AN INVESTIGATION WITH SUPPORTING DOCUMENTATION
For the last ten years, Yelm’s water planning management has been a hodgepodge of patchwork hearings and legal actions, an incomplete water plan/withdrawal of that water plan/later reinstatement of the plan, uninformed/improperly informed decisions by the Yelm City Council that collectively cost over half a million dollars in fees, seizing a citizen’s water rights, placing the City of Yelm as a defendant/co-defendant twice before the WA Supreme Court, under scrutiny by County Commissioners, State Legislators and a Congressional Representative, and now resulting in Washington Water Law being crafted right here from the unprecedented loss of the city’s cases brought by local citizens. Yelm’s actions will be viewed around the state for years as how to avoid poor water planning and management.
Justice Charles Johnson simply wrote in the Foster case in an opinion October 8, 2015 that municipal water needs do not rise to the level of overriding public interest. PERIOD!
Every step of the way, Mayor Harding and the complicit Yelm City Council have side-stepped protecting public interest for unbridled and unwise growth.
A new day is at hand:
* With two WA Supreme Court decisions against the city’s decade-long poor water planning, growth rates here will level off,
* Capable City Council candidates have stepped forward and after their election, will bring a new direction to the Yelm City Council.
I have received numerous requests from new and long-time area residents, Yelm City Council candidates and Yelm Community Blog readers to publish a summary of Yelm’s key water stories that are easily accessible in one place. The following is my report, with each date hot-linked with documents where available:
* January 1995, Yelm Vision Plan adopted, never updated.
Partially funded with $30,000 from the Yelm Chamber of Commerce with regular updates and strategies inherent in the plan – nothing has been added in the over 20 years since adoption.
* 1995, Yelm annexed land SW of town [an area now known as Thurston Highlands].
The City of Yelm was then looking at the potential to develop water rights in what is known as the SW Aquifer since it annexed that land in 1995. That was one of the chief forces behind the annexation.
* June 2006, Yelm’s Council voted $550,000+ to partly finance a private developer’s water study.
The City of Yelm partially financed the Golder Water Study for a private developer [Thurston Highlands], which was against city rules and without a contract. When the developer went bankrupt, the city was not reimbursed for the outlay, nor did the city file a lien against the developers for their portion of this study. Thurston Highlands was a 5,000 home planned community, one of the then-largest in WA state, which would have more than tripled Yelm’s population.
* January 2007, Yelm reportedly accepted Thurston Highlands app. without certified water resources.
The question was asked, “Why?”
* January 2007, NVN: Yelm water concerns reach boil”
The Nisqually Valley News (NVN) reported, “The owners of the golf course, also the developers of Tahoma Terra and Thurston Highlands, offered to give the city water rights if half of the available water could be used for the Tahoma Terra development.”
* July 2007, Senior Water Rights holder JZ Knight takes on Yelm in a high-profile water rights case.
Knight’s case started in July, 2007 in front of the Yelm Hearing Examiner and continued through appeals to the Yelm City Council and State Superior Court.
“In 2007, five developers filed applications with the city of Yelm (City) for preliminary plat approval of proposed subdivisions.”
“After a hearing examiner granted Tahoma Terra preliminary plat approval, JZ Knight, a nearby property owner and senior water rights holder, appealed to the Yelm City Council (City Council), arguing the hearing examiner’s conditional approval of the plats erroneously allowed the developers and the City to delay showing adequate water provisions for the subdivision until the building permit stage. The City Council affirmed the preliminary plat approvals, and Knight filed an action in Thurston County Superior Court under the Land Use Petition Act (LUPA), chapter 36.70C RCW.”
* March 2008, JZ Knight files suit against the City of Yelm in the Superior Court of Washington.
“[March 4, 2008] JZ Knight, the founder of Ramthas School of Enlightenment (www.ramtha.com), has filed a Land Use Petition in the Superior Court of Washington challenging the City of Yelms decision (Resolution No. 481, adopted February 12, 2008) approving five proposed subdivisions>”
* May 2008, The Olympian: Billy Frank, Jr. calls for better water management in the Nisqually Watershed.
