Two recent Washington State Supreme Court cases have significantly altered the course of Washington water law: Swinomish v. Ecology and Foster v. Ecology. These court cases have interpreted the statutory exception to instream flow rules––the “overriding considerations of the public interest” exception––very narrowly. Consequently, Ecology’s approach to future instream flow rulemaking will likely need to change.
The recent Supreme Court rulings may affect local decision-making with respect to instream flow rules. Much of Whatcom County, for example, is subject to the instream flow rule for the Nooksack River, which was established in the 1980s. In areas subject to an instream flow rule, new withdrawals of water are barred if they will cause the river or stream to fall below the minimum flow level set by the rule, unless the statutory exception applies. While the rulings should not affect interpretation or enforcement of the Nooksack instream flow rule, the implications of these rulings may well be considered in any discussion to amend the existing rule.
Our summer associate Haylee Hurst recently published an article in Washington Law Review discussing instream flow rulemaking in Washington State and the new Supreme Court rulings on this issue.
The full text of Haylee’s article is available here.
Haylee is currently in her third year of law school at UW and will be joining our firm in the fall of 2016. She grew up in Lynden and earned her undergraduate degree from Western Washington University.