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Dungeness water rule put to test
by MARK ST.J. COUHIG
Personnel from the Washington Department of Ecology have been buzzing around Clallam County all week, utilizing multiple opportunities to explain, and sometimes defend, the proposed Dungeness Water Management Rule that will be proposed formally in March.
Among its more important provisions, the new rule would establish regulatory instream flow levels for the mainstem Dungeness River, its tributaries and eight independent streams feeding directly to the Strait of Juan de Fuca.
When water levels fall below the established “instream flow,” additional regulatory requirements would be triggered.
At its root, the rule is an effort to ensure there is enough water flowing in the various streams within the valley to maintain the health of the streams and all of the resources that depend on the streams — including the resident fish and tourism.
Ecology says because tapping into the aquifers takes water from the streams, new restrictions must be placed on new wells when the streams fail to meet the flow levels established in the new rule. Those who build within the Dungeness Valley after the rule is implemented would be required to hook up to an existing water system or to jump through new hoops to acquire water for use outside the home.
The Local Leaders Water Management Work Group, a consortium of local organizations, has been working for more than a year to provide recommendations regarding the proposed rule. In a recent edition of their Water Watch newsletter, they provided an example of the issues the rule seeks to address, saying, “Groundwater levels in eastern Clallam County appear to be dropping in many areas between the mountains and the Strait of Juan de Fuca, according to well water level data collected over the past 30-plus years. The most severe declines appear to be near the intersection of Highway 101 and the Dungeness River, with declines of 11-26 feet since the late 1970s.
“Continued reliance on the shallow aquifer may present difficulties in the future.”
Effect on development
The development of the rule has been watched intently by local real estate professionals, with many contending it will hurt the industry.
Marguerite Glover, who has been participating in the conversation for several years, said she wants to see the local environment protected and doesn’t object to a rule, but rather is concerned about the details, particularly Ecology’s focus on wells. Like many of her colleagues, she believes that pulling water from the area’s aquifers, especially the lower aquifers, has a minimal impact on the flow within the streams.
She also doesn’t doubt the rule has the potential to slow or stop development within much of the county.
Rachael Paschal Osborn, co-founder of Washington’s Center for Environmental Law & Policy, says Ecology has been simply “dithering for 20 years” about taking the action necessary to protect the area streams.
Osborn noted that the discussion has been ongoing since 1991 when a pilot program was launched to determine and put into place solutions to water issues within the Dungeness Watershed.
“Where does it end?” she asked. “Do we just allow continued pumping without regard to the impact?”
“The damage is being done now,” she said. “What does the future hold?”
She pointed out that in upper Kittitas County, Ecology filed an emergency rule that closed the area to all new groundwater withdrawals. She suggested the same rule may be required for the Dungeness Watershed.
Avoiding the law
Shirley Nixon, an environmental attorney with extensive experience in water law, agreed, saying, “Ecology has been torturing the law” in an effort to find a way to avoid the necessary outcome.
“They also want to satisfy political needs,” Nixon said, pointing out that the new rule would continue to allow “a whole lot of people drilling a little bit.”
Nixon said many of the problems derive from Washington’s “prior appropriation doctrine,” which says the first person to use a quantity of water from a water source for a beneficial use has the right to continue to use that water for that purpose. Nixon noted that the legal doctrine is in use throughout the American West. “It was originally an enticement to move west,” she said. “It’s great until it’s bankrupt.”
Nixon noted that under the prior appropriations doctrine, “senior” rights trump the needs of a healthy stream.
The new rule will establish how much flow is “optimal” in each of the streams, and establish a “water right” to ensure that much water flows in the river, but that has little bearing on what in fact will flow in the river because new rights are established in chronological order.
The new “instream flow rule” will be a junior right, with less legal claim to the water than all of those that pre-date it.
Those existing, senior rights actually exceed the amount of water that naturally flows in the rivers and streams.
“I wish Ecology would state it plainly,” Nixon said. “We’re over-appropriated.”
Nixon said Ecology has been dragging its feet and continues to do so by allowing new home construction within the valley, with wells to be drilled for use within the home. “The rule is trying to countermand the law ... get around it.”
Nixon noted the new rule calls for restrictions when the established “optimal” flows within the various streams aren’t met. “That means winter, yes, summer, no.”
But Nixon is adamant about what she believes the law, and the health of the rivers, requires.
“We can’t have any more development until we mitigate. No more wells, period. There needs to be a closed basin.”
Reach Mark Couhig at firstname.lastname@example.org.