Foster v. Department of Ecology
184 Wash. 2d 465
| Wash. | 2015Background
- Yelm sought a municipal water permit that would impair administratively adopted minimum flows in the Deschutes and Nisqually basins; Ecology conditioned approval on an extensive mitigation package (in‑kind retirements and out‑of‑kind habitat/restoration measures).
- Ecology approved the permit under the OCPI (overriding considerations of the public interest) exception in RCW 90.54.020(3)(a); PCHB affirmed after finding the mitigation would produce net ecological benefits despite some residual seasonal impairment.
- Foster appealed to PCHB, then to Thurston County Superior Court; the trial court affirmed PCHB. The Supreme Court granted direct review after its decision in Swinomish came down while the case was pending below.
- The central statutory text at issue allows “withdrawals of water” that would conflict with base/minimum flows only when OCPI are served; related water statutes use both “appropriation” and “withdrawal.”
- The majority held the OCPI exception permits only temporary impairments (withdrawals) and does not authorize permanent appropriations that would indefinitely impair minimum flows; it reversed the approvals.
- A dissent argued (1) “withdrawal” has historically been used to refer to long‑term/permanent groundwater rights, (2) the factual record supported PCHB’s OCPI finding, and (3) Swinomish is distinguishable.
Issues
| Issue | Plaintiff's Argument (Foster) | Defendant's Argument (Ecology/Yelm) | Held |
|---|---|---|---|
| Whether OCPI exception authorizes permanent appropriations that impair minimum flows | OCPI does not allow permanent impairment; Ecology exceeded statutory authority | OCPI permits authorizing withdrawals (including long‑term) when OCPI are served; this permit is justified by mitigation and public need | OCPI allows only temporary withdrawals; Ecology exceeded authority by approving a permanent water right that will indefinitely impair minimum flows |
| Whether Ecology may rely on a balancing/three‑step test (or broad weighing of benefits) to apply OCPI | The three‑step balancing test improperly converts OCPI into a routine reallocation tool and was rejected in Swinomish | Ecology applied a balancing test plus additional PCHB factors and substantial factual findings to support OCPI | Court reaffirms Swinomish: OCPI is narrow, not a vehicle for broad reallocation; Ecology’s balancing approach is insufficient to authorize permanent impairments |
| Whether mitigation/ecological benefits can cure the legal injury to senior water rights | Ecological or habitat mitigation cannot “mitigate” the legal injury of impairing senior water rights; statutory protection of prior appropriations forbids even de minimis impairment without proper appropriation | The mitigation plan produces net ecological benefits and largely offsets depletions; PCHB found mitigation adequate and supported OCPI | Mitigation that yields ecological benefits does not negate the statutory prohibition on permanently impairing senior/minimum flow rights; mitigation is irrelevant to converting a permanent appropriation into an OCPI‑authorized withdrawal |
Key Cases Cited
- Swinomish Indian Tribal Community v. Dep’t of Ecology, 178 Wn.2d 571, 311 P.3d 6 (2013) (OCPI exception is narrow and cannot be used to effect broad, permanent reallocations of water rights)
- Postema v. Pollution Control Hr’gs Bd., 142 Wn.2d 68, 11 P.3d 726 (2000) (minimum flows are appropriations entitled to priority protection; applications impairing existing rights must be denied absent a valid exception)
- State v. Roggenkamp, 153 Wn.2d 614, 106 P.3d 196 (2005) (statutory construction principle: different words in statutes presumptively have different meanings)