Foster Appeals Yelm Water Right Ruling

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Yelm resident Sara Foster has appealed a recent court ruling affirming the city of Yelm’s water rights.

Foster is seeking direct review to the state Supreme Court. If the Supreme Court decides not to take the case, it will go to the Court of Appeals.

The Washington State Department of Ecology 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.

Foster appealed the decision to the Pollution Control Hearings Board. 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 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. A Superior Court judge ruled in favor of the city and DOE in May, finding the previous ruling was supported by the evidence and the PCHB accurately construed the law.

Patrick Williams, Foster’s attorney, said on Tuesday it’s likely the case would end up in the Supreme Court eventually, so seeking its direct review would save everyone time and money.

Williams emphasized his client’s problem isn’t with the city of Yelm as much as with the Department of Ecology for granting the water right. The department used an exemption in the existing code, which “the Supreme Court said doesn’t really exist in the way Ecology was trying to use it,” he said.

Williams said a case the Supreme Court decided last October, Swinomish Indian Tribal Community v. Department of Ecology, has a direct bearing on his client’s case.

In the Swinomish ruling, the state Supreme Court ruled that DOE didn’t have the authority to reallocate water needed to maintain instream flows.

Williams stated in court documents filed in Superior Court his client’s case is about DOE’s authority to reallocate water while impairing instream flows, just as in the Swinomish case. The city responded in court documents that the Supreme Court recognized that a “narrow” exception exists allowing impairment of instream flows when “overriding considerations of public interest are served.”

“You never know (what the outcome will be), but we are fairly confident that what the Supreme Court decided in the Swinomish case … applies directly to this case,” Williams said on Tuesday. “The facts and processes are nearly identical and the Supreme Court said what Ecology did in Swinomish is unlawful and it’s exactly the same thing Ecology has done here.”

Williams said it will probably be a few weeks to a few months before the Supreme Court decides if it is taking the case.

The city of Yelm is also confident it will prevail in court, according to City Administrator Shelly Badger.

“We are confident that the Superior Court decision will be upheld as the legal issues have been addressed by the Supreme Court in the past and the rulings in those cases support approval of our water right permit,” she said.

The case will take a long time regardless of whether it goes to the appeals court or the Supreme Court, and in the meantime, the city will continue moving forward with plans for constructing its Southwest Yelm well, treatment facility and reservoir, Badger said. It will also continue mitigation projects at the Deschutes Farm as part of its interlocal agreement with Olympia and Lacey.

But the city will not be totally unaffected by the appeals process. The state Department of Health has limited the number of water hookups the city can allow, partly because the city’s water rights are not yet confirmed. The city had 151 water hookups remaining at the end of May, Badger said.

“As we wait for the resolution of this case, every permit we issue lowers that number,” she said. “So our goal always has been to be … proactive in securing additional water rights so there’s no gap in our ability to provide hookups as people want to develop in our community.”

If the water rights DOE granted Yelm are ultimately overturned in court, the city would have to pursue other options to secure water for the city as it grows.

The city updates its water system planning process every six years, Badger said, and its last adopted water system plan was in 2010. The plan details how the city is going to provide for growth under the Growth Management Act.

It was under that planning process the city identified its preferred approach: Drilling a new Southwest Yelm well with a deep aquifer, and obtaining new water rights associated with that water source.

“If we’re unable to do that, it is a major reassessment and analysis of how to provide water in the future for our community,” Badger said.

Badger said the city reviewed options for securing water rights while working with Olympia, Lacey, the Nisqually Indian Tribe, and other jurisdictions in the early 2000s as part of the Watershed Planning Act. The legislation encouraged jurisdictions in the same watershed to figure out how to provide water for growing communities in an environmentally sound way.

“This approach (that’s under appeal) … was the recommended approach and continues to be the recommended watershed approach, going to a deep water source,” Badger said.

The deeper the source of water, the less impact there is to area wells, she said. The city’s approach is “a very thoughtful approach” to the problem of providing water for the city’s future, Badger said.

“This is the one that made the most sense both environmentally and … from an assurance of being able to provide water for both our growing community — because we are required to provide services under the GMA as we grow — while protecting the environment.”

She said both the DOE and DOH have stated the city’s mitigation plan results in a net ecological benefit.

“We definitely plan to vigorously defend our water right approval granted by … (Department of Ecology) in 2011,” Badger said. “We plan to defend it and protect the future water supply needs of the city, and also to protect the environmental resources and we feel it’s a good solid way to do all of the above.”

The city has spent $275,000 in legal costs related to the appeals to the Pollution Control Hearings Board and Thurston County Superior Court, Badger said.

“We don’t have an estimate yet of what it’s going to take to complete it (the litigation), but to date that’s what we’ve spent since November of 2011,” she said.

That cost is passed on to the city’s water ratepayers.

“We have to incorporate all costs through the water system, including legal challenges, into the rate base,” Badger said.

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