.03) and ground water (Chapter 90.44) 14

procedures: 15

16

This chapter regulating and controlling ground waters of the state of 17 Washington shall be supplemental to chapter 90.03 RCW, which 18 regulates the surface waters of the state, and is enacted for the 19 purpose of extending the application of such surface water statutes 20 to the appropriation and beneficial use of ground waters within the 21 state. 22

23

Section 90.44.060 (1945, amended 1987) puts that integration into effect: 24

25

Applications for permits for appropriation of ground water shall be 26 made in the same form and manner provided in RCW 90.03.250 27 through 90.03.340, as amended, the provisions of which sections 28 are hereby extended to govern and to apply to ground water, or 29 ground water right certificates and to all permits that shall be issued 30 pursuant to such applications, and the rights to the withdrawal of 31 ground water acquired thereby shall be governed by RCW 32 90.03.250 through 90.03.340, inclusive. . . . 33

34

There are, however, some special provisions for groundwater: Most important, 35

“withdrawal of public ground waters for stockwatering purposes, or for the 36


watering of a lawn or of a noncommercial garden not exceeding onehalf acre in 1

area, or for single or group domestic uses in an amount not exceeding five 2

thousand gallons a day” is exempt from the permit requirement. 73 3

4

Instream flows for fish are implicated in all four questions the Department of 5

Ecology is required to answer in the surface and groundwater appropriation 6

process. In almost the State’s entire freshwater anadromous habitat, fish stocks 7

are critical and the relationships between instream flow, all five elements of fish 8

habitat, and fish production are “facts relevant and material to the application” 9

which RCW 90.03.290 requires the department to investigate. The 10

administrative record for any appropriation of water from that habitat should 11

contain proof that the department obtained a complete investigation of instream 12

flows and “written findings of fact concerning all things investigated,” including 13

findings: 14

15

(1) that there is water in the stream, lake or aquifer that is not presently being 16 used for anadromous fish production; 17

18 (2) that there is no beneficial use for anadromous fish production to which 19

presently unused water can be applied; 20 21

(3) that the appropriation will not impair Indian tribes’ “right[s] to water 22 necessary to maintain fish . . . in order to fulfill the Indians’ treaty right to 23 fish . . .;” 74 and 24

25 (4) that the appropriation will not detrimentally affect the public interest in 26

fisheries production. 27 28

73 RCW 90.44.050 (1945, amended 1947 and 1987).

74 Department of Ecology v. Yakima Reservation Irrigation District, 121 Wn. 2d at 279.


E. Ecology can establish instream flow rules under the Minimum Water 1 Flows and Levels Act of 1967. 2

3 In addition to the procedures adopted pursuant to RCW 90.03, the Minimum 4

Water Flows and Levels Act, passed in 1967, authorized Ecology to establish 5

minimum water flows and levels by administrative rule for streams and lakes 6

when requested by the state departments of Fisheries or Wildlife. Ecology may 7

also establish such flows or levels on its own initiative. Public notice and hearings 8

are required prior to adoption of minimum flows or levels. 75 9

10 The Department of Ecology can appropriate, on behalf of the public, water for 11

instream flows. The procedure is laid out in RCW Chapters 90.22 and 90.03. 12

Rather than attempt to summarize, I will simply quote the pertinent parts: 13

14 The Department of Ecology may establish minimum waters flows or 15 levels for streams, lakes, or other public waters for the purposes of 16 protecting fish, game, birds or other wildlife resources, or 17 recreational or aesthetic values of said public waters whenever it 18 appears to be in the public interest to establish the same. In 19 addition, the Department of Ecology shall, when requested by the 20 Department of Fish and Wildlife to protect fish, game or other 21 wildlife resources under the jurisdiction of the requesting state 22 agency, or if the Department of Ecology finds it necessary to 23 preserve water quality, establish such minimum flows or levels as 24 are required to protect the resource or preserve the water quality 25 described in the request or determination. Any request submitted 26 by the Department of Fish and Wildlife shall include a statement 27 setting forth the need for establishing a minimum flow or level. 28 When the Department acts to preserve water quality, is shall 29 include a similar statement with the proposed rule filed with the 30 code reviser. This section shall not apply to waters artificially 31 stored in reservoirs, provided that in the granting of storage permits 32 by the Department of Ecology in the future, full recognition shall be 33

75 RCW 90.22.010040 (1992).


given to downstream minimum flows, if any there may be, which 1 have theretofore been established hereunder. 76 2

3 Flows or levels authorized for establishment under RCW 90.22.010, or 4 subsequent modification thereof by the Department shall be provided for 5 through the adoption of rules. [Provides for notice and hearing in the 6 affected county(ies).] 77 7

8 The establishment of levels and flows pursuant to RCW 90.22.010 9 shall in no way affect existing water and storage rights and the use 10 thereof, including but not limited to rights relating to the operation of 11 any hydroelectric or water storage reservoir or related facility. No 12 right to divert or store public waters shall be granted by the 13 Department of Ecology which shall conflict with regulations adopted 14 pursuant to RCW 90.22.010 and 90.22.020 establishing flows or 15 levels. All regulations establishing flows or levels shall be filed in a 16 “Minimum Water Level and Flow Register” in the Department of 17 Ecology. 78 18

19 Whenever an application for a permit to make beneficial use of 20 public waters is approved relating to a stream or other water body 21 for which minimum flows or levels have been adopted and are in 22 effect at the time of approval, the permit shall be conditioned to 23 protect flows or levels. No agency may establish minimum flows or 24 levels or similar water flow or level restrictions for any stream or 25 lake of the State other than the Department of Ecology, whose 26 authority to establish is exclusive, as provided in Chapter 90.03 27 RCW and RCW 90.22.010 and 90.54.040. The provisions of other 28 statutes, including but not limited to RCW 75.20.100 and Chapter 29 43.21C RCW, may not be interpreted in a manner that is 30 inconsistent with this section. In establishing such minimum flows, 31 levels, or similar restrictions, the Department shall, during all stages 32 of development by the Department of Ecology of minimum flow 33 proposals, consult with, and carefully consider the 34 recommendations of, the Department of Fish and Wildlife, the State 35

76 RCW 90.22.010. (Emphasis supplied).


78 RCW 90.22.030. (Emphasis added).


Energy Office, the Department of Agriculture, and representatives 1 of the affected Indian tribes. . . . . 79 2

3 By December 31, 1993, the Department of Ecology shall, in 4 cooperation with the Indian tribes, and the Department of Fish and 5 Wildlife, establish a statewide list of priorities for evaluation of 6 instream flows. In establishing these priorities, the Department 7 shall consider the achievement of wild salmonid production as its 8 primary goal. 9

10 The priority list shall be presented to the appropriate legislative 11 committees and to the water resources forum by December 31, 12 1993. 80 13

14 Under this statute, Fisheries and Wildlife requested minimum flow establishment 15

on several dozen streams, 81 but only one minimum flow was established under 16

this law alone. Ecology lacked the necessary resources and expertise to 17

effectively implement this statute. 82 18

19

F. Ecology can establish instream flow rules under the Water 20 Resources Act of 1971. 21

22 The Water Resources Act of 1971 83 is a more comprehensive law than the 1967 23

Act. It provides specific direction to Ecology for developing a statewide water 24

resources program addressing all beneficial uses including instream flows. 84 It 25



81 Public Disclosure Request

82 Slattery

83 RCW 90.54 et seq.

84 RCW 90.54.020(1).


requires that "base flows" 85 be retained in perennial streams except in cases of 1

"overriding considerations of the public interest." 86 The Act also declares a wide 2

variety of water uses including instream uses to be beneficial, and requires that 3

water for future uses be allocated to achieve "maximum net benefits" for the 4

people of the state. 87 5

6

It requires that the state water resources program be implemented by Ecology 7

through rulemaking procedures. Under WAC 173–500–020, Ecology will 8

provide guidelines for water resource planning and where appropriate: 9

10

(1) Identify and foster development of water resource projects; 11 12

(2) Declare preferences or priorities of use by categories; 13 14

(3) Set forth streams closed to future appropriation; 15 16

(4) Establish flows on perennial streams of the state in amounts 17 necessary to provide for preservation of wildlife, fish, scenic, 18 aesthetic, and other environmental values, and navigational 19 values; 20

21 (5) Allocate quantities for beneficial uses; 22

23 (6) Reserve water for future beneficial use; 24

25 (7) Withdraw waters from additional appropriation when sufficient 26

information or data are lacking for the making of sound 27 decisions; 28

29 (8) Establish criteria for limit beyond which further appropriation will 30

not be made; 31

85 RCW 90.54.020 (3)(a).

86 Id.

87 RCW 90.54.020(2).


1 (9) Designate areas within the state to be used for management 2

purposes; and 3 4

(10) Be guided by the declaration of fundamentals contained in 5 RCW 90.54.020. 6

7

Other important provisions require that the state vigorously represent its interests 8

before federal and regional authorities and that the natural interrelationship 9

between surface water and groundwater be recognized. 88 10

G. Ecology has authority to condition water right permits to protect 11 instream flows. 12

Using general permit conditioning authority, Ecology and its predecessor 13

agencies have attached low flow conditions to many new water rights on 14

approximately 500 streams (mostly smaller streams) have been administratively 15

denied or conditioned with instream flows on a casebycase basis since 1949. 89 16

Conditioned permits require the curtailment of the diversion when flows fall below 17

a specified level. Those interests desiring a more systematic approach to water 18

allocation and instream flow protection eventually viewed this casebycase 19

approach as inadequate. The 1949 law has no provision for public involvement in 20

the process of denying permits or attaching flow conditions to protect fish. 90 21

22

H. Ecology can protect instream flows based on recommendations 23 provided by the Washington Department of Fish and Wildlife 24 commenting authority. 25

88 RCW 90.54.010.910 (1992).

89 Washington State Department of Ecology, Washington’s Water Resources Program:Eigth Biennial Report to the Legislature 5 (1985 and 1986), Reported in Slattery.

90 Slattery.


1

The Washington Legislature minimally responded to concerns about the effects 2

of water development on fish by amending the State Fisheries Code in 1949. 3

The legislature amended the state's fisheries code (Chapter 75.20 RCW) to tie 4

water allocation to the needs of fish for water and to require consultation between 5

the state agencies managing fish and water. Included was a new provision 6

requiring that the state water management agency, Department of Ecology, 7

solicit recommendations from the state department of Fish and Wildlife, among 8

other agencies, 91 regarding the disposition of proposed surface water 9

appropriations. 10

11

Subsequent water permits to established instream flow rules must be 12

“conditioned to protect the levels or flows.” 92 However, Ecology must only 13

“consult with” and “carefully consider” recommendations of other agencies and 14

tribal governments that are specifically charged with comanagement and 15

protection of fish and wildlife resources. Under RCW 90.03.247: 16 17

No agency may establish minimum flows and levels or similar water 18 flow or level restrictions for any stream or lake of the state other than 19 the department of ecology . . .. In establishing such minimum 20 flows, levels, or similar restrictions, the department shall, during all 21 stages of development by the department of ecology of minimum 22 flow proposals, consult with, and carefully consider the 23 recommendations of, the department of fish and wildlife, the 24 department of community, trade, and economic development, the 25 department of agriculture, and representatives of the affected Indian 26 tribes. Nothing herein shall preclude the department of fish and 27 wildlife, the department of community, trade, and economic 28 development, or the department of agriculture from presenting its 29 views on minimum flow needs at any public hearing or to any person 30 or agency, and the department of fish and wildlife, the department of 31

91 See RCW 90.03.247.

92 RCW 90.03.247.


community, trade, and economic development, and the department 1 of agriculture are each empowered to participate in proceedings of 2 the federal energy regulatory commission and other agencies to 3 present its views on minimum flow needs. 93 4

5

In response to its limited authorities, WDFW has issued hundreds of letters 6

asking Ecology to deny or condition individual water rights to protect aquatic 7

species. These letters often function as minimum flows or outright closures 8

limiting all subsequent applications for new water rights on the subject streams. 94 9

10

The statute does not mandate but allows Ecology to deny a permit application if 11

the proposed appropriation would result in lowering the flow of water below that 12

necessary to adequately support food or game fish populations in a stream. 13

Existing water rights were not to be affected. 14

15

RCW 75.20.050 states: 16

It is the policy of this state that a flow of water sufficient to support 17 game fish and food fish populations be maintained at all times in 18 the streams of this state. 19

The director of ecology shall give the director notice of each 20 application for a permit to divert or store water. The director has 21 thirty days after receiving the notice to state his or her objections to 22 the application. The permit shall not be issued until the thirtyday 23 period has elapsed. 24

The director of ecology may refuse to issue a permit if, in the 25 opinion of the director, issuing the permit might result in lowering 26 the flow of water in a stream below the flow necessary to 27 adequately support food fish and game fish populations in the 28 stream. 29

93 RCW 90.03.247 (Emphasis added).

94 Ecology, 1998b.


The provisions of this section shall in no way affect existing water 1 rights. 2

Ecology maintains a log of surface water source limitations based on these 3

recommendations. 95 The Surface Water Source Limitation (SWSL) list are 4

recommendations provided by WDFW to DOE and are used as guideline 5

documents for decisions on water right applications. Ecology has used the 6

recommendations to deny issuance of new water rights. 96 7

8 Historically, some water right applications have been denied or 9 issued with provisioned flows by Ecology with reference to letters 10 received from WDFW. Denied applications on a surface water 11 source do not administratively close those sources to future 12 appropriation. 97 13

14 Appendix C includes a map that shows the location and the number of SWSL 15

provisioned water rights in the State totaled by WRIA, and the WRIA’s in the 16

State with Instream Flows and Closures set by Regulation. 17

I. In making ground water allocation decisions, Ecology must consider 18 the effect the proposed ground water withdrawal will have on 19 streams closed by rule or on minimum flow water rights for fish. 20

21 Hydraulic continuity, which is the interconnection between ground water and 22

surface water, is widely accepted within the scientific community and has been 23

acknowledged by the Legislature. 98 24

95 See Appendix C

96 See, e.g., Coon v Ecology, PCHB No. 7974 (1980).

97 Chris Anderson, Department of Ecology Memorandum, February 14, 2001 re: Surface Water Source Limitations (SWSL’s).

98 RCW 90.44.030, 90.54.020(8).


The rights to appropriate the surface waters of the state and the 1 rights acquired by the appropriation and use of surface waters shall 2 not be affected or impaired by any of the provisions of this 3 supplementary chapter and, to the extent that any underground 4 water is part of or tributary to the source of any surface stream or 5 lake, or that the withdrawal of ground water may affect the flow of 6 any spring, water course, lake, or other body of surface water, the 7 right of an appropriator and owner of surface water shall be 8 superior to any subsequent right hereby authorized to be acquired 9 in or to ground water. 99 10

11 In passing the ground water code in 1945, the Legislature required that when 12

Ecology makes water right decisions, it must determine whether hydraulic 13

continuity exists and whether the withdrawal of ground water would cause an 14

impairment of the surface water source. 15

16

The Legislature again acknowledged the existence of hydraulic continuity 26 17

years later when it passed the 1971 Water Resource Act. The Legislature 18

stated: 19

Full recognition shall be given in the administration of water 20 allocation and use programs to the natural interrelationships of 21 surface and ground waters. 22

23 (Emphasis added.) 100 This enactment emphasizes the requirement that Ecology 24

consider hydraulic continuity in making water right decisions. The Act also 25

expressly protects minimum flows from “withdrawals of water”. 101 These statutes 26

99 RCW 90.44.030 (Emphasis added).

100 RCW 90.54.020(9).

101 RCW 90.54.020(3). Contrary to Appellants’ assertions, the fact that the rule establishes minimum stream flows in the surface waters, not ground waters, cannot be used as an excuse to grant ground water rights that would otherwise continue to deplete the base flows in the surface water source. To do so would ignore this statute and the legislative directive to consider the natural interrelationship of surface and ground waters in allocation decisions. RCW 90.54.020(9).


are clear legislative expressions that ground water withdrawals can be restricted 1

if they conflict with the minimum flows or stream closures. 102 2

3

The courts in two significant cases have also recognized the existence of 4

hydraulic continuity and the requirement that it be considered in water right 5

decisions.103 In Hubbard, the appellants asserted that a .004% reduction in 6

stream flows was not significant enough to condition a new water right with 7

minimum flows. The court held: 8 9

Any effect on the river during the period it is below the minimum 10 instream flow level conflicts with existing senior rights (such as the 11 minimum flow level itself) and may be reasonably considered 12 detrimental to the public interest [footnote omitted]. In such cases, 13 Ecology is directed to reject the application and refuse to issue 14 permits. 15

16 (Citations omitted, emphasis added.). 104 17

102 Ecology does not assert that hydraulic continuity equals impairment. Ecology does assert that when it has a rule that water from a particular surface water source is not available and that further reductions in that source would be detrimental to the public welfare, it can rely upon its rule and is not required to prove these facts on a casebycase basis. Otherwise, the rule would be superfluous. The very purpose of having the rule is for broad application instead of having to prove matters on a casebycase basis. See discussion on pp. 5463 of this brief. As such, where there is a rule closing certain waters to further depletion and where there is uncontroverted evidence that a proposed ground water withdrawal will result in reduction of the closed surface water source, by operation of law, the ground water right must be denied, because no water is available and further reductions would be detrimental to the public welfare.

103 Hubbard v. Ecology; Rettkowski v. Department of Ecology, 122 Wn.2d 219, 226, n.1, 858 P.2d 232 (1993), reconsideration denied.

104 Hubbard, 86 Wn. App. at 12526. In Hubbard, Ecology was able to grant a conditional right rather than denying the right because of several factors that enabled Ecology to regulate the right to protect senior rights. The factors included the close proximity of the wells to the river, significant knowledge regarding the timing of the effects, and the presence of measuring devices and other factors. Not all of those factors are present with reference to the


1

In Rettkowski, this Court stated that RCW 90.44.030: 2 3

emphasizes the potential connections between ground water and 4 surface water, and makes evident the Legislature’s intent that 5 ground water rights be considered a part of the overall water 6 appropriation scheme, subject to the paramount rule of ‘first in time, 7 first in right.’ 105 8

9 In summary, the law requires Ecology to consider the effects of ground water 10

pumping on existing water rights, including minimum flows, and to consider the 11

effects of ground water pumping on stream closures. 12

J. Ecology can close streams to protect fish. 13

14

In adopting the 1971 Water Resource Act, the Legislature instructed Ecology to 15

adopt rules to implement the intent of the Act. 106 In response, Ecology 16

Appellants’ wells. In most cases, including the present appeals, Ecology is unable to grant a conditional water right because the timing of the impact of the withdrawal on the surface water right is unknown. Mr. Wildrick, a hydrogeologist with Ecology recognized that the issue of timing is difficult. Specifically, Mr. Wildrick stated:

The timing issue was fully considered and discussed among staff at all regional offices. We considered approving applications for seasonal pumping if the timing of surface water effects could be predicted with reasonable reliability and if the effects occurred at such times as to not impair senior rights during a closure or minimum instream flow period. Unfortunately, we had few applications for which this could be easily evaluated; see also City of Albuquerque v. Reynolds, 71 N.M. 428, 43940, 379 P.2d 73 (1962) (effects from ground water pumping on surface water sources may continue even after pumping has ceased).

105 Rettkowski, 122 Wn.2d at 226, n.1.

106 RCW 90.54.040(2). Under the 1971 Water Resource Act (Act), Ecology has broad guidance to manage the state’s waters and to protect and, “where possible, enhance” base flows which are necessary for the “preservation of


promulgated rules that closed certain streams to further depletion. 107 Stream 1

closures are rules of general applicability, finding that water is not available from 2

the surface water source and that further depletions from that source would 3

impair existing rights and would be detrimental to the public welfare. For 4

example, WAC 173507030(2) (the Snohomish WRIA closure) provides: 5

6

The department having determined there are no waters available 7 for further appropriation through the establishment of rights to use 8 water consumptively closes the following streams to further 9 consumptive appropriation for the periods indicated. These 10 closures confirm surface water source limitations previously 11 established administratively under the authority of chapter 90.03 12 RCW and RCW 75.20.050. 108 13

14

These closures provide a rule that guides future allocation decisions (i.e., no 15

further allocations are allowed). These closures constitute a “uniform conclusion” 16

that the surface water is not available and that further surface water depletion 17

would impair existing rights and would be detrimental to the public welfare. 18

19

wildlife, fish, scenic, aesthetic and other environmental values, and navigational values.” (Emphasis added.) RCW 90.54.020(3)(a).

107 Stream closures are not specifically authorized by statute. The basis of authority claimed by Ecology for closing streams is the State Water Code, RCW 90.03.290, wherein it is provided that any appropriation permit may be denied if it would be detrimental to existing water rights or the public interest. On streams that have been closed, Ecology is still obligated to fully evaluate and address appropriation applications, though they would normally be denied. Slattery at fn 22.

108 Emphasis added. WAC 173507030(2). The rule closing certain waters in the GreenDuwamish watershed uses identical language. WAC 173509040. While the CedarSammamish rule closing certain streams does not use the identical language of the Snohomish and GreenDuwamish rules, it is clear that the purpose of the closures in the CedarSammamish basin are the same – the protection of fish and natural values and rights. WAC 173508030(1).


A stream closure does not constitute an appropriation. An appropriation carries 1

with it a specific quantity of water and priority date. 109 These elements are 2

required so that in times of drought, Ecology can regulate the junior rights for the 3

protection of the senior water users. 110 A stream closure does not quantify the 4

amount of water left in the stream but merely recognizes that what water is left in 5

the stream is insufficient to meet the existing water rights and may provide an 6

adequate base flow for the preservation of environmental and navigational 7

values. 111 A stream closure ensures that new or junior water rights will not be 8

issued that would further deplete the already allocated flows. 9

K. Ecology Has The Authority To Address Cumulative Impacts for the 10 protection of instream flows. 11

12 The water code provides that: 13

14 Allocation of water among potential uses and users shall be based 15 generally on the securing of the maximum net benefits for the people 16 of the state. Maximum net benefits shall constitute total benefits less 17 costs including opportunities lost. 112 18

19 This provision of the code allows Ecology to evaluate the highest and best use of 20

the water regardless of an applicant’s place in line. This statute also allows 21

Ecology to look forward to future demand for the water and to consider the future 22

cumulative impacts that many small diversions may create. 23

24 As noted by the State Supreme Court: 25

109 Department of Ecology v. Grimes, 121 Wn.2d 459, 467, 852 P.2d 1044 (1993).

110 RCW 43.21A.064(3).

111 See RCW 90.03.345 (closures are not listed as appropriations).

112 RCW 90.54.020(2) (Emphasis added). The authors are unaware of any studies that have evaluated whether those basins that are closed include sufficient flows necessary for adequate protection of fish and wildlife resources.


1 Logic and common sense suggest that numerous projects, each 2 having no significant effect individually, may well have very significant 3 effects when taken together. This concept of cumulative 4 environmental harm has received legislative and judicial 5 recognition. 113 6

7

While this ruling was made in the context of a Shoreline Management Act appeal, 8

the logic of this opinion applies equally to decisions under the water code. There is 9

nothing inherent in the water code that would prevent a cumulative impact analysis, 10

including the protections afforded to water right applicants to have a decision made 11

on their application in the order in which it is received. 12

13

In summary, there is no support for the public welfare test to be so narrowly 14

interpreted. The right to an applicant’s place in line does not abrogate Ecology’s 15

obligation to fully evaluate the public welfare, even when doing so requires a 16

cumulative impact analysis. Expressions of the public interest will be sought at 17

all stages of water planning and allocation discussions.114 18

L. Ecology has enforcement powers to protect instream flows. 19

20 Under RCW 90.03.400, it is a crime to use unauthorized or waste water. RCW 21 90.03.400 states: 22

23 The unauthorized use of water to which another person is entitled 24 or the wilful or negligent waste of water to the detriment of another, 25 shall be a misdemeanor. The possession or use of water without 26 legal right shall be prima facie evidence of the guilt of the person 27 using it. It shall also be a misdemeanor to use, store or divert any 28 water until after the issuance of permit to appropriate such water. 29

30

113 Hayes v. Yount, 87 Wn.2d at 28788.

114 RCW 90.54.020(2), (10).


Under RCW 90.03.410, it is also a crime to use water after being denied a water 1

permit. RCW 90.04.410 states: 2

3 (1) Any person or persons who shall willfully . . . use or conduct 4 water into or through his ditch, which has been lawfully denied him 5 by the water master or other competent authority, . . . shall be guilty 6 of a misdemeanor . . .. 7

8 (2) Any person or persons who shall willfully or unlawfully take or 9 use water, or conduct the same into his ditch or to his land, . . . shall 10 be guilty of a misdemeanor . . .. 11

12 (3) The use of water through such structure or structures, appliance 13 or appliances hereinbefore named after its or their having been 14 interfered with, injured or destroyed, shall be prima facie evidence 15 of the guilt of the person using it. 16

17 Punishment of misdemeanor is defined in RCW 9.92.030. RCW 9.92.030 18 states: 19

Every person convicted of a misdemeanor for which no punishment 20 is prescribed by any statute in force at the time of conviction and 21 sentence, shall be punished by imprisonment in the county jail for a 22 maximum term fixed by the court of not more than ninety days, or 23 by a fine in an amount fixed by the court of not more than one 24 thousand dollars or both such imprisonment and fine. (Emphasis 25 added).115 26

Under RCW 90.03.600, the Department of Ecology has civil authorities against 27

those who illegally use water. RCW 90.03.600 states: 28

29 . . . the power is granted to the department of ecology to levy civil 30 penalties of up to one hundred dollars per day for violation of any 31 of the provisions of this chapter and chapters 43.83B, 90.22, and 32 90.44 RCW, and rules, permits, and similar documents and 33 regulatory orders of the department of ecology adopted or issued 34 pursuant to such chapters. The procedures of RCW 90.48.144 35

115 PDR re: fines and misdemeanors


shall be applicable to all phases of the levying of a penalty as well 1 as review and appeal of the same. (Emphasis added). 2

3 4

Under RCW 90.44.120, it is criminal if a person uses or wastefully uses 5

unauthorized groundwater. RCW 90.44.120 states: 6

The unauthorized use of ground water to which another person is 7 entitled, or the willful or negligent waste of ground water, . . . shall 8 be a misdemeanor. 9

M. Trust Water Rights 10

11

The state may itself hold instream rights through its Trust Water Rights 12

Program. 116 Existing water users may make a voluntary transfer of offstream 13

rights to instream flows via the state trust water right statutes. 117 Trust water 14

rights are a form of transferred right, retain the priority date of the original right, 15

and may be used to dedicate water efficiency savings to instream flows. 118 Trust 16

water rights are held and managed by the Department of Ecology. The trust 17

statutes are intended to encourage conservation and efficiency improvements in 18

water delivery and application, making the resultant water savings available for 19

transfer to other purposes. To date, no trust water rights have been fully created, 20

although several applications are pending. 21

22 Under RCW 90.42.040: 23

24

116 RCW 90.48.040.

117 RCW 90.42 and 90.38.

118 Nelson, C.G., 1995. “Washington State’s Trust Water Rights Program.” Denver Conference Proceedings, U.S. Committee on Irrigation and Drainage. 10 pp.


(1) All trust water rights acquired by the state shall be placed in the 1 state trust water rights program to be managed by the department. 2 Trust water rights acquired by the state shall be held or authorized 3 for use by the department for instream flows, irrigation, municipal, 4 or other beneficial uses consistent with applicable regional plans for 5 pilot planning areas, or to resolve critical water supply problems. 6

(2) The department shall issue a water right certificate in the name of 7 the state of Washington for each permanent trust water right 8 conveyed to the state indicating the reach or reaches of the stream, 9 the quantity, and the use or uses to which it may be applied. A 10 superseding certificate shall be issued that specifies the amount of 11 water the water right holder would continue to be entitled to as a 12 result of the water conservation project. The superseding certificate 13 shall retain the same priority date as the original right. For 14 nonpermanent conveyances, the department shall issue certificates 15 or such other instruments as are necessary to reflect the changes in 16 purpose or place of use or point of diversion or withdrawal. 17 Water rights for which such nonpermanent conveyances are 18 arranged shall not be subject to relinquishment for nonuse. 19

(3) A trust water right retains the same priority date as the water right 20 from which it originated, but as between them the trust right shall be 21 deemed to be inferior in priority unless otherwise specified by an 22 agreement between the state and the party holding the original right. 23

(4) Exercise of a trust water right may be authorized only if the 24 department first determines that neither water rights existing at the 25 time the trust water right is established, nor the public interest will be 26 impaired. If impairment becomes apparent during the time a trust 27 water right is being exercised, the department shall cease or modify 28 the use of the trust water right to eliminate the impairment. 29

30

(5) Before any trust water right is created or modified, the department 31 shall, at a minimum, require that a notice be published in a 32 newspaper of general circulation published in the county or counties 33 in which the storage, diversion, and use are to be made, and in 34 other newspapers as the department determines is necessary, once 35 a week for two consecutive weeks. At the same time the 36 department shall send a notice containing pertinent information to all 37 appropriate state agencies, potentially affected local governments 38


and federally recognized tribal governments, and other interested 1 parties. 2

Under RCW 90.42.050, the Department of Ecology was directed to develop 3

guidelines for the trust water rights program. 119 4

N. Ecology can establish instream flows per the recommendations of 5 watershed planning groups. 6

7

In 1998, the legislature enacted the Watershed Planning Act. 120 The legislature 8

felt that development of watershed plans for instream resources is best placed in 9

the hands of local people. The legislature believes that local residents have the 10

greatest knowledge of instream resource needs. 121 11

12

The Act provides that local watershed planning groups can recommend instream 13

flows to the Departtment for rulemaking. 122 Under RCW 90.82.080, the initiating 14

government may choose “by majority vote,” to include an instream flow 15

component in their watershed plan. 123 Under this section, insteam flow 16

recommendation would be developed in the following manner: 17

18 (i) If minimum instream flows have already been adopted by rule for 19 a stream within the management area, unless the members of the 20 local governments and tribes on the planning unit by a recorded 21 unanimous vote request the department to modify those flows, the 22 minimum instream flows shall not be modified under this chapter. If 23 the members of local governments and tribes request the planning 24

119 Trust Water Rights guidelines will be included in future drafts once the information is provided by the Department of Ecology.

120 RCW 90.82.

121 RCW 90.82.010.

122 RCW 90.82.080.

123 RCW 90.82.080 (1)(a),


unit to modify instream flows and unanimous approval of the 1 decision to modify such flow is not achieved, then the instream flows 2 shall not be modified under this section; 3

4 (ii) If minimum stream flows have not been adopted by rule for a 5 stream within the management area, setting the minimum instream 6 flows shall be a collaborative effort between the department and 7 members of the planning unit. The department must attempt to 8 achieve consensus and approval among the members of the 9 planning unit regarding the minimum flows to be adopted by the 10 department. 11

12 Approval is achieved if all government members and tribes that 13 have been invited and accepted on the planning unit present for a 14 recorded vote unanimously vote to support the proposed minimum 15 instream flows, and all nongovernmental members of the planning 16 unit present for the recorded vote, by a majority, vote to support the 17 proposed minimum instream flows. 18

19 . . . 20

21 (c) If approval is not achieved within four years of the date the 22 planning unit first receives funds from the department for 23 conducting watershed assessments under RCW 90.82.040, the 24 department may promptly initiate rule making under chapter 34.05 25 RCW to establish flows for those streams and shall have two 26 additional years to establish the instream flows for those streams 27 for which approval is not achieved. 28

29 (2)(a) Notwithstanding RCW 90.03.345, minimum instream flows 30 set under this section for rivers or streams that do not have existing 31 minimum instream flow levels set by rule of the department shall 32 have a priority date of two years after funding is first received from 33 the department under RCW 90.82.040, unless determined 34 otherwise by a unanimous vote of the members of the planning unit 35 but in no instance may it be later than the effective date of the rule 36 adopting such flow. 37 . . . 38

39 (3) Before setting minimum instream flows under this section, the 40 department shall engage in governmenttogovernment consultation 41 with affected tribes in the management area regarding the setting of 42 such flows. 43


1 Under RCW 90.82.120, it is intended by the legislature that watershed plans 2

“shall not be in conflict with existing state statutes, federal laws, or tribal treaty 3

rights.” 124 To approve a watershed plan, the planning unit may do so by 4

“consensus of all of the members of the planning unit or by consensus among 5

the members of the planning unit appointed to represent units of government and 6

a majority vote of the nongovernmental members of the planning unit.” 125 7

Subsequent to the decision of the planning group, counties may approve or reject 8

the proposed watershed plan for the management area, but may not amend it. 126 9

10

END OF CHAPTER— 11

12

124 RCW 90.82.120(1)(a).

125 RCW 90.82.130(1)(a).

126 RCW 90.82.130(2)(a).


VI. OTHER LAWS THE STATE COULD UTILIZES TO HELP PROTECT 1 INSTREAM FLOWS FOR FISH AND WILDLIFE 2

3

In addition to statutory authorities granted to the Department of Ecology to 4

protect instream flows, there are several mechanisms available to the 5

Department to protect instream flows under state common law and several 6

federal laws and treatyreserved rights of tribal governments. 7

A. Public Trust Doctrine Water Rights 8

1. Background 127 9 10

The public trust doctrine holds that the navigable waters within a state, the beds, 11

and banks of those waters, are public trust resources, rather than private 12

resources or stateowned resources. Public resources are held in trust by the 13

state for public uses, which traditionally were fishing, commerce, and navigation 14

and have been expanded in some jurisdictions to include maintenance of wildlife 15

and fish habitat, aesthetics, and recreation. 128 The public trust doctrine can be 16

seen as a servitude on ownership that limits the state's ability to act, or it can be 17

seen as a legal doctrine that establishes standing for the public to assert its 18

interests in the courts. The basis of the public trust doctrine as a citizen cause of 19

action, and an arena for judicial intervention, also includes the concepts of 20

separation of powers between the judiciary and the legislature. 129 21

127 A comprehensive description of the Public Trust Doctrine in Washington can be found in Ralph Johnson, et al., “The Public Trust Doctrine and Coastal Zone Management in Washington State.”127 For purposes of this paper I will try to summarize the most salient points.

128 National Audubon Soc'y v. Superior Court, 658 P.2d 709 (Cal. 1983), cert. denied, 464 U.S. 977 (1983).

129 Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 475 (1988); Shively v. Bowlby, 152 U.S. 1, 26 (1894).


The doctrine is commonly traced back to Roman law, which recognized the 1

oceans, and the shores, as common to all. 130 It made its way to the New World on 2

the back of the Magna Carta and in Spanish law; it has analogues around the 3

globe. 131 4

5

In the United States, and in each individual state, the public trust doctrine, is 6

probably based on several possible sources: common law, the law of trusts, the 7

United States Constitution, state constitutions, and state statutes. 132 The doctrine 8

was expanded to include inland water 133 through the "equal footing" doctrine, 9

which holds that states are deemed to have ownership and control over public 10

trust resources. 134 However, unlike other state resources, the public trust 11

resources are not freely alienable; in fact, they are not alienable at all. 12

13 In the United States cases as early as Arnold v. Mundy, 135 decided in 1821, 14

recognized and upheld the doctrine. In Mundy the New Jersey court declared the 15

trust, as we know it today. The dispute concerned an oyster bed that was part of 16

a prestatehood conveyance from the King of England. Conveyances eventually 17

130 Joseph Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 471, 489 (1970).

131 Charles Wilkinson, Headwaters of the Public Trust, 19 ENVL. L. J. 425, 42839 (1989).

132 Id. at 428.

133 Scott W. Reed, The Public Trust Doctrine: Is it Amphibious? 1 J. ENVTL. L. AND LITIG. 107, 112 (1986).

134 Wilkinson, supra note 6, at 44146. The "equal footing" doctrine means that states formed subsequent to the original thirteen inherit the same rights as the original states. The original thirteen colonies inherited the principles of the public trust doctrine from England; under the equal footing doctrine the state ownership of trust resources passed to subsequently formed states. Id.

135 10 Am. Dec. 356 (N.J. 1821).


led to Arnold's ownership and use as a private oyster bed. This exclusive use 1

was challenged by Mundy, who insisted the public had a right to take oysters in 2

this area as it had done for many years. The court ruled in favor of Mundy, giving 3

the first clear formulation of the doctrine. It said that under the natural law, civil 4

law, and common law, the navigable rivers in which the tide ebbs and flows, and 5

the beds and waters of the seacoast are held by the sovereign in trust for the 6

people. 136 7

8

The court said that the states, being sovereign governments, had succeeded to 9

the English trust which was held by the Crown and that a grant purporting to 10

divest the citizens of these common rights was void. 137 The people, through their 11

government, may regulate public trust resources by building ports, basins, docks 12

and wharves, reclaiming land, building dams, locks and bridges, and improving 13

fishing places, but the sovereign power itself "cannot ... make a direct and 14

absolute grant of the waters of the state, divesting all the citizens of their 15

common right." 138 16

17

Later, in Illinois Central Railroad v. Illinois, 139 the U.S. Supreme Court built upon 18

the principles articulated in Mundy and used the public trust doctrine to invalidate 19

one of the more outrageous land giveaways of the 19th century. Illinois Central 20

Railroad 140 is considered the seminal case in American public trust law. 141 In 21

136 Id. at 368.

137 Id. at 369.

138 Id. at 36970.

139 146 U.S. 387 (1892).

140 Illinois Cent. R.R. v. Illinois, 146 U.S. 387, 454 (1892).

141 Sax, supra note 4, at 489.


1869, the State of Illinois granted to the railroad a large chunk of Lake Michigan 1

shoreline, almost the whole of Chicago's waterfront, and much of the lakebed of 2

Chicago's harbor. 142 Four years later the state revoked its grant, and the railroad 3

sued. 143 The United States Supreme Court held that the grant was invalid from 4

the start and revocable under the public trust doctrine: 5

6 The State can no more abdicate its trust over property in which the 7 whole people are interested, like navigable waters and soils under 8 them, so as to leave them entirely under the use and control of 9 private parties, except in the instance of parcels mentioned for the 10 improvement of the navigation and use of the waters, or when 11 parcels can be disposed of without impairment of the public interest 12 in what remains, than it can abdicate police powers in the 13 administration of government and the preservation of the peace. 144 14

15 Mundy and Illinois Central establish the public trust doctrine as part of the 16

common law adopted by the various states. These cases hold that legislatures 17

will be held to a high standard, a trustlike standard, with regard to public trust 18

resources. The abovequoted language of the two opinions suggests that the 19

doctrine may even limit legislative power. At the least, the doctrine establishes a 20

potent rule of construction, requiring that legislatures conveying away or changing 21

the status of public trust resources must do so explicitly. 22

23

2. Sources of the Public Trust Doctrine 24 25

Sources of the public trust doctrine obviously are found in common law. 26

However, the doctrine is not founded only on its own internal common law, 27

142 Illinois Cent., 146 U.S. at 454.

143 Id. at 451.

144 Id. at 453.


but is also bound by trust law, with the state in the role of trustee. One of 1

the touchstones of trust law is that the trustees cannot dispose of the 2

corpus of the trust. A trustee owes a duty of skill and diligence, as he would 3

use "in the conduct of his own business of alike character and with 4

objectives similar to those of the trust." 145 The trustees also owe a duty of 5

loyalty "to administer the affairs of the trust solely in the interests of the 6

beneficiaries.” 146 In charitable trusts, which the public trust most closely 7

resembles, the power to alter the trust is called the cy pres power. 147 8

There are two kinds of cy pres, the prerogative cy pres, reserved originally 9

to the Crown as parens patriae, and the judicial. But the prerogative cy 10

pres power did not cross over the Atlantic: "It is generally held that the 11

prerogative cy pres power does not exist in the United States. Neither 12

national nor state executives nor legislative persons or bodies possess it 13

...." 148 14

15

The public trust doctrine also finds support in constitutional law. The doctrine 16

directly addresses the preservation of navigable waters and waterways, and 17

protects the uses of those waters for navigation and commerce. Thus the 18

doctrine can be easily traced to the Commerce Clause, both active (in that the 19

waterways and uses are expressly protected) and dormant (in the concept 20

that the states do not have the power to impair interstate commerce). 149 But 21

145 George Bogert, TRUSTS § 93, at 334 (6th Ed. 1987).

146 Id. § 95, at 341.

147 Id. § 147, at 521.

148 Id. at 522.

149 The Commerce Clause states that "[t]he Congress shall have the power ... to regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. art. I, § 8, cl. 3.


the doctrine also can be traced back to the Statehood Clause through the 1

"equal footing" doctrine. 150 2

3

This concept was incorporated into American case law. The public trust 4

language in Martin cited a New Jersey Supreme Court case 151 for the 5

proposition that the state held the beds of navigable waters with the same 6

restraints as those previously constraining the king: that is, they were held 7

in trust for the common use of the people. Therefore, the beds could not be 8

granted away if that would divest the people of those rights. 152 9

10

A few years later the Court in Smith v. Maryland 153 held that the State's 11

right to the public trust resources was bounded by that public use: 12

13

[T]his soil is held by the State not only subject to, but in some 14 sense in trust for, the enjoyment of certain public rights, 15 among which is the common liberty of taking fish....[The 16 State] may forbid all such acts as would render the public 17 right less valuable, or destroy it altogether .... This power 18 results from ... its duty to preserve unimpaired those public 19 uses for which the soil is held. 154 20

21

In other words, these early cases stand for the idea that the right of the 22

states to the navigable waters within their bounds, and the beds under the 23

150 The Statehood Clause states that "[n]ew States may be admitted by the Congress into this Union." U.S. Const. art. IV, § 3, cl. 1.

151 Arnold v. Mundy, 6 N.J.L. 1 (1821).

152 Id. at 78.

153 59 U.S. (18 How.) 71 (1855).

154 Id. at 7475.


waters, depends on the Constitution rather than any express grant. Implied 1

in that grant is that the states took those resources at statehood subject to 2

the limitations as well as the rights. One limitation is the trust responsibility 3

that the navigable waters and beds under them be reserved for the public's 4

use. 155 5

6

3. Washington State Constitution 7 8

There are three articles of the Washington State Constitution relevant to the 9

state’s public trust responsibility: 10

11 • The state constitution declares state ownership of the beds and 12

shores of all navigable waters, except where a federal patent was 13 perfected prior to statehood. 156 14

15 • The constitution invalidated prior acts of the territorial legislature 16

granting tidelands to railroad companies and establishing riparian 17 rights. 157 18

19 • The constitution established harbor boundaries, and placed a 20

restraint on disposition of beds underlying navigable waters outside 21 of certain harbor lines. 158 Article XV directed the legislature to 22 provide for the appointment of a commission to draw harbor lines in 23 the navigable waters that lie within or in front of the corporate limits 24 of any city, or within one mile on either side. The state may not 25 alienate any rights whatever in the waters beyond such harbor 26 lines. Areas lying between harbor lines and the line of ordinary 27 high water, within specified limits, are reserved for landings, 28

155 See Wilkinson, 46064 (advocating that a state cannot abdicate its federally imposed trust responsibilities over fishing and navigation in navigable waters).

156 Wash. Const. art. XVII.

157 Wash. Const. art. XXVII, § 2.

158 Id. art. XV.


wharves, streets, and other conveniences of navigation and 1 commerce. 159 2

3

The public policy expressed in these constitutional provisions is generally 4

consistent with public trust principles: reserving complete state ownership in the 5

beds and shores of navigable waters. The constitution did not, however, prohibit 6

the sale of tidelands and shorelands. Instead, the state was permitted to dispose 7

of first class tide 160 and shorelands, 161 which it did under statutory authorization 8

until 1971. 162 Second class tide 163 and shorelands 164 continue to be eligible for 9

159 Id. art. XV, §§ 1, 2; see also Ralph W. Johnson & Eileen M. Cooney, Harbor Lines and the Public Trust Doctrine in Washington Navigable Waters, 54 WASH. L. REV. 275 (1978).

160 The term "first class tidelands" means the shores of navigable tidal waters belonging to the state, lying within or in front of the corporate limits of any city, or within one mile thereof upon either side and between the line of ordinary high tide and the inner harbor line, and within two miles of the corporate limits on either side and between the line of ordinary high tide and the line of extreme low tide. Wash. Rev. Code Ann. § 79.90.030 (West 1991).

161 "First class shorelands" means the shores of a navigable lake or river belonging to the state, not subject to tidal flow, lying between the line of ordinary high water and the line of navigability, or the inner harbor line where established and within or in front of the corporate limits of any city or within two miles thereof upon either side. Id. § 79.90.040.

162 See Hughes v. State, 67 Wash. 2d 799, 410 P.2d 20 (1966), rev'd, 389 U.S. 290 (1967).

163 "Second class tidelands" means the shores of navigable tidal waters belonging to the state, lying outside of and more than two miles from the corporate limits of any city, and between the line of ordinary high tide and the line of extreme low tide. Wash. Rev. Code Ann. § 79.90.035 (West 1991).

164 "Second class shorelands" means the shores of a navigable lake or river belonging to the state, not subject to tidal flow, lying between the line of ordinary high water and the line of navigability, and more than two miles from the corporate limits of any city. Id. § 79.90.045.


sale only to public entities. 165 1

2

4. Washington State Case Law 3 4

“The public trust has existed in Washington since statehood, and burdens all 5

public trust resources, including tidelands, shorelands, and beds of navigable 6

waters, as well as the waters themselves.” 166 Certain uses of these resources 7

are specially protected by the doctrine, including navigation, commercial fisheries, 8

and "incidental rights of fishing, boating, swimming, water skiing, and other 9

related recreational purposes." 167 10

11

In Hill v. Newell, 168 the court explicitly approved the reasoning of the leading 12

California public trust case. 169 In State v. Sturtevant, 170 the court acknowledged 13

that the state held the right of navigation "in trust for the whole people" of this 14

state. 171 The court did not expressly use the term "public trust" in Wilbour v. 15

Gallagher, 172 but it gave strong protection to the public right of navigation, one of 16

165 Id. § 79.94.150(2).

166 Johnson, supra at XX.

167 Orion Corp. v. State, 109 Wash. 2d 621, 641, 747 P.2d 1062, 1073 (1987) (quoting Wilbour v. Gallagher, 77 Wash. 2d 306, 316, 462 P.2d 232, 239 (1969), cert. denied, 400 U.S. 878 (1970)), cert. denied, 486 U.S. 1022 (1988).

168 86 Wash. 227, 149 P. 951 (1915).

169 People ex rel. Webb v. California Fish Co., 138 P. 79 (Cal. 1913). The Washington Supreme Court noted that the reasoning of the California court expressed the Washington court's own views. Hill, 86 Wash. at 231, 149 P. at 952.

170 76 Wash. 158, 135 P. 1035 (1913), aff'd on reh'g, 86 Wash. 1, 149 P. 33 (1915).

171 Id. at 165, 135 P. at 1037.

172 77 Wash. 2d 306, 462 P.2d 232 (1969), cert. denied, 400 U.S. 878 (1970).


the interests traditionally protected under the public trust doctrine. Explicit judicial 1

recognition of the public trust doctrine in Washington occurred in 1987, in 2

Caminiti v. Boyle. 173 3

4

Principles and policies of the doctrine are evident in Washington state law, 5

however, going back as far as 1891. One line of early cases examined the 6

nature of the state's ownership of tidelands and the beds of navigable waters. 7

The Washington Supreme Court concluded in a series of decisions over several 8

decades that the state owned these lands in fee, and that entry into statehood 9

extinguished all riparian rights of adjacent landowners to navigable waters. 174 10

This proprietary ownership, as contrasted with sovereign trusteeship, enabled the 11

state to dispose of tidelands, in fee, as provided by statute. 175 But, the state 12

conveyed only the bare legal title, leaving the public trust in place. 13

14

A parallel line of cases at this time examined both the nature of the state's 15

disposition of tidelands and the remaining public interests in the lands and waters 16

above them. In Eisenbach v. Hatfield, the court cited public interests in 17

preservation of navigation and fishing as a limit on private ownership of 18

submerged lands. 176 New Whatcom v. Fairhaven Land Co. analogized the 19

state's ownership of lands to that exercised by the king of England, and described 20

the public's interest as "an easement in all navigable waters for the purposes of 21

173 107 Wash. 2d 662, 732 P.2d 989 (1987), cert. denied, 484 U.S. 1008 (1988). For further discussion of Caminiti, see infra part III.D.

174 Eisenbach v. Hatfield, 2 Wash. 236, 249, 26 P. 539, 542 (1891).

175 Grays Harbor Boom Co. v. Lownsdale, 54 Wash. 83, 89, 102 P. 1041, 1043 (1909); Lownsdale v. Grays Harbor Boom Co., 54 Wash. 542, 549, 103 P. 833, 836 (1909).

176 Eisenbach, 2 Wash. at 253, 26 P. at 544.


travel." 177 Sequim Bay Canning Co. v. Bugge 178 acknowledged a public right to 1

navigable waters and fisheries, but denied a public right of clamming on privately 2

leased lands between the high and low water marks. 3

4

In State v. Sturtevant the Washington Supreme Court commented that the state 5

was charged only with preserving the public interest in navigation following grant 6

of shorelands into private ownership. 179 On rehearing, the court left open the 7

question whether a public right to fisheries was reserved out of tideland grants. 180 8

Concurrently, the court decided two cases explicitly discussing the public 9

interests remaining in tidelands 181 and an abandoned navigable riverbed 182 10

conveyed into private ownership. The court found all public interests to have been 11

extinguished. 12

13

Two important points emerge from these cases. First, the Washington legislature 14

early followed a strong public policy encouraging private ownership of tidelands 15

and concomitant development and industrial expansion. The Washington 16

Supreme Court implicitly approved this policy in its decisions. 183 Second, 17

177 New Whatcom v. Fairhaven Land Co., 24 Wash. 493, 504, 64 P. 735, 739 (1901).

178 49 Wash. 127, 94 P. 922 (1908).

179 State v. Sturtevant, 76 Wash. 158, 165, 135 P. 1035, 1037 (1913), aff'd on reh'g, 86 Wash. 1, 149 P. 33 (1915).

180 State v. Sturtevant, 86 Wash. 1, 149 P. 33 (1915).

181 Palmer v. Peterson, 56 Wash. 74, 105 P. 179 (1909).

182 Hill v. Newell, 86 Wash. 227, 149 P. 951 (1915).

183 See, e.g., Harris v. Hylebos Indus., Inc., 81 Wash. 2d 770, 787, 505 P.2d 457, 467 (1973); Grays Harbor Boom Co. v. Lownsdale, 54 Wash. 83, 89, 102 P. 1041, 1044 (1909).


although the court did not use the term "public trust doctrine" when analyzing 1

these cases, it did invoke the leading public trust doctrine cases of the day, 2

including Illinois Central 184 and People ex rel. Webb v. California Fish Co., 185 as 3

authority for its analysis. The court did not, however, apply the presumption 4

against destruction of public trust interests that is the hallmark of contemporary 5

public trust cases. Instead, particularly with Palmer v. Peterson 186 and Hill v. 6

Newell, 187 the court engaged in perfunctory review of the statutes enabling the 7

grants at issue, and their negative impact on public trust interests. 188 8

9

Wilbour v. Gallagher 189 marks the modern genesis of public trust doctrine 10

decisions in Washington. The court found that a shoreland owner's right to 11

develop intermittently submerged property was circumscribed by the public 12

interest in navigation at high water. The thirteenth footnote, where the court 13

encouraged a more systematic method of permitting fill, is particularly 14

significant. 190 This footnote is generally thought to have inspired the Shoreline 15

184 Illinois Cent. R.R. v. Illinois, 146 U.S. 387 (1892), cited in Palmer, 56 Wash. at 76, 105 P. at 186.

185 138 P. 79 (Cal. 1913), cited in Hill, 86 Wash. at 23132, 149 P. at 952.

186 56 Wash. 74, 105 P. 179 (1909).

187 86 Wash. 227, 149 P. 951 (1915).

188 The problem continues. Recently, Division I of the Washington State Court of Appeals avoided its review obligations by concluding, without significant analysis, that public trust interests were extinguished in certain tidelands because the tidelands were granted into private hands prior to statehood. See Reed v. State, No. 251066I (Wash. Ct. App. Div. One May 21, 1990), petition for review denied, 115 Wash. 2d 1028, 803 P.2d 324 (1990).

189 77 Wash. 2d 306, 462 P.2d 232 (1969).

190 Id. at 316, 462 P.2d at 239. The note states:

We are concerned at the absence of any representation in this action by the


Management Act of 1971. 191 1

2

Nevertheless, doctrinal development of the public trust remained inconsistent 3

even after Wilbour. The court in Harris v. Hylebos Industries, Inc. 192 found that 4

the "legislative intent regarding the use of tidelands in harbors of cities is 5

manifestly that ... such harbors ... shall consist of commercial waterways, and that 6

the filling and reclaiming of the tidelands ... shall be encouraged." 193 The court 7

did note that the recently enacted Shoreline Act was not argued in the case as 8

evidence of a legislative policy reversal. 194 9

10

The Washington Supreme Court has explicitly addressed the role of the public 11

trust doctrine in Washington's coastal management in two cases. In Caminiti v. 12

Boyle, 195 the court found that the public trust doctrine had always existed in 13

Town or County of Chelan, or of the State of Washington, all of whom would seem to have some interest and concern in what, if any, and where, if at all, fills and structures are to be permitted (and under what conditions) between the upper and lower levels of Lake Chelan. There undoubtedly are places on the shore of the lake where developments, such as those of the defendants, would be desirable and appropriate. This presents a problem for the interested public authorities and perhaps could be solved by the establishment of harbor lines in certain areas within which fills could be made, together with carefully planned zoning by appropriate authorities to preserve for the people of this state the lake's navigational and recreational possibilities. Otherwise there exists a new type of privately owned shorelands of little value except as a place to pitch a tent when the lands are not submerged.

191 For a discussion of how the court's decision in Wilbour prompted the legislature to pass the Shoreline Management Act, see Geoffrey Crooks, The Washington Shoreline Management Act of 1971, 49 WASH. L. REV. 423, 425 27 (1974).

192 81 Wash. 2d 770, 505 P.2d 457 (1973).

193 Id. at 786, 505 P.2d at 466.

194 Id.

195 107 Wash. 2d 662, 732 P.2d 989 (1987), cert. denied, 484 U.S. 1008 (1988).


Washington law. 196 The case involved interpretation of a statute that granted a 1

revocable license to waterside owners to build private recreational docks on 2

stateowned tidelands and shorelands. 197 The court, while acknowledging the 3

power and extent of the public trust doctrine, found the statute not inconsistent 4

with public trust interests in navigable waters. 198 5

6

The court in Orion Corp. v. State 199 made affirmative use of the public trust 7

doctrine in curtailing development of privately owned land where the fills and 8

housing would conflict with public interests in navigable waters. While the state 9

clearly had the power to dispose of tidelands and shorelands, that disposition was 10

not unqualified. Rather, it was subject to the paramount public right of navigation 11

and fisheries. 200 Orion is particularly noteworthy for its analysis of a constitutional 12

takings claim. The tidelands owner argued that its property had been taken 13

without just compensation as required by the state and federal constitutions. The 14

court found that the owner had no right to make use of his property in a way that 15

would impair public trust rights. "Since a 'property right must exist before it can 16

196 Caminiti, 107 Wash. 2d at 670, 732 P.2d at 994. Caminiti involved stateowned land, and focused on management of state land consistent with the doctrine rather than regulation of private land. Id. at 670, 732 P.2d at 995.

197 Wash. Rev. Code. Ann. § 79.90.105 (West 1991). Abutting residential owners may maintain docks without charge if such docks are used exclusively for private recreational purposes and the area is not subject to prior rights. Permission is subject to local regulation and may be revoked by the state upon a finding of public necessity.

198 Caminiti, 107 Wash. 2d at 674, 732 P.2d at 997.

199 109 Wash. 2d 621, 642, 747 P.2d 1062, 1073 (1987), cert. denied, 486 U.S. 1022 (1988).

200 Orion, 109 Wash. 2d at 640, 747 P.2d at 1072 (citing Caminiti, 107 Wash. 2d at 667, 732 P.2d at 993).


be taken,"' the court concluded that no taking had occurred by preventing 1

dredging or filling. 201 The court, however, remanded the case to the trial court to 2

consider whether there were any profitable uses that would have been consistent 3

with the public's rights. 202 4

5

In Draper Machine Works v. Department of Natural Resources, 203 the court 6

touched briefly on the public trust doctrine again. Draper involved a rental 7

dispute between the Department of Natural Resources and a marina owner. The 8

owner argued that the Department had no authority to rent submerged lands 9

because they are held by the state in its sovereign capacity, or in trust for the 10

people. 204 A private marina trying to avoid rental obligations was obviously not a 11

sympathetic proponent of the public trust doctrine. The court only discussed this 12

claim in a perfunctory manner. Rather than carefully scrutinizing the public trust 13

issue, the court largely deferred to the legislature. 205 14

15

In Rettkowski v. Department of Ecology, 206 (Sinking Creek) the court found on a 16

number of important issues: 17

18

201 Id. at 64142, 747 P.2d at 1073.

202 Id. at 662, 747 P.2d at 108485.

203 117 Wash. 2d 306, 318, 815 P.2d 770, 777 (1991).

204 Id.

205 Id. at 31819, 815 P.2d at 77778. For example, the court wrote: "respondent's argument relating to 'reservation' and sovereign and proprietary capacities only obscures the real point of the inquiry: Whether the Legislature intended in RCW 79.93.040 to allow DNR to collect rent for the use of certain portions of waterways.

206 122 Wn.2d 219, 858 P.2d 232 (1993).


• The Department of Ecology lacks authority to determine the validity of 1 existing rights for the purposes of enforcement. 2

3 • A determination as to the validity of existing rights is made by the Superior 4

Court within general stream adjudication. 5 6

• Ecology can make “tentative determinations” about the validity of existing 7 rights for the purpose of issuing new water right permits. 8

9 • The Public Trust Doctrine has never previously interpreted to extend to 10

nonnavigable waters or groundwater. 11 12

• The duty imposed by the public trust doctrine devolves upon the State, not 13 any particular agency thereof. Nowhere in Ecology's enabling statute is it 14 given the statutory authority to assume the State's public trust duties and 15 regulate in order to protect the public trust. 16

17 The Sinking Creek court reiterated several important aspects of the Public Trust 18

Doctrine in its review: 19

20 • The public trust doctrine evolved out of the public necessity for 21

access to navigable waters and shorelands. 207 22 23

• It is partially encapsulated in the language of our state constitution 24 which reserves state ownership in "the beds and shores of all 25 navigable waters in the state". 208 26

27 • The doctrine has always existed in the State of Washington. 209 28

29 • The doctrine prohibits the State from disposing of its interest in the 30

waters of the state in such a way that the public's right of access is 31 substantially impaired, unless the action promotes the overall 32 interests of the public. 210 33

207 Orion Corp. v. State, supra.

208 Const. Art. 17 § 1.

209 Caminiti v. Boyle, 107 Wash. 2d 662, 732 P.2d 989 (1987), cert. denied, 484 U.S. 1008 (1988).

210 Id. at 670, 732 P.2 989.


1 In his dissenting opinion, Justice Guy argued the public trust doctrine should be 2

recognized as providing an alternative source of authority for the Department of 3

Ecology to regulate and enforce between two existing water right holders. In 4

addition, Justice Guy argues the restriction of the public trust doctrine by the 5

concept of navigability is ultimately artificial and absurd. 211 6

7

In Weden v. San Juan County, 212 the court was asked to determine whether an 8

ordinance to ban personal watercraft (PWC) was unconstitutional or violative of 9

the public trust doctrine. The court reviewed the various principles of the public 10

trust doctrine: 11

12 • Since as early as 1821, the public trust doctrine has been applied 13

throughout the United States "as a flexible method for judicial protection of 14 public interests in coastal lands and waters.” 213 15

16 • The doctrine protects "public ownership interests in certain uses of 17

navigable waters and underlying lands, including navigation, commerce, 18 fisheries, recreation, and environmental quality." 214 19

20 • The doctrine reserves a public property interest, the jus publicum, in 21

tidelands and the waters flowing over them, despite the sale of these 22 lands into private ownership. 215 23

24 • "The state can no more convey or give away this jus publicum interest 25

than it can 'abdicate its police powers in the administration of government 26

211 Id., See dissenting opinion.

212 135 Wash. 2d 678, 958 P.2d 273 (1998).

213 Johnson, supra.

214 Johnson, supra, at 524.

215 Id.


and the preservation of the peace.’” 216 1 2

• Due to the "universally recognized need to protect public access to and 3 use of such unique resources as navigable waters, beds, and adjacent 4 lands," courts review legislation under the public trust doctrine with a 5 heightened degree of judicial scrutiny, "as if they were measuring that 6 legislation against constitutional protections." 217 7

8 • This court did not expressly adopt the public trust doctrine until 1987, but 9

indicated then that the doctrine has always existed in Washington law. 218 10 11

• The doctrine in Washington "prohibits the State from disposing of its 12 interest in the waters of the state in such a way that the public's right of 13 access is substantially impaired, unless the action promotes the overall 14 interests of the public." 219 15

16 17

• The jus publicum interest encompasses the "rights of fishing, boating, 18 swimming, water skiing, and other related recreational purposes generally 19 regarded as corollary to the right of navigation and the use of public 20 waters." 220 21

22 23

The test of whether or not an exercise of legislative power with respect to 24

tidelands and shorelands violates the 'public trust doctrine' is found in the 25

following language of the United States Supreme Court: 26

27 The control of the State for the purposes of the trust can never be 28 lost, except as to such parcels as are used in promoting the 29 interests of the public therein, or can be disposed of without any 30 substantial impairment of the public interest in the lands and waters 31

216 Caminiti v. Boyle (quoting Illinois Centrall RR. v. Illinois).

217 Johnson, supra, at 525, 52627.

218 See Caminiti at 66970.

219 Rettkowski at 232.

220 Caminit at 669 (citing Wilbour at 316).


remaining. 1 2

Accordingly, we must inquire as to: (1) whether the State, by the 3 questioned legislation, has given up its right of control over the jus 4 publicum and (2) if so, whether by so doing the State (a) has 5 promoted the interests of the public in the jus publicum, or (b) has 6 not substantially impaired it. 221 7

8 9

The Weden court held the County that the PWC Ordinance does not violate the 10

public trust doctrine because the County has not given up its right of control over 11

its waters (Emphasis added). Although the Ordinance prohibits a particular form 12

of recreation, the waters are open to access by the entire public, including owners 13

of PWC who utilize some other method of recreation. 222 14

15

In Curley v. Mountford, 223 plaintiff’s sued to quiet title in a small triangle of beach 16

and tidelands. The court held that the public trust doctrine "prohibits the State 17

from disposing of its interest in the waters of the state in such a way that the 18

public's right of access is substantially impaired, unless the action promotes the 19

overall interests of the public.” 224 20

21

When land is periodically submerged and exposed by the tide, riparian owners 22

may prevent others from trespassing on it while it is exposed. 225 The public, 23

221 Caminiti at 670 (quoting Illinois Central at 453).

222 Weden v. San Juan County, supra.

223 1999 WL 476553 (Wash. App. Div. 2) (1999).

224 Id. at 5, Weden, supra, at 698699 (quoting Rettkowski, at 232); Johnson, supra, at 534.

225 Id. at 5 quoting Wlbour v. Gallagher, 77 Wash.2d 306, 314315, 462 P.2d 232 (1969).


however, has the right to use the water over it while it is submerged. 226 1

2

In Merrill Co. v. Pollution Control Hearing Board, 227 the court held, that in context 3

of applications for change or transfer of water rights, the public trust doctrine does 4

not serve as an independent source of authority for Department of Ecology to use 5

in its decisionmaking apart from the provisions in the water codes. 6

7

In Merrill, the plaintiff’s argued that the Department of Ecology’s decision to allow 8

the transfer of a water right violated the public trust doctrine. However, the 9

Merrill court noted two problems with applying the public trust doctrine to this 10

case: 11

12 First, the court has never held that the doctrine applies to non 13 navigable or groundwater. 14

15 Second, the duty devolves upon the State, not any particular 16 agency. The Department's enabling statute does not grant it 17 authority to assume the public trust duties of the state. 228 18

19

The Merrill court then observed that the issue before it involved the Department's 20

regulatory authority and the public trust doctrine could provide no guidance as to 21

the Department's authority because "[t] hat guidance ... is found only in the Water 22

Code." 229 23

24 Without question, the state water codes contain numerous 25 provisions intended to protect public interests. However, the public 26

226 Wilbour at 315.

227 137 Wash.2d 118, 969 P.2d 458 (1999).

228 See Rettkowski v. Department of Ecology, 122 Wash.2d 219, at 232, 858 P.2d 232.

229 Id. at 233, 858 P.2d 232.

http://www.westlaw.com/Find/Default.wl?rs=WEB31.0&vr=2.0&FindType=Y&SerialNum=1993174498



trust doctrine does not serve as an independent source of authority 1 for the Department to use in its decisionmaking apart from the 2 provisions in the water codes. 3

4 Plaintiffs urge, however, that the public trust doctrine should be 5 used as a canon of construction in interpreting the state water code 6 provisions. The state statutes contain numerous provisions 7 representing legislative policy on water use and water users' rights. 8 For example, RCW 90.03.005 states that: 9

10 [i]t is the policy of this state to promote the use of 11 public waters in a fashion which provides for obtaining 12 maximum net benefits arising from both diversionary 13 uses of the state's public waters and the retention of 14 waters within streams and lakes in sufficient quantity 15 and quality to protect instream and natural values and 16 rights. 17

18 Here, resort to the public trust doctrine as an 19 additional canon of construction is not necessary in 20 light of the specific provisions at issue and the water 21 law policies expressed in the state water codes. 230 22

23

In a criminal case involving the taking of clams from a private tideland, State v. 24

Longshore, 231 the court held that the public trust doctrine does not encompass the 25

right to gather naturally occurring clams on private property.232 The court 26

expressly rejected the contention that fishery rights guaranteed by the public trust 27

doctrine include the right to take clams from private property. The court held that 28

naturally occurring clams on private property are the property of the private 29

tideland owner. 30

31

230 Merrill at 128.

231 141 Wash.2d 414, 5 P.3d 1256 (2000).

