SEQUIM — The Sequim Association of Realtors this week presented a $10,000 check to the Olympic Resource Protection Council for the group’s efforts against the Dungeness Water Rule, bringing the amount in its coffers to more than $100,000.
The council is gathering funds for a lawsuit that will be filed to challenge the rule from the state Department of Ecology.
The rule took effect in January 2013 after years of planning and controversy.
Covering the eastern half of Water Resource Inventory Area 18 from Bagley Creek to Sequim Bay, the rule is intended to protect water supplies for people, fish and other wildlife.
Sets minimum flow
It sets minimum flow levels for the Dungeness River and its tributaries, and requires the owners of new wells to mitigate their use of water.
In some areas, no mitigation water is available for outdoor use.
Sequim Association of Realtors President Heidi Hansen said every Realtor takes a pledge “to protect the individual right to property. The arbitrariness of the department’s rule impacts property values by prohibiting outside watering by many property owners.”
“We look at it as we’re making an investment in property rights,” Hansen said.
She said every member of the Realtors association is donating $85 to come up with the $10,000.
“The board decided we didn’t want to give a little bit; we wanted to have an impact,” Hansen said.
The membership readily agreed, she said.
Olympic Resource Protection Council President Greg McCarry said the nonprofit organization “seeks clear, fair and reasonable regulations in an effort to bring balance to the issue of water and land.”
Formed in 2012
The council was formed in 2012.
Council Vice President Kaj Ahlburg said he supports the suit because “I think it’s a matter of balance and fairness. Certainly the environment has to be taken care of, but so do the rights of the people who live here. I don’t believe a fair balance was struck [in the rule].”
Ahlburg and McCarry are now working with a lawyer to draft the complaint.
McCarry said the outcome of the suit is up to the court.
“The court could strike down the rule,” he said.
He said at the heart of the issue is Ecology’s adoption of a minimum flow in the Dungeness River at a level that “it has historically not achieved during the critical fish season.”
He said the council’s case will rest in part on the conclusions of the state Supreme Court, which recently overturned a similar Ecology rule in Skagit County.
Skagit rule
In creating the Skagit rule, Ecology cited its authority under state law to make appropriations of water that are inconsistent with instream flows if the water use serves “overriding considerations of public interest” (OCPI).
The court said Ecology’s interpretation was too broad and overturned the rule.
“The court said if you’re going to grant a water right, you have to meet a four-point test. One of those points is that the water has to be there,” McCarry said.
McCarry said Ecology admits there isn’t enough water in the Dungeness.
“They allocated 180 cubic feet per second to the river at a time [of year] when their records show it doesn’t flow at 105 cubic feet per second.”
Ecology officials and other supporters of the rule have declared the two cases substantially different, noting the OCPI reservations in the Skagit Valley were put into place after the water rule there was in effect.
The Dungeness Water Rule included both the new “minimum flows” and the OCPI reservation in its language.
The decision by the council to litigate follows a Jan. 21 petition filed by the council asking Ecology to amend the rule.
“It was a petition of reconsideration,” McCarry said. “We wanted to open up the rule for discussion.
“They basically denied the petition.”
Following that denial, the members of the council voted unanimously “to go with litigation,” he said.
McCarry called the Realtors’ contribution “very significant.”
He said members of the North Peninsula Builders Association also have made a “substantial contribution” of $30,000.
McCarry said contributions to date exceed $100,000 but that they will continue to raise the funds necessary to reach their desired outcome.
He said the council hasn’t reached its fundraising goal, which it declined to disclose, but will probably begin the process of filing the complaint.
“We’re comfortable we’re ready to proceed,” he said.
For more information about the council, visit www.olympicresourcepc.org.
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Reporter Mark Couhig can be reached at 360-452-2345, ext. 5074, or at mcouhig@peninsuladailynews.com.
