Supreme Court Bruises Department of Ecology in Foster Opinion

On October 8, 2015, the Washington Supreme Court reversed a water right permit issued by the Department of Ecology (Ecology) to the City of Yelm. Two months later, the consequences of this decision are still being sorted out by Ecology, the Attorney General’s Office, and stakeholders. In the meantime, the State’s water rights permitting program has gone off the rails because the Supreme Court’s ruling essentially prohibits new water rights and most changes to existing water rights in basins with minimum instream flow rules, even when environmental benefits greatly outweigh impacts to minimum flows. You can read more about it here by opening the full paper.

The Foster decision is a wake-up call for legislative reform of the “legal water availability” problems created by the manner in which instream flow protection rules have been adopted, applied and interpreted over the last forty-plus years. The original instream flow rules were never intended to regulate all groundwater in the state, which is a principal reason Ecology never balanced the need for water for both instream and out-of-stream uses before adopting minimum flows as water rights. In the mid-1990’s Ecology extended the minimum flow rules and stream closures to all groundwater without public notice or rulemaking, and has since relied upon the “overriding considerations of public interest” (OCPI) exception to authorize new water rights, water right changes, and exempt well usage in basins with instream flow rules. After the Foster and Swinomish decisions, it is clear that the use of OCPI was a failed strategy, and the legal validity of Ecology’s instream flow rules is called into question.

Stay tuned on this blog and my website, www.porslaw.com for more developments concerning the Foster decision and calls for regulatory and legislative reform.

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