Washington State Supreme Court

Patrick Williams — attorney for Sara Foster, who challenged the Department of Ecology's approval of the city of Yelm's water rights — argues before the state Supreme Court Thursday morning.

The Washington State Supreme Court heard oral argument on the Yelm water rights case last Thursday.

The justices asked ample questions of both sides. Their questions appeared to focus on the permanence of Yelm’s water rights, the application of the “overriding consideration of the public interest” exception used to justify granting the city’s water rights, and whether the city’s mitigation efforts make a difference in whether the water rights were appropriately awarded.

The Department of Ecology (DOE) first approved the city’s water right permit in October 2011. Yelm resident Sara Foster appealed to the Pollution Control Hearings Board (PCHB). When the board affirmed the city’s water right, she appealed to Thurston County Superior Court and, after the court again affirmed the city’s water right, she petitioned for direct review to the Supreme Court, bypassing the Court of Appeals.

The permit allows the city to withdraw and use 942 acre-feet of water per year, at a maximum rate of 3,000 gallons per minute. The city and the DOE contend the water is needed to serve both the present population and the projected future population within the city’s urban growth area.

Standing before the state Supreme Court justices on Thursday, Patrick Williams, Sara Foster’s attorney, said the case comes down to whether the Department of Ecology had the authority to reallocate water rights under the narrow exception allowed under state law — an exception that hinges on whether there’s an “overriding consideration in the public interest.”

Overriding Consideration of Public Interest

The exception for “overriding consideration in the public interest” — often abbreviated to OCPI by the attorneys and justices on Thursday — allows withdrawals of water only when it’s clear the overriding consideration of the public interest would be served.

“It’s undisputed that but for the use of this exception, the Department of Ecology would have been required to deny the city of Yelm’s water right permit for its new water right,” Williams said.

The court recently examined the OCPI exception in another case, Williams said: Swinomish Indian Tribal Community v. Department of Ecology.

In that case, the Department of Ecology passed rule amendments and set aside future reserve water that took some of the water set for the in-stream flows and used it for out-of-stream uses, Williams said.

The Supreme Court found DOE’s authority to reallocate that water was not found in the OCPI exception, and that the OCPI exception is very narrowly construed and can be utilized only in extraordinary circumstances, Williams said.

Attorney Robin McPherson, representing the state Department of Ecology, said the court should affirm the city’s water right, because “this is a single permit for a single well conditioned to guarantee better protection of base flow values in the instream flow rule alone.”

This case is distinct from the court’s decision in Swinomish, McPherson said, because that case rejected a wide-ranging reallocation of water in an amendment to the flow rule itself.

The Legislature has given the DOE the authority to use the OCPI exception for a narrow circumstance — and this is a narrow circumstance, she said, “because the exception was only pursued as a last resort, the permit conditions bring more water to the stream, provide for better habitat and provide a long-term sustainable water supply.”

“This is a Legislative delegation to Ecology,” she said. “Ecology can authorize withdrawals that would conflict with base flows, which means impair in-stream flows.”

When asked by Chief Justice Barbara Madsen whether withdrawing water is different than reallocating the right to water, McPherson said no one can withdraw water without a permit. When the DOE authorizes the withdrawal of water, a permit is the tool the department uses.

“So that is different than in the Swinomish case, which was a carve-out for a reserve of water that would be used for hundreds if not thousands of wells that would never need permits,” she said. “That was a reallocation that changed the very rule. This narrow application of the exception did apply the four-part test to this water right and did determine that there would be impairment of in-stream flows and looking at the overriding considerations here, the findings show that the impact to the stream is fully mitigated by stream benefits. And that is the core of this overriding consideration.”

When asked about the supplemental briefing describing the city’s need for water as “stark,” and whether that alone is sufficiently an “extraordinary” circumstance, McPherson said: “I think extraordinary means a lot. In this case more is required than simply the need for water. This is extraordinary because the overriding consideration is an extreme benefit that overrides the stream impact. It is relevant that this is a long-term public water supply, but that alone cannot justify impairment of the stream flow, because that is the problem in the Swinomish case, where the court held that an out of water use cannot be enough to override the in-stream need or else there would always be a time when the exception could impair the rule.”

Permanent or Temporary?

Williams argued that because the DOE granted a permanent water right to the city, the OCPI exception doesn’t apply, and granting the right would allow the city to withdraw water even if water availability dwindles in the future.

“To have a permanent water right that is going to be continually in impairment for the life of that water right, is not going to be allowed under the statute ... we are in a drought this year that’s been declared,” he said. “The climate is changing and regardless of how much water is in the stream, Yelm will be able to take its full rights, at a minimum is already being hit by Yelm’s proposed water right, and if there’s less water in the future for fish in in-stream flows, that would be just too bad for fish in in-stream flows at that point and Yelm will be able to continue to pump their well.”

