Minimum Flow Determines Rights to Draw Water

The Hubbard brothers each owned land on the south end of the Wagonroad Coulee, a valley near the Okanogan River in Washington. Both obtained temporary permits to draw water from their wells to irrigate fruit orchards they planted. Both sought water right permits. Both drew water from their wells while awaiting the outcome of their applications. After an investigation that began in 1992, the state Department of Ecology concluded that significant continuity (i.e., a significant connection) existed between the valley's groundwater and the river. Accordingly, the department approved a specified amount of withdrawal for irrigation and ± frost control but conditioned the use on maintenance of minimum river in‐stream flow levels. Thus, the Hubbards would have to cease pumping whenever the river fell below minimum flow. On appeal, the Hubbards contended that no significant hydraulic continuity existed between their wells and the river. But the court said the valley aquifer was tributary to the Okanogan aquifer and it affects, even if minutely, the river's flow. The court found that the Department of Ecology's decision to grant conditional permits was not manifestly unreasonable.