State courts side with Spokane River advocates on summer minimum flow levels, protecting recreational use

Spokane River advocates say they got a major win in court Wednesday, assuaging some worries about summer flows dipping below adequate levels for recreational and business uses.

The Washington State Court of Appeals Division II ruled that the Spokane River instream flow rule set by the state Department of Ecology is invalid because it narrowly considered protecting fish habitats as the primary goal. The court’s opinion said Ecology’s rule goes against its statutory obligation to set “base flows necessary to provide for preservation of wildlife, fish, scenic, aesthetic and other environmental values, and navigational values.”

“I think the key thing for the Spokane community is that (the Spokane River) is a real treasure and there are very few communities in the world that have a river flowing through the heart of their community,” said John Osborn, longtime Spokane River advocate and conservation chair for the local Sierra Club’s Upper Columbia River Group. “All you have to do is go down to the river on a hot day in July or August to see all the thousands of people using the river.”

In 2015, Ecology set a minimum instream flow level of 850 cubic feet per second, or cfs – measured downstream of the Monroe Street dam – between June 16 and Sept. 30. A flow rule affects how Ecology issues new water rights, but it doesn’t require businesses, water providers or private well users to put water back into the river.

“If they give water rights away to where that (flow level) becomes the norm, we’re going to have a drought flow each summer,” said attorney Dan Von Seggern of the Center for Environmental Law & Policy, or CELP.

Advocates argued the minimum flow level was not acceptable for recreational uses of the river and could hurt businesses. Some river rafting companies said they wouldn’t be able to operate with flows below 1,000 cfs, according to Von Seggern.

“This flow rule is essential for protecting the community’s and Washington state’s interests in the Spokane River,” Osborn said.

American Whitewater, a nonprofit river conservation organization, said acceptable flows for kayaking, canoeing and rafting the river are between 1,500 cfs and 15,000 cfs, with 5,000 cfs as an optimal flow, according to court documents.

The Department of Ecology denied a petition to change the rule in April 2016. The CELP, American Whitewater and Sierra Club filed a lawsuit the following month and appealed the initial Thurston County Superior Court ruling in summer 2017.

“What we’re saying is, when there’s water in the river it should be protected,” Osborn said. “What Ecology is trying to do is leave the door open to issue more water rights.”

The Department of Ecology could choose to appeal the decision to the state Supreme Court within the next month or revise the flow level rule.

“We will review the (court) decision more in depth and will consider our possible next steps,” Keeley Belva, Department of Ecology Water Resources spokesperson, said in an email. “We remain committed to protecting instream resources and values for the Spokane River and the surrounding community.”

Von Seggern said advocates would like to see a minimum summer flow level set between 1,300 and 1,500 cfs.

“We think that that will protect a lot of real unique opportunities for the community,” Von Seggern said.

Editor’s note: This article was updated on Friday, June 28, 2019 to correct a quote from CELP attorney Dan Von Seggern.