Washington water law watchers and officials with the Department of Ecology are scrambling to determine what a new Supreme Court decision handed down this week means for basins across the state.
One conclusion seems certain: The decision will have an impact on the Dungeness Water Rule that Ecology put into place on Jan. 2, though the extent of the impact remains to be seen.
The case was brought by the Swinomish Indian Tribal Community, which argued that Ecology had wrongly extended water rights when it made water available for residential construction in certain portions of Skagit County. They said Ecology had acted illegally by invoking a portion of the law that allows the agency to make water available based on an “overriding consideration of public interest.”
The tribes said by doing so Ecology had reduced the amount of water available for salmon populations.
This week the court agreed, saying Ecology had too broadly defined its authority by making the water rights available for purchase by all.
The justices said the agency’s authority is “very narrow,” and requires extraordinary circumstances before “the minimum flow water rights can be impaired.”
Specifically, the court declared the agency “can’t set aside reservations of water through adoption of water management rules where water was previously set aside to support stream flows for fish.”
The court declared Ecology’s rule invalid, putting into question a number of Skagit construction permits that have been issued since the agency put the reserves into place.
That’s worrisome for those in the Dungeness basin, where Ecology has invoked the same legal authority to create “reserves” of water to ensure the new rule didn’t bring development to an immediate halt.
A little history
Under the Dungeness Water Management Rule, anyone who drills a well in the affected area must purchase “mitigation rights” before drawing water from the well.
Those with an existing well who put the water to a “new use” also must purchase mitigation water.
To create these mitigation rights, new projects must first be put into place to mitigate the anticipated losses. This often includes creating holding ponds where the water can trickle down to the aquifers below.
The first mitigation projects are expected to be completed in 2014. Because there are no mitigation rights to be sold, new home builders are currently tapping into the “reserve water.” As in the Skagit Valley, this isn’t “wet water,” but rather water rights administratively set aside “in the public interest.”
Sequim Realtor Marguerite Glover, who also serves on the Local Leaders Water Group, described the possible impact of the decision, saying, “In the Dungeness (the Bell Creek sub-basin to the Bagley Creek sub-basin), we are now pulling the ‘mitigation’ from the reserves for new houses on wells, and for old wells that are now being used domestically. Without the reserves, we will need the projects for aquifer recharge, storage, stream enhancement, etc., to be working, even to get new ‘inside’ water.”
“It will make it much harder to get any new well water for those properties that are outside the service area of the irrigation districts.”
Glover said those on public water systems may also be affected, noting the Clallam PUD is hoping to drill a new well to replace an existing one that is too close to the shoreline and is therefore subject to saltwater intrusion. Though the new well won’t draw more water, it will draw from local streams in a different pattern than the current well. That new use will require mitigation.
Mike Gallagher, who heads up the Water Resources Program in Ecology’s Southwest Regional Office, said it’s too early to determine exactly what the final impact of the decision will be on the Dungeness Rule and similar rules now in place across the state. “It does make those other rules vulnerable,” he said.
He said he feels fairly comfortable the Dungeness Rule won’t face a similar legal challenge. “It’s hard to imagine why people would want to take it away because if they did there would be no water. That would severely impact development.”
He also pointed to the cost of the Swinomish case, which required years of litigation to provide a final decision.
“I think it’s easier said than done,” he said.
Local developer Greg McCarry said the new decision is certain to have an impact. McCarry is a board member of Olympic Resource Protection Council, a local group that has been planning to file a petition with Ecology for relief from the Dungeness Rule. The Council put off filing until the Swinomish decision was handed down, but now they’re moving forward. McCarry said he and the other board members will meet with their attorney soon to review the decision and to further develop the petition they will file.
Kristina Nelson-Gross, an attorney working with the council, echoed his statements saying the decision “is changing what the organization is doing, but we haven’t made a final decision.”
S’Klallam Tribe Tribal Chairman Ron Allen said the Swinomish and other tribes in the Skagit area had simply sought a “balance in terms of who has a right to the water.”
He noted that while the agricultural interests in the area have an interest in their productivity, the tribes have a similar interest in salmon harvests.
“It creates an impression of tension between them and the tribe. But the tribe is only saying, ‘we need to protect the salmon. Someone has to.’”
He added that the Supreme Court’s decision presumes there’s a win-win situation. “That means you farmers won’t be happy. And you fisheries guys won’t be happy.”
He said he anticipates the same conflict won’t arise in the Dungeness. “This valley has been very progressive — the irrigators the agricultural interests. We’ve been very cooperative and we’ve been working on a win-win situation.”