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.

ORPC moves forward with appeal to the Washington Supreme Court

The Board of ORPC has decided to move forward and appeal to the Washington Supreme Court the October 21 lower court decision letting the WRIA 18 East Rule stand.

Ecology admitted before the lower court that its instream flow rules are inconsistent with the Washington water law Four Part Test that requires, among other things, water to exist before it can be allocated to a water right.  Ecology argued, however, that instream flow rules and the protection of fish are so important that this provision of Washington water law should not apply to Ecology. Apparently, they convinced the lower court judge.

However, the Supreme Court in cases like these does not give any deference to the lower court decision being appealed, deciding the appealed case de novo.  Moreover, in three recent cases involving instream flow rules the Supreme Court ruled against Ecology and the validity of its rules.  ORPC’s Board believes that the lower court ruling flies in the face of these recent Supreme Court decisions, and that an appeal to the Supreme Court has a realistic chance of succeeding.  Our attorney, Tom Pors, who has over 30 years experience in water law cases, also believes that the appeal is worth pursuing.

This is an issue of statewide significance, see this recent article in the Seattle Times.  Rules like the one for WRIA 18 will eventually be in force in every corner of the state unless this Rule is struck down or modified.  The outcome of our case will be a precedent for all other WRIAs, including those to the West of the Dungeness where such Rules have not been enacted yet.

We need your help to fund the Supreme Court appeal.  In this last stage of our effort to challenge the WRIA 18 Rule the time has come to mobilize all our resources and hold nothing back.  Any help you can provide, and any referral to others who may be interested in helping, will be highly appreciated.  You can contribute via PayPal by clicking here or mailing your contribution to:  ORPC, 100 Goldenrod Lane, Sequim, WA  98382.   If you have any questions, please contact Kaj Ahlburg at 360-565-1146 or Greg McCarry at 360-509-0633.

ORPC has day in court, ruling handed down

On October 21st the hearing on the validity of the Dungeness Water Rule was held in Thurston County Superior Court.  We were disappointed that the Superior Court judge decided to let the Rule stand.  He appeared to agree with Ecology’s argument that it does not have to perform a “maximum net benefits” evaluation or a four-part test before creating minimum instream flow water rights under Washington water law and closing the basin to new domestic/agricultural water uses without mitigation.  Ecology argued that establishing instream flow rules is of paramount importance and that subsequent legal changes and shortcomings of the Dungeness Water Exchange were not relevant to whether it complied with the law at the time it adopted the rule in 2012. We had the burden to prove that Ecology violated the law, exceeded its statutory authority, or that its economic analysis of the Rule was not the product of a reasonable mind. We believe that our arguments had merit but that the court gave Ecology the benefit of the doubt without considering impacts of the rule on legal water availability for people and their property.

Olympic Resource Protection Council and the individual plaintiffs will decide on the future course of action once the written opinion is available.  The superior court decision is appealable to the Washington State Supreme Court.  Such an appellate review would be “de novo,” meaning that the Supreme Court would make its own decision based on the rule-making record, and would not give deference to the lower court’s decision.  The precedent for a successful appeal exits in several recent Supreme Court cases including Swinomish, Foster, and Hirst where the Supreme Court ruled against Ecology by reversing lower court decisions that held in favor of Ecology. ORPC will meet with its legal counsel before making a final decision on an appeal.

The Board members at ORPC would like to express our gratitude for the ongoing support by our members.

 

DOE map for sidebar

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:

100 Goldenrod Lane

Sequim, WA  98382