232 See Sequim Bay Canning Co. v. Bugge, 49 Wash. 127, 94 P. 922 (1908).

http://www.westlaw.com/Find/Default.wl?rs=WEB31.0&vr=2.0&DB=1000259&DocName=WAST90.03.005&FindType=L


In Postema v. Department of Ecology, et. al. 233 the State Supreme Court 1

addressed a number of statewide issues and held that: 2

3

• minimum flows, as established by Department of Ecology for surface 4 waters, are not "limited" water rights that may be overridden by economic 5 considerations when applicants seek groundwater appropriation permits; 6

7 • there is no requirement that a direct and measurable impact on surface 8

water be shown using standard stream measuring devices before an 9 application for a groundwater permit may be denied. The Department of 10 Ecology may use methods such as modeling to determine hydraulic 11 continuity and effects on surface water; 12

13 • hydraulic continuity of an aquifer with a stream having unmet minimum 14

flows does not, in and of itself, show impairment of minimum flows so as 15 to require denial of application for groundwater appropriation permit; 16

17 • proposed withdrawal of groundwater from a closed stream or lake in 18

hydraulic continuity must be denied if it is established factually that 19 withdrawal will have any effect on flow or level of surface water. “No 20 impairment” is the legal standard for review of impairment, not a de 21 minimis standard; 22

23 • the Department of Ecology did not fail to engage in required rulemaking in 24

"batch processing" a permit application; 25 26

• Stream closures by rule constitute a determination that water is not 27 available, is a separate criterion in addition to impairment; and 28

29 • finding of possible, rather than actual, impairment of minimum surface 30

water flows was not proper basis for denying groundwater appropriation 31 permit. 32

33 Regarding the public trust doctrine, the Postema court reiterated the holding that 34

Ecology's enabling statute does not permit it to assume the public trust duties of 35

the state. The doctrine does not serve as an independent source of authority for 36

Ecology to use in its decisionmaking apart from code provisions intended to 37

233 142 Wash.2d 68, 11 P.3d 726.


protect the public interest. 234 1

2

The court also noted the public trust doctrine is inapplicable to groundwater. 3

However, the consolidated cases in Postema were not just dealing with 4

groundwater issues. The central issue in all the statewide cases all concerned 5

hydraulic continuity of groundwater with surface waters, which may themselves 6

be navigable waters. As such, the public trust doctrine may be applicable; 7

however, because the statutes provided the standards for resolution of the legal 8

issues here, the court did not remand the case to explore the applicability of the 9

public trust doctrine. 10

11

These cases indicate that the public trust doctrine has been adopted into 12

Washington law, but has not yet been fully delineated. They do, however, 13

suggest both the analytic foundations and the direction for future development of 14

the doctrine. 15

5. Instream Flows 16 17

It is in California where the public trust doctrine has been most broadly applied. 18

In National Audubon Society v. Superior Court, 235 known as the Mono Lake case, 19

the Supreme Court of California explicitly recognized the public trust doctrine's 20

extension to preservation of scenic, ecological, and recreational values, 236 and to 21

234 See Merrill at 134; Rettkowski at 232.

235 658 P.2d 709 (Cal. 1983), cert. denied, 464 U.S. 977 (1983). Known as the Mono Lake case, this decision prevented the City of Los Angeles from further dewatering the lake, even with a recognized water right, in order to protect bird populations dependent upon brine shrimp as a food source and water levels sufficient to isolate island nesting habitat from groundbased predators.

236 Id. at 719.


nonnavigable tributaries flowing into navigable waterways. 237 Even though the 1

water of streams feeding into Mono Lake had been appropriated for the city of 2

Los Angeles, the court held that the water could not be diverted to the point of 3

harming the public trust resources of the lake. 238 4

5

Public instream rights potentially may be established through the public 6

trust doctrine in Washington State. The Washington Supreme Court has 7

recognized the application of the public trust to the state’s navigable 8

waters, including freshwater lakes and streams. 239 The public trust 9

protects such traditional instream uses as navigation, commerce and 10

fishing, as well as more recent public interests in environmental protection 11

and recreational and aesthetic use of surface waters. 240 12

13

The public trust has existed in Washington since statehood, and burdens all 14

public trust resources, including tidelands, shorelands, and beds of navigable 15

waters, as well as the waters themselves. Certain uses of these resources 16

are specially protected by the doctrine, including navigation, commercial 17

fisheries, and "incidental rights of fishing, boating, swimming, water skiing, 18

and other related recreational purposes." 241 19

20

237 Id. at 721.

238 Id.

239 Caminiti v. Boyle, 107 Wn.2d 662; Wilbour v. Gallagher, 77 Wn.2d 306 (1969).

240 Orion Corp. v. State, 109 Wn.2d 621 (1987).



B. Federal Reclamation Act 1

2

Technically, water regulation falls under state jurisdiction; however, in actuality, 3

the federal government controls much of Washington’s water. Section 8 of the 4

1902 Reclamation Act suggests a cooperative relationship between state and 5

federal governments, deferring to state water law in governing the "control, 6

appropriation, use, or distribution of water" within its boundaries. 242 In the same 7

breath, section 8 authorizes the construction of dams, diversions and canals 8

designed to irrigate the West. Obviously, dams cause mass environmental 9

degradation, in part because the federal government is exempt from protective 10

state regulations inconsistent with federal programs. 243 11

12

Despite federal authority, Washington has the means to reduce impacts from 13

federal projects on its water resources. For example, in California v. United 14

States, the Bureau of Reclamation ("BOR") applied to the California State Water 15

Resources Conservation Board (SWRCB) for an appropriative water right to build 16

the New Melones Dam, a component of the Central Valley Project. 244 The 17

SWRCB granted the right with twentyfive conditions attached. The Board 18

designed these conditions to afford stream flow protection for fish and wildlife. 19

BOR protested, arguing that under section 8, the Reclamation Act preempted the 20

Board's authority to impose conditions on the project. In the end, the Supreme 21

Court upheld the SWRCB's requirements. The Court interpreted section 8 to find 22

state primacy over the "control, appropriation, use, or distribution of water," 23

242 43 U.S.C. § 383 (1994).

243 See Marc Reisner and Sarah Bates, OVERTAPPED OASIS: REFORM OR REVOLUTION FOR WESTERN WATER 62 (1990) at 76.

244 438 U.S. 645 (1978).


unless the state's requirements are clearly inconsistent with congressional 1

directives of the project. 245 This case illustrates the state's ability to maintain high 2

environmental standards and further water quality protection goals by protecting 3

minimum flows from large federal projects. 4

5

C. Federal Power Act. 6

7

Under the Federal Power Act (FPA), the Federal Energy Regulatory Commission 8

(FERC) has exclusive regulatory authority over private hydropower projects on 9

navigable waters. 246 In 1986 Congress amended the FPA, requiring that FERC 10

determine whether a project is in the public's interest before issuing a license. 11

These amendments direct FERC to give fish, wildlife, recreation, and energy 12

conservation equal consideration before issuing a license. 247 13

14

Hundreds of dam owners will have to apply to FERC for relicensing in the next 15

decade. In the relicensing process, FERC must apply the same environmental 16

considerations that are required for new permits. 248 The FERC review process 17

presents a significant opportunity to implement measures for instream values 18

not previously considered when the projects were originally built. 249 19

245 See California v. United States, 438 U.S. at 678; REISNER & BATES, at 8384.

246 See Federal Power Act of 1920, 16 U.S.C. §§ 791a825r (1994).

247 See 16 U.S.C. § 803(a)(1) (1994).

248 See Confederated Tribes and Bands of the Yakima Indian Nation v. FERC, 746 F.2d 466 (9th Cir. 1984).

249 See Phillip M. Bender, Restoring The Elwha, White Salmon, And Rogue Rivers: A Comparison Of Dam Removal Proposals In The Pacific Northwest, 17 J. LAND, RESOURCES & ENVTL. L. 193 (1997).


1. Protection of instream flows is available under the Federal Power 1 Act. 2

3

The principal way in which federal, as opposed to state, agencies presently affect 4

instream flows in Western Washington is through the operation of dams. In the 5

United States v. Washington Case Area almost all of the major dams are 6

licensed by the Federal Energy Regulatory Commission under the Federal Power 7

Act. 250 There are a variety of ways to advocate instream flows before that 8

Commission. 9

10

2. Minimum streamflow requirements imposed under state law do not 11 bind the Commission. 12

13 California v. FERC 251 held that the Commission’s license conditions setting a 14

minimum instream flow preempt California's conflicting instream flow 15

requirements. This case was a major setback for fisheries agencies. But the 16

result might have been different if the State had simply refused to issue a water 17

right to the full amount FERC and the applicant wanted diverted, instead of 18

issuing a right to the full amount but reserving a right to impose more restrictive 19

minimum flow rates later. Whether a state has authority to condition a 20

Commission license by simply withholding a water right is unclear. 21

3. Instream flows may also be recommended under the § 10 22 consultation processes. 23

24

Section 10 (a) 252 of the Federal Power Act provides for tribal recommendations: 25

26

250 Instream flow regulation at federal dams in the Columbia River System is beyond the scope of this paper.

251 495 U.S. 490 (1990). 252 16 U.S.C. § 803 (a).


(2) In order to ensure that the project adopted will be best adapted to 1 the comprehensive plan described in paragraph (1), the 2 Commission shall consider each of the following: 3

4 (B) The recommendations of Federal and State agencies 5

exercising administration over flood control, navigation, 6 irrigation, recreation, cultural and other relevant resources of 7 the State in which the project is located, and the 8 recommendations (including fish and wildlife 9 recommendations) of Indian tribes affected by the project. 10

11 (3) Upon receipt of an application for a license, the Commission shall 12

solicit recommendations from the agencies and Indian tribes 13 identified in subparagraphs (A) and (B) of paragraph (2) for 14 proposed terms and conditions for the Commission's consideration 15 for inclusion in the license. 16

17 Although tribes’ recommendations are not required to be solicited until after the 18

application, the Commission's rules include tribes in the preapplication 19

consultation phase. 253 This is limited to recognized tribes "whose legal rights as 20

... tribe[s] may be affected ...." 254 21

22

Section 10 (j) provides for imposition of fish and wildlife conditions but does not 23

include tribal participation: 24

25 (1) . . . in order to adequately and equitably protect, mitigate damages 26

to, and enhance, fish and wildlife (including related spawning 27 grounds and habitat) affected by the development, operation, and 28 management of the project, each license issued under this 29 subchapter shall include conditions for such protection, mitigation, 30 and enhancement. Subject to paragraph (2), such conditions shall 31 be based on recommendations received pursuant to the Fish and 32 Wildlife Coordination Act (16 U.S.C. 661 et seq.) from the National 33 Marine Fisheries Service, the United States Fish and Wildlife 34 Service, and State fish and wildlife agencies. 35

253 18 CFR §§ 4.38 (a) (2) & 16.8 (a) (2).

254 § 4.30 (b) (10).


1 (2) Whenever the Commission believes that any recommendation 2

referred to in paragraph (1) may be inconsistent with the purposes 3 and requirements of this subchapter or other applicable law, the 4 Commission and the agencies referred to in paragraph (1) shall 5 attempt to resolve any such inconsistency, giving due weight to the 6 recommendations, expertise, and statutory responsibilities of such 7 agencies. If, after such attempt, the Commission does not adopt in 8 whole or in part a recommendation of any such agency, the 9 Commission shall publish each of the following findings (together 10 with a statement of the basis for each of the findings): 11

12 (A) A finding that adoption of such recommendation is 13

inconsistent with the purposes and requirements of this 14 subchapter or with other applicable provisions of law. 15

16 (B) A finding that the conditions selected by the Commission 17

comply with the requirements of paragraph (1). 18 19

Sections (10) (a) and (j) are not as powerful as they first appear. Note that 20

neither state and federal comprehensive plans nor agency or tribal 21

recommendations are mandatory. Even 10 (j) gives FERC considerable 22

discretion. And Department of the Interior v. FERC, upholding FERC's rejection 23

of recommended studies, is one of the most recent in a long line of federal court 24

cases holding that FERC has broad discretion: 25

26 Here, FERC acted reasonably in the face of uncertainty. . . . 27 FERC's conclusions from the otherwise incomplete data were 28 supported by substantial evidence. . . . FERC specifically 29 considered the additional studies proposed and found that they 30 were unlikely to provide additional, useful information. . . . 255 31

32

Note also that the Commission takes the position that it is only required to order 33

fisheries protection and mitigation measures that are economically feasible. If 34

the licensee cannot get a decent return on its investment when it must spend 35

255 952 F.2d 538, 547 (D.C. Cir. 1992).


large sums to protect fish and wildlife, it need not according to the Commission 1

provide the protection. This reasoning forces tribes to subsidize "cheap" 2

hydropower with their own economic and cultural assets. Because instream 3

flows for fish can be quite expensive in terms of lost hydropower, full fisheries 4

flows may be difficult to obtain before the Commission. 5

4. The Commission should not compromise fisheries flows. 6 7

Because the Commissionastrustee “must always act in the interests of the 8

beneficiaries. . . .,” 256 balancing tribal rights against economic interests, or 9

reallocating water away from treaty fisheries, appears to violate the Federal Trust 10

Responsibility. Although the question has not yet come before a court, it may in 11

the near future. 12

13

Similar to section 8 of the Reclamation Act, section 27 of the FPA preserves 14

state laws consistent with the "control, appropriation, use or distribution of water 15

used in irrigation or for municipal or other uses, or any vested right acquired 16

therein." 257 However, in California v. FERC the Supreme Court decided that 17

section 27 did not encompass state minimum flow requirements. 258 This case 18

diverged from the Court's opinion in California v. United States, 259 which held that 19

the similar provision of the Reclamation Act preserved the state's control over 20

water. 260 In PUD #1 of Jefferson County v. Washington Department of Ecology 21

256 Covelo Indian Community v. FERC, 895 F.2d at 586 (9th Cir. 1990).

257 See Federal Power Act of 1920, 16 U.S.C. §§ 791a825r (1994).

258 California v. FERC, 495 U.S. 490, 498 (1990) (refusing to recognize instream water as proprietary water right).

259 438 U.S. 645 (1978). See supra text accompanying notes 2124.

260 Section 8 of the Reclamation Act of 1902 provides, "[N]othing in this Act shall be construed as affecting or intending to affect or to in any way interfere with the


(hereinafter Jefferson County), the Court clarified some of the confusion 1

surrounding state control over water projects. 261 2

D. Protection of Instream Flows is Available under the Clean Water Act. 3

4

In May 1994, the U.S. Supreme Court ruled in Jefferson County that states have 5

authority to regulate water quality standards, including instream flows, 262 via 6

state certification requirements contained in section 401 of the Clean Water Act 7

(CWA). 263 Jefferson County effectively overruled California v. FERC and 8

confirmed the states' power to impose water quality standards on federally 9

licensed hydroelectric projects. 264 10

11

In Jefferson County, a county utility district (Jefferson County PUD No. 1) and the 12

city of Tacoma, Washington, proposed a project that would divert seventyfive 13

percent of the Dosewallips River for power generation. The state had classified 14

the affected portion of the river as "Class AA" under Washington's water quality 15

laws of any State or Territory relating to the control, appropriation, use, or distribution of water...." 43 U.S.C. § 383 (1994).

261 See PUD #1 of Jefferson County v. Washington Department of Ecology, 511 U.S. 700 (1994). Other cases leading up to Jefferson County include Escondido Mutual Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 795 (1984) (allocating specified quantity of water to certain Indian Tribes that would otherwise be used by licensee), and Monongahela Power Co. v. Marsh, 484 U.S. 816 (1987) (holding that CWA compliance does not frustrate purpose of FPA, thus FERC licenses are not exempt from CWA review).

262 See Jefferson County, 511 U.S. at 734.

263 See CWA § 401, 33 U.S.C. § 1341 (1994).

264 See Katherine P. Ransel, The Sleeping Giant Awakens: PUD No. 1 of Jefferson County v. Washington Department of Ecology, 25 ENVTL. L. 255 (1995). Ms. Ransel represented 18 conservation and fishing organizations in Jefferson County.


standards. Designated uses for Class AA waters include salmonid migration, 1

rearing, spawning, and harvesting. 265 2

3 The utility district sought a CWA section 401 certificate from the Washington 4

Department of Ecology, a necessary requirement before FERC could license the 5

project.266 Under the CWA, section 401(d) requires states to set forth effluent 6

limitations and other limitations necessary to comply with the Act and any other 7

appropriate state law requirements. 267 Based on water quality standards for the 8

Dosewallips River, the Department of Ecology conditioned its certification of the 9

project on a requirement that at least fifty percent of the river's flow remain in the 10

stream to protect fisheries. 268 11

12

The Washington Supreme Court upheld the state's authority to require minimum 13

flows for water quality certification under section 401(d) of the CWA. It 14

concluded that FERC's authority under the FPA did not preempt these 15

conditions. Further, the Washington Supreme Court held that the CWA 16

provisions must be incorporated into FERC's licensing process. 269 17

18

Section 303 of the CWA requires the states to protect their waterways by 19

establishing water quality standards for all waters within the state. 270 Water 20

quality standards have two components: (1) designated uses, and (2) numeric 21


266 Id. at 709.

267 CWA § 401(d), 33 U.S.C. § 1341(d).

268 See Ransel, supra note 36, at 255.

269 See id. at 26263.

270 See CWA § 303(a), 33 U.S.C. § 1313(a) (1994).


and narrative water quality criteria designed to protect such uses. 271 Additionally, 1

state water quality standards must include antidegradation controls to ensure the 2

integrity of state water quality. 272 3

4

On appeal to the United States Supreme Court, Jefferson County resulted in a 5

seven to two decision confirming state certification authority over federally 6

approved projects under section 401 of the CWA. First, the Court held that 7

section 401 conditions could be based on narrative criteria as well as specific 8

chemical and numerical criteria. 273 Second, it held that a designated use is 9

separately enforceable from criteria designed to protect the designated use 10

because criteria may not always be enough to protect the designated use of the 11

river. 274 Third, the Court held that the CWA's antidegradation provision also 12

justified the state's imposition of an instream flow condition. 275 Fourth, the Court 13

held that once a discharge is found in connection with a federally licensed 14

activity, under section 401(a)(1) of the CWA, states may impose conditions 15

relating to the entire activity, not merely the point of discharge. 276 These holdings 16

affirm the variety of mechanisms states have to influence federally approved 17

projects, providing backup where a narrow focus on numeric standards might 18

otherwise fail to adequately protect water quality. 19

271 See CWA § 303(c), 33 U.S.C. § 1313(c)(2)(A) (1994).

272 See CWA § 303(d), 33 U.S.C. § 1313(d)(4)(B) (1994).


274 See Id. at 715.

275 See Id. at 719. EPA has promulgated regulations under section 303 of the CWA requiring statewide antidegradation policy to include implementation methods "consistent with...existing instream water uses and the level of water quality necessary to protect the existing uses ...." 40 C.F.R. § 131.12 (1998).



1

In Jefferson County's ruling, the Court held that water quality includes water 2

quantity and that no artificial distinction can be made between them. 277 Lack of 3

water is a form of "pollution," a term defined by the CWA as "maninduced 4

alteration of the chemical, physical, biological, and radiological integrity of 5

water.” 278 The Court's holdings in Jefferson County set the stage for future 6

battles between states and the federal government extending beyond 7

hydroelectric projects. 279 8

9

Incorporating instream flow requirements into state water quality plans forces 10

prospective and traditional water users, including the federal government, to 11

comply with state water quality protection goals. 280 The CWA mandates that 12

states formulate water quality standards and allows states to promulgate 13

277 See Id. at 719 (emphasis added).

278 CWA § 502(19), 33 U.S.C. § 1362(19) (1994). In contrast, the dissent in Jefferson County would have limited the states' regulatory power to encompass only discharges and activities directly related to discharges under §401(a)(1). See Jefferson County, 511 U.S. at 726.

279 For example, the fact that section 401(d) certification applies to "any" federal license that "may result in any discharge" could also have major implications for timber and grazing activities that create nonpoint source pollution. A broad definition of "any discharge" would greatly expand the scope of permits that need compliance with section 401. See Ransel, at 267. Case law has failed to clarify the scope of section 401. For example, in Oregon Natural Desert Ass'n v. Dombeck, 151 F.3d 945 (1998), withdrawn from bound volume, the Ninth Circuit initially reversed a lower court's decision against the Forest Service for the Service's failure to obtain section 401 state certification before granting a grazing permit in the Malheur National Forest. The Ninth Circuit narrowly interpreted"discharge" within the scope of § 1341 of CWA to exclude "nonpoint source" pollution. However, as noted above, this case was later withdrawn from publication in the bound volume, leaving the scope of section 401 unsettled.

280 See Ransel, at 271.


standards which are more stringent than federal standards. 281 The outcomes of 1

both California v. United States and Jefferson County turned on water quality 2

standards set in each stateestablished water quality plan under the CWA. The 3

state water quality plan, supported by the CWA, provides the crucial framework 4

to further water quality goals, including the implementation of instream flows. 5

6

Jefferson County held that the Department of Ecology has the authority through 7

section 401 of the Clean Water Act 282 water quality certification to include a 8

minimum streamflow requirement as a condition of a new water right 283 9

(Emphasis added). However, the question of whether the Department of Ecology 10

has the authority to condition a preexisting water right is only now being litigated 11

in PUD No. 1 of Pend Oreille County v. Ecology (“Sullivan Creek”). 284 In Sullivan 12

Creek, Ecology is asserting it has the authority to impose bypass flow conditions 13

on a project having preexisting water rights through section 401 of the Clean 14

Water Act water quality certification. In addition, Ecology asserts that it may 15

consider the “public interest” in evaluating a water right change or transfer 16

application. 17

E. A state or a tribeasastate may require instream flows to meet 18 applicable water quality standards under the Clean Water Act. 19

20

Section 518 of the Clean Water Act authorizes the EPA to delegate water quality 21

281 See CWA § 510, 33 U.S.C. 1370 (1994).

282 For purpose of issuing a water quality certificat under section 401 of the Clean Water Act, an alteration of streamflow levels resulting from a construction project constitutes “pollution.”


284 PCHB Nos. 97177, 9843, and 44, Appeled to the State Supreme court.


programs to qualifying Indian tribes. 285 Under Section 518 of the Clean Water 1

Act, the Administrator of EPA is authorized to treat an Indian tribe as a State . . .: 2

3 (1) the Indian tribe has a governing body carrying out 4 substantial governmental duties and powers; 5

(2) the functions to be exercised by the Indian tribe pertain 6 to the management and protection of water resources which are 7 held by an Indian tribe, held by the United States in trust for 8 Indians, held by a member of an Indian tribe if such property 9 interest is subject to a trust restriction on alienation, or 10 otherwise within the borders of an Indian reservation; and 11

(3) the Indian tribe is reasonably expected to be capable, in 12 the Administrator's judgment, of carrying out the functions to be 13 exercised in a manner consistent with the terms and purposes of 14 this chapter and of all applicable regulations. . . .. 286 15

The United States Supreme Court held in Jefferson County “that the State may 16

include minimum stream flow requirements [to protect and preserve the 17

anadromous fishery] in a certification issued pursuant to § 401 ....” This makes § 18

401 a very powerful tool for fish protection that can be wielded by either the state 19

or a tribe (or the Environmental Protection Agency) having jurisdiction over the 20

discharge. Most of the stream reaches affected by federally licensed dams are 21

off reservation and usually within the jurisdiction of the State’s water quality 22

program. But where an affected stream reach is on a reservation a Tribe may 23

seek delegation of water quality authority from the EPA and set its own 24

streamflow standards as part of a tribal water quality program. 25

F. Endangered Species Act 26

27

285 33 U.S.C. § 1377.

286 1377(e).


Habitat loss caused by flow depletion is a major factor for listing a species under 1

the Endangered Species Act (ESA). Water diversions may “take” listed fish in 2

several ways. Fish may be drawn into diversion canals if there is no fish screen 3

or if the screen is not designed properly, and they may become stranded and die. 4

They may become impinged on an improperly designed screen or at high water 5

velocities. Fish may be killed in turbines or pumps. 287 The water diversion 6

structure itself may be a barrier to passage in the river. The diversion may alter 7

habitat by leaving inadequate flows for fish to spawn, rear, or migrate. Water 8

temperature and velocity, pool depth, and other features important to fish may be 9

affected. Floodplain function and channel configuration is affected by flow level. 10

The removal of water from streams that impairs fish habitat may triggered the 11

application of the Endangered Species Act. 12

13

The definition of “harm” to species under the ESA includes “removing water or 14

otherwise altering streamflow when it is likely to impair spawning, migration or 15

other essential functions.” 288 This definition is dramatically illustrated by recent 16

enforcement actions denying Methow Valley, Washington irrigators access to 17

water rights, based on “harm” to endangered fish caused by low stream flow. 289 18

19

In October 1999, the National Marine Fisheries Service (NMFS) advised all 20

Methow River diverters of their section 9 obligations under the Endangered 21

Species Act (ESA). Subsequently, NMFS advised certain diverters of specific 22

287 See United States v. Glenn Colusa Irrigation District, 788 F. Supp. 1126 (E.D. Ca..1992) (court enjoined pumping of irrigation water to prevent take of listed salmon).

288 National Marine Fisheries Service, 1998. Endangered and Threatened Wildlife and Plants; Definition of “Harm” [draft]. Federal Register 63(84): 2414824150.

289 Torvik, S., 1999. Agencies botch Methow salmon recovery. Seattle Post Intelligencer, (5/9/99), p. F1.


concerns with regard to the inadequacy of their screens. On April 21,1999, 1

NMFS issued a Notice of Violation and Assessment of Administrative Penalty 2

(NOVA) for take of listed species during the 1999 irrigation season to one of the 3

diverters, the Methow Valley Irrigation District (MVID), seeking $55,000 for “take” 4

of members of two listed species. 290 NMFS then filed a complaint for injunctive 5

relief against MVID for the 2000 irrigation season, 291 and settled both the civil 6

penalty action and the injunctive suit on July 19, 2000. The settlement provides 7

for operational and structural modifications to the diversion system to reduce take 8

of listed fish, and for an injunction against diversion operations as of April 1, 9

2002, unless the District has converted to groundwater wells or obtained an 10

incidental take permit by that time. The complaint dealt only with issues of 11

inadequate screens and excessive water velocities did not address any ESA 12

violations that may result from low instream flow levels. 13

14

In another situation, the United States Fish and Wildlife Service (USFWS) 15

notified three irrigation districts in Washington State that they knowingly diverted 16

flows of the Walla Walla river and that the diversions caused the take of Bull 17

Trout. 292 The bull trout is a threatened species listed under the ESA. 293 18

290 Rowland, M.J., Water and the Sea: Case Study of the Methow Valley, January 2001, Environmental & Land Use Law, CLE.

291 United States v. Methow Valley Irrigation District, No. CS00196FVS, complaint filed May 31, 2000.

292 United States Fish and Wildlife Service v. Walla Walla River Irrigation District, et al., FWS.PN.2731 (June 2000).

293 50 C.F.R. § 17.11. A proposed rule to list the Columbia River distinct population segment of bull trout as a threatened species was published in the Federal Register on June 13, 1997. A final rule listing this bull trout population as a threatened species was published in the Federal Register on June 10, 1998, and became effective on July 10, 1998. Upon the listing effective date, the provisions of 50 C.F.R. Section 17.31(x) prohibited taking of bull trout. 16


1

The parties settled this case with the input of a coalition of environmental 2

groups and the Confederated Tribes of the Umatilla Indian Reservation. The 3

oneyear settlement agreement provided, among other things, minimum 4

instream water flows, continued fish salvage operations, fish and water 5

monitoring, and anticipates a basin wide conservation plan. 294 6

7

In 1973, Congress passed the Endangered Species Act (ESA) 295 to provide a 8

means whereby the ecosystems upon which endangered species and threatened 9

species depend may be conserved, to provide programs for the conservation of 10

these species, and to achieve the purposes of the treaties and conventions set 11

forth in the act. Under Section 9 of the Act, it is unlawful for any person to take 12

any listed species within the United States. 296 The term “take” means to harass, 13

harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to 14

engage in any such conduct. 297 The prohibition applies to state and federal 15

governments, corporations, municipalities, individuals, and others. It applies to 16

private as well as public land, except that it does not apply to plants on 17

nonfederal land unless the taking is in knowing violation of state law. 298 18

U.S.C. Section 1538(a)(1)(G) makes it unlawful for any person to violate any regulation pertaining to any threatened species of fish or wildlife.

294 Ibid.

295 16 U.S.C. 1531 et seq., as amended by P.L. 94325, June 30, 1976; P.L. 94359, July 12, 1976; P.L. 95212, December 19, 1977; P.L. 95632, November 10, 1978; P.L. 96159, December 28, 1979; P.L. 97304, October 13, 1982; P.L. 98 327, June 25, 1984; and P.L. 100478, October 7, 1988.

296 16 U.S.C. § 1538.

297 16 U.S.C. § 1532 (19).

298 16 U.S.C. § 1538(a)(2).


1

As part of the “take definition, the Secretary of Interior further defines “harm” to 2

include “significant habitat modification or degradation where it actually kills or 3

injures wildlife.” 299 The definition of “harm” is fairly expansive. The NMFS 4

proposed rulemaking notice provides examples of habitat modifications of listed 5

species that may fall within the definition of “harm”: 6

7

• constructing or maintaining barriers that limit or impede access to listed 8 species’ essential habitat; 9

10 • removing, poisoning or contaminating plants, fish wildlife, or other biota 11

required by listed species for feeding, sheltering or essential functions; 12 13

• discharging pollutants, oil, toxic chemicals, radioactivity, carcinogens, 14 mutagens, or teratogens into a listed species’ habitat; 15

16 • removing rock, soil, gravel, vegetation or other physical structures that are 17

essential to the integrity and function of a listed species’ habitat; 18 19

• removing water or otherwise altering streamflow when it is likely to 20 impair spawning, migration or other essential functions; 21

22 • releasing nonindigenous or artificially propagated individuals into a listed 23

species’ habitat; 24 25

• constructing or operating inadequate fish screen of fish passage facilities 26 at dams or water diversions in a listed species’ habitat; 27

28 • constructing or using inadequate bridges, roads, or trails on stream banks 29

or unstable slopes adjacent to or above a listed species’ habitat; and 30

299 50 CFR §17.3 (c) (Fish and Wildlife Service definition of “harm”); 63 Fed. Reg. 24148 (definition of “harm” proposed by the National Marine Fisheries Service); See also, Babbitt, Secretary of Interior v. Sweet Home Chapter of Communities For A Great Oregon, No. 94859. June 29, 1995, U.S. ; 115 S. Ct. 2407 (1995) (upholding definition of “harass” in 50 C.F.R. § 17.3 as including an “intentional or neglisgent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns”).


1 • constructing or using inadequate pipes, tanks, or storage devices 2

containing toxic substance where a release is likely to significantly modify 3 or degrade a listed species’ habitat. 300 4

5

The term “take” is comprised of three parts: (1) an act or in some cases, an 6

omission (a failure to act), (2) which causes, (3) injury or death to a listed 7

species, or the habitat on which it depends. 8

9

Regarding the term "act," direct assaults on a listed component species or the 10

elimination of some essential component of its critical habitat if a violation of 11

section 9. 301 In McKittrick, the defendant was successfully prosecuted for 12

intentionally shooting a gray wolf, an endangered species. The court indicated 13

the defendant was not required to have knowledge that he was shooting a listed 14

wolf to knowingly violate environmental regulations protecting an experimental 15

gray wolf population. The ESA required only that defendant knew he was 16

shooting an animal, and that animal turned out to be a protected gray wolf. 302 17

18

300 63 Fed. Reg. 24148 (May 1, 1998).

301 United States v. McKittrick, 142 F.3d 1170 (9th Cir. 1998).

302 In 1978, Congress changed the wording of Section 11 to "reduce the standard for criminal violations from 'willfully' to 'knowingly."' H.R. Rep. No. 951625, at 26 (1978), reprinted in 1978 U.S.C.C.A.N. 9453, 9476. The particular wolf that was killed in McKittrick was imported from Canada by the U.S. Fish and Wildlife Service. Gray wolves, although endangered in most of the United States, are plentiful in Canada. The Ninth Circuit Court stated that "gray wolves are protected by the ESA based on where they are found, not where they originate. Canadian gray wolves that migrate into the United States [naturally] assume protected status when they cross the border. Id at 1173.


“Causation” under Section 9 may be direct or indirect. 303 Causation may be 1

attributable directly to the governmental entity or to some third party. 304 2

Moreover, the act need not be the only cause of the prohibited effect, or even the 3

most important cause; it need only be a contributing cause. 305 The determination 4

of “causation” will likely be the pivotal element in future cases’ alleging takes by 5

government regulation or the lack thereof. 306 6

7

“Take” under Section 9 may include direct injury or death to a particular animal, 8

significant habitat modification or degradation where it kills or injures listed 9

species, or even injury to the recovery prospects of listed species. 307 Actions that 10

produce a substantial risk of injury to a species can be a take even though no 11

member of the species has been tangibly injured. Courts have not allowed an 12

"experimental approach" to the survival of endangered species. 308 Courts have 13

found that some actions can be a "take" because they pose a high risk of certain 14

or imminent injury. 309 It may be a "take" not only to injure an animal or its habitat, 15

303 Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 697702 (1995).

304 See Strahan v. Coxe, 127 F.3d 155 (1st Cir. 1997), cert. denied, 119 S. Ct. 437, 142 L. Ed. 2d 356 (1998).

305 See Palila v. Hawaii Dep't of Land & Natural Resources, 639 F.2d 495 (9th Cir. 1981).

306 Loggerhead Turtle v. Volusia County, No. 6:95CV00587 (M.D. Fla. Orl. Div.

Mar. 24, 2000).

307 See Palila v. Hawaii Dep't of Land & Natural Resources, 649 F. Supp. 1070 (D. Hawaii), aff'd, 852 F.2d 1106 (9th Cir. 1988) (9th Circuit never addressed whether recovery prospects equal take); 50 C.F.R. § 17.3.

308 Id. at 1082.

309 See Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 784 (9th Cir. 1995).


but also to injure its chances for recovery. In Palila, the court held that habitat 1

destruction that prevents the recovery of a species by affecting essential 2

behavioral patterns causes actual injury to the species and affects a taking under 3

section 9. 310 4

5

The ESA does not require that injury occur before an action can be enjoined. 311 6

In fact the definition of "harass" includes the concept of threatened or potential 7

injury. Harass is defined as "an intentional or negligent act or omission which 8

creates the likelihood of injury to wildlife." 312 9

10

Courts have found a take where there is a “reasonable likelihood” that an action 11

will harass and harm a listed species. 313 One court held that logging is the 12

classic kind of irreparable harm that supports a motion for injunction. 314 13

310 Palila v. Hawaii Dep't of Land & Natural Resources, 649 F. Supp. 1070, 1075 (D. Hawaii), aff'd, 852 F.2d 1106 (9th Cir. 1988).

311 Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781 (9th Cir. 1995).

312 50 C.F.R. § 17.3.

313 U.S. v. Granite Homes, No. EDCV 00485 RT, (C.D. Cal. 2000).Court grants request for a preliminary injunction, finding sufficient evidence to support a reasonable likelihood that development of California scrub habitat will harass and harm the gnatcatcher, a threatened species. Evidence showed gnatcatchers used the property during the breeding season. Best evidence of suitable habitat is its use by gnatcatchers. Court rejects arguments that the birds could use other habitat, and finding that modification of habitat used by wildlife is sufficient to constitute harm. Evidence supports reduced breeding and foraging opportunities for the gnatcatcher and introduction of new predators if the habitat is modified.

314 Boise Cascade v. Spear, No. 971810JO (D. Ore. 1998). Court issues a preliminary injunction prohibiting logging a northern spotted owl core area, finding that the habitat in question was likely to be used by owls, including a male owl


However, there must be evidence 315 that demonstrates at least a “reasonable 1

certainty” that an action will significantly impair a life history function. 316 2

3 In general, unintentional and unknowing acts do not escape the "take" 4

prohibition. The knowledge or mental state of the actor matters only in the 5

punishment. Knowing violations are crimes, while civil penalties may be levied 6

without proof of mental state. 317 In the absence of some incidental take 7

authorization, farmers who divert water or loggers who yard logs through a 8

salmonbearing stream may be guilty of a "take" under the ESA even if they 9

neither intended nor knew of the consequences of their activities. 10

which had abandoned the site in search of a new mate. Site consists of old growth forest and included a historic nest tree of a spotted owl pair. One member of the pair was dead and no owls nested the year prior to the hearing, but expert testimony indicated a reasonable likelihood that the surviving member of the pair would find a new mate and return to the site.

315 Defenders of Wildlife v. Bernal, No. 9816099, 2000 WL 220490 (9' Cir. 2000). Plaintiffs alleged building a school would take the threatened pygmy owl. Court finds no take when there is no evidence area is occupied by the pygmy owl, despite extensive surveys of the area, area in question may be at the outer fringe of the birds habitat, and FWS rule states clearing of unoccupied habitat does not result in take.

316 United States v. West Coast Forest Resources, No. 961575HO (2000 U.S. Dist. LEXIS 3908) (D. Ore. 2000). Court denied motion for permanent injunction enjoining clearcut logging of 94 acres used by northern spotted owls and located over one mile from the nest of the owls. The court concluded that a pair of owls used the 94 acre forest unit in question, but the evidence did not establish to a reasonable certainty that the logging would actually kill or injure owls by significantly impairing essential behavior patterns or that the habitat in question was essential to the owls survival. In particular, the court noted the owls high reproductive rate and heavy use of forest areas outside the unit. This decision follows a 1997 decision in the same case, where the court preliminarily enjoined logging, finding that the status quo should remain until additional facts could be presented to the court and that the protected wildlife should not bear the brunt of insufficient factual information.

317 16 U.S.C. § 1540.


1

In addition to the "take" prohibition contained in Section 9(a)(1)(b), the ESA also 2

makes it unlawful for any person "to attempt to commit, solicit another to commit, 3

or cause to be committed, any offense defined" in the ESA. 318 Although the 4

precise basis for liability is not always clearly articulated, courts are citing Section 5

9(g) with increasing frequency. 6 7 8

There are a variety of tools available to the federal agencies to assist private 9

citizens, other federal agencies, and states in implementing the Endangered 10

Species Act. The Secretary may permit a taking prohibited by Section 9 if it is 11

"incidental to, and not the purpose of, the carrying out of an otherwise lawful 12

activity.”319 Under Section 10(a)(1) of the Act, the Secretary may permit the 13

“incidental” taking of an otherwise prohibited species pursuant to a “conservation 14

plan.” A permit will be issued if: 15

16

(1) the taking will be incidental (to otherwise lawful activities); 17 18

(2) the applicant will, to the maximum extent practicable, 19 minimize and mitigate the impacts of such taking; 20

21 (3) the applicant will ensure that adequate funding for the plan 22

will be provided; 23 24

(4) the taking will not appreciably reduce the likelihood of the 25 survival and recovery of the species in the wild; and 26

27 (5) the measures, if any, required under subparagraph (A)(iv) 28

will be met. The permit shall contain necessary terms and 29 conditions, including, but not limited to, such reporting 30

318 16 U.S.C. § 1538(g).

319 16 U.S.C. § 1539(a)(1)(B).


requirements necessary for determining whether such terms 1 and conditions are being complied with (e.g., monitoring). 320 2

3

Typically, the applicant’s plan for minimizing and mitigating the impacts of the 4

proposed taking is outlined in a “habitat conservation plan” (HCP) that is allowed 5

under section 10 of the Act. Under § 10 of the Act an HCP must specify: 6

7

(1) the impact that will likely result form the proposed taking; 8 9

(2) the steps the applicant proposes to take to minimize and mitigate 10 such impact and the funding that will be available to implement 11 such steps; 12

13 (3) the alternative actions the applicant considered and the reasons 14

why such alternatives were not utilized; and 15 16

(4) such other measures as the Secretary may require as necessary or 17 appropriate for the purposes of the plan. 321 18

19

Once a species is listed as threatened or endangered under the ESA, federal 20

agencies have duties to assess and bring their programs and activities into 21

compliance with the Act. These duties fall into two categories: (1) the duty to 22

avoid jeopardy to listed species, and (2) the duty to utilize agency programs to 23

conserve listed species. 24 25 26

With respect to the first duty, under § 7 of the Act, all federal agencies shall 27

consult with the Secretary to utilize their authorities in the furtherance of the 28

purposes of the Act by carrying out programs for the conservation of endangered 29

and threatened species. Each federal agency action shall be carried out to 30

ensure “it is not likely to jeopardize the continued existence of any endangered 31

320 16 U.S.C. § 1539 (a)(2)(B).

321 16 U.S.C. § 1539 (a)(2)(A).


species or threatened species or result in the destruction or adverse modification 1

of critical habitat of such species,” unless granted an exemption by the “god” 2

squad. 322 To ensure compliance with this mandate, federal agencies must 3

consult with the appropriate expert fish and wildlife agencyNMFS in the case of 4

anadormous fishwhenever their actions “may affect” an endangered or 5

threatened species .323 This interagency consultation process assists federal 6

agencies I complying with their duty to ensure against jeopardy to listed species 7

or destruction or adverse modification of critical habitat. 8

9

An agency must initiate consultation under Section 7 whenever it takes an action 10

that “may affect “ a listed species. 324 Regulations implementing section 7 broadly 11

define the scope of agency actions subject to consultation. 325 The Ninth Circuit 12

Court of Appeals has construed this term to include ongoing agency actions 13

when the federal agency retains discretion over how an action proceeds. 326 14

15

To initiate consultation, an agency must assess the impacts of the action on 16

listed species and their habitat and provide all relevant information about such 17

impacts to the expert fish and wildlife agency. The end product of formal 18

consultation is a biological opinion in which NMFS determines whether the action 19

will jeopardize the survival of listed species or will adversely modify the species 20

critical habitat. 327 In order to make this determination, NMFS must review all 21

322 16 U.S.C. § 1538 (a)(2).

323 See 50 C.F.R. § 402.14.

324 See 50 C.F.R. § 402.14(a).

325 See 50 C.F.R. § 402.02 (definition of “action”).

326 See Pacific Rivers Council v. Thomas, 30 F.3d 1050, 105455 (CA9 1994).

327 16 U.S.C . § 1536(b).


relevant information and provide a detailed evaluation of the action’s effects, 1

including the cumulative effects of federal and nonfederal activities in the area, 2

on the listed species. 328 Moreover, the NMFS has a statutory duty to use the 3

best available scientific information in an ESA consultation. 329 4

5

Alternatively, if the action agency determines that an action may affect, but is not 6

likely to adversely affect the listed species or its critical habitat, the consultation 7

may be resolved without preparation of a biological opinion if NMFS concurs in 8

writing in that determination. 330 If NMFS does not concur, or if the action agency 9

had determined that the action is “likely to adversely affect” the listed species, the 10

agencies must conduct a formal consolation, leading to a biological opinion. 331 11

In addition, the ESA requires that, to preserve the status quo during the 12

consultation process: 13

14

After initiation of consultation required under subsection (a)(2) of 15 this section, the federal agency . . . shall not make any irreversible 16 or irretrievable commitment of resources with respect to the agency 17 action which has the effect of foreclosing the formulation or 18 implementation of any reasonable and prudent alternatives which 19 would not violate subsection (a)(2) of this section. 332 20

21

Second, Section 7(a)(1) obligates federal agencies to “utilize their authorities in 22

furtherance of the purposes of this chapter by carrying out programs for the 23

328 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14 (g)(h).

329 16 U.S.C. § 1536 (a)(2).

330 50 C.F.R. § 402.13.

331 Id. §§ 402.02, 402.14(a).

332 16 U.S.C. § 1536 (d).


conservation of endangered species and threatened species listed” under the 1

Act. 333 Like the duty to avoid jeopardy, the conservation duty is discharged in 2

consultation with the NMFS’ assistance. 334 3

4

After listing a species, the Secretary is required to issue regulations under § 4(d) 5

that are necessary to provide for the conservation of listed species. 335 The 4(d) 6

rule will include regulations that define the prohibition against “take” of the listed 7

species. These regulations will apply in any state that has entered into a 8

cooperative agreement under § 6 (c) to the extent the regulations have been 9

adopted by the states. 10

11

Under § 4(d), 16 U.S.C. § 1533 (d): 12

13

Whenever any species is listed as a threatened species pursuant to 14 subsection (c) of this section, the Secretary shall issue such 15 regulations as he deems necessary and advisable to provide for the 16 conservation of such species. The Secretary may be regulation 17 prohibit with respect to any threatened species any act prohibited 18 under section 1538(a)(1) of this title, in the case of fish or wildlife . . 19 .. 20

21

In other words, while the ESA makes the take prohibition directly applicable to all 22

endangered species, the Secretaries of Commerce and Interior – who oversee 23

the two expert fish and wildlife agencies, NMFS and Fish and ‘wildlife Service – 24

must issue conservation regulations that apply safeguards, such as the take 25

prohibition, to threatened species. 26

27

333 16 U.S.C. § 1536(a)(1).

334 Id.

335 16 U.S.C. § 1533 (d).


The ESA defines “conservation” as: 1

2

to use and the use of all methods and procedures which are 3 necessary to bring any endangered species or threatened species 4 to the point at which the measures provided pursuant to this 5 chapter are no longer necessary . . .. 336 6

7

In keeping with both the statutory direction and the legislative history, the courts 8

have held that 4(d) regulations must provide for the conservation of the 9

threatened species. 337 10

11

Under § 6 of the Act, states may enter into cooperative agreements with the 12

Secretary for the administration and management of any areas established for 13

the conservation of threatened and endangered species. It is the intent of the 14

State of Washington to utilize the § 4(d) rule process, habitat conservation 15

planning under § 10, and § 6 of the ESA as part of its overall salmon recovery 16

strategy. 338 The State’s plan is to utilize existing state institutional mechanisms 17

and seek consistency from the federal agencies with the ESA. 18

19

These and other obligations and liabilities under the ESA are made enforceable 20

under section 11. In addition to giving the federal government enforcement 21

336 16 U.S.C. § 1532(2).

337 Louisiana ex rel. Guste v. Verity, 853 f.2d 322 (CA5 1988) (4(d) regulations must include measures necessary to recover the species to the point where ESA protection is no longer necessary, rejecting argument that § 4(d)’s sole focus in preventing extinction); Sierra Club v. Clark, 755 F.2d 610 (CA8 1985) (4(d) regulations must further the effort ot bring the threatened species to the point where ESA protection is no longer necessary; authorizing a sport hunt exceeded this authority); Defenders of Wildlife v. Andrus, 428 F.Supp. 167 (D.D.C. 1977) (agency has an affirmative duty to increase the population of protected species).

338 Personal communication with Curt Smitch, Special Advisor to Governor Locke, Governor’s Salmon Team.


authority to assess civil and criminal penalties and to seek injunctive relief 1

against any person in violation of ESA or its regulations, §11 authorizes citizen 2

suits to enforce the ESA, including the taking prohibition of Section 9. The take 3

prohibitions of Section 9 can be enforced either by the federal government or by 4

private citizens via the citizen suit provisions of the ESA. 339 The Act fosters 5

citizen suits by allowing citizens to recover attorney and other fees if 6

successful. 340 The citizen suit provision is broadly available due to an expansive 7

interpretation of prudential standing requirements under the ESA. 341 Failure to 8

enforce or implement the ESA may be grounds for a complaint. Citizens may 9

also challenge consequences of ESA regulations. 10

11

1. ESA and Water Rights 12 13

In cases involving water rights, courts have issued temporary restraining orders 14

at the government's request enjoining irrigation districts from water diversion 15

activities which resulted in entrainment and impingement of ESA listed fish. 342 16

Courts have also held that the action agency and the consulting agency must 17

consider indirect, as well as direct, effects of the project or permit at issue, 343 and 18

339 16 U.S.C. § 1540 (e), (g).

340 16 U.S.C. § 1540(g)(3)(B).

341 Bennett v. Spear, 520 U.S. 154 (1997).

342 United States v. Grants Pass Irrigation District, Case No. 983034HO (D.Or. May 29, 1998.

343 Riverside Irrigation District v. Andrews, 758 F.2d 508 (10' Cir. 1985).


held that irrigators' contract and water rights were secondary to ESA and Indian 1

treaty trust obligations of the Bureau of Reclamation. 344 2

3

In Klamath Water Users Protective Association v. Patterson, 204 F.3d 1206 (9th 4

Cir. 2000), cert. denied, U.S. (2000), the court considered a challenge to the 5

Bureau of Reclamation's operations of the Klamath Irrigation Project and the 6

operation of the Link River Hydroelectric Dam. PacifiCorp operates the dam 7

pursuant to a contract with the Bureau of Reclamation. 8

9

Consultation under section 7 of the ESA between the National Marine Fisheries 10

Service and the Bureau of Reclamation resulted in releases from the Link River 11

Dam to the Klamath River for the benefit of salmon listed under the ESA. Project 12

irrigators, who have contracts with the Bureau of Reclamation and claim water 13

rights under state law, sued Reclamation arguing that their irrigation contracts 14

precluded the releases and that they were third party beneficiaries of the contract 15

between PacifiCorp and Reclamation. The court rejected the claim and ruled that 16

Reclamation is obligated to operate the Project consistent with the requirements 17

of the ESA and trust responsibilities to Indian tribes with fishing rights. In other 18

words, the contracts were subject to the ESA and Fifth Amendment takings were 19

not implicated. 20

21

While several cases make it clear that obligations to avoid violating the ESA take 22

priority over obligations to provide water to outofstream users under federal 23

contracts, 345 at least two decisions from California have stated that the ESA will 24

344 Klamath Water Users Protective Assoc. v. Patterson, 191 F.3D 1115 (9" Cir.

1999).

345 See, e.g., Klamath Water Users, Id..


trump state water rights. In one of these cases, the take of ESA listed fish was 1

caused by the pumping of water and consequent entrainment in canals and 2

impingement on fish screens, as opposed to low stream flows. 3

4

A case involving the "take" provisions (§ 9 of the ESA) is United States v. 5

GlennColusa Irrigation District, 788 F. Supp. 1126 (E.D. CA 1992). It was 6

undisputed that an irrigation pumping station killed juvenile chinook salmon, but 7

the irrigation district nevertheless did not seek an incidental take permit. The 8

National Marine Fisheries Service had invited the District to seek an incidental 9

take permit under 16 U.S.C. § 1539(a)(1)(b). The court rejected the argument 10

that state water rights held by the District allowed it to ignore the take prohibitions 11

of the ESA and enjoined pumping during the peak migration season of July 12

November 13

14

The court addressed a state water right defense head on: 15

16

Finally, in the same vein, the water district argues that state water 17 law rights should prevail over the Endangered Species Act. The Act 18 provides that federal agencies should cooperate with state and 19 local authorities to resolve water resource issues regarding the 20 conservation of endangered species. 16 U.S.C.§1531(c)(2). This 21 provision does not require, however, that state water rights should 22 prevail over the restrictions set forth in the Act. Such an 23 interpretation would render the Act a nullity. The Act provides no 24 exemption from compliance to persons possessing state water 25 rights, and thus the District's state water rights do not provide it with 26 a special privilege to ignore the Endangered Species Act. 346 27

28

The court expressed the opinion that the rather than extinguishing the state 29

water right, the ESA merely set limits on the exercise of that right. "[E]nforcement 30

346 United States v. GlennColusa Irrigation District, 788 F.Supp. 1126,1134 (E.D. Cal. 1992).


of the Act does not affect the Districts' water rights but only the manner in which 1

it exercises those rights." 347 2

3

In Barcellos and Wolfs en v. Westlands Water District, 348 though involving federal 4

water contracts, the court went out of its way to implicate state water rights: 5

6 "Even assuming, arguendo, that the Movants hold water rights 7 based on statutes which are broader than their contractual rights, 8 they are not exempt from compliance with environmental statutes . 9 .... If Congress has directed that the Bureau [of Reclamation] 10 reserve water for environmental purposes, Movants cannot be 11 heard to insist that their rights require the Bureau to disobey the 12 law." 349 13

14

2. Governmental agencies are also prohibited from “taking” a listed 15 species. 16

17

The "take" prohibitions of the ESA and its implementing regulations have 18

required state and local governmental agencies to modify many of the activities 19

in which they normally engage, including certain permitting and regulatory 20

practices. Unmodified, these activities could cause a "take" of threatened or 21

endangered salmon. Case law indicates that governmental agencies may incur 22

take liability either through their own proprietary and/or management activities, or 23

by permitting or authorizing a third party to engage in conduct that has the 24

prohibited consequence. 25

26

347 Id.

348 849 F. Supp. 717 (E.D. Calif 1993).

349 Barcellos at 732.


3. Governmental liability under the ESA. 1 2

Courts have held that government agencies can cause "takes" of protected 3

species through a variety of proprietary, land management and/or generalized 4

regulatory actions (situations in which no specific permit or permission is 5

granted). 6

7

In Palila v. Hawaii Dept of Land and Nat. Res., 350 the maintenance of feral goats 8

and sheep on the habitat of the endangered palila bird gave rise to a "take" 9

violation. The palila is found only in a smallforested area on the slopes of 10

Mauna Kea in Hawaii, where the State Department of Land and Natural 11

Resources kept the sheep and goats for sporthunting purposes. 351 The problem 12

resulted because the goats and sheep ate the leaves, stems, seedlings and 13

sprouts of a particular tree on which the palila primarily depended for food and 14

shelter. 352 15

16

The Ninth Circuit Court held that the Department's action in maintaining the goats 17

and sheep was a "take." The trial court had found that the Department's activities 18

endangered the palilas and the Department failed to demonstrate to the Ninth 19

Circuit that the trial court had erred in that assessment. 353 The Ninth Circuit 20

350 639 F.2d 495 (9th Cir. 1981).

351 Palila v. Hawaii Dep't of Land & Nat. Res., 471 F. Supp. 985, 989 (D. Hawaii 1979).

352 Id. at 98990.

353 639 F.2d at 497.


found further support for its conclusion in the legislative finding that the greatest 1

threat to endangered species is the destruction of their natural habitat. 354 2

3

Other courts have reached similar conclusions. In Sierra Club v. Lyng, 355 the 4

district court held that the United States Forest Service had committed a "take" of 5

the redcockaded woodpecker by managing federal timberlands in such a way as 6

to produce only evenaged stands of trees. These clearcutting practices, the 7

court said, impaired the "essential behavioral patterns" of the woodpecker and 8

thus resulted in a taking. 356 9

10

The Environmental Protection Agency's registration of pesticides containing 11

strychnine was found to be a taking because endangered species died from 12

ingesting the poison bait. That poison could only be distributed pursuant to EPA's 13

registration scheme. 357 In NWF v. Hodel, 358 a citizens' suit resulted in a finding 14

that the USFWS had committed a take by allowing lead shot to be used in the 15

hunting of migratory birds. The lead shot was ingested by bald eagles that fed on 16

the wounded waterfowl. 17

18

354 Id. at 498; Palila v. Hawaii Dept ofLand & Nat. Res., 852 F.2d 1106, 1108 (9th Cir. 1988).

355 694 F. Supp. 1260 (E.D. Texas 1988), affirmed in part, vacated in part, Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991).

356 Id. at 1271.

357 Defenders of Wildlife v. Environmental Protection Agency, 882 F.2d 1294 (8th Cir. 1989).

358 15 Envtl. L. Rep. 20891 (E.D. Cal. 1985),


4. Governmental agencies may cause “take” of a listed species through 1 it regulation or permitting,authority, or failing to regulate. 2

3

Some of the actions and activities described above would obviously trigger the 4

"take" prohibitions of Section 9 whether engaged in by a government agency or a 5

private project proponent. Less obvious, however, is the developing reality that 6

project proponents may not be the only ones at risk of a "take." Permitting and 7

regulatory agencies may also be at risk of a take by permitting and/or failing to 8

adequately regulate a project or private activity. This possibility will affect how 9

agencies issue permits and administer their regulations 10

11

State and local governments administer myriad laws that require permits or other 12

approvals. Examples include permits to engage in logging activities under the 13

Washington Forest Practices Act, RCW 76.09, substantial development permits 14

under the Washington Shoreline Management Act, RCW 90.58, hydraulic project 15

approvals under the Washington Fisheries Code, RCW 75.20, water right permits 16

under the Water Code, and grading and building permits under local zoning 17

codes. See RCW. 36.70. 18

19

Section 9 of the ESA adds a new dimension to government permitting activities. 20

In the absence of the ESA, the issuance of these permits is largely guided by 21

state and local laws. The case of Strahan v. Coxe, however, indicates that 22

government may "take" a listed species by simply issuing a permit or license or 23

otherwise authorizing private activity. 359 In Strahan, plaintiffs alleged that 24

Massachusetts officials had violated the ESA by issuing licenses and permits 25

allowing gillnet and lobster pot fishing. The trial court found that endangered 26

northern right whales, seasonally present in Massachusetts waters, had become 27

359 127 F.3d 155 (1st Cir. 1997), cert. denied, 119 S. Ct. 437, 142 L. Ed. 2d 356 (1998).


entangled in the fixed fishing gear. 360 The court concluded that Massachusetts' 1

mere licensing and permitting of such gillnet and lobster pot fishing constituted a 2

"take" under the ESA. Affirming the trial court, the First Circuit Court of Appeals 3

reasoned that the ESA prohibits not only the acts of those who directly exact the 4

taking, but also "acts by third parties that allow or authorize acts that exact a 5

taking and that, but for the permitting process, could not take place." 361 The First 6

Circuit held that "a governmental third party pursuant to whose authority an actor 7

directly exacts a taking of an endangered species may be deemed to have 8

violated the provisions of the ESA." 362 9

10

In Strahan, Massachusetts argued that the licensing or permitting of fishing gear 11

is no different than the licensing of a driver, and does not cause a "take" any 12

more than the licensing of drivers and cars solicits or causes crimes wherein an 13

automobile is used. 363 The court responded that, unlike the licensing of cars or 14

drivers, the fishery agency had licensed the use of gillnets and lobster pots in 15

specifically the manner that was likely to result in the violation of federal law. 364 16

The court found irrelevant Massachusetts' efforts to minimize entanglements and 17

the fact that other means and activities exacted potentially greater impacts on the 18

listed species. 365 The Strahan case illustrates that a "person," broadly defined to 19

include state and local governments and subdivisions thereof, may violate the 20

360 939 F. Supp. 963, 984 (D. Mass. 1996).

361 127 F.3d at 163.

362 Id.

363 Id.

364 Id. at 164.

365 Id. at 165.


ESA by permitting or otherwise authorizing the acts of third parties that exact a 1

"taking." 2

3

The risk that government activities can constitute a prohibited act under the 4

ESA is not a new concept. In earlier cases, federal agencies and officials had 5

been found to have violated Section 9 by permitting or in some way facilitating 6

the actions of others that resulted in a take. In Defenders of Wildlife v. 7

Environmental Protection Agency, the Eighth Circuit held that EPA had "taken" 8

endangered species by continuing the registration of pesticides that contained 9

strychnine under the Federal Insecticide, Fungicide, and Rodenticide Act. 366 In 10

NWF v. Hodel, 367 the USFWS was found to have committed a take by allowing 11

lead shot to be used in the hunting of migratory birds. The Strahan decision 12

goes a step further, however, by applying the ESA to state licensing decisions. 13

14

The Ninth Circuit has not been presented with the issue of governmental ESA 15

liability, but at least one district court in the circuit has. In Greater Ecosystem 16

Alliance v. Lydig, the United States District Court for the Western District of 17

Washington held that Washington wildlife officials, by authorizing hunting 18

seasons for black bear, with hounds and bait, had "taken" listed grizzly bear, 19

which inhabited the region being hunted. 368 20

21

As a consequence of these decisions, state and local agencies and officials 22

understand that if they affirmatively permit, either by specific and individualized 23

authorization, or even potentially by as a consequence of these decisions, by 24

366 882 F.2d 1294, 1301 (8th Cir. 1989).

367 15 Envtl. L. Rep. 20891 (E.D. Cal. 1985).

368 Greater Ecosystem Alliance v. Lydig, No. C941536C, Order on Cross Motions For Summary Judgment (W.D. Wash. March 5, 1996).


generalized permission or authorization (such as opening a bear hunting 1

season), they may risk liability under Section 9. This potential liability may extend 2

even further. Not only may governments be liable for affirmatively acting to permit 3

some activity, they may also be liable for failing to prohibit or regulate some 4

activity where they have the regulatory authority to do so. 5

6

Governmental agencies may be liable for take under the ESA for inaction or 7

inadequate action. 369 In Loggerhead Turtle, the County's failure to ban or 8

effectively regulate beach driving and certain artificial light sources was 9

challenged as a violation of the ESA. The case involved loggerhead and green 10

sea turtles, which are listed as threatened and endangered, respectively. 370 11

Female adults of these species come ashore in the spring to deposit their 12

eggs. 371 Months later, the hatchling turtles break out of their shells at night and 13

make their way toward the brightest light on the horizon. On undeveloped 14

beaches, the brightest light is the moon's reflection off the water. On a 15

developed beach, however, the brightest light can be artificial lights inland. 372 16

The plaintiffs alleged that the county had violated the ESA by failing to restrict 17

beach driving that crushed the nests and the young turtles, and by failing to 18

regulate inland artificial light adequately. 19

20

The Eleventh Circuit did not decide the ultimate question of whether the county 21

committed a take by failing to regulate these activities adequately. The court, 22

however, said the plaintiffs had shown a sufficient causal connection to seek to 23

369 Loggerhead Turtle v. County Council of Volusia County, Florida, 148 F.3d 1231 (11th Cir. 1998), cent. denied, 119 S. Ct. 1488 (U.S. Apr. 19, 1999).

370 Loggerhead Turtle ,148 F.3d at 1235.

371 Id.

372 Id.


hold the county liable for "harmfully" inadequate regulation of artificial beachfront 1

lighting and remanded the case to the trial court. 373 2

3

On remand, the district court determined that Volusia County's new lighting 4

ordinance, which was aimed a protecting the sea turtles, was not, in and of itself, 5

a violation of Section 9 of the ESA. The court pointed out, however, that 6

individuals responsible for the actual illumination of the beach may be in violation 7

of the ESA. 8

9

I. Instream Flows Reserved by the Federal Government or through 10 Treaty on behalf of Indian Tribes. 11

12 13

Washington state is home to the treaties of Isaac Stevens, a mid19 th century 14

envoy from Washington D.C. who served as territorial governor. Stevens was 15

dispatched to the northwest regions to negotiate treaties with the numerous 16

indigenous bands, clans and tribes residing therein. 374 As part of these 17

agreements the tribes agreed to relinquish their title to all the land in the region, 18

while reserving small tracts of homelands (reservations) and “the right to take fish 19

373 Loggerhead Turtle, 148 F.3d at 1249.

374 Treaty of Medicine Creek (Nisqually, Puyallup, Steilacoom, Squaxin, others), 10 Stat. 113237, December 26, 1854, proclaimed April 10, 1855; Treaty of Point Elliott (Suquamish, Snoqualmie, Stillaguamish, Snohomish, Skagit, Swinomish, Lummi, others), 12 Stat. 92732, January 22, 1855; proclaimed April 11, 1859; Treaty of Point No Point (Clallam, Twana, Chemakum), 12 Stat. 93337, January 26, 1855, proclaimed April 29, 1859; Treaty of Makah (Makah), 12 Stat. 93943, January 31, 1855, proclaimed April 18, 1859; Treaty of Yakama (Yakama and other bands), 12 Stat. 95156; June 9, 1855; proclaimed April 18, 1859; Treaty of Olympia (Quinault and Quileute), 12 Stat. 97174, July 1, 1855 and January 25, 1856; proclaimed April 11, 1859.


in common with nonIndians at all usual and accustomed places.” 375 The tribes’ 1

right to take fish was not limited to their reservations. 376 These rights assure the 2

tribes access to their fishing grounds 377 , insulate them from state license fees 378 , 3

protect them against discriminatory regulation 379, and guarantee them half of the 4

harvestable fish, including fish produced from federal and state hatcheries. 380 5

6

The United States Supreme Court observed “that Indian treaty fisheries were so 7

predictable that they resembled crops,” and held that this predictability gave the 8

treaty phrase “right of taking fish” particular significance. 381 In addition, the 9

Court recognized that the treaty right of the tribes forbade the “crowding out” of 10

tribal fishers by property rules, fish wheels, license fees, or general regulation. 382 11

The Court held that the treaty fishing clauses found in the Stevens Treaties were 12

intended to protect something more than “merely the chance ... occasionally to 13

dip [the Indians’] nets into the territorial waters.” 383 The treaty fishing clauses 14

were intended to provide the Indian signatories with a “fair share” of the fish and 15

to “protect them from the risk that nonIndian settlers might seek to monopolize 16

375 See, e.g., Treaty of Medicine Creek, art. III, 10 Stat. 1133 (1855).

376 See United States v. Winans, 198 U.S. 371.

377 See e.g., Seufert Brothers Co. v. United States, 294 U.S. 194.

378 See e.g., Tulee v. Washington, 315 U.S. 681 (1942).

379 See e.g., Puyallup v. Department of Game, 391 U.S. 392 (1968).

380 See e.g., United States v. Washington, 384 F.Supp. 312 (WD WA 1974).

381 Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658 at 663, 678 (1979) (Passenger Fishing Vessel).

382 Passenger Fishing Vessel, 443 U.S. at 679.

383 Id. at 679.


their fisheries.” 384 They were intended to prevent settlers from crowding out 1

Indians from meaningful use of their fishing places. 385 2

3

The following discussion will review two separate legal theories where 4

upon instream flows are reserved by: (1) the federal government onbehalf 5

of Indian tribes or (2) Indian tribes themselves through treaties with the 6

United States. In addition, a separate legal theory will be described where 7

ownership of the water is not the issue but where the state has a duty 8

under the Steven’s treaties to the tribes to ensure adequate instream flows 9

are protected and preserved. 10

11

1. Federal and Indian Reserved Water Rights 12

a. Federal reserved instream water rights. 13 14

Indian reserved water rights are federal water rights and "are not dependent upon 15

state law or state procedures." 386 Federal reserved Indian water rights are 16

governed by what is known as the "Winters Rights," emanating fromWinters v. 17

United States. 387 18

19

In 1908, the United States Supreme Court held in Winters v. United States that 20

federal reservations included "implied" water rights predating any subsequent 21

water appropriators. 388 This “implied rights” doctrine applies equally to all land 22

384 Id. at 684 and 666.

385 Id. at 676.

386 Cappaert v. United States, 426 U.S. 128 (1976).

387 207 U.S. 564 (1908).

