Foster v. Ecology- what the Court actually said

On October 8, 2015 the Supreme Court recognized that Department of Ecology cannot use a determination of overriding considerations of the pubic interest (OCPI) to overcome water law as codified by the first in time, first in right doctrine.
Foster v. Ecology is a case that involves a challenge to a water right permit issued by DOE to the City of Yelm. The DOE decision authorized water withdrawals that exceeded minimum flow requirements. This authorized withdrawal impaired senior water right holders. DOE recognized that this authorization impaired minimum flows, but rationalized that under the OCPI, allowing the authorization was allowable. DOE acknowledged that even with mitigation to lower the impacts of this authorized withdrawal, the Yelm permit would impair minimum flows, which in essence impairs senior water right holders. Even after acknowledging the impairment, DOE argued that the authorized withdrawal would have a “net ecological benefit” despite the loss of water resources. The DOE director looks to WAC 173-563-080 to determine what an OCPI actually is. Said WAC states, “Consideration of the public interest by the director of the department of ecology shall include an evaluation of all uses of the river and its impact on the state of Washington. The uses to be considered include, but are not limited to, uses of water for domestic, stockwatering, industrial, commercial, agricultural, irrigation, hydroelectric power production, mining, fish and wildlife maintenance and enhancement, recreational, thermal power production, and preservation of environmental and aesthetic values and all other uses compatible with the enjoyment of the public waters of the state.”
The Supreme Court’s majority saw through this novel interpretation of water law and went back to basics. Water law in Western States is really pretty simple, first in time, first in right. DOE has been doing end runs around this doctrine by using a test that DOE drafted. The Supreme Court has previously declared that the OCPI exception is quite narrow and cannot be used to issue appropriations, but can be used to issue withdrawals in certain situations. Earlier the Supreme Court looked at OCPI under the Swinomish case, where the Supreme Court looked directly at Washington’s water statutes and case law in determining the scope of DOE’s authority to use the OCPI exception to impair minimum flows. In the Swinomish case the Supreme Court looked at our State’s long-established approach to water law which follows “prior appropriation” and “first in time, first in right” doctrines. Washington water law does not permit any impairment, even one that is minimal, to a senior water right. Minimum flows are established by administrative rule and have a priority date as of the rule’s adoption. Withdrawals of water are permitted to impair minimum flows only under narrow OCPI exceptions and DOE cannot widen that narrow exception with a three part test of their own making which would allow for DOE to use the OCPI exception to reweigh or reallocate water in Washington.
In the Foster case DOE issues the permit to the City of Yelm pursuant to RCW 90.54.020(3)(a), which allows DOE to authorize withdrawals of water that impair minimum flows where it is determined that overriding considerations of the public interest are established by the applicant, here the City of Yelm. Foster then appealed DOE’s decision to the Pollutions Control Board (PCHB), which affirmed DOE’s decision, then appealed again to the trial court which also affirmed DOE’s authority to issue the permit. The Supreme Court then used their decision in Swinomish to analyze the statutory provision written into RCW 90.54.020(3)(a) which allows for DOE to issue a permit where said permit is negatively impacting the base flows or minimum flows necessary by simply stating it is in the consideration of public interest. As the Supreme Court stated in Swinomish, this is narrow exception and cannot be used to permanently impair senior water rights with earlier priority dates. The Supreme Court has the power to invalidate any agency rule or order the exceeds the agency’s statutory authority. The Supreme Court must look to legislative intent and give the plain meaning to ordinary statutory language and technical meaning to terms of art to determine if DOE exceeded their authority under RCW 90.54.020(3)(a). The Supreme Court in Foster determined that DOE did exceed their authority with the issuance of the permit to the City of Yelm.
Washington water law is concerned with injury caused by impairment of senior water rights. DOE does not get around the protections written in water law by claiming ecological injury, by using a test under OCPI that DOE drafted themselves. DOE was told by the Supreme Court that water law is supreme in this state and will continue to be so. WCA is a grass roots organization that has policy on its books to support decisions such as this one that uphold water rights.