Nisqually Tribal Elder & Northwest Fisheries Commission Chair Billy Frank, Jr. in his column titled “Time for better water management” talks about exempt wells “that could potentially run our rivers dry”.
“The City of Yelm will have to be brought into the agreement about McAllister Springs since the city’s water policies affect this water source.” .
* October 2008, Superior Court Judge Chris Wickham issues opinion upholding the case against Yelm.
The Judge agreed with Petitioner Knight that a “reasonable expectation” of potable water is not sufficient to meet the legal requirement of making “appropriate provisions” for a potable water supply. The Judge required the City to prove it has an adequate water supply at the time of final plat approval for these five subdivisions.
* November 2008, The Olympian files a thorough investigative report on Yelm’s water case.
“Judge says Yelm must prove it has water”
“Condition placed by city on subdivisions ruled illegal”
By Christian Hill.
* February 2009, Mayor Ron Haring appeared before the State Legislature about water case.
Yelm’s Mayor Ron Harding answered questions on Tuesday, February 17, 2008 before senators in the State Legislature about State Bill 5867 stemming from the case of JZ Knight vs. City of Yelm et al.
The Senate Environment, Water and Energy Committee asked about why the lawsuit against the city came forward.
Mayor Harding said the litigation is a land use issue.
He opened his remarks by saying funding for city improvements to roads could not have been accomplished without the growth here, and to limit growth because of this water case would hurt the city in the long term.
[Editor’s Note: That was not exactly true, as many of the existing street and sidewalk improvements were completed with federal or state grants. Most of the miles of new roads and sidewalks added to the city’s grid were in new developments, for which the developers and L.I.D. financed.]
Harding went on to tell the legislators, “The opponent (JZ Knight) used water and water timing as a mechanism to stop growth in the area.” That was false.
While Knight originally filed a land use appeal (LUPA) in Thurston County Superior Court, her intent was only to protect her senior water rights.
* May 2009, Thurston Highlands default story was first reported by the Yelm Community Blog.
*Thurston Highlands, LLC defaulted on the entire Highlands property, a 1,200 acre property in southwest Yelm that proposed 5,000 residential units with up to 1.5 million sq. ft. of commercial space (comparable to the square footage of 8 Super Wal-Marts). The records showed that the amount to be collected was almost $12 1/2 million dollars. including massive new additions to the citys water & sewer systems. In order to accomplish this, The City of Yelm had proposed to obtain enormous new water rights by application to the State Dept. of Ecology, and fund water/sewer rate increases on the backs of property owners for massive new additions to the city’s water & sewer systems.
* June 2009, The Yelm City Council implemented a water rate increases for an updated Water System Plan.
The mayor said purpose of the Water Rate increase is to meet debt service obligations and will be solely used to keep Fund 401 in-status [an operational and maintenance fund].
Staff Representative Stephanie Ray said the City Council can raise rates for operations as they see fit – the last time there was a water rate increase was in 2003. She added there was a need to raise rates to keep up with operational costs.
* July 2009, JZ Knight takes our newspaper ads titled “A Citizen Responds.”
In the ads, Knight addresses the City of Yelm’s and newspaper’s [Nisqually Valley News] misleading and inaccurate city water/MDNS reports.
* August 2009, The City of Yelm withdraws MDNS after Knight’s ads repercussions.
The City of Yelm stated, “This action has been taken after the Washington State Department of Ecology indicated that it will not take action on Yelms applications for additional water rights in 2009.”
* September 2009, Yelm property owners vent their anger to City Council about water rate increases.
The Yelm City Council received an earful for almost an hour from local citizens’ about the water rate increases, September 8, 2009.
* September 29, 2009, Thurston County Commissioners briefed on the Yelm water issues.
Commissioners Cathy Wolfe, Sandra Romero and Karen Valenzuela requested this briefing from Thurston County and Ecology Staffs and were all very interested and engaged in learning about the nuances of what Commissioner Romero described as one of the most critical issues in the years to come for government.
