The Skagit Rule in Context

Water use in Washington is regulated through a permit and certificate system, with exceptions for certain uses such as domestic supply from wells. Our water law is based on the “first in time, first in right” or prior appropriation doctrine. Under this system, water users that receive water rights first have priority over water rights established later. The priority system applies to all water rights, including permit-exempt groundwater uses.

The Skagit Instream Flow Rule was adopted in law on April 14, 2001. This rule functions like a water right for the Skagit River with an April 14, 2001 priority date. Water uses established after April 14, 2001 are “junior” to the rule and therefore are subject to curtailment when instream flow levels are not met.

The Skagit River Instream Flow Rule applies to land within the Skagit River watershed, excluding the Samish River subbasin and Fidalgo Island.

Keep informed of Skagit water solutions

Ecology is working with local governments, Tribes, the PUD and other water systems, and affected property owners to develop and implement water supply projects.

 

Water Availability for Skagit Basin Landowners - Questions and Answers

The Skagit River Instream Flow Rule (WAC 173-503) went into effect April 14, 2001.  The rule established instream flows to protect flow levels in the Skagit River and its tributaries.  The rule was amended in 2006 to establish 25 surface and groundwater “reservations”, to allow future uninterruptible out-of-stream water uses.  On October 3, 2013, the Washington State Supreme Court ruled in Swinomish Indian Tribal Community v. Department of Ecology that Ecology exceeded its authority in establishing the water reservations.  The rule reverted to its original text, from 2001.  Without reservations, year-round water uses that began after the rule took effect in 2001 can be interrupted when stream flows are below the regulatory instream flow levels.  To address current and future water resource needs, Ecology is working with local governments, tribes, water utilities, and land owners to develop sustainable water supply solutions in the Skagit basin.

The following questions and answers are provided to better understand how the October 3, 2013 court ruling affects water users in the Skagit River Basin:

How can I find out if my property is within the Skagit River Instream Flow Rule management area? Answer...

The Skagit River Instream Flow Rule applies to land within the Skagit River watershed, excluding the Samish River subbasin and Fidalgo Island.

Skagit County IMAP

Skagit County citizens now have access to an interactive web map that will allow them to search for their parcels and determine if new water uses would be subject to the Instream Flow Rule.

How to find your parcel on the interactive map Open the map, linked below - If the Skagit Instream Rule Area is not displayed on the map, on the left hand Table of Contents, click on Additional Maps and under Map Categories choose Planning and Development, then Skagit Instream Flow Rule Area.

Once that is done, Click on Search pane in lower left of the Table of Contents and enter in your Parcel ID, Owner Name or Address. If you are entering your name, please use last name first. It is suggested that you then zoom out to get a perspective view of the instream flow rule boundaries in relation to your property.

Skagit County IMAP Link

Hide this content.

What does it mean to say a water right is “interruptible”? Answer...

An interruptible water right is one that – because it is junior in priority to other water rights, including instream flow levels – cannot be reliably used year-round. Senior water rights must be satisfied first, so more junior rights may be limited at certain times of the year. When the Skagit River falls below the instream flow levels, all junior water rights are subject to being turned off (interrupted) until the Skagit River meets the regulatory flow levels. The Skagit River has not met the flow levels prescribed in the rule an average of 95 days in each of the past 28 years. These low flow days are mostly concentrated in the late summer and early falls months.

Hide this content.

Does the Rule affect me if I started using water before April 14, 2001? Answer...

No. All water right permits, certificates, and statements of claims with priority dates earlier than April 14, 2001 – including permit-exempt water rights for wells put to use before April 14, 2001 – are senior in priority to the Skagit Instream Flow Rule. Senior water rights, for the quantity and type of use established before 2001, are not subject to the rule provisions. New or expanded uses developed after the rule’s adoption date are likely subject to the rule provisions.

Hide this content.

I started using water after April 14, 2001, but before the October 3, 2013, Supreme Court decision. What is the status of my water supply? Answer...

On October 3, 2013, the Washington Supreme Court overturned the 2006 Skagit Instream Flow Rule amendment that provided uninterruptible water supplies through a regulatory tool called water reservations, in its decision in Swinomish Indian Tribal Community v Department of Ecology. The 2006 water reservations provided uninterruptible water supply for well users that started using water after the original rule was adopted in 2001. Ecology estimates that 475 homes and 8 businesses started using water between April 14, 2001 and October 3, 2013.

