The city of Yelm won a challenge to its water rights in Thurston County Superior Court last Thursday.
Thurston County Superior Court Judge Christine Schaller ruled in the city’s favor, finding that the previous ruling by the Pollution Control Hearings Board (PCHB) was supported by evidence, and that the PCHB accurately construed the law.
The Washington State Department of Ecology (DOE) first granted a water right permit to the city in October 2011.
In granting Yelm’s water rights, DOE weighed the “overriding considerations of the public interest” to approve the appropriation of closed streams.
The decision was appealed to the PCHB by Yelm resident Sara Foster. The PCHB concluded the Department of Ecology was justified in granting the city water rights. 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 DOE contend that the water is needed to serve both the present population and the projected future population within the city’s urban growth area.
Foster appealed the PCHB’s decision to Thurston County Superior Court last June.
Foster’s attorney, Patrick Williams, told the Nisqually Valley News Tuesday he and his client are still weighing their options. The next logical step would be to appeal the case to the court of appeals, although they may be able to request a direct appeal to the state Supreme Court, he said.
“I’d say we respect Judge Schaller’s opinion; we disagree with it,” he said.
City Administrator Shelly Badger said the city has budgeted money for legal costs if the case is appealed, but the money comes from water ratepayers.
“We’re setting aside ratepayers’ monies to cover this appeal,” she said.
Mayor Ron Harding said he thought it was unfortunate that one person was costing a whole community money.
“All of these lawsuits have added to our increased rates here in the community and so it’s important to note that even though we’re trying to secure this water right, for us to be able to do that for the community, it’s a cost,” he said. “And it doesn’t come out of my pocket. It comes out of everybody’s pocket and that’s the unfortunate part.”
There may be opportunities for the city to recoup some of its legal costs, but even if they were awarded the legal fees, there’s no guarantee they would actually recoup all the funds, Harding said.
Court documents cited on behalf of Foster cited a court ruling from last October, Swinomish Indian Tribal Community v. Department of Ecology.
“We do think Swinomish spoke very clearly to the legality of what Ecology’s done in regard to Yelm’s water right,” Williams said Tuesday.
In the Swinomish ruling, the state Supreme Court ruled that DOE didn’t have the authority to reallocate water needed to maintain instream flows.
“This case is about Ecology’s authority to reallocate water and ignore the Water Code and impair instream flows in order to provide water for future population growth,” Williams states in court documents. “This was precisely the issue in the Swinomish case. The Supreme Court held Ecology lacked the authority under the plain language and legislative intent inherent in … (state law) to do this.”
In the city’s response, they noted the Supreme Court’s ruling recognized there “remains a recognized (albeit narrow) exception allowing impairment of instream flows when overriding considerations of public interest are served,” and added the city’s mitigation plan results in net environmental benefits.
Foster had previously argued the DOE’s decision to grant Yelm water rights did “not meet the criteria established by the … (pollution board) itself in its final order,” and said a judgment in Foster’s favor “would force Ecology to create real, measurable, and sustainable measures prior to Yelm’s use of the water right at issue, thereby protecting Ms. Foster’s interests.”
She also questioned the DOE’s use of “overriding public interest” in granting the water right.