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Washington's Water Right Impairment Standard: How The Current Interpretation Impedes The State's Policy Of Maximizing Net Benefits, Matthew Rajnus

Washington Journal of Environmental Law & Policy

Washington manages water rights under conflicting goals—maximizing net benefits while protecting water rights from any impairment. Over time, the state judiciary, often at the request of the Washington Department of Ecology (Ecology), has elevated the water right impairment standard to an absolute protection. Initially, Division III of the Washington Court of Appeals held that it was proper for Ecology to require a modeled impact of 0.004 percent in river flows, finding that this was substantial and could not be allowed; then, the Washington Supreme Court concluded that any impact constituted impairment; and most recently, the Court paradoxically declared that instream …