Foster v. Ecology: Another Look at "Overriding Considerations of the Public Interest" in Water Right Decisions

Published Feb 03, 2014

In the wake of the Washington Supreme Court’s decision in Swinomish Indian Tribal Community v. Ecology, 178 Wn.2d 571 (2013), a decision issued in the spring of 2013 by the Pollution Control Hearings Board (PCHB) is receiving closer scrutiny.  In Foster v. Ecology, the PCHB upheld a new water right issued to the City of Yelm based on the Department of Ecology’s determination that “overriding considerations of the public interest” (“OCPI”) justified a new water right that will conflict with minimum instream flows.

In an article published in the January 2014 issue of Western Water Law & Policy Reporter, Tupper Mack Wells attorney Sarah Mack explains how the PCHB’s interpretation of the OCPI exception in Foster foreshadowed the Supreme Court’s highly restrictive view of the exception in the Swinomish case. For more information, contact Sarah Mack at

  • To read the article, click here.