388 207 U.S. 564 (1908).


set aside by the federal government such as national parks, forests, military 1

bases, wildlife refuges, wilderness areas, and Native American reservations. 2

However, federal reserved rights are only senior to appropriations after the land 3

was set aside, and only to the extent necessary to fulfill the specific original 4

congressional purposes of the reservation. 389 5

6

Under the implied rights doctrine, Native Americans hold extensive water rights 7

senior from the time of a reservation's establishment. The standard used to the 8

quantity the federal reserved water rights is typically defined by the "practicably 9

irrigable acreage." 390 The enormous potential of federal reserved water rights 10

became manifest in Arizona v. California, where the Supreme Court granted over 11

900,000 acre feet per year to tribes in the lower basin states of the Colorado 12

River. 391 In one such adjudication in Washington State, the State Supreme Court 13

issued a final order quantifying nearly 720 cubic feet per second plus 350,000 14

acre feet of water to the Yakama Indian Nation from the mainstem of the Yakima 15

River. In addition, the Nation was awarded adequate water to maintain the treaty 16

389 See, e.g., Cappaert v. United States, 426 U.S. 128 (1976) (upholding water claim to preserve pupfish habitat at Devil's Hole National Monument as consistent with reservation's purpose); United States v. New Mexico, 438 U.S. 696 (1978) (rejecting claims for instream water in Gila National Forest, established in 1899, because original purpose of reservation was timber production and watershed protection, not wildlife protection).

390 See Michael R. Moore, Native American Water Rights: Efficiency and Fairness, 97 NAT. RESOURCES J. 62 (1989). Two methods are used to resolve Native American water rights claims: the first is a general stream adjudication in state court, subject to federal review. McCarren Amendment, 43 U.S.C. § 666 (1952) (authorizing joinder of United States in state adjudication of water rights in stream systems). The second method involves a settlement negotiation with state governments, the federal government, and affected water users.

391 373 U.S. 546 (1963).


fishing right in offreservation streams of the Yakima basin. 392 1

2

The federal reserved water rights doctrine was reaffirmed in Arizona v. 3

California, 393 and was best summed up by the Court in Cappaert as follows: 4

5

This Court has long held that when the federal government 6 withdraws its land from the public domain and reserves it for federal 7 purposes, the government, by implication, reserves appurtenant 8 water then unappropriated to the extent needed to accomplish the 9 purpose of the reservation. In so doing the United States acquires a 10 reserved right in unappropriated water which vests on the date of 11 the reservation and is superior to the rights of future appropriators. 12 Reservation of water rights is empowered by the Commerce 13 Clause, art. I, § 8, which permits federal regulation of navigable 14 streams, and the Property Clause, art. IV, § 3, which permits federal 15 regulation of federal lands. The doctrine applies to Indian 16 reservations and other federal enclaves, encompassing water rights 17 in navigable and nonnavigable streams. 18

19 In determining whether there is a federallyreserved water right 20 implicit in a federal reservation of public land, the issue is whether 21 the government intended to reserve unappropriated and thus 22 available water. Intent is inferred if the previously unappropriated 23 waters are necessary to accomplish the purpose for which the 24 reservation was created. 394 25

26 Once quantity is established, courts differ on how the water may actually be 27

used. One issue is whether instream flows are consistent with the purpose of the 28

reservation. Some courts have found that reserved rights on Native American 29

reservations can only be used for irrigation because the purpose of the 30

reservations was, and is, converting Native Americans into "civilized" farmers. In 31

392 State of Washington v. Yakima Reservation Irrigation District, 121 Wn.2d 257, 850 P.2d 1306 (1993).

393 373 U.S. 546 (1963).

394 Id. at 13839.


1988, the Wyoming Supreme Court confirmed the Shoshone and Northern 1

Arapaho tribal water right of onehalf million acrefeet (MAF) 395 from the Wind 2

River. 396 However, the court then refused to recognize Native American rights 3

for any use other than agriculture, effectively taking back the tribe's water 4

because the tribe lacked the necessary infrastructure for irrigation. 397 5

6

However, where Indian treaties include a reservation of onreservation fishing, 7

the courts have supported a broader definition of “purposes” which would 8

encourage a broader goal of Native American economic and cultural 9

selfsufficiency. 398 Many tribes feel their water would best serve them flowing in 10

the stream, providing fisheries and spiritual values. In fact, a number of courts 11

support the notion of the federal government reserving water for the tribes to 12

support their onreservation rights to fish. 13

14

The relationship between federal reserved water rights, “Winters Rights,” and 15

instream flows was best described in Colville v. Walton. The Walton case 16

involved sharing of water for agricultural and fish rearing purposes from the No 17

Name Creek hydrological system on the Colville Indian Reservation in Eastern 18

395 The term "acrefoot" is the quantity of water required to cover an area of one acre to one foot in depth.

396 See In re General Adjudication of All Rights to Use Water in the Big Horn River System, 753 P.2d 76 (1988), aff'd sub nom. Wyoming v. United States 492 U.S. 406 (1989).

397 See Sarah F. Bates, et. al. SEARCHING OUT THE HEADWATERS: CHANGE AND REDISCOVERY IN WESTERN WATER POLICY 85 (1993). On appeal, the U.S. Supreme Court did not review this issue. See Wyoming v. United States, 488 U.S. 1040 (1989) (limiting scope of grant of certiorari by Supreme Court to other issues).

398 See Marc Reisner and Sarah Bates, OVERTAPPED OASIS: REFORM OR REVOLUTION FOR WESTERN WATER 62 at 96 (1990).


Washington. In the dispute over a small tributary of Omak Lake, the Ninth Circuit 1

said the Colville Tribes have an onreservation instream water right for Lahontan 2

cutthroat spawning: 3

4 Congress has the power to reserve unappropriated water for use 5 on appurtenant lands withdrawn from the public domain for specific 6 federal purposes. . . . Where water is needed to accomplish those 7 purposes, a reservation of appurtenant water is implied. . . . The 8 United States acquires a water right vesting on the date the 9 reservation was created, and superior to the rights of subsequent 10 appropriators. . . . 11

12 An implied reservation of water for an Indian reservation will be 13 found where it is necessary to fulfill the purposes of the 14 reservation.. . . 15 . . . . 16

17 We agree with the district court that preservation of the tribe's 18 access to fishing grounds was one purpose for the creation of the 19 Colville Reservation. Under the circumstances, we find an implied 20 reservation of water from No Name Creek for the development and 21 maintenance of replacement fishing grounds. 399 We affirm the 22 district court's holding that the Colvilles have a reserved right to the 23 quantity of water necessary to maintain the Omak Lake fishery. 400 24

25 Rejecting the argument that water should not be retained instream for spawning 26

purposes because the fish in question could be raised in a federal hatchery, the 27

Court refused to condition the existence of the water right on continuing need: 28

29 The district court held that water for spawning could not be 30 awarded at this time because the federal government provides the 31 necessary fingerlings. We reverse this holding. 32

33

399 647 F.2d 42 (9th Cir.), cert denied, 454 U.S. 1092, (1981), (9th Cir. No. 834285, Jan. 21, 1985).

400 647 F. 2d at 4648 (Emphasis added).


The right to water to establish and maintain the Omak Lake Fishery 1 includes the right to sufficient water to permit natural spawning of 2 the trout. When the Tribe has a vested property right in reserved 3 water, it may use it in any lawful manner. As a result, subsequent 4 acts making the historically intended use of the water unnecessary 5 do not divest the Tribe of the right to the water. 401 6

7 In summary, the Walton case illustrates several principles from the Winters 8

doctrine: 9

10 • The case holds that the United States reserved sufficient water at the 11

time the reservation was created to allow irrigation of all practicably 12 irrigable acreage on the reservation, 13

14 • A ratable share of the water reserved for irrigation passed to 15

Indian allottees, 16 17

• The ratable share could in turn be conveyed to a nonIndian purchaser 18 (e.g.,Walton). However, the nonIndian purchaser's share was subject 19 to loss if not put to use, that is, the nonIndian purchaser must exercise 20 "reasonable diligence" in applying water beneficially to his land, 21

22 • In addition to water for irrigation, sufficient water was reserved to allow 23

establishment of fisheries and to facilitate natural spawning of fisheries. 24 The quantity of water unrelated to irrigation was not affected by the 25 allotment of the reservation and the passage of title out of Indian hands, 26

27 • Although the nonIndian's use was subject to defeasance for nonuse, the 28

Indian allottee's share was not subject to such reduction, 29 30

• The reserved tribal right for sufficient water to support fisheries emanated 31 from the purposes for which the reservation was created and not from 32 actual use or appropriation. Thus, failure of the tribe to use the water for 33 fisheries until a much later date in history did not defeat the tribe's right 34 nor reduce its priority, and 35

36 • Where there was insufficient water to meet all of the needs (nonIndian 37

agricultural, Indian allottee agrarian and tribal fisheries), each party should 38 bear a proportionate share of any adjustment required by the shortage, 39

401 647 F. 2d at 48. See also, United States v. Anderson, 591 F. Supp. 1 (E. D. Wash. 1982).


since all parties had a priority date as of the date of creation of the 1 reservation. 402 2

3 4

Also in 1985, in Confederated Salish and Kootenai Tribes of the Flathead Indian 5

Reservation v. Flathead Irrigation District, 403 the Tribes sued the Bureau of Indian 6

Affairs on claims that its allocation of water between fisheries and irrigators 7

violated both treaty fishing rights and water rights reserved for reservation 8

purposes. Following issuance of a temporary restraining order, the parties 9

stipulated flows and levels for that irrigation season and procedures to set flows 10

and levels for subsequent seasons. That action was then dismissed as moot. 11

12

In 1986, the irrigators sued, claiming the Bureau had abused its discretion in 13

setting flows and levels by ignoring the interests of irrigators and by inequitably 14

distributing water. The District court issued an injunction in favor of the irrigators, 15

saying that the Bureau must make “just and equal distribution” of all on 16

reservation waters. 404 The Tribes appealed. 17

18

In 1987, the Ninth Circuit reviewed the case. 405 It made short work of the District 19

court’s equitable allocation approach: 20

21 To the extent that the Tribes here did exercise aboriginal fishing 22 rights, the treaty language clearly preserved those rights, and the 23 water needed for them. [citing Adair]. The priority date of time 24 immemorial obviously predates all competing rights asserted by the 25

402 Citations omitted.

403 616 F. Supp. 1292 (D. Mont. 1985).

404 Joint Board of Control of the Flathead, Mission and Jocko Irrigation Districts v. United States, 646 F. Supp. 410, 426 (D. Mont. 1986).

405 Joint Board of Control of the Flathead, Mission and Jocko Irrigation Districts v. United States, 832 F. 2d 1127 (9th Cir. 1987); certiorari denied, 486 U.S. 1007 (1988).


Joint Board for the irrigators in this case. Once a court takes 1 jurisdiction to resolve a water rights dispute, it has a ‘solemn 2 obligation to follow federal law’ that governs Indian water rights. . . 3 . . It was error, therefore, for the district court to hold that water 4 claimed under potentially prior tribal fishing rights must be shared 5 with junior appropriators, and that the requirement of equitable 6 sharing could be imposed without addressing the Tribes’ claim of 7 aboriginal fishing water rights. 8

9 At oral argument, the Joint Board contended that the law would not 10 permit the tribal fisheries to be protected in full if the result was to 11 deprive a much larger number of farmers of the water needed for 12 irrigation. This contention ignores one of the fundamental 13 principles of the appropriative system of water rights. . . . . ‘Where 14 reserved rights are properly implied, they arise without regard to 15 equities that may favor competing water users.’ [citing Walton and 16 Cappaert v. United States, 426 U.S. 128, 13839 (1976).] To the 17 extent that the Tribes enjoy treatyprotected aboriginal fishing 18 rights, they can ‘prevent other appropriators from depleting the 19 streams (sic) waters below a protected level.’ [citing Adair and a 20 related Montana case.] 21 . . . . 22

23 The reluctance of the district court to render a final adjudication of 24 water rights in the Flathead Irrigation District is quite 25 understandable. We do not suggest that the court is required to 26 make any such general adjudication or quantification in the course 27 of these proceedings. But the preliminary injunction under review, 28 and the principle established for future irrigation years by the 29 district court’s opinion, fail to accord potentially superior tribal 30 fishing rights the protection that federal law gives them against 31 claims and considerations of junior appropriators. 32 . . . . 33

34 In making its determination . . . the BIA is acting as trustee for the 35 Tribes. Because any aboriginal fishing rights secured by treaty are 36 prior to all irrigation rights, neither the BIA nor the Tribes are 37 subject to a duty of fair and equal distribution of reserved fishery 38 waters. 406 39

40

406 832 F. 2d at 113132.


While this was an onreservation case, note that the Court of Appeals, rather 1

than rationalizing the Tribes’ water right as appurtenant to land, described 2

that right as part of the Tribes’ treaty fishing right. The court unequivocally 3

linked the instream (and inlake) water right to the fishing right. The quoted 4

language refers to protection of “fisheries” and “fishing rights.” In this circuit, 5

there is no longer any apparent need to tie claimed water rights to parcels of 6

land, although easements across land are another aspect of the treaty fishing 7

right. 8

9 In summary, federal reserved water rights were reserved by the federal 10

government on behalf of Indian tribes. The priority date for these water rights is 11

the time of reservation, generally 18551856. The amount of the water is 12

appurtenant to the reservation land base. The purposes of the water right are for 13

agriculture, fisheries, or a homeland to sustain tribal economies and cultures. 14

15

b. Indian instream water rights based on treaty. 16 17

In addition to the “federal” reserved water rights for onreservation purposes, 18

which for western Washington Tribes includes instream flows, offreservation 19

waters are also subject to “Indian” reserved water rights. “Indian” reserved 20

water rights have been found where a right to hunt and fish beyond reservation 21

boundaries has been reserved by tribes at usual and accustomed fishing places 22

by treaty. 407 Fishing rights are reserved by the tribes exclusively, not grants by 23

the federal government or the states. 408 24

25

407 See, Washington v. Fishing Vessel Assn, 443 U.S. 658 (1979).



In 1984, in United States v. Adair, 409 the Ninth Circuit expanded its reasoning in 1

Walton, holding that Oregon’s Klamath Tribe, not the federal government, has an 2

instream flow right on lands no longer part of the Klamath Indian Reservation: 3

4 Article I of the 1864 treaty with the Klamath Tribe reserved to the 5 Tribe the exclusive right to hunt, fish and gather on its reservation. 6 . . . The issue presented for decision in this case is whether, as the 7 district court held, these hunting and fishing rights carry with them 8 an implied reservation of water rights. 410 9

10 A water right to support game and fish adequate to the needs of Indian hunters 11

and fishers is not a right recognized as a part of the common law doctrine of prior 12

appropriation followed in Oregon. Indeed, one of the standard requirements of 13

the prior appropriation doctrine is that some diversion of the natural flow of a 14

stream is necessary to effect a valid appropriation. But diversion of water is not 15

required to support the fish and game that the Klamath Tribe take in exercise of 16

their treaty rights. Thus the right to water reserved to further the Tribe’s hunting 17

and fishing purposes is unusual in that it is basically nonconsumptive. . . . [T]he 18

entitlement consists of the right to prevent other appropriators from depleting the 19

stream’s waters below a protected level in any area where the nonconsumptive 20

right applies. . . . In this respect, the water right reserved by the Tribe to hunt 21

and fish has no corollary in the common law of prior appropriations. 411 22

23

In holding that the Klamath Tribe has an instream water right with a priority senior 24 to all other uses: 25

26

Thus, we are compelled to conclude that where, as here, a tribe 27 shows its aboriginal use of water to support a hunting and fishing 28 lifestyle, and then enters into a treaty with the United States that 29

409 723 F. 2d 1394 (9th Cir. 1984); certiorari denied, 467 U.S. 1252 (1984).

410 723 F. 2d at 1408 (Emphasis added). 411 723 F. 2d at 1411.


reserves this aboriginal water use, the water right thereby 1 established retains a priority date of first or immemorial use. 412 2

3

The treaty water right is superior to all other uses: 4

5 Such water rights necessarily carry a priority date of time 6 immemorial. The rights were not created by the 1864 Treaty, 7 rather, the treaty confirmed the continued existence of these rights. 8 . . . To assign the Tribe’s hunting and fishing water rights the later, 9 1864, priority date argued for by the State and individual appellants 10 would ignore one of the fundamental principals of prior 11 appropriations law that priority for a particular water right dates 12 from the time of first use. . . . 413 13

14 While federal law is the source of the right, the amount of water protected is a 15

question for the state: 16

17 The fact that water rights of the type reserved for the Klamath Tribe 18 are not generally recognized under state prior appropriations law is 19 not controlling as federal law provides an unequivocal source of 20 such rights. . . . . This is not to say, however, that the Tribe’s rights 21 are unaffected by state law. . . . [t]he precise quantity of water 22 protected must be determined in accordance with state techniques 23 and procedures.414 24

25 And there is a practical ceiling on the amount of water under the right: 26

27 In its opinion discussing the Tribe’s hunting and fishing water rights, 28 the district court stated [t]he Indians are still entitled to as much 29 water on the Reservation lands as they need to protect their hunting 30 and fishing rights. . . . We interpret this statement to confirm to the 31 Tribe the amount of water necessary to support its hunting and 32 fishing rights as currently exercised to maintain the livelihood of 33 Tribal members, not as these rights were once exercised by the 34

412 723 F. 2d at 1414.

413 Id.

414 723 F. 2d at 1411, n.19.


Tribe in 1864. . . . As limited by the ‘moderate living’ standard 1 enunciated in Fishing Vessel, we affirm the district court’s decision 2 that the Klamath Tribe is entitled to a reservation of water, with a 3 priority date of immemorial use, sufficient to support exercise of 4 treaty hunting and fishing rights .415 5

6

Most recently, in its 1993 Opinion in State Department of Ecology v. Yakima 7

Reservation Irrigation District, 416 the Washington State Supreme Court went to 8

considerable trouble reasoning that the Yakama Tribe’s treaty water right to 9

instream flows for fish offreservationwhich the Court clearly recognized had 10

been diminished: 11

12 Appellant nonIndian irrigation districts . . . argue that the trial court 13 erred in determining that the Indians were entitled to any waters for 14 fish from the Yakima River before irrigation rights are satisfied. 15 They claim the history of legislation, administrative actions, and 16 litigation involving the Yakima River Basin show that all of the 17 Yakima Indian Nation’s treaty reserved rights for fishing have been 18 extinguished or so limited that they are subordinate to vested 19 irrigation rights. . . . 417 20

21 All of the parties to this litigation agree that the Yakima Indians . . . 22 at least at one time, were entitled to water for the preservation of 23 fishing rights. The disagreement here is the extent of the treaty 24 rights remaining. 418 25

26 The Court defined the basic, prediminishment, right: “the right to water 27

necessary to maintain fish in the Yakima River and its tributaries in order to fulfill 28

the Indians’ treaty right to fish in all their usual and accustomed places. . . .” 419 It 29

415 723 F. 2d at 1415.

416 121 Wn. 2d 257 (1993) (Acquavella II).

417 121 Wn. 2d at 264.

418 121 Wn. 2d. at 277.

419 121 Wn. 2d. at 279.


then went on to hold that settlement by the Tribe of a claims case against the 1

United States in which the Tribe had alleged that the United States had 2

destroyed its treaty fishery was conclusive proof that this instream flow right had 3

been diminished by Congress: 4

5 The 1968 settlement and dismissal in Docket No. 147 before the 6 Indian Claims Commission confirmed the diminishment of the 7 Yakima Indians’ treaty fishing rights and precludes the Indians from 8 now claiming those rights have not been diminished in any 9 respect. 420 10

11 In contrast to “federal” reserved water rights, Indian treaty water rights are 12

“reserved” by the tribes. The priority date for the Indian treatyreserved water 13

rights is “time immemorial” not “time of reservation. The water right does not 14

have to be appurtenant to a reservation land base but relates to the “usual and 15

accustomed fishing grounds and stations” of the tribes. 16

17

In summary, Northwest Indian tribes possess offreservation instream flow water 18

rights that are associated with their treaty fishing rights. Tribal instream flow 19

rights were first recognized in the Oregon general adjudication involving rights of 20

the Klamath Indian Tribe. 421 These rights typically hold a priority date of time 21

immemorial. Potentially, these rights are quite large both in terms of quantity and 22

420 121 Wn. 2d at 287288. But see State of New Mexico ex. rel. Martinez v. Kerr McGee Corp., 898 P. 2d 1256, 1260 (N. M. Ct. App. 1995): “[Because Acquavella II] failed to analyze the effect of the ICC’s limited jurisdiction, [and because of] the dissimilarity in the causes of action and parties, we do not find that opinion persuasive and decline to follow it.”

421 United States v. Adair, 723 F2d 1394 (1983).


geographic scope. Usually, however, they have not been quantified and non 1

Indian water development has occurred without regard to the tribal right. 422 2

3

2. The state of Washington has a duty not to allow for the impairment, 4 degradation, or destruction of instream flows that are necessary to 5 sustain the treatyreserved fishing rights of the tribes. 6

7

Another ramification of the fishing rights litigation is the reserved right to 8

have the fisheries habitat protected with the obvious ramifications for water 9

quantity and quality. In the initial complaints filed in United States v. 10

Washington, the United States and tribal governments’ alleged that an 11

"environmental" right to have the fisheries resource protected from adverse 12

state action also existed by implication from the reserved right to harvest 13

fish. This issue was bifurcated for trial, and became known as "Phase II" of 14

the litigation. The Phase II claim, as developed between the tribes and 15

United States government, is fairly simple: 16

17 The state of Washington has a duty not to allow (e.g. 18 authorize by permit) for the degradation or destruction of 19 salmon habitat that is necessary to sustain the treaty 20 reserved fishing rights of the tribes. 21

22 The Phase II claim was defined as a “negative” duty on the part of the state of 23

Washington. It is my understanding the federal government, and more 24

importantly, the federal district court, would not impose an “affirmative” duty on 25

the state that would require the exercise of enforcement powers or state fiscal 26

priorities to effectuate the treatyreserved rights of the tribes. The Phase II claim 27

did not impose a duty on the state to stop unpermitted (ie. public nuisance), 28

422 See 1 West. Water L. & Pol’y Rptr 185 (June 1997) for a description of cases recognizing involving the Yakama Indian Nation’s instream water rights in eastern Washington.


destruction of the fish habitat (ie. enforcement) or require the state to “restore” 1

damaged habitat (ie. past damages). The original claim was limited to the state 2

of Washington; however, in the final decision, Judge Orrick gratuitously also 3

indicated that the federal government has the same duty, to not allow for 4

detrimental impacts to the salmon habitat that is necessary to sustain the treaty 5

reserved fishing rights of the tribes. 6

7

This duty is independent of any other federal, state, or other regulatory cause of 8

action and has been recognized in numerous judicial proceedings. In Phase II, 9

the 21 plaintiff tribes in United States v. Washington asked the federal court for a 10

declaratory judgment that their treaty right to take fish included the right to 11

preserve fish by protecting the habitat necessary for fish survival. Judge William 12

Orrick held that such a declaration was warranted because without the ability to 13

protect fish habitat, the tribes’ fishing rights could be rendered worthless. Judge 14

Orrick stated: 15

16

. . . implicitly incorporated in the treaties’ fishing clause is the right 17 to have the fishery habitat protected from manmade despoliation. 18 ***The most fundamental prerequisite to exercising the right to take 19 fish is the existence of fish to be taken. 423 20

21 The court went on to state: 22

23 . . . There can be no doubt that one of the paramount purposes of 24 the treaties in question was to preserve to the tribes the right to 25 continue fishing as an economic and cultural way of life. It is equally 26 beyond doubt that the existence of an environmentally acceptable 27 habitat is essential to the survival of the fish, without which the 28 expressly, or reserved right to take fish would be meaningless 29 and valueless. Thus, it is necessary to recognize an implied 30

423 United States v. Washington, (Phase II), 506 F.Supp. 187, 203 (WD WA 1980).


environmental right in order to fulfill the purposes of the fishing 1 clause. 424 2

3 In addressing the scope of the right, the court held that the: 4

5 . . . correlative duty imposed upon the State (as well as the United 6 States and third parties) is to refrain from degrading the fish habitat 7 to an extent that would deprive the tribes of their moderate living 8 needs. 425 9

10 The tribes had the burden to prove that challenged actions would: 11

12 . . . proximately cause the fish habitat to be degraded such that the 13 rearing or production potential of the fish will be impaired or the size 14 or quality of the run will be diminished. 15

16 but the state had the burden: 17

18 . . . to demonstrate that any environmental degradation of the fish 19 habitat proximately caused by the State’s actions (including the 20 authorization of third parties’ activities) will not impair the tribes’ 21 ability to satisfy their moderate living needs. 426 22

23 That decision was appealed to the Ninth Circuit, where a 3judge panel upheld 24

but modified the lower court. 427 The majority opinion agreed that treaty fishing 25

rights imposed obligations on the state to ensure that neither it nor its citizens 26

destroyed the right to take fish through habitat destruction, but it disagreed with 27

Judge Orrick’s formulation of the standard of care to be observed. It limited the 28

scope of the protection to: 29

30

424 United States v. Washington, at 205.

425 Id. at 208.

426 Id. at 208.

427 United States v. Washington Phase II, 694 F.2d 1374 (CA9 1982).


reasonable steps commensurate with the resources and abilities of 1 [the state] to preserve and enhance the fishery when their projects 2 threaten thenexisting harvest levels. 428 3

4 A concurring opinion found that it was unnecessary to reformulate Judge Orrick’s 5

decision because there was no practical difference between his decision and the 6

decision of the majority. 429 The tribes and United States were granted rehearing 7

en banc. The initial (unpublished) opinion of the 11 judge court on December 17, 8

1984, was that the state’s appeal should be dismissed because the case was not 9

ripe for judicial review. The state then received a second en banc rehearing. 10

This time the court voted 74 to vacate the decision of Judge Orrick on 11

procedural grounds, holding that a declaratory judgment was inappropriate on 12

the general legal question without a challenge to a specific proposed activity or 13

development. The 1984 en banc opinion was withdrawn and the 3judge panel 14

opinion was vacated. 430 15

16

Two of the seven judges in the majority were the judges who formed the majority 17

in the initial 3judge appeal; they adhered to their view of the scope of the treaty 18

right to protect fish habitat. Two of the dissenting judges would have reached the 19

merits and affirmed the decision of Judge Orrick. None of the 11 judges said that 20

they would reverse the lower court on the merits. The case was then remanded 21

to the district court, where it has remained inactive 431 until 1993 when the Tribes 22

428 Id. at 1389.

429 Id. at 1389.

430 United States v. Washington Phase II, 759 F.2d 1353, 1354 (9th CA. 1985).

431 See United States v. Washington Phase II, 506 F. Supp. 187 (W.D. Wash. 1980), vacated in part, aff’d in part, 694 F.2d 1374 (CA9 1982), 704 F.2d 1141 (CA9 1983), and 759 F.2d 1353 (9th CA. 1985) (en banc).


and State elected to dismiss Phase II without prejudice. 432 Even though Phase II 1

has been vacated and subsequently dismissed without prejudice, there are 2

numerous other cases that reaffirm the basic principle that the tribes right to 3

harvest fish implicitly carries with it the right to have fish habitat protected. 4

5

The essence of the original Phase II decision has, however, already been 6

followed in several district court and Ninth Circuit cases. 7

8

The case of Kittitas Reclamation District v. Sunnyside Valley Irrigation 9

District, 433 illustrates the intersection of fishing rights and water rights. In 10

Kittitas, competing interests for water from the Columbia River for agrarian 11

purposes were found to be subordinate to water sufficient to protect the 12

fisheries supply of the Yakama Indian Nation. The right to have instream flow 13

levels protected was based on a treaty preserving fishing and hunting rights 14

rather than on Winters doctrine concepts dealing with the creation of the 15

reservation or tribal water rights. 16

17

In Kittitas Reclamation District v. Sunnyside Valley Irrigation District, 434 while 18

stating in a footnote that it “need not decide the scope of fishing rights reserved 19

to the Yakama Nation under the 1855 treaty,” 435 the Ninth Circuit enforced the 20

Yakama Tribe’s offreservation treaty right to have the habitat of the fish 21

protected: 22

23

432 United States v. Washington, Case No. 9213, Docket No. 13291 (W.D. Wash. June 22, 1993).

433 763 F.2d 1032 (9th Cir. 1985), cert. denied, 474 U.S. 1032 (1985).

434 Id.

435 763 F.2d at 1035.


In the fall of 1980, the district court ordered water released from a 1 Yakima water project reservoir to preserve redds (nests of salmon 2 eggs) threatened by low postirrigation season water flows. We 3 must decide whether the court had authority to order the water 4 released. 5

6 This appeal involves the collision of two interests: the Yakima 7 Nation’s interest in preservation of their fishing rights, and the 8 eastern Washington farmers’ interest in preservation of water 9 needed for crops in the dry spring and summer. . . . 10

11 The Yakima Nation’s interest dates back to its 1855 treaty with the 12 United States. Article III reserved to the Indians [t]he exclusive 13 right of taking fish in all the streams . . . bordering [the] reservation . 14 . . also the right of taking fish at all usual and accustomed places, in 15 common with citizens of the Territory . . . . 16 . . . . 17

18 [A]rtificially high irrigation releases in the early fall of 1980 caused 19 the salmon to misjudge. If officials closed the Cle Elum Dam as 20 usual, to begin winter storage, approximately 60 redds would have 21 been exposed and destroyed. . . . . 22 . . . . 23

24 [T]he court issued additional instructions to the watermaster 25 regarding the 19801981 nonirrigation season. These authorized 26 (1) continued release of water, as necessary, to preserve the redds; 27 (2) use of alternative measures to preserve the redds, such as 28 diversionary berms and transplantation; and (3) monitoring of the 29 redds’ condition. The court also ordered a study of methods for 30 subsequent irrigation seasons (including regulation of reservoir 31 releases during the spawning season) that would accommodate the 32 needs of farmers and, at the same time, preserve the salmon run. 33 . . . . 34

35 In October 1980, the watermaster and other parties presented the district court 36

with an emergency. The scheduled closing of the dam threatened the redds with 37

destruction. Information on alternative means of preserving the redds was 38

noticeably absent. The court granted the Department of the Interior more time to 39


study the problem and temporarily ordered the water levels maintained in 1

sufficient amount to preserve the redds. 2

3

At the second hearing, experts in the field of fish biology testified and suggested 4

actions for preserving the redds other than release of water. One suggested that 5

if 12 of the redds were transplanted, the dam could be closed. The judge 6

ordered these measures taken, including transportation of the endangered redds, 7

construction of berms to divert water into secondary channels, and the opening 8

of some of those channels. Because he was unsure of the effect of these 9

measures, he continued the watermaster’s authority to release water as 10

necessary. 11

12 We find no abuse of discretion in the court’s decision. It was empowered to 13

issue orders directing the allocation of water within the Yakima River system. Its 14

orders authorizing the watermaster to preserve the 1980 redds were reasonable 15

emergency measures. 436 16

17

The Sunnyside court took pains to avoid a specific ruling on the treaty. But the 18

Bureau was directed to augment instream flows to satisfy federal trust obligations 19

to the Yakama Nation to protect the tribe’s offreservation fisheries. As earlier 20

established in United States v. Adair, 437 this instream right enjoys a priority date 21

of “time immemorial.” Hence, the Bureau’s reservoirs were drawn down at the 22

expense of the irrigation districts. The environmental water right, implied by the 23

Stevens treaties, was established. 24

25

END OF CHAPTER 26

436 763 F. 2d at 10331035.

437 723 F.2d 1394 (1983).


1


VII. INSTREAM FLOW REGULATIONS 1

A. Process for Setting Flow Levels 2

3

Under the 1971 Act, Ecology developed both basin management and instream 4

resource protection plans. From 1975 to 1979, Ecology developed a series of 5

comprehensive basin management plans for basins experiencing intense 6

competition for water. Most of the basin plans included establishment of 7

instream flow levels in addition to other water allocation considerations. 8

9

In 1979, Ecology began the Washington Instream Resources Protection 10

Program, intended to focus on the establishment of instream flows. Instream 11

resources plans developed under the program are less comprehensive than the 12

earlier basin management plans in that they do not incorporate water allocation 13

decisions involving any uses other than instream flows. Ecology has adopted 14


eight comprehensive basin management plans 438 and twelve instream resources 1

protection programs. 439 2

438 Ch, 173522 WAC Water Resources Program Chehalis River basin WRIA 22 and 23; Ch. 173531A WAC Water Resources Program for John Day–McNary Pools reach of the Columbia River WRIA 31 and parts of 32, 33, 36, 37; Ch. 173532 WAC Water Resources Program in the Walla Walla River basin WRIA 32; Ch. 173548 WAC Water Resources Program in the Methow River basin WRIA 48; Ch. 173549 WAC Water Resources Program in the Okanogan River basin WRIA 49; Ch. 173555 WAC Water Resources Program in the Little Spokane River basin WRIA 55; Ch. 173559 WAC Water Resources Program in the Colville River basin WRIA 59; Ch. 173564 WAC Water Resources Management Program for the main stem of the Snake River in Washington State

439 Ch. 173501 WAC Instream Resources Protection Program Nooksack River Basin WRIA 1; Ch. 173507 WAC Instream Resources Protection Program Snohomish River basin WRIA 7; Ch. 173508 WAC Instream Resources Protection Program Cedar–Sammamish basin WRIA 8; Ch. 173509 WAC Instream Resources Protection Program Green–Duwamish River basin WRIA 9; Ch. 173510 WAC Instream Resources Protection Program Puyallup River basin WRIA 10; Ch. 173511 WAC Instream Resources Protection Program Nisqually River basin WRIA 11; Ch. 173512 WAC Instream Resources Protection Program Chambers–Clover Creek basin WRIA 12; Ch. 173513 WAC Instream Resources Protection Program Deschutes River basin WRIA 13; Ch. 173514 WAC Instream Resources Protection Program Kennedy — Goldsbourgh basin WRIA 14; Ch. 173515 WAC Instream Resources Protection Program Kitsap WRIA 15; Ch. 173545 WAC Instream Resources Protection Program Wenatchee River basin WRIA 45; Ch. 173563 WAC Instream Resources Protection Program for the main stem of the Columbia River in Washington State.


In addition, the Department of Ecology is currently in the process of adopting 1

instream flow rules for the Lower Skagit mainstem and Cultus Mountain 2

tributaries440 and two Water Resource Management Plans in the Dungeness 3

and Yakima Rivers. 441 The Dungeness Water Management Plan is intended to 4

be implemented per the recommendations of a local water planning committee 5

setup through the Chelan Process. The preproposed rule for the Yakima River 6

Management Plan would withdraw the unappropriated ground waters of the 7

Yakima River Basin from further appropriation until completion of a 8

comprehensive study of the ground water hydrology of the basin, or for a five 9

year period if the study were not completed by the end of five years. 10

11

Since 1983, Ecology and the departments of Fisheries and Wildlife cooperated to 12

carry out Instream Flow Incremental Method (IFIM) studies to determine fish 13

habitat and streamflow relationships. 442 Fish flow recommendations received 14

from agency and tribal biologists are considered by Ecology. Departments of 15

440 Ch. 173503 WAC Instream Resources Protection Program and Watershed Management Plan Lower Skagit Basin WRIA 3 (new preproposed rule).

441 Ch. 173–518 WAC Dungeness River Basin Water Management (new preproposed rule);

Ch. 173537 WAC Water Resources Management Program for the Yakima River Basin, Water Resource Inventory Areas 37, 38 and 39.

442 The Instream Flow Incremental Method (IFIM) was developed by the U.S. Fish and Wildlife Service, Aquatic Systems Branch in Fort Collins, Colorado. The method involves development of a hydraulic model of a stream and relating hydraulic conditions at various discharge rates to the known habitat preferences (for depth, velocity, substrate and cover) of fish species and life stages of interest. The result of this analysis is a table or curve relating a habitat index to discharge for each species and life stage. The Aquatic Systems Branch publishes numerous reports and technical manuals, and teaches short courses on the method.


Fisheries and Wildlife and Tribal managers recommendations were usually at a 1

level that would protect "optimum" flow conditions for fish. 443 However, the 2

Department never formally adopted “optimum” flows. The fish and wildlife 3

recommendations were merged with what was known of the needs for the other 4

instream uses, and in some cases out of stream uses as determined through 5

consultation with persons knowledgeable about those uses. 6

7

Once the total flow needs for instream resources were known, the flows were 8

evaluated with regard to the availability of water to meet these needs. Water 9

availability was based on discharge duration hydrographs developed by Ecology 10

from stream gaging records. If insufficient water were available to satisfy 11

instream flow needs, Ecology often proposed to close the stream to further 12

consumptive appropriation for all or part of the year. Ecology closed numerous 13

streams, especially small ones, on this basis. 444 14

15

Alternatively, Ecology sometimes placed a hydrologic cap on the instream flow 16

levels it was willing to propose for rule adoption. Usually this cap was the 17

calculated median flow (50 percent exceedance flowthe flow that for any 18

particular date of interest will be met or exceeded one half of the time) taken from 19

a discharge duration hydrograph. Ecology attempted to reach agreement 20

443 "Optimum" flow is a term used by fishery biologists in Washington to denote the peak of a curve relating a fish habitat index to discharge. It is a term of convenience that evolved as a shorthand way of saying "the discharge that would result in the maximum amount of available fish habitat over the range of possible discharges, according to an IFIM study.”

444 Stream closures are not specifically authorized by statute. The basis of authority claimed by Ecology for closing streams is the State Water Code (§90.03.290) wherein it is provided that an appropriation permit may be denied if it would be detrimental to existing water rights or the public interest. On streams that have been closed, Ecology is still obligated to fully evaluate and address appropriation applications, though they would normally be denied.


regarding the instream flows with the fish and wildlife agencies and interested 1

tribes, but this was not always possible. The resource agencies and tribes 2

preferred optimum flows that would fully protect fish habitat from potential further 3

degradation. 445 4

5

In adopting instream flow regulations, Ecology followed a standard agency rule 6

making process involving notice, hearings, and a public comment period. 446 The 7

state Ecological Commission reviewed proposed regulations and could block 8

adoption on a vote of five or more of the seven members. 447 If approved by the 9

Ecological Commission, the proposed rules were subject to a final adoption 10

decision by the Director of the Department of Ecology. The rules went into effect 11

30 days after adoption. Aggrieved parties could appeal administrative rules to 12

the state court system. 448 13

14

After the adopted rules went into effect, Ecology regional offices commenced 15

considering water right applications for the affected streams. Any proposed 16

consumptive use of water, notwithstanding those exempted, that would result in a 17

445 Washington State Department of Ecology, Fisheries and Game, Instream Resources Protection Study Report 1 (1986) at 1011.

446 Although Ecology has preferred to set instream flows by administrative rule, new water diversion applications continue to be conditioned for instream flow protection on a casebycase basis in accordance with the Department's discretionary powers under the State Water Code and State Fisheries Code. This is necessary in areas of the state not yet addressed by instream regulations.

447 RCW 43.21A.170 .210 (1992). On advice of the state Attorney General, Ecology no longer submits proposed water resource regulations to the Ecological Commission for review. RCW 43.21A.190 is interpreted as exempting all water resource matters from the Commission's purview.

448 RCW 43.21B.310 (1992). Ecology has successfully defended its adopted instream flows in several court challenges before the state Pollution Control Hearings Board.


diminishment of streamflow, including wells withdrawing groundwater in hydraulic 1

continuity with a stream, were subject to the instream flow levels and stream 2

closures established by the regulations. 449 The rules also applied to non 3

consumptive uses that bypass a reach of stream such as some hydropower 4

projects and fish hatchery diversions. 5

6

These rules remain in effect today. Any new consumptive appropriation, storage 7

appropriation, or bypass use is conditioned to require that the diversion or the 8

capture of water for storage cease when the flow of the stream falls below the 9

instream flow established in the regulation. 450 Applications for consumptive use, 10

storage, or bypass uses on a closed stream are not approved for the period of 11

closure. A 1979 amendment to the State Water Code clarifies that instream 12

flows established by rule are an appropriation with a priority date as of the 13

effective date of their establishment. 451 Consequently, conditioned junior water 14

rights are subject to regulation in times of water shortage to protect the instream 15

flows. 16

17

B. A Technical Review of Department of Ecology Flow Setting 18 Methodologies 19

20

Washington State has historically employed three methods, in addition to stream 21

closures, to establish instream flows by rule. As described above, from 1974 22

1979, Ecology utilized the base flow methodology. From 19791982, Ecology 23

449 RCW 90.03.247 (1992).

450 Ecology would not ordinarily require that water be drafted from storage to benefit instream flows unless flow augmentation was a specific project purpose.

451 RCW 90.03.345 (1992). This was passed as an amendment to clarify the legal status of adopted instream flows relative to junior water rights.


utilized the toe width methodology in conjunction with the base flow method. 1

From 19831987 the Instream Flow Incremental Methodology (IFIM) was the 2

standard method for establishing instream flows. 3

4

Any technical analysis of instream flows adopted by the State of Washington 5

should consist of two parts. First, an analysis of the methodologies employed in 6

adopting these rules, and second, an examination of the implementation of these 7

methodologies on a casebycase basis. In the final analysis, the adequacy of 8

instream flow set by rule can only be measured by the intended outcome one 9

wishes to achieve. Flows set merely for preservation of existing fish populations, 10

despite the fact that they may be in decline, may be quite different than flows set 11

for the protection and restoration of anadromous fish populations. The following 12

discussion does not attempt to address this distinction, but rather examines the 13

technical merits and shortcomings of instream flows established by rule in 14

Washington State. 15

16

Finally, this report is an analysis of the instream flows and basin programs as 17

established by WAC. It does not evaluate current river operations, or current 18

implementation strategies. No analysis was undertaken of instream flows 19

established for the Columbia River. 20

21

1. Base Flow Methodology 22 23

The 1979 Final Environmental Impact Statement (FEIS), 452 (Appendix D) shows 24

the general methodology used for instream flow setting from 19741979, and 25

from 19791982 in conjunction with the toe width method 26

452 1979 Final Environmental Impact Statement, Washington Department of Ecology.


1

To summarize the base flow methodology, stream segments were chosen to 2

define management units. Resource agencies then rated the importance of these 3

segments for fisheries wildlife, recreational, aesthetic, navigation other 4

environmental values, and water quality standards. Flow duration curves were 5

established, and these rankings were then used to modify the flow duration 6

curves to determine if departures from the 95% exceedance values were 7

warranted. Base flows were then established based on the 95% exceedance 8

flows during high flow months, or on departures from 95% based on the ratings 9

system for low flow months. The underlying basis for flow setting was therefore 10

based on basin hydrology. It is important to keep in mind that this methodology 11

was used, sometimes without the use of rating modifiers, exclusively from 1974 12

1979, and was the primary basis for streamflow setting from 19791982. 13

14

In part, Ecology's rationale for the use of this method can be found in the FEIS. 453 15

The Department of Ecology feels that higher instream flow determination 16

methods are based on the somewhat narrow objectives of providing optimum 17

spawning area and rearing conditions for anadromous fish. Determining and 18

advocating such flows is the mission of the state fisheries agencies. While such 19

methods may be the best means of determining optimum flows for fish, they are 20

not necessarily the best overall approach for balancing all river uses, including 21

nonfishery instream values. If the proposed base flow method is used, flows 22

resulting from the base flow calculations will be forwarded to the state 23

departments of Fisheries and Game for their comments. If they feel it 24

appropriate, they will use one of the methods, which may result in a higher 25

453 Id. at 8.


recommended instream flow to generate a counter proposal. Differences will be 1

resolved by discussions between the agencies. 2

3

A discussion of how these differences were resolved between the agencies is 4

provided in the basinbybasin analysis. It is important to remember that prior to 5

1979, there was no negotiation between the agencies. 6

7

2. TOE Width Methodology 8 9

Based in large measure on work done by the Washington Department of 10

Fisheries and the U.S.G.S., a fish based instream flow setting methodology, Toe 11

Width, was partially employed by Washington State. 454 This is the first attempt 12

on the part of Washington State to link flow setting to the actual needs of fish. As 13

documented in the 1979 report, water depths and velocities preferred by 14

spawning salmon were documented based on field data. "The criteria for the 15

preferred rearing discharge is based on the assumption that survival and growth 16

rate of young salmon is proportional to food production in the stream, and that 17

food production, in turn, is proportional to the wetted perimeter of water in the 18

stream." 455 Based on these analyses, stream flows can be calculated to 19

determine the amount of available habitat for spawning and rearing. 20

21

The toe width methodology is based on field studies that resulted in the 22

development of a multiple regression analysis that related drainage area, reach 23

454 Complete descriptions of the Toe Width Methodology can be found in Estimation of Stream Discharges Preferred by Steelhead Trout for Spawning and Rearing in Western Washington, 1976, and Preferred Stream Discharges for Salmon Spawning and Rearing in Washington 1979.

455 Ibid. at 10.


altitude, mean basin altitude, and width at the toe of the bank to streamflow that 1

would maximize, and provide partial maximization of habitats at preferred depths 2

and velocities for spawning, and for rearing area for salmonids. This relationship 3

was based on studies throughout western Washington for steelhead trout, and 4

for all of Washington for salmon. This regression analysis could then be used 5

statewide to calculate preferred streamflow without sitespecific investigations. 6

Additional refinements could be made if reach level toe width measurements 7

were available. The Departments of Fish and Wildlife employed this methodology 8

in negotiations with Ecology for the establishment of instream flow rules during 9

the period 19791982, while Ecology generally used as a basis of negotiation the 10

base flow methodology. 11

12

3. Instream Flow Incremental Methodology (IFIM) 13 14

The following Ecology publication is included to provide a good overview of the 15

IFIM methodology. 456 16

17 Questions & Answers 18

19

An Overview of the Instream Flow Incremental Methodology 20 Q. How much water does a fish need? 21 A. That question is being asked by a number of people today—including those 22 who want to use water to accommodate new growth, and those who fear 23 instream flows are already too low for fish. While everyone agrees fish need 24 water to survive, not everyone agrees how much. There are ways to answer the 25 question scientifically. One method often used by the Washington Departments 26 of Ecology and Fish and Wildlife is the Instream Flow Incremental Methodology, 27 or IFIM. 28

Q. What is IFIM? 29

456 Stalnaker et al (1995) provides a comprehensive introduction to IFIM.


A. IFIM refers to a series of computerbased models that quantify the amount of 1 fish habitat with different flow levels in a river or stream. These models can 2 accurately predict the water depths and velocities in the river at different flows. 3 IFIM was developed in the late 1970s by the United States Fish and Wildlife 4 Service's Instream Flow Group at Colorado State University. It is the most widely 5 used and accepted method for evaluating instream flow needs for fish habitat. 6 The Department of Ecology has relied on IFIM for more than a decade and has 7 conducted IFIM studies on many rivers and streams across the state. 8

IFIM is based on the understanding that fish prefer water with a certain depth and 9 velocity. This preference varies for different species of fish, and for each of their 10 life stages. At certain flows, for example, the water may be too fast for juvenile 11 fish or velocities may be too high for fish to spawn. At other flows, the water may 12 be too shallow for spawning or suitable spawning gravel may not be covered by 13 water. What kind of gravel (or substrate) covers the river bottom is important to 14 fish, especially for spawning. Substrate is a variable addressed by the IFIM 15 models. In short, flow determines the kind of activities fish can engage in at 16 particular spots in a river. 17

Of course, the quality of fish habitat depends on a number of other complexities. 18 Fish also may prefer protective, cooling cover provided by large woody debris, 19 overhanging vegetation and undercut streambanks. IFIM does not address all 20 streamflowrelated variables (e.g., predation, territoriality and competition, water 21 quality, etc.) that may affect fish production. Other habitat information also needs 22 to be considered. 23

24 Q. How are IFIM studies done? 25

A. IFIM studies are complex and are usually done by a qualified expert with 26 training in IFIM and a background in hydrology and fish biology. IFIM studies 27 begin with the investigator researching the history of a river to determine what 28 fish species are present and to understand their life histories. The investigator 29 will want to know, for example, when and where fish typically spawn and rear, 30 and what kind of habitat is found in the river. The investigator will review written 31 reports and talk to biologists knowledgeable about fish in the study river. 32

Q. What do biologists do in the field? 33

A. In consultation with other biologists, the investigator identifies appropriate 34 study sites. Because it is not feasible to study every square foot of a river, 35 selected study sites are used to represent larger river segments. At each study 36 site, the investigator will establish transects (basically, a straight line marked by a 37


tape measure) across the river. The investigator will measure the depth and 1 velocity of the river at fixed points along each transect and record other 2 information about the habitat, such as what kind of substrate is present at each 3 point. The investigator will return often to measure these points at high, medium 4 and low flows. This provides a range of depths and velocities to calibrate the 5 computer models. 6 These visits are planned by first reviewing the hydrologic history of the river. 7 Often, an investigator also will snorkel the river and observe what kind of fish are 8 present in the river, what kind of areas they are using and what they are doing 9 (rearing, spawning, holding). The investigator will record the depths, velocities 10 and substrates used by the fish. This information is used to model the fishes' 11 habitat preferences. 12

Q. What is done with the data? 13

A. The data gathered during the field investigations is then entered into a 14 computer program which is able to model and predict how a specified range of 15 flows affect the distribution of water depths and velocities. These results then 16 need to be reviewed and calibrated. 17

These results do not indicate how fish habitat is affected by flow changes. The 18 data then must be entered into another computer model along with information 19 describing habitat preferences by various species and life stages. This 20 information may indicate, for example, that adult steelhead prefer water of a 21 certain depth and velocity, while juvenile coho salmon prefer water of different 22 depth and velocity. 23

Q. What is the outcome of IFIM? 24 A. The outcome of this model calculation produces a value known as "weighted 25 usable area," or WUA, for each species and life stage of interest. WUA 26 expresses (in square feet per 1,000 feet of stream) how the availability of fish 27 habitat is affected by changes in flow levels. The information can be easily 28 illustrated as a graph. Finally, model results need to be verified. 29


1

2

Q. How is an IFIM study used? 3

A. Because different species and life stages have different flow needs, no single 4 flow level can simultaneously maximize habitat for all species. The challenge is 5 to reconcile these varying flow needs in a way that adequately protects all 6 species. This requires fish biologists to use the model results in combination with 7 other information to develop a final "flow regime." This may involve some 8 negotiation and clarification of management priorities. Other streamflowrelated 9 values, like channel maintenance and recreation, also need to be considered. 10

IFIM allows investigators to model flows that actually are not observed, or that 11 have not been present for a long time. A number of Washington rivers, for 12 example, have been subject to extensive withdrawals and diversions. Land use 13 practices also affect streamflows. Flows may no longer match historic levels. 14


Nonetheless, with sufficient water, presently dry portions of river channels could 1 once again become suitable fish habitat. An IFIM study can provide an indication 2 of habitat loss as a result of reduced flows. 3

IFIM studies often indicate that optimum flow levels exceed those that actually 4 occur during parts of the year. In Washington, streams typically reach low levels 5 in late summer and early fall because of low rainfall. Fish would not remain 6 productive if stream levels stayed low all year, just, as plants could not survive a 7 yearlong drought period. Thus, IFIM studies help indicate whether surplus water 8 is available for outofstream uses. 9

Q. What are the advantages of IFIM? 10 A. IFIM is invaluable for water resources managers. To effectively protect rivers, 11 managers must understand how flow reductions affect fish habitat. By providing 12 the ability to illustrate this relationship for all species and life stages, IFIM allows 13 managers to consider different needs in reaching a balanced decision. IFIM 14 provides a rational framework within which to address streamflow issues in a 15 scientific, quantifiable and flexible manner. 16

17 For More Information 18 Contact Brad Caldwell, Department of Ecology, Shorelands and Water 19 Resources Program, (360) 4076639 or Dr. Hal Beecher, Department of Fish and 20 Wildlife, (360) 6649316. 21 IFIM technical reference documents are available from the National Biological 22 Service, Midcontinent Ecological Science, 4512 McMurry Ave., Fort Collins, CO 23 805253400 24

25 The Department of Ecology is an equal opportunity agency. If you have special 26 accommodation needs or require this document in alternative format, please 27 contact Julie Carrasco at (360) 4076472 (voice) or (360) 4076006 (TDD). 28

29

END OF CHAPTER 30 31 32

33


VIII. CRITIQUE OF THE STATE’S PROTECTION OF INSTREAM 1 RESOURCES 2

3

Washington’s water laws reveal longstanding governmental intent to protect 4

surface water flows and instream resources. Implementation, however, has been 5

based on flawed scientific and legal assumptions, legislative obstruction and 6

paralysis, and a historical lack of direction, priority, and leadership from the 7

Department of Ecology which has largely failed to provide the habitat protection 8

necessary for endangered salmon, public trust resources, and treatyreserved 9

rights of tribal governments. 10

11

There are a variety of legislative, common law, federal statutes, and treatybased 12

authorities and obligations the Department of Ecology could utilize to protect and 13

restore instream flows, if desired. The following section provides a critique of 14

these authorities and how the Department of Ecology has implemented their 15

responsibilities. 457 16

A. Legislative 17

1. There is general lack of political will of the legislature to resolve 18 instream resource protection issues. 19

20 In 1985, the Department of Ecology recommended instream flows for the 21

SkokomishDosewalips basin (WRIA 16). The Ecological Commission rejected 22

the Department’s recommendation in the face of a great deal of controversy. 458 23

The Commission believed the recommended flows were too low to adequately 24

protect instream resources. The Commission recommended the Department 25

457 Future drafts of this report will include a review of agency funding and policy priorities. Data requested for this analysis from the Department of Ecology was not provided in a time for this draft report.

458 In 1992, the legislature exempted all water resource matters from the Commission's purview. See RCW 43.21A.170.


establish instream flows necessary to provide optimum fish habitat conditions. 1

Unfortunately, the Department never implemented the Dosewalips Instream 2

Resource Protection Program (IRPP). 3

4

In 1986, the Department of Ecology initiated a full review of its instream flow 5

program and published the draft environmental impact statement (DEIS), 6

Instream Resources and Water Allocation Program Review. In the DEIS, the 7

Department of Ecology proposed using biologicallybased credible flowsetting 8

methods that would lead to the conclusion that larger flows were needed for 9

adequate instream resource protection. However, opposition increased, and in 10

1986, the legislature imposed a oneyear moratorium on adoption of new flows. 11

12

What became obvious was that the outofstream interests realized 13

establishment of instream resource protection would limit future outofstream 14

withdrawals, especially if the biological needs of fish flows were to be addressed. 15

Since December 4, 1985, when the Department implemented the Nooksack 16

Instream Resource Protection Program, the Department of Ecology has not 17

established another regulatory instream flow rule. The oneyear legislative 18

moratorium expired in 1987. However, the Department of Ecology has not been 19

willing to reinitiate new rulemaking for instream flows even though they have 20

numerous IFIM studies waiting to be enacted into law. The Department even 21

continues delaying rulemaking for the Methow and Dungeness instream 22

resource protection programs that resulted from the Chelan Process. 23

24

Political opposition to instream flow protection has paralyzed the Department of 25

Ecology’s instream resource protection program. Legislative hostility toward 26

Ecology’s water resources program is also illustrated by successive budget 27


cuts 459 that have frustrated implementation of instream flow rules but even 1

environmentallysound, watershedbased allocation policies. 460 2

3

The legislature must realize the fundamental water policy issue in this state is 4

instream resource protection. Certainty and predictability for outofstream uses 5

is solely dependent on how well we are protecting our instream resources. Lack 6

of protection will only remove water policy issues from the legislative to the 7

judicial branches of government. Public trust, Endangered Species Act, Clean 8

Water Act, and tribal treatyrights’ litigation will eventually overtake the lack of 9

constructive action from our legislature. 10

11

2. The legislative definition of “priority date” for instream flows 12 conflicts with the State’s public trust responsibilities, Clean Water 13 Act and Endangered Species Act requirements, federal water rights, 14 and Tribal treatyreserved rights. 15

16

The public has a flawed assumption that establishment of instream flow rules will 17

result in protection of our instream resources. However, probably the most 18

significant barrier to protection of instream resources is the legislative definition 19

of “priority date” for instream flow rules. The establishment of minimum flows or 20

levels have priority dates “as of the effective dates of their establishment,” in 21

other words, the time of rulemaking. 461 22

23

459 Budget analysis will be provided in a future draft once we receive the information requested per the Public Disclosure Act from the Department of Ecology.

460 See Hillis v. Ecology, 131 Wash.2d 373 (1997).

461 See RCW 90.03.345.


Long before instream rules were adopted between 1976 and 1985, nearly 1

220,000 water users had already claimed much of the water in state rivers. As 2

“junior rights,” instream flows often exist only on paper, the flows not met in many 3

basins for most of the late summer season. For example, in the Green River, 4

instream flows are not met up to 135 days per year. 462 In both the Okanogan 5

and Similkameen Rivers, flows do not meet the minimum instream flow 6

requirements 100 days or more on an annual basis occur approximately every 7

three or four years, based on flow record for the past 30 years. 463 8

9

The minimum flow statute does not protect “existing” instream uses against 10

offstream uses that are “junior,” but which have priority dates “senior” to adoption 11

of a flow rule. In addition, the law does not protect instream resources from the 12

exercise of inchoate water rights that will be used to supply future outofstream 13

uses over existing instream resources. 14

15

The legislature has created a conflict of law with its definition of “priority date” for 16

instream flows and its obligations under the public trust doctrine. This same 17

conflict is created with the State’s obligations under the Endangered Species and 18

Clean Water Acts. In addition, the discrepancy between the State’s priority date 19

definition of “time of rulemaking” and federal and tribal rights of “time of 20

reservation” or “time immemorial” for instream flows establishes and inherent 21

conflict between state and federal law. 22

a. Public Trust Responsibilities 23 24

462 Ecology, 1995.

463 Draft Initial Watershed Assessment Water Resource Inventory Area 49 Okanogan River Watershed, 1995, at 35.


The Water Code of 1917464 is the basic water appropriation code in 1

Washington. The 1917 Act created the process for establishing priorities among 2

various diverters. However, the Water Code is inconsistent and conflicts with the 3

State’s common law and constitutionallybased public trust doctrine. The Water 4

Code allows for consumptive water use rights that damages and destroys public 5

trust interests by not requiring minimum stream flow. 465 The public trust doctrine, 6

or the interests protected by that doctrine, were not discussed or considered 7

when the code was adopted. Because no explicit intent to abolish the public trust 8

doctrine is evident in the 1917 Code, or permits issued thereunder, the public 9

trust doctrine should still be applicable to prior appropriation water rights.466 10

11 The traditional interests protected by the public trust in common law includes 12

commerce, navigation, and fisheries. 467 However, the Washington Supreme 13

Court has followed the general trend by expanding the range of public interests. 14

The court noted in Orion that it had extended "the doctrine beyond navigational 15

and commercial fishing rights to include 'incidental rights of fishing, boating, 16

swimming, water skiing, and other related recreational purposes."'468 17

464 RCW 90.03.

465 Sixteen of the state’s 62 WRIAs are classified as overappropriated basins where stream flows are critical to salmonid recovery (SSRS). There is not one basin in state where instream flow rules have been established that are not impaired at time or another throughout the year.

466 Johnson, The Public Trust Doctrine and Coastal Zone Management in Washington State, supra.

467 Ralph W. Johnson, Water Pollution and the Public Trust Doctrine, 19 ENVTL. L. 485, 495 (1989). Even early cases like Arnold v. Mundy, 10 Am. Dec. 356, 368 (N.J. 1821), recognized a broad spectrum of public interests that included "fishing, fowling, sustenance, and all other uses of the water and its products."



1

In addition, our State constitution includes the protection of navigability of our 2

waterways. 469 As such, Washington State has a constitutional rather than just a 3

“common law” basis for the public trust doctrine. Therefore, legislative acts are 4

not the final determinant of the scope and definition of the public trust doctrine. 5

Those acts passed by the legislature must be evaluated in the context of 6

constitutional protection afforded to the public trust doctrine. The state has a 7

duty to preserve unimpaired those public uses for which navigability is held under 8

the public trust doctrine. Though the state permits userfructory rights to water, 9

the State always maintains a public interest and uses in all water. These public 10

uses include fisheries. We cannot protect our interests in fisheries if we do not 11

adequately protect instream flows. 12

13

The legislature defines instream flows as “junior water rights.” Junior water rights 14

cannot interfere with senior outofstream rights. As such, many of our streams 15

are dewatered or impaired for fisheries habitat and production. These 16

impairments affect the commerce and fisheries interests of the State. 17

18

The Department of Ecology is not responsible for asserting the public trust 19

doctrine. The public trust doctrine does not serve as an independent source of 20

authority for Department of Ecology to use in its decisionmaking apart from the 21

provisions in the water codes. 470 The public trust duty devolves upon the State, 22

not any particular agency. The Department's enabling statute does not grant it 23

469 Wash. Const. Art. XVII.

470 See Merrill Co. v. Pollution Control Hearing Board, 137 Wash.2d 118, 969 P.2d 458 (1999).


authority to assume the public trust duties of the state. 471 In contrast, private 1

citizens or the Attorney General may bring suits to enjoin private landowners 2

from damaging public trust interests. The State Attorney General has the power 3

to protect state and public interests by bringing suit to enforce the public trust 4

doctrine. 472 However, it is probably politically untenable for the Attorney General 5

to bring a public trust suit to protect instream flows from senior water right 6

diverters. Therefore, private citizens will probably have to assert this type of 7

court case to establish a rule of law that all water right holders, senior or junior, 8

have a duty not to impair instream flows and resources. 473 9

b. Endangered Species Act Obligations 10 11

Under Section 9 of the Endangered Species Act, it is unlawful for any person to 12

take any listed species within the United States. 474 The term “take” means to 13

harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to 14

attempt to engage in any such conduct. 475 The definition of “harm” to species 15

under the ESA includes “removing water or otherwise altering streamflow when it 16

471 See Rettkowski v. Department of Ecology, 122 Wash.2d 219, at 232, 858 P.2d 232.

472 Wash. Rev. Code Ann. § 43.10.030 (West 1983).

473 The issue of standing should not pose a serious obstacle to suits by private citizens and private groups. In Caminiti, the plaintiffs were an individual and members of the Committee for Public Shorelines Rights. They challenged a state statute that allowed private upland owners to build docks on public tidelands and shorelands without paying any rent to the state. The plaintiffs contended that they had an interest in the amount of revenue collected by the state, and they contended that the presence of private recreational docks affected their access to and use of public lands

474 16 U.S.C. § 1538.

475 16 U.S.C. § 1532 (19).



is likely to impair spawning, migration or other essential functions.” 476 The 1

prohibition applies to state and federal governments, corporations, municipalities, 2

individuals, and others. It applies to private as well as public land. 477 As 3

described earlier, case law indicates that governmental agencies may incur take 4

liability either through their own proprietary and/or management activities, or by 5

permitting or authorizing a third party to engage in conduct that has the 6

prohibited consequence. 7

8

Under its statutory duties, the Department of Ecology has historically issued 9

thousands of water right permits that are not constrained or conditioned for the 10

protection of instream flows or resources. Ecology has issued thousands of 11

consumptive water use rights that damages and destroy are public resources by 12

not requiring minimum stream flow constraints. The Department of Ecology has 13

permitted and authorized third party water right holders to engage in conduct that 14

has the prohibited consequences under the Endangered Species Act. The 15

Department of Ecology could be held liable for the illegal “take” of listed species 16

where permitted water withdrawals are limiting factors to the productive capacity 17

or production of a watershed and a listed species. 478 18

c. Clean Water Act Obligations 19 20

476 National Marine Fisheries Service, 1998. Endangered and Threatened Wildlife and Plants; Definition of “Harm” [draft]. Federal Register 63(84): 2414824150.

477 16 U.S.C. § 1538(a)(2).

478 See Strahan v. Coxe, 127 F.3d 155 (1st Cir. 1997), cert. denied, 119 S. Ct. 437, 142 L. Ed. 2d 356 (1998). Loggerhead Turtle v. County Council of Volusia County, Florida, 148 F.3d 1231 (11th Cir. 1998), cent. denied, 119 S. Ct. 1488 (U.S. Apr. 19, 1999).


The Clean Water Act (CWA) of 1972, which replaced the Federal Clean Water 1

Act passed in 1948, was designed to create a national system to eliminate 2

pollution discharges to the nation's waterways. 479 As stated in 101(a) of the Act, 3

Congress' bold goals were to "restore and maintain the chemical, physical, and 4

biological integrity of the Nation's waters" and to eliminate all discharges of 5

pollutants to these waters. 480 6

7

The CWA has largely been implemented 481 through state programs. As originally 8

passed, the CWA allowed for either direct federal regulation of the nation's water 9

resources, or for the delegation of this authority to state agencies 482 or tribal 10

governments. 483 The EPA was charged with implementing the Act; either by 11

directly meeting the Act's requirements or by assisting state agencies to meet 12

these goals. 484 13

14

In Jefferson County's ruling described earlier, the Court held that water quality 15

includes water quantity and that no artificial distinction can be made between 16

them. 485 Lack of water is a form of "pollution," a term defined by the CWA as 17

479 33 U.S.C. §§1251 1376 (1987) (Emphasis added).

480 Id. at § 1251(a)(1).

481 Although the zero input goal has not been achieved, the goal of creating a comprehensive system to monitor and regulate water pollution and of making all waters fishable and swimable have been. In fact, the recent debates over the CWA are about how much stricter the regulations should be and about preventing any backsliding away from the levels of cleanup achieved to date.

482 33 U.S.C. § 1252 (1977).

483 33 U.S.C. § 1377 (a). See also subsection (e).

