by MARK ST.J. COUHIG

Sequim Gazette

Peninsula Realtors aren’t taking the Dungeness Water Rule lying down.

The rule, proposed by the Department of Ecology in May, will likely be adopted this fall. The rule will require those who drill a well in Water Resource Inventory Area 18 (WRIA 18) to pay to mitigate for their water use. WRIA 18 includes much of rural eastern Clallam County.

Ecology officials say the rule won’t hurt property values. Some Realtors say it already has.

Bill Clarke, public policy director for the Washington Realtors Association, said Job No. 1 is ensuring the rule is revised to provide for a bulk purchase of water rights by the state, a move he said would greatly alleviate both the costs and the bureaucratic efforts that will otherwise be borne by individuals throughout the area.Clarke also took swipes at the rule’s underlying legal theories, noting first that Ecology is incorrect when it says it must adopt “instream flows” for the Dungeness River and a number of additional streams in the valley. Instream flows are defined as the amount of water that is required to ensure the health of the river and the various natural and human resources that depend upon the flow.

“There’s no law that requires Ecology to adopt instream flows,” he said, noting the law only “authorizes” the agency to adopt the flows.

He added that the definition of instream flows has changed over the past few years. Originally, Ecology defined instream flows as the “minimum stream flow.”

Because wells near the stream have what Clarke called a “de minimis” impact on the flow in the stream, the agency long ignored the wells.

Today, he said, Ecology seeks not just to avoid impacts but also to work toward restoration of flows.

The question becomes, Clarke said, “Whose responsibility is it to restore flows?” The agency is turning to individual land owners to take on the burden, he said.

Clarke also described the method Ecology is using to close the area to new water uses. He pointed out that the new instream flows constitute a new water right for the river, with the right effective on the date of the rule’s adoption. The new right will be “senior” to all water rights that are issued after that date.

The problem, said Clarke, is that the instream flow that will be adopted “is hardly ever met.”

He noted, too, that under state law local officials are required to provide proof that water is both physically and legally available before issuing new building permits. That would put Clallam officials between a rock and a hard place.

It also poses issues for individuals, who under the new rule would be required to obtain water rights, most likely through a purchase made through a water rights exchange now being established.

Moreover, there are areas where no mitigation water for outside use is available.

“That’s one of the main flaws as it is proposed,” Clarke said.

He said the Realtors are seeking several changes in the rule, beginning with a guarantee from Ecology that sufficient water for every household will be available for every new home.

The mitigation fees shouldn’t be imposed on a “house-by-house basis,” he said. Instead the state budget should include enough funding to “fulfill the legal mandate to provide adequate potable water” to each home.