Water Rights Deficit Erodes Land Use Permitting: A Review of Foster v. Washington State Dept. of Ecology
In Foster v. Washington State Dept. of Ecology, a recent decision overturning a water permit issued to a municipality by the Washington State Department of Ecology (“Ecology”), the Washington State Supreme Court held that withdrawals of water that impaired minimum flows based on overriding considerations of public interest were required to be temporary. The Foster decision raises significant questions regarding the ability of Ecology to approve new water uses in connection with municipalities’ efforts to accommodate growth and development in land use applications. The somewhat confusing decision has far-reaching impacts, and potentially unintended consequences. Ecology and the city of Yelm have sought reconsideration of the Supreme Court’s ruling, and review is pending.
By Michelle A. Green – Jeffers, Danielson, Sonn & Aylward, P.S. and Mark Peterson – Peterson & Marquis