This week the Olympic Resource Protection Council (ORPC) filed a “petition for rule amendment” with the Department of Ecology seeking substantial changes to the Dungeness Water Rule, which has been in place since Jan. 2, 2013.
Under the rule, which covers much of eastern Clallam County, landowners who hope to drill a water well must first secure a right to indoor water. Those rights are now drawn from a water rights “reservation” administratively created by Ecology to ensure that development didn’t come to a complete halt as new water rights are created through remediation projects that are now being planned.
Currently new uses of outdoor water are denied to hundreds of lots covering thousands of acres.
The non-profit ORPC was formed to seek changes to the rule. While the members of the group first said they would file suit, they’ve now decided to first try to effect the needed changes through a petition, a formal process that allows individuals and groups to ask a state agency “to adopt, amend, or repeal an administrative rule.”
ORPC spokesman Greg McCarry said council members haven’t ruled out litigation, but are following the advice of their attorneys who recommended taking “the administrative path to engage with Ecology.”
McCarry said the council wants to engage in a good faith effort with Ecology, but added there are certain efficiencies to be gained by filing a lawsuit. It may also result in a strategic advantage if a lawsuit is eventually filed.
“Under the statute, (Ecology) has 60 days to answer,” he said. That will be much faster than a lawsuit. McCarry added that the petition requires Ecology to answer questions they previously have avoided, including concerns about the establishment of “minimum flows” in the Dungeness River.
During the run-up to the rule, “Ecology would take input but didn’t always provide answers,” McCarry said. “We thought this would put their feet to the fire.”
If Ecology officials don’t respond “in good faith,” that will provide a strategic advantage if the case goes to court, he said.
Kristina Nelson-Gross, an attorney representing the ORPC, said they understand a rule is necessary. “I think what we’re asking is for (Ecology) to be reasonable. We want something that allows people to function as a normal society.”
“We appreciate all of the efforts of those who have been working on the rule,” Nelson-Gross said. “We’re just asking for a seat at the table to create a rule that’s defensible and functional. We’re extending a hand to everyone who wants to go down that path.”
“We just want a give-and-take conversation. We don’t want to be talked at.”
Nelson-Gross said it’s too early to speculate what Ecology’s response will be, but said community support “would send a strong message to Ecology and (the Legislature) that (the rule) isn’t working as it’s supposed to.”
Effects of the Swinomish Decision
The petition restates many of the criticisms that previously have been leveled against the rule, but also adds a relatively new twist by referring to the recent decision by the Washington Supreme Court in Swinomish V. Ecology. In that case, decided in October 2013, the court declared Ecology had no right to declare an “overriding consideration of public interest” (OCPI) to justify creating a water reservation in the Skagit River Basin.
The OCPI can’t take precedent over a previously established “minimum flow” in a river because, the court said, a minimum flow constitutes an “existing water right.”
Under Washington water law, water rights are established chronologically — whoever first establishes the right keeps it in perpetuity, and it cannot be infringed upon.
The ORPC petition declares, “In light of Swinomish, the Dungeness rule must be drastically amended.”
Ecology officials and other supporters of the rule have declared the two cases are substantially different, noting the OCPI reservations in the Skagit Valley were put into place after the water rule there was in effect. The Dungeness Water Rule included both the new “minimum flows” and the OCPI reservation in its language.
But the authors of the ORPC petition disagree, pointing to language in the decision that declares reservations “constitute appropriations of water.”
“Reservations of water must therefore meet the same requirements as any appropriation of water under the water code,” the petition states.
Ecology should therefore “develop an amended rule establishing reservations of adequate supplies of water for rural uses and development,” but not through the OCPI exception.
Sarah Mack, an attorney with Tupper, Mack, Wells, explained the distinction, noting that
“Ecology doesn’t need to use OCPI to create a reservation. It has existing independent authority under the Water Resources Act to set aside and reserve water for future beneficial uses.”
She added, “Ecology should have straightforwardly established a domestic use reservation – along with defensible minimum instream flows – instead of injecting the OCPI ‘poison pill’ into the rule.”
The petition says that would allow the agency “to meet the water demand associated with buildout consistent with Clallam County’s adopted land use plans and designations ….”
Under the law, the petition states, Ecology would be required to develop the rule in “close coordination with the county,” with participation by all affected stakeholders and with “a credible, science-based assessment of the net impacts on streamflows of anticipated rural groundwater withdrawals.”
ORPC officials say Ecology’s recent approach “has caused widespread uncertainty, created direct conflicts with local land use planning authority and imposed significant regulatory and transactional costs that are completely out of proportion to any identified benefits.”
In the end, the petition “urges” Ecology “to recognize the Swinomish decision as a wake-up call for Ecology’s approach to instream flow rule making in general, and in the Dungeness basin in particular.”
The four-point test
The 17-page petition says the rule is further “fatally flawed” because the agency failed to satisfy two portions of the “four part test” required under Washington law when creating a new water right.
One provision of the test said the water must be available. The petition notes that the newly designated minimum instream flows are established at levels that nature often doesn’t provide. That, the petition says, derives from Ecology’s decision to ignore hydrologically-defined base flows, and to use instead the “biological or ecological approach.” The latter doesn’t take into account the amount of water that actually flows in the river, and instead describes the “lowest flow that will provide unimpaired fish conditions.”
The petition also fails to meet the requirement that the proposed use “will not be detrimental to the public welfare.”
The petition states, “Ecology’s inclusion in the Dungeness Rule of ‘optimum’ instream flows that don’t equate to actual minimum flows has produced needless hardship for the local community and for property owners and businesses within Clallam County.”
The rule doesn’t simply “protect” the natural environment, the authors say. Instead it seeks to “enhance” the natural environment. They say that’s inconsistent with the legislative intent underlying the law.