On Oct. 8th, a second Yelm-area citizen won a water case in Washington’s Supreme Court in Foster v. Dep’t of Ecology (regarding a more than doubling of the City of Yelm’s water rights), the first being JZ Knight vs. City of Yelm, in which the WA Supreme Court decided in favor of Knight in December 2011.
– “Righting the Rules”
“RIGHTING THE RULES: Whatcom County goes to court again next week, this time facing the Supremes. And on the eve of the update of their Comprehensive Plan, might significant portions of the Comp Plan unravel?”
“A hint at clarity may have tumbled out last week when the Supreme Court reversed Ecology’s decision to issue a water right permit to the City of Yelm based on what the court found to be an inadequate OCPI balancing rule. Yelm, a Thurston County city of about 7,500 people, had sought additional water appropriations to accommodate future population growth. But the court cancelled Yelm’s water permit because it will impair minimum stream flows in the Deschutes and Nisqually basins.
There are differences between Yelm’s water concerns and Whatcom County’s predicament, but what’s notable is the Supremes reassert the fundamentals and their findings in Swinomish. And the GMHB relied heavily on the Supreme’s ruling in Swinomish to determine Whatcom’s water resource planning was inadequate and heedless of supply. The Appeals Court glossed Swinomish when it overturned the GMHB [Growth Management Hearings Board] determination. In Yelm, the Supremes come full circle to say, no, those findings are important and should not be glossed.
‘Several foundational principles of water law bear repeating,’ the Supremes observe in Yelm—notably, that junior water appropriations may not impair or diminish a senior water right. Reasserting their Skagit reasoning, they found Ecology’s use of ‘the OCPI exception does not allow for the permanent impairment of instream flows.(‘ sic)
‘We reaffirm our holding in Swinomish,’ the majority concluded, ‘the OCPI exception is not an end-run around the appropriation process or the prior appropriation process doctrine.'” from Cascadia Newspaper Company LLC, Bellingham, WA.