484 Id.

485 See Id. at 719 (emphasis added).


"maninduced alteration of the chemical, physical, biological, and radiological 1

integrity of water.” 486 As described earlier, almost 700 stream segments have 2

recently been designated in Washington as “water quality limited” under the 3

Clean Water Act of 1977.487 Washington’s Clean Water Act inventory of 4

degraded water bodies included 48 stream segments explicitly identified as 5

lacking adequate flows. Flow depletion causes widespread water quality 6

impairment in state rivers. In addition, hundreds of other streams sustain 7

temperature and dissolved oxygen impairment, pollution factors frequently 8

associated with low flow regimes. 488 Healthy salmon fisheries are at risk when 9

these water quality parameters are violated. 489 10

11

When the Department of Ecology allows uncontrolled water withdrawals by 12

“senior” water right holders that dewaters or impairs a beneficial use, e.g. fish, 13

the State is in violation of its delegated responsibilities in implementing the Clean 14

Water mandates. The State should be in jeopardy of having its delegated 15

authorities revoked by the federal Environmental Protection Agency (EPA). 16

d. Federal and Tribal Treaty Rights 17 18

Northwest Indian tribes possess instream water rights associated with their 19

historic treaty fishing rights. In addition, the treatyreserved fishing rights of the 20

tribes imposes a duty on the state and federal governments to ensure adequate 21

instream flows are provided to treatyreserved resources, notwithstanding 22

486 CWA § 502(19), 33 U.S.C. § 1362(19) (1994), See Jefferson County, 511 U.S. at 726.

487 33 U.S.C. §§121 et seq.

488 Washington Department of Ecology, 1998a. Washington’s Candidate 1998 List of Impaired and Threatened Water Bodies – the 303(d) List.

489 Karr, J.R. 1995. Clean Water Is Not Enough. Illahee 11(1&2):5159.


ownership of the water. Both of these legal theories have been addressed in the 1

Yakima Basin. 2

3

The treatyreserved right to water for fish is exemplified by the Washington 4

Supreme Court decision confirming the rights of the Yakama Nation to the 5

“minimum instream flow necessary to maintain anadromous fish life in the 6

[Yakima] river.” 490 Tribal rights date from “time immemorial,” and apply to all 7

waters that support treaty fisheries, both onreservation and off. Because treaty 8

fishery rights cover much of Washington, this rule imposes a treaty servitude on 9

most state rivers. Despite judicial recognition, few tribal instream rights have 10

been quantified, and all have been largely ignored by Ecology in its water 11

allocation decision process. 12

13

Though ignored in Ecology’s water allocation decisionmaking process, a 14

common disclaimer found in state water statutes, regulations, and water right 15

permits is that no plans or rights conferred shall conflict with treatyreserved 16

rights of tribal governments. For example, in the Watershed Planning Act of 17

1998, the legislature declares that watershed plans “developed and approved 18

under this chapter shall not contain provisions that are in conflict with existing 19

state statutes, federal laws, or tribal treaty rights.” 491 20

21

However, as described earlier, there is an inherent conflict between the state’s 22

definition of priority date for instream flows and the commensurate ability of the 23

state to protect these flows and tribal rights to instream flows from “time 24

immemorial.” Implementation of the discrepancy of priority date inherently 25

“conflicts with federal law and tribal treaty rights.” 26

490 Ecology v. Yakima Reservation Irrigation District, 121 Wash.2d 257 (1993).

491 RCW 90.82.120(1)(a).


1

Approximately 230,000 state water rights and claims are registered in 2

Washington. Most of these rights claim use from the early 20 th century or before 3

and are not conditioned to protect instream flows and resources. In addition, 4

virtually none of them are conditioned to protect tribal water rights. While it is 5

thought that many of the early claims are not exercised, at least not to full 6

capacity, it is true that many of Washington’s rivers lack adequate flows to 7

support aquatic resources and allow further appropriation (of both ground and 8

surface water rights). 9

10

The second legal basis for protection of instream flows for treatyreserved 11

resources was addressed in the case of Kittitas Reclamation District v. 12

Sunnyside Valley Irrigation District. 492 Notwithstanding ownership of the water, 13

the state has a duty not to impair or allow for the impairment of tribal treaty 14

reserved resources. 493 15

16

Not only does the Department ignore the prior federal and treatyreserved water 17

rights of the tribes in dealing with existing water rights and their duty to ensure 18

adequate instream flows for treatyreserved fishing rights, they also ignore tribal 19

rights in future water right permit decisionmaking. Ironically, the water 20

availability calculus for issuance of new rights does not consider either on or off 21

reservation tribal water rights or the duty of the State to ensure adequate 22

instream flows. Nor does the Department consider tribal or federal water rights 23

when conducting their basin assessments for water resource planning. As the 24

result of this failure to consider tribal rights, which typically are not quantified but 25

492 763 F.2d 1032 (9th Cir. 1985), cert. denied, 474 U.S. 1032 (1985).

493 See United States v. Washington, (Phase II), 506 F.Supp. 187, 203 (WD WA 1980).


typically are the most senior within each watershed, the state continues to allow 1

the impairment and destruction of fish habitat and the resource. Clearly a 2

violation of its duty to ensure protection of treatyreserved resources. 3

4

Also, in establishing minimum instream flow regulations, the Department of 5

Ecology conducts a “balancing” of the needs of instream uses with future outof 6

stream needs. The balancing is reflected in the adopted flows. However, this 7

balancing of instream flows with future outofstream needs in the context of 8

federal or treatyreserved water rights is illegal. 494 9

10

With the exception of some coastal rivers on the Olympic Peninsula, there is a 11

serious conflict between instream fisheries needs and outof stream uses on 12

almost every salmon stream in the United States v. Washington Case Area. 13

Ironically, a water code that purports to protect senior water uses has operated to 14

monopolize water for outofstream interests and discriminate against the most 15

senior water right use, instream flows. This has resulted in direct economic loss 16

to the fishing segment of the State’s economy, a loss felt most dramatically by 17

the Indian communities least able to bear the cost. 18

19

Washington State must come to terms with impending collisions between state 20

issued water rights and tribal treaty water rights, particularly offreservation rights 21

to instream flows. The rights of the tribes are potent resolution will ultimately 22

have to acknowledge the longstanding obligations of the United States to ensure 23

a healthy economic and natural resource base for tribes that was promised in the 24

treaties. And that will require water. 25

26

494 See e.g. Joint Board of Control of the Flathead, Mission and Jocko Irrigation Districts v. United States, 646 F. Supp. 410, 426 (D. Mont. 1986).


e. Summary 1 2

The legislative definition of the priority date for instream flows to be the effective 3

date of its establishment creates conflicts with State constitutional recognition 4

afforded to the ”public trust doctrine,” federal statutes, federal water rights, and 5

treatyreserved rights of the tribes. Any one of these legal theories should 6

provide ample justification for the courts to declare the instream flow priority date 7

defined by the legislature to be ultra vires. The legislature could resolve these 8

conflicts between state statutory law, state constitutional protection, and federal 9

rights by amending RCW 90.03.345. A simple solution would be defining the 10

priority date of instream flows to relate back to time of statehood. This 11

amendment would reconcile state statutory law with state constitutional 12

protection afforded to the public trust doctrine. For all practicable purposes, this 13

would also resolve conflicts of law with the ESA, CWA, federal reserved water 14

rights, and treatyreserved rights of the tribes. 15

16

3. The legislature refuses to provide the Department with adequate 17 authorities to protect instream resources. 18

19

In Rettkowski v. Department of Ecology, 495 (Sinking Creek) the court found that 20

the Department of Ecology lacks authority to determine the validity of existing 21

rights for the purposes of enforcement. The case involved two outofstream 22

water users; however, it would appear the decision would be no different is one of 23

the water rights was for instream purposes. An established minimum instream 24

flow regulation is an “existing” water right under the law. 25

26

495 122 Wn.2d 219, 858 P.2d 232 (1993).


One may argue the Department would lack the authority to 1 constrain either a “junior” or “senior” water right holders if they 2 impairing minimum instream flows. Sinking Creek was determined 3 in 1993, eight years later the legislature is still unable to re 4 authorize the Department’s ability to regulate between various 5 water rights interests. The only alternative to resolve disputes 6 between water right holders or to enforce protection of minimum 7 instream flow regulations is through adjudication. 8

9

To initiate an adjudication, a person claiming the right to divert any waters in the 10

state would petition the Department of Ecology. 496 Upon receiving the petition 11

the Department has a nondiscretionary duty to conduct an investigation. As part 12

of the investigation, the Department must: 13

14 • prepare a statement of the facts, together with a plan or map of the 15

locality under investigation, and 16 17

• file such statement and plan or map in the superior court of the 18 county in which said water is situated, or, 19

20 • in case such water flows or is situated in more than one county, in 21

the county which the department shall determine to be the most 22 convenient to the parties interested therein. 23

24 The statement will contain substantially the following information: 25

26 (1) The names of all known persons claiming the right to divert 27

said water, the right to the diversion of which is sought to be 28 determined, and 29

30 (2) A brief statement of the facts in relation to such water, and 31

the necessity for a determination of the rights thereto. 32 33

After conducting the investigation the Department shall determine whether it 34

would be in the public interest to initiate the adjudication. 497 35

36

496 RCW 90.03.110. 497 Id.


4. The legislature has not provided biologically based standards to 1 define appropriate instream flows. 2

3

Under RCW 90.54.020(3)(a), “[p]erennial rivers and streams of the state 4

shall be retained with base flows necessary to provide for preservation of 5

wildlife, fish, scenic, aesthetic and other environmental values, and 6

navigational values. Under RCW 90.03.005, the legislature declared its 7

policy to retain “waters within streams and lakes in sufficient quantity and 8

quality to protect instream and natural values and rights. Under RCW 9

90.03.345, the legislature calls for “minimum flows or levels” which shall 10

constitute appropriations under RCW 90.22.010 or 90.54.040. However, 11

the legislature never defines each of these operative terms: “base,” 12

“minimum,” and “sufficient.” Nor does the legislature provide any 13

biologicallybased standards or criteria to define these terms to guide the 14

Department in establishing instream flows. 15

16

In 1990, as part of the Chelan process, the Department committed to 17

establishing “optimum” instream flowsthose necessary to provide 18

optimum fish habitat. In addition, as part of the State’s Wild Salmonid 19

Policy, the State’s instream flow policy is to: 20

21

Maintain or restore the physical processes affecting natural 22 basin hydrology. In addition, manage water use and 23 allocation in a manner that would optimize instream flows 24 for salmonid spawning, incubation, rearing, adult residency, 25 and migration, that would address the need for channel 26 forming and maintenance flows, and that would address the 27 impacts of water withdrawals on estuarine and marine 28 habitats. 29

30

Optimum instream flows would be established utilizing the best available 31

or most uptodate scientific methods in a collaborative statetribalfederal 32


agency process. However, the Department of Ecology has never adopted 1

the “optimum” instream flow definition in regulation. 2

3 4

5. The authority provided to the Washington Department of Fish and 5 Wildlife is woefully inadequate to ensure protection of instream 6 resources. 7

8

The role of the WDFW in establishing regulatory instream flow rules is 9

generally minimal. Under RCW 90.03.247 the role of the Department of 10

Fish and Wildlife is purely “consultative.” The Department of Ecology must 11

consult with WDFW, but no different than consulting with the department 12

of agriculture and the Energy Office. Ecology has the discretion to 13

completely ignore the primary agency responsible for the protection and 14

management of our fish and wildlife resources. Under RCW 90.03.247: 15

16 Whenever an application for a permit to make beneficial use of 17 public waters is approved relating to a stream or other water body 18 for which minimum flows or levels have been adopted and are in 19 effect at the time of approval, the permit shall be conditioned to 20 protect flows or levels. No agency may establish minimum flows or 21 levels or similar water flow or level restrictions for any stream or lake 22 of the State other than the Department of Ecology, whose authority 23 to establish is exclusive, as provided in Chapter 90.03 RCW and 24 RCW 90.22.010 and 90.54.040. The provisions of other statutes, 25 including but not limited to RCW 75.20.100 and Chapter 43.21C 26 RCW, may not be interpreted in a manner that is inconsistent with 27 this section. In establishing such minimum flows, levels, or similar 28 restrictions, the Department shall, during all stages of development 29 by the Department of Ecology of minimum flow proposals, consult 30 with, and carefully consider the recommendations of, the 31 Department of Fish and Wildlife, the State Energy Office, the 32 Department of Agriculture, and representatives of the affected 33 Indian tribes. . . . . 498 34



1

Under the Department of Fish and Wildlife’s enabling statute, RCW 75.20, the 2

legislature declares “[i]t is the policy of this state that a flow of water sufficient to 3

support game fish and food fish populations be maintained at all times in the 4

streams of this state.” 499 Under RCW 75.20.050, the Department of Ecology is 5

obligated to give notice to the Director of Fish and Wildlife of each application for 6

outofstream water permits. The department of Fish and Wildlife then has thirty 7

days to state their objections to the application. However, as RCW 75.20.050 8

states: 9

[t]he director of ecology may refuse to issue a permit if, in the 10 opinion of the director, issuing the permit might result in lowering 11 the flow of water in a stream below the flow necessary to 12 adequately support food fish and game fish populations in the 13 stream. 14

Ultimate discretion lies with the Department of Ecology in issuing water permits. 15

Ecology can ignore the recommendations of Fish and Wildlife and issue a permit 16

even if it will defeat the purposes of the legislature to ensure sufficient water 17

flows are maintained in all streams of this state to support game fish and food 18

fish populations. 19

20

Another role for the Department of Fish and Wildlife is defined in RCW 21

90.22.060, however ministerial. Under RCW 90.22.060: 22

23

By December 31, 1993, the Department of Ecology shall, in 24 cooperation with the Indian tribes, and the Department of Fish and 25 Wildlife, establish a statewide list of priorities for evaluation of 26 instream flows. In establishing these priorities, the Department 27 shall consider the achievement of wild salmonid production as its 28 primary goal. 29

30

499 RCW 75.20.050.


One of the more substantive roles for the Department of Fish and Wildlife is 1

authorized in RCW 90.22.010. Under RCW 90.22.010: 2

3 . . .. The Department of Ecology shall, when requested by the 4 Department of Fish and Wildlife to protect fish, game or other wildlife 5 resources under the jurisdiction of the requesting state agency, or if 6 the Department of Ecology finds it necessary to preserve water 7 quality, establish such minimum flows or levels as are required to 8 protect the resource or preserve the water quality described in the 9 request or determination. Any request submitted by the Department 10 of Fish and Wildlife shall include a statement setting forth the need 11 for establishing a minimum flow or level. . . .. 500 12

13

As stated, the Department of Ecology has no discretion to avoid establishing 14

minimum instream flows to protect the resource when requested by WDFW. 15

However, even though WDFW has requested Ecology to establish instream flows 16

several times in the past 15 years, Ecology has failed to act. For example, in 17

1996, the Department of Fish and Wildlife, pursuant to RCW 90.22.010, 18

requested Ecology to establish instream flow rules on the following watersheds: 19

• DungenessElwha (WRIA 18), 20 • Upper Snake (WRIA 35), 21 • QuilceneSnow (WRIA 17), 22 • Stillaguamish (WRIA 5), 23 • Entiat (WRIA 46), and 24 • Methow (WRIA 48). 501 25

26 In response, the Department of Ecology was pleased to announce they were in 27

the process of rebuilding their instream resource protection program. 502 In 28

500 RCW 90.22.010 (Emphasis supplied).

501 See Letter from Robert Turner, Director, WDFW to Mary Riveland, Director, Department of Ecology, April 25, 1996. See also, Letter from Billy Frank, Jr., Chairman, Northwest Indian Fisheries Commission, regarding a request for instream flow rulemaking pursuant to RCW 90.22.010February 29, 1996.

502 See Letter from Mary Riveland, Director, Department of Ecology to Robert Turner, Director, WDFW, May 20, 1996.


addition, the department acknowledged “further delay could be damaging to the 1

health and welfare of the state’s important instream resources including fish and 2

wildlife.” 503 3

4

6. The 5,000 gallon exemption authorized by the legislature allows for 5 unmitigated impacts to instream resources. 6

7

Washington water law requires prospective water users to obtain a water right 8

permit from the Washington Department of Ecology before constructing a well or 9

withdrawing any ground water from a well. However, in 1947, the legislature 10

provided an exemption from the requirement to obtain a permit for certain small 11

scale ground water uses. Under RCW 90.44.050: 12

13 “… any withdrawal of public ground waters for stockwatering 14 purposes, or for the watering of a lawn or of a noncommercial 15 garden not exceeding onehalf acre in area, or for single or group 16 domestic uses in an amount not exceeding five thousand gallons a 17 day, or for an industrial purpose in an amount not exceeding five 18 thousand gallons a day, is and shall be exempt from the provisions 19 of this section but, to the extent that it is regularly used beneficially, 20 shall be entitled to a right equal to that established by a permit 21 issued under the provisions of this chapter . . ..” 22

23

In passing this statute, the Legislature felt that very small withdrawals were 24

unlikely to have a significant impact on the water system or to affect the outcome 25

of disputes, and thus could be exempted from the permit requirement. 504 26

27

However, the legislature did not address the potential for cumulative impacts 28

caused by unpermitted withdrawals or added risk to threatened and endangered 29

503 Id. at 1. 504 Id.


species. Nor did the legislature provided for an administrative mechanism to 1

deal with these added risks to instream resources or mitigation for their impacts. 2

3

The Department of Ecology, various environmental groups, and tribal 4

governments were concerned that misuse of the exemption could harm senior 5

existing water rights, instream resources, treatyreserved resources of the tribes, 6

and ground water resources. In addition, the agencies were concerned that some 7

of the increased use of nonpermitted wells could be contrary to legislative intent. 8

In a recent review of the subject by the Center for Environmental Law and Policy: 9

Hundreds of thousands of exempt wells currently exist in 10 Washington, with thousands of new wells being constructed each 11 year. These wells affect resource management because the 12 amounts of water withdrawn are unquantified and, due to their 13 unregulated nature, create untold effects on stream flows that are 14 hydraulically connected to ground water aquifers. Exempt wells 15 affect public health when the water sources from which they draw 16 are contaminated by nitrate concentrations, seawater, or 17 agricultural pesticides and herbicides. Additionally, public health 18 officials have identified numerous problems stemming from 19 improper exempt well maintenance. 505 20

In 1993 alone, Ecology reported that 23,934 exempt wells were drilled in the 21

state. In 1995, there were an estimated 404,000 singlefamily domestic wells, 22

serving approximately one million people in Washington. 506 Currently, 23

developers are using the exemption to build multiple housing projects known as 24

“six packs.” 507 25

26

505 Id.

506 Id.

507 See 1997 Attorney General Opinion on Exempt Ground Water Withdrawals.


The potential impacts and risks our instream resources and listed fish species 1

under the ESA from exempted wells are real. However, the legislature continues 2

to refuse to address the issue and provide a means for the Department of 3

Ecology address impacts or risks caused by the extensive use of the 5,000 4

gallon exemption. 5

7. Civil penalties under the State’s water resource laws do not deter 6 noncompliance. 7

8

Under RCW 90.03.400, 90.03.410 and 90.44.120, it is a misdemeanor crime to 9

waste water, use unauthorized water, use water after being denied a water 10

permit, or use unauthorized ground water. Punishment of a misdemeanor crime 11

could potential bring imprisonment of not more than 90 days, or a fine of not 12

more than $1,000 or both. 508 The Department of Ecology also has civil 13

authorities against those who illegally use water. Under RCW 90.03.600 the 14

Department can levy civil penalties of up to $100 per day for violation of water 15

statutes. 16

17 In addition, the Department of Ecology places greatest emphasis on voluntary 18

compliance from water users. For example, in water short years Department 19

staff will contact junior water users and posting Notices of State Regulation on 20

their diversion headgates to curtail water use. Such postings are the standard 21

way in which Ecology provides its instructions on rivers and streams to 22

protect senior water rights from injury by junior diversions. However, these 23

measures are met with less than full cooperation from water users. 24

25

Unfortunately, either there is a complete lack of enforcement of existing law by 26

the Department or current laws provide no deterrent from illegal use of water. 27

508 RCW 9.92.030.


For example, Ecology estimates that at least 50% of water withdrawals in the 1

Nooksack are illegal. Lyn Doremus, Center for Environmental Law and Policy 2

(CELP) member and hydrogeolosist for the Nooksack Tribe, suspects that 3

because the region receives so much rain, people think there is no need for a 4

permit to take water. With recent population growth and increasing water quality 5

problems, however, it has become abundantly clear that human use is 6

sometimes in conflict with the needs of wildlife, despite a perceived abundance of 7

water. These difficulties are exacerbated by lack of necessary funding for 8

monitoring staff and enforcement against illegal use on the part of the 9

Department of Ecology—the state agency responsible for researching, 10

permitting, and monitoring water usage in Washington. 509 11

12

A state that lacks an effective enforcement program will fail to protect instream 13

flows. An effective instream flow protection program is one that has adequate 14

legislative "backbone," an open process for development of rules and 15

regulations, a fully funded instream flow protection program and water right 16

permitting process that identifies and resolves questions relating to existing 17

claims and rights, and an enforcement program that has penalties sufficiently 18

high to act as a deterrent to flagrant violations. Unfortunately, the legislature has 19

provided none of these tools to the Departments of Ecology or Fish and Wildlife. 20

B. Regulatory 21

1. General Comments 22 23

a. The Department of Ecology arbitrarily and capriciously fails to 24 implement state law in establishing instream flow regulations. 25

26

509 Erskine, Ali, Washington Water Watch, The Quarterly Newsletter of the Center for Environmental Law and Policy, Summer 2000.


In 1967, the legislature gave the authority to the Department of Ecology to 1

establish instream flow rules. 510 However, the Department did not act on this 2

authority until 1976 in establishing the Little Spokane instream flow rules. Since 3

1976, the Department of Ecology has only established 19 instream flow 4

protection regulations of the 62 WRIAs in the State. 5

6

In 1986, the legislature enacted a oneyear moratorium for setting new regulatory 7

instream flow rules. This moratorium expired in 1987, yet the Department of 8

Ecology has failed to implement its authorities. Clearly, Ecology has authority to 9

adopt instream flow rules or closing certain streams to further depletion. 10

However, the Department has failed to act, even in the face of continual listings 11

of threatened and endangered fish stocks under the Endangered Species Act. 12

13

The Department of Fish and Wildlife may request the Ecology to act on instream 14

flow protection. 511 However, Ecology is only required to “consult with” and 15

“carefully consider” these recommendations. The Department of Fish and 16

Wildlife is charged by the legislature to protect our public resources. However, 17

Ecology can ignore the expertise Fish and Wildlife offers in establishing 18

appropriate instream flows or whether to establish these flows in the first place. 19

20

Methodologies utilized by the Department have been vastly different from basin 21

to basin. In some basins, such as the Wenatchee and Walla Walla, it is clear that 22

rules were established to insure that additional out of stream uses of water would 23

be available. In other basins, such as the Nooksack, the most state of the art 24

methodology available at the time was employed, (IFIM) however, even those 25

510 See RCW 90.22.

511 See RCW 90.03.247.


flows would not be found acceptable today, based on current flow settling 1

protocols. 2 3

As discussed earlier, the Department of Ecology has no discretion to avoid 4

establishing minimum instream flows to protect the resource when requested by 5

WDFW. WDFW has requested Ecology to establish instream flows several times 6

in the past 16 years; however, Ecology has ignored their request and its 7

obligation as defined by the legislature. The fundamental policy debates that 8

“lockedup” the department’s willingness to establish new instream flow rules in 9

1985 has not been resolved. Movement on the part of Ecology will probably 10

require litigation by a private citizen or nongovernmental organization, most 11

likely in the form of a mandamus action. 12

13

A writ of mandamus is an action taken by the appropriate court compelling an 14

officer of the State to perform their duty. Washington Administrative law provides 15

a mandamus procedure that may help to ensure the Department complies with 16

its authorities under the various water statutes. The Washington Administrative 17

Procedure Act, RCW Chapter 34.05, which since 1989 "establishes the exclusive 18

means of review of agency action," 512 provides for what is elsewhere called a 19

"mandamus" ("we order") action, a lawsuit to compel an agency to do its job. "A 20

person whose rights are violated by an agency's failure to perform a duty that is 21

required by law to be performed may file a petition for review pursuant to RCW 22

34.05.514, seeking an order pursuant to this subsection requiring performance. . 23

. ." 513 A reviewing court "may . . . order an agency to take action required by law, 24

[or] order an agency to exercise discretion required by law." 514 25

512 RCW 34.05.510.

513 RCW 34.05.570 (4)(b).

514 RCW 34.05.574 (b).


1

Under the mandamus statute formerly applicable, a "writ of mandate . . . may be 2

issued by any court, except a district or municipal court, to any inferior tribunal . . 3

. board or person, to compel the performance of an act which the law especially 4

enjoins as a duty resulting from an office, trust or station. . . ." 515 The writ is 5

aimed at nondiscretionary actions, but the courts will order an agency to 6

exercise its discretion in the face of an arbitrary and capricious failure to do so. 7

8

The Department of Ecology has a nondiscretionary duty to protect instream 9

flows. It is the responsibility of Ecology to ensure: 10

11 [t]he quality of the natural environment shall be protected and, 12 where possible, enhanced as follows . . .[p]erennial rivers and 13 streams of the state shall be retained with base flows necessary to 14 provide for preservation of wildlife, fish, scenic, aesthetic and other 15 environmental values, and navigational values. Lakes and ponds 16 shall be retained substantially in their natural condition. 516 17

18 In addition, under RCW 90.03.005, it is the policy of the state that waters shall be 19

retained within streams and lakes in sufficient quantity and quality to protect 20

instream and natural values and rights (Emphasis added). Is it not an abuse of 21

discretion that the Department fails to establish instream flow regulations and sits 22

idly by while thousands of water right holders dewater streams and impair 23

instream resources? 24

25

515 RCW 7.16.160.

516 RCW 90.54.020 (1) & (3) (a) (Emphasis added).


The mandamus procedure can be triggered by state agency inaction. 517 First, 1

failure to establish and enforce instream flow regulations will result in decreased 2

fisheries production. Second, the rights of at least tribal and nontribal 3

commercial fishers affected tribes are being violated. This is especially pertinent 4

to the treaty right to take fish. The Department of Ecology can be enjoined from 5

allowing fish to be "harvested" in a way that interferes with the treaty 6

allocation. 518 If its failure to provide and enforce minimum instream flow 7

regulations will result in those same fish being "harassed, injured or killed" by 8

habitat damage, it ought to be subject to mandamus to prevent this more 9

egregious "take." 519 Third, providing instream flows is a duty required by law. 10

When the Department of Ecology fails to ensure instream flows are protected 11

and enforced, it appears to violate this mandate. 12

13

Clearly, the Department of Ecology has a duty to protect instream flows and has 14

failed to act on their responsibility for the past 16 years. It should not be too 15

difficult to convince a court the Department of Ecology has acted in an arbitrary 16

and capricious manner by failing to establish and protect instream flows. 17

18

In addition, the Department has ignored the clear statutory mandate to establish 19

instream flows when requested by the Department of Fish and Wildlife. Under 20

RCW 90.22.010, the Department of Ecology “shall when requested by the 21

Department of Fish and Wildlife to protect fish, game or other wildlife resources 22

under the jurisdiction of the requesting state agency . . . establish such minimum 23

flows or levels as are required to protect the resource . . .” (Emphasis added). A 24

517 RCW 34.05.570 (4).

518 Fishing Vessel, 458 U.S. at 695.

519 See RCW 75.08.011 (6).


mandamus action would appear appropriate in this circumstance since the 1

Department of Fish and Wildlife submitted such a request back in 1996. 2

3

In a recent case involving a clear statutory mandate, the court directed the 4

Department of Ecology to require metering of new water rights. 520 In American 5

Rivers, the court stated, “the DOE is not free to follow its view of best 6

management practices but must follow the legislative directive . . ..” “DOE . . . 7

must bring its actions into conformity with the will of the people. . . ..” 521 The 8

court went on to state: 9

10

Failure to follow the legislative directive is arbitrary and capricious 11 because there is no grant to exercise discretion. Therefore, unlike 12 cases where discretion is to be exercised, any action outside of the 13 limitiation of authority granted is capricious, or under terms of the 14 APA, RCW 34.05.574(b), the agency has failed to act in 15 accordance with the statute. 522 16

17 . . . 18

19 The court is not going to direct DOE how to allocate resources 20 except to order the department to follow the statute. 523 21

22

Not only is the Department of Ecology clearly mandated to require metering of 23

new water rights, they are required to set instream flows once requested by the 24

Department of Fish and Wildlife. The legislature has provided too much 25

discretion for the Department in determining whether they should establish 26

520 American Rivers et al. v. Washington Department of Ecology, Civ. No. 992004806, March 30, 2001 (Order resolving remaining claims and granting petitioners’ request for an injunction).

521 Id. at 2.

522 Id. 523 Id. at 3.


instream flows and what are the appropriate instream flow levels. The public 1

must question whether the Department of Ecology is the appropriate agency 2

charged with protection of instream flows for our public and tribal fish and wildlife 3

resources. 4

b. The Department allows for exemptions to the instream flow rules that 5 cause unmitigated impacts to instream resources. 6

7 Several types of water use are generally exempted from instream flow 8

requirements. Applications for nonconsumptive, nonbypass uses have 9

been regarded as exempt because they do not have an effect on 10

streamflow. 524 A categorical exemption has also been provided for 11

domestic use by a single residence and riparian stockwatering. 525 12

13 Under RCW 90.22.04: 14

15 It shall be the policy of the state, . . . to retain sufficient 16 minimum flows or levels in streams, lakes or other public 17 waters to provide adequate waters in such water sources to 18 satisfy stockwatering requirements for stock on riparian 19 grazing lands which drink directly therefrom where such 20 retention shall not result in an unconscionable waste of public 21 waters. The policy hereof shall not apply to stockwatering 22 relating to feed lots and other activities which are not related 23 to normal stockgrazing land uses. 24

25

524 RCW 90.22.010 and 90.54.020(3)(a) (1992).

525 RCW 90.22.040 (1992). This specifically provides that riparian stock watering is a use for which instream flows are to be established. Single domestic uses are normally granted for only 0.01 or 0.02 cubic feet per second and are usually regarded as having an insignificant effect on stream flow. However, a number of the instream flow regulations provide that such uses may be denied if cumulative effects would be significant.


In addition, existing water rights are expressly not affected by newly 1

established instream flow requirements. 526 These regulations are 2

reviewed periodically, and instream flows may be changed based on new 3

information. 527 4

5 The Department of Ecology establishes instream flows with the intent of 6

protecting instream resources. However, in establishing these minimum 7

instream flows, the Department also provides various unmitigated exemptions to 8

these flows. The Department of Ecology has allowed for exemptions that have 9

resulted in reductions in stream flows despite establishment of these flows by 10

rule. In many basins, additional domestic use of groundwater, and in some 11

cases surface water, was considered the highest priority use of water. In these 12

cases, additional out of stream uses were permitted, even when it would reduce 13

instream flows. In all basins, the groundwater exemption for single family use and 14

stockwatering was continued, even in those basins where lack of available flow 15

for fish was clearly identified. 16

17

For example, under WAC 173507528 and 173508,529 the Department exempts 18

domestic inhouse use for single residences and stock watering, except that 19

related to feed lots. Even more expansive, under WAC 173545, the Department 20

allows for unmitigated impacts caused by group domestic and municipal water 21

systems. Under 173545070: 22 23

526 RCW 90.22.030, 90.54.900 (1992).

527 WAC 173501, 173563 (1992).

528 WAC 173507050(2).

529 WAC 173508080.


(2) Future requests for group domestic uses, including municipal 1 supply, may be exempted from the minimum instream flow 2 provisions of this chapter when it is determined by the department, 3 in consultation with the departments of fisheries and game, that 4 overriding considerations of the public interest will be served. 5

6 (3) Single domestic and stockwatering use, except that related to 7 feedlots, shall be exempt from the provisions established in this 8 chapter. If the cumulative impacts of numerous single domestic 9 diversions would significantly affect the quantity of water available 10 for instream uses, then only single domestic in–house use shall be 11 exempt if no alternative source is available. . . .. 530 12

13

In essence, the Department’s policy is that they will protect instream flows, but 14

only until the extent future growth needs the water. 15

16

c. The Department has not provided biologically based standards to 17 define appropriate instream flows. 18

19

There have been no biologically based standards established to define the level 20

of flow necessary to be protected when establishing flows by rule. All of the 21

instream flows established prior to 1979 were based on basin hydrology, without 22

any consideration of the biological needs of fish. In the latter period when in 23

stream flows were established, a habitat based modeling effort was undertaken, 24

but in many cases the higher flows requested by WDF and WDG and Indian 25

Tribes were not accepted by the Department of Ecology. The flows established 26

by rule set an upper limit on the habitat available for use by anadromous fish to 27

spawn and rear. In virtually every case, a net reduction in available habitat was 28

the result of the establishment of these rules. 29

In the final analysis, all instream flows established by rule in Washington State 30

fail to meet standards that would be required if flows were being established 31

530 WAC 173–545–070(2) (Emphasis added).


today. It is clear the flows established based on flowduration curves have no 1

biological basis, and resulted in establishment of flows below optimum for fish 2

production. While some improvements were made when the toe width method 3

was utilized, this methodology suffered from a very simplistic modeling effort 4

based on few data points, and analysis of a narrow range of fish life stage 5

requirements. The flows established by the use of IFIM methods were better still, 6

but still failed to incorporate a large number of crucial factors. Flushing flows for 7

the movement of smolts downstream were not provided for. Nor were channel 8

maintenance flows considered in the establishment of these rules. Finally, factors 9

such as estuary conditions and the interaction between tide and river flow were 10

not part of the analysis. The physical dynamics of river systems was reduced to 11

simplified habitatflow relationships that ignored the variable nature of rivers and 12

the important role that this variability plays on the formation of stream channel 13

conditions. While the methodology utilized to set flows might have been "state of 14

the art" in the early 1980's, these 1980's methods are not adequate to meet the 15

needs of imperiled fish of the early 21 st century. In every case, the instream flows 16

established by rules have been found to be inadequate to provide full habitat 17

productivity for the protection and enhancement of anadromous fish. 18

d. Most instream flow regulations fail to utilize the best available 19 science and are established for political or outofstream interests. 20

21

Most of the regulatory instream resource protection and basin plans do not 22

have biologicallybased flows that are optimum for fish survival but are flows 23

adopted using subjective criteria so that outofstream uses would also be 24

protected. Instream flow regulations lack adequate scientific foundation.531 25

Most of the IRPP minimum instream flows lack adequate scientific foundation, 26

531 Dr. Hal Beecher is an instream flow fishery biologist employed by the Department of Fish and Wildlife and is an expert in the field of fishery biology, habitat needs for fish, and the effects of low flows on fish.


having been created from flow data that was not adjusted for contemporary 1

water usage. Resulting hydrographs and exceedance rates were artificially 2

depressed. Data deficiencies were compounded by the use of subjective flow 3

rating systems that discounted habitat values, reducing target flows even 4

further. 532 5

6

For example, Methow River target flows adopted in 1977, 533 are biologically 7

inadequate. Ecology’s 1992 Instream Flow Incremental Methodology survey, 534 8

and a recent National Marine Fisheries Service’s target flow study effort, both 9

acknowledge the need for a new flow baseline that will achieve the goal of 10

salmon recovery. 535 In the Walla Walla basin, no target flows were set at all. 11

Instead, the basin rule defers flow protection until “new water” becomes available 12

through storage or other measures. 536 Reaches of the Walla Walla River can be 13

completely dewatered during the irrigation season, and the Umatilla Tribe this 14

year conducted “salvage operations” to rescue ESAthreatened steelhead 15

stranded in isolated pools in the river. 537 16

17

In Washington, the science and policy of instream flow setting are driven by 18

conflicts between outofstream and instream water uses that often posit the 19

debate in zerosum terms. Recent endangered salmon listings have infused 20

532 Ecology, 1979.

533 WAC 173548020.

534 Ecology, 1992.

535 Grady, 1999.

536 WAC 173532030.

537 Farquhar, 1999.


urgency into the need for scientificallysound flow studies, putting the issue 1

back on the agenda for state officials. Salmon recovery will require 2

restoration of flows, raising hard questions about where and how water will be 3

returned to streams. Solutions will include nascent water markets, watershed 4

planning exercises, adoption of meaningful water efficiency standards, and 5

enforcement against illegal water use. Solutions will also include legal action 6

under endangered species and water quality laws to limit the exercise of 7

water rights that conflict with federal environmental standards. 8

e. Steam closures do not result in flow setting. 9 10

In every instance, despite flows being established for major rivers, instream flows 11

were not established for tributaries. While the closure of tributaries to new 12

appropriations was intended to protect existing flows, exemptions for 13

groundwater withdrawals and the lack of enforcement continued to further 14

encroach on stream flows. By choosing merely to close streams to new 15

appropriations, WDOE avoided studies to determine the appropriate level of 16

stream flow necessary to protect fish. Lacking this information, it is impossible to 17

determine what level of degradation has taken place as a result of past 18

appropriations, or what amount of stream flow should be restored to meet the full 19

productivity of these streams. 20

21 While there is an assumption that basin closures may be an effective technique 22

in protecting existing flows, it has failed on two counts. First, in most instances 23

basin closures by rule have only been directed towards surface diversions. By 24

and large, ground water diversions are exempted, and the 5000 gallon exemption 25

for single family domestic use and stockwatering is always left intact. The 26

ongoing exemption for domestic use, even within closed basins, virtually 27

guarantees that overtime, instream resources will be adversely effected. Despite 28

language in many of the rules that discusses the elimination of the exemption if 29


instream flows or fisheries resources will be impacted, this has virtually never 1

happened since the inception of this program, and provides illusory protection at 2

best. 3

4

Second, basin closure does not examine the adequacy of flows existing in the 5

streams at the time of closure. Therefore, there is no ability to determine if 6

current levels of flow are adequate or if remedial measures are necessary to 7

protect fish populations. 8

f. The use of 50% exceedance values to determine instream flows 9 reduces the overall productivity of watersheds. 10

There was an initial overestimate of the amount of water that might be available 11

for new out of stream consumption because basin hydrology was determined 12

based on what flows were remaining in streams at the time of rule setting. The 13

flowduration curves that were established were based on remaining flows, and 14

therefore severely underestimated the historical amount of flow in many rivers. 15

As a result of this hydrological assessment, coupled with the selection of 16

instream flow targets of 5095% exceedance flows, WDOE virtually assured that 17

stream flows would diminish over time. 18

Stream flows in excess of the minimum flows established would be available for 19

new uses. What was the 50% exceedance value would ultimately turn into the 20

100% exceedance value, at least during summer months because all water 21

surplus to the instream flow would be eliminated. This would virtually assure that 22

except in drought years, the minimum flow would never be exceeded. During wet 23

years, all water excess to the minimums established will be utilized. In average 24

years, the instream flows would be met, and in dry years, the instream flows 25

would not be attained. By choosing the 50% exceedance value in many of the 26

rules, WDOE eliminated the additional fish production that would result from 27


wetter than average years. As a result of the flows established, the best that the 1

resource could hope for would be an average year. The only direction flows could 2

go for this point would be down. 3

2. Critique of instream flow methods 4

a. Critique of base flow methodology 5 6

The base flow methodology for flow setting to protect fish is technically flawed for 7

a number of reasons. Most importantly, this method is based not on the needs of 8

fish, or the presence or absence of habitat as a result of the stream flows 9

established, but purely on basin hydrology and an arbitrary allocation of water as 10

a result of that hydrology. 11

12

It is first important to understand the measurement used to describe basin 13

hydrology. As stated in the FEIS,538 a dischargeduration hydrograph shows 14

the relative yearround expectance of different levels of streamflow for a 15

particular stream location based on an analysis of historical streamflow records 16

for that location. Flow duration curves, or exceedance curves, are a numeric 17

depiction of the percent of time a given stream flow is exceeded on a particular 18

date. These curves are usually generated based on stream gauge data collected 19

over a number of years. From this data, a flow/frequency of occurrence curve 20

can be generated by doing a statistical analysis on a day by day or month by 21

month basis. For example, if the 50% exceedance value on River X is 50 cfs on 22

June 1 st , this means that on average there is a 50% likelihood that stream flow 23

will be greater than 50 cfs. If the 95% value on June 1 st is 20 cfs, then on 24

average, 95% of the time the stream flow will be greater than 20 cfs. Readers 25

538 1979 Final Environmental Impact Statement, Western Washington Instream Resources Protection Program, Washington Department of Ecology.


should therefore understand that 95% exceedance flow is generally much lower 1

than a 50% exceedance. The larger the number, the lower the flow. 2

3

WDOE's development of flow duration curves were often times artificially low. 4

The stream gauging data used did not account for diversions that occurred 5

upstream of the measuring point. Therefore, the flows utilized to generate the 6

curves were not reflecting natural streamflows, but flows remaining after 7

diversions. Therefore, flow setting using this methodology was based on 8

availability of water subsequent to historic diversions, rather than under natural 9

conditions. 10

11

As stated above, the use of exceedance values is not based on any empirical 12

relationship between stream flow and fish habitat or fish production. The use of a 13

95% exceedance flow during high flow months, and departure from 95% during 14

low flow periods has no scientific justification. The use of somewhat lower 15

exceedance measures during low flow periods is for the most part an effort to 16

balance having some water in streams, with the ability to issue additional 17

permits for withdrawal. Dr. Hal Beecher, WDFW's expert in instream flow setting 18

has stated that for lowland headwater streams (<3000 feet) "channels are 19

formed by winter storm flows, so summer flows pull waters edge away from the 20

steep part of the stream bank, thereby depriving fish of essential cover.539 He 21

goes on so say that "it is quite safe to say that any western Washington stream 22

(except high gradient, bedrock channel streams) with a flow less than 50 cfs 23

during the summer is sensitive to flow reduction." Therefore, any reductions in 24

stream flows during summer months in lowland headwater streams will have 25

adverse effects on fish. By establishing streamflows based in large measure on 26

artificially low exceedance values will result in diversions adversely effecting fish. 27

539 Letter to Larry Wasserman, July 20,1995.


It was extremely rare that the low flow values chosen for setting base flows 1

resulted in no additional water available for allocation. Choosing high 2

exceedance values (e.g. 95%) virtually insures that additional water will be 3

available for allocation because at the 95% level, for example, flows will exceed 4

base flow nearly all of the time. The only instance where this will not be the case 5

is where existing diversions were built into the development of the flow/duration 6

curves, and where there was an accurate analysis of previously consumptive 7

water rights, whereby all the flow surplus to the base flow was considered to be 8

already allocated. 9

10

Establishing streamflows at these levels is compounded when considering the 11

effects on fish populations over time. If, in fact summer stream flows are a 12

limiting factor for fish production, then under natural conditions we can expect 13

populations to be variable, based in part on whether the year in question has 14

been a wet or dry one. However, once an instream flow is established at a 15

particular exceedance level for example 70%, and all additional water is 16

appropriated, then what was the 70% exceedance level becomes the 0% 17

exceedance level, because all flow excess to the instream flow is being utilized 18

for out of stream uses. The result of this flow setting will therefore result in not 19

meeting the instream flow during dry years, meeting the flow during average 20

years, and only meeting the flow during wet years. The end result is that there 21

are never better than average conditions in the stream, only average or worse. 22

The fish never see the benefit of a particularly wet year because those flows 23

have been appropriated This methodology therefore acts to limit total fish 24

production to the extent that the production is dependant on stream flow. 25

26


In addition, when examining Table D2, 540 in Appendix D, it is clear that there is 1

no scientific basis for the relative ranking of stream segments. First, the director 2

of the water resources division at the time of implementation arbitrarily chose the 3

values established as criteria in the table. Second, the magnitude of the effect on 4

flow setting (i.e. changes from 95% exceedance) were purely arbitrary, and can 5

be found on graph D3, pg D14 in the FEIS 541 (Appendix D). It is clear that the 6

flow setting as a result of this methodology is clearly a political one that balances 7

the use of remaining water between out of stream users and the needs of fish. 8

While the benefit to out of stream users could be evaluated (based on additional 9

water available for consumption), the cost to the fisheries resources was never 10

quantitatively examined. 11

12

Finally, this methodology, as well as the toe width method and IFIM as 13

historically employed in the rule making process do not consider a number of 14

addition factors of importance to fish. First, no migration or flushing flows are 15

provided for. During spring snowmelt, high streamflows coincide with the 16

downstream migration of smolts. These high stream flows facilitate this 17

movement, resulting in shorter travel times to the sea. These shorter travel times 18

result in higher overall survival and adult return rates Instream flows based 19

merely on exceedance values do not consider this element of salmon life history. 20

21

Water quality parameters are significantly impacted by the quantity of instream 22

flow. Dilution of pollutants, and stream temperature are important considerations 23

in determining instream flows. These were not considered in this methodology. 24

25

540 1979 Final Environmental Impact Statement, Western Washington Instream Resources Protection Program, Washington Department of Ecology.

541 Id.


Rearing fish, and those awaiting spawning, are often oriented to the availability of 1

instream structures, commonly called cover. This cover, in the form of boulders, 2

and downed woody debris, provides visual protection from predators, both land 3

based and aquatic. None of the instream methods employed during previous rule 4

making incorporated factors for cover in their analysis. 5

6

Fish habitat is in large measure established based on the erosive forces of high 7

streamflows. Very high stream flows form the shape of stream channels, and 8

moderately high stream flows maintain the channels in a state of dynamic 9

equilibrium. The number of pools and riffles in a particular stream reach is 10

established by basin hydrology and geology. While a particular pool or riffle may 11

exist or disappear on a yearly basis, the general stream morphology and channel 12

configuration will be maintained if stream flows are maintained. Elimination of 13

high stream flows due to diversions removes or reduces these channel 14

maintenance or channel forming flows. This was not considered in the base flow 15

methodology, as well as in the toe width or IFIM approaches. 16

b. Critique of Toe width methodology 17 18

While this was a significant scientific advancement in the development of 19

instream flows for fish, it still suffers from many of the similar failings of the early 20

base flow methodology. It does not reflect water quality issues, channel 21

maintenance or forming issues, or outmigration needs. Rearing flows, based on 22

proximity to streambanks, does attempt to implicitly incorporate concerns for 23

cover, but it does not do so in any quantitative manner. 24

25

More specifically, the toe width method results in general stream flow setting, 26

without considering habitat preferences for fish actually inhabiting the streams 27

under consideration. Studies have shown that in many instances that habitat 28


preferences for individual species vary from stream to stream. This is not 1

reflected in the toe width methodology. 2

3

Second, there is a significant degree of error associated with most regression 4

analyses, and these analyses are no different. Standard errors can be on the 5

order of 60%, which may result in significant errors in established stream flows. 6

The level of precision in not particularly high, and there is no requirement that 7

theoretical flows will result in the actual amount of habitat predicted. 8

9

Finally, the toe width methodology is a relatively crude instrument in determining 10

the actual amount of habitat will result from a particular flow. It is based not on 11

stream specific data, but from an amalgamation of data over a wide geographic 12

distribution. We can therefore not be sure of the accuracy of the predictions. 13

Therefore, two streams of similar size, elevation, and watershed area would be 14

predicted to have similar instream flow needs. However, underlying geology, and 15

local climatic conditions can result in dramatically different channel configurations 16

that would require significantly different flows to attain the same amount of fish 17

habitat. 18

c. Critique of IFIM methodology 19 20

As previously mentioned, IFIM as historically utilized in rule making by WDOE 21

suffers from some of the same shortcomings as the two previous approaches. It 22

did not consider water quality parameters, cover, or channel formation flows, nor 23

did it address migration flows in most instances. 24

25

An additional shortcoming with IFIM is that flows are based on static habitat 26

conditions, when in fact conditions do change. As stream channel changes, so 27

does the available habitat at a particular flow. While in fact the IRPP provides for 28

fiveyear reexaminations, this in fact never occurs. The opportunity does exist to 29


recalibrate the models based on changing stream characteristics, but it is not a 1

required part of the methodology. 2

3

One major criticism of the IFIM methodology is that it does not relate streamflow 4

to actual fish production. This is a shortcoming in any predictive tool in that a 5

multitude of other factors can effect fish production. However, while the 6

methodology can evaluate incremental increases in habitat with changes in flow, 7

there has been no accurate way to predict fish populations based on the 8

implementation of an incremental flow approach. 9

10

IFIM also does not incorporate analyses on the impacts of flow reductions on 11

estuarine functions or the fish that require these functions. The physical and 12

biological characteristics of estuaries are in large measure a function of 13

freshwater inputs. In addition, the movement of anadromous fish is largely 14

influenced not only by tidal action, but by streamflows as well. IFIM, as with base 15

flow and toe width methods, do not provide for consideration of these functions. 16

17

Finally, one final criticism of IFIM is that it does not necessarily incorporate 18

natural stream conditions into flow setting regime Richter, et al. 1997 542 provides 19

for a new approach for setting streamflows based on the range of variability 20

approach. Ecology theory recognizes the critical role of hydrological variability in 21

sustaining aquatic organisms. Instream flows should contain elements of this 22

variability to insure longterm ecosystem function. This variability has not been 23

incorporated into the IFIM approach. 24

542 Richter, B.D., J.V. Baumgartner, R. Wigington, and D.P Braun, 1997, How Much Water Does a River Need?, Freshwater Biology, 37,231249


3. Specific basin comments 1

a. Nooksack RiverWRIA 1 2 3

Rule setting in the Nooksack Basin consisted of the establishment of minimum 4

flows, new closures on 26 streams, and confirmation of low flow restrictions 5

and/or closures on 19 streams and lakes. Methodologies varied from site to site. 6

WDOE did not feel that ground water withdrawals were of concern, which 7

found, 543 "For the most part, ground water supplies in the basin are abundant." 8

9

IFIM methodology was employed on the North, Middle and South Forks of the 10

Nooksack River, as well as on Kendall, Silver, Terrell, and Maple Creeks. The 11

Toewidth method was conducted on numerous other streams, and formed the 12

basis for comments on the part of the Washington Depts. Of Fish and Wildlife, 13

as well as the Lummi Tribe. These same fisheries managers suggested stream 14

closures on numerous additional tributaries and lakes as well. 15

16

For many tributaries, despite recommendations on the part of the Tribes and 17

agencies, WDOE chose to use the 50% exceedance value to establish instream 18

flows, but in some cases also closed the basin to new withdrawals.It appears 19

from the report that the 50% exceedance level was chosen for the following 20

streams: Anderson Creek,Bells Creek, Bertrand Creek,California Creek, Canyon 21

Creek, Cornell Creek, Dakota Creek,Deer Creek, Fishtrap Creek,Gallop Creek, 22

Hutchinson Creek,Johnson Creek,Kendall Creek, Maple Creek,Porter 23

Creek,Racehorse Creek, Saar Creek, Silver Creek, Skookum Creek, Smith 24

Creek, Sumas River,Tenmile Creek, Terrell Creek and Wiser Lake Creek. As 25

have stated previously, not only are flows established based on 50% exceedance 26

543 Nooksack River Instream Resources Protection Program Series 11, 1985 at 17.


not biologically based, but based on Dr. Beecher's letter 544 reductions during the 1

summer months from these streams will have adverse consequences for fish. 2

The stream flows established by rule, however, were not supported by the Tribes 3

or agencies. The Nooksack Tribe pointed out that the hydrographs used to 4

establish minimum flows for the following tributaries, Canyon (NF), Cornell, 5

Gallop, Hutchinson, Maple, Porter, Racehorse, and Smith Creeks are of 6

questionable value in that they have been correlated to tributaries or river 7

sections that reflect dissimilar watershed/and or physical characteristics. 545 8

9

WDOE stated that they would reconsider the hydrographs that were utilized to 10

establish the flow duration curves, but no information is provided if in fact new 11

curves were used to establish flows. WDOE provided the following response to 12

the concerns that 50% exceedance flows are not protective enough of salmon: 13

14

Flows recommended by WDF and WDG are often designed to 15 protect 100 percent of habitat. Establishment of flows at the 50 16 percent exceedance level represents flow which will be there one 17 out of two years and represents average stream flow. Ecology 18 generally does not find it appropriate to preserve at WDF and WDG 19 flow levels because to do so would result in virtually a total closure 20 of the area's streams to future consumptive use. Also, in streams 21 not now fully appropriated it is very unlikely that water rights will be 22 issued that will be of large enough quantity to eliminate the peak 23 flows when they do occur. This is due in part to the quantity of 24 water present at high flows and to the fact that future water rights 25 subjects to these flows will not provide firm water supplies but 26 instead can be expected to provide water about 1out of 2 years. In 27 many cases, such restrictions cause the water user to seek 28 alternate supplies of water. Streams already fully appropriated are 29 being closed to further consumptive appropriation, at least 30 seasonally. Also, it should be noted that in numerous cases 31

544 Letter to Larry Wasserman, July 20.1995.

545 Nooksack River Instream Resources Protection Program Series 11, 1985 at 17.


although flows were proposed at the 50 percent exceedance line, 1 there is also a seasonal closure to future consumptive uses during 2 the most critical summer low flow period. This closure is based on 3 fisheries considerations. 546 4

5

WDF voiced the following concerns: 6

7

We support the DOE recommended flows for the Middle Fork 8 Nooksack River. We feel that a summer fall closure is justified for 9 both the North Fork and the South Fork Nooksack River for rearing 10 salmonids. With such a closure we would also support DOE's 11 recommended flows for these Forks. We do not feel that adequate 12 information exists to support DOE's recommended Nooksack River 13 mainstem flows. We recommend that DOE monitor water quality in 14 the mainstem and adjust flows if monitoring indicates a need. 547 15

16

WDG stated: 17

18

Results of a Department of Fisheries study using the Instream Flow 19 Incremental Methodology IFIM indicated that any flow reduction in 20 the North Fork Nooksack River would reduce habitat for juvenile 21 steelhead. For this reason we have recommended that the North 22 Fork Nooksack River be closed to any further appropriation of water 23 rights, but Ecology's proposed regulations do not include closure. 548 24

25

It therefore appears that although the instream flow set for the North Fork and 26

South Fork were adequate, WDOE left the basin open to additional 27

appropriations during part of the summer, since basin closure is only during 28

September and October. It also appears the WDF's concerns with flows on the 29

mainstem are based on water quality considerations. 30

546 Id. at 183.

547 Id. at 157.

548 Id. at 183.


1

The Lummi Indian Tribe expressed a final concern: 549 2

3

Our first concern is that a large number of fish producing streams 4 were left out of the program. Among those excluded are Aldrich, 5 Boulder, Boyd, Cavanaugh, Coal, Deadhorse, Diamond, 6 Doubleditch, Edfro, Hedrick, Howard, Jones, Kenney, Pond, 7 Stygitowitz, and Wildcat Creeks. All these streams produce 8 anadromous fish and some are heavy producers. With these 9 streams excluded the current program is incomplete at best. We 10 recommend they be included at this time. 11

12

WDOE's response was streams listed will be included in the fiveyear review of 13

the program if adequate data is available at that time. 550 14

15

Finally, the issue of enforcement was raised by a number of respondents when 16

rules for the Nooksack Basin were proposed. WDOE 's response to concerns 17

about enforcement were: 18

19

As explained at the public meeting and the hearing, the department 20 has not had adequate staff resources to be able to effectively 21 enforce water rights laws in the Nooksack WRIA. Due to recent staff 22 increases by the legislature, the NWRO will be able to reassign 23 some of its existing staff to water rights enforcement activities and 24 Ecology does anticipate a more aggressive enforcement program. 25 The enforcement of existing water rights and water rights laws is a 26 separate issue from adoption of the proposed regulation because 27 such enforcement can occur whether or not the regulation is 28 adopted. In any event, the department is willing to work with people 29 within the bounds of state water rights laws to try to minimize any 30 adverse impacts that might occur as a result of any enforcement 31 activities. 551 32

549 Id.; Letter from Lummi Indian Tribe to DOE.

550 Id.

551 Id.


1

There is no indication from any WDOE records that we have reviewed that a 2

more aggressive enforcement program has been initiated since this program was 3

adopted in 1985. 4

b. Snohomish WRIA 7 5 6

The standard base flow methodology was utilized in establishing instream flows 7

for WRIA 7 552 .High flow instream flows were established at 95% exceedance 8

levels, low flow exceedance values ranged from 7077 percent. Base flows were 9

established for the South Fork Skykomish (74%), Sultan River (77%),Skykomish 10

River (71%), No. Fork Snoqualmie River (71%), three sites on the Snoqualmie 11

River (70%71%), Tolt River (72%), Pilchuk Creek (exceedance unknown) and 12

the Snohomish River (71%). 13

14

However, provisions are made to reduce flows beyond those established above 15

based on critical water years. No discussion was provided to determine how 16

critical year instream flows were established. Reductions in flows established by 17

rules could be reduced by as much as 50% in critical years compared to normal 18

years. 19

20

For certain streams, which are proposed to be developed with 21 major projects, a secondary set of flows have been provided, to 22 apply to dryyear conditions. These critical year flows are a level of 23 security which cannot be violated, except under unusually harsh 24 conditions. 553 25

26

552 Snohomish Instream Resource Protection Program Series 2, 1979.

553 Id. at 15.


Clearly, under dry year conditions, the fish will unduly suffer because the Director 1

can allow additional flows be diverted. 2

3

Normal year flows must be maintained at all times unless a critical 4 condition is declared by the director. The director, or his designee, 5 may authorize, in consultation with the state departments of 6 fisheries and game, a reduction in instream flows during a critical 7 condition period. At no time are diversions subject to this regulation 8 permitted for any reason when flows fall below the following critical 9 year flows, except where a declaration of overriding considerations 10 of public interest is made by the director.554 11

12

**Critical year flows represent flows below that the department believes 13

substantial damage to instream values will occur. 14

15

In addition to the instream flows established above, instream flows of a sort were 16

established on 22 additional streams. No data is provided to indicate how these 17

flows were established. These instream flows set by rule were of a nature that 18

diversion must cease when a particular flow level was set. WDG, in its July 31, 19

1979 letter to WDOE expressed the following concern: 20

21

We agree that small streams are particularly vulnerable. The 22 proposed program could be an important step to protect these 23 resources but we would like to see a more specific description of 24 how proposed diversions will be treated. Who will keep track of 25 them? What threshold levels to trigger administrative action will be 26 used? This is critical to protection of streams not covered by this 27 regulation. 555 28

29

WDOE's response was: 30

31

554 WAC 173507020 (2).

555 Id. at 4.


Proposed diversions would be handled the same as current water 1 right applications. A permit would be issued to develop the water 2 use with specific conditions applied to it, including the proposed 3 instream flows (if adopted). Where small tributaries are involved, 4 and instream flow control locations are considerably downstream 5 from the proposed diversion, separate flow values can be 6 determined at that location. As currently proposed, this would 7 become an automatic practice once a certain threshold quantity of 8 diverted water is reached. We believe this will safeguard small 9 streams from over appropriation, even though downstream instream 10 flow figures may continue to be met. 556 11

12

It appears that there is no real mechanism in place to implement in the instream 13

flow rule in smaller tributaries. WDOE proposes to establish a different instream 14

flow at the site of specific diversions in order to implement this rule. They do not 15

state how they intend to oversee implementation. 16

17

In addition, the program document includes recommendations from WDF and 18

WDG regarding instream flows for approximately 34 additional sites. These 19

recommendations were not incorporated into the adopted rules. WDF and WDG 20

also conducted toe width investigations and proposed that flows to protect 100% 21

of the spawning habitat be established. For the Tolt River, WDOE established 22

flows at 90% of maximum during normal years, and 75% of maximum during 23

critical years. For the South Fork of the Skykomish River, compared to 100% 24

protection recommended by WDF and WDG, WDOE established flows at the 25

95% level. On the Snoqualmie River at Carnation, WDF recommended protection 26

at the 90% level for salmon, WDG recommended steelhead flows at the 100% 27

level, and WDOE adopted rules at the 90% level of maximum habitat availability. 28

556 Id.


The SEIS 557 shows the differences in flows, by month, established by rule and 1

recommended by the agencies. 2

3

WDF ultimately concurred with the flows established by WDOE: 4

5

There are some specific items In the EIS that we would like to 6 comment on. We appreciate the inclusion of the Department of 7 Fisheries and Game's provisional instream flow recommendations 8 for the smaller tributaries (without control stations). These smaller 9 tributaries support the majority of the coho salmon spawning and 10 rearing in the basin and in addition some of the streams listed In 11 Table 4 also support substantial runs of pink, chum and/or chinook 12 salmon. We urge DOE to develop and implement the automatic 13 review process whereby the tributaries will be protected. We believe 14 this review process is critical to the maintenance of spawning and 15 rearing throughout the watershed. The instream flows as shown for 16 the Tolt River are needed for protection to the fisheries resources. 17 We recognize the need ofthe City of Seattle for additional M A I 18 water supply and believe that these base flows offer the needed 19 resource protection while allowing for some additional M & I water 20 diversion. In summary the Department of Fisheries concurs with the 21 flows as outlined in the Draft EIS and urges their adoption. 558 22

23

It is clear from this letter that WDF accepted the flows proposed by Ecology as a 24

compromise to accommodate out of stream municipal needs. With regard to the 25

review process, WDOE's response was: 26

27

We agree that implementing an automatic review process for 28 stream reaches without specific instream flow figures is important. 29 The department has initiated further study of this process with 30 regional personnel, discussing potential management options. We 31 will be developing standard operating procedures to implement this 32

557 Supplemental Environmental Impact Statement Snohomish Instream Resources Protection Program Figure 1.

558 Snohomish Instream Resource Protection Program. Series 2, 1979, June 19,1979 letter from WDF to WDOE.


element of the program in the next few months. It should be noted 1 that the proposed rules cover all streams and tributaries at the date 2 of adoption. 559 3

4

With regard to a final implementation note, DOE also found that: 5

6

However, stream gage data are not available for all control points. 7 No stream gage was ever established for the Snoqualmie River 8 control point at river mile 2.5 A stream gage numbered "12155400" 9 was established by the USGS for the Pilchuck River, but no data 10 have been published by the USGS for this gage. Stream gage 11 12141100 was established on the Skykomish River near Monroe in 12 October 1968 but was discontinued after less than one year of 13 operation. 560 14

15

The lack of ongoing stream gauge data certainly calls into question whether 16

permits for withdrawal issued subsequent to the establishment of instream flows 17

can be regulated so that diversions cease when once instream flow levels fall 18

below the base flow. 19

c. CedarSammamishWRIA 8 20 21

The result of this rule was to close to further consumptive appropriation other 22

than for inhouse domestic use, all streams and lakes in the Lake Washington 23

drainage basin above the Hiram M. Chittendon Locks, except the Cedar River 24

and its tributaries. Two sets of instream flows were established for the Cedar 25

River, one for normal years, and one for years with critically low flows. The 26

process was as follows: 27

28

559 Snohomish Instream Resource Protection ProgramResponse to comment #2.

560 Draft Initial Watershed Assessment Water Resources Inventory Area 7 Snohomish River Watershed states Open File Technical Report 9506, 1995 at 22.


