State Sen. Jim Hargrove warns Dungeness Water Rule lawsuit could delay area development for years
State Sen. Jim Hargrove, right, shakes hands Tuesday with Clallam County Commissioner Jim McEntire while talking with Carole Johnson, executive director of the North Olympic Timber Action Committee. — Paul Gottlieb/Peninsula Daily News
By Paul Gottlieb
Peninsula Daily News
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That's one reason why the 24th District Hoquiam Democrat is against a court challenge to the state Department of Ecology regulation, he told about 50 Port Angeles Business Association members and guests at the group's Tuesday breakfast meeting.
“If this ends up in federal court, you could end up with no building in this area for years,” Hargrove told the group, estimating it could last more than half a decade.
His position against a court challenge puts him at odds with the group that invited him. Hargrove is one of three state legislators who represent Clallam and Jefferson counties in Olympia.
At the same meeting, PABA members pledged to fight the regulations in court by donating $500 to $1,000 — subject to being matched by other donations — to the challenge initiated by the Olympic Resource Protection Council.
“This is a property rights issue that is close to the precepts of this organization,” association Vice President Tim Smith said in making the motion to donate the funds, which passed unanimously among the members attending the meeting.
Critics of the rule put into effect in January 2013 have said the regulations hurt private property values by unnecessarily limiting new water use.
But other interest groups, including environmentalists and Native American tribes, are beseeching Ecology to keep the protections in place, said Hargrove, who represents Clallam and Jefferson counties and about a third of Grays Harbor County.
If opponents sue, those groups likely would file suit to guarantee the regulations stay in place, he predicted.
“DOE is not just hearing from property owners,” Hargrove said.
If the water rule is “shot down,” it could result in a federal lawsuit that could take several years to resolve, he said.
Hargrove recalled that areas of Skagit and Snohomish counties in the Skagit River Watershed were made off-limits to new construction after the water rule for the watershed was challenged by the Swinomish tribe.
“The issue I am concerned about is you have endangered species [salmon] and tribal treaty rights,” Hargrove said, predicting a lawsuit could end up in the liberal-leaning 9th District federal court in San Francisco.
“We do not do well fighting the tribes. We do not do well fighting the environmentalists.
“I am nervous.
“I want to make sure we do not screw up the county when it comes to the economy.
“I do not want to say, 'I told you so.'”
The rule restricts new water usage in the Dungeness River Basin from Bagley Creek to Sequim Bay — the eastern half of Water Resource Inventory Area 18 — to protect the resource for human use and aquatic species, especially during dry summer months.
It requires water users to offset water they draw from the basin for new uses in order to preserve water in the Dungeness River.
New fees of $1,000 are required for new in-home water use, including washing a car or watering patio plants.
The fees are covered for private homeowners from a state-funded water bank in 2014.
Fees of $2,000 and $3,000 required for watering lawns, depending on the size, are not covered by the water bank.
Sheila Roark Miller, Clallam County Department of Community Development director who is running for re-election, said at the meeting that water rule critics “wanted to see a little more give” for outdoor uses such as watering stock.
That is allowed under the water rule if a fee is paid that is not covered by a water bank.
Hargrove said, “You still have the opportunity to amend any rule in state government.”
He said rainwater can be collected and used to water stock if the county approves.
“We are willing to work with you guys,” Hargrove told PABA.
Greg McCarry, president of the Olympic Resource Protection Council, said he does not believe the lawsuit will end up in federal court.
The council decided in April to sue the state over the Dungeness Water Rule.
The case, which likely would be filed in Thurston County Superior Court, would cost an estimated $100,000 to $150,000, McCarry, who lives in Sequim, said April 4.
He said Tuesday the group has raised more than half of what it needs to file suit.
He said the council was forced to choose a lawsuit after Ecology officials said they were not interested in pursuing changes in what the council said were unrealistically high estimates of existing water flow.
“The state Supreme Court said if you assign a water right, you have to prove the water is there,” McCarry said.
“[Ecology] used best-available science for fish.
“That doesn't follow the state law, and that's what we are challenging.
“If this brings Ecology to the table for legitimate discussion, that's great,” he said.
“The Legislature could change this, but they haven't got the appetite, either.
“I don't know where he expects us to go if we want to amend the rule.”
Ecology rejected a petition by the council to negotiate changes to the rule earlier this year, saying concerns could be addressed administratively instead.
Senior Staff Writer Paul Gottlieb can be reached at 360-452-2345, ext. 5060, or at firstname.lastname@example.org.
Last modified: July 23. 2014 7:23AM