Commissioner Romero asked why the Commissioners were not notified of nor did the County respond to the City of Yelm MDNS during the public comment period.
* October 2009, Mayor Ron Harding shocks Yelm with letter seizing a citizen’s water rights.
Harding’s letter to private citizen Alice McMonigle said the city will condemn her water rights, with the city’s intent to acquire those rights through eminent domain.
* November 2009, Yelm City Council unanimously approves condemnation of the McMonigle Water Rights.
The Yelm City Council approved Ordinance 914 unanimously and without discussion to begin the condemnation and eminent domain seizure of the McMonigle Water Rights in order to acquire them for the city’s use, City Administrator Badger saying the city had spent $200,000 in legal fees on this issue alone.
* November 2009, The McMonigle response.
This was the letter to the public from the McMonigles – in their own words.
* March 2010, City Council votes water rate increases for next six years, 2010-2015 inclusive.
The Yelm City Council approved Ordinance 918 – a 16% water rate increase effective April 1, 2010 and annual water rate increases of 16% January 1, 2011 and 8.25% each year, for 2012-2015.
* April 2010, NVN: reported Mayor Harding suggested condemning Tahoma Terra land to get their water.
“‘The property the well is being drilled on is currently owned by developers, but within its master plan is an agreement to gift the property to the city.’
Yelm Mayor Ron Harding said if for whatever reason those plans don’t move forward, the city can always condemn the property.”
* April 13, 2010, State Appeals Court overturned JZ Knight’s case against city water practices.
Knight subsequently asked the WA Supreme Court to present her case, which they accepted to hear.
* April 2010, Yelm City Council approved $615,223 to dig a production well on Tahoma Terra property.
* July 2010, Yelm’s State & Congressional Representatives get water briefing from Mayor Harding.
Then-Representative Tom Campbell said, “The topic was DOE handling of the McMonagele (sic) water right transfer. The purpose of the legislative delegations presence was to promote a meeting with the Governor to discuss the problem directly.” [Mayor Harding’s & the Yelm City Council’s seizing a citizen’s water rights.]
* October 2010, Yelm City Council approves $76,000 for update to 2008 Water Mitigation Plan.
On August 14, 2009, the City of Yelm withdrew their MDNS (Mitigated Determination of Non-Significance) for an incomplete and unapproved draft Water Mitigation Plan.
* September 2011, Yelm asks Ecology to “fast track” a more than doubling of the city’s water rights.
“The City of Yelm requested Ecology “fast-track” a pending water rights application for an additional 942 acre feet of water per year, which if approved, would more than double Yelm’s current annual water allocation withdrawn from our local aquifer.
* December 2011, WA Supreme Court overturns city’s appeal, Yelm loses water case.
In a stunning 7-2 decision written by Justice Charles Wiggins and finalized January 2012, “the Supreme Court held that Knight established that the land use decision is likely to prejudice her water rights and satisfies the statutory standing requirement.” The City of Yelm had approved 5 development plats without proving the city had water rights availability at the time of plat approval. Knight pressed the city to follow the process, arguing that not doing so would have adversely impacted her senior water rights downstream of the development.
* March 12, 2012, Yelm water rights not a ‘Slam Dunk.’
On November 18, 2011, Sara Foster submitted an Appeal against the City of Yelm and the Dept of Ecology to stop the pumping of 942 acre feet of water, every year for 20 years, from the aquifer. Ecology had just rubber-stamped Yelm’s Mitigation Plan and the city was approved to begin pumping. This amount would have had a huge environmental impact to the aquifer. It means wells in a vast surrounding area [outside of Yelm city limits] could drop in static level and property owners would have to drill new wells. In 2009, the Yelm community became aware of this same Mitigation Plan submitted to Ecology, and wrote over 85 letters in protest, which was subsequently withdrawn.
* May 2012, Council purchases golf course water rights for $151,000.
Stephanie Ray reported the settlement agreement would settle proposed potential litigation on water rights that were owned by Tahoma Valley Golf and Country Club and were subsequently transferred to the City of Yelm for municipal water use. The City had been working with Tahoma Valley Golf and Country Club for the previous few months to come to an equitable and fair resolution to the transfer of these water rights that were already put to beneficial use.