Normal year flows are flows which must be maintained at all times 1 unless a critical condition is declared by the Director. The Director, 2 or his designee may authorize, in consultation with the State 3 Departments of Fisheries and Game, a reduction in instream flows 4 during a critical condition period. At no time are diversions subject 5 to this regulation permitted for any reason that cause the instream 6 flows to fall below critical year flows, except where a declaration of 7 overriding considerations of public interest is made by the 8 Director. 561 9

10

Critical year flows represent flows below that the department believes substantial 11

damage to instream values will occur. 12

13

As a "rule of thumb", a flow greater than the natural 1 in 10 year low flow would 14

not be considered critical. 562 15

16

Therefore, during drought years, less water would be available to sustain the 17

fisheries resource, in order to meet municipal needs for the City of Seattle. The 18

Director could declare that "overriding considerations of public interest" require 19

reductions in streamflows for fish. There was no discussion regarding how the 20

values for reduced streamflows were determined. Further, WDOE had 21

maintained that their legal responsibility was to establish flows for the "protection" 22

of fish, then it is unclear how a two tiered system would be developed. In other 23

words, if flows established at critical years were adequate to avoid substantial 24

damage to instream values, then why establish higher flows during normal year. 25

This two tiered system underscores the arbitrary nature of the way that WDOE 26

established the levels of flow protection when promulgating rules. 27

28

561 CedarSammamish Instream Resources Protection Program, Series No. 1, 1979 at 17.

562 Supplemental EIS CedarSammamish Instream Resources Protection Program at 1.


As with other basins where stream closures were established, domestic and 1

stockwatering uses were exempt from the rule. WDOE expressed concerns 2

regarding these uses: 3

4

According to the DOE person in charge of water rights in this area, 5 a very large percentage of persons in the basin irrigate lawns and 6 gardens with surface water. This is especially true around lakes 7 Sammamish and Washington. The tables in Appendix v show about 8 10 cfs and 460 acres appropriated for this purpose. In addition to 9 these appropriated amounts which are protected by law and would 10 be unaffected by the proposal, DOE estimates a large amount of 11 littoral irrigation or irrigation where only a water right claim has been 12 filed. A water right claim is a claim to water based on usage prior to 13 1917. Experience has shown that only 1015 percent of claims may 14 be upheld if tested. A total of 1,802 claims are recorded for this 15 basin. 563 16

17

We do not know how many water users are irrigating without substantiable 18

rights. 564 19

20

Groundwater rules were established as follows: 21

22

In future permitting actions relating to ground water withdrawals, 23 the natural interrelationship of surface and ground waters shall be 24 fully considered in water allocation decisions to assure compliance 25 with the intent of this chapter. 565 26

27

Therefore, the use of water for domestic and stockwatering purposes would 28

continue, and it is clear from the SEIS that a substantial amount of water, of 29

unknown quantity, was being utilized in tributaries to the Lake Washington 30

563 Id. at 3.

564 Id. at 4.

565 WAC 173508050.


drainage. Future permits for groundwater withdrawals were to be evaluated in 1

light of hydrologic continuity considerations, but exempt uses would continue 2

unabated. 3

4

With regards to the actual values established for instream flows for the Cedar 5

River, there was considerable scientific debate. WDOE summarized the issue as 6

follows: 7

8

In short, the WDF contends that the 480 cfs DOE curve provides a 9 greater area for spawning, and that it will provide a higher survival 10 rate by forcing spawners from the turbulent midchannel areas 11 where eggs are more susceptible to flood damage. The FRI stand 12 is that although the maximum cumulative spawnable area occurs 13 when the flow reaches 480 cfs, this is actually an inefficient flow 14 level since 80 percent of this maximum cumulative spawnable area 15 can be utilized when the flow at Renton reaches 250 cfs. Moreover, 16 while the floodrelated survival rates may be higher at 480 cfs, 17 densityrelated survival rates would be lower as a result of 18 overcrowding. The greatest mortality is from superimposition of egg 19 deposition. In light of the FRI studies, the City of Seattle took the 20 position that the DOE operating curve was ". . . based upon 21 erroneous data, and was no longer valid. Following the DOE curve 22 would then result in a waste of water as well as overcrowding on 23 available spawning areas with its consequent lower survival rates. 24 Therefore, the FRI flow should be used as a base for developing 25 minimum flows." 566 26

27

Both National Marine Fisheries Service and U.S. Fish and Wildlife Service 28

supported WDF's position. The City of Seattle supported the work of their 29

consultant, the University of Washington Fisheries Research Institute, which 30

stated: 31

32

566 Appendices iii and iv of the SEIS studies by the University of Washington Fisheries Research Institute, and WDF.


While most of the year appears reasonable, the flow requirements 1 during the summer (i.e. July 15 to September 10) and early fall 2 during the spawning are too high and will result in lower sockeye 3 salmon production in the opinion of our fishery consultant (i.e. FRI). 4 have come upstream. Therefore, it is obvious that the DOE normal 5 flow curve increases much too fast ahead of the spawners in the 6 fall and not only wastes water but wastes valuable spawnable 7 area. 567 8

9

What is of particular interest in this regard is not only the scientific differences 10

between FRI and WDF, but that FRI proposes to establish flows based on their 11

interpretation of what an escapement goal should be. In fact, FRI, in support of 12

the City of Seattle's need for more water, attempts to establish an escapement 13

goal lower than that proposed by WDF. This is in part based on FRI 14

interpretations of its data (and refuted in Appendix iv of the SEIS) and its desire 15

to balance the needs of flow of fish against out of stream needs. Although FRI 16

acknowledges that 480 cfs maximizes sockeye spawning area, 80% of that area 17

could be attained with flows of 250 cfs. WDOE adopted rules in the 200370 cfs 18

range during times of sockeye spawning. 19

20

No data was provided to determine the basis for the establishment of 21

streamflows other than for sockeye. There was no discussion for streamflows for 22

chinook at all. WDG provided the following comments: 23

24

We do, however, have reservations about the proposed regulation 25 during the spring. Our recommendation called for the spring to 26 summer cutback in flow to start no earlier than July 1. Our concern 27 is that allowing the flow to decrease (from 370 to 130 cfs) starting 28 June 20, developing eggs and preemergent fry may not have 29 adequate opportunity to successfully emerge before flows drop too 30 low. We, therefore, reserve the right to seek and secure 31 modification of the proposed regime based on results of future 32

567 July 30,1979 letter from City of Seattle to WDOE.


evaluation of run timing, spawning locations and emergence 1 timing. 568 2

3

WDF's comments were as follows: 4

5

This Department presented a prepared statement at your public 6 hearing at Montlake Terrace on July 24, 1979 in support of the 7 Instream Resources Protection Program. The statement also 8 explained our department’s recognition of the severe competition 9 for water in the Cedar River, and because of this we have, at this 10 time, accepted the proposed instream flow regime for the Cedar 11 River as outlined in your draft document. It was also stated that we 12 would prefer the flow regime depicted on page 17 of the 13 Supplemental EIS labeled “WDF recommended instream flow.” We 14 are hopeful that the provision for automatic review of the regulations 15 at least once in every five year period will give us the opportunity to 16 monitor results of these flows, and request review by the 17 Department of Ecology if this appears needed other areas. 569 18

19

It is clear that WDF made a political decision to balance the need for additional 20

municipal use against the needs of fish. In addition, their support was predicated 21

on a review of the regulations at least once every five years. 22

23

To summarize, the Cedar River rule is plagued with the same problem of basin 24

closures in the absence of any real ability to limit domestic and stockwater use, 25

and groundwater use in general. The establishment of instream flows was based 26

on WDOE's interpretation of what constituted the best available information for 27

the protection of fish. In this instance, they chose to accept the recommendations 28

of FRI,consulting for the City of Seattle, despite significant protestations from its 29

sister agency, the Washington Department of Fisheries. Sockeye and steelhead 30

568 SEIS CedarSammamish Instream Resources Protection Program.

569 Id.


were the priority species used to determine instream flows for fish. Chinook did 1

not appear to factor into the flow setting discussions. 2

d. GreenDuwamish WRIA 9 3 4

The base flow methodology, in conjunction with recommendations from WDF and 5

WDG was used to establish instream flows in the GreenDuwamish system. The 6

95% exceedance level was chosen for high flow months, and 63% exceedance 7

was chosen during low flow periods. 8

9

However, when extreme drought conditions occur, the director of WDOE can 10

declare issues of overriding pubic interest, and the following provisions are 11

brought to bear: 12

13

At no time will diversions subject to regulation by the Auburn gage 14 be continued when flows fall below the normal year instream flows 15 at Auburn. When a declaration of overriding considerations of public 16 interest is made by the Director, these requirements may be 17 modified or waived. A declaration of overriding consideration 18 because of drought conditions shall not be made when natural 19 flows equal or exceed the oneinfifty year low flow condition. The 20 director shall consult with the directors of the state departments of 21 game and fisheries before making a declaration of overriding 22 consideration. Any declaration of critical conditions or overriding 23 considerations of public interest made by the director shall be 24 communicated to all basin resource agencies, water purveyors, and 25 local general purpose governments, and include the reason for such 26 declaration and its expected duration. 27

28 (b) The director will consider declaring a critical period when: 29

30 (1) In the spring the basin runoff volume forecast of May 1 is not 31

adequate to meet the sum of any rights which the city of 32 Tacoma may have established through historical usage prior to 33 the adoption of this regulation plus the normal year instream 34 flows plus the volume required to replenish the conservation 35 storage. 36


1 (2) In the summer and fall the sum of the reservoir inflows 2 extrapolated from current observations plus the volume of water in 3 storage at Howard A. Hanson Dam is not adequate to meet the sum 4 of any rights which the city of Tacoma may have established 5 through historical usage prior to the adoption of this regulation plus 6 the normal year instream flows. Within five days the director will 7 inform the major affected water right holders of the extent of the 8 allowed deviation from the normal year instream flows. Once a 9 deviation from normal year instream flows is allowed, the water 10 resources shall be evaluated at least every 7 days to see if 11 additional deviation is warranted. Before allowing deviation from the 12 normal year instream flows, water conservation practices and use of 13 other sources shall be considered. 14

15 (c) In addition to other necessary provisions, any diversion of the 16 natural flow, including diversion to storage under future water rights 17 shall cease (or be regulated to the extent necessary) when the flow 18 at the applicable control station falls below (or is less than) the 19 instream flows established by this regulation and made a condition 20 of said future water right. Said future water rights are subject to the 21 rights and authority of the Corps of Engineers to utilize for storage 22 and conservation flows, the natural inflow to the Howard A. Hanson 23 reservoir and to all other prior water right holders authorized use of 24 natural flows, including any rights that the City of Tacoma may have 25 established through historical usage. The use of stored waters is not 26 to be impaired, limited, or diminished by this regulation.570: 27

28

Therefore, although instream flows were established, they could be 29 overridden if the director of Ecology felt that it would provide benefit 30 to the public in drought years. 31

32 Instream flows on the Green River near Palmer were established at 33 150 cfs during the low flow summer months and 300 cfs from 34 November through July. At Auburn, flows were established as 300 35 cfs during the summer months, and 650 during winter months. WDG 36 and WDF supported these flows. The Muckleshoot Tribe, based on 37 a 1977 WDF study, requested that winter flows at Auburn be 38 established at 800 cfs to maximize spawning area. This 39

570 GreenDuwamish Instream Resources Protection Program, 1980.


recommendation was not incorporated in the rule, based on WDOE 1 reasoning that only small gains in spawning area would result from 2 large increases in flow. Ecology's response was: “Optimum 3 spawnable area is viewed by the Department as a level somewhat 4 less than the maximum amount that delivers nearly the maximum 5 spawnable area at a lesser flow.” 571 6

7

All tributaries to the Green River were closed to new appropriations, as well as a 8

few unnamed tributaries, and Deer Creek. No instream flows were established 9

by rule in the tributaries. 10

11

The groundwater considerations for the GreenDuwamish Program was as 12

follows: 13

14

Future groundwater withdrawal permits will not be affected by this 15 chapter unless such withdrawal would clearly have an adverse 16 impact upon the surface water system contrary to the intent and 17 objectives of this chapter. 572 18

19

Therefore, the absence of instream flows established by rule in tributary streams, 20

stream closures for surface diversions in tributaries, and the presumption that 21

groundwater withdrawals will not impact instream resources virtually guarantees 22

reductions in streamflows as a result of groundwater withdrawals. DOE further 23

found that reductions in flow in Soos Creek and Newaukum Creek may be in part 24

cause by groundwater pumping, as well as due to increases in impervious 25

surface area. 573 26

27

571 Id. at D19.

572 WAC 173509050.

573 Amendments to Initial Watershed Assessment Water Resources Inventor Area 9 GreenDuwamish Watershed ,1995.


The 1995 Watershed Assessment reached the following conclusion: 1

2

Since 1980, instream flows were not met an average of 103,100, 3 and 82 days, compared with Auburn normal year, Palmer normal 4 year, and Palmer critical year instream flows, respectively. Causes 5 for this include decreased precipitation, operation of the Hansen 6 Dam, increased pumping by the City of Tacoma, increased (non 7 Tacoma) ground and surface water pumping, decreased recharge, 8 and the nature of how flows were established in the first place. 574 9

10

Clearly, the instream flow program established in 1980 has not resulted in 11

adequate instream flows, and indications are that streamflows have in fact 12

declined since the rules were established. 13

e. PuyallupWRIA 10 14 15

As a result of this program, a number of streams were closed to new 16

appropriations, and minimum flows were established for the Puyallup and Carbon 17

Rivers. WDF made recommendations based on the toe width methodology for 18

the Carbon River and South Prairie Creek. WDG also proposed an instream flow 19

for the White River of 435 cfs. Puget Sound Power and Light (now Puget Sound 20

Energy) can divert as much as 2000cfs from the White River, which creates a 21

partially dewatered section for about 20 miles. A minimum flow of 30 cfs is 22

required, which has been deemed to be inadequate by WDF and WDG. Similarly, 23

400 cfs are diverted from the Puyallup River 11 miles upstream from Electron, 24

which causes substantial dewatering as well. The 1995 Initial Watershed 25

Assessment PuyallupWhite Watershed indicates that water rights and claims 26

equal 18% of the mean annual flow, and known water demands represent 44 27

percent of the minimum low flow. In the Lower Puyallup River instream flows are 28

not met approximately 10% of the time from October through November. On 29

574 GreenDuwamish Watershed Assessment, 1995, at 33.


average the minimum instream flows have not been met 35 days per year in the 1

lower Puyallup River, and 37 days per year at the Upper Puyallup gauge. For the 2

White River near Buckley, a 10 year moving average of the seven day low flows 3

suggest that flows have decreased over the past 10 years. Of particular concern 4

are the findings that: 5

6

This assessment found that streamflows have continued to decline 7 after the streams in the watershed were closed to further water 8 rights. Land use changes associated with population growth and 9 ground water pumping may be adversely affecting senior water 10 rights. 575 11

12

The critical nature of this statement is that even if the establishment of instream 13

flows are adequate, at least in the PuyallupWhite Watershed, new uses in 14

closed watersheds are adversely impacting instream flows and senior water 15

rights. The mere establishment of instream flows does not guarantee that 16

instream resources will be protected. 17

18

This watershed assessment also discusses the conclusions of a 1974 U. S. Fish 19

and Wildlife Report: 20

21

A water flow study conducted on the White River by the U. S. Fish 22 and Wildlife Service in 1974 concluded that the most critical 23 problem confronting anadromous fish in the White River is the lack 24 of adequate water for passage of adult fish to their spawning 25 ground, both above and below Mud Mountain Dam and PSPL's 26 diversion dam at Buckley. The report advised that the minimum 27 streamflow standards must be achieved to accommodate the 28 freshwater activities and life phases of anadromous fish, including 29 minimum flows of 500 cfs for adult chinook migration, 250 cfs for 30 adult coho migration, and maintaining a minimum flow of 180190 31

575 Draft PuyallupWhite Watershed Initial Assessment (WDOE WR95156), May, 1995 at 8.


cfs at all times below the Buckley diversion dam to protect salmonid 1 spawning and rearing habitats. 576 2

3

In general, agencies and Tribes supported the closures proposed by WDOE. Of 4

major concern was the dewatering of the White River. WDOE did not establish 5

instream flows for the White River, however. They felt that these flows would be 6

met due to the instream flows established on the Puyallup River. Instream flows 7

were not established on South Prairie Creek as well. For the streams where 8

instream flows were established, there is no discussion as to how these flows 9

were determined. It appears that the base flow methodology was used, and that 10

the 50% exceedance level was chosen, but it is unclear from the Program 11

document. 12

13

Comments by WDG regarding recommended stream closures stated: 14

15

The Department of Game endorses the proposed closures and 16 minimum flows, but additional protection is needed. We request the 17 following additional closures to further consumptive appropriations: 18

19 • Kellogg Creek 20 • Ledoux Creek 21 • Neisson Creek 22 • Puyallup River in the Vicinity of Electron 23 • Wilkeson Creek 24

25 Kellogg, Ledoux, and Neisson Creeks are tributaries of the Puyallup 26 River in the vicinity of Electron. These streams are important 27 spawning streams for steelhead. In these streams and in the 28 adjacent segment of the Puyallup River, flow is critical and currently 29 limits steelhead production. Total reproductive failure of steelhead in 30 these streams in 1978 was caused by inadequate flow. Therefore, 31 the Department of Game considers that closure of these waters is 32 essential. 577 33

576 Puyallup Instream Resources Protection Program Series No. 6, 1980 at 35. 577 GreenDuwamish Instream Resource Protection Program, Series No. 6, 1980.


1

WDOE's response to this comment was: 2

3

Kellogg, LeDout, Neisson Creek have been proposed for closure in 4 the final program document. Wilkeson Creek is a tributary of South 5 Prairie Creek and is already proposed for closure. Neisson and 6 Kellogg creek are claimed by Puget Power although no consumptive 7 use of these waters appears to have been made in the last 15 8 years. 9

10 We find it of considerable interest that streams can be "claimed" by 11 a utility, that no consumptive use of these waters were made for 15 12 years, and that Ecology makes no statement regarding potential 13 actions that could be taken to provide flow to these creeks, 14 particularly in light of the previous comments made by WDG. 578 15

16

Selected comments made by the Muckleshoot Tribe were as follows: 17

18

The Tribe strongly supports the statement that present artificial 19 flows between Buckley and Dieringer are totally inadequate to 20 support passage spawning and rearing of salmonids, and that the 21 desirable minimum flows are those occurring naturally in the river. 22

23 The minimum flow requirements necessary insure adequate 24 flushing of the estuarine habitat in Commencement Bay should be 25 considered. 579 26

27

While WDOE acknowledged these comments, no provisions within the Program 28

were established to address these concerns. 29

f. NisquallyWRIA 11 30 31

578 Id.

579 Id.


WDOE defined, for the purposes of this Program, base flows as follows: 1

2

The terms "base flows" and "minimum flows" are, for the purpose of 3 this program, synonymous. These are interpreted as levels of flow 4 that can be expected to be exceeded a relatively high percentage 5 of the time. Base or minimum flows as authorized by state law are 6 referred to by the department as "instream flows." 580 7

8

From the outset, it is clear that stream flows will be established based on the 9

availability of water, rather than the specific needs of fish. 10

11

WDG expressed these concerns, supported by WDF and Indian Tribes, in its 12

comment letter: 13

14

We believe that draft flows for the bypass reach are inadequate for 15 steelhead emergence between June 15 and July 15. After several 16 years of studying the bypass reach, experienced fish biologists 17 have determined that the minimum flow in the bypass reach should 18 be 500 cfs through the end of July. Emergence is a critical phase in 19 the life history of steelhead. The channel configuration in the 20 bypass makes emergence flow a critical flow. 581 21

22

In this instance, WDOE adopted flows of 400450 cfs, despite studies and 23

recommendations to the contrary. 24

25

With regard to tributaries, WDG stated in its comment letter: 26

27

As stated in my report on instream resources of the Nisqually River 28 basin, flaws are currently major limiting factors for salmonid 29 production in Powell Creek, Murray Creek, Toboton Creek, and 30 Lackamas Creek. The Department of Game recommends closure of 31 these streams to further consumptive appropriation of water. 32

580 Nisqually Instream Resources Protection Program, 1981.

581 Id.


Specific instream flow recommendations for these streams are as 1 follow as: 2

3 • Spawning Rearing (1 Dec 30 Jun) (15 Jul 15 Nov) 4 • Powell Creek 40 cfs 10 cfs 5 • Murray Creek 12 cfs 2 cfs 6 • Toboton Creek 37 cfs 8 cfs 7 • Lackamas Creek 28 cfs 6 cfs 8 • unnamed stream 3 cfs 0.5 cfs 9

10 11

Existing surface water limitations for Toboton Creek and the 12 unnamed ditch tributary to Murray Creek are inadequately defined 13 as "½ low flow bypass." This limitation is vague and unenforceable. 14 Minimum flows for these streams are recommended above.The 15 need for closure of Murray Creek and its unnamed tributary ditch 16 was obvious when I visited Murray Creek on October 28. Murray 17 Creek between Roy and McKenna is indicated on the U. S. G. S. 18 topographic map as being a permanent rather than an intermittent 19 stream, yet its channel was dry. There can be no clearer case of 20 flow being a limiting factor for fish production. I sampled Toboton 21 Creek on October 28 and found that juvenile coho salmon about 8 22 cm long were very abundant in this stream. I observed but was 23 unable to capture a larger (20+ cm) cutthroat trout. I was unable to 24 sample a section of the stream that appeared to be good steelhead 25 habitat. Passage of adult salmonids would clearly be restricted by 26 low flows; the observed flow of 3 5 cfs would probably block or 27 restrict passage. The observed flow appeared to be less than the 28 recommended flow, which implies that rearing flow is now a limiting 29 factor for salmonid production. Lackamas Creek, adjacent to 30 Toboton Creek, has excellent gravel but its flow was less than 1 cfs. 31 It had very few fish, but in a wet year it could be very productive. 32 Closure would allow this stream to produce quite a few fish in wet 33 years. Without closure there will be no good years in Lackamas 34 Creek. Powell Creek has a number of beaver ponds and several 35 channels in its lower reach. It can remain a very productive stream 36 with excellent habitat for both fish and wildlife provided that 37 adequate flows are retained. I believe that these suggested changes 38 would be consistent with the purpose of the program. 39

40 Two existing water rights, those of Tacoma City Light and Centralia 41 City Light, are affected by an agreement reached with the 42


departments of Game and Fisheries, and the Nisqually and Puyallup 1 tribes under the auspices of FERC. Protection of these two existing 2 water rights is therefore in the best interest of all parties in the 3 FERC agreement. The Nisqually River is already overallocated, as 4 demonstrated by the need for Centralia to voluntarily give up part of 5 its water right in order to make the FERC agreement work. The 6 Nisqually River Basin Instream Resources Protection Program 7 should not affect existing water rights, but if it does not mesh with 8 the FERC agreement it will adversely affect existing rights. The 9 Department of Game urges the Department of Ecology to set 10 instream flows no lower than FERC flows and to close all waters 11 upstream from Centralia's powerhouse. This recommendation 12 includes establishment of 500 cfs as the instream flow throughout 13 June and July. Protection of Centralia's water right plus the instream 14 flow in the bypass reach logically requires an instream flow in the 15 mid reach which is no less than the sum of the bypass instream flow 16 and Centralia's diversion; the needed water will not magically 17 materialize at the Centralia diversion dam. It would be ironic, not to 18 mention contrary to the purposes of the Department of Ecology, if 19 cooperation between fish interests and power interests were to fail 20 because of legal diversions which might take water released by 21 Tacoma for Centralia and bypass flows. Protection of the FERC 22 agreement and affected water rights should allow adequate water in 23 the upper reach to meet Tacoma's operating needs and instream 24 obligations under the FERC agreement. 25

26 Stream Closures 27

28 We request closure of Powell Creek, Murray Creek, Toboton Creek, 29 Lackamas Creek, and an unnamed ditch tributary to Murray Creek, 30 with instream flows as recommended in my letter of 29 October 31 1980 to Mr. Kavanaugh. Specific information on these streams was 32 presented in that letter, which is appended to this letter. We support 33 proposed closures. 582 34

35

WDOE provided no response to these comments, and the rule as adopted does 36

not reflect any of these changes. 37

38

582 Id..


WDF expressed concerns not only about the bypass reach, but about the upper 1

reach as well: 2

3

The Department of Fisheries has reviewed the draft Nisqually River 4 Basin Instream Resources Protection Program document and 5 regulations. Generally, the Department of Ecology has done a 6 satisfactory job of developing a plan for preserving the instream 7 resources of the Nisqually River Basin, including the salmon 8 resource. However, the proposed regulations fail to adequately 9 protect several important salmon production areas from further 10 consumptive water use. We urge the Department of Ecology to 11 revise the regulations to reflect improved levels of protection for the 12 following areas. Nisqually River Mid Reach Instream Flows. 13

14 In November 1980, the FERC Nisqually River Coordinating 15 Committee (Tacoma City Light, Centralia City Light, Departments of 16 Fisheries and Game, and the Nisqually and Puyallup Indian Tribes), 17 reached agreement on a new two year interim flow regime for the 18 bypass reach of the Nisqually River. The proposed Nisqually River 19 IRPP regulations for the bypass reach accurately reflect the flow 20 needs of salmon provided for by the agreement. However, the 21 proposed instream flows for the mid reach upstream of Centralia's 22 diversion dam could jeopardize the FERC flow agreement or 23 Centralia's water right. The mid reach flows, although adequate to 24 protect salmon produced in this reach, permit a level of 25 consumptive water use which could result in insufficient flow 26 reaching the Centralia diversion dam. In order to assure that both 27 the bypass reach instream flow (600 cfs from November 1 to May 28 31) and Centralia's water right (720 cfs or natural inflow to the 29 diversion dam, whichever is less) are provided, consumptive use in 30 the mid reach should be prohibited from November 1 to May 31, 31 except when the flow reaching the diversion dam exceeds 1,320 32 cfs. Non consumptive uses (e. g. flow diversions within the mid 33 reach) would not be conditioned to the 1, 320 cfs flow, but to the 34 instream flows currently proposed for the mid reach by the 35 Department of Ecology. 36

37 Stream Closures 38

39 The Department of Fisheries is concerned that the proposed 40 instream flows for the upper reach of the Nisqually River upstream 41


from Alder Reservoir could potentially cause Tacoma City Light 1 problems in meeting the FERC flow requirements for the bypassed 2 reach and Centralia's water right. The current flow agreement is 3 predicated on Tacoma receiving existing levels of inflow to Alder 4 Reservoir. Any water rights issued for significant, consumptive use 5 in the upper reach will result in reduced inflow to Alder Reservoir 6 and make it difficult or impossible for Tacoma to meet FERC 7 ordered flows downstream. We recommend that the upper reach be 8 closed to further consumptive use to prevent this from occurring. 9 Superimposition of chum salmon redds is known to occur because 10 spawning habitat is limited by low flow. Additional consumptive 11 water withdrawals will further reduce the area available for 12 spawning. Clear Creek was the scene of a recent spawning gravel 13 rehabilitation project for chum and coho. Increased salmon 14 production is anticipated with existing flows, but additional 15 consumptive water use could offset the benefits of gravel 16 rehabilitation by reducing spawning and rearing habitat. The 17 proposed April 1 October 31 closure period ignores the fact that 18 chum salmon and coho migrate and spawn in these creeks from 19 November through January. We believe that these small creeks 20 need to be fully protected during the spawning season. Also, coho 21 salmon rear in these creeks on a year round basis. Department 22 biologists have determined that low rearing flow in small creeks 23 such as these is the limiting factor affecting coho production. We 24 urge the Department of Ecology to change the period of closure for 25 these two creeks to "all year." 26

27 We recommend that several additional tributaries be added to the 28 list of new surface water closures. These include Murray, 29 Lackamas, Toboton and Powell Creek, the outlet of Harts Lake, and 30 unnamed tributary to the Nisqually River #0057 (see WDF stream 31 catalog). Murray Creek receives annual plants of coho fingerlings 32 and also supports wild coho production in the lower reaches. 33 Lackamas, Toboton and Powell Creek, Harts Lake Outlet and 34 stream #0057 all produce wild coho salmon with actual usage 35 dependent on stream flow. Low flows during the upstream migration 36 and spawning season can block access to adults in certain years 37 and low flows during the rest of the year may limit rearing potential. 38 Juvenile salmonid studies performed by the Fisheries Research 39 Institute (FRI) indicate that coho fingerlings produced in the 40 mainstem Nisqually River disappear from the mainstem in late 41 September only to reappear as smolts the following spring (Tyler 42 1980). Tyler theorized that coho fingerlings migrate into small 43


tributary streams to winter over and complete development to the 1 smolt phase. If his theory is correct, then all Nisqually system coho, 2 both mainstem and tributary spawned, are highly dependent on 3 quality rearing habitat found in small tributaries like Murray, 4 Lackamas, Toboton and Powell Creek and the others. Several 5 studies conducted in the Northwest tend to support Tyler's theory 6 concerning the importance of small tributaries to wintering coho 7 juveniles. Skeesick (1970) found that Juvenile coho rearing in the 8 mainstem Wilson River in Oregon migrated into a small springfed 9 tributary in October, November and December to overwinter. The 10 immigrants survived well and exhibited excellent growth resulting in 11 large smolts the following spring. Skeesick concluded that Juvenile 12 coho migrate into small tributary streams to escape the high flow, 13 turbid water environment prevalent in the mainstem in winter. He 14 also concluded that even if a tributary is too small to support adult 15 spawning, we may need to protect it because of the fall and winter 16 rearing habitat that it offers for juveniles. Bustard and Narver (1975) 17 found that coho in a Vancouver Island stream searched for winter 18 rearing habitat when water temperatures declined to 4 o C or less. 19 The young coho selected areas with velocities 0.5 fps or less and 20 shelter consisting of tree roots, logs and other debris; habitat 21 provided by side pools and small tributaries. Very few coho utilized 22 rubble or boulder cover, the predominant cover type on the 23 mainstem. The authors concluded that flooded side pools and small 24 tributaries are probably the areas of highest coho overwinter 25 survival. Petersen (1979) found that sudden discharge increases of 26 the Clearwater River from winter storms stimulated movement of 27 juvenile coho into tributary spring ponds. Virtually all immigrants 28 moved downstream to the tributary ponds from upstream summer 29 rearing areas in the mainstem. These studies all indicate the 30 importance of small tributaries to juvenile coho and provide 31 justification for closing these streams to further consumptive use. 32 We believe that establishing minimum flows (e. g. 0. 5 cfs) on 33 numerous small creeks presents a significant enforcement problem 34 since there are no specific control points or flow gauges. 35 Questionable enforcement effectiveness would place these small 36 streams and the coho populations that depend on them in 37 jeopardy. 583 38

39

583 Id..


The Nisqually Indian Tribe made these same concerns as well. Despite the 1

concerns of WDF, WDG, and the Nisqually Tribe regarding the need to meet 2

flows at a result of FERC licensing issues, the need to close certain basins, and 3

concerns about enforcement, it does not appear that changes were made to the 4

proposed rules in this plan. 5

g. ChambersCloverWRIA 12 6 7

As a result of water pollution concerns and to meet instream flow needs, WDOE 8

closed a number of streams and lakes within WRIA 12 to new surface 9

appropriations. Groundwater regulations are as follows: 10

11

In future permitting actions relating to groundwater withdrawals, the 12 natural interrelationship of surface and ground waters shall be fully 13 considered in water allocation decisions to assure compliance with 14 the intent of this chapter. 584 15

16 No instream flows were established in WRIA 12. 585 17

h. DeschutesWRIA 13 18 19

Instream flows were established on the Deschutes River as a result of WDOE 20

utilizing the base flow methodology as described in the 1979 FEIS, while WDF 21

and WDG used the toe width method. Ultimately, the result of this program was 22

to close the Deschutes River to further appropriation form April 15 until October 23

31. No instream flows were established during this time period, despite WDF and 24

WDG requesting instream flows be set at 218300 cfs, depending on location 25

within the river system.. Justification for leaving the basin available to new 26

appropriations during the rest of the year was to provide the option for storage of 27

584 WAC 173512040.

585 ChambersClover Instream Resources Protection Program, 1979.


water captured during high flow months. There was concurrence of the part of 1

WDF, WDG and the Tribes that tributary closures were appropriate. 2

3

One final implementation issue that arose during this rule making process. 4

Rather than de facto restrictions on ground water withdrawals, WAC 173513 5

050 states: 6

7

Future groundwater withdrawal proposals will not be affected by 8 this chapter unless it is verified that such withdrawal would clearly 9 have an adverse impact upon the surface water system contrary to 10 the intent and objectives of this chapter. 11

12

This appears to indicate that groundwater withdrawals will have the presumption 13

of no hydraulic continuity. While this is an implementation issue, it does appear to 14

have the potential of undermining the protection presumably provided by the 15

establishment of instream flows. 16

i. KennedyGoldsboroughWRIA 14 17 18

Instream flows were established within this Basin Program based on the results 19

of the base flow method and the Toewidth analysis conducted by WDG, WDF, 20

and the Squaxin island Tribe. For Goldsborough Creek, an IFIM analysis was 21

conducted, with steelhead spawning requirements receiving the strongest 22

consideration for winter and springtime flows. Summer flows were determined 23

considering the needs of or rearing juvenile steelhead and coho, and fall flows 24

were intended to meet chum and coho salmon needs. The Program states: 25

26


Chinook salmon are apparently so few in Goldsborough Creek that 1 it was assumed that protecting chum and coho habitat will provide 2 these few chinook adequate habitat. 586 3

4

In addition to the establishment of instream flows, a number of basin closures 5

were adopted by rule as well. Hydroelectric projects were not subjected to 6

stream closures or instream flows, but would be evaluated on a case by case 7

basis to determine impacts to the bypasses reach. 8

9

It is interesting to note that a number of small streams were closed to any new 10

appropriations based on the following WDOE rationale: 11

12

Because of the small size of these streams, any significant future 13 consumptive diversions, particularly during the annual low flow 14 period, would be harmful to instream values. WDOE, therefore, 15 proposes to close these streams to further appropriations of water 16 for consumptive purposes from May 1 through October 31 to protect 17 instream values during the low flow period. It is the intent of WDOE, 18 that during the closure period, the minimum instream flow is the 19 natural flow. 587 20

21

To our knowledge, this is the first time that WDOE has determined that the 22

minimum flow should be equal to the natural flow. This "standard" or 23

acknowledgement has not occurred in any other basins. 24

25 Table 3 shows differences between flow recommendations made by WDF,WDG, 26

and the flows adopted by WDOE. 27

28

586 KennedyGoldsborough Instream Resources Protection Program Series No. 7,1983 at 21.

587 KennedyGoldsborough Instream Resources Protection Program Series No. 7, 1983.


Clearly there is a disparity between the flows recommended by WDF and WDG, 1

and those adopted by rule. Comments from WDF 588states “that although many 2

of the recommended flows are less than optimum in our view, we will 3

nevertheless accept the proposals and support adoption.” 4

5

WDG support the flows proposed by WDOE as well. The Squaxin Island Tribe 6

opposed the adoption of these flows as being less than optimum, and would 7

compromise the Tribes treaty rights. Both WDF and the Squaxin Island Tribe 8

expressed concerns that exemptions for single family use and stockwatering 9

would compromise fisheries needs through the cumulative effect of unpermitted 10

withdrawals. 11

12

It is clear that in this basin program, where instream flows were established, they 13

were a compromise between optimum flows, and flows preferred by WDOE. 14

j. KitsapWRIA 15 15 16

Because of the large number of small streams in this WRIA, only a few of the 17

major streams have continuous hydrological records. Therefore, the streams 18

proposed for actions are those that were documented as significant by WDF and 19

WDG and Indian Tribes, or those that WDOE has determined that no water is 20

available for additional consumptive appropriation. Actions taken were (1) 21

administratively closing by rule streams that were recommended in the past for 22

closure by WDF and WDG, (2) Instream flows established where there is a 23

continuous record or where flow correlation with other streams can be made, and 24

where estimated average flow is greater than 5 cfs (3), for streams with average 25

flows less than 5cfs that have a high known value for fish production, WDOE 26

588 KennedyGoldsborough Instream Resources Protection Program,Series No. 7, 1983 WDF comment letter October 13, 1983.


determined that minimum flow will be the natural flow (4) no action proposed for 1

all other streams. Exemptions for single family domestic use for less than 5000 2

gallons per day were continued. 3

4

To summarize this program, approximately 70 streams were fully or partially 5

closed to new appropriations, and instream flows were established on 21 6

streams. 512 remaining streams were not addressed, but would be evaluated by 7

WDOE on a case by case basis. All agencies and Tribes supported the instream 8

flow setting and basin closures, with the exception of a few requests for closures 9

on some additional streams. There is no information provided detailing how 10

instream flows were established, although it appears from one of WDOE's 11

responses, that the Base Flow methodology was used. 12

k. Chehalis RiverWRIA 22 and 23 13 14

The base flow methodology for flow setting was used. Base flows were 15

established for twentynine control stations along the Chehalis River and its 16

tributaries. However, with regard to implementation of the instream flow rule, or 17

stream closures, WDOE states: 18

19

Priority I 20 21

This management policy will not affect the existing water rights. 22 Existing water rights have highest priority in use. Priority has been 23 established by the date of filing of the original application with the 24 department. 25

26 Priority II 27

28 The second priority use category is the flow necessary to maintain 29 base flows for preservation of wildlife, fish, scenic, aesthetic, and 30 other environmental values. Consistent with the fundamental policy 31 of this state, water rights issued after the effective date of this policy 32 shall not impair maintenance of base flows in the stream. 33


1 Priority III 2

3 Nonconsumptive use and domestic use, including irrigation of lawn 4 andnoncommercial garden not to exceed onehalf acre, and 5 livestock use, excluding feedlot operation, are placed in the third 6 priority. Therefore, water rights for domestic and stock watering 7 use, issued after adoption of this policy, will be subject to base 8 flows and prior rights. 9

10 Irrigation of lawn and garden under this water right may not be 11 allowed when the natural flow falls below the level necessary to 12 maintain base flow requirements. 13

14 Where there is no practical alternative source of water supply, base 15 flows and stream closures may not apply to diversions for 16 household use and stock watering excluding feedlot operation. 17

18 Priority IV 19

20 The remaining surface waters will be appropriated to other 21 consumptive uses. All beneficial uses which are not specified in the 22 preceding priorities are grouped and given fourth priority. When 23 local land use policies are established and need arises, further 24 priorities or withdrawals may be made as appropriate. In stream 25 reaches where investigation shows no remaining surface waters for 26 appropriation, streams will be closed to future consumptive 27 appropriation. When unappropriated public waters remain, 28 consumptive and nonconsumptive water rights will be issued. 29

30 The result of this rule language will be some restrictions on the use 31 of water for domestic or stockwater purposes, but in the event that 32 no alternatives available, additional out of stream uses will be 33 prioritized over fisheries needs. 589 34

35 It is unclear from the document how base flows were determined. In every 36

instance, base flow is less than mean monthly flow, which means that there is 37

always water available for addition consumption. There was no indication that a 38

rating system was used in the analysis. Water was available for appropriation 39

589 Chehalis River Instream Resources Protection Program, Series No. 2 1975.


based on the mean monthly flow minus base flow minus estimate of current 1

consumption. 2

3

There is no indication that there was an involvement with WDG or WDF, or 4

Tribes, in the establishment of base flows for the Chehalis Basin. No justification 5

for stream closures, or for the period during the year when stream closures would 6

be in effect. There is no indication that any fisheries analysis or considerations 7

were part of the deliberations in establishing the base flows in these WRIAs. 8

l. Walla WallaWRIA 32 9 10

The Water Resources Program for the Walla Walla River is truly remarkable. 11

There was absolutely no concern on the part of WDOE to establish flows for the 12

protection of fish. Despite assertions that there are inadequate flows for fish, no 13

base flows would be established until additional storage is available. The 14

following statements can be found in the IRPP document: 15

16 The existing anadromous fisheries of the basin is of little 17 significance. Steelhead spawning runs still exist during periods of 18 high stream flow; however, coho and chinook salmon runs are 19 almost nonexistent due to extreme low flows and poor water quality 20 during their spawning season. 590 21

22 Most sport fisheries result from rainbow trout plants in the upper 23 reaches of basin streams and from resident Dolly Vardon, bass, 24 and catfish. Establishment of adequate perennial stream flows is 25 essential to reestablish the fisheries resource. 591 26

27 The Water Resources Act of 1971 specifies that base flows be 28 established for all perennial streams. These are flow levels 29 necessary to provide for preservation of wildlife, fish, scenic, 30

590 Walla Walla Instream Resources Protection Program Series No. 6, 1977 at 2.

591 Walla Walla Instream Resources Protection Program Series No. 6, 1977 at 3.


aesthetic, and other environmental values. However, these flow 1 levels will not be imposed unless onstream storage is provided to 2 augment present flow levels. In the event of storage, all future 3 water right allocations would be subject to the base flows. 592 4

5 The level of present appropriations precludes the establishment of 6 base flows under existing conditions. 593 7

8

Based on complete disregard for either the needs of fish, or requirements of the 9

Water Resources Act of 1971, the following rule was promulgated: 10

11

The establishment of base flows for surface streams will be 12 deferred until such time as storage project or projects become a 13 reality. At present, all surface streams are totally appropriated 14 during the irrigation season and water is not available for protection 15 of instream values. With the advent of future storage projects, the 16 department may establish base flows which can be included as 17 project benefits and maintained by storage releases. 594 18

19

However, despite the determination that water is not available for the protection 20

of instream values, WDOE found: 21

22

There is sufficient water supply on an annual basis to satisfy most 23 existing and future needs, provided seasonal distribution problems 24 are resolved, and provided that conjunctive use patterns for surface 25 and ground water sources are instituted. 595 26

27

In an effort to allow for additional consumptive use, provisions were made for 28

additional groundwater withdrawals, with the recognition that hydraulic continuity 29

592 Id. at 7.

593 Id. at 12.

594 WAC 17353203.

595 Id. at 2.


might exist, and that determinations would be made on a casebycase basis. 1

Under WAC 173532050: 2

3

New appropriators of ground water will be required to locate wells 4 outside of the zone of direct hydraulic continuity between the 5 surface water stream and the ground water aquifer. The actual 6 limits of the zone of direct hydraulic continuity at a specific location 7 will be determined by the department after an individual ground 8 water application is received. The department will use accepted 9 engineering methods for its determination. 596 10

11

This analysis ultimately resulted in a rule that provides for additional groundwater 12

withdrawals to meet the future growth needs of Walla Walla from deep and 13

shallow aquifers. No analysis with regard to how this would affect fisheries 14

resources was provided. Under WAC 173532060: 15

16

A portion of the ground water resource in the Walla WallaCollege 17 Place vicinity is designated for the anticipated growth of the 18 community. Within the following area, ground water in the basalt 19 aquifer is limited to appropriation for municipal water supply 20 systems only, and ground water in the shallow gravel aquifer is 21 limited to uses other than municipal water supply systems:… 22

23 The provisional designation of water in the basalt aquifer for 24 municipal water supply systems shall be effective for a period of 25 five years beginning on February 1, 1978. After the effective five 26 year period all designated waters not appropriated or reserved 27 under WAC 173590 Reservation of Water for Future Public Water 28 Supply, shall be open for appropriations by other users as 29 determined by the department. The designation of water in the 30 gravel aquifer for users other than municipal water supply systems 31 shall remain indefinitely until changed by the department. 597 32

33

596 WAC 173532050.

597 WAC 173532060.


Finally, no analysis regarding the justification of closures of streams were made, 1

and no instream flows were established. Domestic uses were allowed to 2

continue. Clearly, the Walla Walla program provided no additional protection of 3

flows for fisheries resources, except for the closure of a few streams to new 4

surface diversions. 5

6

This lack of protection is confirmed by the 1995 Draft Basin Assessment, which 7

concludes that: 8

9

A high degree of hydraulic continuity exists between the gravel 10 aquifer and local rivers and streams 598 11

12 High summer temperatures and high sediment delivery to streams 13 in the lower reaches of the basin are the largest water quality 14 concerns identified in the WRIA. High temperatures are the result of 15 natural low flow conditions, water withdrawals, and removal of 16 riparian vegetation. Summer high temperatures that can be lethal to 17 fish have been recorded. 599 18

19

Irrigation depleted streamflow is the major factor limiting production 20 of anadromous fish within the WRIA. Intensive agriculture uses 21 most of the available surface water, and low to noflow conditions 22 have been documented throughout the WRIA. 600 23

24 Low flow or noflow conditions have been reported on the Walla 25 Walla River, Mill Creek, Dry Creek, Blue Creek, and Touchet 26 River. 601 27

28 29

598 Draft Initial Watershed Assessment Water Resources Inventory Area 32 Walla Walla Watershed, Open File Technical Report 9511, 1995 at 3.

599 Id. at 4.

600 Id.4

601 Id. at 4


Figure 31 of this document show that more than 50,000 acre feet/year have 1

been allocated since WAC 173532. In addition, circumstances in the Walla 2

Walla Basin may get worse before they get better, based on the Basin 3

Assessment: 4

5

Recent estimates of ground water withdrawal in the WRIA range 6 from approximately 37,5000 to 68,300 af/yr. In comparison, ground 7 water rights within the WRIA amount to approximately 260,200 8 af/year. Thus, estimated withdrawals comprise between 14% and 9 26% of allocations. Recent estimates of surface water diversions in 10 the WRIA are on the order of 46, 200 af/year, yet total surface 11 water rights amount to 253,000. The ration of surface water rights 12 to diversions (18%) is within the range of ratios estimated for 13 ground water. 14

15

DOE further found: 16

17

The ration of actual use estimates to allocated water rights is 18 important because current withdrawals and diversions could 19 conceivably increase to allocated amounts within existing legal 20 constraints. To address this potential, water resource planning must 21 allow for potential increases in water use unrelated to allocation of 22 new water rights. 602 23

24

Clearly, the Walla Walla River is a river in trouble, and the current instream flow 25

program, or lack thereof, does not provide adequate protection. 26

m. WenatcheeWRIA 45 27 28

The Instream Flow setting process for the Wenatchee River deviates 29

considerably from the 1979 FEIS, and from recommendations based on fisheries 30

resource agencies. The program consisted of instream flow setting for three sites 31

602 Id. at 17.


on the Wenatchee River, Mission Creek, Icicle Creek, and Peshastin Creek. In 1

addition, Peshastin Creek was closed to new diversions from June 15October 2

15. Future requests for domestic uses, including municipal supply, may be 3

exempted from the instream flow provisions if determined it would be in the 4

overriding public interest. As per other basin plans, single domestic and 5

stockwatering use were exempted from the provisions of the plan. This rule did 6

not affect development of future water withdrawals, unless such withdrawals 7

would clearly impact the established minimum instream flows or the closure 8

period. 9

10

No information is provided either in the Wenatchee River Basin Instream 11

Resources Protection Program Document, or the Supplemental EIS that allows 12

the reader to determine the basis upon which WDOE established instream flows. 13

It does not appear that the base flow methodology was utilized in the Wenatchee 14

River, in that all established flows are considerably less than the 50% 15

exceedance values. IFIM studies in the Dryden reach of the Wenatchee River 16

appear to be the basis for fisheries agency recommendations. It is striking to 17

examine the differences between the instream flows proposed by the 18

Washington Dept. of Fish and Wildlife, and WDOE. A summarization of Figure 1 19

from the Program Document (WDF and WDG recommendations) and Figure 2 20

(WDOE proposed flows) is provided in Table 4. 21

22

It is clear from the figure that there were significant disagreements between the 23

fisheries agencies and WDOE. It also is clear that during the summer months, 24

particularly when irrigation demand was greatest, that the established flows were 25

significantly lower than the 50% exceedance values. 26

27


Since no data is provided in any of the available reports, the best one can do to 1

assess the adequacy of the flow setting is to examine the record of comments by 2

the fisheries agencies, and the responses by the WDOE. 3

4 5


The following are pertinent statements made by WDF in its November 9,1982 letter to WDOE,603 WDG letter of 1

November 9,1982,604 and WDOE's response: 2

3

4

WDF comment WDOE response The proposed instream flows for the three mainstem Wenatchee River control reaches and Icicle Creek deviate substantially from WDG and WDF instream flow recommendations and even from the flows derived from DOE’s own “base flow” methodology.

As a result of your comments, and those of other interested parties, the proposed instream flows for the three mainstem stations have been amended during the critical late summer and early fall period. See the summary of changes, page E1 of this report. The proposed instream flows at Monitor for this period are now 620 cfs. This is lower than the WDF recommended instream flow (of 1,100 cfs) for this period, however, according to the Unit Spawnable Area curves provided to WDOE by WDF, a flow of 620 cfs would provide 88 percent of the maximum unit spawnable area provided by 1,100 cfs. Proposed instream flows for the Wenatchee River at Peshastin and Plan have also been amended to be hydrologically consistent with the Monitor instream flows.We have significantly increased the proposed flows at the three mainstem sites and on Icicle Creek in response to your comments as well as those of others. Although these flows are not as high as the optimum fish flows WDF recently recommended, they provide 88 percent of the maximum unit spawnable area for the mainstem Wenatchee River and 70

603 WDF comments to WDOE in Wenatchee River Instream Resources Protection Program Series No. 26, 1982.

604 Id.


percent for Icicle Creek. They are in excess of the preferred rearing flows according to information provided by your department.

WDF firmly believes that using the Wenatchee River at Peshastin gage to detect problem flows in lower Icicle Creek is unacceptable since the vastly higher flows of the Wenatchee River could easily mask a flow shortage in lower Icicle Creek. The objective of the program should be to assure adequate flows in the lower reaches of the creek, as well as above the control point. Therefore, WDF strongly recommends that Icicle Creek be closed to further consumptive appropriation (other than single domestic and stock watering) from Aug. 1 to October 15.

We acknowledge that water availability in Icicle Creek for future consumptive appropriation is marginal. However, we prefer to administer Icicle Creek using minimum flows rather than by closing it. In the future, when our regional office must consider an application for consumptive use from the creek, they will make a detailed evaluation of whether water is available based on the creek's hydrology, existing water rights, and the minimum instream flow.

Here you state that DOE developed the proposed instream flows after extensive review and analysis, yet you neglect to explain how the flows were determined. When the last consultation18 meeting was held with WDF and WDG, DOE’s position was that the hydrologic base flows were appropriate instream flows. The flows in the draft document are considerably less than the base flows for the most part. No explanation is given for the changes. Figure 1, page B18 is interesting in that the proposed minimum flows are considerably less than the base flows 19 until October 15, which coincides with the end of the irrigation season. It appears that the proposed flows are purposely lower than base flows during the irrigation season so that Wenatchee

The flows we have proposed are based upon the Dryden IFIM study flows plus a factor of safety for varied conditions upstream and downstream. Also considered was 1) stream hydrology, 2) existing withdrawals, and 3) WDF usable width method data. We strongly disagree. The reliability of water supply of future rights was not a consideration. Proposed instream flows were derived as stated in response f118.


Reclamation District will have a high degree of reliability in diverting the additional 50 cfs they have applied for. Reducing instream flows to assure reliable water supplies to new diversions subject to IRPP regulation is unacceptable to WDF.

WDG Comments Minimum flows of 30% mean annual flow must be maintained in all tributary streams. Small streams without gages or control stations cannot be ignored. Many streams with less than 5 cfs at summer low flow are important for fish production and wildlife habitat. By monitoring only mainstem gages, a tributary could be dried up without being detected at the gage.

It would be prohibitively expensive to develop and monitor instream flows on many small tributaries with no existing or proposed uses. Specific control stations can be added in the future as needed. WDG should continue to review water right applications and make recommendations of this nature, as necessary, to our regional office. See also response #41.Many of the smaller streams with less than 5 CFS of water may fall in the intermittent or ephemeral category as discussed in the report on page 9 of the Wenatchee Program Document.

Minimum flows should be established at levels which provide good protection for game fish. Ecology has indicated that it does not anticipate much need for additional water withdrawal in the foreseeable future. Thus, there is no serious conflict between future outofstream water rights which would be affected by this program and instream flows which protect fish. The provision to review the program every 5 years is responsive to public interest, so that there is no reason not to provide adequate fish protection.

We do anticipate some future water withdrawal needs in the basin. We believe that except for some presently unforeseen and unlikely large water storage or interbasin transfer project, future consumptive use developments will be small. Nearly all irrigable land in the basin is presently irrigated. Urban encroachment has reduced and will likely continue to reduce total irrigated acreage. Irrigation delivery systems and water application techniques have been improved and should continue to be improved in the future, reducing per acre water requirements. Some minor added acreage may be developed on marginal sites. If new surface water rights are required, they will be subject to the instream flows. Water demand to serve the growing needs of communities such as Leavenworth,


Peshastin, Dryden, and Cashmere will increase gradually aver time, and the total increase is unlikely to be significant. We believe the reduced consumption of present uses and the increased demand imposed by future uses will roughly balance out. Future developed consumptive uses will be subject to the proposed regulations if adopted. It is beyond the scope of this department's authority to adopt flows in excess of those necessary to preserve and protect instream values. The WDOE cannot subject legitimate future offstream needs to instream flows in excess of this standard. We believe the instream flows we have proposed will provide "good" protection of game fish and other instream values.

We are puzzled by the methods used by the Department of Ecology to develop the proposed instream flows for the Wenatchee River basin. The proposed instream flow is generally less than Ecology’s “hydrologic base flow” (see page B18). This represents a move away from, rather than compromise, with Department of Game recommendations. It is a departure fromEcology’s usual procedure of starting with the “hydrologic base flow” as the bottom line for instream flows, then raising them closer to flow levels requested by Department of Game. We suspect that these proposed flows result from a decline in communications between Game staff and Ecology staff and discontinuous work on the program. In the view of the Department of Game, there has been insufficient discussion, review, and resolution of the Wenatchee River Basin Instream

See response No. 6, 18, and response No. 22 (WDG memo December 3, 1980). WDG regional personnel, in early November, by telephone, indicated agreement with instream flows of 600 cfs for the low flow period and 2,000 cfs for the high flow period for the lower mainstem Wenatchee River. We also used the data generated by the Chelan County PUD Dryden Reach Instream Flow Study. Your department has orally approved a range of flows from 470 to 1,750 cfs (depending on the season) for that project. We used these flows and added a reasonable factor of safety in consideration of variable channel conditions above and below the study reach.


Resources Protection Program, and publication of the document and proposed regulations is premature. The result would be insufficient protection for valuable instream resources.

What will be the consequence to game fish population from insufficient instream flows? Drought year fish production would probably be unaffected by the proposed instreamflows:production is poor in droughts. New diversions would not operate in droughts, but existing diversions would be unaffected. The loss to fish production would occur in average and wet 30 years. Fish production should be high when late summerearly fall flows are relatively high, but low instream flows could allow future diversion to lower flow to a level that reduces fish production from what it could have been without additional diversion. Proposed flows could reduce stream flow to the equivalent of an annual drought. Potential best years would be reduced to mediocre years for fish production. Average fish production would also be lowered significantly.

Your statement that, "Proposed flows could reduce stream flow to the equivalent of an annual drought," is incorrect. Instream flows do not reduce stream flow levels, however, consumptive withdrawals or artificial storage may. As stated elsewhere in these responses, a level of consumptive use development capable of depressing flows year after year to the instream flow level is not anticipated and in our view is highly unlikely. Absent some rather large (and undoubtedly controversial) storage or interbasin transfer project, we cannot agree with the notion that there will be a sufficient. quantity of future withdrawals to chronically depress the flow of the Wenatchee River, particularly during average or wetter years. If a large project is proposed, studies would undoubtedly be required of the proponent to evaluate the impacts of chronic low flows and to consider the instream flows themselves.

1


It is clear from the above comments that there existed a significant difference of opinion 1

regarding the adequacy of flows set as part of this program. WDOE believes that it is 2

establishing flows to accommodate 88% of the spawning areas in the Wenatchee River, 3

and 70 % of the area in Icicle Creek. Clearly, WDF and WDG do not agree. 4

Implementation concerns arose as well, with regarding to the lack of closures in some 5

creeks. Ecology's response was that significant new diversions were unlikely. However, 6

the 1982 Program determined that 298 cfs was used for irrigation at that time. In the 7

draft Initial Watershed Assessment Water, it was determined that as of 1992, 371 cfs 8

was used for irrigation. 605 Therefore, since inception of the rule, an additional 73 cfs 9

has been allocated for irrigation use. Clearly there have been significant reductions in 10

available flows for fish .It is also interesting to note, again based on the watershed 11

assessment of 1995, that instream flows are not met for the Wenatchee River between 12

14 and 19% of the time. Icicle Creek is found to not meet the instream flow 13

approximately 18% of the time. If the flows set by rule, even if low based on 14

recommendations of WDF and WDG, are frequently not met, then any diversions 15

impeding the meeting of those flows are having adverse impacts on fisheries resources. 16

Finally, little additional protection was afforded to most of the tributaries on the 17

Wenatchee River. Except for Icicle and Peshastin Creeks, no instream flows were 18

established, no closures were instituted, and no program to resolve these issues were 19

implemented. WDOE's justification for not using IFIM as a basis for establishing 20

instream flows on other portions of the Wenatchee River was as follows: 21

22

Minimum instream flows could have been determined using a different 23 method than described in this report or in the Western Washington 24 Instream Resources Protection Program Final EIS and Program 25 Document. In the Instream Flow Incremental Method (IFIM), a computer 26 model of the stream is developed from detailed physical and biological 27

605 Initial Watershed Assessment Water Resources Inventory Area 45 Wenatchee River Watershed, June 1995.


information about the stream. The computer model shows the effects of 1 different flows on fish and wildlife habitat. Chelan County PUD used the 2 IFIM to determine what flows should be maintained in the Dryden Reach 3 of the Wenatchee River. This study showed that minimum instream flows 4 for that reach could be lower than the original proposal by departments of 5 Game and Fisheries. Operational minimum flows in an interagency 6 agreement for the Dryden reach were: 1) 1,750 cfs from April through 7 June for steelhead spawning; 2) 500 cfs from July through August for 8 Chinook salmon spawning; and, 3) 450 cfs from September through 9 March for salmon and steelhead rearing. Use of the IFIM on the main 10 stem Wenatchee River would provide additional information on the 11 instream resource needs in the river and how various flows would affect 12 them. Flows determined through this method may be either higher or 13 lower than what is proposed for the Wenatchee Program. The IFIM 14 requires experienced staff and much time, as well as a considerable 15 financial commitment. At this time, neither the staff nor the finances are 16 available to the department. Use of the method would also delay adoption 17 of the program for at least a year, while information was collected. During 18 that time, water right applications would continue to be held pending 19 adoption of a program. The IFIM could be used later to provide information 20 for the every fiveyear review. 606 21

22

It appears to the authors that in it's haste to establish instream flows so that additional 23

water rights could be issues, WDOE chose a methodology known to lack scientific 24

credibility. 25

n. MethowWRIA 48 26 27

The methodology employed in the Methow River was a precursor to the Baseflow 28

method identified in the 1979 FEIS. In this instance, a citizen's group established 29

priorities for water use within the watershed, and flow setting based on departures the 30

50% exceedance values were made as a result of these priorities. As stated in the 31

Program document, the public priority was: 32

606 Wenatchee River Instream Resources Protection Program Series No. 26, 1982 at B4.


1

A secure supply of high quality water for existing and future single 2 domestic and stock water uses is the highest priority water use in 3 the basin . . .. There is also strong local support for an expansion 4 of irrigated acreage and additional associated agricultural uses. 607 5

6

In its factual findings, WDOE states: 7

8

The fishery resources of the Methow Basin have declined in the 9 past due to the presence of unscreened irrigation diversions, 10 downstream dams on the Columbia, and the diversion or damming 11 of tributaries to the Methow. However, many of these problems 12 have been alleviated and the Methow system has excellent 13 potential for the development of a larger fishery resource. 608 14

15

WDOE does not provide any documentation to support its optimism, or its 16

conclusion that diversions and mainstem Columbia dam problems have been 17

alleviated. Clearly in the establishment of instream flow protection in the Methow, 18

fisheries resources were of secondary importance. In fact, the priorities 19

established for the use of water resources were: 20

• Priority I. Existing Rights 21 • Priority II. Single domestic and stock use 22 • Priority III Base Flows 23 • Priority IV. Public Water Supply, Irrigation, and Other Uses 24

25

As a result of this prioritization, 2 cfs of additional flow was allocated to domestic 26

use and stockwatering as a first priority on four reaches of the Methow River, 27

Early Winter's Creek, the Twisp River and the Chewack River. 28

29

607 Methow River Instream Resources Protection Program Series 4, 1976 at 1.

608 Id. at 3.


The basis for WDOE policy regarding the prioritization of domestic use was to 1

prioritize domestic use over instream resources needs. As stated in the 2

Program: 3

4

If water is not available from another source, the application may 5 be approved for inhouse domestic supply only. The department’s 6 policy is that people are entitled not only to household water, but 7 also to sufficient water to maintain a pleasant yard surrounding 8 over and above instream needs except that “on water sources 9 where the cumulative effect of numerous diversions for domestic 10 supply would seriously impair either the aesthetic or fisheries 11 resource values of the water source for riparian owners and the 12 public in general, all applications for domestic supply shall be 13 denied as being detrimental to the public, except to the extent that 14 such waters are needed for household supply. 15

16

On water sources where the availability of water is critical (i.e., the 17 taking of additional water will, in fact, adversely affect existing 18 rights to use the waters in question), all applications for “domestic 19 supply” shall be denied. 609 20

21

It is unclear from the Program document the basis upon which instream flows 22

were established on the Methow River, Early Winter's Creek, the Twisp River and 23

the Chewack River. It appears that some hydrologic analysis was undertaken to 24

determine exceedance values, and base flows were selected from those values, 25

after considering additional out of stream needs. It does not appear that there 26

was any fisheries analysis undertaken in determining the adequacy of the base 27

flows. Analysis within the Program document indicates that for all reaches where 28

instream flows were established, the one in two year discharge (based on flows 29

after current diversions) was calculated. A base flow, which was always less than 30

the one in two year discharge, was calculated, and the remaining water was 31

609 Id. at 19.


deemed available for further appropriation. There is no discussion of how the 1

base flows were calculated. 2

3

The program document610 compares sustaining and preferred flows 4

recommended by WDF and WDG in 1974, and the base flows established by 5

WDOE. Results can be found in Table 5. No analysis is provided to evaluate how 6

the fisheries agencies determined sustaining or preferred flows. 7

8

To summarize the flow setting approach in the Methow Basin, it appears that the 9

allocation of additional out of stream uses was the top priority, with 2cfs being 10

provided in a number of reaches to meet future needs. No fisheries information 11

was utilized to establish flows, and no discussion of how the base flows was 12

provided. There is no scientific basis for the flows established in these streams. A 13

number of streams were closed to new surface appropriations during all or part of 14

the calendar year. No description as to how these streams, or the time periods 15

were chosen. 16

o. OkanoganWRIA 49 17 18

The Instream flow rule established for the Okanogan River was done in the same 19

manner as that for the Methow River. Base flows were established based on flow 20

duration curves, and the difference between the one in two year event and the 21

base flow was determined to be available for consumption. It is reported in the 22

Program document 611that WDF and WDG provided a letter on June 2, 1970 23

regarding recommended flows at Oroville and Tonasket on the Okanogan River, 24

610 Methow River Instream Resources Protection Program Table 17.

611 Okanogan River Instream Resources Protection Program Series No. 3, 1976.


and at Nighthawk on the Similkameen River. The flows adopted by rule do not 1

appear to be influenced by the comment letter from WDF and WDG. 2

3

Priorities similar to those found on the Methow were established, with domestic 4

use and stockwatering essentially being exempt from instream flow provisions. A 5

number and lakes were left open to future stock watering and domestic uses, but 6

no other uses were allowed. No instream flows were established on these 7

streams. 8

9

It is reported that: 10

11

"In general, the minimum instream flow falls between the 90 12 percent (low) and 50% (median) flow exceedance lines during the 13 nonspring runoff season, and below the 90 % flow exceedance 14 line during the period of spring runoff(except at Okanogan River at 15 Oroville." 612 16

17

Flows in both the Okanogan and Similkameen Rivers which do not 18 meet the minimum instream flow requirements 100 days or more on 19 an annual basis occur approximately every three or four years, 20 based on flow record for the past 30 years. 613 21

22 A trend of increasing excursions below the minimum instream flows 23 is apparent for the three gauging stations on the Okanogan River. 24 The excursions are becoming more frequent in wintertime than in 25 summertime. Low flow conditions, in conjunction with habitat 26 degradation due to sedimentation and higher water temperatures, 27 probably limit fish production in the Okanogan River Watershed, 28 especially for the spawning and rearing lifestages of steelhead trout 29 and summer chinook salmon. 614 30

612 Draft Initial Watershed Assessment Water Resource Inventory Area 49 Okanogan River Watershed, 1995, at 13.

613 Id. 35.

614 Id. 38.


1

Finally, a recommendation of the 1995 Basin Assessment states that: 2

3

Fisheries management recommendations should be developed 4 from instream flow studies completed in the Similkameen and 5 Okanogan Rivers in 1988 by the US Fish and Wildlife Service. The 6 results of those studies need to be analyzed to develop flow 7 recommendations which would be more suitable than those 8 published in the Washington Administrative Code. 615 9

10

Clearly, instream flows are inadequate to meet fisheries needs on the Okanogan 11

River, and the flows established were not based on best available science. 12

p. Little Spokane RiverWRIA 55 13 14

Establishment of base flows for the Little Spokane River was set as follows: 15

16

The base flow is that flow which is present 80 percent of the time 17 (four out of five years) at any given date under natural fluctuating 18 conditions. The management of this base flow is intended to be a 19 cooperative effort between the public and the Department of 20 Ecology. 616 21

22

However, even these low flows are reduced based on the following rationale: 23

24

Stream flow of the Little Spokane River at Elk is relatively uniform. 25 The results of lowflow investigations at the Elk gaging station 26 indicated that every other year the minimum average 7day low 27 flow may fall below the 80 percent exceedance duration flow level 28 during the summer. Therefore, the August and September base 29 flows at Elk are based on the annual minimum average 7day low 30 flow with nonexceedance frequency of 1 in 5years. This is 31

615 Id. 39.

616 Little Spokane River Instream Resources Protection Series 1, 1975 Program at 3.


equivalent to 90 percent exceedance on a discharge flowduration 1 curve. 617 2

3

As in other plans, if no other alternatives are available, domestic use and stock 4

watering will be permitted to impact base flows. The language in the Little 5

Spokane Program is as follows: 6

7

On water sources where the availability of water is marginal such as 8 a stream that has been administratively closed to further 9 appropriation for other than domestic supply or stockwatering 10 purposes the following criteria should be used. 11

12 If water is available from another source, the application should be 13 denied based on lack of available water and highest feasible use of 14 the remaining waters. This logic would prevail even for household 15 water, since the denial would not be endangering health or welfare 16 rather, it would merely be requiring the applicant to use an alternate 17 and more reliable source. 18

19 If water is not available from another source, the application should 20 be approved for "domestic supply." By adopting this stand, the 21 Department is essentially saying that people are entitled not only to 22 household water, but also sufficient water to maintain a pleasant 23 yard surrounding, over and above instream needs; except as 24 provided in item f below. 25

26 On water sources where the availability of water is critical (i.e., the 27 taking of additional water will, in fact, adversely affect existing rights 28 to use the waters in question), all applications for "domestic supply" 29 shall be denied. Where no other source of water appears to exist, 30 the applicant should be advised of the provisions of 90.03.040 31 RCW, and the denial should be conditioned to allow further 32 processing and issuance of the permit if the applicant acquires a 33 water right sufficient to meet his needs by purchase or 34 condemnation; provided that such action to acquire the water right 35 is initiated within one year from the date of denial. 36

37

617 Little Spokane River Instream Resources Protection Program at 3.


On water sources where the cumulative effect of numerous 1 diversions for domestic supply would seriously impair either the 2 aesthetic or fisheries resource values of the water source for 3 riparian owners and the public in general, all applications for 4 domestic supply shall be denied as being detrimental to the public, 5 except to the extent that such waters are needed for household 6 supply. 618 7

8 9

Clearly, unless there was overwhelming information, new water withdrawals 10

would be allowed to diminish baseflows in order to promote additional 11

development. 12

13

Numerous streams were closed during June 1October 31 but no justification is 14

provided regarding why these specific dates were chosen. 15

16

It appears that there was no input from WDF or WDG, nor any Tribes regarding 17

the establishment of base flows in the Little Spokane watershed. 18

q. Colville RiverWRIA 59 19 20

The Water Resource Management Program was completed in 1979. The basis 21

for the flows established in this program was to "utilize the Basin's water 22

resources for the maximum pubic benefit."619 "Inhouse domestic supply and 23

stock use are exempt from the maintenance of base flows." It is clear from these 24

summary statements that instream flows for the protection of fish was one of only 25

a number of considerations. It found that: 26

27

618 Little Spokane River Basin Water Resources Management Program Series 1, 1975 at 20.

619 Colville River Water Resources Management Program Series 5, 1977 at ii.


• Water was available for appropriation from the Colville River from October 1 1 through July 15 2

3 • The Colville River was closed to new appropriations from July 16 4

September 30 5 6

• All tributaries were fully appropriated under existing rights and were 7 therefore closed to new appropriations 8

9 • Inhouse single domestic water supply and stock watering may be 10

established on closed streams, subject to the protection of existing rights 11 12

• Allocation of water from the mainstem based on the following priorities 13 (1)in house domestic and stock use (2) base flow (3) other consumptive 14 uses 15

16 • Seven lakes were closed to new appropriations, except for Inhouse single 17

domestic water supply and stock watering. 18 19

Flows in this basin were established through the use of an advisory committee. 20

No instream flow analyses were conducted. DOE found: 21

22

The available water resource is equal to a selected firm water 23 supply level, minus the existing commitments to instream uses and 24 the impact of out of stream consumptive uses. 620 25

26 As before, the firm water supply does not look at what has previously been 27

allocated, only at what remains in stream. That flow is then allocated between 28

instream and out of stream needs. 29

30

The document goes on to state: 31

32

Because there are no specific criteria to determine "maximum net 33 benefit" in the allocation of available surface water, public input 34 through public meetings, questionnaires, and the citizen advisory 35 committee have been utilized for establishing water use 36

620 Colville River Water Resources Management Program Series 5, 1977 p14


preferences. The water use preferences of Basin residents for the 1 main stem of the Colville River and Mill Creek are, in order of 2 preference: domestic; stock watering;irrigation,; instream uses, 3 such as fish and wildlife and domestic use;industrial and 4 hydropower. 621 5

6 Base flows were established on Sheep Creek, Deer Creek, Huckleberry Creek, 7

Cottonwood Creek, Chewelah Creek, Upper and Lower Colville River, Stensgar 8

Creek (two locations) Little Pend Oreille River, Haller Creek and Miller Creek. No 9

documentation is provided to support the values used for base flows in this WAC 10

It is clear from available documentation that flows were established based on 11

remaining water supply in tributaries, and the need to allocation additional water 12

to out of stream users. It is also clear that the exemptions provided further 13

diminish the actual instream flows to the detriment of the base flows established 14

for fish. 15

16

A final note of interest, WDOE estimated that only about 54% of recorded water 17

rights were currently being irrigated. 622 The document states that: 18

19

The Department recognizes the necessity of early implementation 20 of the relinquishment clause of chapter 90.14 RCW and initiation of 21 a strong adjudication program. 623 22

23 24

Despite a recognition of overappropriation in 1977, evidence of nonuse on the 25

part of the irrigating community, and the need for an strong adjudication program, 26

WDOE has taken no steps to increase stream flows in the Colville River basins, 27

621 Colville River Water Resources Management Program, Basin Program at 15.




and in fact has permitted in house and stock water diversions to the further 1

detriment of fisheries resources. 2

3 C. ENFORCEMENT 624 4

5

1. The legislature and the department have not adequately funded 6 enforcement of the instream resource protection program. 7

8

To be discussed once certain information is obtained from the Department of 9 Ecology 10

2. The department does not utilize its existing enforcement powers to 11 protect and restore instream flows. 12

13 There is massive disregard throughout the state for many citizens to comply with 14

their water right permits. Many irrigators illegal “spread” the use of unpermitted 15

water beyond their existing water rights, others throughout the state fail to obtain 16

water permits, and others continue to use wasteful water practices. 625 For 17

example, as described in section A(7) above, over 50% of the water use in the 18

Nooksack Basin is illegal withdrawn and the Department of Ecology fails to take 19

any enforcement action. 20

21 Though the director may not be compelled to use his discretion in using the civil 22

enforcement authorities under RCW 90.03.600, the Department's law 23

enforcement agents may not have the same choice. The Department's law 24

enforcement officers must exercise their mandatory duty to enforce the criminal 25

provisions of the water resource statutes. Violation of the various water codes 26

624 This section will be discussed in future drafts once the data and information requested is provided by the Department of Ecology.

