Washington Supreme Court Rejects "Overriding Considerations of the Public Interest" and Invalidates Water Reservations for Out-of-Stream Uses

Published Feb 03, 2014

In Swinomish Indian Tribal Community v. Ecology, the Washington Supreme Court has decided that “overriding considerations of the public interest” do not allow the Department of Ecology to create “reservations” setting aside water for future out-of-stream beneficial uses in the Skagit River Basin.  In a broadly-worded opinion stressing the water right status of minimum instream flows necessary for fish, wildlife, scenic, and aesthetic values, the Court has undermined other basin regulations with similar set-asides for domestic, industrial, municipal, or agricultural use.  More importantly, the decision also creates significant uncertainty about the validity of numerous minimum instream flow rules that do not meet the four-part test for a new water appropriation.

In an article published in the December 2013 issue of Western Water Law & Policy Reporter, Tupper Mack Wells attorney Sarah Mack discusses the Court’s interpretation of “overriding considerations of the public interest” as a narrow exception to be used only in extraordinary circumstances.  The article also notes some broader implications of the Court’s decision for Ecology’s existing water management regulations and pending rulemaking activities.  Under the Court’s interpretation of the Water Code, minimum instream flows and reservations are “appropriations” that must meet the four-part test for new water rights.  Many of Ecology’s existing basin regulations include minimum instream flows that cannot satisfy the “water availability” prong of the four-part test.

  • To read the article, click here.