CELP and the Department of Ecology are currently litigating a suit involving the Instream Flow Rule for the Dungeness River, brought by property owners and real estate interests. The Rule establishes instream flows to protect fish and wildlife (an instream flow is a "property right for the river") and requires that new groundwater use that could harm the river be mitigated by providing replacement water. Because this Rule protects the river and its salmon habitat, CELP joined the case as a defendant/intervener in support of the Rule. 

One of the plaintiffs' arguments in the case is that before Ecology can adopt an instream flow rule, it must do the same analysis (termed the "four-part test") that it does when granting a water right, including making a finding that there is water available and that the right would not be "detrimental to the public interest". Instream flows need to be set at levels that are not met in all years, because habitat preservation requires that both high- and low-flow years be protected. Requiring the four-part test to be done would require that the instream flow be no higher than what is present in low-flow years, making it impossible for Ecology to set flows that actually protect a river system. 

Plaintiffs brought a motion for summary judgment on this issue, asking the court to find that, as a matter of law, the test was required and that the Dungeness Rule was therefore invalid. On January 8, Thurston County Judge Gary Tabor heard argument on the motion.  Judge Tabor denied the motion, finding that plaintiffs had not shown that "as a matter of law that the four-part test is always required prior to establishing instream flow appropriations by rule." This means that the case will continue to a full hearing, which will be scheduled for later in 2016.