Court rejects appeal of Dungeness Water Rule

Earlier decision upheld in favor of state Department of Ecology

TACOMA — The state Court of Appeals has reaffirmed much-debated six-year-old Clallam County regulations known as the Dungeness Water Rule that control water use in the Dungeness River watershed.

Chief Judge Bradley A. Maxa and Judges Lisa R. Worswick and Rich Melnick on April 2 upheld a Thurston County Superior Court decision, handing a victory to the state Department of Ecology, which approved the restrictions.

They rejected an appeal of the 2016 ruling on what is known as the Dungeness Rule that governs water use in 215-square-mile Dungeness River watershed, or basin. The basin includes the 32-mile Dungeness River and its tributaries.

The original challenge and subsequent appeal were filed by the Sequim-based Olympic Resource Protection Council and former rural Sequim property owners Magdalena and Denman Bassett, who had sued Ecology.

The Seattle-based Center for Environmental Law and Policy intervened on Ecology’s behalf.

Greg McCarry of Sequim, president of the Olympic Resource Protection Council, which was formed to fight the regulations, said Tuesday he favors appealing the ruling to the state Supreme Court but that he and board members Kaj Ahlburg of Port Angeles and FaLeana Wech of Sequim would make that decision.

“I am hoping we are going to do that this week,” said McCarry, adding that the organization has “hundreds” of contributors.

Mary Ellen Winborn, director of the county Department of Community Development, said Monday she was not surprised by the appeal court’s decision, praising the regulations for continuing to allow development

“I know people did not like it at first, but the people that did this back when it started, they did a good, thorough job of how they set it up,” she said.

“Overall we’ll always be able to develop because of the water rules, and it’s a good thing.

“It’s a process that’s not too onerous right now.

“It’s just one more step.

“We are sitting in a very good position for development.”

The 34-page ruling is at tinyurl.com/PDN-WaterRule.

The appeals court judges said Ecology had not exceeded its authority in approving the rule and said the plaintiffs had not proven that the regulations are fatally flawed.

“When an agency acts within its authority, a rule is presumed to be valid and, therefore, the ‘burden of demonstrating the invalidity of agency action is on the party asserting the invalidity,’” they said, quoting state law.

“The burden is on plaintiffs to show that the rule is arbitrary and capricious. RCW 34.05.570(1)(a),” the judges said.

“Here, where they have simply reframed their earlier arguments without any citation to authority, plaintiffs have failed to meet that burden.”

The Water Rule, effective Jan. 2, 2013, was filed to protect low stream flows and existing water rights after Ecology determined that water was not “reliably available for new consumptive uses in the Dungeness watershed,” according to the opinion.

The rule set minimum instream flows for the Dungeness River and its tributaries.

The waterway, its headwaters in the Buckhorn Wilderness in the Olympics and end-point in the Strait of Juan de Fuca, is home to species of salmon and trout, including endangered chinook and summer chum salmon, steelhead, and bull trout.

The regulations, imposed to protect fish populations and the environment, establishes reserves of groundwater specifically for domestic use and closes the watershed to new groundwater appropriations, including new permit-exempt wells, with certain exceptions.

A water exchange was established through which users can buy credits to offset new consumptive use, and metering was required for all new surface water and groundwater appropriations.

“Water from the Dungeness watershed has been scarce for decades and critically low stream flows in the summer and fall have proven detrimental to the recovery of endangered fish populations,” according to the opinion.

“Stream flow with existing uses is considerably lower than stream flow needed to meet biological needs,” they said.

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Senior Staff Writer Paul Gottlieb can be reached at 360-452-2345, ext. 55650, or at [email protected].

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