625 Anonymous Department of Ecology Official.


are "criminal" misdemeanors. 626 Department patrol officers are charged with 1

enforcement of these and other provisions of the water codes. Washington case 2

law recognizes that law enforcement officers may not simply refuse to perform 3

their statutory duties altogether. Such refusal has been held to constitute willful 4

neglect of duty. 627 5

6

In State v. Twitchell, a county enforcement officer was charged with the crime of 7

willful neglect of his duty in that he knowingly, 628 without making a complaint and 8

without making an arrest, permitted the keeping of a house of prostitution and the 9

practice of prostitution within the county. 629 As in a violation of the Hydraulic 10

Code, prostitution is a gross misdemeanor under the laws of this State. 630 11

12

The court held that "it shall be the duty of all sheriffs to make complaint of all 13

violations of the criminal law, which shall come to their knowledge, within their 14

respective jurisdictions. 631 Law enforcement officers are obligated to "devote 15

unceasing effort toward performing and discharging those duties of the office 16

which are imposed by law . . .." 632 Law enforcement officers have a “mandatory 17

duty to make complaint of any violation of the criminal law which comes to his 18

626 RCW, 90.03.400, 90.03.110, 90.44.120.

627 State v. Twitchell, 61 Wn.2d 403, 378 P.2d 444 (1963).

628 Wilful neglect of duty is “ whenever any duty is enjoined by law upon any public officer or other person holding any public trust or employment, their willful neglect to perform such duty, except where otherwise specially provided for, shall be a misdemeanor.” RCW 42.20.100

629 Id. at 405.

630 Id. at 409.

631 RCW 36.28.011.

632 Id.


knowledge and to arrest and commit any person who breaks the peace." 633 In 1

addition, other courts similarly have concluded that law enforcement officers 2

must "exercise [a] reasonable degree of activity and diligence" to carry out their 3

duties. 634 4

5

Though the director of the Department of Ecology may have the discretion of not 6

bringing his civil authorities to bear on violators of water laws, the Department's 7

law enforcement officers do not have the same choice. Any person failing to 8

comply with any of the requirements or provision of the water codes are guilty of 9

a misdemeanor. The department's law enforcement officers have a mandatory 10

duty to use their criminal authorities against those who are violating State water 11

resource laws. 12

13

If the Department fails to act on its own authorities or the courts are unable to 14

require the agency to fully implement and enforce against those who are violating 15

the water resource statutes, the only other remedy that may be available to the 16

public is "selfhelp." Individuals or certain classes of the public may be able to 17

bring their own actions in court to hold agencies of state government, local 18

governments, or private citizens accountable for maintaining instream flows and 19

preventing illegal water use. 20

3. There is virtually no enforcement of current instream flow 21 regulations. 22

23

To be discussed once certain information is obtained from the Department of 24

Ecology 25

633 Id.

634 See State ex rel. Windham v. Lafever, 486 S.w.2d 740, 744 (Tenn. 972); State ex rel. Danforth v. Orton, 465 S.W.2d 618, 626 (Mo. 1971).


1 D. AGENCY PRIORITIES 635 2

3

To be discussed once certain information is obtained from the Department of 4

Ecology 5

6

END OF CHAPTER 7

8

9

635 This section will be discussed in future drafts once the data and information requested is provided by the Department of Ecology.


1

2

3

Table 3. WDF, WDG flow recommendations, and WDOE instream flow rules 4

(December 15 recommendation/August 1 Recommendation) Kennedy 5

Goldsborough Resource Protection Program 6

7

WDG WDF WDOE

Schumocher Cr. 36/8 19/7 20/6

Sherwood Creek 70/18 85/17 60/11

Deer Creek 69/17 75/22 55/20

Cranberry Creek 50/12 55/10 50/8

Johns Creek 64/16 65/13 45/7

Goldsborough Creek 95/26 110/21.7 50/48

Mill Creek 78/20 70/18 65/20

Skookum Creek 39/8 40/8 40/3

Kennedy Creek 83/22 75/14 60/7

Perry Creek 50/12 55/10 30/1

8


1 2 3 4

Table 4. WDF/WDG/WDOE recommended flow for the Wenatchee River, and 5 50% exceedence values 6

7 8 9

Month WDF recommen dation

WDG Recommen dation

WDOE recommen dation

50% exceed ence

Jan 1000 1000 820 1250 Feb 1000 1000 820 1400 Mar 1000 1000 800 1500 April 1800 1000 1350 2100 May 2250 2250 2200 4000 June 3500 6000 3500 ? July 1750 2250 1700 7000 Aug 1000 1000 800 2000 Sept 1000 1000 700 7500 Oct 1000 1000 700 800 Nov 1000 1000 800 1400 Dec 1000 1000 800 1500

10 11

12

13


1


Table 5. Comparison of Recommended Flow from Methow River Instream Resources Protection Program 1 INSTREAM FLOW COMPARISON, Methow River at Twisp (Gage 12.4495.00), (Units in cubic feet per second) 2 Fish and Game* 3

4 Month Sustaining Flow Preferred Flow Base Flows** Recorded Flow*** 5 January 280 675 260 296 6 February 280 675 260 297 7 March 280 1,200 260 369 8 April 1,000 1,700 650 1,257 9 May 1,200 1,700 1,500 4,497 10 June 1,200 1,700 1,500 4,436 11 July 1,200 1,700 500 1,455 12 August 230 1,200 220 483 13 September 230 675 220 321 14 October 310 675 320 355 15 November 370 675 320 413 16 December 310 675 260 357 17

18 *From letter dated July 8, 1974, from the Department of Game. 19 **Taken at the midmonth point. 20 ***One in two year discharge (from Table 9, page 57). 21


1 IX. CONCLUSION 2

A. Statutory 3

4

Washington’s Constitution and water codes provide both a constitutional and 5

statutory framework for administrative agencies to protect and include instream 6

flows and values in decisions regarding water appropriations. Further, by 7

incorporating instream flow requirements into strong state water quality control 8

plans prescribed by the CWA, Washington can protect its waterways from the 9

impacts of federal and federally approved projects. Washington can also look to 10

statutory provisions such as the State Fish and Wildlife Code RCW 75.20, water 11

quality laws or the federal Clean Water or Endangered Species Acts to provide 12

agency decisionmakers with additional tools to protect instream resources. 13

Finally, the common law doctrines of Public Trust and Indian Reserved Rights 14

are potentially powerful mechanisms for correcting past inappropriate and 15

fulsome water allocations. These doctrines demand decisions that protect and 16

restore precious water resources in the State. 17

18

However, as stated by the Department of Ecology, “an effective instream flow 19

protection program is one that has adequate legislative "backbone," an open 20

process for development of rules and regulations, a thoughtful water right permit 21

process that identifies and resolves questions relating to existing claims and 22

rights, and an enforcement program that has penalties sufficiently high to act as 23

a deterrent to flagrant violations.” Unfortunately, the Department’s instream 24

protection program lacks any of these necessary attributes. It is important for 25

Washington to exercise its powers now to protect instream water flows. 26

Established legal tools for protecting instream water and its associated 27

resources are only effective if applied and enforced. 28


1

Washington's instream flow laws, regulations, and programs have not provided 2

the necessary protection of our public resources as originally intended by our 3

legislature. Even though a recent State Supreme Court decision supports the 4

historical position taken by the tribes, fisheries agencies, and environmental 5

interests that Ecology can and should adopt instream flows that provide full 6

preservation for instream values, nothing has occurred. The legislature 7

continually ignores and fails to address the fundamental issue to water 8

management in our state, instream flow and resource protection. The legislature 9

refuses to provide necessary funding and political support for the agency to 10

implement its instream resource protection and enforcement programs. A state 11

that lacks an effective enforcement program will fail to protect instream flows and 12

negates any public mandate for their preservation. 13

14

In addition, the Department of Ecology is in political gridlock on how to address 15

proper instream flow protection. The Department will not direct its limited 16

resources to conduct necessary instream flow scientific investigations. The 17

Department refuses to adopt instream flow policies as developed through years 18

of working with various constituencies. The Department of Ecology refuses to 19

fulfill its legislative mandate to establish instream flow regulations when 20

requested by the Department of Fish and Wildlife. Nor will the Department of 21

Fish and Wildlife hold Ecology accountable for ignoring requests to establish 22

instream flow regulations. It has been over 16 years since the Department has 23

established new or updated instream flow regulations. 24

25

The Department will not initiate new general stream adjudications or enforce 26

current state law to prohibit illegal water withdrawals. Washington’s water code 27

provides that general stream adjudications are intended to determine “all rights to 28


the use of water, including all diversionary and instream water rights.” 636 Further, 1

no state agency has stepped forward to assert public trusteeship over instream 2

rights in the adjudication process. None of the rivers with regulatory flows have 3

been adjudicated to date. Tribal rights to instream flows have been asserted and 4

recognized in the one general stream adjudication now ongoing; 637 however, the 5

State fails to afford protection of the many other senior tribal instream water or 6

treatyreserved rights throughout the State. 7

8

The Attorney Generals Office will not advance instream flow protection through 9

the public trust doctrine. Nor will the Attorney Generals Office hold the 10

Department of Ecology accountable for failing to protect the senior instream flow 11

water rights of tribal governments that is recognized in both state and federal law. 12

13

Unfortunately, this guarantee of the tribes to fish has been lost in many areas of 14

the region. The cumulative impacts from nonIndian fishing and other habitat 15

related activities “crowded out” Indians from fishing and their fishing places. The 16

tribes have lost a number of fish stocks from impacts caused by dam 17

construction, timber and agricultural practices, urbanization, water development, 18

and other habitatdamaging activities. 638 Numerous stocks of salmon will be 19

listed under the Endangered Species Act and a central promise of the treaties 20

that tribal members could earn a moderate livelihood from fishing has gone 21

unfulfilled. 639 22

B. Instream flow regulations 23

636 RCW 90.03.245.

637 Ecology v. Yakima Reservation Irrigation District, 121 Wn.2d 257 (1993).

638 Spence, B.C., et al., An Ecosystem Approach to Salmonid Conservation.

639 Id. at 686.


Based on the technical analysis of instream flows established by rule, and the 1

basin plans that accompany them, the following conclusions have been reached. 2

The Department of Ecology has allowed for the overappropriation of many of our 3

basins throughout the State. While providing for outofstream water uses, the 4

department has failed to adequately protect our instream resources. When it has 5

exercised it’s responsibilities in limited circumstances, the department has been 6

arbitrary and capricious in the establishment of instream flows. Methodologies 7

utilized have been vastly different from basin to basin. In some basins, such as 8

the Wenatchee and Walla Walla, it is clear that rules were established to ensure 9

that additional out of stream uses of water would be available. In other basins, 10

such as the Nooksack, the most state of the art methodology available at the 11

time was employed, (IFIM) however, even those flows would not be found 12

acceptable today, based on current flow settling protocols. 13

The Department of Ecology, throughout the history of instream flow setting in 14

Washington State, has allowed for exemptions that have resulted in reductions in 15

stream flows despite establishment of these flows by rule. In many basins, 16

additional domestic use of groundwater, and in some cases surface water, was 17

considered the highest priority use of water. In these cases, additional out of 18

stream uses were permitted, even when it would reduce instream flows. In all 19

basins, the groundwater exemption for singlefamily use and stockwatering was 20

continued, even in those basins where lack of available flow for fish was clearly 21

identified. 22

There have been no biologically based standards established to define the level 23

of flow necessary to be protected when establishing flows by rule. All of the 24

instream flows established prior to 1979 were based on basin hydrology, without 25

any consideration of the biological needs of fish. In the latter period when in 26

stream flows were established, a habitat based modeling effort was undertaken, 27


but in many cases the higher flows requested by WDF and WDG and Indian 1

Tribes were not accepted by WDOE. The flows established by rule set an upper 2

limit on the habitat available for use by anadromous fish to spawn and rear. In 3

virtually every case, a net reduction in available habitat was the result of the 4

establishment of these rules. 5

In every instance, despite flows being established for major rivers, instream flows 6

were not established for tributaries. While the closure of tributaries to new 7

appropriations was intended to protect existing flows, exemptions for 8

groundwater withdrawals and the lack of enforcement continued to further 9

encroach on streamflows. By choosing merely to close streams to new 10

appropriations, WDOE avoided studies to determine the appropriate level of 11

stream flow necessary to protect fish. Lacking this information, it is impossible to 12

determine what level of degradation has taken place as a result of past 13

appropriations, or what amount of stream flow should be restored to meet the full 14

productivity of these streams. 15

The use of 50% exceedance values to determine instream flows reduces the 16

overall productivity of watersheds. Because basin hydrology was determined 17

based on what flows were remaining in streams at the time of rule setting, there 18

was an initial overestimate of the amount of water that might be available for new 19

out of stream consumption. The flowduration curves that were established were 20

based on remaining flows, and therefore severely underestimated the historical 21

amount of flow in many rivers. As a result of this hydrological assessment, 22

coupled with the selection of instream flow targets of 5095% exceedence flows, 23

WDOE virtually assured that stream flows would diminish over time. Streamflows 24

in excess of the minimum flows established would be available for new uses. 25

What was the 50% exceedance value would ultimately turn into the 100% 26

exceedance value, at least during summer months because all water surplus to 27

the instream flow would be eliminated. This would virtually assure that except in 28


drought years, the minimum flow would never be exceeded. During wet years, all 1

water excess to the minimums established will be utilized. In average years, the 2

instream flows would be met, and in dry years, the instream flows would not be 3

attained. By choosing the 50% exceedence value in many of the rules, WDOE 4

eliminated the additional fish production that would result from wetter than 5

average years. As a result of the flows established, the best that the resource 6

could hope for would be an average year. The only direction flows could go for 7

this point would be down. 8

In the final analysis, all instream flows established by rule in Washington State 9

fail to meet standards that would be required if flows were being established 10

today. It is clear the flows established based on flowduration curves have no 11

biological basis, and resulted in establishment of flows below optimum for fish 12

production. While some improvements were made when the toe width method 13

was utilized, this methodology suffered from a very simplistic modeling effort 14

based on few data points, and analysis of a narrow range of fish life stage 15

requirements. The flows established by the use of IFIM methods were better still, 16

but still failed to incorporate a large number of crucial factors. Flushing flows for 17

the movement of smolts downstream were not provided for. Nor were channel 18

maintenance flows considered in the establishment of these rules. Finally, factors 19

such as estuary conditions and the interaction between tide and river flow were 20

not part of the analysis. The physical dynamics of river systems was reduced to 21

simplified habitatflow relationships that ignored the variable nature of rivers and 22

the important role that this variability plays on the formation of stream channel 23

conditions. While the methodology utilized to set flows might have been "state of 24

the art" in the early 1980's, these 1980's methods are not adequate to meet the 25

needs of imperiled fish of the early 21 st century. In every case, the instream flows 26

established by rules have been found to be inadequate to provide full habitat 27

productivity for the protection and enhancement of anadromous fish. 28


1

C. Strategy 2 3 4

• Pursue a few simple amendments to the relevant water statutes that: 5 6

o recognize a priority date for instream flow rules that is legally 7 consistent with CWA, ESA, Public Trust, and treatyreserved 8 instream flow rights, 9

10 o provide economic disincentives in the law, and 11

12 o ensure agency accountability for protection and enforcement of 13

instream flow laws; 14 15

• Continue using the judiciary to reform Washington State water law and 16 policy; 17

18 • Seek mandamus actions to hold the department accountable for the 19

establishment and enforcement of instream flow rules; 20 21

• File petitions to the department to investigate the need for future 22 adjudications; 23

24 • Petition WDFW to seek instream flow regulations from the Department of 25

Ecology; 26 27

• Utilize the CWA to require instream flow protection from existing water 28 quality permit holders; and 29

30 • Pursue citizen initiatives to establish, protect, and restore instream flows 31

consistent with the Endangered Species Act, Clean Water Act, tribal 32 treatyreserved rights, and Public Trust obligations. 33

34 35 36 37

END OF CHAPTER 38


APPENDIX A 1 SALMON HABITAT REQUIREMENTS AND HUMAN EFFECTS 2

3 4

Habitat Requirements by Life Stage 5

Salmon have complex life histories. To persist, each species or stock must be 6

able to survive within the entire range of habitats encountered during its life; 7

degradation or alteration of habitat required at any life stage can limit production. 8

The information on salmonid habitat requirements is summarized in Appendix 9

Habitat Requirements. 10

Adults 11

For adult salmon, streamflow during the spawning migration must be sufficient to 12

allow passage over physical barriers including falls, cascades, and debris jams; 13

as a result, the migrations of many stocks occur coincident with high flows. 14

Minimum depths that will allow passage of salmonids are approximately 12 cm 15

for trout, 18 cm for the smaller anadromous species (i.e. pink, chum, steelhead, 16

sockeye, and coho salmon), and 24 cm for large chinook salmon 640 however, 17

substantially greater depths may be needed to negotiate larger barriers. Reiser 18

and Peacock (1985) report that maximum leaping ability varies from 0.8 m for 19

brown trout to 3.4 m for steelhead. Pool depths must exceed barrier height by 20

approximately 25% to allow fish to reach the swimming velocities necessary to 21

leap to these heights (Stuart 1962). The ability to pass a barrier is also influenced 22

by pool configuration. Water plunging over a steep fall forms a standing wave 23

that may allow salmonids to attain maximum heights. 641 Less severe inclines 24

(e.g., cascades) may be more difficult to pass if pool depths are inadequate and 25

640 Bjornn and Reiser 1991.



velocities are high. 1

2 Spawning and incubation 3

The number of spawning salmon and trout that can be accommodated in a given 4

stream depends on the availability of suitable habitats for redd construction, egg 5

deposition, and incubation. 642 Two characteristics of spawning habitats directly 6

tied to streamflow are water depth and current velocity. Salmonids typically 7

deposit eggs within a range of depths and velocities that minimize the risk of 8

desiccation as water level recedes and that ensure the exchange of water 9

between surface and substrate interstices is adequate to maintain high oxygen 10

levels and remove metabolic wastes from the redd. In general, the amount of 11

habitat suitable for spawning increases with increasing streamflow; however, 12

excessively high flows can cause scouring of the substrate, resulting in mortality 13

to developing embryos and alevins. 643 14

Bjornn and Reiser (1991) recently reviewed studies quantifying specific water 15

depths and velocities at sites used by salmonids for spawning in rivers and 16

streams. In Table 54, results from their review have been supplemented with 17

data from four other reviews 644 on spawning sites for anadromous salmonids. 18

Usually, depth and velocity of water at spawning sites is related to the size of 19

spawners: larger species spawn at greater depths and faster water velocities 20

than smaller species. There is also substantial variation among rivers, probably 21

reflecting differences in habitat availability. Most species typically spawn at 22

depths greater than 15 cm, with the exception of kokanee salmon and smaller 23


643 Hooper 1973.

644 Healey 1991; Heard 1991; Salo 1991; and Sandercock 199.


trout (Table 54), which spawn in shallower waters. Location of redd sites based 1

on water depths and velocities may also vary depending on spawner density. For 2

example, pink salmon tend to spawn in shallower waters when conditions are 3

crowded or streamflow is low. 645 Several species of salmonids may seek out 4

areas of upwelling for spawning; these include sockeye salmon, chum salmon, 5

coho salmon, and bull trout. 646 Upwelling increases circulation of water through 6

redds, which helps to eliminate wastes and prevents sediments from filling in 7

spawning gravel interstices. Thus infiltration that recharges groundwater, which 8

eventually discharges in subsurface springs and seeps, must be maintained. 9

Rearing Habitat: Juveniles and Adult Residents 10

The amount of physical space available to juvenile and adult salmonids rearing in 11

streams and the quality of that habitat is directly related to stream discharge.647 12

Within stream environments, salmonids select specific microhabitats where water 13

depth and velocity fall within a specific range or where certain hydraulic 14

properties occur (Table 55). These preferences in depth and velocity change 15

both with season and life stage. Consequently, streamflow must be adequate to 16

both satisfy minimum requirements for survival during periods of stress (e.g., low 17

flow) as well as to provide specific microhabitat characteristics that are favorable 18

to salmonid populations throughout their period of freshwater residence. 19

For many salmonids, smallersized fish tend to select shallower, slower moving 20

waters than larger individuals (Chapman and Bjornn 1969; Everest and 21

Chapman 1972; Moyle and Baltz 1985). Newly emerged fry may be vulnerable to 22

downstream displacement by flow and typically select velocities lower than 10 23

645 Heard 1991.

646 Burgner 1991; Salo 1991; Sandercock 1991; Pratt 1992.

647 Everest et al. 1985.


cm/s (Bjornn and Reiser 1991). During summer months, salmonids often select 1

holding positions at moderate velocities but immediately adjacent to faster waters 2

(Chapman and Bjornn 1969; Jenkins 1969; Everest and Chapman 1972). These 3

positions are believed to confer the greatest energetic advantage to the fish. The 4

amount of food delivered to a particular location is proportional to water 5

velocity. 648 Consequently, fish that hold in water adjacent to faster feeding lanes 6

can maximize food intake while minimizing energy expenditures associated with 7

maintaining position in the current. 649 8

9

During winter months, metabolic demands and, thus, food requirements 10

decrease as temperatures drop. Swimming ability also decreases with 11

decreasing temperature, 650 and fish may be less able to maintain positions in fast 12

waters for extended periods of time. As a result, salmonids tend to select slower 13

water velocities, move to offchannel habitats, or seek refuge in substrate 14

interstices when temperatures drop below a certain threshold. 651 Larger resident 15

trout may abandon feeding sites in riffles and runs and move to slowervelocity 16

pool habitats if substrate refugia are unavailable. 652 17

For resident salmonids and juveniles of anadromous species that spend a year 18

or more in freshwater, streamflow during the summer lowflow period must be 19

adequate to prevent streams becoming excessively warm or drying up 20

altogether. Under drought conditions, streams may become intermittent, and fish 21

648 Wankowski and Thorpe 1979; Smith and Li 198

649 Smith and Li 1983; Fausch 1984.

650 Brett 1971; Dickson and Kramer 1971; Griffiths and Alderdice 1972.

651 Bustard and Narver 1975; Tschaplinski and Hartman 1983; Campbell and Neuner 1985; Johnson and Kucera 1985; Sheppard and Johnson 1985.

652 Spence 1989.


may be restricted to isolated pools. Such conditions can result in increased 1

competition for food, reduced dissolved oxygen levels, increased physiological 2

stress, and vulnerability to predators. Deep pools with groundwater inputs 3

provide the necessary cover and thermal refugia. 4

5

Juvenile Migration 6

Streamflow is important in facilitating downstream movement of salmonid smolts. 7

Smolt migration is believed to be regulated by "priming" factors, such as 8

photoperiod and temperature, that alter the disposition of the fish in anticipation 9

of downstream migration and "releasing" factors, including changes in 10

temperature or streamflow, that trigger movement once a state of physiological 11

"readiness" is obtained. 653 Dorn (1989) found that increases in streamflow 12

triggered downstream movement of coho salmon in a western Washington 13

stream. Similarly, Spence (1995) also found shortterm increases in streamflow 14

to be an important stimulus for smolt migration in four populations of coho 15

salmon. Thus the normal range of streamflows may be required to maintain 16

normal temporal patterns of migration. 17

18

Streamflow is also important in determining the rate at which smolts move 19

downstream, although factors influencing the speed of migration remain poorly 20

understood. Bjornn and Reiser (1991) state that the time required to travel from 21

the Salmon River in Idaho to the Dalles Dam increased by as much as 30 days 22

during lowflow periods following the construction of six dams on the Columbia 23

Snake system. In other systems, the migration speed of individuals may not be 24

correlated to streamflow. This may occur in part because of the changing 25

physiological disposition of fish during the run period with later migrants 26

653 Groot 1982.


undergoing a more rapid smolt transformation as water warms. 1

2

Effects of Human Activities 3

Agriculture 4

Water that is removed from streams and spread on the land for irrigated 5

agriculture reduces streamflows, lowers water tables, and leaves less water for 6

fish. Often the water is returned considerable distances from where it was 7

withdrawn, and the return flows typically raise salinity and temperature in 8

receiving streams. Extreme examples of this occur in many rivers east of the 9

Cascades and in the Central Valley of California. The flows of these rivers are 10

naturally low in late summer, but the additional losses from irrigation accentuate 11

low flows. Reductions in summer base flows greatly degrade water quality 12

because the water warms more than normal and causes increased evaporation, 13

which concentrates dissolved chemicals and increases the respiration rates of 14

aquatic life. 15

Urbanization 16

Water withdrawals for water supply, industry and food processing can alter the 17

flow regimes and quantity and quality of stream water. Muckleston (1993) 18

reported that public water supplies accounted for 42% and 84%, respectively, of 19

the total withdrawals from surface waters in the Willamette Basin, Oregon, and 20

Puget Sound, Washington; these areas have the highest population densities 21

found in these two States. In the lower Columbia subbasin, public water supply 22

and industrial usage make up over 80% of total withdrawals. East of the Cascade 23

crest, food processing is generally the most significant industrial use of water 24

though refining primary metals is important locally in the Clark Fork, Kootenai, 25

Spokane, and midColumbia subbasins. The need for water supplies, 26


dependable power, and flood control has led to numerous impoundments on the 1

major Northwest river systems. These reservoirs have altered the natural flow 2

regimes and fish habitats. For example, flows in the Willamette River, which 3

historically reflected annual precipitation patterns, have been substantially altered 4

to accommodate urban water needs. On average, summer low flows are higher 5

than in predevelopment periods because water is now stored during the wet 6

season and released during the summer. 7

8 Effects of Irrigation Impoundments and Withdrawals 9

Damming and diversion of streams and rivers for agricultural purposes began in 10

earnest in the mid1800s as settlers moved into the region. 654 In the Pacific 11

Northwest, withdrawals for agriculture (crop irrigation and stock watering) 12

currently account for the vast majority (80%100%) of offstream water uses in all 13

major subbasins east of the Cascades and in the upper Klamath Basin. 655 In 14

addition, agriculture accounts for 62% of offstream water use in the coastal 15

basins of Oregon, and 28% of the use in the Willamette Valley. 16

Water for irrigation is withdrawn in several ways. For major irrigation withdrawals, 17

water is either stored in impoundments or diverted directly from the river channel 18

at pumping facilities. Individual irrigators commonly construct smaller "pushup" 19

dams from soil and rock within the stream channel, to divert water into irrigation 20

ditches or to create small storage ponds from which water is pumped. In addition, 21

pumps may be submerged directly into rivers and streams to withdraw water. 22

Many of the effects of irrigation withdrawals on aquatic systems are similar to 23

those associated with hydroelectric power production, including impediments to 24

654 Wilkinson 1992; Palmisano et al. 1993a.

655 Muckleston 1993.


migration, changes in sediment transport and storage, altered flow and 1

temperature regimes, and water level fluctuations. In addition, aquatic organisms 2

may be affected by pollutants from agricultural runoff and reduced assimilative 3

capacity of streams and rivers from which substantial volumes of water are 4

withdrawn. Alterations in physical and chemical attributes in turn affect many 5

biological components of aquatic systems including vegetation within streams 6

and along reservoir margins, as well as the composition, abundance, and 7

distribution of macroinvertebrates and fishes. 8

Fish Passage 9

For many early irrigation dams, no fish passage facilities were constructed, 10

resulting in the loss of several significant salmon runs. For example, irrigation 11

dams in the Yakima River basin blocked sockeye runs estimated at 200,000 12

adult fish. 656 At some older irrigation impoundments (e.g., the Savage Rapids 13

Dam on the Rogue River in Oregon), adult passage is hindered by poorly 14

designed fish ladders (BR 1995). Smaller instream diversions may also impede 15

the migrations of adult fish or cause juveniles to be diverted into irrigation 16

ditches. Salmonid juveniles and smolts are also lost through entrainment at 17

unscreened diversions or impingement on poorly designed screens. 18

Flow Modifications and WaterLevel Fluctuations 19

The volume of water diverted for agriculture is substantial. Muckleston (1993) 20

reports that withdrawals in the Snake River basin total approximately 45,000 21

acrefeet per day (equivalent to approximately 636.8 m 3 ∙s 1 (22,500 cfs); 22

because this value is an annual average, daily diversions during the peak 23

irrigation season are likely much higher. Diversion from individual rivers may also 24

656 Palmisano et al. 1993a.


be great. For example, the Wapato Canal has a capacity to withdraw 57 m 3 ∙s 1 1

(2,000 cfs) from the Yakima River, with operation usually extending from March 2

to midOctober. 657 3

Irrigation withdrawals affect both the total volume of water available to fish and 4

the seasonal distribution of flow. Dams for irrigation typically store water during 5

periods of high runoff in the winter or spring, and release water during the 6

summer when flows are naturally low. Consequently, these impoundments tend 7

to moderate streamflows, reducing winter and spring peak flows. Most direct 8

diversions from rivers occur from spring to fall, during the peak growing season 9

of agricultural crops. Because irrigation of crops coincides with periods of 10

maximum solar radiation, evapotranspiration losses are greater than would occur 11

under normal rainfallrunoff regimes, resulting in reduced summer flows in 12

streams and rivers. 13

Changes in the quantity and timing of streamflow alters the velocity of streams 14

which, in turn, affects all types of aquatic biota. Water velocity is a major factor 15

controlling the distribution of periphyton and benthic invertebrates in streams. 658 16

At low velocities, diatomdominated periphyton communities may be replaced by 17

filamentous green algae (McIntire 1966). In western Washington streams, 18

periphyton growth rates increased as velocity increased up to 0.1 m∙s 1 (Gore 19

1978); however, as velocities increase above that level, erosion of periphyton 20

exceeds growth. Reduced velocity may eliminate invertebrate species that 21

require high velocities (Trotzky and Gregory 1974). The abundance and 22

composition of fish species and assemblages is also regulated by the water 23

velocity (Powell 1958; Fraser 1972). Changes in velocity influence incubation and 24

development of eggs and larval fish by affecting oxygen concentrations within the 25

657 Neitzel et al. 1990.

658 Hynes 1970; Gore 1978; Horner 1978.


gravel (Silver et al. 1963). Reduced water velocities in the Columbia River, which 1

are in part a result of agricultural diversions, may delay downstream migration of 2

salmon smolts. If temperatures become excessively warm, smolts may 3

discontinue migration and revert to a presmolt physiology (Ebel 1977). Survival of 4

these holdovers (fish delaying seaward migration for a year or more) is only 5

about 20% (Adams et al. 1975), and very few may survive to return as adults 6

(CRFC 1979). 7

Where irrigation water is withdrawn from smaller streams, seasonal or daily flow 8

fluctuations may affect fish, macroinvertebrates in littoral areas, aquatic 9

macrophytes, and periphyton (reviewed in Ploskey 1983). Lowered water levels 10

may concentrate fish, which potentially increases predation and competition for 11

food and space (Aggus 1979). Fluctuating water levels may delay spawning 12

migrations, impact breeding condition, reduce salmon spawning area (Beiningen 13

1976), dewater redds and expose developing embryos, strand fry (CRFC 1979), 14

and delay downstream migration of smolts. Water level fluctuations in reservoirs 15

also reduce the density of bottomdwelling organisms (Fillion 1967; Stober et al. 16

1976; Kaster and Jacobi 1978) through stranding, desiccation, or exposure to 17

freezing temperatures (Powell 1958; Kroger 1973; Brusven and Prather 1974). In 18

the littoral zone, frequent changes in water level can eliminate aquatic 19

macrophytes that provide habitat for fish (Munro and Larkin 1950; Aas 1960). 20

Loss of periphyton (attached algae) in the stream margins because of 21

desiccation has been observed below hydroelectric dams (Neel 1966; Radford 22

and HartlandRowe 1971; Kroger 1973) and may occur along the margins of 23

streams below pumping facilities. Reductions in periphyton production affects 24

other levels in the food web, particularly in large, unshaded rivers, where 25

periphyton can be an important energy source. 26

Changes in Sediment Transport 27


Irrigation withdrawals and impoundments can affect the quantity of sediments 1

delivered to streams and transported down river. In general, siltation and turbidity 2

in streams both increase as a result of increased irrigation withdrawals because 3

of high sediment loads in return waters. Unlined return canals contribute heavier 4

silt loads than lined canals or subsurface drains (Sylvester and Seabloom 1962). 5

Turbidity in the Wenatchee River doubled over a 45year period because of 6

increased agriculture and other human activities (Sylvester and Ruggles 1957). 7

Once in the stream channel, the fate of sediments depends on hydrologic 8

conditions. In systems where total water yield or peak discharge are reduced, 9

sediments may accumulate in downstream reaches, affecting the quality of 10

salmonid habitats. In the Trinity River in California, extreme streamflow depletion 11

(85%90% of average surface runoff) has allowed sediments to accumulate 12

downstream, covering spawning gravels and filling in pools that chinook salmon 13

use for rearing (Nelson et al. 1987). The lack of flushing flows during the winter 14

has exacerbated this problem. In other systems, concentrations of suspended 15

sediments below irrigation impoundments may be lower because slower water 16

velocities allow sediments to settle (Sylvester and Ruggles 1957). The deposition 17

of coarse, gravel sediments may be essential for developing high quality 18

spawning gravels downstream of impoundments. Downstream reaches may 19

become sediment starved, and substrate is frequently dominated by cobble and 20

other large fractions unsuitable for spawning. 21

Iwamoto et al. (1978) reported that algae, phytoplankton, zooplankton, benthos, 22

aquatic insects, and fish are all adversely affected by suspended and shifting 23

sediments. In addition, sediments deposited into reservoirs, coupled with 24

reduced streamflows, may improve habitat for intermediate hosts of several fish 25

parasites. 26

Changes in Stream Temperature 27


Irrigation impoundments and withdrawals may increase water temperatures by 1

increasing the surface area of rivers (i.e., reservoirs), reducing discharge volume, 2

and returning heated irrigation waters to streams. In systems with irrigation 3

impoundments, the seasonal thermal regime may also be altered. Reservoirs 4

allow heating of surface waters that, depending on whether releases are from the 5

epilimnion or hypolimnion, can result in increased or decreased temperatures. 6

Below Lost Creek Dam on the Rogue River in Oregona multipurpose dam from 7

which irrigation waters are withdrawn temperatures decreased during summer 8

because of hypolimnetic discharges but increased during the autumn and winter 9

as water that had been heated during the summer was released (Satterthwaite et 10

al. 1992). The increases in fall and winter temperatures accelerated embryonic 11

development of chinook salmon, resulting in earlier emergence. Typically, return 12

flows of surface water from irrigation projects are substantially warmer after 13

passage through the canals and laterals common to irrigated agriculture 14

(Sylvester and Seabloom 1962). The degree to which water temperatures are 15

affected by withdrawal of irrigation water ultimately depends on the proportion of 16

water removed from and returned to the system and on the seasonal hydrologic 17

regime. Water withdrawals in years of low flow are likely to have greater thermal 18

effects on the fishes and other aquatic biota compared with similar withdrawals 19

during years of high flow. 20

Changes in Dissolved Oxygen 21

Dissolved oxygen (DO) concentrations may decrease in both summer and winter 22

in systems with irrigation withdrawals or impoundments. During summer, high 23

solar radiation and warm air and ground temperatures combine to raise the water 24

temperature of irrigation return flow, which diminishes the ability of water to hold 25

DO. Increased water temperatures of irrigation return flows have been shown to 26

reduce DO levels in the Yakima River (Sylvester and Seabloom 1962). Low 27

summer flows can allow greater diel temperature fluctuations, which may 28


exacerbate reductions in DO (McNeil 1968). In addition, higher concentrations of 1

nutrients associated with irrigation returns may reduce DO by increasing 2

biochemical oxygen demand. The extent and period of reduced DO 3

concentrations depends on the quantity of water withdrawn and the quality of the 4

return flow. In winter, low DO levels may occur in irrigation impoundments that 5

have been drawn down. Fish kills can occur through anoxia if lowered water level 6

facilitates freezing, which in turn inhibits light penetration and photosynthesis 7

(Ploskey 1983; Guenther and Hubert 1993). 8

Influence of Impoundment and Water Withdrawal on Fish Diseases 9

Impoundment and water withdrawal for offstream use may facilitate disease 10

epizootics in salmonids by altering temperature regimes, lowering water levels, 11

reducing flow velocities, creating habitat for intermediate hosts of parasites, and 12

concentrating organisms, thereby facilitating the transmission of certain 13

pathogens. Pathogen virulence and salmonid immune systems are greatly 14

affected by water temperature (see Section 4.3.4); thus increasing temperatures 15

by impoundment, flow reduction, or return of heated irrigation waters will affect 16

disease susceptibility and prevalence in fish populations. Becker and Fujihara 17

(1978) emphasize that extended periods of warm temperature and low flow 18

increase the epizootiology of F. columnaris in Columbia River fish populations, 19

and they warn that increasing withdrawal of Columbia River water for offstream 20

use increases the potential for disease. Bell (1986) suggests that fish populations 21

inhabiting lakes and reservoirs tend to experience more disease epizootics than 22

fish species found in freeflowing rivers. Diseases in impoundments generally 23

occur as a result of widespread parasite infections (Bell 1986). Decreasing water 24

depth may provide additional habitat for intermediate hosts of parasites. Snail 25

populations, as well as parasitic trematodes that use snails as intermediate hosts 26

(e.g., Diplostomum andPosthodiplostomum ), are more abundant in shallow 27

waters (Hoffman and Bauer 1971). Consequently, reductions in flow may 28


increase the likelihood of parasite epidemics. Finally, return flows from irrigated 1

fields may transport parasitic nematodes and viruses from infested fields into 2

streams. 3

4 PREFERED HABITATS FOR ANADROMOUS FISH 5

6 Table 54. Water depths and velocities used by anadromous and resident salmonids for spawning.

Species Depth (cm) Velocity (cm/s) Source

Chinook salmon (race not specified) 15 43* 37 69* Bovee (1978) 52 128† 55 113† Graybill et al. (1979) 30 460 Chapman (1943)

Spring chinook salmon ≥24 30 91 Thompson (1972) 18 38* 24 61* Bovee (1978) 5 122 Burner (1951) 13 720 30 150 Vronskiy (1972) 45 52 52 68 Collings et al. (1972)

22 64 Smith (1973) 30 107 30 53 Chambers et al. (1955)

15 100 Neilson and Banford (1983)

Summer chinook salmon ≥30 32 109 Reiser and White (1981) 5 700 10 189 Healey (1991)

Fall chinook salmon 10 120 25 115 Bovee (1978) 24 30 91 Thompson (1972)

122 198 84 114 Chambers et al. (1955) 28 41 30 76 Briggs (1953) 30 45 30 68 Collings et al. (1972)

19 81 Smith (1973) to 700 37 189 Chapman et al. (1986)

Chum salmon ≥18 46 101 Smith (1973) 13 50† 21 84† Johnson et al. (1971) 20 110 10 20 Sano and Nagasawa (1958)


30 100 10 100 Soin (1954)

Coho salmon ≥18 30 91 Thompson (1972) 4 33 30 55 Gribanov (1948) 12 35* 25 61* Bovee (1978) 20 25 25 70 Li et al. (1979) 10 20 30 75 Briggs (1953)

Pink salmon ≥15 21 101 Collings (1974) 10 150 30 140 Heard (1991)

Sockeye salmon ≥15 21 101‡ Bjornn and Reiser (1991) 15 300 Burgner (1991) 17 49 †† 34 58* Bovee (1978) 15 55 ‡‡ 28 79 ‡‡ Stober and Graybill (1974) 30 46 53 55 Clay (1961)

Kokanee salmon ≥6 15 73 Smith (1973) 6 23* 11 41* Bovee (1978)

Steelhead trout (race not specified) ≥24 40 91 Smith (1973) 18† 30 91† Stober and Graybill (1974)

12 70 37 109 Hunter (1973) 27 88† 46 91† Graybill et al. (1979)

Winter steelhead trout 24 55* 43 87* Bovee (1978)

Rainbow trout ≥18 48 91 Smith (1973) 15 43 27 79 Chambers et al. (1955) 21 30 30 Li et al. (1979)

Cutthroat trout ≥6 11 72 Hunter (1973) 17 30 15 46 Chambers et al. (1955)

Mountain whitefish ≥23 30 66* Bovee (1978)


610 1220 15 Li et al. (1979) * Values indicate 50% probability range. † Values indicate 80% probability range. ‡ Estimated by Bjornn and Reiser (1991) based on criteria for other species.

1 2 3

Table 55. Stream depths and velocities at holding sites of salmonids by age or size. From Bjornn and Reiser (1991). Reproduced with permission of the publisher.

Species and Source Age* or Size Depth (cm)

Velocity (cm/s)

Steelhead trout

Bugert (1985) Everest and Chapman (1972)

Hanson (1977)

Moyle and Baltz (1985)

Sheppard and Johnson (1985) Smith and Li (1983)

Stuehrenberg (1975)

Thompson (1972)

31 44 mm 0 1 1 2 3 0 Juvenile Adult 37 mm 25 mm 50 mm 75 mm 100 mm 150 mm 0 1 0

24< 15 60 75 51 mean 58 mean 60 mean 356382< 30

< 30 < 15 18 67

40< 15 15 30 10 mean 15 mean 15 mean 7.3 19.4 28.6 < 25 4 8 18242414 (range, 3 26) 16 (range, 5 37) 6 49

Chinook salmon

Everest and Chapman (1972) Konopacky (1984)

0 77 89 mm

15 30 55 60

< 15 12 30 18 (dawn) 12 (midday) 25 (dusk)

Stuehrenberg (1975) 0 1

< 61 < 61

9 (range, 0 21) 17 (range, 5 38)

Thompson (1972) Steward and Bjornn (1987)

0 78 81 mm

30 122 40 58

6 24 8 10

Coho salmon


Bugert (1985) 40 50 mm 0 1

24 39 (flume) 1518

Nickelson and Reisenbichler (1977) Pearson et al. (1970) Sheppard and Johnson (1985) Thompson (1972)

0 0 62 mm 0

> 30

30 70 30 122

> 30 9 21 < 31 5 24

Cutthroat trout Hanson (1977) 1

2 3 4

51 mean 56 mean 57 mean 54 mean

10 mean 14 mean 20 mean 14 mean

Pratt (1984) < 100 mm > 100 mm

3262

1022

Thompson (1972) 0, 1 40 122 6 49

Bull trout Pratt (1984) < 100 mm

> 100 mm 3345

9 12

* Ages are in years or life stages, without units. 1 2 3 4


1 APPENDIX B 2

3 SUMMARY OF LIMITING FACTORS REPORTS 4

5 6

SALMON AND STEELHEAD HABITAT LIMITING FACTORS 7 WATER RESOURCE INVENTORY AREA (WRIA) 5 8 STILLAGUAMISH WATERSHED 9

10 Low streamflows are problematic in the Stillaguamish from July through 11 September. The cumulative effect of groundwater withdrawals and loss of 12 wetlands can also contribute to low flows. Known low flow problem areas include: 13 the lower mainstem and estuary, Church Creek, North Fork (from Oso to 14 Whitehorse), Pilchuck Creek, Harvey/Armstrong Creek, Tributary 30. The low 15 summer flows also permit saline waters from the Sound to move further 16 upstream in the mainstem Stillaguamish than in historic times when summer 17 flows were larger. Low flows can cause salmon to be stranded, limit or impede 18 salmon migration, and contribute to a decrease in dissolved oxygen, an increase 19 in water temperature, and an increase in the concentration of pollutants. 20

21 Salmon Streamflow Study 22

23 A streamflow study to establish instream flows for several species of salmon was 24 initiated in the Stillaguamish river in the early 1980s (Embrey 1987). Sponsored 25 by the Stillaguamish Tribe and U. S. Geological Survey, the study evaluated 26 selected sites on the mainstem, North and South Forks, and four tributary 27 streams. The results were used to identify potential target streamflows for three 28 life stages of coho, two life stages of summer chinook, one each for pink and 29 chum salmon, and four of winter steelhead (Table 18). This study was not 30 completed nor officially agreed upon for use in setting streamflows. 31

32 Low Flows 33

34 Low streamflows during the summer months are a natural condition for some 35 streams. But for others, low flows occur as a result of human land use impacts, 36 and are a major concern because of the negative effect to salmon and other 37 aquatic life. Low streamflows typically occur from July through September 38 because there is minimal precipitation during these months. In addition to the 39 causes already discussed, the cumulative effect of groundwater withdrawals can 40 so contribute to low flow conditions and loss of wetlands. Longterm declines in 41 the water table, and in turn, discharge to streams, can occur when the amount of 42


water withdrawn exceeds the system's ability to replenish itself. When low flows 1 occur in salmonbearing streams they can cause fish to be tranded and limit or 2 impede salmon migration. Low flows can also contribute to a decrease in rearing 3 space, a decrease in dissolved oxygen, an increase in water temperature, and an 4 increase in the concentration of pollutants, if present. The low summer flows also 5 permit saline waters from the Sound to move further upstream than in historic 6 times when summer flows were at least 5.7 m 3 /s (ACOE 1997). 7

8 Summer low flows and high temperatures negatively impact adult chinook 9 migration and adult holding pools, especially in the slower moving areas 10 (sloughs) in the lower mainstem (WDFW and WWTIT 1994). During the 11 spawning period, low flows were directly correlated to coho smolt yield in Church 12 Creek (Nelson et al. 1997). Severe summer low flow conditions in 1987 resulted 13 in a substantial reduction in coho smolt production in 1988 and a low return of 14 adult coho in 1989. Other known low flow problem areas include: the North Fork 15 (from Oso to Whitehorse), Pilchuck Creek, Harvey/Armstrong Creek, Tributary 16 30, Jim Creek, and the lower mainstem at the weir (ACOE 1997; Nelson 1999; 17 Stevenson 1999). 18

19 20

SALMON AND STEELHEAD HABITAT LIMITING FACTORS 21 WATER RESOURCE INVENTORY AREA (WRIA) 10 22 PUYALLUP RIVER BASIN 23 JULY 1999 24

25 The United States Geological Service (USGS) operates five stream/river gaging 26 stations in the Puyallup River Basin. It is the responsibility of the Washington 27 Department of Ecology (DOE) to set instream minimum flows in the state of 28 Washington. Instream minimum flows for the Puyallup River were established in 29 1980. The instream minimum flows established at the lower Puyallup River 30 gauge are 1,000 cubic feet per second (cfs) and 500 cfs at the upper Puyallup 31 River gauge. For the 14 year time period from 1980 to 1993 inclusive, instream 32 flows were not met at the lower Puyallup River gauge an average of 35 days 33 annually (Ecology 1995). 34

35 Generally, these flow violations were late fall and are not believed to be a 36 significant limiting factor to the production of salmonids. One measure of 37 minimum stream flow is the sevenday low flow. This statistic represents the 38 lowest recorded flows that occur each year over a period of seven consecutive 39 days. When averaged for flows in the previous ten years since 1926, the 40 Puyallup River flows have shown a continuous decline despite the establishment 41 of instream flows in 1980 (Ecology 1995). The 1980 regulation prohibited all new 42 surface water withdrawals from the White River, Hylebos, Wapato creeks and 43


many tributaries to the Puyallup River. During the 19731993 time period data 1 from three USGS maintained Puyallup River basin gages show that the low flows 2 have dropped, even though this same time period has had above average 3 precipitation. This decline can be attributed to increased demand for groundwater 4 water withdrawal through unregulated wells (5000 gallons or less per day) and 5 increases in impervious surfaces that lead to a decline in groundwater and base 6 surface water flows. 7

8 Unpermitted water withdrawals occur throughout the Puyallup River basin. Such 9 withdrawals typically impact salmonids in two manners. Typically they occur 10 when streams are at their lowest flow. This further reduces available rearing 11 habitat for species such as coho and steelhead that rear through the summer 12 months as discussed below. Additionally, they are usually unscreened and result 13 in direct mortality through mechanical pumps or stranding of juveniles in fields to 14 which the water may flow by gravity. There was no available data indicating the 15 magnitude of this issue. Low flows are considered a factor that can limit juvenile 16 coho production in tributary streams due to reduced wetted area and pool volume 17 available for summer and fall rearing. Additionally, reduced stream flows can 18 reduce the survival of outmgirating juvenile chinook by increasing the 19 outmigration time for juvenile salmon, which is hypothesized to increase 20 predation (Wetherall 1971). Data on Puyallup River flood events prior to 1914 is 21 almost totally lacking. Water flow measurements and elevations were initiated in 22 May 1914 and the first report published for Water Year 1915 (October 1, 1914 to 23 September 30, 1915) (Pierce County 1991). Major flood events recorded by the 24 United States Geological Survey (USGS ) in the Puyallup River at the Puyallup 25 gage include events in December 1917, two events in December 1933, January 26 1965, December 1977, November 1986, January 1990, November 1990 and 27 February 1996. The 1996 flood is the current peak flood of record. Flows from 28 this rain on snow event were record flows throughout the Puyallup River system 29 at gages upstream and downstream of regulation effects. 30

31 The levee and revetment system have created a false sense of security that 32 flooding can be prevented. Of the flood events mentioned in the previous 33 paragraph, it is particularly notable that only three approach a 35year flood 34 event. This has resulted in a chronic and recently acute conversion of former 35 floodplain areas on the landward side of the levees into residential and industrial 36 development. The loss of natural vegetation and wetlands in the Puyallup basin 37 has reduced the watershed’s ability to store and process water in a manner to 38 minimize flood event duration and peaks. 39

40 As the river flows downstream into more urban areas the associated land uses 41 change. Urbanization is accompanied by the conversion of uplands and wetlands 42


into residential, commercial and industrial uses. Because of increases in 1 impervious surface and reduced floodplain storage this process results in 2 increased peak flows, quicker peak flows and reduced base flows (Booth 1991; 3 Booth and Jackson 1997). Confounding the increase in flood potential in this 4 reach is the aggradation of the river channel that increases the potential for 5 flooding. 6

7 SALMON HABITAT LIMITING FACTORS 8 WATER RESOURCE INVENTORY AREA (WRIA) 13 9 DESCHUTES RIVER WATERSHED 10 JULY, 1999 11

12 The basic water quantity habitat issue of concern is alteration of the natural 13 hydrologic regime. Included are alteration of the frequency and magnitude of 14 high flow events (usually associated with increased stormwater runoff from 15 impervious surfaces), and reduction of summer base flows that affect the 16 salmonid rearing capacity of streams (usually associated with reduced infiltration 17 of groundwater, water withdrawals, or excess coarse sediment that can cause 18 The flow to go subsurface). 19

20 The streams in WRIA 13 that are currently listed on the 303(d) list for instream 21 flows are Woodland Creek and the Deschutes River. The Deschutes watershed 22 also has an established rule (Chapter 173513 WAC, 1980) that applies to waters 23 within the Deschutes River basin for the purpose of retaining perennial rivers, 24 streams and lakes in the basin with instream flows and levels necessary to 25 provide protection for wildlife, fish, scenic, aesthetic, environmental values, 26 recreation, navigation, and water quality. 27

28 Flows typically are lowest in late summer and impact juvenile salmon (coho) and 29 steelhead rearing in the watershed, adult salmon (most likely chinook) migrating 30 and spawning in the river, and resident trout present in the river. Low flows limit 31 the amount of wetted area available to rearing salmonids, and also limit 32 productivity due to increased water temperatures and decreased dissolved 33 oxygen. Flows were consistently below the summer minimum instream flow 34 Between 1990 and 1995 and are not adequate for salmon. Further study is 35 warranted to determine the extent of impact of low instream flow to juvenile and 36 adult salmonids. Water quantity concerns should be actively considered by the 37 WRIA 13 HB 2514 Watershed Planning Unit to ensure that current instream flow 38 requirements afford protection to salmonids, and to ensure that appropriate 39 instream flows are achieved. 40

41 Summer low flows in Woodland Creek are a habitat limiting factor. The reach of 42 Woodland Creek from Lake Lois to below Martin Way typically goes dry during 43


The summer months and summer flows elsewhere in the system are low. Other 1 streams in WRIA 13 where low flows were identified as a habitat limiting factor 2 include Chambers Creek ditch (13.0034)(Thurston County 1995), and McLane 3 Creek (Williams et al. 1975). 4

5 For Woodland and Woodard creeks, the largest threat to salmonids is the change 6 in the natural flow regime resulting from the rapid urbanization of the watershed. 7 Increased impervious surface from urban development typically results in 8 increased peak flow storm runoff in the winter and reduced base flows in the 9 summer. Other stream basins in WRIA 13 are also under intense development 10 pressure. Unless the natural flow regime can be maintained in developing basins, 11 salmonid habitat will also be adversely impacted. 12

13 Water Quantity 14

15 The Deschutes River is on the 303(d) list for instream flow concerns. The 16 Deschutes watershed has an established rule (Chapter 173513 WAC, 1980) that 17 applies to waters within the Deschutes River basin for the purpose of retaining 18 perennial rivers, streams and lakes in the basin with instream flows and levels 19 necessary to provide protection for wildlife, fish, scenic, aesthetic, environmental 20 values, recreation, navigation, and water quality. 21

22 Flows are typically lowest in late summer and impact juvenile salmon (coho) and 23 steelhead rearing in the watershed, adult salmon (most likely chinook) migrating 24 and spawning in the river, and resident trout. U.S. Geologic Survey (USGS) flow 25 data collected at RM 3.4 between 1990 and 1995 are consistently below 26 minimums established in WAC 173513030 (DOE Section 303(d) list) and not 27 adequate for salmon. Further study is warranted to determine the extent of 28 impact of low instream flow to juvenile and adult salmonids. Water quantity 29 concerns should be actively considered by the HB 2514 Watershed Planning Unit 30 to ensure that current instream flow requirements afford protection to salmonids, 31 and to ensure that appropriate instream flows are achieved. 32

33 Water Quantity 34

35 The primary threat to salmonids in the Percival Creek/Black Lake Ditch 36 watershed is considered to be alteration of natural hydrology. The hydrology has 37 been altered by development in the basin and by altering the majority of runoff 38 from Black Lake from the Chehalis basin to Percival Creek. Watershed data from 39 Chris May (1999) estimate impervious surface at 21.8% for lower Percival, 12.4% 40 for middle Percival, 11.1% for upper Percival, and 24% for Black Lake Ditch. 41

42


Generally, alterations to natural hydrology peak flow magnitude and frequency 1 are observed as impervious surface exceeds 35% and significant impacts occur 2 as impervious surface exceeds 10%. This is exacerbated by the routing of 3 increased flow from Black Lake to Percival Creek. The Percival Creek 4 Comprehensive Drainage Basin Plan recommends improvement of stormwater 5 conveyance and storage facilities as well as improvement of drainage regulations 6 And development controls (a large stormwater facility has been constructed in 7 Black Lake Ditch to treat flow from Cooper Point). 8

9 Water Quantity 10

11 One of the key limiting factors for many of the streams in the urbanizing portions 12 of WRIA 13 is the alteration of the natural hydrologic regime. Alteration of 13 hydrologic regime has been directly related to the amount of effective impervious 14 surface in the area, particularly where effective impervious surface exceeds 510 15 percent (Wild Salmonid Policy). The County should reevaluate the 16 recommendations in current watershed plans to ensure that stormwater 17 recommendations are implemented in a manner that provides the necessary 18 protection for salmonids. It is also recommended that comprehensive strategies 19 be developed to contain effective impervious surface to <510 percent in 20 developing basins. 21

22 There are data that identify that minimum instream flows in the Deschutes River 23 are not currently being met. It is recommended that the HB 2514 process identify 24 whether current instream flow requirements for the Deschutes River are 25 adequate, and identify options to ensure that minimum flows are achieved. Low 26 flow concerns have also been identified for other creeks (Woodland Creek) that 27 may warrant consideration by the HB 2514 process to determine what options 28 are available to maintain/restore low flows. 29

30 SALMON AND STEELHEAD HABITAT LIMITING FACTORS 31 WATER RESOURCE INVENTORY AREA (WRIA) 19 32 WESTERN STRAIT OF JUAN DE FUCA 33

34 The hydrologic regime of a drainage basin refers to how water is collected, 35 moved and stored. The frequency and magnitude of floods in streams are 36 especially important since floods are the primary source of disturbance in 37 streams, and thus play a key role in how streams are structured and function. 38

39 In ecologically healthy systems, the physical and biotic changes caused by 40 natural disturbances are not usually sustained, and recovery is rapid to 41 predisturbance levels. If the magnitude of change is sufficiently large, however, 42 permanent impacts can occur. Alterations in basin hydrology are caused by 43


changes in soils, decreases in the amount of forest cover, increases in 1 impervious surfaces, elimination of riparian and headwater wetlands, and 2 Changes in landscape context. Hydrologic impacts occur even at low levels of 3 development (<2% impervious surfaces) and generally increase in severity as 4 more of the landscape is converted to urban uses. 5

6 The streams in WRIA 19 are low elevation watersheds, with flows dependent 7 upon precipitation. They are naturally susceptible to low summer flows, as well 8 as high peak flows in heavy storm events. Direct assessment of water quantity is 9 hampered in this WRIA because of a lack of consistent water flow information. 10 The most active gauging station is located on the Hoko River, but data from the 11 late 1970s through the early 1990s was not collected. This assessment relied 12 upon conclusions in watershed analysis and from the hydrologic maturity 13 information when available. 14

15 Deep Creek 16

17 When comparing current to historic vegetative conditions, the average 210 year 18 peak water discharge increased by about 10% in the watershed, and for unusual 19 storm events, the peak water discharge increased by 1520% (Young 1994). 20 Immature (<20 years) and intermediate (20100 years) cover classes account for 21 75100% of the subbasins within the Deep Creek Basin. The upper reaches are 22 an exception with the largest proportion of mature cover (Young 1994). Further 23 conversion to younger age classes will result in an increase of 1.5 times the 24 current runoff (Young 1994). The Deep Creek subbasins consist of about 65 25 100% lowland and rain dominated zones. 26

27 Pysht River 28

29 The latest data regarding the age of the surrounding forest is from the early 30 1990s. Since then, conditions are believed to have worsened. However based 31 upon those data, most of the Pysht watershed consists primarily as intermediate 32 cover and secondarily as immature cover. The dominant vegetation class in the 33 lower mainstem Pysht River (to just upstream of the confluence with the South 34 Fork) is 4080 year old conifers, which averaged about 52% (Fig. I.1) (DOE 35 1993). However, the second greatest vegetation class is the 010 year old class 36 (averaged about 29%). Further upstream, the dominant vegetation class changes 37 to 010 year (34%) old in the region near the gravel pit at RM 9.7, with 4080 year 38 old cover accounting for about 31% of the land. Near the U.S. Forest Service 400 39 Road crossing (near RM 14.5), the dominant vegetation cover is 2040 year old 40 cover, which accounts for 35% of the region (Fig. I.1). This area also has 21% 41 4080 year old cover and nearly 18% of over80 year old cover (DOE 1993). 42


The South Fork Pysht is dominated by 4080 year old vegetation (averaged 1 51%), with the 010 year cover the second largest class, averaging 23% (Fig. I.1) 2 (DOE 1993). Green Creek has had the greatest conversion with 57% of its cover 3 010 years old (Fig. I.1). Needham, the North Fork Green, Reed, Salmonberry, 4 and Middle Creeks are all dominated by 4080 year old vegetation. The direct 5 impact of alterations in hydrological maturity on flows has not been linked in the 6 Pysht River, but indirectly, there are several indicators that peak flows have 7 impacted salmon production. 8

9 Scour has been noted as a likely occurrence during peak flows (Rawson et al. 10 1997). The principal causes of instability are high sediment loads coupled with 11 low levels of LWD. This is discussed in the Streambed section. 12 Figure I.1. Percent vegetative cover type in the Pysht Watershed (data from DOE 13 1993). 14

15 Clallam River 16

17 The mainstem Clallam River is mostly surrounded by an intermediate aged 18 vegetation age. Trees that are 4080 years old account for about 60% of the 19 vegetation followed by 25% 2040 year old trees (DOE 1993). All of the assessed 20 tributaries (Charlie, Pearson, Last, and stream 19.0140) were dominated by 40 21 80 year old trees. 22

23 Hoko River 24

25 Low summer water flows are often a problem particularly for fall chinook salmon 26 and sometimes for coho salmon (Currence 1999). When flows are very low, 27 upstream adult migration is delayed and/or spawning is not as broadly 28 distributed. This especially impacts the earlier spawning species such as chinook 29 salmon. In low flow years, their spawning distribution is confined to the middle to 30 lower mainstem, areas that are at high risk of scour during the peak flows in 31 winter. 32

33 Although the basin is naturally susceptible to low water flows because of its low 34 elevation and dependence on precipitation, human factors contribute to the 35 problem. The infiltration gallery at RM 4 serves as the water supply for the towns 36 of Clallam Bay, Sekiu, as well as the Clallam Bay Correction Center. The current 37 pumping rate is 200400 gallons per minute (48% of the lowest recorded flow) 38 and this level is only 50% of the amount that has been approved for withdrawal 39 (Bishop et al. 1996). 40

41


One flow problem occurs in the upper mainstem, near the Bear and Cub Creek 1 confluences. In this area, summer rearing habitat becomes dewatered, but this is 2 believed to be a natural condition (Martin et al. 1995). 3

4 The latest data regarding the age of the surrounding forest is from the early 5 1990s. Since then, conditions are believed to have worsened. However based 6 upon those data, the Hoko watershed was covered with about 37% mature 7 second growth, 3% intermediate maturity, and 40% immature vegetation (Pentec 8 1995). Within subareas, the dominant vegetation class along the mainstem 9 Hoko is intermediate aged 4080 year old, averaging 46% with lower 10 percentages in the lower reaches (Fig. I.2) (DOE 1993). The second largest class 11 was 2040 year old trees, which averaged 26% of the land cover. The Little Hoko 12 and Leyh Creek were surrounded primarily by 2040 year old vegetation with the 13 4080 year old class accounting for about 30% of the region (Fig. I.2). Most of the 14 other tributaries to the Hoko were dominated by fairly young stands (2040 year 15 old). These tributaries include: Bear, Herman, Ellis, and Brownes Creeks. Rights, 16 Johnson, and Cub Creeks were dominated by 4080 year old vegetation classes 17 (Fig. I.2) (DOE 1993). 18

19 The impact of the vegetation change influences peak flows. When peak flows are 20 estimated and current conditions are compared to predicted undisturbed 21 conditions, there have been increases in storm recurrence intervals (Pentec 22 1995). For a 2 year storm recurrence interval, the percent increase based upon 23 current conditions are: 14% in the Johnson Creek subbasin, 11% in the Ellis 24 creek subbasin, 10% in the mainstem, 9% in the Herman Creek subbasin, 8% 25 in the Bear Creek subbasin, 7% in the Brownes and Cub Creeks subbasins as 26 well as in the upper mainstem. The Little Hoko River 2 year storm recurrence 27 interval has increased about 6%. 28

