by MARK ST.J. COUHIG
The cost-benefit analysis for the new Dungeness Water Management Rule says by avoiding future litigation the rule will save Washington taxpayers and Clallam County residents between $22 million and $67 million in legal fees and “lost future development.”
Who will bring these anticipated lawsuits?
Among its many features, the rule is intended to salve the concerns of senior water rights holders who may feel their water is being taken by those who drill new wells within the rule’s affected area, WRIA 18 East, which includes much of rural eastern Clallam County.
Because withdrawals of groundwater can lessen the amount of water in area streams, these well owners are said to be removing water from the streams. The new rule will require those who want to drill a new well to “mitigate” for their water use — they will be required to purchase water rights from a senior water rights holder.
Those who have a well and are “beneficially” using the water won’t be affected by the rules until they engage in a “new use” of water. At that point they too will be required to meet the requirements of the rule.
In this way Ecology hopes the net withdrawals of water from the affected streams doesn’t increase, thereby allaying the concerns of senior water rights holders.
Who will sue?
Kasia Patora, the agency economist who wrote the rule’s cost benefit analysis, said the analysis assumes that under the status quo “there would be a 14-28 percent chance of litigation.”
“By establishing protective instream flows, the proposed rule would reduce that probability to zero.”
She said the calculations do not include an “assumption about specifically who would file a lawsuit.”
Maia Bellon, deputy program manager for Ecology’s Water Resources Program, said the “high-risk plaintiffs” include “the irrigators and those tribes in the area who have a right to take fish and a presumed flow level right.”
Gary Smith, spokesman for the Sequim-Dungeness Valley Water Users Association, said no one in his organization has discussed with Ecology the possibility of a lawsuit. “The Water Users are committed to continue working with all parties affected by the rule to make it effective, to make it the least invasive possible, while considering all of the communities’ needs,” he said.
The right to fish
Ecology environmental engineer Bob Barwin wrote the rule’s “risk story,” which provides much of the basis for the rule’s cost-benefit analysis. In an e-mail to his fellow Ecology staffers, Barwin said he “tried in two pages to describe the who, what, when, where and why of a dispute that I’d expect to arise as a result of unmitigated impacts to WRIA 18 streams.”
Barwin’s biggest concern is a lawsuit brought by the Jamestown S’Klallam Tribe.
In the risk story, Barwin notes, “Permit-exempt groundwater uses across the state have one thing in common: a risk that a senior right to surface water or groundwater will make a successful ‘call’ on a river or groundwater aquifer that results in junior rights being curtailed. In the Dungeness basin, a probable cause for such a call would be when flows in the Dungeness River and the small streams are not sufficient to satisfy the rights of the tribes.”
Ann Wessel, instream flow rule lead for Ecology, later added a brief bit of text to the risk story, writing, “The Jamestown S’Klallam Tribe has indicated that they place great weight on the collaborative process that has led to proposing a rule to protect instream flows in the Dungeness watershed. They have expressed their expectation that the rule will be adopted and desire to avoid the litigation that would likely ensue without a rule.”
Wessel said her comment is “based on general statements made by (Tribal Chairman/Executive Director) Ron Allen and his staff on numerous occasions at meetings with Ecology, the county, Dungeness Water Users and others.”
She added, “I have not been at a meeting where the tribe specifically raised the specter of litigation, however, the Dungeness-Quilcene Plan is very clear that the tribe chose the watershed planning process as a means of avoiding litigation. Adoption of instream flows in a rule is a clear recommendation of both the Dungeness-Quilcene Plan and the Elwha-Dungeness Watershed Plan.”
For the tribe
Scott Chitwood, natural resources department director for the Jamestown S’Klallam Tribe, said the tribe has no plan to sue, saying, “All along we have put our hopes and confidence in the process.”
He noted that while the Jamestown Tribe, as well as the Lower Elwha Klallam and Port Gamble S’Klallam tribes, are “very interested” in the water, “We wouldn’t have been participating (in the process) if that was the plan.”
Chitwood didn’t rule out a lawsuit. He noted that in other watersheds in Washington tribes have gone to court.
“I just don’t know that the (Jamestown) tribe would sue,” he said. “One reason is because the state is working toward resolving this. We’re now paying attention to how we manage water in WRIA 18.”
He added that he has concerns about the watershed. “For the past 20 years there’s been a light shined on our resources — and the news isn’t good.”
Chitwood spoke favorably about the proposed rule, saying that it finally recognizes, “There’s a better way to manage water than to allow anyone to drill a well and start pumping.”
“We need instream flow,” Chitwood said. “What I sometimes call a ‘water right for fish.’”
He also pointed to the tribe’s “patience,” saying it has been working with the community toward a rule for seven years.
“I wish we had wrestled with this problem years ago,” Chitwood said. “I think we could have saved more water.”
Reach Mark Couhig at firstname.lastname@example.org.