Spokane River Instream Flow

August 7, 2020
Center for Environmental Law & Policy

Background

Since 1891, the United States Geological Survey (USGS) has been recording flow rates in the Spokane River; over that 130 year period, the data has revealed a steady decline in river flow. As the impacts of the climate crisis progress, warmer winter temperatures mean less mountain snowpack and smaller inputs of snowmelt contributing to spring and summer river flow. Deeper, longer droughts are reducing the overall amount of precipitation that reaches the river and increasing demand for water in the summer months.

According to our partners Spokane Riverkeeper, “The Spokane River is hydrologically connected to the Spokane Valley-Rathdrum Prairie (SVRP) Aquifer. The SVRP Aquifer provides water for over 600,000 people in Spokane and Kootenai counties. We know the river is the largest source of recharge for our water supply, providing 43% of aquifer inflow annually. The aquifer is also an important source of water for the river, contributing 60% of its annual outflow. … When water is drawn from the SVRP aquifer, the amount of water flowing in the Spokane River decreases.”

A River Under Threat

In 2014, the Department of Ecology (Ecology) proposed an instream flow rule for the Spokane River. At 850 cubic feet per second (cfs), the summer flow rule was set at a level that is considered near-drought level for the river.

Failing entirely to account for recreational users, navigability, local businesses, and the wildlife that depend on the river, CELP and our allies mobilized to challenge the rule. Through our efforts, nearly 2,000 comments were submitted to Ecology during the public comment period on the draft rule. Among the comments were the results of a survey conducted by American Whitewater which indicated that boaters consider flows of less than 1,350 cfs to be unfavorable at best and impassable at worst, potentially causing damage to some craft. Among all boaters 5,000 cfs seemed to be the optimal flow rate.

Take a look at the photos below to see how drastically different various section of the Spokane River look at 25oo cfs versus 1000 cfs. And imagine how devastating an accepted instream flow of 850 cfs would be.

2016 Petition

Despite the efforts of our partners and the community, Ecology ignored public comments and adopted the 850 cfs flow rule in 2015. In response, CELP and our allies petitioned the rule in 2016. As a part of our petition, we advocated for Ecology to amend the flow rule to be at minimum 1800-2800 cfs, a target based on historic flow data and the biological needs of several fish species.

Our petition was denied, so we took the fight to the Court of Appeals Division II in 2019.

2019 Victory

In our appeal, CELP argued that the state was required to consider all uses of the river in adopting instream flow rules. On June 26, 2019, the Washington State Court of Appeals Division II ruled in favor of Spokane River advocates, finding that Ecology failed to protect summertime flows needed not just by the river, fish, and wildlife, but also thousands of boaters, fishers, anglers, and local businesses. In rejecting Ecology’s instream flow rule of 850 cfs, the Court underscored that the agency arbitrarily disregarded thousands of public comments which included boater surveys, analysis comparing the aesthetics of various flows, and testimony of river-dependent businesses.

Key Takeaways from the Ruling:

“The [Spokane] river is a central feature of the region’s identity, and Spokane residents view the river as an integral part of their community. (Opinion, p.3)
Ecology may not “narrowly protect only one instream value that Ecology deems ‘best’”, but must “meaningfully consider a range of instream values . . .” (Opinion, p. 17)
“Ecology’s explanations for establishing instream flows based only on fish habitat studies without regard to how its proposed flow would protect other values was arbitrary and capricious. Therefore, the resulting Rule is invalid.” (Opinion, p.21)

State Supreme Court Review & Ruling

In 2020, Ecology requested a review which was accepted by the Washington State Supreme Court. The case was argued by CELP on May 14, 2020.

Ultimately, the State Supreme Court ruled against river advocates, upholding Ecology’s drought-level instream flow rule. The decision subverts the will of the state legislature—granting ultimate control over river flows in Washington exclusively to Ecology—and worse, establishes a superficial role for public input the agency is free to completely ignore. Nothing in the court’s decision, however, prevents Ecology from one day restoring Spokane River flow rates to levels that will sustain and restore fish populations, preserve recreational opportunities, support the local economy, and revive the character of the Spokane River.