When I was a child, I heard that the Colorado River runs dry before it reaches the sea. This seemed wrong somehow. Only by studying water law have I learned that my childish aversion to the river running dry is antithetical to how our society chooses to relate to rivers and streams. The water law system in the western United States—the prior appropriation system—protects peoples’ rights to take water out of a stream. In fact, diversion of water from the stream is an essential element of most water-use rights.
Yet society now recognizes the value in instream flows—water left in the stream. Over forty years ago, the Washington legislature adapted water law to preserve instream flows through water-use rights by authorizing a water right for the river. Unfortunately, while the legal framework exists to create instream water rights, many of these rights have not yet been created.
This article examines whether citizens can successfully petition for the adoption of instream flow rights through the state Administrative Procedure Act. Focusing on Washington State water and administrative law, this article’s conceptual framework could nonetheless be applied in other states with similar laws. Briefly introducing instream flows in Washington water law, this article first examines the state’s recent efforts to create instream flow rules through the Watershed Planning Act. The second section addresses the Administrative Procedure Act and the process for citizens to petition for rule adoption. Next, the third section analyzes judicial review of an agency’s failure-to-act. Lastly, this article assess the judicial review standard in the instream flow rulemaking petition context.
II. PROTECTING INSTREAM FLOWS
Instream flow rules are grafted onto a water law system otherwise designed to maximize the economic value from available water. As water scarcity increases, the tension between conserving water and consuming water has sparked political crisis.
A. Instream Flows in Washington Water Law
In Washington State, an instream flow right is created by the Department of Ecology (“Ecology”), the state agency responsible for regulating water use. Like every other water-use right, it has a priority date—a place in the line of water users. Under prior appropriation, a water-user gets to use water as long as the use does not interfere with a senior water user’s right. If a senior right is impaired, junior users must shut down their diversions until the senior water user can operate unimpaired. This is the brutal logic of prior appropriation: senior users enjoy certainty and predictability with their entire right intact, while junior users may have to shut down completely.