By Joe Smillie
Peninsula Daily News
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Greg McCarry, a member of the building industry-backed council, said the petition was filed Tuesday as an effort to negotiate with Ecology to make changes to what he said is a “draconian” application of the rule that adversely affects property owners.
“We're not saying there is no need for a water management system,” McCarry said. “Our hope is that this will call them to the table so we can put something together in a reasonable way.”
Instead of using the water rule to “protect” the watershed, the council claims in its petition, Ecology crafted it to “enhance” the river's natural environment by mandating water levels in the river meet “optimum” standards.
McCarry said the agency's flow projections were based on a biological ideal that would allow fish to travel upriver unimpeded.
“We're not opposed to fish. We love fish,” McCarry said. “But the state also needs to consider the needs of property owners.”
Ecology has 60 days to respond to the council's petition.
Implemented Jan. 2 last year after years of preparation by Ecology officials, tribal officials, local water users and local governments, the Dungeness Water Rule sets minimum flow levels for the river and its tributaries.
The limits are intended to protect water supplies for marine habitat and to preserve water for human use.
The rule covers the eastern half of Water Resource Inventory Area 18, from Bagley Creek to Sequim Bay.
Kristina Nelson-Gross, one of the council's attorneys, said Ecology misused a statutory justification known as “overriding consideration of public interest,” or OCPI, when it set the minimum flow for the Dungeness basin.
“It's a very narrow exemption, and it's only to be applied on a case-by-case basis,” Nelson-Gross said. “Their use of OCPI in a broad-brush manner to set water standards was wrong.”
Ecology spokesman Dan Partridge said Wednesday that the agency's lawyers were still reviewing the petition and will craft a response to the council based on that review.
In October, the state Supreme Court ruled that Ecology overstepped its bounds when it used the overriding-consideration-of-public-interest defense to justify allocating more water from the Skagit River watershed for use in the agricultural and building industries.
Saying the agency had not consulted them about using more water from the watershed, the Swinomish Indian Tribal Community filed suit and had Ecology's determination overturned.
The council believes the Supreme Court's ruling nullifies the local water reservation.
“Generally, the court's Swinomish decision said reserves set by overriding consideration of public interest can't be done,” Nelson-Gross said.
“Under the current scheme, there's definitely some potential issues there.”
She added the court defined water reservations made under management rules to be de facto water rights to the river.
As such, she said, the water rule's “fatal flaw” is that it created a water right that goes above what whatever is available in the river and by unnecessarily limiting water use by property owners and businesses.
“So we're asking Ecology to go back and apply actual science to the river,” McCarry said.
“There are 3,800 parcels that have been affected in the Dungeness watershed.
“When you do that to that many people, you need to make sure you're using real-world science, not the biological assessment they applied here.”
Ecology says off track
Partridge said the court's ruling focused on the fact that Ecology allocated the Skagit basin water after the water management rule had already been negotiated and implemented.
Since the Dungeness River reserves were negotiated while the rule was being written, he said, the state high court's ruling should have little impact on the Dungeness River rule.
“There's a big difference between the Skagit water reserves and the Dungeness reserves,” Partridge said.
Sequim-Dungeness Valley Editor Joe Smillie can be reached at 360-681-2390, ext. 5052, or at firstname.lastname@example.org.