Foster v. Dep't of Ecology (Majority and Dissent)

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Justia Opinion Summary

The issue this case presented for the Supreme Court's review centered on a challenge to a water right permit issued to the City of Yelm. The permit allowed the Department of Ecology to authorize withdrawals of water that impaired minimum flows where it was determined overriding considerations of public interest (OCPI) were established by the permit applicant. The trial court affirmed the Pollution Control Hearings Hoard's decision approving the permit. Sara Foster was the challenger to Yelm's permit, arguing Ecology exceeded its statutory authority in approving the permit under the OCPI exception. While this case was pending in the trial court, the Washington Supreme Court decided "Swinomish Indian Tribal Community v. Department of Ecology," (311 P.3d 6 (2013)), in which the Court comprehensively analyzed the statutory provision at issue here, and held that the provision operated as an exception to the overall prioritization of water rights, and that withdrawals of water authorized under that statute could not permanently impair senior water rights with earlier priority. After review of Foster's arguments, the Supreme Court concluded that "Swinomish" controlled in this matter, and reversed for many of the same reasons.