Snatching Skagit River Water Is In The Public Interest?

Washington state’s Swinomish tribe faces a water rights battle in the Skagit River basin, the likes of which we have seen before. It’s reminiscent of the dispute that broke out around a decade ago in the Klamath River basin in California and Oregon. That dispute led to a fish kill of about 70,000 salmon after federal intervention severely reduced water flows in the Klamath and its tributaries.

The Swinomish tribe’s fight, however, is uniquely theirs. The tribe is currently arguing before the Washington State Court of Appeals that the Washington Department of Ecology acted illegally in exercising a rarely invoked “overriding consideration of public interest” (OCPI) state water law loophole.

Using OCPI, the Department of Ecology could designate large quantities of water from the Skagit River and its tributaries for domestic, municipal, commercial, industrial, agricultural and livestock watering uses despite the fact that the river consistently fails to meet the basic flow requirements to sustain its health. This broadening and misuse of OCPI is also the topic of a recent amicus brief filed in support of the Swinomish tribe jointly by Earthjustice and the Center for Environmental Law and Policy.

The Skagit River system is the third largest in the western United States and the only one in the lower 48 states to harbor all six species of Pacific salmon. The rivers and streams that flow into the Skagit account for a quarter of all the fresh water flowing into the Puget Sound.

The Swinomish people depend heavily on the salmon and other migratory fish of the Skagit River system for “subsistence, culture, identity and economy,” as they describe in their opening brief to the appellate court. Low river flows have already adversely impacted salmon populations and the tribe’s ability to exercise these practices, which are protected by federal treaty. Further state mismanagement could have catastrophic effects on salmon populations and the communities that rely on them.

During the Klamath River tug-of-war, agricultural irrigators characterized river management as a decision exclusively between people and fish. This deliberate verbiage overlooked the fact that many people—the Yurok, Hupa, Karuk tribes and commercial or recreational fishermen—have a legitimate interest in the river and the health of its fish.

As a steward of the Washington’s waterways, the Department of Ecology has a responsibility to seek fair methods of meeting the state’s water use needs. This expansion of OCPI is an unprecedented maneuver in more than 30 years of administrative practice. It reinterprets this dispute as a people versus water scenario and downplays the human interest in both instream and out-of-stream water usage.