League of Women Voters forum focuses on water law

The demand for water is growing.

Eastern Clallam County is known for its farming and its appeal to retirees and young families looking for a beautiful place to live. The result is beginning to look like too many straws in a cup of water, according to water law experts at a Sept. 25 League of Women Voters of Clallam County meeting

They said water supplies increasingly have been stressed over the years and due to pending regulations on the area's water supply, many eyes have turned to reading water law.

"It's extremely complicated. It isn't necessarily fair. But knowing the basics will help you understand the reasoning behind pending regulations, such as the instream flow rule," said Shirley Nixon, an environmental law attorney with experience in water law, to the league.

The state Department of Ecology is in charge of making sure people have water. Its representatives track existing water rights to make sure new allocations will not infringe on the senior right holders' ability to get water.

"Seniority is a very important part of this because a senior right holder will essentially have the ability to turn off junior users," Nixon said. "Interruptible rights are being awarded. This is where things tend to collide in terms of growth, water law and new, pending regulations."

The new regulation is called an instream flow rule. The rule is in its formation stage, with Ecology representatives and local stakeholders weighing in on its details, which essentially will give the Dungeness River a water right.

The river's right will restrict junior water right holders from pulling from its supply when it reaches flows near or below what is scientifically determined to be the level needed to support aquatic life, especially threatened salmonid species.

Each new development needs to demonstrate that there is sufficient water available in order to build, something that may become a bit more complicated after 2009, when the rule is expected to be passed.


Clallam County Environmental Health director Andy Brastad said the county's planning counter is where the crash course in water law often happens.

"It comes into reality when someone is at our counter and we are trying to explain the list of things they need to do to build their home," Brastad said, indicating the county cannot put up gates to keep transplants out.

"So how do you allow new people to come in, protect senior water rights and make sure there is enough water in the river? That is something this process is trying to address."

Planners said the junior right holders wouldn't see their faucet turned off in the middle of washing dishes, but rather they need to demonstrate how they are mitigating the water use that may begin to infringe on senior right holders.

The mechanisms and details have not been nailed down, but conservation, a water exchange, drilling deeper, community wells and storing water during high-flow times may be feasible solutions.

"Think of water rights like a ferry line and you have the right to a 40-foot (recreational vehicle) but you drove a Toyota Prius instead," Nixon said. "Under water law you would be able to sell that remaining 20 feet to someone without a right, so you both get to ride the ferry or use water."

While mechanisms for maintaining the availability of water are being identified and studied, another contentious issue is being debated - the rule's priority date.

Legislation identifies the fallback date to be in 2000, meaning hundreds of rights awarded over the past eight years would be junior to the instream rule. However, that date can be changed to the date the rule is adopted, likely to be in 2009, either through a unanimous vote of the Dungeness River Management Team or possibly through a legal ruling.

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