Tag: instream flow regulation

New Speaking Engagement – November 14-15, 2019 Growth Management Act Seminar

Tom will be speaking on the subject of “GMA and Water” on a panel with Sharon Haensly, attorney for the Squaxin Island Tribe, at 9:00 a.m. on Friday, November 15, 2019. The 2-day seminar starts on November 14th at the Seattle Hilton Hotel. Tom’s specific topic will include an update on ESSB 6091 remedies to the Hirst and Foster decisions and…

Bassett Case Set for Oral Argument

I have the honor of representing the appellants in a legal challenge to the Washington State Department of Ecology’s Dungeness River Basin instream flow rule, Magdalena Bassett, et al., v. Washington State Department of Ecology, Case # 51221-1-II.  After a wait of over a year, the case is finally set for oral argument in Division II of the Washington Court…

ESSB 6091 – Part 3: The Potential for Mitigation Flexibility in Water Rights Permitting After Foster v. Yelm

On October 8, 2005, the Washington Supreme Court reversed a water right permit issued by the Department of Ecology (Ecology) to the City of Yelm.1 The decision dramatically impacted the State’s water rights permitting program by denying authority to Ecology to allow any type of mitigation for potential impacts to adopted minimum instream flows (MIFs) other than 100% in-kind, in-time,…

Legislature Passes Hirst and Foster Fix, Authorizes $300 Million for Streamflow Restoration

After last year’s legislative deadlock that failed to adopt either a fix to rural water availability or a capital budget, the Washington State Legislature made quick work of a compromise bill, ESSB 6091,[1] which was the first bill signed into law in the 2018 session. The bill has many features, including: It requires updates to several watershed plans and new…

The Place for Ethics in the Resolution of Hirst and Other Water Conflicts in Washington State

This year’s legislative efforts to restore groundwater availability after the Washington Supreme Court’s decision in Whatcom County v. Hirst resulted in a partisan deadlock that also side-lined the state’s $4 billion capital budget.  Economic impacts of the deadlock are now estimated to run to $11 billion and cause a $37 billion decrease in the value of undeveloped land,[1] which will…

UNDERSTANDING THE HIRST AND FOSTER DECISIONS – WHY DO THEY NEED TO BE FIXED?

The Supreme Court’s Hirst decision, the subject of legislative reform efforts and an impasse over the capital budget, is a very controversial barrier to water availability in rural areas. The Court’s 2015 decision in Foster v. Yelm is another controversial ruling that eliminated water right flexibility for mitigation banking and water availability for growing urban areas.  Both of the Court’s…

Bassett Case Appealed to Supreme Court

On January 3, 2017, I filed a notice of appeal in the Bassett v. Ecology case on behalf of plaintiffs Magdalena and Denman Bassett, Judy Stirton, and Olympic Resource Protection Council. This sends their challenge of the Dungeness River Instream Flow Rule to the Washington Supreme Court. The next step is filing a Statement of Grounds for Direct Review by the…

Whatcom County v. Hirst Decision Requires Counties to Independently Protect Minimum Instream Flows

The Washington Supreme Court’s decision in Whatcom County v. Hirst,[1] will significantly impact rural water availability by requiring Washington counties to ignore exceptions for permit-exempt wells in many of the state’s instream flow protection rules, causing considerable and unwarranted hardship to rural property owners.  The decision expands the Court’s already extreme protection of regulatory instream flows by requiring counties to…

Whatcom County v. Hirst Decision Expands Instream Flow Protection to Counties under GMA

The Washington Supreme Court’s decision in Whatcom County v. Hirst,[1] will significantly impact rural water availability by requiring Washington counties to ignore exceptions for permit-exempt wells in many of the state’s instream flow protection rules, causing considerable and unwarranted hardship to rural property owners.  The decision expands the Court’s already extreme protection of regulatory instream flows by requiring counties to…

Superior Court Denies Bassett Petition

On December 2, 2016, Judge Gary R. Tabor of the Thurston County Superior Court signed the final order denying Plaintiffs’ challenge to the validity of the Dungeness River Instream Flow Rule, Chapter 173-518 WAC.  The Plaintiffs, including the Olympic Resource Protection Council, are property owners, realtors and builders living in the Dungeness basin who were significantly impacted by the Dungeness…

Opening Brief filed in Bassett v. Ecology: Validity of Dungeness Instream Flow Rule Challenged

On July 29, 2016, Tom filed the Plaintiffs’ Opening Brief in the first judicial appeal under the Administrative Procedure Act (APA) of a Department of Ecology instream flow rule.  The case, Magdalena Bassett, et. al, v. Department of Ecology, alleges that Ecology’s Dungeness River instream flow rule (Chapter 173-518 WAC) violates the APA and exceeds Ecology’s statutory authority on numerous…

Is the Fox v. Skagit County case heading to Supreme Court?

One fallout from the Swinomish v. Ecology decision in 2013 was the Department of Ecology’s instruction to Skagit County that it could no longer accept permit-exempt wells in the Skagit basin as proof of an adequate water supply for building permits.  RIchard and Marnie Fox purchased and subdivided a property in Skagit County near the Town of Lyman before 2000,…

2016 Legislative Action Nips at Edges of Washington Water Problems

The Washington State Legislature adopted three water-related bills that were signed into law at the end of the 2016 Special Session ending on March 30th. In a short session devoted primarily to budgeting for education, it wasn’t expected that major reform legislation would tackle the water supply problems created by the Swinomish and Foster cases. Two of the bills dealt with specific…

Save the Date – KCBA CLE on March 31, 2016

Tom will be speaking at a King County Bar Association CLE on March 31, 2016 in Seattle.  The half-day seminar covers environmental issues involving drought and fire, and also features Mitch Friedman of Conservation Northwest, Dr. Crystal Raymond of Seattle City Light, Peter Dykstra of Plauche and Carr LLP, and Sharon Haensly of the Squaxin Island Tribe. Tom’s one-hour topic is “The Impact…