Foster v. Ecology

Court cancels water right permit for city of Yelm

Ruling to guide Ecology in future water right decisions in water-short basins 


OLYMPIA – The Washington Supreme Court has reversed the state Department of Ecology’s decision to issue a water right permit to the city of Yelm to meet community water needs anticipated from future growth.


In a 6-3 decision issued today in Foster vs. Ecology the court determined Ecology erred in approving the permit because it will impair minimum stream flows in the Deschutes and Nisqually basins. Ecology had conditioned approval on an extensive mitigation package to offset the water use from the permit. Mitigation included retiring existing water rights, habitat protection and stream restoration.


Yelm resident Sara Foster appealed Ecology’s decision to issue the permit to the state Supreme Court after it was upheld in Thurston County Superior Court.     


The case has statewide implications because the court determined Ecology unlawfully applied “overriding considerations of public interest” (OCPI) in making its decision. Ecology uses OCPI as a tool to approve water right permits when water availability is limited, but it appears the public benefits of approval outweigh any impacts on stream flows.


“We are taking today’s ruling under advisement and we will assess what other water management tools we may use in the future to make decisions on complex water needs in water constrained basins,” said  Ecology Director Maia Bellon.