Local group aims to refute Dungeness Water Rule, Sequim Gazette
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.
County asked to join lawsuit
Board member, Kaj Ahlburg attended the March 17 BOCC meeting and delivered the following comments in response to the letter Commissioner McEntire received from Ecology on March 3 which was a reply to his letter sent to Ecology in January. Commissioner McEntire’s January letter included several suggestions of how to use already appropriated Capitol Budget funds turn the “yellow” area (those parcels where water is not available) green. In his comments, Ahlburg suggested the County join ORPC’s lawsuit or file an amicus brief supporting it, read more here.
ORPC Files Lawsuit Challenging Dungeness Water Management Rule – Press Release
A Petition for Declaratory Judgment has been filed with the Thurston County Superior Court to determine the validity of the Dungeness Water Management Rule by the Olympic Resource Protection Council (ORPC). ORPC has been critical of the rule because of its significant and unnecessarily costly impacts on Clallam County residents seeking to utilize their properties in a manner that is consistent with established county land use designations and planning policies and with the private well exemption under Washington State water law.
The decision to file a lawsuit comes after ORPC’s earlier effort to address ORPC’s concerns in a more conciliatory manner by utilizing an administrative process. In January 2014, ORPC filed a petition to amend the Dungeness Rule with the Department of Ecology (Ecology). ORPC had hoped this good faith effort to work with Ecology would address concerns raised in the petition and would result in bringing back to the table all stakeholders in order to craft a balanced, lawful and effective water management rule for the Dungeness Basin. Ecology responded by denying ORPC’s petition to amend in March 2014. After Ecology’s denial, fundraising efforts commenced to fund ORPC’s challenge of the Dungeness Rule in court.
ORPC believes that there was improper or inadequate procedural compliance for the Dungeness Rule and that Ecology exceeded their statutory authority, failed to comply with the water code, and implemented a rule that was arbitrary and capricious. As a result, the Dungeness Rule has caused widespread uncertainty, created direct conflicts with local land use planning authority and imposed significant regulatory and transactional costs that are out of proportion to any identified benefits.
ORPC advocates for clear, fair and responsible regulations and seeks to balance environmental protection with property rights, recognizing the importance of both.
ORPC is represented in this matter by Seattle attorney, Thomas M. Pors.
Ecology Denies ORPC’s Petition
On March 18th, ORPC was notified that Ecology denied our petition. Although it has been very disappointing and disheartening to learn that our good faith effort, with broad community wide support, to work with Ecology has been denied; rest assured that ORPC will continue to pursue its goal of arriving at a lawful, balanced and effective way to manage our water resources.
BIAW sends letter in support of ORPC petition, read here
Sequim Realtors support ORPC Petition, read here
Port of Port Angeles Board votes to approve letter of support for ORPC, read here
Clallam County Economic Development Council Board approves letter of support for ORPC, read here
Port Angeles Chamber of Commerce pens letter of support for ORPC efforts, read here
Department of Community Development Director sends letter to Ecology, read here
PABA asks DOE to change Dungeness Water Rule, KONP Radio
Acknowledgement letter received from DOE
Local group seeking changes to Dungeness Water Rule, Sequim Gazette
September 2013 ORPC meets with attorneys to discuss legal strategy
June 2013 ORPC presents at Sequim Noon Rotary
May 2013 ORPC adds local attorney and judge Larry Freedman to the Board. Larry is in full support of our goals and chosen strategy and has already made a number of valuable suggestions to help increase the effectiveness of ORPC.
April 2013 ORPC presents at Norwester Rotary
February 2013 Postcards mailed to thousands of Clallam County residents to inform them about what the rule means to them and ORPC’s efforts to make common sense changes to the rule.
Questions from Kaj Ahlburg and answers from DOE following the January 17 Mitigation Workshop, click here.
Questions from Kaj Ahlburg and answers from Washington Water Trust following the January 17 Mitigation Workshop, click here.
