Instream Flow Laws and Rules

Instream flow rules recently adopted or under development

Current Rule-making Activity

Authority for Setting Flows

Authority for setting flows is derived from state statutes. The primary statutes relating to flows and flow setting are:

Water Code, Chapter 90.03 RCW, in section 247 describes Ecology’s exclusive authority for setting flows and describes conditioning permits to established flows.
The Minimum Water Flows and Levels Act of 1967 Chapter 90.22 RCW set forth a process for protecting instream flows through adoption of rules. Among other provisions, it says Ecology must consult with the Department of Fish and Wildlife and conduct public hearings.
The Water Resources Act of 1971 Chapter 90.54 RCW, particularly section 020, includes language that says base flows are to be retained in streams except where there are “overriding considerations of the public interest”. Further, waters of the state are to be protected and utilized for the greatest benefit to the people and that allocation of water will be generally based on the securing of “maximum net benefits” to the people of the state. This Act also authorizes Ecology to reserve waters for future beneficial uses.
Fishways, flows, and screenings Chapter 77.57 RCW (formally Chapter 75.20 RCW), section 020 requires Ecology to consult with the Department of Fish and Wildlife prior to Ecology making a decision on any water right application that may affect flows for food and game fish. Fish and Wildlife may recommend denial or conditioning of a water right permit.
The Watershed Planning Act Chapter 90.82 RCW, in section 080 specifies that local watershed planning groups can recommend instream flows to Ecology for rule-making.

Primary Statutes and Legal Basis Relating to Instream Flows (24kb pdf)

Rule making for flows is done through Ecology’s rule-making authority in the Administrative Procedure Act Chapter 34.05 RCW.

When stream flows are set in rule, the effective date (also called a "priority date") is thirty days after the date of rule adoption. An instream flow is, in essence, a water right for fish and other instream resources. While an instream flow does not affect existing water rights, water rights issued after the rule adoption are junior to the instream flow, and can only be exercised when the instream flow is being met.