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State court ruling could effect Dungeness Valley water use

October 4th, 2013 - 11:43am

(Olympia) -- The state Supreme Court ruled Thursday that the state Department of Ecology overstepped its authority in a water rights decision that would allow rural landowners to gain access to water.

It's a ruling that could have implications on water management in other parts of the state, including the Sequim-Dungeness Valley.

Thursday's 6-3 decision invalidates Ecology’s amendment to the 2001 Skagit River Instream Flow Rule and reverses a 2010 trial court decision against the Swinomish Indian Tribal Community.

The high court ruled that Ecology’s amendment, which created 27 reservations of water that could be used for noninterruptible uses, exceeded the agency’s authority because it is too broad and exceeded the “overriding consideration of the public interest” or “OCPI” standard.

Kristina Nelson-Gross, an attorney based in Sequim who deals with this type of legal issue, says Court ruled that Ecology exceeded their authority and abused the OCPI exception, applying it much broader than it is supposed to be.

Nelson-Gross says this ruling could effect the new water rule that went into effect in January in the Sequim/Dungeness Valley as there was no water setup in the Dungeness exchange -- no mitigation water available.

She says "the people that had been coming to (Clallam) county since January 2nd who wanted to build a house or whatever their reason and got what they thought were mitigation certificates -- those are all up in the air as to whether or not they are valid -- because those certificates actually came from the reserve and not the exchange."

The decision places a number of homeowners in legal limbo now that the Supreme Court ruled that Ecology overstepped its legal authority.

Nelson-Gross says locally, the rule hasn't been in place nearly as long.

She hopes that once the exchange is up and running and has water in it, "they would go and swap out the certificates that were given to people at the beginning of the year with Dungeness exchange certificates."

"Unfortunately the people in this position are in kind of a wait-and-see holding pattern," Nelson-Gross added.

The DOE released a statement saying that they are, “assessing the decision and how it may affect water management in other areas of the state.” Ecology said it has no plans at this time to ask the court to reconsider.

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