Washington Water Trust:
4-9-2013 – Interview with KONP – Part 1
4-9-2013 – Interview with KONP – Part 2
Peninsula Daily News:
4-17-2013 – Panel to mull Dungeness Water Rule today
1- 2-13 – Dungeness water rule comes into effect today by Paul Gottlieb and Leah Leach Peninsula Daily News
12-18-12 – Clallam County commissioners sign off on Dungeness water rule by Rob Ollikainen Peninsula Daily News
12-03-12 Threatened lawsuit won’t affect start of Dungeness water rules, officials say by Paul Gottlieb Peninsula Daily News
4-17-2013 – Whither the water fund?
4-17-2013 – Dungeness Water Rule discussions are on tap
Jamestown’s Allen says water rule is vital ‘We had to start somewhere,’ says S’Klallam executive published Wed, Feb 6, 2013 in news
Ecology, Water Trust describe water purchase process Workshop attendees revisit Dungeness Water Rule published Wed, Jan 30, 2013 in news
Process described for purchasing mitigation water Workshop attendees revisit Dungeness Rule published Fri, Jan 25, 2013 in news
Water rights sale still months away ‘Reserve water’ available for indoor use published Wed, Jan 16, 2013 in news
Dungeness Rule restricts outdoor water use Thousands of acres in area are affected published Wed, Jan 9, 2013 in news
County sees spike in building permit apps -Some playing ‘beat the clock’ with Dungeness Water Rule published Wed, Jan 2, 2013 in news
Lawsuit in works for Dungeness Water Rule – Opponents seeking support published Wed, Dec 12, 2012 in news
County delays agreement with Ecology Chapman calls for consensus regarding Dungeness Water Rule published Wed, Dec 12, 2012 in news
Dungeness Water Rule: Working the numbers McEntire says plan may provide 20 years of mitigation water published Wed, Nov 28, 2012 in news
Dungeness Water Rule: Signed, sealed, almost delivered Last-minute talks ease some concerns published Wed, Nov 21, 2012 in news
Dungeness Rule due in late November Costs, benefits still subject to debate published Wed, Nov 14, 2012 in news
Dungeness irrigators are using less water New agreement makes it official published Wed, Sep 12, 2012 in news
11-26-12 – Washington restricts water use in Sequim area Seattle Times – It’s hard to imagine a fight over water in western Washington, a region that typically evokes images of rain gear and umbrellas.
WA State Dept. of Ecology
Clallam County, Ecology provide guidance, plan workshop to help building permit applicants comply with Dungeness rule Ecology News Release, December 28, 2012
Ecology’s adoption of Dungeness water management rule helps ensure future water supplies for people and fish Ecology News Release November 19, 2012
Other Noteworthy Water News:
Yakima River Basin
Yakima Herald Republic, 12-11-13 – Yakima County commissioners have taken a major step to assure enough water for farmers, fish and future development by giving final approval Tuesday to a water conservancy plan.
The Yakima County Water Resource System is a comprehensive plan that includes creating a water bank to allow rural property owners to acquire existing senior water rights before drilling for domestic water. Property owners will have to show they have water rights before a building permit can be issued. Read more
Swinomish Indian Tribal Community v. WA State Department of Ecology
The Skagit River Basin Instream Resources Protection Program Rule (WAC 173-503) went into effect on April 14, 2001. It established instream flows throughout the basin to protect flow levels in streams. In 2006 the rule was amended to establish finite “reservations” of surface and groundwater for future out-of-stream uses. The reservations provided uninterruptible (year-round) water supplies for new agricultural, residential, commercial/industrial and livestock uses, distributed among 25 subbasins.
On October 3, 2013, the Washington Supreme Court ruled that Ecology cannot set aside reservations of water through adoption of water management rules where water was previously set aside to support stream flows for fish. Without water reservations, later water uses can be interrupted when dry spells impact the protected stream flows. Ecology found in 2006 that limited reservations would not substantially harm fish populations. The Swinomish Tribe challenged the establishment of the reservations in 2008 and appealed a Thurston County Superior Court finding in Ecology’s favor in 2010. Read the more about the Skagit River Basin Water Management Rule on the DOE webpage and access the full Supreme Court decision here. In the mean time, Ecology and the Swinomish Tribe agree 2001-2013 Skagit groundwater use is secure while water supply solutions are developed, read more in this press release.