29 Sekiu River 30

31 The greatest low flow problem in the basin occurs in the mainstem during the 32 summer (Currence 1999). Shallow transverse bars can prevent adult chinook 33 and even coho from migrating upstream. Because of this, the intertidal reaches 34 are important thermal and flow refuges until freshets occur. However, the lack of 35 deep pools and woody cover in the lower reaches degrade this refuge (Currence 36 1999). 37

38 Carpenters Creek goes subsurface in the summer, and sometimes strands 39 juveniles due to a passage problem at a culvert (Currence 1999). Work has 40 occurred on this culvert and further monitoring will be necessary to assure that 41 the problem has improved. 42

43


Scour is a probable event in the mainstem and South Fork Sekiu due to the lack 1 of LWD to slow water velocities and gravel transport (Currence 1999). The North 2 Fork had better levels of functional LWD, but still poor levels of the larger key 3 pieces. Because of this, scour is still a risk in the North Fork, although not as high 4 as a risk as the mainstem and South Fork. Carpenters and No Name Creeks 5 were considered to have a fairly high risk of scour (Currence 1999). 6

7 The latest data regarding the age of the surrounding forest is from the early 8 1990s. Since then, conditions are believed to have worsened. However based 9 upon those data, most of the watershed has been converted to stands that are 10 now in the intermediate age stage. The vegetation class surrounding the 11 mainstem is dominated by 2040 year old (averaged 33%, with the second 12 largest class consisting of 4080 year old trees (averaged 29%) (DOE 1993). The 13 South Fork Sekiu is dominated by 1020 year old vegetation (38%), followed by 14 2040 year old trees (35%). The North Fork is in better condition with about 60% 15 4080 year old trees. West Fork Carpenter Creek is dominated by 010 year 16 class (51%), East Fork Carpenter by 2040 year old class (59%), and onnybrook 17 by 1020 year old trees (50%). 18

19 Major Recommendations For Water Quantity Issues In WRIA 19 20

21 Increase LWD where needed (see Streambed/Sediment chapter). Large woody 22 debris slows water velocity and creates pools for thermal refuges important in low 23 flow reaches. 24

25 Reduce summer water withdrawals from the Hoko River, especially in years of 26 anticipated low flows, and maintain current summer flows in other WRIA 19 27 streams. 28

29 Data Needs For Water Quantity Issues In WRIA 19 30

31 Consistently fund flowmonitoring stations throughout WRIA 19. 32

33 Study the location, cause, and extent of scour. 34

35 Update the hydrological maturity data and create GIS layers. 36

37 Conduct studies on how changes in hydrological maturity alter instream flows 38 (both peak and low flows) throughout WRIA 19 (high priority data need). 39

40 SALMON AND STEELHEAD HABITAT LIMITING FACTORS 41 WATER RESOURCE INVENTORY AREA (WRIA) 24 42


WILLAPA BASIN 1 2

Water Quantity Problems In The Willapa Watershed 3 4

The Willapa River has a very wide range of flows due to the geology of the 5 watershed. The river valley consists of shallow alluvial deposits over bedrock. 6 The capacity of the basin for ground water storage is very low (Pickett 1999). 7 Flows can range from 610,000 cfs within a year, with the lowest flows typically in 8 August and the highest flows from November through March. 9

10 Low flows are a known problem in the upper mainstem Willapa River (legal 13, 8, 11 36) (Hadley 1994). At the gauge station near Lebam, the annual low flow ranges 12 between 612 cfs. The low flow problem occurs in summer and early fall, 13 delaying or even blocking the upstream migration of adult spawning fall chinook. 14 Compounding the problem is a low number of pools for adults to hold until rainfall 15 increases the flows. The delay of adults results in higher harvest, increases 16 disease potential, and potentially reduces reproductive success. The low flows 17 are worsened by water withdrawals and by channel incision. The mainstem in 18 this area is bedrock controlled and dissociated from its floodplain. 19

20 High stream temperature and low dissolved oxygen are also documented 21 problems, which are worsened by the low flows (see Water Quality chapter). 22 These impact juvenile coho and steelhead in addition to returning fall chinook 23 adults. The best summer rearing habitat is located in Stringer Creek, the lower 24 2.3 miles of Trap Creek, Forks Creek, parts of Ellis Creek, and lower Walker 25 Creek (Hadley 1994). However, many of these same areas are susceptible to 26 winter peak flows which can scour nests and provide poor overwintering 27 conditions. Walker Creek is the exception. It has sufficient LWD and pools to 28 provide both good summer and winter rearing habitat. 29

30 SALMONID HABITAT LIMITING FACTORS 31 WATER RESOURCE INVENTORY AREA (WRIA) 30 32 KLICKITAT WATERSHED 33

34 No flow regulation occurs within the watershed; all flows in the watershed occur 35 within a natural flow regimen, with the exception of portions of Outlet Creek, 36 Hellroaring Creek, Swale Creek, and the Little Klickitat River, where diversions 37 for water supply and irrigation occur. An instream flow study conducted in 1991 38 identified Swale Creek and the Little Klickitat River and a number if its tributaries 39 as having insufficient flows to support fish populations (anadramous and 40 resident); these streams have been placed on the state "water quality impaired" 41 (303d) list for instream flows. It is not known to what extent insufficient flows are 42 land use related. 43


1 Identified water quality problems include high temperature in Butler Creek, Swale 2 Creek, and the Little Klickitat River; these streams have been placed on the state 3 "water quality impaired" (303d) list for temperature. Temperatures exceeding 4 state water quality standards have been recorded in these streams primarily 5 during low flow periods during the summer months; it is presumed that these 6 exceedences are attributable to lack of stream shading due to degraded or non 7 existant riparian areas and low summer flows. 8

9 SALMON AND STEELHEAD HABITAT LIMITING FACTORS 10 WATER RESOURCE INVENTORY AREA (WRIA) 46 11 ENTIAT WATERSHED 12 JULY 6, 1999 13

14 The hydrologic regime of a drainage basin refers to how water is collected, 15 moved and stored. The frequency, magnitude and duration of floods in streams 16 are especially important since floods are the primary source of disturbance in 17 streams and thus play a key role in how they are structured and, but it is the 18 bankfull discharge that is primarily responsible for the maintenance of channel 19 geometry (width and depth) (USFS, 1996). In ecologically healthy systems, the 20 physical and biotic changes caused by natural disturbances are not usually 21 sustained, and recovery is rapid to predisturbance levels. If the magnitude of 22 change is sufficiently large, however, impacts can occur. 23

24 A large portion of the annual precipitation in the Entiat falls as snow and 25 accumulates to form the winter snowpack, which is released by the warmer 26 temperatures and rain of spring and early summer. This snowmelt is the 27 dominant source of streamflow and groundwater in the Entiat system. Studies of 28 the ground water system, or aquifer, indicate most of the area is underlain with 29 weathered bedrock ranging from 13 to 110 feet thick, with areas of significantly 30 thicker bedrock below the weathered zone. In the river valley, the bedrock is 31 covered with sediment composed of sand, gravel, cobbles and occasional finer 32 grained material. These layer of sediment serve as the primary aquifer for the 33 Entiat watershed and contain the vast majority of the area’s ground water. In this 34 system, groundwater movement into the Entiat River and its tributaries sustains 35 most of the streamflow from late summer through the winter establishing a strong 36 connection between the ground water system and the Enitat River (Kirk et al., 37 1995). 38

39 Overall natural streamflow patterns correlating to cycles of wet and dry years and 40 punctuated by small to large magnitude events, can experience more extreme 41 ranges of high and low flows with increasing frequency and intensity when 42 compounded by humanrelated alterations within the watershed. Withdrawals of 43


surface water and ground water in continuity with surface waters, removal of 1 riparian vegetation, channel straightening, diking and removal of upper 2 watershed vegetation are examples of some humanrelated changes to a 3 watershed that can result in changes to stream flows. This is important because 4 the quantity of available fish habitat is a factor of instream flows; the more water 5 within a channel, the more cubic area is accessible to the fish. Conversely, the 6 less water within a channel, the less cubic area of stream channel is available to 7 fish. 8

9 The Entiat River is typical of streams on the east slopes of the Cascade 10 Mountains that experience high flows in the spring and early summer during 11 snowmelt, then very low flows during late summer until early spring. Low flows 12 are often onethirtieth of the spring flow (Confederated Tribes and Bands of the 13 Yakama Indian Nation et al., 1990). 14

15 Rearing habitat for juvenile salmonids may be limited during both the high and 16 low flow stages. Newly emerged chinook fry rear in areas of low velocity, 17 principally along shoreline margins and in backwater areas. In a pristine stream, 18 high flows during the freshet create backwaters and flood shoreline vegetation to 19 make low velocity rearing habitat (Confederated Tribes and Bands of the 20 Yakama Indian Nation et al., 1990). Low flows naturally result in a reduction of 21 total available rearing area as declining flows recede into a smaller channel area, 22 no longer providing access to the shoreline edges that 23 were available during high water flows. 24

25 The DOE and WDFW conducted an instream flow study in the Entiat River using 26 the Instream Flow Incremental Methodology (IFIM), producing a draft report 27 dated March 1995 (Caldwell, 1995). The (IFIM) was developed in the late 1970’s 28 by the U.S. Fish and Wildlife Service to correlate incremental changes in 29 streamflow to the quantity of available fish habitat. Based on stream channel 30 cross sectional measurements and stream flow measurements, an attempt is 31 made to model the streams’ flows thereby generating an index of available 32 habitat relative to different flows (chinook, steelhead and bull trout). Using results 33 of the IFIM, DOE and WDFW recommended minimum instream flows for the 34 Entiat River. Subsequently, it was recognized in DOE’s Draft Intitial Watershed 35 Assessment for the Entiat Watershed (Kirk, 1995) that a comparison between 36 recorded flow data for years 19571993 and recommended flows for the Entiat 37 River indicated river flows remained below the recommended flows for much of 38 any given year, during that period of record. The problem is that most of the 39 annual flow is received during spring and early summer runoff, and is not 40 available to meet recommended flows year round, much less to meet year round 41 water uses. The Draft Assessment called for further analysis of the uncertainties 42 associated with the actual versus the recommended flows. That process will be 43


taken up in the Entiat Watershed Planning process (years 19992002) funded by 1 a grant under House Bill 2514. The quantity of available fish habitat needs to be 2 assessed in the context of the habitat quality, the fish species, and longrange 3 management goals to determine its benefit to fish. 4

5 Water withdrawals 6

7 The Entiat River Subbasin Salmon and Steelhead Production Plan 8 (Confederated Tribes and Bands of the Yakama Indian Nation et al., 1990) 9 identified water withdrawals, both agricultural and domestic, as an issue of 10 concern relative to their potential to exacerbate normal low flows of late summer 11 in the Entiat river. At that time, at issue was a need to set minimum instream 12 flows at levels that would protect not only existing fish production but potential 13 fish production, where appropriate. Fish production can be correlated to the 14 quantity and the quality of habitat available. 15

16 The DOE is the state regulatory agency charged with administering all water 17 rights and water claims in Washington. As staffing and budget permit, they are in 18 the process of translating all paper copy information on water rights, water 19 claims, water certificates, water permits and water applications into tabular 20 databases. A database called WRATS was developed in the Olympia DOE 21 headquarters office and is maintained by the Olympia headquarters office; Rick 22 Shaeffer is the contact at (360/4077294). The WRATS database includes 23 information on water quantity associated with a given water right, claim, or 24 certificate but does not include the specific locations (geospatial data) where that 25 water right or claim is being withdrawn. In many cases this information was 26 not specifically provided on the original application for a right or claim, especially 27 or very old ones. Another database called GWIS was developed in the Yakima 28 DOE Central Region office and is maintained in the regional office. The contact 29 person for this data is Nicholas Riddle, DOE Central Regional Office, 15 West 30 Yakima Avenue, Suite 200, Yakima, 98902 (509/5752490). GWIS adds point 31 locations for such things as gaging stations, pumps, wells, irrigation dams, points 32 of diversions/withdrawals and points of use, to the extent this information is 33 known. Known locations are derived only from hard copy records; there has been 34 no ground survey work done to update or verify these locations. This database is 35 in varying degrees of completion. For the Entiat watershed (WRIA 46), all data 36 from claims, permits, applications and certificates was entered into GWIS up 37 through 1995. Since that year, no new data has been added and old data has not 38 been edited. John Easterbrooks, Program Manager of the WDFW Yakima 39 Screen Shop, has spent considerable energy compiling DOE’s data on water 40 withdrawals in his work related to fish screening of water diversions (see the 41 section of this report on Loss of Access to Spawning and Rearing Habitat, 42 Causes of Fish Blockages, Dams and Diversions for more discussion). This effort 43


needs to be built upon with the goal of developing a database with locations of 1 surface and ground water withdrawal and a geospatial component to that data. 2 The quantity information from DOE’s records need to be associated with this 3 data. 4

5 Surface water 6

7 Surface water withdrawals in the Entiat watershed are in the form of withdrawals 8 by pump or ditch (gravity) for irrigation and for supply to the Entiat National Fish 9 Hatchery. The Entiat Valley Watershed Study (Chelan County Conservation 10 District, in prep.) provides an analysis and discussion of the intricacies of 11 estimating water use from surface withdrawals, especially relative to the issue of 12 instantaneous surface water irrigation use. Problems with relating this use to 13 instream flows at any given point in time are many and complex and will be part 14 of the review of the instream flow recommendations for the Entiat watershed 15 under the HB2514 Watershed Planning process. 16

17 The DOE regulates both the quantity of water diverted and the place of diversion 18 (POD). Surface water diversions are mostly associated with water withdrawals 19 for agricultural use in the Entiat watershed, typically irrigation, although 20 sometimes for offchannel livestock watering. Depending on channel 21 characteristics and hydrology, the POD can play an important part in contributing 22 to low flows or lack of flows in a given reach of stream. Opportunities to change 23 or combine POD’s, or convert open ditches to ground water withdrawals or piped 24 systems should be considered where it is determined to improve salmonid 25 habitat conditions. As an example, the KnappWham irrigation system was 26 recently converted to a pipeline system. Benefits realized on the KnappWham 27 system from the conversion include: decreased water loss, decreased water 28 temperatures, less pathogen/seed pickup, eliminated need for ditch bank 29 repairs, and protection of system form side canyon washouts (Chelan County 30 Conservation District, in prep.). 31

32 Ground water 33

34 In the Entiat watershed, where alluvial and glacial sediments comprise the valley 35 bottoms, the ground water is in continuity with the surface water and additional 36 pumping of ground water will likely reduce flow in the Entiat River (Montgomery 37 et al., 1995). The areas of valley bottoms that are in continuity with the surface 38 waters need to be outlined and mapped. This information will aid in the 39 assesment of the impacts ground water withdrawals have on water availability. 40


1 WRIA: WRIA Name Report Status

WRIA 1: Nooksack No report or summary is available

WRIA 2: San Juan Work is currently underway in this WRIA

WRIA 3: Lower SkagitSamish No report or summary is available

WRIA 4: Upper Skagit No report or summary is available

WRIA 5: Stillaguamish A report and summary are available

WRIA 6: Island A report and summary are available

WRIA 7: Snohomish No report or summary is available

WRIA 8: CedarSammamish Work is currently underway in this WRIA

WRIA 9: DuwamishGreen A report and summary are available

WRIA 10: PuyallupWhite A report and summary are available

WRIA 11: Nisqually A report and summary are available

WRIA 12: ChambersClover Work is currently underway in this WRIA

WRIA 13: Deschutes A report and summary are available

WRIA 14: KennedyGoldsborough Work is currently underway in this WRIA

WRIA 15: East Kitsap A report and summary are available

WRIA 16: SkokomishDosewallips No report or summary is available

WRIA 17: QuilceneSnow No report or summary is available

WRIA 18: ElwhaDungeness A report and summary are available

WRIA 19: LyreHoko A report and summary are available

WRIA 20: SoleduckHoh A report and summary are available

WRIA 21: QueetsQuinalt No report or summary is available

WRIA 22: Lower Chehalis Work is currently underway in this WRIA

WRIA 23: Upper Chehalis Work is currently underway in this WRIA

WRIA 24: Willapa A report and summary are available

WRIA 25: GraysElochoman Work is currently underway in this WRIA

WRIA 26: Cowlitz A report and summary are available

WRIA 27: Lewis A report and summary are available

WRIA 28: SalmonWashougal Work is currently underway in this WRIA

WRIA 29: WindWhite Salmon A report and summary are available

WRIA 30: Klickitat A report and summary are available

WRIA 31: RockGlade A report and summary are available

WRIA 32: Walla Walla Work is currently underway in this WRIA

http://www.conserver.org/salmon/reports/wria05sum.shtml

http://www.conserver.org/salmon/contact/request.php3



http://www.conserver.org/salmon/reports/wria09sum.pdf





























WRIA 33: Lower Snake No report or summary is available

WRIA 34: Palouse No report or summary is available

WRIA 35: Middle Snake No report or summary is available

WRIA 36: Esquatzel Coulee No report or summary is available

WRIA 37: Lower Yakima Work is currently underway in this WRIA

WRIA 38: Naches Work is currently underway in this WRIA

WRIA 39: Upper Yakima Work is currently underway in this WRIA

WRIA 40: AlkaliSquilchuck No report or summary is available

WRIA 41: Lower Crab No report or summary is available

WRIA 42: Grand Coulee No report or summary is available

WRIA 43: Upper CrabWilson No report or summary is available

WRIA 44: Moses Coulee No report or summary is available

WRIA 45: Wenatchee No report or summary is available

WRIA 46: Entiat A report and summary are available

WRIA 47: Chelan No report or summary is available

WRIA 48: Methow A report and summary are available

WRIA 49: Okanogan No report or summary is available

WRIA 50: Foster No report or summary is available

WRIA 51: Nespelem No report or summary is available

WRIA 52: Sanpoil No report or summary is available

WRIA 53: Lower Lake Roosevelt No report or summary is available

WRIA 54: Lower Spokane No report or summary is available

WRIA 55: Little Spokane No report or summary is available

WRIA 56: Hangman No report or summary is available

WRIA 57: Middle Spokane No report or summary is available

WRIA 58: Middle Lake Roosevelt No report or summary is available

WRIA 59: Colville No report or summary is available

WRIA 60: Kettle No report or summary is available

WRIA 61: Upper Lake Roosevelt No report or summary is available

WRIA 62: Pend Oreille No report or summary is available

1 2 3




Appendix C: 1 Surface Water Source Limitation List 2

3 4

Surface Water Source Limitations (SWSL’s) submitted by the Washington 5 Department of Fish and Wildlife (WDFW) are recommendations and are used as 6 guideline documents for decisions on water right applications. 7

8 Historically, some water right applications have been denied or issued with 9 provisioned flows by Ecology with reference to letters received from WDFW. 10 Denied applications on a surface water source do not administratively close 11 those sources to future appropriation. 12

13 An overview of existing information that pertains to SWSL is provided in the 14 following attached documents: 15

16 • Background information for SWSL determination 17 • A copy of RCW 77.55.050 (used to be RCW 75.20.050) 18 • Map with Instream Flows and SWSL’s 19 • A list of WAC Instream Flows and Closures set by Regulation 20 • A spreadsheet with WAC closures/low flows and SWSL’s 21

22 The attached spreadsheet was compiled in 1996 for a similar project and 23 contains the same data. Ecology has received letters from WDFW relating to 24 water right applications after 1996. As those applications are processed in the 25 future, the information provided by WDFW will be used when making the 26 decision. The letters received after 1996 have not been complied and have not 27 been added to the spreadsheet. 28

29 The WAC information is included in the spreadsheet to provide a complete 30 picture of available information, and because some basins with Instream Flows 31 and Closures set by Regulation had SWSL recommendations prior to the WAC. 32

33 Surface Water Source Limitations (SWSL) 34

35 The process of determination of availability of water for surface water right 36 applications includes the incorporation of recommendations of the Departments 37 of Fisheries and Game, now the Washington Department of Fish and Wildlife 38 (WDFW). These recommendations regard the quantitative and migratory needs 39 of both resident and anadromous fish and the need for sufficient water flow in the 40 streams and rivers of the state. 41

42


As a means of preserving aquatic life, WDFW can request of the Department of 1 Water Resources, now Ecology’s Water Resource Program, that certain streams 2 have flow restrictions placed on them, or that the application be denied. These 3 restrictions, if the permit is issued, become provisions of the water right permit. 4 An example of such a provision is that all diversion shall cease when the flow of 5 the stream recedes below a specified minimum rate as measured at a particular 6 location. 7

8 The letter of recommendation and the water right provision that limits use to meet 9 the needs of the stream are included in the official documents that support the 10 issuance of these water rights. The term used for these provisioned water rights 11 is Surface Water Source Limitation or SWSL. 12

13 The following is a copy of the Revised Code of Washington (RCW) that grants 14 authority to these departments: 15

16 RCW 77.55.050 17

18 Review of permit applications to divert or store water Water 19 flow policy. 20 It is the policy of this state that a flow of water sufficient to support 21 game fish and food fish populations be maintained at all times in 22 the streams of this state. 23

24 The director of ecology shall give the director [of WDFW] notice of 25

each application for a permit to divert or store water. The director 26

[of WDFW] has thirty days after receiving the notice to state his or 27

her objections to the application. The permit shall not be issued 28

until the thirtyday period has elapsed. 29

30 The director of ecology may refuse to issue a permit if, in the 31 opinion of the director [of WDFW], issuing the permit might result in 32 lowering the flow of water in a stream below the flow necessary to 33 adequately support food fish and game fish populations in the 34 stream. 35

36 The provisions of this section shall in no way affect existing water 37 rights. 38

39 The following map shows the location and the number of SWSL provisioned 40 water rights in the State totaled by WRIA, and the WRIA’s in the State with 41


Instream Flows and Closures set by Regulation. This map can be used in 1 conjunction with the attached spreadsheet 2

3 4 5

6 7 8 9 10 11 12 13 14 15 16 17 18


1


1 2

Table of SWSLs 3 4

Regio n

County WRIA Surface Water Source Name

ID# Trib to: Source WAC WAC Restriction

WDFW Recomme

nded SWSL

Comment or Description

Location Section Township Range

Date 1 SWSL or WAC

Date 2 SWSL or WAC

North west Regio nal Office 1 Whatcom 1 Anderson Creek 0011 Nooksack Station WDOE 210900 173501 Partially closed Closed 5/1 to

10/31 193904E 3/8/67 12/4/85

1 Whatcom 1 Barrett Lake 0021 Tenmile Creek Includes tributaries 173501 closed 11/8/78 12/4/95 1 Whatcom 1 Bells Creek 0684 Nooksack, N. Fork 173501 closed 12/4/85 1 Whatcom 1 Bertrand Creek 0031 Nooksack River Station WDOE 212400 173501 closed Closed year

round 264002E 12/24/46 12/4/85

1 Whatcom 1 Black Slough 0038 Nooksack River, S. Fork 173501 Low flow 6/17/54 12/4/85 1 Whatcom 1 California Creek 0059 Drayton Harbor Station WDOE 213400 173501 Closed Closed year

round 214001E 1/5/50 12/4/85

1 Whatcom 1 Canyon Creek 0685 Nooksack River, N. Fork Station WDOE 204500 173501 Partially closed Closed 7/1 to 10/31

354006E 12/4/85

1 Whatcom 1 Canyon Creek 0686 Nooksack River, M. Fork Station # 12208500 173501 Partially closed Closed 7/1 to 10/31

273905E 12/4/85

1 Whatcom 1 Chuckanut Creek 0093 Chuckanut Bay 173501 Closed Natural Flow, Closed year round

7/3/47 12/4/85

1 Whatcom 1 Colony Creek 0687 Samish Bay Including Whitehall 173501 Closed Natural flow 12/4/85 1 Whatcom 1 Cornell Creek 0688 Nooksack River, N. Fork Station WDOE 205700 173501 Partially Closed Closed 7/1/ to

10/31 013906E 12/4/85

1 Whatcom 1 Dakota Creek 0139 Drayton Harbor Station 12214000 173501 Closed Closed year round

094001E 4/13/53 12/4/85


1 Whatcom 1 Deer Creek 0149 Barrett Lake Station WDOE 213050 173501 Closed Closed year round

283902E 11/8/78 12/4/85

1 Whatcom 1 Fishtrap Creek 0190 Nooksack River Includes tributaries, Station 12212000

173501 Closed Closed year round

164003E 5/9/52 12/4/85

1 Whatcom 1 Fourmile Creek 0197 Tenmile Creek Includes Green Lake 173501 Closed Closed year round

10/22/45 12/4/85

1 Whatcom 1 Gallop Creek 0689 Nooksack River, N. Fork Station WDOE 205600 173501 Partially closed Closed 7/1 to 10/31

073907E 12/4/85

1 Whatcom 1 Green Lake 0709 Fourmile Creek 173501 Closed 12/4/85 1 Whatcom 1 Hutchinson Creek 0690 Nooksack River, S. Fork Station WDOE 210100 173501 Partially Closed Closed 7/1 to

10/31 363805E 12/4/85

1 Whatcom 1 Johnson Creek 0691 Sumas River Station WDOE 214900 173501 Closed 354104E 12/4/85

1 Whatcom 1 Kamm Ditch 0264 Nooksack River 173501 Closed Natural flow, Closed year round

9/2/53 12/4/85

1 Whatcom 1 Kendell Creek 0692 Nooksack River, N. Fork Station 12206500 173501 Closed 033905E 12/4/85 1 Whatcom 1 Lake Terrell 0282 Terrell Creek 173501 Closed 5/3/68 12/4/85 1 Whatcom 1 Lake Whatcom 0710 Whatcom Creek Include tributaries 173501 Closed Court ordered

lake level 12/4/85

1 Whatcom 1 Lummi Indian 0445 All streams on the Lummi Indian Reservation

173501 Closed 12/4/85

1 Whatcom 1 Maple Creek 0693 Nooksack, N. Fork Station WDOE 205900 173501 Closed Closed 7/1 to 10/31

304006E 12/4/85

1 Whatcom 1 Nooksack River 0694 Bellingham Bay Mainstem Deming stn 12210500, Ferndale Stn 12213100

173501 Minimum Flow Check WAC for Minimum Flow

313905E 293902E

12/4/85

1 Whatcom 1 Nooksack River, M. Fork

0381 Nooksack River, N. Fork Station 12208000 173501 Minimum Flow See WAC for flow requirements

133805E 12/4/85

1 Whatcom 1 Nooksack River, N. Fork

0382 Nooksack River Gaging sta. 122072 173501 Partially Closed Closed 9/1 to 10/31

103905E 9/5/74 12/4/85


1 Whatcom/ Skagit

1 Nooksack River, S. Fork

0695 Nooksack River Station 12209000 173501 Partially Closed Closed 7/1 to 10/31

193805E 12/4/85

1 Whatcom 1 Oyster Creek 0696 Samish Bay 173501 Closed Natural Flow 12/4/85 1 Whatcom 1 Padden Creek 0697 Bellingham Bay 173501 Closed Natural Flow 12/4/85 1 Whatcom 1 Porter Creek 0698 Nooksack River, M. Fork Station WDOE 208400 173501 Partially Closed Closed 7/1 to

10/1 113805E 12/4/85

1 Whatcom 1 Racehorse Creek 0699 Nooksack River, N. Fork Station WDOE 207100 173501 Partially Closed Closed 7/1 to 10/31

113905E 12/4/85

1 Whatcom 1 Saar Creek 0700 Vedder Canal/Fraser River

Station 12215500 173501 Closed 314105E 12/4/85

1 Whatcom 1 Saxon Creek 0701 Nooksack River, S. Fork 173501 Closed 12/4/85 1 Whatcom 1 Silver Creek 0702 Nooksack River Station WDOE 213200 173501 Partially Closed Closed 5/1 to

10/31 043802E 12/4/85

1 Whatcom 1 Skookum Creek 0477 Nooksack River, S. Fork Station 12209500 173501 Partially Closed Closed 7/1 to 10/31

273705E 8/25/71 12/4/85

1 Whatcom 1 Smith Creek 0703 Nooksack River Station WDOE 211100 173501 Partially Closed Closed 5/1 to 10/31

223904E 12/4/85

1 Whatcom 1 Squalicum 0491 Bellingham Bay Includes Squalicum Lake 173501 Closed Closed year round

5/28/45 12/4/85

1 Whatcom 1 Sumas River 0502 Vedder Canal/Fraser River

Includes tributaries, Station 12214500


024104E 9/16/47 12/4/85

1 Whatcom 1 Tenmile Creek 0513 Nooksack River Includes Barrett Lake, Station 12212900


134001E 11/8/78 12/4/85

1 Whatcom 1 Terrell Creek 0704 Birch Bay Station WDOE 213300 173501 Partially Closed Closed 5/1 to 10/31

314001E 12/4/85

1 Whatcom 1 Thompson Creek 0705 Glacier Creek, N. Fork 173501 Partially Closed Closed 7/1 to 10/31

12/4/85

1 Whatcom 1 Unnamed Stream 0562 Nooksack River 173501 Low Flow 12/17/51 2/9/54 1 Whatcom 1 Unnamed Stream 0706 Nooksack River 173501 Low Flow 12/4/85 1 Whatcom 1 Unnamed Stream 0561 Colony Creek 173501 Closed 7/10/74 12/4/85 1 Whatcom 1 Unnamed Stream 0639 Low Flow 314003E


1 Whatcom 1 Whatcom Creek 0707 Bellingham Bay 173501 Closed Natural Flow, Closed No Exemptions

12/4/85

1 Whatcom 1 Wiser Lake 0667 Nooksack River 173501 Closed 12/17/51 12/4/85 1 Whatcom 1 Wiser Lake Creek 0708 Nooksack River Station WDOE 212600 173501 Partially Closed Closed 5/1 to

10/31 023902E 12/4/85

1 San Juan 2 Egg Lake 0177 Lake level 11/29/59 1 San Juan 2 Killebrew Lake 0269 Unnamed Stream Denial 143602W 5/31/68

1 San Juan 2 Sportsman Lake 0487 Unnamed outlet stream Denial 333603W 5/11/51

1 Skagit/Sno homish

3 Carpenter Creek 0068 Tom Moore Slough Low Flow 4/11/75

1 Skagit 3 Cool Creek 0122 Skagit River Low Flow 5/9/56 1 Skagit/Wh

atcom 3 Friday Creek 0202 Samish River Denial 183604E 8/20/44

1 Skagit 3 Jones Creek 0259 Skagit River Low Flow 5 cfs 093606E 11/20/50 1 Skagit 3 Lake Erie 0279 Unnamed outlet Denial 10/9/57 1 Skagit 3 Nookachamps

Creek 0380 Skagit River Denial 043404E 11/13/44 4/15/92

1 Skagit/Wh atcom

3 Samish River 0443 Samish Bay Low Flow 25 cfs 063504E 11/13/44 12/6/57

1 Skagit 4 Diosbud Creek 0160 Skagit River Denial 321611E 9/28/61 1 Skagit 4 Grandy Creek 0215 Skagit River Low Flow 6 cfs 153507E 12/6/49 1 Skagit 4 Unnamed Stream 0563 Sauk River Low Flow 1 cfs 023409E 0/29/54 1 Snohomis

h 5 Canyon Creek 0065 Stillaguamish, S. Fork Denial 123006E 2/11/46

1 Snohomis h

5 Cummings Lake 0063 Lake level 372' above MSL 313104E 2/11/46 3/8/65

1 Snohomis h

5 Jorgenson Slough 0260 Stillaguamish River Includes Church Creek Low Flow 303204E 6/1/49 4/11/75

1 Skagit 5 Pilchuck Creek 0409 Stillaguamish River Denial 313205E 6/31/56 1 Snohomis

h 5 Portage Creek 0413 South Slough Denial 123104E 8/3/48 5/15/61

1 Snohomis h

5 Unnamed Stream 0564 Jim Creek Low Flow 1 cfs 093106E 1/20/56

1 Snohomis h

5 Unnamed Stream 0565 Church Creek Denial 213204E 4/11/75


1 Snohomis h

5 Unnamed Stream 0566 Stillaguamish, N. Fork Low Flow 1/2 Flow 173207E 1/31/56

1 Snohomis h

5 Unnamed Stream 0596 Portage Creek Denial 8/3/48 5/15/61

1 Island 6 Unnamed Stream 0567 Skagit Bay Low Flow 1/2 Flow 223302E 10/24/52 1 Snohomis

h 7 Evans Creek 0183 Lake Beecher See WAC 173507030

for specific point of measurement

173507 Low Flow No diversion when flow drops below 2.0 cfs

072706E 6/12/51 9/6/79

1 Snohomis h

7 Foye Creek 0448 Riley Slough See WAC 173507030 for specific point of measurement


182706E 6/10/75 9/6/79

1 Snohomis h

7 French Creek 0200 Snohomish River See WAC 173507030 for specific point of measurement


202806E 9/6/79

1 King 7 Griffin Creek 0219 Snoqualmie River 173507 Closed Closed year round

9/22/53 9/6/79

1 King 7 Harris Creek 0227 Snoqualmie River 173507 Closed Closed year round

1/20/44 9/6/79

1 King 7 Langlois Creek 0283 Tolt River See WAC 173507030 for specific point of measurement


222507E 9/6/79

1 Snohomis h

7 Little Pilchuck River

0300 Pilchuck Creek 173507 Closed Closed year round

5/6/52 9/6/79

1 Snohomis h

7 May Creek 0326 Wallace River 173507 Closed Closed year round

10/13/53 9/6/79

1 King 7 Patterson Creek 0404 Snoqualmie River 173507 Closed Closed year round

2/19/51 9/6/79

1 Snohomis h

7 Pilchuck River 0409 Stillaguamish River From mouth to headwaters, station 12 155400

173507 Instream Flow See WAC 173 507020 for instream flow requirements

182806E 9/6/79

1 Snohomis h

7 Quilceda Creek 0417 Ebey Slough 173507 Closed Closed year round

6/10/46 9/6/79

1 King 7 Raging River 0420 Snoqualmie River 173507 Closed Closed year round

9/20/51 9/6/79


1 Snohomis h

7 Skykomish River 0713 Snohomish River From mouth to headwaters, station 12 141100


122706E 9/6/79

1 King 7 Skykomish River, S. Fork

0711 Skykomish River, N. Fork

From confluence with N. Fork to headwater, Station 12133000


282710E 9/6/79

1 Snohomis h

7 Snohomish River 0717 Possession Sound Station 12150800 173507 Instream Flow See WAC 173 507020 for instream flow requirements

162706E 9/6/79

1 King 7 Snoqualmie River 0715 Snohomish River From Snoqualmie Falls to headwaters, Station 12 144500, From confluence with Harris Creek to falls, Stn 12149000, From mouth to confluence with Harris Creek, Station 12


192408E 092507E 262706E

9/6/79

1 King 7 Snoqualmie River, N. Fork

0714 Snoqualmie River From mouth to headwaters, Station 12 143000


262408E 9/6/79

1 Snohomis h

7 Sultan River 0712 Skykomish River From mouth to headwaters, Station 12 138150


172808E 9/6/79

1 King 7 Tate Creek 0510 Snoqualmie River, N. Fork

See WAC 173507030 for specific point of measurement

173507 Low Flow No diversion when flow drops below 2 cfs

262408E 9/30/38 9/6/79

1 King 7 Tolt River 0716 Snoqualmie River From mouth to headwaters, Station 12 148500


312608E 9/6/79


1 Snohomis h

7 Tulalip Creek 0718 Tulalip Bay See WAC 173507030 for specific point of measurement


223004E 9/6/79

1 King 7 Unnamed Lake 0551 Horseshoe Lake See WAC 173507030 for specific point of measurement

173507 Low Flow No diversion when lake outlet flow drops below 1.0 cfs

092507E 12/17/15 9/6/79

1 Snohomis h

7 Unnamed Stream 0719 Snoqualmie River See WAC 173507030 for specific point of measurement


052708E 9/6/79

1 Snohomis h

7 Unnamed Stream 0568 Pilchuck River 173507 Closed Closed year round

9/6/51 9/6/79

1 Snohomis h

7 Unnamed Stream 0569 Pilchuck River See WAC 173507030 for specific point of measurement

173507 Low Flow No diversion flow below 1.0 cfs, 1/2 low flow bypass

193007E 12/17/51 9/6/79

1 King 7 Unnamed Stream 0570 Snoqualmie River See WAC 173507030 for specific point of measurement


122506E 4/25/46 9/6/79

1 King 7 Unnamed Stream 0571 Cherry Creek See WAC 173507030 for specific point of measurement


162607E 11/17/55 9/6/79

1 Snohomis h

7 Unnamed Stream 0572 McCoy Creek See WAC 173507030 for specific point of measurement


052708E 7/14/52 9/6/79

1 King 7 Unnamed Stream 0573 Snoqualmie River, M. Fork

173507 Low Flow 342408E

1 King 7 Unnamed Stream 0574 Snoqualmie River See WAC 173507030 for specific point of measurement


282507E 9/6/79

1 Snohomis h

7 Wood Creek 0671 Snohomish River See WAC 173507030 for specific point of measurement


082805E 2/11/53 9/6/79


1 Snohomis h

7 Woods Creek 0673 Skykomish River See WAC 173507030 for specific point of measurement

173507 Low Flow Low flow varies with creek segments, see WAC

4/5/50 9/6/79

1 Snohomis h

7 Woods Creek, W. Fork

0674 Skykomish River See WAC 173507030 for specific point of measurement

173507 Low Flow Low flow requirements vary with creek segments, see WAC

4/5/50 9/6/79

1 King/Snoh omish

8 Bear Creek 0022 Samamish River 173508 Closed 10/26/55 9/6/79

1 King 8 Bear Creek 0052 Cottage Lake Creek 173508 Closed 9/6/79 1 King 8 Cedar River 0074 Lake Washington Including all tributaries,

Station 12119000 173508 Instream Flow See WAC 173

508060 for specific flow requirements

8/17/71 9/6/79

1 King 8 Coal Creek 0103 Lake Washington 173508 Closed 2/25/52 9/6/79 1 King/Snoh

omish 8 Cottage Lake

Creek 0126 Sammamish River Including all tributaries 173508 Closed 5/19/41 9/6/79

1 King 8 Evans Creek 0720 Cottage Lake Creek 173508 Closed 9/6/79 1 King 8 Haller Lake 0224 Thornton Creek 173508 Closed 3/5/77 9/6/79 1 King 8 Issaquah Creek 0247 Sammamish Lake Including all tributaries 173508 Closed 2/17/50 9/6/79

1 King 8 Lake Sammamish 0722 Sammamish River Includes tributaries 173508 Closed 9/6/79 1 King 8 Lake Washington 0388 Lake Washington Ship

Canal Includes all of the drainage basin above Chittenden Locks

173508 Closed 9/6/79

1 King 8 Larson Lake 0284 Lake Washington Includes tributaries 173508 Closed 3/29/54 9/6/79 1 King/Snoh

omish 8 Lyon Creek 0319 Lake Washington 173508 Closed 9/9/45 9/6/79

1 Snohomis h

8 Martha Lake 0723 Swamp Creek 173508 Closed 9/6/79

1 King 8 May Creek 0327 Lake Washington 173508 Closed 12/27/49 9/6/79 1 King/Snoh

omish 8 McAleer Creek 0328 Lake Washington Includes Ballinger Lake

(McAleer Lake) 173508 Closed 4/8/47 9/6/79

1 King 8 Mercer Slough 0336 East Channel Includes tributaries 173508 Closed 2/20/46 9/6/79 1 King/Snoh 8 North Creek 0383 Sammamish River Includes Silver Lake 173508 Closed 2/6/67 9/6/79


omish 1 Snohomis

h 8 North Creek 0383 Includes Silver Lake Closed No domestic 2/6/67

1 King 8 Pipers Creek 0724 Puget Sound 173508 Closed 9/6/79 1 King 8 Rock Creek 0426 Cedar River 173508 Closed 1/5/53 9/6/79 1 King 8 Sammamish River 0721 Lake Washington 173508 Closed 9/6/79 1 King 8 Swamp Creek 0505 Sammamish River 173508 Closed 10/8/47 9/6/79 1 King 8 Thornton Creek 0521 Lake Washington 173508 Closed 3/5/57 9/6/79 1 King 8 Unnamed Springs 0557 Sammamish Lake 173508 Closed 6/12/56 9/6/79 1 King 8 Unnamed Stream 0725 Sammamish Lake 173508 Closed 9/6/79 1 King 8 Unnamed Stream 0726 Cedar River 173508 Closed 9/6/79 1 King 8 Unnamed Stream 0575 Puget Sound 173508 Closed 9/6/79 1 King 8 Unnamed Stream 0576 Juanita Bay 173508 Closed 10/29/52 9/6/79 1 King 8 Unnamed Stream 0577 Yarrow Bay 173508 Closed 9/6/79 1 King 8 Unnamed Stream 0578 Sammamish River 173508 Closed 9/6/79 1 King 9 Angle Lake 0728 173509 Lake level See WAC 173

509040 6/6/80

1 King 9 Deep Creek 0145 Deep Lake Includes Hyde Lake 173509 Closed Closed year round

182107E 4/17/53 6/6/80

1 King 9 Green River 0218 Duamish River Station 12106700, Station 12113000

173509 Instream Flow See WAC 173 509030 for specific instream requirements

132107E 172105E

8/19/53 6/6/80

1 King 9 Green River, Tributaries

0727 Green River All tributaries of the Green River

173509 Closed Closed all year 6/6/80

1 King 9 Lake Sawyer 0730 Covington Creek 173509 Lake level See WAC 173 509040

6/6/80

1 King 9 Star Lake 0729 173509 Lake level See WAC 173 509040

6/6/80

1 King 9 Unnamed Stream 0579 Poverty Bay 173509 Low Flow 052104E 7/31/39 6/10/75 1 King 9 Unnamed Stream 0580 Puget Sound 173509 Closed Closed year

round 082204E 8/22/52 6/6/80

1 King 9 Unnamed Stream 0581 Black River 173509 Closed Closed year round

062205E 10/18/51 6/6/80

1 King 9 Unnamed Stream 0582 Puget Sound 173509 Closed Closed year round

362303E 1/7/46 6/6/80

1 King 9 Unnamed Stream 0583 Black River 173509 Closed Closed year round

132304E 4/1/46 6/6/80

1 King 10 Boise Creek 0046 White River Closed 3/10/54 5/2/72


1 King 10 Hylebos Creek 0243 Commencement Bay Includes all tributaries 173510 Closed Closed year round

272103E 4/26/76 3/21/80

1 King 10 Milwaukee Ditch 0350 White River Low Flow 9/23/53 4/16/52 1 King 10 North Lake 0735 173510 Closed Closed year

round 152104E 3/21/80

1 King 10 Unnamed Stream 0598 Puyallup River Partially closed Domestic only 251904E 8/18/46 3/7/50

1 King 10 White River 0656 Puyallup River Includes all tributaries 173510 Closed Closed year round

232004E 5/12/47 3/21/80

1 Kitsap 15 Anderson Creek 0786 Hood Canal 173515 Instream Flow See WAC 173 515030 for flow requirements

172402W 7/24/81

1 Kitsap 15 Anderson Creek 0799 Hood Canal Includes all tributaries 173515 Instream Flow Closed 6/1 to 10/31, See WAC 173515030 for flow

132501W 7/24/81

1 Kitsap 15 Anderson Creek 0821 Sinclair Inlet Includes all tributaries 173515 Closed Closed year round

332401E 7/24/81

1 Kitsap 15 Barker Creek 0019 Dyes Inlet Includes all tributaries 173515 Closed Closed year round

222501E 7/6/46 7/24/81

1 Kitsap 15 Beaver Creek 0823 Rich Passage Includes all tributaries 173515 Closed Closed year round

162402E 7/24/81

1 Kitsap 15 Big Beef Creek 0788 Hood Canal Includes all tributaries, Station 12069550

173515 Instream Flow Closed 5/15 to 10/31, See WAC 173515030 for flow

222501W 7/24/81

1 Kitsap 15 Blackjack Creek 0039 Sinclair Inlet Includes tributaries 173515 Closed Closed year round

252401E 8/9/45 7/24/81

1 Kitsap 15 Burley Creek 0057 Burley Lagoon Includes tributaries 173515 Closed Closed year round

122201E 1/20/48 7/24/81

1 Kitsap 15 Chico Creek 0089 Chico Bay Includes all tributaries except Wildcat Lake


052401E 11/3/52 7/24/81


1 Kitsap 15 Clear Creek 0097 Dyes Inlet Includes all tributaries 173515 Closed Closed year round

162501E 4/24/50 7/24/81

1 Kitsap 15 Coulter Creek 0798 North Bay 173515 Instream Flow See WAC 173 515030 for flow requirements

092201W 7/24/81

1 Kitsap 15 Cowling Creek 0816 Miller Bay Includes all tributaries 173515 Closed Closed year round

162602E 7/24/81

1 Kitsap 15 Curley Creek 0792 Yukon Harbor Includes all tributaries 173515 Instream Flow Closed 6/15 to 10/15, See WAC 173515030 for flows

042302E 7/24/81

1 Kitsap 15 Dewatto River 0156 Hood Canal Includes all tributaries, Station 12068500

173515 Instream Flow Closed 6/15 to 10/31, See WAC 173515030 for flows

232303W 7/24/81

1 Kitsap 15 Dickerson Creek 0158 Chico Creek Includes all tributaries 173515 Closed Closed year round

022401E 072401E 082401E

8/15/75 7/24/81

1 Kitsap 15 Gorst Creek 0791 Sinclair Inlet 173515 Instream Flow See WAC 173 515030 for flow requirements

322401E 7/24/81

1 Kitsap 15 Grover Creek 0789 Puget Sound Includes all tributaries 173515 Instream Flow Closed 6/1 to 10/15, See WAC 173515030 for flow

042602E 7/24/81

1 Kitsap 15 Harding Creek 0811 Hood Canal Includes all tributaries 173515 Closed Closed year round

092402W 7/24/81

1 King 15 Jod Creek 0254 Colvos Passage Includes all tributaries 173515 Closed Closed year round

142202E 11/7/58 7/24/81

1 Kitsap 15 Johnson Creek 0818 Liberty Bay Includes all tributaries 173515 Closed Closed year round

221601E 7/24/81


1 King 15 Judd Creek 0261 Quartermaster Harbor Includes all tributaries 173515 Closed Closed year round

182203E 5/10/51 7/24/81

1 Kitsap 15 Kitsap Creek 0270 Chico Creek Includes all tributaries 173515 Closed Closed year round

052401E 7/2/42 7/24/81

1 Kitsap 15 Minter Creek 0351 Henderson Bay Includes all tributaries 173515 Closed Closed year round

292201E 11/27/44 7/24/81

1 Kitsap 15 Mission Creek 0353 Hood Canal Includes all tributaries 173515 Closed Closed year round

012202W 1/12/51 7/24/81

1 Kitsap 15 Mission Lake 0356 Mission Creek Includes all tributaries 173515 Closed Closed year round

322401W 7/19/78 7/24/81

1 Kitsap 15 Mosher Creek 0820 Dyes Inlet Includes all tributaries 173515 Closed Closed year round

342501E 7/24/81

1 King 15 Needle Creek 0830 Colvos Passage Includes all tributaries 173515 Closed Closed year round

132303E 7/24/81

1 Kitsap 15 Olalla Creek 0793 Colvos Passage Includes all tributaries 173515 Instream Flow Closed 6/1 to 10/15, See WAC 173515030 for flows

042202E 7/24/81

1 Kitsap 15 Purdy Creek 0795 Henderson Bay Includes all tributaries, Station 12072800


242201E 7/24/81

1 Kitsap 15 Rocky Creek 0797 Case Inlet Includes all tributaries 173515 Instream Flow Closed 6/1 to 10/31, See WAC 173515030 for flows

272201W 7/24/81

1 Kitsap 15 Ross Creek 0822 Sinclair Inlet Includes all tributaries 173515 Closed Closed year round

272401E 7/24/81

1 Kitsap 15 Salmonberry Creek

0440 Long Lake Includes all tributaries 173515 Closed Closed year round

182302E 1/7/48 7/24/81

1 Kitsap 15 Scandia Creek 0819 Liberty Bay Includes all tributaries 173515 Closed Closed year round

272601E 7/24/81


1 Kitsap 15 Seabeck Creek 0459 Seabeck Bay Includes all tributaries 173515 Closed Closed year round

202501W 8/27/54 7/24/81

1 Kitsap 15 Stavis Creek 0787 Hood Canal Station 12069500 173515 Instream Flow See WAC 173 515030 for flow requirements

252502W 7/24/81

1 Kitsap 15 Steel Creek 0591 Burke Bay (Port Orchard)

Includes all tributaries 173515 Instream Flow Closed 6/1 to 10/15, See WAC 173515030 for flows

142501E 10/26/54 9/12/60

1 Kitsap 15 Tahuya River 0784 Hood Canal Includes all tributaries, Station 12068000


122203W 222203W

7/24/81

1 Kitsap 15 Thompson Creek 0817 Port Orchard Includes all tributaries 173515 Closed Closed year round

292602E 7/24/81

1 Kitsap 15 Union River 0549 Lynch Cove (Hood Canal)

Includes all tributaries, Station 12063500

173515 Instream Flow Closed up to McKenna Falls, See 173515030 for flows

202301W 292301W

6/7/57 7/24/81

1 Kitsap 15 Unnamed Stream 0810 Sinclair Inlet Includes all tributaries 173515 Closed Closed year round

192402E 5/9/75 7/24/81

1 Kitsap 15 Unnamed Stream 0812 Port Gamble Includes all tributaries 173515 Closed Closed year round

052702E 7/24/81

1 Kitsap 15 Unnamed Stream 0813 Apple Tree Cove Includes all tributaries 173515 Closed Closed year round

262702E 7/24/81

1 Kitsap 15 Unnamed Stream 0814 Apple Tree Cove Includes all tributaries 173515 Closed Closed year round

362702E 7/24/81

1 Kitsap 15 Unnamed Stream 0815 Puget Sound Includes all tributaries 173515 Closed Closed year round

092602E 7/24/81

1 Kitsap 15 Unnamed Stream 0828 Murden Cove Includes all tributaries 173515 Closed Closed year round

152502E 7/24/81


1 Kitsap 15 Unnamed Stream 0829 Fletcher Bay Includes all tributaries 173515 Closed Closed year round

202502E 7/24/81

1 Kitsap 15 Unnamed Stream 0584 Carpenter Lake ND Low Flow 272702E 1 Kitsap 15 Unnamed Stream 0586 Dyes Inlet Includes all tributaries 173515 Instream Flow Closed 6/1 to

10/31, See WAC 173515030 for flows

202501E 9/2/49 7/24/81

1 Kitsap 15 Unnamed Stream 0587 Liberty Bay Includes all tributaries 173515 Closed Closed year round

152601E 5/11/50 7/24/81

1 King 15 Unnamed Stream 0588 Quartermaster Harbor Includes all tributaries 173515 Closed Closed year round

192203E 3/19/52 7/24/81

1 Kitsap 15 Unnamed Stream 0589 Port Gamble Includes all tributaries 173515 Closed Closed year round

202702E 5/31/46 7/24/81

1 Kitsap 15 Unnamed Stream 0590 Liberty Bay Low Flow 272601E 10/27/52 8/26/74 1 Kitsap 15 Unnamed Stream 0592 Kitsap Lake Includes all tributaries 173515 Closed Closed year

round 172401E 12/8/52 7/24/81

1 Kitsap 15 Unnamed Stream 0593 Olalla Lake Low Flow 322302E 1 Kitsap 15 Unnamed Stream 0594 Port Orchard Low Flow 182402E 5/9/75 1 Kitsap 15 Unnamed Stream 0595 Kitsap Lake Lake level 202401E 12/8/52 South west Regio nal Office Regio n



WDFW Recomme

nded SWSL



Date 1 SWSL or WAC

Date 2 SWSL or WAC

2 Pierce 10 Canyon Falls Creek

0738 Puyallup River Includes all tributaries 173510 Closed Closed year round

071905E 3/21/80

2 Pierce 10 Carbon River 0732 Puyallup River Includes all tributaries, Station 12095700

173510 Instream Flow See WAC 173 510030 for specific flow requirements

131905E 3/21/80


2 Pierce 10 Clarks Creek 0095 Puyallup River Includes all tributaries 173510 Closed Closed year round

192004E 11/14/44 3/21/80

2 Pierce 10 Clear Creek 0098 Puyallup River Includes all tributaries 173510 Closed Closed year round

112003E 6/15/54 3/21/80

2 Pierce 10 Fennel Creek 0186 Puyallup River 173510 Closed Closed year round

061905E 10/29/52 3/21/80

2 Pierce 10 Fiske Creek 0739 Puyallup River Includes all tributaries 173510 Closed Closed year round

171805E 3/21/80

2 Pierce 10 Hylebos Creek 0243 Commencement Bay Includes all tributaries 173510 Closed Closed year round

272103E 4/2/52 3/21/80

2 Pierce 10 Kapowsin Creek 0265 Puyallup River Includes all tributaries 173510 Closed Closed year round

201805E 5/16/46 3/21/80

2 Pierce 10 Kapowsin Lake 0736 173510 Closed Closed year round

051705E 3/21/80

2 Pierce 10 Kellogg Creek 0742 Puyallup River Includes all tributaries 173510 Closed Closed year round

281706E 3/21/80

2 Pierce 10 Lawrence Creek 0598 Puyallup River 173510 Closed Closed year round

251904E 8/18/46 3/21/80

2 Pierce 10 Le Dout Creek 0740 Puyallup River Includes all tributaries 173510 Closed Closed year round

281706E 3/21/80

2 Pierce 10 Milwaukee Ditch 0350 White River Low Flow 9/23/53 4/16/52 2 Pierce 10 Niesson Creek 0741 Puyallup River Includes all tributaries 173510 Closed Closed year

round 331706E 3/21/80

2 Pierce 10 Ohop Creek 0737 Kapowsin Lake Includes all tributaries 173510 Closed Closed year round

181703E 3/21/80

2 Pierce 10 Puyallup River 0731 Commencement Bay From confluence with White River to headwaters, Station 12 Lower portion to confluence with White River, Station 12101500

173510 Instream Flow See WAC 173 510030 for specific flow requirements

252004E 202004E

3/21/80

2 Pierce 10 Ski Ketor Creek 0600 South Prairie Creek Low Flow 171906E 11/28/55


2 Pierce 10 South Prairie Creek

0485 Carbon River Includes all tributaries 173510 Closed Closed year round

271905E 3/26/74 3/21/80

2 Pierce 10 Unnamed Stream 0734 Puyallup River 173510 Closed Closed year round

352004E 3/21/80

2 Pierce 10 Unnamed Stream 0733 Puyallup River 173510 Low Flow No diversion when flow falls to 0.1 cfs

031805E 3/21/80

2 Pierce 10 Unnamed Stream 0597 Puyallup River 173510 Low Flow No diversion when flow falls to 0.1 cfs

242003E 5/25/53 3/21/80

2 Pierce 10 Unnamed Stream 0599 White River Includes all tributaries 173510 Closed Closed year round

132004E 12/5/52 3/21/80

2 Pierce 10 Unnamed Stream 0601 Carbon River 173510 Low Flow No diversion when flow falls to 0.1 cfs

331905E 2/20/52 3/21/80

2 Pierce 10 Unnamed Stream 0602 Puyallup River 173510 Low Flow No diversion when flow falls to 0.1 cfs at discharge to Puyallup

302005E 10/22/58 3/21/80

2 Pierce 10 Voight Creek 0643 Carbon River 173510 Closed Closed year round

9/18/45 3/21/80

2 Pierce 10 Wapato Creek 0648 Port Industrial Waterway Includes all tributaries 173510 Closed Closed year round

272103E 8/31/64 3/21/80

2 Pierce 10 White River 0656 Puyallup River includes all tributaries 173510 Closed 12204E 5/12/47 12/9/74

2 Pierce 10 Wilkeson Creek 0662 South Prairie Creek Low Flow 27196E 7/22/63 2 Thurston 11 Clear Creek 0745 Nisqually River Includes all tributaries 173511 Paritally Closed Closed 4/1 to

10/31 211801E 2/2/81

2 Thurston 11 Eaton Creek 0176 Lake St. Clair 173511 Closed Closed year round

061701E 12/1/53 2/2/81

2 Pierce 11 Harts Lake 0228 Nisqually River Includes outlet streams 173511 Low Flow 0.5 cfs bypass 011602E 10/7/44 2/2/81

2 Pierce 11 Horn Creek 0238 Nisqually River 173511 Closed Closed year round

011602E 7/22/74 2/2/81

2 Thurston 11 Lackamas Creek 0275 Nisqually River Includes all tributaries 173511 Partially Closed Closed 4/1 to 11/30

131602E 2/5/73 2/2/81

2 Thurston 11 Lake Saint Clair 0748 Nisqually River 173511 Closed Closed year 061701E 2/2/81


round 2 Pierce 11 Little Mashel River 0299 Mashel River Low Flow 11/15/49 2 Pierce 11 Mashel River 0324 Nisqually River Includes all tributaries 173511 Instream Flow Closed 6/1 to

10/31, See WAC 173511030 for flows

111604E 11/19/46 2/2/81

2 Thurston 11 McAllister Creek 0747 Puget Sound Includes all tributaries except Medicine Creek


061801E 2/2/81

2 Pierce 11 Midway Creek 0342 Little Mashel River Denial 4/28/64 7/24/64 2 Pierce 11 Muck Creek 0361 Nisqually River Includes all tributaries 173511 Closed Closed all use 361801E 5/26/48 2/2/81

2 Pierce 11 Murray Creek 0749 Nisqually River 173511 Partially Closed Closed 4/1 to 11/30

161702E 2/2/81

2 Pierce/Thu rston

11 Nisqually River 0743 Nisqually Reach From Canal diversion to river mile 26.2, Station 12 088400 From Power Plant to canal diversion, Station 12089500 From River mile 26.2 to headwaters, Station 12 082500 To outlet of Power plant, Station 12*

173511 Instream Flow See WAC 173 511030, Closed 6/1 to 10/31

211603E 281702E 291506E 091801E

2/2/81

2 Pierce 11 Ohop Creek 0390 Nisqually River Includes all tributaries 173511 Closed Closed year round

251603E 2/15/52 2/2/81

2 Pierce 11 Ohop Lake 0750 Ohop Creek 173511 Lake level 101601E 2/2/81 2 Pierce 11 Red Salmon

Creek 0744 Nisqually River Includes all tributaries 173511 Paritally Closed Closed 6/1 to

10/31 331901E 2/2/81

2 Pierce 11 Tanwax Creek 0746 Nisqually River Includes all tributaries 173511 Partially Closed Closed 4/1 to 10/31

201603E 2/2/81


2 Thurston 11 Thompson Creek 0517 Nisqually River Includes all tributaries 173511 Low Flow 1.0 cfs bypass 111701E 4/16/57 2/2/81

2 Thurston 11 Toboton Creek 0525 Nisqually River Includes all tributaries 173511 Partially Closed Closed 4/1 to 11/30

191603E 1/19/48 2/2/81

2 Pierce 11 Unnamed Ditch 0550 Murray Creek Low Flow 121702E 4/5/51 2 Pierce 11 Unnamed Stream 0603 Alder Lake Includes all tributaries 173511 Closed Closed year

round 111504E 4/28/64 2/2/81

2 Thurston 11 Unnamed Stream 0604 Centralia Canal Includes all tributaries 173511 Low Flow 0.75 cfs bypass 171702E 11/19/51 2/2/81

2 Pierce 11 Unnamed Stream 0605 Nisqually River Includes all tributaries 173511 Low Flow 0.50 cfs bypass 271702E 12/6/50 2/2/81

2 Thurston 11 Yelm Creek 0682 Nisqually River Includes all tributaries 173511 Closed Closed year round

121701E 8/7/51 2/2/81

2 Pierce 12 American Lake 0762 Sequalitchew Lake 173512 Closed Closed year round

12/12/79

2 Pierce 12 Chambers Creek 0076 Chambers Bay Includes all tributaries 173512 Closed Closed year round

8/3/48 12/12/79

2 Pierce 12 Clover Creek 0101 Chambers Creek Includes all tributaries 173512 Closed Closed year round

8/21/53 12/12/79

2 Pierce 12 Clover Creek, N. Fork

0755 Clover Creek 173512 Closed Closed year round

12/12/79

2 Pierce 12 Flett Creek 0752 Chambers Creek 173512 Closed Closed year round

12/12/79

2 Pierce 12 Leach Creek 0751 Chambers Creek 173512 Closed Closed year round

12/12/79

2 Pierce 12 Morey Creek 0757 Clover Creek 173512 Closed Closed year round

12/12/79

2 Pierce 12 Murray Creek 0763 American Lake Includes all tributaries 173512 Closed Closed year round

12/12/79

2 Pierce 12 Pounce De Leon Creek

0754 Steilacoom Lake 173512 Closed Closed year round

12/12/79

2 Pierce 12 Sequalitchew Creek

0760 Puget Sound Includes all tributaries 173512 Closed Closed year round

12/12/79


2 Pierce 12 Sequalitchew Lake

0761 Sequalitchew Creek 173512 Closed Closed year round

12/12/79

2 Pierce 12 Spanaway Creek 0756 Clover Creek 173512 Closed Closed year round

12/12/79

2 Pierce 12 Spanaway Lake 0758 Spanaway Creek 173512 Closed Closed year round

12/12/79

2 Pierce 12 Steilacoom Lake 0753 Chambers Creek 173512 Closed Closed year round

12/12/79

2 Pierce 12 Tule Lake 0759 Spanaway Creek 173512 Closed Closed year round

12/12/79

2 Pierce 12 Unnamed Steam 0606 Titlow Lagoon Includes all tributaries 173512 Closed Closed year round

042002E 12/24/56 12/12/79

2 Lewis/Thur ston

13 Deschutes River 0155 Capitol Lake Above Deschutes Falls, includes all tributaries, From confluence with Capitol Lake to Deschutes Falls


101703E 261802W

7/6/54 6/24/80

2 Thurston 13 Hicks Lake 0766 Woodland Creek 173513 Closed Closed year round

271801W 6/24/80

2 Thurston 13 Long Lake 0764 Woodland Creek 173513 Closed Closed year round

221801W 6/24/80

2 Thurston 13 McLane Creek 0334 Eld Inlet Includes all tributaries 173513 Closed Closed year round

331802W 8/21/40 6/24/80

2 Thurston 13 Patterson Lake 0765 Woodland Creek 173513 Closed Closed year round

351801W 6/24/80

2 Thurston 13 Percival Creek 0408 Capitol Lake Includes Trosper/Black Lakes outlet


221802W 7/10/74 6/24/80

2 Thurston 13 Spurgeon Creek 0490 Deschutes River 173513 Closed 19171W 11/3/49 4/24/50 2 Thurston 13 Unnamed Springs 0558 Eld Inlet 173513 Low Flow 061802W 11/28/55

2 Thurston 13 Unnamed Stream 0607 Deschutes River 173513 Closed Closed year round

181701W 1/17/50


2 Thurston 13 Unnamed Stream 0608 McLane Creek 173513 Closed 191802W 4/6/64

2 Thurston 13 Unnamed Stream 0609 Deschutes River 173513 Closed 161601E 12/1/53 6/17/54 2 Thurston 13 Unnamed Stream 0610 Eld Inlet 173513 Low Flow 1.5 cfs 331902W 10/19/72 6/24/80

2 Thurston 13 Unnamed Stream 611 Gull Harbor 173513 Low Flow 1.0 cfs 251902W 3/25/55 6/24/80

2 Thurston 13 Unnamed Stream/Slought

0640 Deschutes River 173513 Closed 011702W 6/10/54

2 Thurston 13 Woodland Creek 0672 Henderson Inlet Includes all tributaries 173513 Closed Closed year round

191901W 1/22/51 6/24/80

2 Thurston 13 Woodland Creek 0675 Woodward Bay 173513 Closed Closed year round

191901W 8/24/49 6/24/80

2 Mason 14 Alderbrook Creek 0773 Hood Canal Includes all tributaries 173514 Partially closed Closed 5/1 to 10/31, Minimum flow equals natural flow

1/23/84

2 Mason 14 Campbell Creek 0774 Oakland Bay Includes all tributaries 173514 Partially closed Closed 5/1 to 10/31, Minimum flow equals natural flow

1/23/84

2 Mason 14 Cranberry Creek 0770 Oakland Bay Includes tributaries, Cranberry & Limerick Lakes


361203W 1/23/84

2 Mason 14 Deer Creek 0769 Oakland Bay Includes all tributaries, Station 12075000


201203W 1/23/84


2 Mason 14 Elson Creek 0775 Skookum Inlet Includes all tributaries 173514 Partially closed Closed 5/1 to 10/31, Minimum flow equals natural flow

1/23/84

2 Mason 14 Fawn Lake Outlet 0776 Skookum Inlet Includes all tributaries 173514 Partially closed Closed 5/1 to 10/31, Minimum flow equals natural flow

1/23/84

2 Mason 14 Goldsborough Creek

0210 Oakland Bay Includes tributaries, Station WDOE 077050


202003W 4/5/51 1/23/84

2 Mason 14 Gosnell Creek 0214 Isabella Lake 173514 Low Flow 10 cfs 4/22/57 1/23/84 2 Mason 14 Jarrell Creek 0249 Jarrell Cove 173514 Partially closed Closed 5/1 to

10/31 7/7/59 1/23/84

2 Mason 14 Johns Creek 0255 Oakland Bay Includes all tributaries, Station 12076000


032003W 7/24/53 1/23/84

2 Mason 14 Jones Creek 0777 Pickering Passage Includes all tributaries 173514 Partially closed Closed 5/1 to 10/31, Minimum flow equals natural flow

1/23/84

2 Mason 14 Kennedy Creek 0267 Totten Inlet Includes all tributaries, Station WDOE 078550


321903W 5/2/45 1/23/84

2 Mason 14 Little Creek 0778 Skookum Creek Includes all tributaries 173514 Partially closed Closed 5/1 to 10/31, Minimum flows equals natural flow

1/23/84


2 Mason 14 Melaney Creek 0779 Oakland Bay Includes all tributaries 173514 Partially closed Closed 5/1 to 10/31, Minimum flows equals natural flow

1/23/84

2 Mason 14 Mill Creek 0771 Hammersley Inlet Includes tributaries & Lake Isabella, Station WDOE 077550

173514 Instream Flow See WAC 173 514030 for flow requirements

252003W 1/23/84

2 Thurston 14 Perry Creek 0772 Eld Inlet Includes all tributaries, Station WDOE 078700


131803W 1/23/84

2 Mason/Th urston

14 Schneider Creek 0457 Totten Inlet 173514 Partially closed Closed 5/1 to 10/31, Minimum flows equals natural flow

5/4/53 1/23/84

2 Mason 14 Shelton Creek 0780 Oakland Bay Includes all tributaries 173514 Partially closed Closed 5/1 to 10/31, Minimum flows equals natural flow

1/23/84

2 Mason 14 Sherwood Creek 0768 Case Inlet Includes Mason Lake & all tributaries, Station WDOE


202201W 1/23/84

2 Mason 14 Shumocher Creek 0767 Mason Lake Includes all tributaries, Station 12074000


072102W 1/23/84

2 Mason 14 Skookum Creek 0349 Skookum Inlet Includes tributaries, Station 12078000


191903W 6/17/52 1/23/84

2 Thurston 14 Summit Lake 0783 Kennedy Creek 173514 Lake level year round 1/23/84


2 Mason 14 Twahnoh Creek 0781 Hood Canal Includes all tributaries 173514 Partially closed Closed 5/1 to 10/31, Minimum flow equals natural flow

1/23/84

2 Mason 14 Uncle John Creek 0782 Oakland Bay Includes all tributaries 173514 Partially closed Closed 5/1 to 10/31, Minimum flow equals natural flow

1/23/84

2 Mason 14 Unnamed Stream 0612 Mill Creek 173514 Low Flow Year round, 2 cfs 342003W 2/11/53 1/23/84

2 Mason 15 Brown Creek 0809 Hood Canal Includes all tributaries 173515 Closed Closed year round

7/24/81

2 Mason 15 Caldervin Creek 0805 Hood Canal Includes all tributaries 173515 Closed Closed year round

7/24/81

2 Mason 15 Coulter Creek 0798 North Bay 173515 Instream Flow See WAC 173 515030 for flow requirements

092201W 7/24/81

2 Pierce 15 Crescent Creek 0794 Gig Harbor Includes all tributaries 173515 Instream Flow Closed 6/1 to 10/15, See WAC 173515030 for flows

322202E 7/24/81

2 Mason 15 Dewatto River 0156 Hood Canal Includes all tributaries 173515 Instream Flow Closed 6/15 to 10/31, See WAC 173515040 for flows

232303W 7/24/81

2 Mason 15 Fay Creek 0808 Hood Canal Includes all tributaries 173515 Closed Closed year round

7/24/81

2 Mason 15 Hall Creek 0806 Hood Canal Includes all tributaries 173515 Closed Closed year round

7/24/81

2 Mason 15 Hoddy Creek 0807 Hood Canal Includes all tributaries 173515 Closed Closed year round

7/24/81


2 Pierce 15 Lackey Creek 0796 Carr Inlet Includes all tributaries 173515 Instream Flow Closed 6/1 to 11/15, See WAC 173515030 for flows

312101E 7/24/81

2 Mason 15 Lake Christine 0277 Tahoya River Includes Twin Lakes Watershed

Closed 10/16/72

2 Mason 15 Little Mission Creek

0801 Hood Canal Includes all tributaries 173515 Closed Closed year round

012202W 7/24/81

2 Pierce 15 Minter Creek 0351 Henderson Bay Includes all tributaries 173515 Closed Closed year round

292201E 11/27/44 7/24/81

2 Mason 15 Mission Creek 0353 Hood Canal Includes all tributaries 173515 Closed Closed year round

1/12/51 7/24/81

2 Pierce 15 North Creek 0824 Gig Harbor Includes all tributaries 173515 Closed Clossed year round

062102E 7/24/81

2 Pierce 15 Purdy Creek 0795 Henderson Bay Includes all tributaries, Station 12072800


242201E 7/24/81

2 Mason 15 Rendsland Creek 0785 Hood Canal Includes all tributaries 173515 Instream Flow Closed 6/1 to 10/31, See WAC 173515030 for flows

192203W 7/24/81

2 Pierce 15 Rocky Creek 0797 Case Inlet Includes all tributaries 173515 Instream Flow Closed 6/1 to 10/31, See WAC 173515030 for flows

272201W 7/24/81

2 Mason 15 Shoefly Creek 0804 Hood Canal Includes all tributaries 173515 Closed Closed year round

182202W 7/24/81

2 Pierce 15 Stansberry Lake 0826 Carr Inlet Includes all tributaries 173515 Closed Closed year round

192201E 5/17/66 7/24/81

2 Mason 15 Stimson Creek 0802 Hood Canal Includes all tributaries 173515 Closed Closed year round

112202W 7/24/81


2 Mason 15 Tahuya River 0784 Hood Canal Includes all tributaries, Station 12068000


122203W 7/24/81

2 Mason 15 Union River 0549 Lynch Cove Includes all tributaries, Station 12063500

173515 Instream Flow Closed up to McKenna Falls, See 173515040 for flows

202301W 6/7/57 7/24/81

2 Mason 15 Unnamed Spring/Stream

0555 Little Mission Creek 173515 Closed 362302W 9/29/49

2 Pierce 15 Unnamed Spring/Stream

0556 Purdy Creek Low Flow 132201E 9/29/52

2 Pierce 15 Unnamed Spring/Stream

0560 Vaughn Bay Low Flow 4/6/71

2 Pierce 15 Unnamed Stream 0825 Henderson Bay Includes all tributaries 173515 Closed Closed year round

102101E 7/24/81

2 Pierce 15 Unnamed Stream 0613 Dutcher Cove Includes all tributaries 173515 Closed Closed year round

152101W 3/10/54 7/24/81

2 Mason 15 Unnamed Stream 0614 Hood Canal Includes all tributaries 173515 Closed Closed year round

282203W 11/3/48 7/24/81


172202W 9/2/64 7/24/81

2 Pierce 15 Unnamed Stream 0617 Lay Inlet Includes all tributaries 173515 Closed Closed year round

022101E 11/14/55 7/24/81


202203W 11/3/48 7/24/81

2 Pierce 15 Unnamed Stream 0619 Henderson Bay Denial 152101E 4/13/53 5/25/52 2 Mason 16 McTaggart Creek 0335 Skokomish River, N.

