SEQUIM — A Thurston County Superior Court Judge has upheld the Instream Flow Rule for the Dungeness River Basin, denying a challenge from a group of property owners and developers.
Greg McCarry, president of the Olympic Resource Protection Council and a developer in Sequim, called Judge Gary Tabor’s Oct. 21 ruling disappointing.
“We were optimistic the rule would be overturned because the Washington statutes to us were pretty clear what the Department of Ecology was required to do,” he said. “We felt strongly they didn’t do what they were required to do, so frankly we’re surprised by the ruling.”
The nonprofit challenged the state Department of Ecology’s Dungeness Water Rule, which was adopted in early January 2013, after a failed attempt to get state officials to work with them, McCarry has said.
State officials designed and implemented the rule as a method for managing surface and groundwaters within the Dungeness River watershed.
It seeks to ensure reliable water supplies for both drinking and to protect fish, wildlife and other in-stream resources within the watershed, which is one of 16 watersheds state officials consider “fish-critical” — basins with a shortage of water for existing needs.
The rule requires mitigation of any new groundwater withdrawals within the rule area encompassing the Sequim-Dungeness Valley and the surrounding land south of Sequim, slightly west of Bagley Creek and east toward Johnson Creek.
The rule area is separated into two categories: green and yellow. Within the yellow area, only indoor domestic water use is permitted and no outdoor water mitigation is yet available.
McCarry said the Olympic Resource Protection Council (ORPC) board will wait until Tabor’s written opinion is released in the coming weeks and meet with its legal counsel before deciding what to do next.
In a statement, ORPC said the decision is appealable to the state Supreme Court and cited three cases it believes set precedent for a successful appeal.
“We are happy the court upheld the rule,” said Kristi Johnson-Waggoner, spokeswoman for Ecology. “We think that mitigation in the Dungeness is working and that the rule is balanced and helps bring certainty to landowners.”
The rule came as a result of a long-term watershed plan that involved the community, she said.
McCarry said the state is disingenuous when it says it worked with the community.
“They listened and then did what they wanted,” he said.
In upholding the rule, Tabor held that it was not unlawful and that Ecology did not exceed its authority when it adopted the rule, according to the Center for Environmental Law and Policy.
He also reaffirmed that permit-exempt wells are subject to the “first-in-time” system of water appropriations used in Washington.
Water for developers is provided through a water bank, the Dungeness Water Exchange. Developers need mitigation certificates for new groundwater withdrawals.
There are three indoor and outdoor mitigation packages, ranging from $1,000 to $3,000, depending on water use.
As of July, the state reported 101 water mitigation certificates have been issued, Johnson-Waggoner said.
“We feel the Dungeness basin is unique and protected now and into the future thanks to this rule,” she said.
McCarry said that like when Ecology grants a water right, the state should have conducted a four-part test. Among the legs of that test is that the water has to be there, he said.
“Ecology used biologists’ assessment of what was the optimum flow for fish and they came up with 180 cfs [cubic feet per second],” he said, adding that at the time of year in question, the river is typically 90 cfs.
“Rather than natural flow, they used optimum flow,” he said. “If the water is not physically there, it fails one of the elements of the test.”
The Center for Environmental Law and Policy, which was also involved in the suit, is happy with the decision, said Trish Rolfe, executive director.
“We think the Dungeness rule is a very good way to manage water and protect the streams and provide water for people,” she said. “This way, Ecology can move forward on other instream flow rules in unprotected watersheds.”
Reporter Jesse Major can be reached at 360-452-2345, ext. 56250, or at [email protected].