Justice Debra Stephens asked Joseph Brogan, the attorney representing the city of Yelm, whether the DOE can permanently reallocate water rights.

“I think everyone recognizes that once the exception is applied to permit Yelm’s right, that’s a permanent water right and it takes priority,” she said. “The distinction Ecology draws is, Swinomish had more than just one applicant, here we just have one applicant. I guess, can you explain to me why that really matters when you’re talking about what amounts to a permanent water rights allocation?”

“I think the question of permanency, of the impacts, is one that goes back to the statute itself,” he answered. “There is no indication in the OCPI statute that the Legislature intended that that statute not be applied in situations where there would be a permanent impediment to instream flows. That language is simply absent from the statute.”

“Setting minimum flows in these streams, ‘minimum’ suggests that that’s the baseline, you can’t go lower and support the values that are being supported by that,” said Chief Justice Madsen. “So if it’s permanent, isn’t that at odds with the setting of the minimum flows? Isn’t it more consistent to say on a one-time basis, or on a limited basis in an emergent situation, that that would be an authority that Ecology would have to give that permission? But on a permanent basis, you now undercut what the minimum flow is. I just don’t understand, then where are your minimum flows?”

Brogan: “I think if the Legislature intended something different, it certainly cannot be found in the plain language of the OCPI exception.”

Stephens: “None of these factors are found in the plain language of the OCPI exception. It’s one sentence.”

Brogan: “It’s a sentence that, your honor, demands a thorough analysis and inquiry of overriding consideration of the public interest. So it does have meaning and can be harmonized with the prior appropriation doctrine as I mentioned earlier.”

Justice Susan Owens read a sentence from the Swinomish decision: “This exception does not permit the Department of Ecology to reassess the relative merits of the uses and reallocate water that is needed to maintain the in-stream flows through reservations of water for future beneficial uses.”

“Where’s the wiggle room in that?” she asked. “That seems to answer Justice Madsen’s question previously that you can’t do this.”

Brogan: “The facts of Swinomish are vastly different than the facts in this case. In Swinomish, there was essentially the creation of 27 reservations of water that were unmitigated and created as if there was no instream flow rule at all. Here, this case involves the narrow application of an exception based on the analysis of a segment of a mitigation plan. A mitigation plan that is considered to be an exceptional mitigation plan, and that on balance actually provides for net ecological benefits to the resource. The two cases couldn’t be any more different.”

Mitigation

A key question was whether the city’s mitigation projects, meant to mitigate the impact of withdrawing water on the environment, should have been a factor in whether the DOE granted Yelm’s water right permit.

Justice Charles K. Wiggins asked Williams about the PCHB’s determination that the “amount of water depletion (from granting Yelm’s water rights) was small, so that there is no or a minimal impact to water resources.”

That criteria violates a previous Supreme Court holding, that it’s not the amount of water, whether minimal or large, taken from an in-stream flow that matters, Williams said. It simply matters that some water is taken from an in-stream flow, he said.

Justice Steven C. Gonzalez asked Williams about criticism that he hadn’t provided expert opinion to counter the DOE’s experts, who provided testimony that Yelm’s mitigation efforts resulted in a net ecological benefit.

“My response, and I mean this in all seriousness, is I represent low and pro-bono clients, and expert testimony is very, very expensive,” he said. “When we were initially looking at this appeal for the PCHB, we saw that the real issue is not whether we can refute whether putting large, woody debris in a stream is going to offset the impact to the resource. The real issue is an authority issue. It’s Ecology’s self-delegation of authority to override more than 100 years of the prior appropriation system and over 50 years of the water code in order to get at water that’s going to be coming out of stream at the expense of in-stream flows.”

Wiggins asked about expert opinions that mitigation would “more than offset” the depletion of the flow. “Does that make any difference in this case?” he asked.

Williams brought up Yelm Creek, and said, “Yelm Creek is a small creek that is closed to any further appropriation year-round. It does have low flows, but it also suffers some of the highest relative impacts that’s going to occur under the proposed use. Ecology and Yelm will say that the depletions are small, which they are, but they’re large relative to the amount of water that’s actually still remaining in Yelm Creek.”

McPherson told the court the DOE’s permit conditions bring more water when fish need it most during the dry summer months, because the in-kind mitigation — irrigation rights that must be purchased and retired as a condition of the permit — are summer irrigation rights, and they add 10 percent of water to the stream, she said.

“It is an impairment of water, yes, but it is important, and was important to the (pollution control hearing) board’s findings that more water is there,” she said. “This is late August and September when the Chinook return from the Sound and come up the Deschutes River. More water, colder water. And that the impairment to the extent that there is remaining impairment is mitigated by direct habitat improvements, and this was the technical finding of the board based on expert testimony from hydrologists and fishery scientists.”

