The Skagit River basin Instream Resources Protection Program rule (WAC 173-503) went into effect on April 14, 2001 to protect essential river functions and senior water rights. This rule was the outcome of an open public process with a diverse group of stakeholders that began in 1994 with research on the Cultus Mountain tributaries of the Skagit River.
In 1996, State agencies and local partners in the Skagit River basin signed a Memorandum of Agreement (MOA) to create a comprehensive water management program in the basin. The signatories of the MOA formed the Skagit River Instream Flow Committee to help guide the studies necessary to make instream flow recommendations. As part of that effort, Duke Engineering and Services, Inc. issued a technical report in 1999, proposing minimum flow levels necessary to protect river health. This report served as the basis for the Skagit River instream flow rule.
Skagit Public Utility District (PUD) led these early efforts to estimate future out-of-stream water uses and assess their impacts on fish. Since then, research and planning for Skagit River basin water has been a multi-organization effort, which includes:
- City of Anacortes
- Skagit County
- Skagit PUD
- Swinomish Indian Tribal Community and the Sauk-Suiattle Indian Tribe (known collectively as the Skagit System Cooperative)
- Upper Skagit Indian Tribe
- Washington Department of Ecology
- Washington Department of Fish & Wildlife (WDFW)
- The general public and interested stakeholders
See the science behind the instream flow rule.
In 2006, in response to a Skagit County lawsuit claiming that the rule did not provide adequate guarantees of future water for Skagit property owners, we amended the rule. The amendment established reservations of surface and groundwater, for future out-of-stream uses, not subject to the instream flows. The sizes of the reservations were limited to amounts that WDFW's and our fish biologists determined would not substantially harm long-term fish survival.
The reservations in individual subbasins provided uninterruptible (year-round) water supplies for new agricultural, residential, commercial/industrial, and livestock uses. They were effective as of the original date of the rule, April 14, 2001. The Swinomish Tribe challenged the reservations on the grounds that they compromised adequate protection for fish.
Supreme Court decision and its impact on water use in the Skagit basin
On Oct. 3, 2013, the Washington State Supreme Court ruled in Swinomish Indian Tribal Community v. Department of Ecology (PDF) that we exceeded our authority in establishing the water reservations. The rule reverted to its original text from 2001. Without reservations, year-round water uses that began after the rule took effect in 2001 can be interrupted when streamflows are below the regulatory instream flow levels.
The rule and the Swinomish ruling do not affect water uses established before April 14, 2001.
2001 – 2013 Skagit groundwater uses are secure while water supply solutions are developed
The Swinomish ruling created legal uncertainty for the water use of hundreds of homes and businesses that relied on the water reservations since adoption of the 2001 rule. The Swinomish Tribe agreed that existing water uses should not be curtailed while we developed mitigation options.
Since the court decision, we sought water supply solutions for those homes and businesses affected by the ruling. By 2020, we secured sufficient water to offset the water use of all properties developed after the rule. We continue to work with others to find water supply solutions for landowners in the basin.