Washington Supreme Court protects water flowing in streams

Decision part of growing concern about Department of Ecology mismanaging state’s waters in face of climate change

Deschutes River - Photo from WA Dept of Ecology

Deschutes River – Photo from WA Dept of Ecology

On October 8th, the Washington State Supreme Court ruled 6-3 against Ecology’s approval of the City of Yelm’s new water right because the new right would impair existing instream flows in local streams and the Nisqually River. The Court concluded that the state agency’s decision was unlawful because Ecology improperly used a narrow exception in the water code to issue the right, and because Ecology relied on out-of-kind mitigation measures to justify issuance of the water right.   The legal action brought by Sara Foster, a small farm owner in the City of Yelm, was filed in 2011 because of concerns that overpumping groundwater would adversely impact local waterways. This latest decision is set in the context of growing criticism about the Department of Ecology’s mismanagement of the state’s waters through historic over-allocation of water rights and in the face of climate change.

“The Supreme Court’s decision reaffirms the state’s responsibility to protect instream flows,” said Patrick Williams, attorney for Sara Foster. “The decision makes it clear that Ecology must abide by state water laws when approving new water rights.”

The Foster decision means that the Department of Ecology, which is responsible for managing the state’s waters, cannot issue new water rights that will permanently deplete protected flows in rivers.

“I’m thrilled with the decision because it means the water levels in streams in rivers I, and others, enjoy so much will be protected now and in the future,” said Sara Foster, plaintiff in the case.

The Foster decision reaffirms a 2013 Supreme Court decision in a case brought by the Swinomish Indian Tribal Community to protect stream flows in the Skagit River basin. In Swinomish, the Court held that Ecology could not use the narrow water code exemption permanently impair existing instream flows through water reservations for future use. Pursuant to today’s decision, Ecology cannot issue individual water rights that would impact instream flows. Together, Swinomish and Foster underscore that Ecology cannot continue to deplete river flows to meet future water demand.

“It is time for the state to look at water efficiency and conservation and water reuse for new sources of water instead of taking water from instream flows,” added Williams. “The water frontier is over.”

The Foster decision also holds that Ecology may not use non-water environmental restoration projects as a basis for issuing water rights. Ecology has issued a handful of water right decisions allowing river depletion in exchange for activities such as wetland restoration, floodplain easements, placement of large woody debris in rivers, and monetary payments.

“Ecology is increasingly relying on “out-of-kind” mitigation projects as a basis for issuing new water rights,” said Rachael Paschal Osborn, senior policy adviser for the Center for Environmental Law & Policy. “Today the Court has clarified that habitat projects or monetary payments cannot substitute for water. This is a very good decision for Washington’s over-allocated and much-depleted rivers and aquifers.”

The Center for Environmental Law & Policy provided support to Sara Foster through its Water Rights 9-1-1 program helping citizens struggling with water resource issues, and filed a “friend of the court” brief in the case.