The Washington State Supreme Court will decide in May whether or not to affirm the city of Yelm’s water right.
Oral argument for the case is set for 9 a.m. May 21 in the Courtroom of the Temple of Justice at the state capitol campus.
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.
Yelm Mayor Ron Harding said he thinks the reason the city has prevailed at every stage thus far is because of the quality of the mitigation package put together by Yelm and its watershed partners — Olympia, Lacey and the Nisqually Indian Tribe.
“There still is a process we have to go through and we’re just hopeful the Supreme Court justices will feel as good about what we have done along the lines of trying to mitigate water and balance state requirements in our watershed as others have seen into it.”
Harding said he’s excited for the city to put its water saga behind and work on other issues.
“If we win, obviously … that frees us up to work on other things,” Harding said. “Dealing with water has been very time consuming and absorbed a lot of staff time.”
It’s also been costly, and that cost gets passed on to the city’s ratepayers, he said.
The litigation has cost the city $335,861 in legal costs through March 2015. That doesn’t include work performed by city staff.
The water utility is a self-supporting utility and under state law, it has to pay its own expenses. None of the funds collected by the utility can be used to pay for anything that’s not water-related, he said.
Harding said he’s heard rumors that Yelm’s high water rates are due to projects like the new community center being built at Yelm City Park.
In fact, the community center is being paid for with grant money. It’s things like litigation, debt, and the cost of new infrastructure that add to the rates, he said.
The state Department of Health has limited the number of water hookups the city can allow, partly because the city’s water right is not yet confirmed.
If the water right DOE granted Yelm is ultimately overturned in court, the city would have to pursue other options to secure water for the city as it grows.
If the court doesn’t affirm the city’s water right, it won’t be able to add as many new water connections. The addition of a small number of new connections wouldn’t make a big difference in rates, but a significant increase would allow the city to spread the cost over more customers and lower rates, Harding said.
If the city loses the case, it will have to evaluate its options. One alternative is for the city to purchase existing water rights, an option the city has pursued in the past. But the city has faced opposition from such efforts, and has already purchased most of the water rights it could, Harding said. Receiving a state-issued water right and completing the required mitigation is the most economical option for the city, he added.
“If we’re not successful, we’ll have to step back and look at what our options are. … I think everybody at the end of the day wants the community to move forward, not to stagnate or to die,” he said.
Yelm Community Schools may also be impacted by the Supreme Court’s decision.
Superintendent Andy Wolf said the ruling will have an impact on housing and growth in the city, which will affect the district’s enrollment.
“Whatever the ruling is, it has an impact on us because it’s going to impact growth or non-growth,” he said. “So we know that if we make boundary changes and then all of a sudden development is kind of back in full swing again, then we’re making those decisions before we see the whites of the eyes — or houses.”
When it initially granted Yelm’s water right, the DOE weighed the “overriding considerations of the public interest” to approve the appropriation of closed streams.
The Pollution Control Hearings Board concluded the DOE was justified in granting the city’s water right.
A Superior Court judge ruled in favor of the city and DOE in May 2014, finding the previous ruling was supported by the evidence and the PCHB accurately construed the law.
Patrick Williams, Foster’s attorney, told the Nisqually Valley News last June the DOE 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.”
Williams said a case the Supreme Court decided in October, 2013, 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.”
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