Water use in Washington is regulated through a water right permit and certificate system, with exceptions for certain uses such as domestic supply from wells. Water law is based on the “first in time, first in right” prior appropriation doctrine. Under this system, water users that receive water rights first have priority over water rights established later. The priority system applies to all water rights, including permit-exempt groundwater uses.
The Skagit River instream flow rule (Chapter 173-503 WAC) took effect April 14, 2001. The rule established instream flows to protect flow levels in the Skagit River and its tributaries. The instream flows function as a water right for the stream. We amended the rule in 2006 to establish 25 surface and groundwater “reservations” to allow future, uninterruptible out-of-stream water uses. On Oct. 3, 2013, the Washington State Supreme Court ruled in Swinomish Indian Tribal Community v. Department of Ecology that we exceeded our authority in establishing the water reservations. The rule reverted to its original 2001 text.
Without reservations, year-round water uses that began after the 2001 rule took effect can be interrupted when streamflows are below the regulatory instream flow levels. To address current and future water resource needs, we are working with local governments, tribes, water utilities, and landowners to develop sustainable water supply solutions in the Skagit River basin.
We are providing the following questions and answers to help Skagit River basin landowners better understand how the court ruling may affect them.