Councilmember McGowan feels the agreement is fair for both parties involved but does not feel that the public was properly notified and will not be voting on this item for that reason. 5-AYES, 1-NAY (MCGOWAN). CARRIED.
$151,000 = 77 afy of water
* March 2013, Yelm: Doubling of city’s water rights “affirmed” by Pollution Control Hearings Board (PCHB).
Approval of the water right was originally granted by the Department of Ecology in October 2011, but was appealed by a local group of residents led by Sara Foster.
* June 2013, City of Yelm water rights appealed by local citizen Sara Foster.
Yelms water rights, which were granted by the Department of Ecology and affirmed by the Pollution Control Hearings Board in March, were appealed by Yelm resident Sara Foster.
The appeal was to be heard in Thurston County Superior Court. Fosters lawyer was Patrick Williams, from the Center for Environmental Law & Policy (CELP) in Seattle.
* June 2014, NVN: “Foster Appeals Yelm Water Right Ruling”
“Southwest Yelm Well: Citizen Seeks Direct Review by State Supreme Court”
Steven Wyble wrote this in the Nisqually Valley News:
“Yelm resident Sara Foster has appealed a recent court ruling affirming the city of Yelms 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.”
* May 2015, The Washington State Supreme Court heard oral arguments in Foster vs. Ecology.
On Thursday, May 21st, the case of Sara Foster v. WA State Department of Ecology, et al was presented to the Washington State Supreme Court.
* August 2015, Yelm City Council approves $5 million expenditure for well project.
With the WA Supreme Court having Yelm’s water rights case in their hands, which could overturn Yelm’s water rights reducing the need for an additional well, the Yelm Council voted August 11th to spend $5 million for well project anyway.
* October 8, 2015, WA Supreme Court sides 6-3 in Sara Foster v. WA State Department of Ecology, et al.
“Cancelled water rights permit could stymie Yelm’s growth,” quoting the Pierce County Business Examiner.
* October 9, 2015, “The West’s AG Website” weighs in on the Foster case
“Washington Supreme Court: Ecology wrong on water right”
By Don Jenkins
“The Washington Supreme Court has ruled the Department of Ecology erred in granting a city a new water right at the expense of downstream rivers.
“For a second time, the Washington State Supreme Court has ruled the Department of Ecology was wrong to cite an overriding public interest in permanently redistributing rights in a water-short basin.
The court ruled 6-3 Thursday that DOE erred when it permitted the Western Washington city of Yelm to draw more groundwater to accommodate growth.
The withdrawal would have put the basin’s rivers and creeks at risk of occasionally falling below state-mandated minimum flows, a water right senior to Yelm’s new right.
DOE argued that the move was in the public’s interest and that a mitigation plan would actually enhance the environment. Yelm resident Sara Foster, who feared the city’s withdrawal would harm her domestic well, sued and received support from the Center for Environmental Law and Policy and the Carnegie Group, a Thurston County landowners’ organization.
Writing for the majority, Justice Charles Johnson dismissed the mitigation plan as irrelevant and said a growing city was hardly unusual.
He stated that overriding public interest could only justify temporary water withdrawals. Using it to support a permanent transfer of water rights was ‘an end-run around the normal appropriation process, he wrote.
* October 12, 2015, KING 5 TV interviews Sara Foster from Yelm for the evening News.
“Water rights battle pits growth against rivers”
* October 13, 2015, Yelm City Council’s first meeting after WA Supreme Court loss.
The City Council mentioned nothing about losing their DOE-granted water rights.
* October 15, 2015, Sara Foster recognized by CELP.
Sara Foster acknowledged by The Center for Environmental Law & Policy (CELP) in Olympia for her water rights win against DOE/Yelm.
BOTTOM LINE –
Citizens stand-up for their rights, challenging Yelm leaders to follow the process –
Two wins in historic WA Supreme Court cases make Yelm the center for crafting Washington Water Law for the future!