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, in-place water replacement, even when the environmental benefits of other types of mitigation greatly outweigh impacts to minimum flows. The Court’s decision enlarged a growing disconnect between the function and intent of instream flow protection rules and the ability of the State to allocate the public’s water for any other purposes, including growing urban and suburban communities throughout the state.

This paper begins with an examination of the history of instream flow protection and its effect on groundwater availability, describes the Yelm water right application decision, and the PCHB appeal and decision. It concludes with the Foster decision and its effects on water right permitting, and discusses the potential “Foster fix” in Part 3 of ESSB 6091, adopted by the Washington Legislature and signed into law in January 2108.

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