State Supreme Court Rules Against Department of Ecology, City of Yelm in Water Rights Case

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The Washington State Supreme Court ruled in favor of Yelm area resident Sara Foster in her case against the state Department of Ecology, which granted water rights to the city of Yelm, in a 6-3 ruling today.

While the city is optimistic it will find an alternative water source to meet future demand, Mayor Ron Harding also said the decision has the potential to slow growth in the city.

The state Department of Ecology, in a press release posted on its website yesterday, said the case has statewide implications because the court determined the department unlawfully applied "overriding considerations of public interest" (OCPI) in making its decision to grant Yelm's water rights.

"Ecology uses OCPI as a tool to approve water right permits when water availability is limited, but it appears the public benefits of approval outweigh any impacts on stream flows," the release states.

“We are taking today’s ruling under advisement and we will assess what other water management tools we may use in the future to make decisions on complex water needs in water constrained basins,” Ecology Director Maia Bellon said in the release.

The decision overturns rulings by the Pollution Control Hearings Board and Thurston County Superior Court, which upheld Yelm's water rights.

The Supreme Court heard oral argument on the case this May.

Six of the nine Supreme Court Justices ruled with the majority, to overturn the previous decisions: Charles W. Johnson, who authored the majority opinion; Barbara A. Madsen, Susan Owens, Mary E. Fairhurst, Steven C. Gonalez, and Mary I. Yu.

Three justices dissented: Charles K. Wiggins, who wrote the dissenting opinion; Sheryl Gordon McCloud, and Debra L. Stephens.

"We hold that Ecology exceeded its authority by approving Yelm's water permit under the narrow OCPI (overriding consideration of public interest) exception," Johnson wrote in the majority opinion. "The exception, by its terms, permits only temporary impairment of minimum flows. Municipal water needs do not rise to the level of 'extraordinary circumstances' that we held are required to apply the OCPI exception, nor can a mitigation plan 'mitigate' by way of ecological benefit the legal injury to a senior water right. We reaffirm our holding in Swinomish: the OCPI exception is not an end-run around the appropriation process or the prior appropriation doctrine. We reverse the superior court's and PCHB's (Pollution Control Hearing Board) decisions affirming Ecology's approval of the Yelm permit."

Wiggins wrote in the dissenting opinion that, "Yelm's proposed withdrawal of groundwater and extensive mitigation plan is justified by overriding considerations of public interest. I would affirm the PCHB and uphold the Yelm permit."

Patrick Williams, Sarah Foster's attorney, said the court made the right call.

"Obviously we're very pleased with the ruling," he said Thursday afternoon. "We think the justices made the right call in finding that the OCPI exemption cannot be used to issue permanent water rights that will impair existing instream flows."

Williams was also quoted in a press release from the Center for Environmental Law and Policy.

"The Supreme Court's decision reaffirms the state's responsibility to protect instream flows," he said. "The decision makes it clear that Ecology must abide by state water laws when approving new water rights."

Sarah Foster, the plaintiff in the case, was also quoted in the release.

"I'm thrilled with the decision because it means the water levels in streams in rivers I, and others, enjoy so much will be protected now and in the future," Sarah Foster was quoted as saying in the release.

According to CELP's release, the decision reaffirms a 2013 state Supreme Court decision brought by the Swinomish Indian Tribal Community to protect stream flows in the Skagit River basin.

"In Swinomish, the Court held that Ecology could not use the narrow water code exemption (to) permanently impair existing instream flows through water reservations for future use," the release states. "Pursuant to today's decision, Ecology cannot issue individual water rights that would impact instream flows. Together, Swinomish and Foster underscore that Ecology cannot continue to deplete river flows to meet future water demand."

Yelm Mayor Ron Harding painted a more somber picture, but expressed optimism that the city would be granted water rights in the future.

"Obviously we're disappointed and we would have liked that (the court case) to close the chapter on the city's search for additional water," he said. "You know, it's unfortunate that the Supreme Court found the city's gold standard water rights mitigation plan inadequate and it's also unfortunate the entire community has to be held hostage by special interest groups that constantly want to press those standards. So we're just going to continue to work to move forward to get additional rights, as we have been, and we'll continue to modify the work that we've already done until we find something that not only passes the scrutiny of state water law, but can also pass the efforts of these special interest groups."

The city will look at other options for securing water; that may mean taking the city's "gold standard" water mitigation plan and making it even more effective, Harding said.

"The crux of the Yelm case was appealed based off a very, very small impact to the Nisqually River, which was not in dispute," he said. "None of the technical information in our water right or the mitigation package was in dispute with this case. All the experts in the field, including the state agencies, said that this water right established basically the gold standard — I mean you weren't going to get anything better than this. But throughout all the efforts that we had, there was a very small impact that was unmitigated and one of the reasons there was even an impact was the state, in having us apply this mitigation standard, requires we show an impact even if none exists. And so what we'll do is ... continue to look at ways we can close that gap."

Another option is to see what other resources are available to the city for attaining water, Harding said.

"We've been continuing to work on that effort, look at whatever avenues are out there that provide water for the future. I'm 100 percent confident we'll be successful. We just have to continue to do the work and see if we can get around all of the loopholes that these groups tend to rely on."

The Supreme Court's decision won't have an immediate impact on growth in the city. In April, the Department of Health granted Yelm 594 new water connections available for residential and commercial growth, up from less than 100. 

But the court's decision may have an impact in the future if additional water rights aren't secured, Harding said.

"If we aren't able to acquire some water rights soon, it will have impacts, and probably where we'll see the most immediate impact would be on larger developments that would occur over a longer period of time," he said. "I think it would be difficult for the city to approve those at this point, so you know it will probably right now, it will be smaller developments with shorter windows of completion we'd be able to approve, to maintain consistency with how the city has applied its water availability."

Although the mitigation work the city has been doing was specifically tied to the water right it was granted by the Department of Ecology, the city will most likely move forward with mitigation projects in anticipation that they may be applied to a future water right, or even the re-issuance of the water right it just lost, Harding said.

"That's something we're working on right now," Harding said. "We don't know exactly what this decision means from the perspective of the agency issuing the right — that's the Department of Ecology — and so I think we'll have to sit down and talk with those folks and form what we think is the next step: What do we have to do to get future water for this community, which is the question we've always asked, and always jumped through the hoops of what we were asked to do. And we will continue to do that, because that's our job."

Yelm's mitigation projects are in partnership with Olympia, Lacey and the Nisqually Indian Tribe, but only Yelm's water right was appealed, Harding said. The impact was considered collectively, so regardless of the court's decision, the impact on the Nisqually River still largely exists from the other jurisdictions, he said.

Harding said he felt Yelm was singled out by interests within the city who want to curtail growth by restricting water use.

"I think we were singled out because we have a local entity, or entities, that want to control growth through water," he said. "That's the only conclusion I think a reasonable person could come up with."

Washington State Supreme Court Decision in Foster v. Ecology

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