Water rights could change

COEUR d'ALENE - The state of Washington has proposed a new rule on a section of the Spokane River, which could affect new water rights over the Rathdrum Prairie Aquifer.

The Washington Department of Ecology is proposing an "instream flow rule" for the main stem of the Spokane River in Spokane County and a small portion of Stevens County.

The department has the responsibility to protect rivers and streams with an allocation of water set by establishing instream flow rules, the agency stated in the press release Wednesday.

Idaho has already established flows in its section of the Spokane River.

Both Idaho and Washington have "first in time, first in right" water appropriations laws. That means the entity that secures water rights first will have priority in accessing water during low-water years.

Water rights secured prior to Washington's instream flow should not be affected if the flows cannot be attained, but upstream water rights issued on the river or bi-state aquifer after the rule is adopted could be affected.

At a water law conference in Coeur d'Alene earlier this year, Andy Dunau, executive director of the Spokane River Forum, explained that the Monroe Street summertime flow goal is likely to become controversial because the state is seeking 850 cubic feet per second (cfs) at that location.

He said that reach of the river does not always hit 850 cfs flow during the last two weeks of June and August. He said that could affect future water rights in Spokane and possibly most of Kootenai County.

WDOE issued the draft rule in May to solicit comments on the proposal and several of the commenters were concerned with how the rule would affect Idaho.

Commenting on behalf of the Citizens for Environmental Law and Policy, the Sierra Club, and the Columbia Institute for Water Policy, water attorney Rachael Pascal Osborn mentioned several bi-state issues.

"The flows adopted in this rule will effectively function as Washington's reservation of environmental flows in any future agreement or court order dividing Spokane River and (Spokane Valley Rathdrum Prairie Aquifer) waters between Idaho and Washington," she wrote. "As the USGS model referenced in the draft rule indicates, groundwater pumping in Idaho will deplete flows in the downriver reach of the Spokane River, and will have little if any impact in Idaho. Idaho continues to grant substantial numbers of water rights from the SVRP Aquifer.

"What Washington fails to protect here will be awarded, at least partially, to Idaho in a future interstate apportionment proceeding," she continued. "For this reason alone, Washington should declare a water right for the maximum justifiable instream flow quantities. Why Washington would not do so defies explanation."

The department of ecology acknowledged Osborn's concerns, and responded.

"The instream flows would apply to new junior withdrawals in Washington," the department wrote. "Ecology believes a defensible, scientifically derived flow regulating water use in Washington provides a solid basis for the future in any form the management of the region's water supply might take."

The department said in a press release Wednesday that the new rule is necessary to protect all of the uses in the Spokane River.

"The Spokane River provides habitat for fish and wildlife and opportunities for recreation while playing an important role for other uses such as wastewater management and hydropower," the release said. "The proposed rule will help protect these and other instream uses by setting a regulatory threshold to determine whether there is water available for new uses."

The new rule can be found on the WDOE website at www.ecy.wa.gov/programs/wr/rules/557-tl.html.

When an instream flow rule is proposed, state law requires a State Environmental Policy Act determination and an economic analysis for the rule. These draft documents are also available for review and comment on the website.

The public can provide comments on the proposed rule through an online feedback system or by emailing Ann Wessel through Nov. 7. Wessel's email address is: ann.wessel@ecy.wa.gov.

Ecology will host an open house at 6 p.m. followed by a public hearing at 7 p.m., Oct. 22, at CenterPlace Regional Event Center, 2426 N. Discovery Place, in Spokane Valley.