Dungeness watershed topic at briefing

By Rob Ollikainen
Peninsula Daily News

SEQUIM — The Dungeness Valley is the “hot spot in the state right now” for water law, a land-use attorney and state lobbyist told area real estate agents last week.

Bill Clarke, chairman of the Association of Washington’s Business Water Resources Committee, told Clallam County Realtors and builders Thursday that the state-proposed water management rule for the Dungeness Valley is flawed.

“One of the main points of frustration that we’ve noted, and others have noted, is no one knows exactly where mitigation is going to be available, when it’s available, how much it actually costs,” Clarke said in a land issues briefing hosted by the Sequim Association of Realtors, Port Angeles Association of Realtors and the North Peninsula Building Association at the Cedars at Dungeness Golf Course.

The state Department of Ecology is expected to adopt an instream flow rule next month that would set minimum flows and require the owner of new wells to mitigate their use of water by buying credits through a water exchange.

Ecology officials were not invited to the briefing but have maintained that the rule would provide certainty that people have access to water when they develop their land.

The rule would affect the eastern half of the Water Resource Inventory Area 18, from Bagley Creek on the west to Sequim Bay on the east.

“I think it’s pretty clear that they’re going to adopt some sort of rule,” said Clarke, who represents local governments and others on environmental and land-use appeals.

“What we’re trying to do is at least get it to the point that it’s a rule that provides a guaranteed amount of water for each person that wants to build a house.”

“Our fundamental position is each buildable parcel needs enough water to get a building permit.”

Other speakers at the briefing were Sequim attorney Kristina Nelson-Gross, who addressed shoreline management and critical areas in Sequim, and Clallam County Community Development Director Sheila Roark Miller, who discussed Carlsborg development.

Clarke summarized the complexities of water rights mitigation that has occurred in other parts of the state, including a moratorium for new uses in parts of Skagit and Kittitas counties.

“We’re continuing to push Ecology to remove this mitigation obligation on each land owner, and instead come up with a process where each lot is entitled to a certain amount of water that’s enough to get a building permit and some amount of outside water use,” Clarke said.

“If, beyond that, people want to buy more water for irrigation, that could be available though this Dungeness water exchange. It’s also a far simpler process for Ecology.”

About half of the 62 of the designated water basins in the state have an instream flow rule, a baseline cubic-feet-per-second flow required for new uses.

A building permit can’t be issued under the law unless there is adequate water to meet the instream flow that Ecology sets.

“Based on flow records around here, the flow levels being proposed for the Dungeness will rarely ever be met,” Clarke said.

“You could make a fairly good case that these are not truly minimum flows.

“Unless you have mitigation, you’re water right is interruptible. If it’s interruptible, you can’t get a building permit.”

Under the Administrative Procedure Act, the benefits of the instream flow rule must exceed its costs.

The Dungeness rule is particularly controversial because the initial analysis from an Ecology economist concluded that the costs outweighed the benefits, Clarke said.

“There’s a significant amount of internal Ecology emails that go back and forth about what are the actual benefits of this rule and what are the actual costs of the rule,” Clarke said.

“Ultimately, the Ecology staff member who disagreed with the rule was removed from the project. A new economist was brought in and the numbers were re-analyzed. Low and behold, in the end, the benefits outweighed the cost.”

Agency spokeswoman Linda Kent has said the preliminary economic analysis for the Dungeness Valley was developed by a senior economist under the guidance of the Attorney General’s Office according to state water law.

The analysis projected that benefits of adopting the rule will be four to 6 times greater than the costs of adopting it over 20 years, Kent has said.

Instream flow rules are the result of environmental laws adopted in the 1970s that were intended to protect the environment from impacts.

“Now it’s shifted more toward restoration and restoring the environment from past environmental impacts,” Clarke said.

“The issue is always: ‘Whose responsibility is that when there’s mitigation required? Is that the obligation of the state and of taxpayers in general, or is that mitigation obligation imposed on the individual land owner?’”

The current trend is to impose the mitigation obligation on property owners despite the fact that everyone benefits from environmental protection, Clarke said.

“This has become a much more difficult issue for local governments around the state,” Clarke said.

Owners of large water rights in the Cle Elum area are “doing extremely well” selling chunks of their water right to new users through a mitigation bank, Clarke said.

“Depending on where you’re at in the Roslyn-Cle Elum area, the cost of that water for a single-family home is between about $8,000 and $15,000,” Clarke said.

“One of the key points that Realtors have raised, home builders have raised and others is even though Ecology is poised to adopt the Dungeness rule now, it’s yet to be determined how much will that water cost.

“The range that’s been described initially was between $500 to $3,500,” Clarke added.

“That number has crept up a little bit, and no one yet really knows.”

A Skagit County case before the state Supreme Court should provide more clarity on Ecology’s statutory authority to adopt instream flow rules that regulate exempt wells, Clarke said.

“Is this Dungeness rule valid or not? It’s tough to say because this issue’s never gone to the Supreme Court,” Clarke said.

“Once the Supreme Court rules on this — it’s an appeal from the Swinomish Indian tribe of the Skagit rule — that will better inform Ecology and other affected users of what is Ecology’s statutory authority.”

In parts of Skagit County, citizens have met their mitigation obligation by teaming up with their neighbors to store outside water in large facilities.

“To me, it’s absurd that you would be trucking in water to these basins that have tons of water,” Clarke said.

Ecology is in the process of reviewing a public comments filed on the proposed rule.

The three Clallam County commissioners signed a letter to Ecology Director Ted Sturdevant July 3 that raised concerns about the rule.

Commissioner Jim McEntire had previously asked Ecology to put money into the state budget to purchase water rights to protect future development.

Two weeks ago, McEntire reported that Sturdevant acknowledged that Ecology needs to improve the economic study that underpins the rule. The agency also agreed to budget an unknown sum of money to purchase water to mitigate future domestic use of permit exempt wells.

Reporter Rob Ollikainen can be reached at 360-452-2345, ext. 5072, or at rollikainen@peninsuladailynews.com.

Last modified: August 26. 2012 6:07PM
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