Threatened lawsuit won't affect start of Dungeness water rules, officials say

By Paul Gottlieb
Peninsula Daily News

Thousands affected by rule
More than 17,700 parcels, including those in Sequim, are in the Dungeness water rule area.

But the primary impact of the rule will be felt by owners of 3,441 vacant parcels when those parcels are developed, Clallam County Permit Center Manager Tom Shindler said.

The rule will not affect Sequim in the immediate future because the city already is covered by existing water rights, Shindler said.

There are 3,155 vacant and nondivisible parcels and 286 vacant divisible parcels outside the Sequim city limit that will be most affected by the water rule, he said.

The totals do not include roads and timberland.

At current building rates, about 150 parcels in the area probably will be affected annually by the rule, Shindler said.

In 2011, for example, 104 parcels would have been required to acquire mitigation usage and been required to abide by the usage limits of the water rule or connect to an existing water system, Shindler said.

By contrast, in 2004, there were 550 new homes in the Dungeness water rule area for which owners would have been required to abide by the new water rules.

Peninsula Daily News
SEQUIM — There would be no immediate impacts on new water management rules — or the state money that's been promised to implement them — if a threatened lawsuit to Water Resource Inventory Area 18 is filed early next year, county and state officials said.

The North Olympic Peninsula Building Association is spearheading a planned lawsuit asking to rescind rules for the area between Bagley Creek and Sequim Bay, Greg McCarry, a council organizer, said Monday.

“We are not opposed to having some measure of a rule,” he said.

“What we concerned about is, this is over­reaching.”

McCarry said last week that the group has named a steering committee to form the Olympic Protection Resource Council to carry forward the effort.

He said he was 90 percent certain that a suit will be filed against the state Department of Ecology in Thurston County Superior Court early next year.

WRIA 18 opponents are seeking $100,000 in pledges to fund the effort, McCarry said.

“We are going to challenge the legal authority and the process Ecology engaged in pursing the implementation,” McCarry said.

“We don't think they followed procedures set forth in the statutes.”

Ecology spokesman Dan Partridge said the agency “obviously” disagrees with the group's objections to WRIA 18.

“It's been thoroughly researched and thoroughly vetted in the state Attorney General's Office that represents Ecology in rulemaking and other matters,” he said.

Partridge would not comment on the impacts if a lawsuit is successful and a judge throws out the water rule.

“The bottom line is we will not speculate on the impacts on water management in the Dungeness basin from a lawsuit that hasn't yet even been filed,” he said.

Partridge said the new water rules would apply to WRIA 18 beginning Jan. 2 regardless of when and if a lawsuit is filed — and until a judge decides otherwise.

“If they don't obtain a stay from the court, then the rule on Jan. 2 becomes law,” he said.

The rules for WRIA 18 apply to the Dungeness River area.

It they are rescinded, it would simply turn back the clock to the status quo and not limit new development, according to the legal adviser to the Clallam County commissioners.

“Presuming there's no water rule, there would be maintenance of the status quo; i.e., we would go back to the condition we were in prior to having the water rule,” Chief Deputy Prosecuting Attorney Mark Nichols said.

“If everything that's been done is undone, and we go back to Day 1 prior to Ecology beginning its efforts with respect to WRIA 18, generally applicable state law will apply.”

The three county commissioners also expect to move forward with the water rules at their meeting today.

In separate interviews last Friday, they said that despite the lawsuit threat, they will approve a memo of understanding with Ecology that will outline the agency's and county's responsibilities for implementing the rule.

“The bottom line is, we need to make sure we get this right so the community has access to water for any new projects,” Commissioner Mike Chapman said.

In light of climate change and its impact on the Olympic Mountains, “we have a decreasing supply of water so should do more to protect people with water rights,” Commissioner Mike Doherty said.

Commissioner Jim McEntire, who helped negotiate the memo of understanding with Ecology, has already recommended its approval.

“It's the next step in formalizing the relationship between Ecology and the county as far as implementing the rule goes, though there's some more detail work to do,” he said.

“It's a necessary and worthy step to take.”

Signed Nov. 16 by Ecology Director Ted Sturdivant, the water rule is intended to protect water supplies in the eastern half of WRIA 18 for human consumption and fish habitat.

It sets minimum in-stream flows and requires owners of new wells to mitigate water use in ways including the purchase of credits through a water exchange, also known as a water bank.

The exchange will be set up by Jan. 2, Partridge said.

Individuals also can purchase a portion of someone else's water rights, can purchase credits or can devise a mitigation plan that must be approved by Ecology.

McEntire, a Republican, teamed up with 24th District state Sen. Jim Hargrove, a Hoquiam Democrat, to negotiate the memo of understanding and to secure $100,000 in state funds related to the water rule.

The money will help homeowners cover mitigation costs at least through July 1.

“There's not going to be anything that happens to that,” Hargrove said of the state funds.

If a judge invalidates the water rule, “then there's no need for mitigation and no need for additional money,” he said.

“It's all in speculation-land right now.”

Hargrove, the new chair of the powerful budget-writing Senate Ways and Means Committee, said Ecology has forwarded an additional request for $300,000 for homeowners' mitigation costs for the 2013-2015 biennium.

“It is my intent that that money be in the first proposal of the capital budget,” Hargrove said.

McEntire said Ecology has requested $2.05 million in the biennial budget that includes funds designed to mitigate “way more than two years of water use.”

Hargrove would not speculate if the lawsuit would make it more difficult for legislators to approve funding for WRIA 18 knowing that a segment of Clallam County opposes the new rules.

The vast majority of citizens have spoken against the rules at public meetings in Clallam County.

“We did our best, and other people can make their decisions,” Hargrove said of his and McEntire's efforts.

McEntire said he was not upset that the building association, which hails from a constituency that helped get him elected in 2011, was planning to file suit against Ecology, even though he toiled over the memo of understanding to make them more palatable to county residents.

“Ecology is going to do what they are going to do,” McEntire said.

“If folks are still unhappy with that, fine.

“If they have a problem, it's not with me, it's with Ecology,” McEntire said.

“They are the ones with the authority from the Legislature in statute to institute water management rules and water management regimes and so forth.”

The building association steering committee that is making moves to challenge that authority includes McCarry, who is a building association board member, and association president Rick Gross, land use lawyer Kristina Nelson-Gross and building association executive officer FaLeana Wech, all of Sequim, and retired lawyer and investment banker Kaj Ahlburg of Port Angeles.



Senior Staff Writer Paul Gottlieb can be reached at 360-452-2345, ext. 5060, or at paul.gottlieb@peninsuladailynews.com.

Last modified: December 03. 2012 6:05PM
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