The court will take months at minimum, and potentially up to a year, to reach a decision in the case.

Original story:

The Washington State Supreme Court heard oral argument on the Yelm water rights case this morning.

The justices appeared to ask hard questions of both sides. Many of their questions referenced potential future water challenges to the state, fresh in the public consciousness after Gov. Jay Inslee declared a statewide drought on May 15, and how granting Yelm's water rights might impact that situation in the future.

The court will take months at minimum, and potentially up to a year, to reach a decision in the case.

The Department of Ecology (DOE) first approved the city’s water right permit in October 2011. Yelm resident Sara Foster appealed to the Pollution Control Hearings Board (PCHB). When the board affirmed the city’s water right, she appealed to Thurston County Superior Court and, after the court again affirmed the city’s water right, she petitioned for direct review to the Supreme Court, bypassing the Court of Appeals.

The permit allows the city to withdraw and use 942 acre-feet of water per year, at a maximum rate of 3,000 gallons per minute. The city and the DOE contend the water is needed to serve both the present population and the projected future population within the city’s urban growth area.

Standing before the state Supreme Court justices on Thursday, Patrick Williams, Sara Foster's attorney, said the case comes down to whether the Department of Ecology had the authority to reallocate water rights under the narrow exception allowed under state law — an exception that hinges on whether there's an "overriding consideration in the public interest."

Overriding Consideration of Public Interest

The exception for "overriding consideration in the public interest" — often abbreviated to OCPI by the attorneys and justices on Thursday — allows withdrawals of water only when it's clear the overriding consideration of the public interest would be served.

"It's undisputed that but for the use of this exception, the Department of Ecology would have been required to deny the city of Yelm's water right permit for its new water right," Williams said.

The court recently examined the OCPI exemption in another case, Williams said: Swinomish Indian Tribal Community v. Department of Ecology. (You can download the Supreme Court's decision in that case as a PDF file here).

In that case, the Department of Ecology passed rule amendments that set aside future reserve water that took some of the water set for the in-stream flows and used it for out-of-stream uses, Williams said.

The Supreme Court found DOE's authority to reallocate that water was not found in the OCPI exception, and that the OCPI exception is very narrowly construed and can be utilized only in extraordinary circumstances, Williams said.

"Ecology and Yelm will attempt to distinguish the facts from the Swinomish case from the facts in this case," he said. "However, it's not the facts that will really make a difference in this case. The legal reasonings and principles that were addressed and applied in the Swinomish decision apply directly to this case as well."

Attorney Robin McPherson, representing the state Department of Ecology, said the court should affirm the city's water right, because "this is a single permit for a single well conditioned to guarantee better protection of base flow values in the instream flow rule alone."

This case is distinct from the court's decision in Swinomish, McPherson said, because that case rejected a wide-ranging reallocation of water in an amendment to the flow rule itself.

The Legislature has given the DOE the authority to use the OCPI exception for a narrow circumstance — and this is a narrow circumstance, she said, "because the exception was only pursued as a last resort, the permit conditions bring more water to the stream, provide for better habitat and provide a long-term sustainable water supply."

The DOE did not grant itself such authority; the Legislature granted it the authority in the plain language of the statue, McPherson argued.

"This is a Legislative delegation to Ecology," she said. "Ecology can authorize withdrawals that would conflict with base flows, which means impair in-stream flows."

When asked by Chief Justice Barbara Madsen whether withdrawing water is different than reallocating the right to water, McPherson said no one can withdraw water without a permit. When the DOE authorizes the withdrawal of water, a permit is the tool the department uses.

"So that is different than in the Swinomish case, which was a carve-out for a reserve of water that would be used for hundreds if not thousands of wells that would never need permits," she said. "That was a reallocation that changed the very rule. This narrow application of the exception did apply the four-part test to this water right and did determine that there would be impairment of in-stream flows and looking at the overriding considerations here, the findings show that the impact to the stream is fully mitigated by stream benefits. And that is the core of this overriding consideration."

Mitigation

A key question was whether the city's mitigation projects, meant to mitigate the impact of withdrawing water on the environment, should have been a factor in whether the DOE granted Yelm's water right permit.

Justice Charles K. Wiggins asked Williams about the PCHB's determination that the "amount of water depletion (from granting Yelm's water rights) was small, so that there is no or a minimal impact to water resources."

That criteria violates a previous Supreme Court holding, that it's not the amount of water, whether minimal or large, taken from an in-stream flow that matters, Williams said. It simply matters that some matter is taken from an in-stream flow, he said.

