Washington Supreme Court Rejects City of Yelm's Water Right in Foster v. Ecology

Published Nov 09, 2015
Water Resources

On October 8, 2015, the Washington Supreme Court issued a 6-3 decision in Foster v. Ecology, rejecting reliance on “overriding considerations of the public interest” to allow a new municipal groundwater right that would conflict with regulatory minimum instream flows and stream closures.  The court majority’s highly restrictive view of the “overriding considerations of the public interest” exception in the Water Resources Act rests on a novel construction of the word “withdrawal” as a merely temporary use of water that cannot be an “appropriation” under the Water Code.  Two motions for reconsideration are now pending before the Court.

In a feature article published in the Western Water Law & Policy Reporter, TMW attorney Sarah Mack explores the statutory framework for minimum instream flow regulations, the Court’s increasingly restrictive approach to the “overriding considerations of the public interest” exception in state water policy, and the potentially far-reaching consequences of the Court’s statutory interpretation for groundwater permitting and management of permit-exempt wells.  For more information, contact Sarah Mack at mack@tmw-law.com.