The Washington Court of Appeals, Division II, issued a decision on June 26, 2019 finding Ecology’s instream flow rule for the Lower Spokane River invalid under the state Administrative Procedure Act (APA). Ecology had adopted a minimum instream flow rule (the rule) mandating 850 cubic feet per second (cfs) on the lower Spokane River, primarily based on fish habitat analysis. This was lower than the amount desired by various recreational groups, who challenged the rule in Center for Environmental Law and Policy v. Department of Ecology, No. 51439-7-II.

The court found that Ecology violated two prongs of the APA in issuing the rule: (1) Ecology exceeded its rulemaking authority and (2) its determination was arbitrary and capricious. First, Ecology exceeded its rulemaking authority by failing to consider all instream values, as required by the Water Resources Act (WRA). The instream values Ecology must consider under the WRA include wildlife, fish, scenic, aesthetic, and navigational values. RCW 90.54.020(3)(a). The court found that Ecology failed to consider recreational values as part of this analysis. Second, the court found that Ecology’s summary conclusion that “a flow protective of fish also protected other uses of the river” was conclusory, unsupported by the record, and was therefore arbitrary and capricious.

Now that the rule is invalidated, Ecology must go back to the drawing board in its rulemaking process. Since a minimum instream flow rule is an appropriation of water with a priority date of the rule’s effective date, RCW 90.03.345, any future minimum instream flow rule will have an even later priority date.

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