March 5, 2014

Dam(med) if You do


Washington Court of Appeals Division II issued a decision on an interesting case on Tuesday regarding damage caused by release of additional water to property below a dam on the North Fork of the Skokomish River. The water was released in order to protect salmon and improve water quality.

In 1923 Tacoma condemned not only all the entire property rights of certain properties upstream from the North Fork dam, but also condemned the riparian rights of those properties[1] Below the dam.

From 1926 to 1988 the dam released only a trickle (about 10 cubic feet per second [“CFS”]) into the North Fork (which eventually joins the main stem of the Skokomish.) In 1988 the Federal Energy Regulatory Commission (“FERC”) thrust onto Tacoma a threefold increase in water release to 30 CFS in order to improve water quality.  By 2010, the flow had steadily crept up to about 240 CFS, to ensure the protection of salmonids.

Unfortunately, the increased flow caused flooding on downstream properties, resulting in the lawsuit. Tacoma argued that the prior condemnation precluded property owners from seeking compensation.  However, the court disagreed.  Richert parried that the more than 80 years of low flows caused gravel to build up.   When the flow increased this build up caused water to back up on the properties.  This was not foreseeable when the original condemnation action took place and the Court allowed the claim to proceed.

I usually don’t editorialize on this blog, but this case just screams for it.  I feel sympathy for Tacoma.  Eighty years after the fact they’ve been left with a no-win situation:  violate FERC requirements and potentially create possible avenues for a citizen suit, or damage private property because of increasing flows.  I just wonder how many more cases similar to the North Fork of the Skokomish Dam may be around the next riverbend.  The real loser is the public tax payer.


[1] Washington abolished riparian rights in 1917.  But Washington recognizes riparian rights established prior to the change in law in 1917.

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