Commentary: Attorney opines on Dungeness Water Rule

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Kristina Nelson-Gross has definite opinions on the new Dungeness Water Rule and how it’s being implemented. Not all of them are positive.


“I hope people are starting to wake up to the issue and to what it’s going to mean to them and their families and the future.”


Nelson-Gross, an attorney, has been involved in local water issues for a number of years. While she was still studying at the Seattle University School of Law in 2008 she took on a variety of projects for the City of Sequim, including leading the city’s efforts to create a new ordinance regarding wetlands and the Shoreline Master Program update.


These days she’s in private practice, with a focus on land use, water and other environmental issues, and real estate.


“People want to believe the Dungeness Water Rule is solely a builders’ issue, or solely a Realtors’ issue. It’s not,” she said.


Clallam County PUD and the City of Sequim “have some protection” because they’re both large public water systems. Nevertheless, she said, in the long term those people who are now connected to the city or the PUD are likely to see increased rates due to the rule.


The PUD is seeking “mitigation credits” from the Dungeness Water Exchange, which was created to serve as a conduit between senior water rights holders and those who want to drill a well.


But the rule also requires that any change in water use brings the water user under the provisions of the rule. For example, the PUD, which is seeking to drill two new wells. PUD doesn’t need new water rights — but it does need new mitigation credits because the new wells will draw water from area streams in a different pattern from the existing well they will replace. Only the Dungeness Water Exchange, operated by the Washington Water Trust, has mitigation credits to sell.


The City of Sequim will require new water rights and mitigation credits as it continues to grow.


Nelson-Gross pointed out that local governments have to show they have sufficient resources for build-out and they have to do so years in advance.


“If they can’t, they can’t allow development to continue. They can’t issue new permits because they’re out of water. The same is true with the sewer capacity,” she said.


She said the costs are going to go up, which is probably why the city is entering into conversations with the Dungeness Water Exchange now.


“As more pressure is put on the mitigation bank from people seeking mitigation it will necessarily drive the cost up,” she said. “(Ecology Environmental Engineer) Bob Barwin has said that many times. It’s the traditional business model — supply and demand.”


While the city has enough water rights to fill the anticipated needs for the next 20 years, the availability of mitigation water remains an issue. “If we can’t find any new sources of mitigation water to fill up the bank, the bank is going to run dry and close as well,” she said.


“It’s like anything else — the closer you get to that point the higher the cost will be, the more anxious the people will get and in most cases, those with the deepest pockets win.”


Implementing the rule

Nelson-Gross said the largest issues arise from the rule’s implementation: “I predicted, and it’s starting to come true, that the rule isn’t functioning in the way the powers-that-be said it would. There are too many gray areas, there’s too much arbitrariness in the decision-making process.”


She noted that many of the policy decisions are being handed down by Mike Gallagher, who heads up the Water Resources Program in Ecology’s Southwest Regional Office.


“While the decisions might be good right now, there’s nothing to guarantee us that a year from now when Mike Gallagher isn’t sitting in that same chair that we’ll get the same decisions.”


“As it stands, these decisions are mere policy and are subject to change. That’s probably the biggest issue that I have. As I’ve told Amanda (Cronin, head of the Dungeness Water Exchange) and Bob Barwin, at least if we know with certainty the answer is no, we can try to find ways to deal with the issue.”

The devil is in the details, she said: “If you have a few ‘starter trees,’ that’s OK?”


“What’s a starter tree?”

She said the fault doesn’t lie entirely with Clallam County and the Department of Ecology — “They’re working within the parameters that they have and within the confines of the law.”


Ecology needs guidance on water issues and the only way that’s going to happen is if the Legislature makes water issues a priority and makes a commitment to deal with these issues.”


At the end of the day, she said, “If you don’t find clarity and stability, it has the real potential to be an absolute disaster. And my fear is that right now that’s exactly where we’re going because of the lack of guidance, lack of criteria and lack of decision-making criteria that should be guiding these decisions.”

Soon, she said, “People aren’t going to know how much their property is worth. The assessor won’t know how to value it.”


She’s already hearing rumors of growing rifts.


“Some people have indicated that they are already starting to see neighbor against neighbor bickering and fighting over water — which is logical.”


“Real estate law has been around for centuries. People are still fighting about the same things.”


Editor’s note: Nelson-Gross is not currently employed by local residents on the water rule.


Reach Mark Couhig at

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