On May 8th, Judge Christine Schaller upheld a new water permit for the City of Yelm that was based on what the Department of Ecology calls its “gold standard” for OCPI findings. Judge Schaller ruled in favor of respondents City of Yelm and Department of Ecology and against appellant Sara Foster and intervenor Center for Environmental Law and Policy (CELP). The Foster appeal contended that Ecology could not grant a water right based on the “overriding considerations of public interest” exception at RCW 90.54.020 after the Supreme Court’s decision in Swinomish v. Ecology, which purported to narrow the scope of OCPI and prevent it from being used to impair adopted minimum instream flows.
In the first phase of this appeal before the Pollution Control Hearings Board, the Board’s OCPI analysis for the Yelm permit included twelve detailed factors and concluded that the regional mitigation plan that Yelm participated in met the statutory standard for allowing an impact to instream flow when the benefits of the proposal clearly outweighed its environmental harm. Among the twelve factors were exhaustion of every feasible option to provide in-kind mitigation before turning to out-of-kind mitigation and consultation with stakeholders.
Judge Schaller ruled from the bench that the OCPI scenario in Swinomish (involving rulemaking to create reservations with no mitigation) was distinguishable from the scenario approved by Ecology and the Board, where approval of the permit application was based on a comprehensive mitigation plan. An order to effectuate the ruling is being drafted. While an appeal is possible and could bring the OCPI statute to the Supreme Court in another context, the ruling keeps open a narrow door for thoroughly and thoughtfully mitigated municipal water right applications.