Tag: water rights

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,…

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…

Agenda is Set for July 25, 2017 LSI Water Law in Washington Seminar

I was proud to co-chair the leading annual water law seminar in Washington State the last two years.  This year, I will be moderating a panel of distinguished speakers at LSI’s Water Law in Washington seminar on July 25, 2017 in Seattle. The panel topic is, “Local Water Resource Planning after the Hirst Decision.”  There is a lot to talk about, because the…

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…

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…

Summary Judgment Denied in Bassett Case, But Four-Part Test Issue Survives to Hearing

On January 8, 2016, the Plaintiffs’ summary judgment motion in the matter of Magdalena Bassett, et al., vs. Dep’t of Ecology was argued before Judge Gary Tabor of the Thurston County Superior Court. Bassett is a declaratory judgment action challenging the validity of the Dungeness River Basin instream flow protection rule. The complaint alleges that Ecology exceeded its statutory authority in several respects,…

Potential Legislative and Regulatory Solutions to the Water Availability Train Wreck*

Preservation of the quality and quantity of water in natural rivers, streams and lakes is vital to the long-term health of our environment. The physical and legal availability of water is also essential to the economic health of our state and its diverse urban, suburban and rural communities. The lack of availability of water leads inevitably to building permit moratoriums,…

Supreme Court Bruises Department of Ecology in Foster Opinion

On October 8, 2015, the Washington Supreme Court reversed a water right permit issued by the Department of Ecology (Ecology) to the City of Yelm. Two months later, the consequences of this decision are still being sorted out by Ecology, the Attorney General’s Office, and stakeholders. In the meantime, the State’s water rights permitting program has gone off the rails…

Potential Solutions to Washington State’s Post-Swinomish Instream Flow/Rural Water Supply Dilemma

 Introduction Department of Ecology officials and stakeholders have been meeting publicly for the last year to discuss post-Swinomish water allocation solutions for rural areas, but their efforts have been stymied by the lack of consensus on legislative or other solutions.[2] New ideas need to be explored and vetted to move beyond common misconceptions and a dysfunctional status quo. The state’s…

Potential Solutions to Washington State’s Post-Swinomish Instream Flow Regulation/Rural Water Supply Dilemma

Department of Ecology officials and stakeholders have been meeting publicly for the last year to discuss post-Swinomish water allocation solutions for rural areas, but their efforts have been stymied by the lack of consensus on legislative or other solutions. New ideas need to be explored and vetted to move beyond common misconceptions and a dysfunctional status quo. The state’s minimum…