At this juncture, if you are among these property and business owners, your water use will not be curtailed even if flows on the Skagit River fall below the instream flow levels set under the rule. Ecology will not interrupt water supply for these land owners and has pledged to find sources of mitigation water for those users that rely on reservation water. Honoring these water uses is part of Ecology’s commitment to work with the community to develop short- and long-term water supply solutions in the basin. Ecology will be contacting these water users directly to provide more information.

Hide this content.

I drilled a well before April 14, 2001, but have not used the water. Am I subject to the Instream Flow Rule? Answer...

Likely, yes. A water right for a permit-exempt well is established when water is first put to use. For domestic water use, Ecology generally uses the date a building permit was approved to estimate the date of first use. If you began using water after April 14, 2001, or have not yet used your well, your water use is considered to be junior in priority to the Skagit Instream Flow Rule. It is therefore subject to the instream flows, under the water laws of our state. Junior water users are subject to interruption when the Skagit River does not meet the instream flow levels set in the rule, unless mitigation is in place to compensate for the impacts of well pumping on stream flow levels.

Hide this content.

Can an interruptible water right be used for domestic water supply? Answer...

Generally, no. Domestic water supply requires continuous water supply of clean water. Health officials are concerned about the reliability of water systems that use storage to save well water and then release it when the well cannot be used. The period of time a well could be interrupted is hard to predict, as stream flow levels fluctuate greatly and groundwater impacts to surface water lag several weeks after the water use. As a result, planning adequate and safe storage is challenging.

Alternative water systems, like a roof-top rainwater catchment system or a water system using trucked water, may be feasible ways to supplement an interruptible well, since these systems must include water treatment and adequate storage.

Hide this content.

Will my water supply be impacted if I am served by a public water system like the Skagit Public Utility District (PUD)? Answer...

No. Properties served by public water systems, like the Skagit PUD, are not affected by the Skagit Instream Flow Rule. This rule applies to privately-owned groundwater wells, for water uses that were not established prior to the effective date of the rule, April 14, 2001.

Hide this content.

I am interested in mitigation. What is the process for mitigation project approval? Answer...

“Mitigation” means compensating for water use so that drawing from a well does not interfere with the instream flows. In coordination with local governments, water utilities, tribes, and the public, Ecology is actively pursuing a range of large and small mitigation projects that will offset large classes of domestic water uses in the Skagit Basin. Ecology anticipates that it will be announcing draft mitigation proposals for public comment. The draft mitigation proposals will include the terms of mitigation and the process for landowners to obtain mitigation credits. After considering all comments, Ecology will issue its final mitigation decision.

Ecology will also evaluate proposals for mitigation projects submitted by individual land owners. If you are interested in a site-specific mitigation proposal, contact Ecology staff to discuss your project. Ecology can provide mitigation guidance and will identify the likely timeline for review as well as challenges that need to be addressed in the proposal.

Hide this content.

Isn’t domestic groundwater use exempt from regulation? Answer...

Domestic groundwater use is only exempt from needing a water right permit. Under Washington water law, permit-exempt groundwater uses are still water rights subject to the same restrictions as water right permits and certificates, including the priority system for water rights. The Supreme Court made clear in the October 3, 2013 Swinomish decision that all water rights established after April 14, 2001 are junior in priority to the instream flows established in the Skagit Instream Flow Rule. This is now the law of the state of Washington that Ecology is bound to follow.

Hide this content.

Why is the state concerned about domestic water use? Doesn’t most of the domestic water get recharged through a septic system? Answer...

Although domestic water use in rural areas uses a small amount of water, the cumulative impact of many domestic water users can together impair stream flows. Hydrogeologic studies and computer models show that domestic wells impact stream flows in the Skagit Basin. The Washington Supreme Court has ruled in several cases that, even if the impairments to regulated stream flows are small, senior instream flows are entitled to protection from the cumulative impact of later-established domestic wells. Ecology recognizes much of indoor domestic water use is recharged back to the watershed through septic systems, and takes this into consideration when calculating credit for the recharge water when developing mitigation. Domestic water used for lawns and gardens does not recharge through septic systems and is mostly lost through evaporation and lawn and plant growth.

Hide this content.

What options exist for Skagit landowners affected by the Rule? Answer...

Skagit basin landowners who wish to use a well, but did not establish use of a well before the April 14, 2001 Skagit Instream Flow Rule, have several options they can pursue. The feasibility of the following options will vary based on site location and other factors:

And, as mentioned earlier, landowners can develop an individual mitigation proposal or wait for Ecology to establish basin-wide mitigation options.

Hide this content.

Contact

For more information on the Skagit Instream Flow Rule and mitigation for new water uses, please contact the Northwest Regional Office Water Resources Program Section Manager:

Ria Berns
ria.berns@ecy.wa.gov
425-649-7270