The state Supreme Court heard oral arguments Tuesday in a case that could determine rural water use — and to some extent, rural development — in Skagit County.
The arguments in the court case that pits the state Department of Ecology against the Swinomish Indian Tribal Community center on a provision that the state agency says it needs to provide water for the public good.
But the Swinomish say Ecology is using that provision, called overriding consideration of public interest, too much, and in this case, to the detriment of salmon habitat.
If the Swinomish prevail, the owners of about 5,700 parcels in the Skagit River basin would no longer have a legal access to water, Ecology officials have said. Of those properties, about 400 people have constructed homes on them since 2001.
In 2008, the Swinomish sued Ecology for its actions in 2006 that created reservations providing water for new residential uses in more than two dozen creek basins that feed into the Skagit River.
The basin reservations allowed more development to occur in rural areas. Once the reservations are used up, however, the basins are to be closed to all development that requires a well for a water source.
One basin south of Mount Vernon, the Carpenter-Fisher basin, was closed to residential development in June 2011.
During Tuesday’s arguments, the tribe’s attorney, Marc Slonim, said Ecology’s basin reservations infringe on an older water right meant to protect fish habitat, called an instream flow rule.
The instream flow rule determines how much water is required for healthy salmon populations and is considered a senior water right for fish. In 1996, Ecology, the Swinomish and seven other groups agreed to a process that led to the creation of the instream flow rule in 2001.
Ecology’s 2006 decision amended the 2001 instream flow rule without the consent of all parties, including the Swinomish.
The tribe objects to the state’s use of the OCPI provision allotting more water to rural landowners than the 2001 rule allowed.
The tribe had argued against the agency’s use of the provision and lost its case in Thurston County Superior Court in 2010. The case moved to the state Supreme Court earlier this year.
Slonim said Tuesday that the provision had previously only been used in small instances of clear public need. He said examples of clear public need could include water for a hospital or fighting a fire.
“Who decides what the public interest is?” asked Chief Justice Barbara Madsen.
“I think initially Ecology,” Slonim said, “But there’s a legal determination this court could make.”
That water right, Slonim said, could be forever infringed upon “piece by piece” if the court lets Ecology’s decision stand.
“The statute itself doesn’t say small impairments are OK,” Slonim said. “If you say small impairments are OK, instream flow rights are always going to lose. … There is always going to be an out-of-stream use that is going to have an economic benefit.”
But the agency cannot arbitrarily decide to hand over more water, said Alan Reichman, assistant attorney general representing Ecology. The exceptions for doing so are limited.
“The benefits have to heavily outweigh the negatives,” Reichman said.
Ecology made its decision in this case by weighing the economic benefit of fish habitat against the economic benefit of potential residential, agricultural and industrial uses, Reichman told the justices.
“A 2 percent reduction of flow would not create a threat to the sustainability of the species,” Reichman told the justices. “Over 20 years it would be a $5 million impact.”
It wasn’t just a simple accounting exercise of people verses fish, Reichman said. Ecology performed careful scientific studies to see what harm would be created by taking more water from the creek basins during low-flow periods.
“We are not going down a slippery slope here,” Reichman said. “It’s a narrow exception.”
The decision to provide water using OCPI was not made lightly, he said.
“There were very painful consequences (for not having rural water),” Reichman said. “Ecology looked at both sides of the equation. It saw an overriding and public need to provide water.”
Residents in Skagit County expressed a desire to maintain the county’s rural agricultural lifestyle, he said, and using OCPI as a means to provide that water was appropriate. It was the one and only time in the river basin that Ecology would grant a finite amount of water to rural well users, he said.
Justice Debra Stephens said sometimes people think of “finite” as being a specific period of time.
“You mean forever,” Stephens said. “Not just when some emergency has passed or during a drought. This impairment of the instream flow is authorized.”
Associate Chief Justice Charles Johnson noted the concern of one of the groups that filed a friend-of-the-court brief in support of the tribe, which stated that this use of OCPI could be used in other river basins, notably the Yakima River, which is in the middle of a decades-long water adjudication process.
“Should we be concerned that if we embraced your rule that Ecology could come in and make a new determination?” Johnson asked.
“It’s going to vary basin by basin,” Reichman said. “We have the third-largest river on the Pacific coast. The situation could be different in other basins and it’s a rigorous test.”
During closing arguments, Slonim told the court that Ecology has never used OCPI for such a broad scope.
“What happens if we have a real emergency when you need the water right away? They’ve already given it away because they want to accommodate rural growth,” Slonim said.
It could be several months before the court issues a ruling in the case.
Anacortes was not given time to speak during the hearing, as was previously reported.