News

Lawsuit in works for Dungeness Water Rule

by MARK ST.J. COUHIG
Sequim Gazette


The Department of Ecology may have a fight on its hands as it seeks to implement the new Dungeness Water Management Rule. Several members of the North Peninsula Building Association have teamed up with others on the peninsula to fund a lawsuit that will be filed against the rule.  The rule, which is set to become effective on Jan. 2, will put into place a new regulatory regime covering much of rural eastern Clallam County, “closing” much of the Dungeness Basin to new water uses. It would largely do away with the permit exemption laws that now allow those who drill a well within the region to enjoy the resulting water at no cost. Greg McCarry, owner of Westerra Homes and a member of the association, said the rule was discussed during a recent board meeting, which led to a call for further action. “Our concern is jobs and property rights,” McCarry said. “I brought it to the board to consider funding a start-up fund (for a lawsuit). The board approved that.” A recent NPBA newsletter goes into further detail on several of what are called “serious problems with the rule.” “Arguably, it exceeds Ecology’s statutory authority by being triggered by required minimum instream flows that far exceed average historical stream flows rather than just protecting existing stream flows as state law contemplates.” The newsletter also notes that the early draft of the rule’s cost-benefit analysis was heavily criticized during the comment period. Changes have been made in response, but whether they adequately address the concerns remains to be seen.

Seeking support

The board of the NPBA authorized the establishment of a committee to further investigate the possibility of a suit. The committee currently includes Port Angeles businessman Kaj Ahlburg, attorney Christina Nelson-Gross, Rick Gross, McCarry and NPBA Executive Director FaLeana Wech.

 

They are awaiting a decision from the Washington Supreme Court on a case involving the Swinomish Tribe and the Washington Department of Ecology. It’s anticipated the ruling will have a significant impact on the Dungeness Rule.

 

The Swinomish Indian Tribal Community is arguing that Ecology wrongly extended water rights when it made water available for residential construction in certain portions of Skagit County. They say Ecology acted illegally when it invoked a portion of the law that allows the agency to make water decisions based on an “overriding consideration of public interest.”

 

The tribes say in so doing Ecology has reduced the amount of water available for salmon populations.

 

In the Dungeness basin Ecology has invoked the same legal authority to create “reserves” of water that will be in place to ensure development doesn’t come to an immediate halt.

 

McCarry said that while proponents of the Dungeness suit are prepared to take action, they currently are collecting pledges rather than cash.

 

“We’re testing the waters to see if there’s interest from the public.”

 

“Right now the interest is strong,” he said. “I’m feeling pretty good about moving forward.”

 

So far the committee has raised $20,000 toward the effort to file a lawsuit. They say they need $100,000.

McCarry said a new, separate organization will be formed and will operate as a self-sufficient 501(c)(3) nonprofit.

 

For more information, call McCarry at 360-697-3087 or see www.olympicresourcepc.org.

Reach Mark Couhig at mcouhig@sequimgazette.com.


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