Spokane River flow rule was properly set, state Supreme Court says

OLYMPIA – A state rule for the minimum amount of water that must flow in the Spokane River was properly set, a unanimous Supreme Court ruled Thursday.

The state Department of Ecology had the authority to set that standard at 850 cubic feet per second during the summer and wasn’t acting arbitrarily by doing it, said a decision written by Justice Barbara Madsen .

The department set the standard in 2015 after trying unsuccessfully to reach consensus with different groups at odds over the amount of water needed to protect fish and allow for other river uses.

It used the recommendation of a Department of Fish and Wildlife biologist who had studied the river, then gathered and responded to comments from people and groups that disagreed with his conclusion that a standard of 850 cfs was enough.

The department reviewed but ultimately rejected a request to amend the rule in 2016.

The Center for Environmental Policy and Law and others filed suit, saying the department’s decision was arbitrary and the agency was violating the public trust.

The decision was a balance of two statutes and the way they describe the different interests the department must consider, Madsen wrote.

“Ecology has the authority to balance competing interests and values when setting instream flow rates,” she wrote.

The law gives the agency the power to exercise its discretion, and an administrative record of some 19,000 pages “supports that Ecology appropriately did.”

Trish Rolfe, executive director of the Center for Environmental Policy and Law, said the group was “very disappointed” with the court’s ruling. Although Thurston County Superior Court had initially dismissed the case, the state Court of Appeals had ruled the Ecology Department had exceeded its authority – a decision the Supreme Court rejected in its Thursday ruling that once again dismissed the suit.

“We think this is a sad day for the Spokane River and the people of Spokane,” Rolfe said.

The group will continue to urge the department not to issue more water rights that would further reduce the amount of water in the river, she added.