Justice Steven C. Gonzalez asked Williams about criticism that he hadn't provided expert opinion to counter the DOE's experts, who provided testimony that Yelm's mitigaiton efforts resulted in a net ecological benefit.

"My response, and I mean this in all seriousness, is I represent low and pro-bono clients, and expert testimony is very, very expensive," he said. "When we were initially looking at this appeal for the PCHB, we saw that the real issue is not whether we can refute whether putting large, woody debris in a stream is going to offset the impact to the resource. The real issue is an authority issue. It's Ecology's self-delegation of authority to override more than 100 years of the prior appropriation system and over 50 years of the water code in order to get at water that's going to be coming out of stream at the expense of in-stream flows."

Wiggins asked about expert opinions that mitigation would "more than offset" the depletion of the flow. "Does that make any difference in this case?" he asked.

Williams brought up Yelm Creek, and said, "Yelm Creek is a small creek that is closed to any further appropriation year-round. It does have low flows, but it also suffers some of the highest relative impacts that's going to occur under the proposed use. Ecology and Yelm will say that the depletions are small, which they are, but they're large relative to the amount of water that's actually still remaining in Yelm Creek."

There are four out-of-kind mitigation projects listed for Yelm Creek, he said, and those came from a preexisting flood hazard management plan.

"It was never put into effect, though," he said. "And now we see those four projects coming over all together and stuck into the mitigation plan. So that contrasts very sharply with the type of analysis and sound scientific use that was used for the Deschutes. These seem to be stuck in after the fact in order to get them done and they seem to be more related to a flood pattern management plan than trying to offset ecological impacts that are going to occur to Yelm Creek."

Williams also criticized the city's claim that additional in-kind mitigation would occur for the creek, specifically the discharge of 56 acre-feet of reclaimed water.That was actually mitigation for a previous water right, Williams said. Ecology was questioned as to how the mitigation could be counted twice. Ecology claimed it was a mistake and there was always supposed to be an additional 56 acre feet of water to be reclaimed and discharged toward Yelm Creek, Williams said.

"It doesn't exist in the mitigation plan," William said. "Ecology had to put it in the water right permit after the PCHB hearing was conducted. Again, I think that goes toward the sufficiency and the sort of arbitrariness of the determination that, particularly for Yelm Creek, the out-of-kind mitigation is sufficient."

Justice Mary E. Fairhurst asked Williams what kind of authority Ecology would need to reallocate water as they have in the Yelm case.

"Ecology has authority, as this court has stated in Swinomish, to impair in-stream flows if there's a clear overriding consideration of the public interest and, as this court also elucidated, in extraordinary circumstances. Those things have to exist. As this court has stated, it's not for reservations, as it held in Swinomish, and also in the Swinomish opinion it states that permits to appropriate water from streams with minimum flows set by rule must be conditioned to protect minimum flows and that Ecology's interpretation and application fails to give minimum flows their rights and protections. So our position is that it can't occur during reservations, obviously. It also can't occur for an individual permit that is going to permanently impair in-stream flows for the life of that new water right. It would have to be something discrete, some kind of emergent problem that would allow Ecology then the authority to withdraw enough water from the in-stream flow to meet whatever that discrete need is."

"Their interpretation and application of OCPI is so contrary to … (court precedent and state law) that it cannot stand. However, it can, the words must be given effect, so they do have authority under some very limited, very extreme circumstances to impair a water right, an in-stream flow right, if there is a clear overriding consideration of the public interest in an extremely narrow circumstance."

Gonzalez asked McPherson whether the city's withdrawal of water diminishes the flow of the stream.

 McPherson said the permit conditions bring more water when fish need it most during the dry summer months, because the in-kind mitigation -- irrigation rights that much be purchased and retired as a condition of the permit -- are summer irrigation rights, and they add 10 percent of water to the stream, she said.

"It is an impairment of water, yes, but it is important, and was important to the (pollution control hearing) board's findings that more water is there. This is late August and September when the Chinook return from the Sound and come up the Deschutes River. More water, colder water. And that the impairment to the extent that there is remaining impairment is mitigated by direct habitat improvements, and this was the technical finding of the board based on expert testimony from hydrologists and fishery scientists."

When asked about the supplemental briefing describing the city's need for water as "stark," and whether that alone is sufficiently an "extraordinary" circumstance, McPherson said, "I think extraordinary means a lot. In this case more is required than simply the need for water. This is extraordinary because the overriding consideration is an extreme benefit that overrides the stream impact. It is relevant that this is a long-term public water supply, but that alone cannot justify impairment of the stream flow, because that is the problem in the Swinomish case, where the court held that an out of water use cannot be enough to override the in-stream need or else there would always be a time when the exception could impair the rule."

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