Preservation of the quality and quantity of water in natural rivers, streams and lakes is vital to the long-term health of our environment. The physical and legal availability of water is also essential to the economic health of our state and its diverse urban, suburban and rural communities. The lack of availability of water leads inevitably to building permit moratoriums, missed opportunities for industrial and agricultural development, and stripping of virtually all value from land that cannot be used or built upon without an adequate water supply. The public policy question is not whether to protect either the environment or growing communities, it is how to sustainably protect the health of both the environment and communities.
Despite the comparative abundance of manageable surface and groundwater in the State of Washington, it’s water supply train has jumped the rails, making water legally unavailable for new uses wherever minimum flows have been established by regulation. The health of suburban and rural communities is being sacrificed to protect minimum instream flows in a manner that is unnecessary, unwise, and unsustainable. This article explains why and suggests both regulatory and legislative changes to accomplish water availability for both people and the environment, as originally intended by the Legislature in the Water Resources Act of 1971.
Abstract: The current regulatory scheme for protection of minimum flows has evolved into an inflexible “legal impairment” standard that is inappropriate for the protection of environmental rights. It prevents the use of science and ingenuity to solve water allocation and protection issues by restricting access to a common and vital resource in contravention of state legislative policy. The status quo has produced excessive procedural burdens and costs, artificial water markets, and legal uncertainties for new and changing water uses in a growing economy. That is not a status quo the State should be proud or protective of. Active resource management, utilizing legal standards matched to the rights they are protecting, would do a better job of allocating and managing water, including for protection of healthy fisheries.
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*This article was originally presented by the author on July 27, 2015 at LSI’s Water Law in Washington seminar. It has been updated to incorporate new case law (Foster v. Ecology) and new thinking about regulatory and legislative solutions. Caveat: the views expressed in this article are the author’s alone and not representative of or in pursuit of any particular client’s goals.