PCHB Muddies The Waters on "Water Availability"

Published Jan 11, 2016
Water Resources

In a decision issued in late October 2015, the Washington Pollution Control Hearings Board embraced a novel concept of “legal availability” in applying the “water availability” prong of the four-part test for a new water right. In Stinnette v. Ecology, the PCHB concluded that a proposed water appropriation would be detrimental to the public interest, and that as a result water was not “legally available” for appropriation.

In an article published in the Western Water Law & Policy Reporter, TMW attorney Sarah Mack explains how this circular and unnecessary approach to “water availability” essentially collapses the four-part test into only three factors:  beneficial use; impairment; and detriment to the public welfare. Both the PCHB and the Department of Ecology appear to have relied on notions of “legal availability” of water applied in other contexts—such as subdivision approvals—without analyzing whether “water availability” under the four-part test is equivalent to concepts of water availability under the Growth Management Act and other land use statutes. For more information, contact Sarah Mack at mack@tmw-law.com.