Group investigates Skagit River decision for implications on controversial Dungeness Water Rule
By Joe Smillie
Peninsula Daily News
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A recent state Supreme Court ruling said the state Department of Ecology overstepped its bounds in allocating water from the Skagit River watershed.
The Skagit River basin is under a water management rule imposed by Ecology, similar to the Dungeness Water Management Rule put in place Jan. 2.
“Ecology really got themselves in a pickle,” said Greg McCarry, a local developer and member of the council’s board.
“If the same rules apply here, you could say that everybody that drilled a well and got a mitigation certificate could be in jeopardy.”
The Olympic Resource Protection Council was formed earlier this year to raise funds to mount a challenge against Ecology to the implementation of the Dungeness water rule.
Kristina Nelson-Gross, a Sequim lawyer who represents the council, said the court’s ruling may have impacts on determinations made for water allocations in the Dungeness water rule area. The council is also represented by Sarah Mack of the Seattle law firm Tupper-Mack-Wells.
“Everything about it is kind of squishy,” Nelson-Gross said. “I do believe there are implications here.”
Clallam County Commissioner Jim McEntire disagrees.
“Bottom line is, I don’t think it’s going to have an impact here in Clallam County,” McEntire said after reading through the high court’s ruling.
“It’s a completely different set of facts.”
The high court’s ruling boiled down to a dispute over reserves of water for development from the Skagit River watershed.
Ecology reserved more water for new development after settling a lawsuit with Skagit County over water allocations under the rule, Ecology spokesman Dan Partridge said.
While the Dungeness water rule includes reservations of water for development, Partridge said they were laid out while the rule was being written, which is different from the Skagit circumstance.
“So for right now, the Dungeness reserves are secure,” Partridge said.
He added that Ecology will be looking at all six of its water rules that have reserved water for development in the wake of the Skagit decision.
“Certainly, the Skagit decision could establish precedent on all of our instream flow rules that have established reservations,” Partridge said.
Nelson-Gross said determinations by both Ecology and Clallam County officials could be nullified under the Supreme Court’s ruling.
For instance, officials have said the amount of water used to raise two horses is “diminimous.”
“Since the Supreme Court appeared to take such a hard line about interpretations, those policies might be in jeopardy,” Nelson-Gross said.
The Skagit decision
The rule was initially instituted in the Skagit River in 2001. The county filed suit in 2004, and Ecology agreed in a 2006 settlement to make 27 new reservations of water for builders, saying it was an “overwhelming consideration of public interest.”
The Swinomish Indian Tribal Community then filed a suit to nullify that determination, saying Ecology did not consult the tribe about allocating water from the river.
“Ecology chose to go it alone with the county, and we were left without any option other than calling the problems with the 2006 rule amendments to the attention of a court,” said Brian Cladoosby, chairman of the Swinomish tribe.
The tribe said the water allocations — which were issued, according to Partridge, to 485 property owners and eight businesses — lowered the flow of the river to levels that would be harmful to the six species of salmon that call the Skagit River home.
But the Supreme Court, in reversing a lower court ruling that supported Ecology, determined on a 6-3 vote that the agency used the “overwhelming consideration of public interest” defense too broadly.
Partridge said neither Ecology nor the tribe plans to make those who received water from the reservations curtail their water use while they figure out an alternate solution.
“The tribe concurs with the decision not to require these people to curtail their water use,” he said.
Ecology’s Dungeness water rule includes reserves of water for development that can be used by builders of new homes or those who change the use of existing wells as long as they purchase mitigation rights.
The rule covers the eastern half of Water Resource Inventory Area 18, from Bagley Creek to Sequim Bay.
Ecology purchased water rights from the Sequim-Dungeness Water Users Association. Those water rights are stored in an exchange that can be tapped by new water users by purchasing the mitigation rights through Clallam County.
The exchange is managed by the Washington Water Trust of Seattle, which also will oversee projects to boost groundwater and stream flow levels with funding from the water exchange and Ecology.
Amanda Cronin, water trust project manager, said she didn’t see any ramifications to Clallam County from the Skagit ruling.
“In the immediate future, I don’t see any changes to the Dungeness water exchange,” Cronin said.
She said the first efforts to mitigate water use should be completed next year.
McEntire, whose commissioner district includes the water rule area, said the fact that the reservations for the Dungeness water rule were established before it was finally approved make it a wholly different situation than Skagit’s.
“Our reservations were done right alongside the creation of the rule,” he said. “So everybody knew about it and had a chance for input.”
Ron Allen, CEO of the Jamestown S’Klallam tribe, agreed that having input from all parties to determine how much water was needed for fish passage and how much should be available for human use put the Dungeness water rule on more solid legal footing.
“They’ve had a lot more contentious relationship between the tribe and the farmers over there [in Skagit],” Allen said.
“The fact that we had a very good, open relationship between the farmers and the builders and the state really led us to a win-win situation.”
Sequim-Dungeness Valley Editor Joe Smillie can be reached at 360-681-2390, ext. 5052, or at email@example.com.
Last modified: October 12. 2013 6:32PM