Bringing Common Sense to the Issue of Water & Land
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    Building your dream home? Adding a mother-in-law apartment? Water is resource now under the control of the State Department of Ecology, subject to mitigation fees and metering of your well.
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    Planting a garden or orchard? For outdoor watering, a separate mitigation package must be obtained, starting at $2,000. Outdoor watering is no longer available in many areas for an undetermined amount of time.
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    Would you like to own a couple of horses? In some areas, this will no longer be possible with the new water rule where only domestic water use is permitted.
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    Thinking of starting a lavender farm? The $2000 basic outdoor watering package allows for only .06 acres of irrigated area and $3000 extended watering package allows for only .13 acres of irrigated area.
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    Own property in the green area? Water is presently available only for domestic use with other use water projected to be available in the summer of '13. Own property in the yellow area? Water is available only for domestic use in the foreseeable future, no other uses permitted.

Summary Judgment Denied but 4-Part Test Issue Survives to Hearing

On January 8, 2016, ORPC’s summary judgment motion was argued before Judge Gary Tabor of the Thurston County Superior Court, this was a declaratory judgment action challenging the validity of the Dungeness Water Rule.  The complaint alleges that Ecology exceeded its statutory authority in several respects, including failure to allocate water according to the maximum net benefits to the public, as required by the Water Code and the Water Resources Act of 1971. Judge Tabor allowed only one legal issue to be briefed on summary judgment — whether the four-part test for issuance of new water rights was required before Ecology adopts a minimum instream flow water right by rule. The Supreme Court opinion in Swinomish Tribal Community v. Ecology two years earlier implied that the four-part test was required for instream flow rules, because the same statute that the Court held required the four-part test for reservations adopted by rule (RCW 90.03.345) also applies equally to minimum instream flows — both are appropriations with priority dates that are adopted by rule rather than by application for permits. After hearing arguments by Tom Pors, on behalf of ORPC, Stephen North on behalf of Ecology, and Dan Von Seggern on behalf of the Intervenor Center for Environmental Law & Policy (CELP), Judge Tabor denied ORPC’s motion for summary judgment but kept the issue alive for a hearing on the full administrative record.

Judge Tabor stated from the bench, “[I]n ruling that I do not find that there is an absolute legal requirement that there be the four-part test, that does not necessarily imply that a four-part test might not be appropriate in this case.” Thus, he denied Ecology’s request for summary judgment that the four-part test is never required for adoption of minimum flow rules as a matter of law. Judge Tabor considered arguments that the entire statutory scheme for water rights appropriation and instream flow protection required some sort of public interest evaluation, such as “maximum net benefits to the public” before all available waters in a basin were appropriated for instream flows. He stated further, “[S]o maximum benefits test, that certainly may be an issue in the administrative review, and there’s some suggestion that based on that rule the four-part test might be required.”

A summary judgment ruling in favor of ORPC would have resulted in the invalidation of the Dungeness Rule because it is uncontested that Ecology did not make four-part test findings before adopting minimum flows in the Dungeness Rule. In fact, Ecology has never made four-part test findings or conducted a maximum net benefits test before adopting any of its 29 instream flow protection rules, many of which have the unintended effect of closing basins to new appropriations for domestic, municipal or other uses without rigid water for water replacement mitigation.

ORPC is raising funds for legal fees and a hearing on the administrative record will be scheduled this fall.  Please support ORPC’s efforts by making a donation here.

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Are you in the affected area? Click this map to find out.


We need your help!

Submit a donation today to help fund ORPC’s legal efforts to bring balance to the issue of water and land. Contact Greg McCarry at 360-509-0633, Kaj Ahlburg at 360-565-1146 or FaLeana Wech at 360-461-4099 for information about how you can help with our efforts or donate below.

Donations can also be mailed to ORPC:

350 West Washington Street, Suite 3

Sequim, WA  98382