Fork Low Flow 2/9/53

2 Mason 16 Waketickeh Creek 0646 Hood Canal Low Flow 7/27/59

2 Jefferson 17 Andrews Creek 0012 Crocker Lake Low Flow 2/14/57


2 Jefferson 17 Chimacum Creek 0091 Port Townsend Denial 3/3/46 4/3/46 2 Jefferson 17 Contractors Creek 0120 Port Discovery Low Flow 7/10/73 2 Clallam 17 Jimmy Comelately

Creek 0253 Sequim Bay Denial 6/18/46 10/29/74

2 Clallam 17 Little Quilcene River

0301 Quilcene Bay Includes Lake Leland Denial 8/21/52

2 Jefferson 17 Salmon Creek 0432 Port Discovery Low Flow 4/22/46 2 Clallam/Jef

ferson 17 Snow Creek 0484 Port Discovery Low Flow 1/3/46 2/6/48

2 Jefferson 17 Tarboo Creek 0509 Tarboo Bay Low Flow 9/19/72 2 Jefferson 17 Tommy Creek 0621 Donovan Creek Denial 6/3/75 2 Clallam 17 Unnamed Stream 0620 Sequim Bay Low Flow 10/26/73 2 Jefferson 17 Unnamed Stream 0622 Port Ludlow Low Flow 162801E 11/3/72 2 Clallam 18 Bagley Creek 0017 Strait of Juan de Fuca Denial 11/4/48 2 Clallam 18 Dry Creek 0070 Strait of Juan de Fuca Denial 2/28/75 2 Clallam/Jef

ferson 18 Dungeness River 0171 Strait of Juan de Fuca Denial 9/19/45 4/30/75

2 Clallam 18 Lake Creek 0278 Morse Creek Low Flow 4/11/72 2 Clallam 18 Lees Creek 0288 Strait of Juan de Fuca Low Flow 10/19/72 2 Clallam 18 McDonald Creek 0330 Strait of Juan de Fuca Denial 6/18/46 2 Clallam 18 Morse Creek 0359 Strait of Juan de Fuca Low Flow 4/12/72 2 Clallam 18 Peabody Creek 0406 Port Angeles Harbor Low Flow 12/26/46 2 Clallam 18 Siebert Creek 0467 Strait of Juan de Fuca Denial 12/18/73 2 Clallam 18 Tumwater Creek 0542 Port Angeles Harbor Low Flow 8/6/46 2 Clallam 19 Coville Creek 0130 Freshwater Bay Low Flow 3/2/53 2 Clallam 19 Salt Creek 0441 Crescent Bay Denial 4/13/53 2 Grays

Harbor 22 Camp Creek 0064 Chehalis River 173522 Base Flow 3/10/76

2 Grays Harbor

22 Charley Creek 0078 Grays Harbor 173522 Base Flow 3/10/76

2 Grays Harbor

22 Chehalis River 0080 Grays Harbor Upstream from Satsop River

173522 Base Flow 3/10/76

2 Grays Harbor

22 Cloquallum Creek 0100 Chehalis River 173522 Base Flow 361805W 3/10/76

2 Grays Harbor

22 Decker Creek 0144 Satsop River, E. Fork 173522 Base Flow 311906W 3/10/76

2 Grays Harbor/Pa cific

22 Elk River 0179 South Bay Includes tributaries 173522 Base Flow 031611W 3/10/76


2 Grays Harbor

22 Hoquiam River, E. Fork

0237 Hoquiam River 173522 Base Flow 031809W 3/10/76

2 Grays Harbor

22 Hoquiam River, M. Fork


2 Grays Harbor

22 Hoquiam River, W. Fork


2 Grays Harbor

22 Humptulips River 0241 North Bay 173522 Base Flow 172010W 3/10/76

2 Grays Harbor

22 Johns River 0256 Grays Harbor Includes tributaries 173522 Base Flow 211610W 3/10/76

2 Grays Harbor/Th urston

22 Mox Chehalis Creek

0360 Chehalis River 173522 Base Flow Closed 5/1 to 10/31

181705W 3/10/76

2 Grays Harbor

22 Newskah Creek 0375 Grays Harbor 173522 Base Flow Closed 5/1 to 10/31

3/10/76

2 Mason/Gra ys Harbor

22 Satsop River 0451 Chehalis river 173522 Base Flow 361807W 361817W

3/10/76

2 Mason 22 Satsop River, E. Fork

0452 Satsop River 173522 Base Flow 151906W 3/10/76

2 Grays Harbor/Ma son

22 Satsop River, M. Fork

0450 Satsop River 173522 Base Flow 361907W 3/10/76

2 Grays Harbor

22 Unnamed Stream 0623 Chehalis River 173522 Low Flow 171709W 9/13/50

2 Grays Harbor

22 Unnamed Stream 0624 Chehalis River 173522 Low Flow 181708W 10/28/55

2 Grays Harbor

22 Vance Creek 0642 Chehalis River 173522 Base Flow Low flow 3/10/76 3/21/72

2 Grays Harbor/Ma son

22 Wildcat Creek 0660 Cloquallum Creek 173522 Base Flow Closed 5/1 to 10/31

191805W 3/10/76

2 Grays Harbor

22 Wishkah River 0669 Chehalis River 173522 Base Flow 221909W 3/10/76


2 Grays Harbor

22 Wishkah River, E. Fork

0668 Wishkah River 173522 Base Flow 361909W 3/10/76

2 Grays Harbor

22 Workman Creek 0676 Chehalis River 173522 Base Flow 091706W 3/10/76

2 Grays Harbor/Jeff erson

22 Wynoochee River 0677 Chehalis River 173522 Base Flow Closed 5/1 to 10/31

271808W 3/10/76

2 Lewis 23 Beaver Creek 0027 Newaukum River, S. Fork

173522 Base Flow Closed 5/1 to 10/31

3/10/76

2 Thurston 23 Beaver Creek 0028 Black River 173522 Base Flow Closed 5/1 to 10/31

021603W 3/10/76

2 Lewis 23 Berwick Creek 0032 Dillenbaugh Creek 173522 Closed Closed 5/1 to 10/31

091802W 5/4/73


23 Black River 0037 Chehalis River 173522 Base Flow Closed 7/1 to 9/30

4/10/76 3/10/76

2 Lewis 23 Bunker Creek 0056 Chehalis River 173522 Base Flow Closed 5/1 to 10/31

3/10/76

2 Lewis/Thur ston

23 Cedar Creek 0071 Chehalis River 173522 Base Flow 141605W 3/10/76

2 Lewis/Thur ston

23 Chehalis River 0079 Grays Harbor Headwater to Grand Mound

173522 Base Flow 221503W 3/10/76

2 Lewis 23 Chehalis River 0081 Grays Harbor 173522 Base Flow 021303W 3/10/76


23 Chehalis River 0082 Grays Harbor At Porter 173522 Base Flow 281615W 3/10/76

2 Lewis/Paci fic

23 Chehalis River 0083 Grays Harbor Upstream from Elk Creek 173522 Base Flow 141305W 3/10/76

2 Cowlitz/Le wis

23 Chehalis River, S. Fork


241304W 3/10/76

2 Lewis 23 Coal Creek 0104 Chehalis River Low Flow 7/1/51 2 Thurston 23 Dempsey Creek 0154 Black River 173522 Base Flow Closed 5/1 to

10/31 131703W 3/10/76


2 Lewis 23 Dillenbaugh Creek 0159 Chehalis River 173522 Base Flow Closed 5/1 to 10/31

311402W 3/10/76

2 Lewis/Paci fic

23 Elk Creek 0178 Chehalis River 173522 Base Flow 3/10/76

2 Grays Harbor/Le wis

23 Garrard Creek 0204 Chehalis River 173522 Base Flow Closed 5/1 to 10/31

3/10/76

2 Lewis/Thur ston

23 Hanaford Creek 0225 Skookumchuck River 173522 Base Flow Closed 5/1 to 10/31

331502W 3/10/76

2 Lewis 23 Hope Creek 0234 Chehalis River 173522 Base Flow Closed 5/1 to 10/31

8/27/73 3/10/76

2 Lewis 23 Kearney Creek 0266 Newaukum River, S. Fork


3/10/76

2 Lewis 23 Lincoln Creek 0294 Chehalis River 173522 Base Flow Closed 5/1 to 10/31

3/10/76

2 Lewis 23 Mill Creek 0343 Chehalis River 173522 Base Flow Closed 5/1 to 10/31

3/10/76

2 Lewis 23 Newaukum River 0370 Chehalis River 173522 Base Flow 091302W 3/10/76

2 Lewis 23 Newaukum River, M. Fork

0371 Newaukum River, N. Fork


3/10/76

2 Lewis 23 Newaukum River, N. Fork

0372 Newaukum River 173522 Base Flow 031401W 3/10/76

2 Lewis 23 Newaukum River, S. Fork

0373 Newaukum River 173522 Base Flow 281301W 3/10/76


23 Porter Creek 0414 Chehalis River 173522 Base Flow 221705W 3/10/76

2 Lewis/Paci fic

23 Rock Creek 0427 Chehalis River 173522 Base Flow Closed 5/1 to 10/31

3/10/76

2 Thurston 23 Salmon Creek 0433 Black River 173522 Base Flow Closed 5/1 to 10/31

3/10/76

2 Lewis 23 Salzer Creek 0442 Chehalis River 173522 Base Flow Closed 6/1 to 9/30

3/10/76


2 Thurston 23 Scatter Creek 0454 Chehalis River 173522 Base Flow Closed 5/1 to 10/31

3/10/76

2 Lewis/Thur ston

23 Skookumchuck River


3/10/76

2 Lewis 23 Stearns Creek 0495 Chehalis River 173522 Base Flow Closed 5/1 to 10/31

3/10/76

2 Lewis 23 Wildcat Creek 0661 Lincoln Creek, S. Fork 173522 Base Flow Closed 5/1 to 10/31

3/10/76

2 Grays Harbor

23 Williams Creek 0664 Chehalis River 173522 Base Flow Closed 5/1 to 10/31

3/10/76

2 Pacific 24 Chinook River 0092 Baker Bay Low Flow 9/12/68 2 Pacific 24 Naselle River Low Flow 8/5/94 2 Pacific 24 O'Conner Creek 0389 Naselle River Low Flow 10/2/72 2 Pacific 24 Unnamed Stream 0625 Wallacut River Low Flow 261011W 1/12/53

2 Pacific 24 Willapa River 0663 Willapa Bay Includes tributaries Low Flow 12/30/66 6/16/52 2 Cowlitz/Le

wis/Wahki akum

25 Elochoman River 0180 Columbia River Low Flow 6/29/73

2 Wahkiaku m

25 Fossil Creek 0196 Grays River Low Flow 6/6/52

2 Cowlitz 25 Germany Creek 0206 Columbia River Low Flow 2 Cowlitz 26 Arkansas Creek 0014 Cowlitz River Denial 7/14/53 1/29/75 2 Lewis 26 Coal Creek 0105 Cowlitz River Low Flow 12/5/39 2 Lewis 26 Frost Creek 0203 Steffen Uden Creek Low Flow 9/20/60 2 Lewis 26 Hall Creek 0220 Cowlitz River Denial 6/5/53 11/23/55 2 Lewis 26 Lacamas Creek 0273 Cowlitz River Low Flow 1112W 7/11/56 2 Cowlitz 26 Leckler Creek 0287 Cowlitz River Denial 1/4/53 12/11/74 2 Lewis 26 Mill Creek 0344 Cowlitz River Low Flow 2133W 11/22/44 6/15/53 2 Cowlitz/Le

wis 26 Olequa Creek 0392 Cowlitz River Includes tributaries Denial 9102W 3/19/46 12/25/67

2 Lewis 26 Rainy Creek 0421 Cowlitz River Low Flow 27125E 11/3/48 6/22/45 2 Clark/Lewi

s 26 Salmon Creek 0434 Cowlitz River Low Flow 5/18/46 11/24/50

2 Lewis 26 Siler Creek 0468 Cowlitz River Low Flow 4/16/57 2 Lewis 26 Silver Creek 0469 Cowlitz River Low Flow 27127E 1/17/51 2 Lewis 26 Sulphur Creek 0501 Cowlitz River Denial 14123E 6/12/53 8/27/73 2 Lewis 26 Tilton River 0523 Cowlitz River Low Flow 6/22/49 1/7/55 2 Clark 27 Cedar Creek 0072 Lewis River Denial Domestic only 9/10/45 1/20/54


2 Clark 27 Gee Creek 0205 Columbia River Denial Domestic only 4/12/67 11/28/56 2 Clark 27 Jenny Creek 0250 Lewis River, E. Fork Denial Domestic only 2/14/52 9/29/53 2 Cowlitz 27 Kalama River 0263 Columbia River Low Flow 9/15/74 2 Clark 27 Lockwood Creek 0303 Lewis River, E. Fork Denial 3/1/61 8/18/50 2 Clark 27 Mason Creek 0325 Lewis River, E. Fork Denial 7/30/74 8/24/73 2 Clark 27 Rock Creek 0428 Lewis River, E. Fork Includes tributaries Low Flow 2/13/75 8/4/55 2 Clark 28 Burnt Bridge

Creek 0058 Vancouver Lake Denial 3/29/49

2 Clark 28 Cougar Creek 0129 Washougal River Low Flow 6/12/53 2 Clark 28 Fifth Plain Creek 0188 Lacamas Creek Denial 9/22/38 1/2/67 2 Clark 28 Gibbons Creek 0207 Steigerwald Lake outlet Denial Domestic only 3/23/53 2 Clark 28 Lacamas Creek 0274 Washougal River Low Flow 4/6/50 2 Clark 28 Lawton Creek 0285 Columbia River Low Flow 2 Clark 28 Salmon Creek 0435 Lake River Denial Closed all use 10/24/50 2 Clark 28 Shanghai Creek 0462 Fifth Plain Creek Denial 1/2/67 2 Clark/Ska

mania 28 Unnamed Stream 0626 Washougal River Low Flow 1/14/53

2 Clark 28 Whipple Creek 0652 Lake River Denial 5/9/46 5/9/51 2 Skamania 29 Buck Creek 0051 White Salmon River Low Flow 5/13/57 2 Skamania 29 Rock Creek 0431 Little White Salmon

River Low Flow 11/13/50

2 Skamania 29 Trout Creek 0536 Wind River Low Flow 4/21/72 11/5/73 2 Skamania 29 Unnamed Stream 0627 Collins Creek Low Flow 300309E 1/12/49 2 Skamania 29 Unnamed Stream 0628 Columbia River Low Flow 360308E 2/13/57 2 Skamania 29 Unnamed Stream 0636 Collins Creek Low Flow 300309E 1/2/49 2 Skamania 29 Unnamed Stream 0637 Columbia River Low Flow 360308E 2/13/57 Easter n Regio nal Office Regio n



WDFW Recomme

nded SWSL



Date 1 SWSL or WAC

Date 2 SWSL or WAC

3 Walla Walla

32 Blue Creek 0043 Mill Creek 173532 Closed 6/1 to 10/31 12/14/77

3 Columbia/ Walla

32 Coppei Creek 0124 Touchet River 173532 Closed 4/1 to 11/10 6/18/65 12/14/77


Walla

3 Walla Walla

32 Doan Creek 0161 Mill Creek 173532 Closed 6/1 to 10/1 12/14/77

3 Walla Walla

32 Dry Creek 0168 Walla Walla River 173532 Closed 4/15 to 11/15 12/14/77

3 Walla Walla

32 Mill Creek 0345 Walla Walla River 173532 Closed 5/1 to 10/1 2/6/57 12/14/77

3 Walla Walla

32 Mud Creek 0362 Walla Walla River 173532 Closed 5/1 to 10/31 12/14/77

3 Walla Walla

32 Pine Creek 0410 Walla Walla River 173532 Closed 5/1 to 10/31 12/14/77

3 Walla Walla

32 Stone Creek 0498 Walla Walla River 173532 Closed 5/1 to 10/31 12/14/77

3 Columbia/ Walla Walla

32 Touchet River 0531 Walla Walla River 173532 Closed 6/1 to 10/31 12/14/77 5/21/81

3 Columbia/ Walla Walla

32 Walla Walla River 0647 Columbia River 173532 Closed Closed 5/1 to 11/30

12/14/77

3 Columbia/ Franklin/W alla Walla

33 Snake River 0482 Columbia River Low Flow 11/20/69 9/15/72

3 Spokane 34 Badger Lake 0016 Palouse River Watershed

Issued partial

Single domestic only

3/8/71 9/19/73

3 Spokane 34 Clear Lake 0099 Palouse River Watershed

Denial 7/29/58

3 Whitman 34 Cottonwood Creek 0127 Rock Creek Denial 7/1 to 9/1 Low flow

5/27/54 10/24/52

3 Whitman 34 Downing Creek 0163 Palouse River Denial 7/1 to 9/1, low flow

3 Whitman 34 Imbler Creek 0244 Rock Creek Denial After 6/15 1/30/79 3 Spokane/

Whitman 34 Packer Creek 0397 Rock Creek Low Flow Closed 7/1 to 9/1

3 Adams/Sp okane/Whi tman

34 Palouse River 0399 Snake River Includes tributaries Low Flow Closed 7/1 to 9/1 1/31/56

3 Whitman 34 Rebel Flat Creek 0423 Palouse River Low Flow Closed 7/1 to 9/1 7/31/52 3 Adams/Wh

itman 34 Rock Creek 0430 Palouse River Denial Closed 7/1 to 9/1 1/30/79


3 Spokane 34 Silver Lake 0470 Crab Creek Watershed Issued partial

Domestic only 2/8/57 2/26/74

3 Whitman 34 Thorn Creek 0520 Pine Creek Low Flow Closed 7/1 to 9/1 10/18/61 4/26/72 3 Whitman 34 Union Flat Creek 0547 Palouse River Low Flow Closed 7/1 to 9/1 5/8/50 1/9/52 3 Whitman 35 Alkali Flat Creek 0006 Snake River Low Flow 4/18/52 12/15/71 3 Asotin/Gar

field 35 Asotin Creek 0015 Snake River Low Flow 12/11/56 6/26/69

3 Columbia/ Garfield

35 Pataha Creek 0403 Tucanon River Low Flow 10/29/68

3 Asotin/Col umbia/Garf ield

35 Snake River 0483 Columbia River Low Flow 9/15/72

3 Columbia/ Garfield

35 Tucannon River 0541 Snake River Low Flow 12/12/72 10/28/74

3 Franklin 36 Eagle Lakes 0174 Columbia River drainage Low Flow Lake level, outlet also

6/19/70

3 Adams/Fra nklin

36 Esquatzel 0182 Columbia River Low Flow 12/15/72

3 Franklin 36 Lake Kahlotus 0280 Washtucna Coulee Lake Level 12/15/72

3 Adams/Gr ant/Lincoln

41 Columbia Basin Project

0110 RCW 90.40.0 30

Withdrawn Federal Withdrawal

3 Grant 41 Crab Creek 0133 Columbia River Lower RCW 90.40.0 30

Withdrawn Federal Withdrawal

3 Adams/Gr ant

41 Para Lake 0401 McMannaman Lake Low Flow 3/27/57

3 Grant 41 Sand Hollow Creek

0449 Columbia River Low Flow 5/22/73

3 Adams/Gr ant

41 Unnamed Springs 0559 Lower Crab Creek Low Flow 351727E 12/15/72

3 Adams 41 Unnamed Stream 0629 Owl Lake Low Flow 301629E 2/21/67 3 Grant 41 Unnamed Stream 0630 Randie Lake Low Flow 151823E 10/22/68 3 Spokane 43 West Medical

Lake 0650 Lake Level 8/11/62 10/15/70

3 Ferry 52 Camel Creek 0062 San Poil River Low Flow 7/23/55 3 Ferry 52 Granite Creek 0216 San Poil River Denial 8/7/44 9/1/68


3 Ferry 52 O'Brien Creek 0387 San Poil River Low Flow 10/24/50 11/15/71 3 Ferry 52 San Poil River 0444 Columbia River Includes tributaries Low Flow 12/30/66 3/19/71 3 Ferry 52 San Poil River, S.

Fork 0446 San Poil River Low Flow 3/5/70

3 Ferry 52 Scatter Creek 0456 San Poil River Low Flow 3/5/70 3/19/71 3 Ferry/Linc

oln 53 Columbia River 0111 RCW

90.40.0 30

Withdrawn Federal Withdrawal, See also WAC 175 563040

3 Ferry/Linc oln

53 Columbia River 0115 Above Coulee Dam Withdrawn Federak Withdrawal (10cfs limit), See also WAC 176 563040

3 Lincoln 53 Hawk Creek 0232 Columbia River Includes tributaries Denial 3/23/53 1/30/32 3 Stevens 54 Chamokane

Creek 0077 Spokane River Low Flow 3/8/47 9/12/72

3 Lincoln/Sp okane

54 Deep Creek 0146 Spokane River Denial 8/21/52 1/22/75

3 Lincoln/Sp okane

54 Horseshoe Lake 0239 Denial 8/21/52 1/22/75

3 Spokane 55 Bailey Lake 0018 173555 Closed 1/6/76 3 Spokane 55 Bear Creek 0023 Little Spokane River 173555 Closed 6/1 to 10/31 1/6/76 3 Spokane 55 Bear Lake 0026 173555 Closed 1/6/76 3 Pend

Oreille 55 Blue Lake 0044 173555 Closed 1/6/76

3 Pend Oreille

55 Chain Lake 0075 173555 Closed 1/6/76

3 Spokane 55 Dead Mans Lake 0142 173555 Closed 1/6/76 3 Spokane 55 Deadman Creek 0143 Little Spokane River Held Incomplete

adjudication 246952

3 Spokane 55 Deep Creek 0147 Little Spokane River 173555 Closed 6/1 to 10/31 1/6/76 3 Spokane 55 Deer Creek 0150 Little Spokane River 173555 Closed 6/1 to 10/31 1/6/76 3 Pend

Oreille 55 Diamond Lake 0157 173555 Closed 1/6/76

3 Spokane/S tevens

55 Dragoon Creek 0164 Little Spokane River 173555 Closed 6/1 to 10/31 1/6/76


3 Pend Oreille/Spo kane

55 Dry Creek 0166 Little Spokane River 173555 Closed 6/1 to 10/31 1/6/76

3 Spokane 55 Eloika Lake 0181 173555 Closed 1/6/76 3 Pend

Oreille 55 Fan Lake 0184 173555 Closed 1/6/76

3 Pend Oreille

55 Lake of the Woods

0281 173555 Closed 1/6/76

3 Spokane 55 Little Creek 0296 Little Spokane River 173555 Closed 6/1 to 10/31 1/6/76 3 Pend

Oreille/Spo kane

55 Little Spokane River

0315 Spokane River Elk 173555 Base Flow 082943E 1/6/76

3 Pend Oreille/Spo kane/Stev ens

55 Little Spokane River

0316 Spokane River Chattaroy 173555 Base Flow 342843E 1/6/76

3 Spokane 55 Little Spokane River

0317 Spokane River Dartford 173555 Base Flow 062643E 1/6/76

3 Spokane 55 Little Spokane River

0318 Spokane River Confluence with Spokane River

173555 Base Flow 032642E 1/6/76

3 Spokane 55 Little Spokane River, W B

0314 Little Spokane River West Branch 173555 Closed Closed 6/1 to 10/31

1/6/76

3 Pend Oreille

55 Lost Lake 0307 173555 Closed 1/6/76

3 Pend Oreille

55 Mallard Marsh 0321 173555 Closed 1/6/76

3 Pend Oreille

55 Moon Creek 0358 Sacheen Lake 173555 1/6/76

3 Pend Oreille/Spo kane

55 Otter Creek 0395 Little Spokane River 173555 Closed Closed 6/1 to 10/31

1/6/76

3 Spokane 55 Owens Lake 0396 173555 Closed 1/6/76 3 Pend

Oreille 55 Panhandle Lake 0400 173555 Closed 1/6/76

3 Spokane 55 Reflection Lake 0425 173555 Closed 1/6/76 3 Pend

Oreille 55 Trout Lake 0540 173555 Closed 1/6/76

3 Spokane 55 Unnamed Lake 0552 173555 Closed 052643E 1/6/76 3 Pend

Oreille 55 Unnamed Lake 0553 173555 Closed 233145E 1/6/76

3 Pend 55 Unnamed Lake 0554 173555 Closed 333145E 1/6/76


Oreille 3 Spokane 56 California Creek 0060 Hangman Creek Low Flow 3 Spokane/

Whitman 56 Hangman Creek 0226 Spokane River Low Flow 3/24/53 11/28/55

3 Spokane 56 Marshall Creek 0323 Hangman Creek Denial 12/1/64 7/9/73 3 Spokane 57 Blanchard Creek 0040 Blanchard Lake Denial 9/26/52 3 Spokane 57 Liberty Lake 0292 Spokane River Lake Level

3 Spokane 57 Newman Lake 0374 Spokane River Includes unnamed outlet ditch

Denial 9/14/66 10/23/75

3 Spokane 57 Thompson Creek 0518 Newman Lake Denial 11/22/67 10/23/75 3 Ferry 58 Barnaby Creek 0020 Columbia River Low Flow 10/26/72 3 Stevens 58 Cheweka Creek 0086 Columbia River Low Flow 10/26/54 3 Stevens 58 Deer Creek 0151 Columbia River Low Flow 3/21/69 3 Ferry/Stev

ens 58 Columbia River 0112 RCW

90.40.0 30

Withdrawn Federal Withdrawal (over 10cfs), See also WAC 176563 040

3 Ferry 58 Hall Creek 0221 Columbia River Low Flow 2/23/67 5/31/68 3 Stevens 58 Hall Creek, N.

Fork 0222 Hall Creek Denial 11/9/67

3 Stevens 58 Harvey Creek 0229 Columbia River Low Flow 1/24/67 3 Stevens 58 Harvey Creek, S.

Fork 0230 Harvey Creek Low Flow 1/24/67

3 Ferry 58 LaFleur Creek 0276 Columbia River Low Flow 11/8/68 3 Stevens 58 Mudgett Lake 0364 Lake Flow Lake Level 323037E 1/29/73 4/5/73

3 Ferry 58 Nancy Creek 0367 Columbia River Low Flow 12/5/69 3 Ferry 58 Ninemile Creek 0379 Columbia River Low Flow 10/30/68 1/9/69 3 Stevens 58 ORaPakEn

Creek 0385 Columbia River Low Flow 10/13/31

3 Stevens 58 Quilisascut Creek 0418 Columbia River Low Flow 3 Ferry 58 Sherman Creek 0464 Columbia River Low Flow 6/18/46 3 Stevens 58 Unnamed Stream 0631 Columbia River Low Flow 6/2/67 12/5/69 3 Stevens 59 Amazon Creek 0008 Little Pend Oreille River Denial 10/22/69 3 Stevens 59 Bulldog Creek 0054 Colville River 173559 Closed 7/22/77 3 Stevens 59 Cedar Creek 0073 Little Pend Oreille River Denial 7/24/64 12/31/70


3 Stevens 59 Chewelah Creek 0087 Colville River 173559 Closed 7/22/77 3 Stevens 59 Clugston Creek 0102 Mill Creek Denial 12/31/70 3 Stevens 59 Cole Creek 0107 Haller Creek Denial 9/26/52 3 Stevens 59 Colville River 0116 Columbia River Lower mouth to

Stensgar Creek 173559 Base Flow Closed 7/1 to

9/30 7/22/77

3 Stevens 59 Colville River 0117 Columbia River Stensgar Creek to headwaters


7/22/77

3 Stevens 59 Corbett Creek 0125 Colville River 173559 Closed 7/22/77 3 Stevens 59 Deer Creek 0152 Colville River 173559 Closed 7/22/77 3 Stevens 59 Deer Lake 0153 Sheep Creek 173559 Closed 6/1 to 10/31 7/22/77 3 Stevens 59 Dry Creek 0167 Blue Creek 173559 Closed 10/5/72 7/22/77 3 Stevens 59 Franzwa Creek 0199 Colville River 173559 Closed 11/6/51 7/22/77 3 Stevens 59 Gillette Creek 0208 Mill Creek 173559 Closed 3/21/63 7/22/77 3 Stevens 59 Haller Creek 0223 Colville River 173559 Closed 9/26/52 7/22/77 3 Stevens 59 Heritage Lake 0233 Little Pend Oreille River 173559 Closed 6/1 to 10/31 7/22/77 3 Stevens 59 Huckleberry Creek 0240 Colville River 173559 Closed 7/22/77

3 Stevens 59 Jumpoff Joe Creek

0262 Colville River Includes Jumpoff Joe Lake & Grouse Creek

173559 Closed 12/31/70 7/22/77

3 Stevens 59 Keogk Lake 0268 Lake Level 5/9/51

3 Stevens 59 Little Pend Oreille River

0313 Colville River Denial 4/12/51

3 Stevens 59 Loon Lake 0306 Sheep Creek 173559 Closed Closed 6/1 to 10/31, Lake Level

7/22/77 9/21/50

3 Pend Oreille/Ste vens

59 Mill Creek 0346 Colville River 173559 Closed 7/22/77

3 Stevens 59 Narcisse Creek 0368 Little Pend Oreille River Denial 4/12/51 12/30/70 3 Stevens 59 Nelson Lake 0369 Grouse Creek Lake Level

3 Stevens 59 Prouty Creek 0416 White Mud Lake Low Flow 10/24/50 3 Stevens 59 Sheep Creek 0463 Colville River 173559 Closed 5/26/52 7/22/77 3 Stevens 59 Sherwood Creek 0465 Colville River 173559 Closed 7/22/77 3 Stevens 59 Spratt Creek 0488 Haller Creek 173559 Closed 9/2/64 7/22/77 3 Stevens 59 Stensgar Creek 0497 Colville River 173559 Closed 1/23/51 7/22/77 3 Stevens 59 Stranger Creek 0499 Colville River 173559 Closed 023339E 1/23/51 7/22/77


3 Stevens 59 Thomas Lake 0515 Little Pend Oreille River 173559 Closed Closed 6/1 to 10/31

7/22/77

3 Stevens 59 Thomason Creek 0516 Colville River 173559 Closed 7/22/77 3 Stevens 59 Twelvemile Creek 0544 Colville River 173559 Closed 7/22/77 3 Stevens 59 Unnamed Stream 0632 Colville River 173559 Closed 033040E 7/22/77 3 Stevens 59 Unnamed Stream 0633 Waitts Lake 173559 Closed 173140E 7/22/77 3 Stevens 59 Waitts Lake 0645 Waitts Creek 173559 Closed Closed 6/1 to

10/31 7/22/77

3 Stevens 59 White Mud Lake 0655 173559 Closed Closed 6/1 to 10/31

7/22/77

3 Ferry 60 Catherine Creek 0069 Kettle River Low Flow 3 Ferry 60 Curlew Creek 0137 Kettle River Denial 2/6/48 1/17/51 3 Ferry 60 Goomus Creek 0212 Kettle River Denial 10/12/71 3 Stevens 60 Sand Creek 0447 Kettle River Denial 10/19/71 3 Ferry 60 Tonasket Creek 0526 Curlew Creek Low Flow 2/6/48 3 Ferry 60 Toroda Creek 0530 Kettle River Denial 5/31/50 3/2/55 3 Stevens 60 Toulou Creek 0532 Kettle River Denial 9/19/74 3 Ferry 60 Trout Creek 0537 Curlew Lake Low Flow 9/21/71 3 Stevens 61 Columbia River 0113 RCW

90.40.0 30

Withdrawn Federal Withdrawal (except under 10cfs), See also WAC 176563 040

3 Stevens 61 Crown Creek 0136 Columbia River Low Flow 11/8/68 3 Pend

Oreille/Ste vens

61 Deep Creek 0148 Columbia River Denial 3/7/50 2/9/73

3 Stevens 61 Fifteenmile Creek 0187 Columbia River Low Flow 2/17/62 3 Stevens 61 Fivemile Creek 0191 Columbia River Low Flow 3 Stevens 61 Flat Creek 0192 Columbia River Low Flow 10/16/50 8/22/69 3 Stevens 61 Little Sheep Creek 0302 Big Sheep Creek Low Flow

3 Stevens 61 Nigger Creek 0376 Columbia River Low Flow 4/13/53 4/17/53 3 Stevens 61 Onion Creek 0393 Columbia River Denial 3/20/50 7/9/73 3 Stevens 61 Williams Lake 0665 Colville River Drainage Lake Level 5/14/73

3 Pend Oreille

62 Brackett Creek 0049 Pend Oreille River Denial 4/15/52 7/20/64


3 Pend Oreille

62 Calispell Creek 0061 Pend Oreille River Low Flow 10/28/52

3 Pend Oreille

62 Davis Creek 0140 Pend Oreille River Denial 5/9/51 8/21/51


62 Flume Creek 0193 Pend Oreille River Low Flow 9/20/72

3 Pend Oreille

62 Indian Creek 0245 Pend Oreille River Denial 9/19/45 11/21/67

3 Pend Oreille

62 Maitlen Creek 0320 Pend Oreille River Denial 10/18/72

3 Pend Oreille

62 Skookum Creek 0242 Pend Oreille River Denial All use 8/24/67 11/25/70


62 Small Creek 0480 Calispell Lake Low Flow 2/10/67

3 Pend Oreille

62 Small Creek, E. Fork

0481 Small Creek Denial 5/21/68

3 Pend Oreille

62 Sullivan Creek, N. Fork

0500 Sullivan Creek Low Flow 12/12/56

3 Pend Oreille

62 Trimble Creek 0535 Pend Oreille River Low Flow 5/24/73

3 Pend Oreille

62 Unnamed Stream 0634 Pend Oreille River Low Flow 193544E 5/14/73

3 Pend Oreille

62 Unnamed Stream 0635 Deer Creek Low Flow 183144E 11/8/68

Centra l Regio nal Office Regio n



WDFW Recomme

nded SWSL



Date 1 SWSL or WAC

Date 2 SWSL or WAC

4 Klickitat 29 Buck Creek 0051 White Salmon River Low Flow City of White Salmon Municipal source

5/13/57

4 Klickitat 29 Jewett Creek 0251 Columbia River Low Flow 10/23/57


4 Klickitat 29 Jewett Creek 0252 Columbia River Low Flow

4 Klickitat 30 Blockhouse Creek 0041 Little Klickitat River Fully Appropriated

1981 Adjudication

4 Klickitat 30 Bloodgood Creek 0042 Little Klickitat River Fully Appropriated

1981 Adjudication

9/2/49

4 Klickitat 30 Bowman Creek 0048 Little Klickitat River Fully Appropriated

Adjudication 2/13/73

4 Klickitat 30 Little Klickitat River

0298 Little Klickitat River Fully Appropriated

1981 Adjudication

4 Klickitat 30 Mill Creek 0347 Little Klickitat River Fully Appropriated

1981 Adjudication

4 Klickitat 30 Spring Creek 0489 Klickitat River Fully Appropriated

Adjudication 10/16/50

4 Klickitat 30 Swale Creek 0504 Little Klickitat River Low Flow 3/7/67 4 Klickitat 30 Unnamed Stream 0638 Little Klickitat River Fully

Appropriated Adjudication 030517E 11/10/66

4 Yakima 37 Agency Creek 0003 Simcoe Creek Yakima Indian Reservation

Closed Adjudication in process

10/12/77

4 Yakima 37 Ahtanum Creek 0004 Yakima River Fully Appropriated

Yakima Basin adjudication in process

10/12/77

4 Benton 37 Amon Wasteway 0010 Yakima River Low Flow 5/12/71 4 Yakima 37 Bull Creek 0053 Satus Creek Yakima Indian

Reservation Closed Adjudication in

process 10/12/77

4 Benton 37 Cold Creek 0106 Yakima River Arid land Ecology reserve adjacent to Hanford


10/12/77

4 Yakima 37 Dry Creek 0169 Satus Creek Yakima Indian Reservation


10/12/77

4 Yakima 37 Fortyday Creek 0195 Dry Creek Yakima Indian Reservation


10/12/77


4 Yakima 37 Knockout Creek 0271 Dry Creek Yakima Indian Reservation


10/12/77

4 Yakima 37 Kusshi Creek 0272 Satus Creek Yakima Indian Reservation


10/12/77

4 Yakima 37 Logy Creek 0304 Satus Creek Yakima Indian Reservation


10/12/77

4 Yakima 37 Lousy Creek 0312 Dry Creek Yakima Indian Reservation


10/12/77

4 Yakima 37 Mill Creek 0348 Toppenish Creek Yakima Indian Reservation


10/12/77

4 Yakima 37 Mule Dry Creek 0365 Satus Creek Yakima Indian Reservation


10/12/77

4 Yakima 37 Oak Creek 0386 Dry Creek Yakima Indian Reservation


10/12/77

4 Yakima 37 Satus Creek 0453 Yakima River Yakima Indian Reservation


10/12/77

4 Yakima 37 Seattle Creek 0460 Dry Creek Yakima Indian Reservation


10/12/77

4 Yakima 37 Simcoe Creek 0472 Yakima River Yakima Indian Reservation


10/12/77

4 Yakima 37 Tenie Creek 0512 Satus Creek Yakima Indian Reservation


10/12/77

4 Yakima 37 Toppenish Creek 0528 Yakima River Yakima Indian Reservation


10/12/77

4 Yakima 37 Wahtum Creek 0644 Simcoe Creek Yakima Indian Reservation


10/12/77

4 Yakima 37 White Fir Creek 0654 Dry Creek Yakima Indian Reservation


10/12/77

4 Yakima 37 Wide Hollow Creek

0659 Yakima River Partially Closed Adjudication in process

10/12/77

4 Benton/Kitt itas/Yakim

37 Yakima River 0678 Columbia River Below Chandler powerhouse

Low Flow Adjudication in process

0/0/1905 12/12/77


a

4 Benton 37 Yakima River 0679 Columbia River Lower 6 miles 173 531A

Reserved John Day/McNary

8/8/78 6/24/80

4 Yakima 37 Yatama Creek 0681 Logy Creek Yakima Indian Reservation


10/12/77

4 Yakima 38 American River 0009 Naches River Partially closed Adjudication in process

0/0/1905 10/12/77

4 Yakima 38 Bumping River 0055 American River Partially Closed Adjudication in process

0/0/1905 10/12/77

4 Yakima 38 Cowiche Creek 0132 Naches River Closed Adjudication in process, previous adjudication

10/12/77

4 Yakima 38 Crow Creek 0135 Naches River Partially Closed Adjudication in process

0/0/1905 10/12/77

4 Yakima 38 Indian Creek 0246 Tieton River Partially Closed Adjudication in process

0/0/1905 10/12/77

4 Yakima 38 Naches River 0366 Yakima River Closed Adjudication in process

1/6/55 10/12/77

4 Yakima 38 Nile Creek 0377 Naches River Partially Closed Adjudication in process

0/0/1905 10/12/77

4 Yakima 38 Rattlesnake Creek 0422 Naches River Partially Closed Adjudication in process

0/0/1905 10/12/77

4 Yakima 38 Tietion River 0522 Naches River Partially Closed Adjudication in process

0/0/1905 10/12/77

4 Kittitas 39 Bear Creek 0025 Cle Elum River Partially Closed Adjudication in process

10/12/77

4 Kittitas 39 Big Creek 0033 Yakima River Partially Closed Adjudication in process

9/5/23 10/12/77

4 Kittitas 39 Caribou Creek 0067 Cooke Creek Partially Closed Adjudication in process

10/12/77


4 Kittitas 39 Cle Elum River 0096 Yakima River Partially Closed Adjudication in process

10/12/77

4 Kittitas 39 Coleman Creek 0108 Naneum Creek Partially Closed Adjudication in process

10/12/77

4 Kittitas 39 Cooke Creek 0121 Cherry Creek Partially Closed Adjudication in process

5/3/21 10/12/77

4 Kittitas 39 Cooper River 0123 Cle Elum River Partially Closed Adjudication in process

10/12/77

4 Kittitas 39 Cottonwood Creek 0128 Wenas Creek Partially Closed Adjudication in process

2/23/21 10/12/77

4 Kittitas 39 First Creek 0189 Swank Creek Partially Closed Adjudication in process

0/0/1917 10/21/77

4 Kittitas 39 Jack Creek 0248 Teanaway River, N. Fork Partially Closed Adjudication in process

10/12/77

4 Kittitas 39 Liek Creek 0293 Teanaway River, N. Fork Partially Closed Adjudication in process

10/12/77

4 Kittitas 39 Little Creek 0297 Yakima River Partially Closed Adjudication in process

2/10/97 10/12/77

4 Kittitas 39 Manastash Creek 0322 Yakima River Partially Closed Adjudication in process

4/15/1891

4 Kittitas 39 Parke Creek 0402 Cherry Creek Partially Closed Adjudication in process

0/0/1917 10/12/77

4 Kittitas 39 Reecer Creek 0424 Yakima River Partially Closed Adjudication in process

6/30/06 10/12/77

4 Kittitas 39 Renamed 0493 Yakima River New Name Lmhuma Creek

Partially Closed Adjudication in process

10/12/77

4 Kittitas 39 Selah Creek 0461 Yakima River Partially Closed Adjudication in process

10/12/77

4 Kittitas 39 Swauk Creek 0506 Yakima River Partially Closed Adjudication in process

10/12/77

4 Kittitas 39 Taneum Creek 0508 Yakima River Held Adjudication in process

0/0/17 10/12/77


4 Kittitas 39 Teanaway River 0511 Yakima River Partially Closed Adjudication in process

6/16/21 10/12/77

4 Kittitas 39 Trail Creek 0534 Cooke Creek Partially Closed Adjudication in process

10/12/77

4 Kittitas 39 Umtanum Creek 0546 Yakima River Partially Closed Adjudication in process

10/12/77

4 Kittitas 39 Wenas Creek 0649 Yakima River Partially Closed Adjudication in process

2/23/21 10/12/77

4 Kittitas 39 Wilson Naneum Creek

0666 Yakima River Partially Closed Adjudication in process

8/12/1890 10/12/77

4 Kittitas/Ya kima

39 Yakima River 0680 Columbia River Partially Closed Adjudication in process

0/0/05 12/12/77

4 Kittitas 40 Brushy Creek 0050 Columbia River Closed Wildlife mgmt area

10/23/64 5/26/66

4 Chelan 40 Colockum Creek 0109 Columbia River Closed Over appropriated (misc. decree)

0/9/13

4 Benton 40 Columbia River 0114 Downstream from river mile 352

173 531A

Reserved John Day/McNary, See also WAC 163563040

8/8/78 6/24/80

4 Chelan 40 Mud Lake 0363 Stemilt Creek Adjudication

Withdrawn Over appropriated, Adjudicated

1/14/27 6/14/28

4 Chelan 40 Quillomene Creek 0419 Columbia River Withdrawn Wildlife mgmt area

4 Chelan 40 Squilchuck Creek 0494 Columbia River Withdrawn Over appropriated, adjudicated

1/14/27 6/14/28

4 Chelan 40 Stemilt Creek 0496 Columbia River Withdrawn Over appropriated, Adjudicated

5/24/20 9/3/27

4 Douglas 44 Douglas Creek 0162 Columbia River Denial Fish interest 10/14/70 4 Douglas 44 McCarteney

Creek 0329 Rattlesnake Creek Denial 6/15/50 1/12/51

4 Chelan 45 Canyon No. 2 Creek

0066 Columbia River Denial 9/22/10


4 Chelan 45 Chumstick Creek 0094 Wenatchee River Includes Little Chumstick Creek

Adjudication 10/17/27 10/26/77

4 Chelan 45 Eagle Creek 0172 Chumstick Creek Adjudication 8/14/29 10/26/77 4 Chelan 45 Icicle Creek 0803 Wenatchee River Includes all tributaries,

Station 120458500 173545 Instream Flow See WAC 173

545030 for flow requirements

242417E 6/3/83

4 Chelan 45 Mission Creek 0355 Wenatchee River Includes all tributaries, Station 12462000


082319E 5/22/13 6/3/83

4 Chelan 45 Peshastin Creek 0790 Wenatchee River 173545 Partially Closed Closed 6/15 to 10/15, Minimum flow requirements all year

6/3/83

4 Chelan 45 Wenatchee River 0800 Columbia River Includes all tributaries, 12 457000, Plain rd to headwaters, 12459000, Derby Creek to Plain Rd, 12462500, Mouth to Derby Creek

173545 Instream Flow See WAC 173 545030 for flow requirments

122617E 082418E 112319E

6/3/83

4 Chelan 47 Johnson Creek 0257 Navarre Coulee Partially Closed Adjudicated, Closed to irrigation

0/0/31

4 Okanogan 48 Alder Creek 0005 Methow River 173548 Closed Closed all use 12/26/76 4 Okanogan 48 Alta Lake 0007 No outlet Includes adjacent shallow

ground water 173548 Closed Closed all use 3/21/52 12/26/76

4 Okanogan 48 Bear Creek 0024 Methow River 173548 Closed Closed all use 5/14/30 12/26/76 4 Okanogan 48 Beaver Creek 0029 Methow River 173548 Closed Closed all use 9/20/21 12/26/76 4 Okanogan 48 Benson Creek 0030 Methow River 173548 Closed Closed all use 6/24/11 12/26/76 4 Okanogan 48 Black Canyon

Creek 0034 Methow River 173548 Closed Closed all use 6/20/29 12/26/76

4 Okanogan 48 Black Lake 0035 Lake Creek 25 miles N. Winthrop 173548 Closed Closed all use 033821E 12/28/76 4 Okanogan 48 Black Pine Lake 0036 Buttermilk Creek 173548 Closed Closed all use 363320E 12/28/76 4 Okanogan 48 Chewack River 0085 Methow River 173548 Base Flow 353621E 12/26/76


4 Okanogan 48 Cow Creek 0131 Methow River 173548 Closed Closed all use 12/26/76 4 Okanogan 48 Crater Lake 0134 Crater Creek 173548 Closed Closed all use 12/28/76 4 Okanogan 48 Davis Lake 0141 Davis Creek 173548 Closed Closed all use 6/14/30 12/26/76 4 Okanogan 48 Eagle Lake 0173 Crater Creek 173548 Closed Closed all use 043120E

033120E 12/28/76

4 Okanogan 48 Early Winters Creek

0175 Methow River 173548 Base Flow 273619E 12/26/76

4 Okanogan 48 French Creek 0201 Methow River 173548 Closed Closed all use 12/26/76 4 Okanogan 48 Gold Creek 0209 Methow River 173548 Closed Closed all use 5/7/29 12/26/76 4 Okanogan 48 Libby Creek 0290 Methow River 173548 Closed Closed all use 11/18/21 12/26/76 4 Okanogan 48 Libby Lake 0291 Libby Creek 173548 Closed Closed all use 283220E 12/28/76 4 Okanogan 48 Little Bridge Creek 0295 Twisp River 173548 Base Flow 4/13/53 8/26/54

4 Okanogan 48 Louise Lake 0310 Twisp River 20 miles west Winthrop 173548 Closed Closed all use 12/28/76

4 Okanogan 48 McFarland Creek 0331 Methow River 173548 Closed Closed all use 11/16/22 12/26/76 4 Okanogan 48 Methow River 0337 Columbia River Lower Methow River 173548 Base Flow 203023E 9/30/74 12/26/76 4 Okanogan 48 Methow River 0338 Columbia River Middle Methow River 173548 Base Flow 173322E 12/26/76 4 Okanogan 48 Methow River 0339 Columbia River Upper Methow River 173548 Base Flow 023421E 12/26/76 4 Okanogan 48 Methow River 0340 Columbia River Headwaters 173548 Base Flow 253619E 12/26/76 4 Okanogan 48 Middle Oval Lake 0341 Eagle Creek 16 miles west Carlton 173548 Closed Closed all use 12/28/76 4 Okanogan 48 North Lake 0384 Twisp River 173548 Closed Closed all use 343518E 12/28/76 4 Okanogan 48 Patterson Lake 0405 Methow River 173548 Closed Closed all use 083421E 12/28/76 4 Okanogan 48 Pearrygin Lake 0407 Pearrygin Creek 173548 Closed Closed all use 363621E 12/28/76 4 Okanogan 48 Slate Lake 0479 Twisp River 173548 Closed Closed all use 153419E 12/28/76 4 Okanogan 48 Squaw Creek 0492 Methow River 173548 Closed 12/26/76 4 Okanogan 48 Sunrise Lake 0503 Foggy Dew Creek 173548 Closed Closed all use 283120E 12/28/76 4 Okanogan 48 Texas Creek 0514 Methow River 173548 Closed Closed all use 4 Okanogan 48 Thompson Creek 0519 Methow River 173548 Closed Closed all use 11/30/27 12/26/76 4 Okanogan 48 Twisp River 0545 Methow River 173548 Base Flow 073322E 12/26/76 4 Okanogan 48 Upper Eagle

Creek 0641 Gold Creek 173548 Closed Closed all use 043120E 12/28/76

4 Okanogan 48 West Oval Lake 0651 Eagle Creek 16 miles west of Carlton 173548 Closed Closed all use 12/28/76

4 Okanogan 48 Wolf Creek 0670 Methow River 173548 Closed Closed all use 1/20/70 12/26/76 4 Okanogan 49 Aeneas Creek 0001 Okanogan River 173549 Closed 9/30/25 7/14/76 4 Okanogan 49 Aeneas Lake 0002 No outlet Includes Horse Springs

Coulee 173549 Closed 10/6/54 7/14/76


4 Okanogan 49 Antoine Creek 0013 Okanogan River 173549 Closed 3/5/27 7/14/76 4 Okanogan 49 Blue Lake 0045 173549 Closed 213725E 7/14/76 4 Okanogan 49 Bonaparte Creek 0047 Okanogan River 173549 Closed Closed 5/1 to

10/1, adjudicated 3/23/63 7/14/76

4 Okanogan 49 Chewiliken Creek 0088 Okanogan River 173549 Closed 5/1 to 10/1 7/14/76 4 Okanogan 49 Chiliwist Creek 0090 Okanogan River Shallow ground water

correlation 173549 Closed Adjudicated, 5/1

to 10/1 1/24/64 7/14/76

4 Okanogan 49 Conconully Lake 0118 Conconully Reservoir of Okanogan Irr Dist 173549 Closed Adjudicated 7/14/76 4 Okanogan 49 Conconully

Reservoir 0119 Salmon Creek 173549 Closed Adjudicated 7/14/76

4 Okanogan 49 Duck Lake 0170 173549 Closed Groundwater WAC 173132, Adjudicated

7/14/76 10/18/74

4 Okanogan 49 Fancher Dam Lake

0185 Antoine Creek 173549 Closed 7/14/76

4 Okanogan 49 Forde Lake 0194 Sinlahekin Creek 173549 Closed 7/14/76 4 Okanogan 49 Johnson Creek 0258 Okanogan River 173549 Closed Adjudicated 5/20/26 7/14/76 4 Okanogan 49 Leader Lake 0286 Tallant Creek 173549 Closed 7/14/76 4 Okanogan 49 Lemanski Lake 0289 Pine Creek 173549 Closed 7/14/76 4 Okanogan 49 Loup Loup Creek 0311 Okanogan River 173549 Closed 4/21/59 7/14/76 4 Okanogan 49 Molson Lake 0357 Baker Creek 173549 Lake Level Domestic stock

only 6/9/71 7/14/76

4 Okanogan 49 Nine Mile Creek 0378 Osoyoos Lake 173549 Closed 004027E 7/14/76 4 Okanogan 49 Okanogan River 0391 Columbia River 173549 Base Flow 3/27/74 7/14/76 4 Okanogan 49 Osoyoos Lake 0394 Okanogan River 173549 Closed 9/12/46 7/14/76 4 Okanogan 49 Palmer Lake 0398 Palmer Creek 173549 Close 3/9/65 7/14/76 4 Okanogan 49 Pine Creek 0411 Okanogan River 173549 Closed Closed 5/1 to

10/1 7/14/76

4 Okanogan 49 Pine Creek, S. Fork

0412 Pine Creek 173549 Closed Closed 5/1 to 10/1

6/28/56 7/14/76

4 Okanogan 49 Proctor Lake 0415 173549 Closed 113426E 4/21/59 7/14/76 4 Okanogan 49 Salmon Creek 0436 Okanogan River 173549 Closed Adjudicated 7/14/76 4 Okanogan 49 Salmon Creek, N.

Fork 0439 Conconully Reservoir 173549 Closed 12/22/25 7/14/76

4 Okanogan 49 Salmon Creek, S. Fork

0437 Salmon Creek, W. Fork 173549 Closed 12/22/25 7/14/76


4 Okanogan 49 Salmon Creek, W. Fork

0438 Conconully Reservoir 173549 Closed 12/22/25 7/14/76

4 Okanogan 49 Scotch Creek 0458 Johnson Creek 173549 Closed Closed 5/1 to 10/1

7/14/76

4 Okanogan 49 Sidley Lake 0466 Molson Lake WRIA 60 173549 Lake Level Domestic stock only

6/9/76 7/14/76

4 Okanogan 49 Silvernail Lake 0471 Unnamed Stream 173549 Closed Must maintain lake level

11/9/67 7/14/76

4 Okanogan 49 Similkameen River

0473 Okanogan River 173549 Base Flow 9/25/18 7/14/76

4 Okanogan 49 Sinlahekin Creek 0475 Palmer Lake 173549 Closed Adjudicated, Domestic stock only

5/20/30 7/14/76

4 Okanogan 49 Sinlahekin Impoundments

0474 Sinlahekin Creek 173549 Closed 7/14/76

4 Okanogan 49 Siwash Creek 0476 Okanogan River 173549 Closed Misc Decree 7/14/76 4 Okanogan 49 Spectacle Lake 0486 Okanogan River 173549 Closed 7/24/66 7/14/76 4 Okanogan 49 Tallant Creek 0507 Okanogan River 173549 Closed Closed 5/1 to

10/1 7/14/76

4 Okanogan 49 Toats Coulee Creek

0524 Sinlahekin Creek 173549 Closed Misc Decree 8/9/66 7/14/76

4 Okanogan 49 Tonasket Creek 0527 Okanogan River 173549 Partially Closed Domestic stock only, Closed 5/1 to 10/1

7/14/76

4 Okanogan 49 Tunk Creek 0543 Okanogan River 173549 Closed Closed 5/1 to 10/1

7/14/76

4 Okanogan 49 Whiskey Cache Creek

0653 Antoine Creek 173549 Closed 7/14/76

4 Okanogan 49 Whitestone Lake 0658 Okanogan River Includes tributaries & outlets

173549 Closed Adjudicated 5/22/55 7/14/76

4 Okanogan 49 Zosel's Mill Pond 0683 Okanogan River 173549 Closed 7/14/76 4 Okanogan 50 Goose Lake 0213 Colville Reservation Denial 4/21/59 4 Okanogan 52 Granite Creek 0216 San Poil River Colville Reservation Denial 8/7/44 9/1/68 4 Okanogan 52 Long Lake 0305 San Poil River, W. Fork Denial 7/14/53 4 Okanogan 52 San Poil River 0444 Columbia River Includes tributaries Low Flow 12/30/66 3/19/71


4 Okanogan 53 Columbia River 0111 RCW 90.40.0 30

Withdrawn Federal Withdrawal, See also WAC 176 563040

6/24/80

4 Okanogan 53 Columbia River 0115 Above Coulee Dam RCW 90.40.0 30

Withdrawn Federal Withdrawal (10cfs limit), See also WAC 176 563040

6/24/80

4 Okanogan 53 McGinnis Lake 0332 Denial 10/5/50 8/2/51 4 Okanogan 53 McGinnis Lake 0333 Issued

partial Domestic & stock only

10/5/50 8/2/51

4 Okanogan 60 Lost Lake 0309 Myers Creek Lake Level Myers Creek decree

6/26/22

4 Okanogan 60 Lost Lake 0308 Lake Level 6/26/22 4 Okanogan 60 Toroda Creek 0530 Kettle River Denial 5/31/50 3/2/55

1 2 3

4


1 APPENDIX D: 2

PARTIAL LIST OF IFIM STUDIES CONDUCTED IN WASHINGTON STATE 3 4

While it is beyond the scope of this analysis to compare the instream flows established by rule with subsequent IFIM 5

studies that have been conducted, the following list has been compiled to provide the reader with an additional source of 6

information that might be of assistance regarding further basin specific analyses. 7

8

WRIA Stream Tributary Year Study conducted by

1 Nooksack N.Fork,S. Fork,Middle Fork,Maple Cr,

Kendall Cr, Terrell Cr, Silver Creek

1984 WDOE

3 Samish/Skagit Samish, Day Cr, Parker Cr.,Carpenter

Cr.

1984 WDOE

Lower Skagit 1998 Cascade Environmental Services

(CES) now Duke Engineering

Cultus Mt. Tribs 1998 Cascade Environmental Services

4 Upper Skagit Upper Skagit 1980 UWFRI

Tribs for small hydro

5 Stillaguamish Mainstem and forks, Pilchuck Cr.,Jim 1985 USGS


Cr., Squire Cr, and Canyon Cr.

7 Snohomish Snoqualmie and N. Fork, 1984 Dames and Moore, Hosey &

Assoc.,Weyerhauser

Woods Cr., E.F. Woods Cr, Cherry Cr,

Wallace R

1984? WDOE

S. Fork Snoqualmie 82 Twin Falls Hydro

8 Cedar River 1992 CES

9 Green 1988 Hosey & Assoc., WDOE

10 White 1987 Hosey & Assoc.

Puyallup ? USGS

Carbon ? USGS

Carbon ? USGS

14 Goldsborough 1982 WDOE

16 Dosewallip/Skokomish N. F. Skok. 1978

1985

1992

USFWS

Hosey & Assoc.

Harza

Dosewallips Duckabush,Finch,Eagle,Johns,

Jorsted,Fulton, Hamma Hamma

? WDOE


Hamma Hamma 1983 Ch2MHill

Johns Cr. 1984 WDOE

Dosewallips 1984 WDOE/Dames and Moore

17 Quilcene/Snow Quilcene 1984 Hosey & Assoc.

L.Quilcene, B. Quilcene ? WDOE

Snow 1998 WDG

18 Dungeness 1989 USFWS

Morse 1982 WDOE

19 LyreHoko Lyre ? Ch2MHill

21 QueetsQuinaut Clearwater River tribsShale Cr. Miller

Cr. Christmas Cr. Peterson Cr., Bull Cr.

? USFWS

22 Lower Chehalis Bingham Cr 1997 WDFW/WDOE

Wishkah 1988 Hosey & Assoc.

Cloqallum 1984 WDF

23 Upper Chehalis Newaukum 1984 WDF

Chehalis 1984 WDF

24 Willapa Bay Willapa 1984 WDOE


Naselle 1984 WDOE

26 Cowlitz Butter Cr 1984 Hosey & Assoc

27 Lewis/Kalama Canyon Cr. 1984 Harza

Lewis N. F. Lewis ? Northwest Energy Services

29 White Salmon 1992 Pacificorps, Entrix

30 Klickitat L.Klickitat,Spring, Blockhouse,

Bloodgood, Mill Bowman

1987 WDOE

Klickitat US Fish and Wildlife Service

32 Walla Walla Mill Cr. ? ?

35 Asotin Tucannon, Asotin Cr. N.F. Asotin Cr,

S.F. Asotin Cr, Charley Cr

WDOE

37 Lower Yakima US Fish and Wildlife/Yakama Indian

Nation

38 Naches CH2MHill

39 Upper Yakima US Fish and Wildlife /Yakama Indian

Nation

40 AlkaliSquilchuk Squilchuck,

Stemilt,Colockum,Hanson,Whiskey

Dick, Tekison Tarpiscan, Skookumchuk

WDOE


41 Lower Crab Sand Hollow, Lynch WDOE

44 Moses Coulee Douglas Cr, Rock Island Cr. WDOE

45 Wenatchee Chiwawa, Nason WDOE

Icicle Cr US Fish and Wildlife

Wenatchee IFIM doneunknown by who

46 Entiat Entiat,Mad WDOE

48 Methow Methow,Twisp, Chewuch, Early Winters WDOE

49 Okanogan Similkameen US Fish and Wildlife

1

2

3

4 5

6

working draft - center for natural resource policy · 2013-08-20 · 1 2 working draft 3 4 a...

Documents