I have the honor of representing the appellants in a legal challenge to the Washington State Department of Ecology’s Dungeness River Basin instream flow rule, Magdalena Bassett, et al., v. Washington State Department of Ecology, Case # 51221-1-II. After a wait of over a year, the case is finally set for oral argument in Division II of the Washington Court of Appeals, on October 18, 2018 at 10:00 a.m. The courthouse is located at 950 Broadway, Suite 300, Tacoma, Washington.
The Bassett case contends that Ecology lacked statutory authority to adopt the Dungeness Rule at WAC 173-518 because: (1) they failed to consider the maximum net benefits to the public of closing the groundwater and requiring mitigation that is not always available; (2) Ecology failed to consider the public interest and availability of water when it created instream flow water rights that are rarely met, thus impacting rural water availability for current and future generations; (3) Ecology ignored property rights to use exempt wells in rural areas for domestic and other uses; and (4) Ecology’s cost-benefit and least burdensome alternative analyses for the rule were based on false analyses and improper legal conclusions. If my clients are successful in this challenge, the Dungeness Rule would be invalidated, but the local rivers and streams would still be protected from non-exempt groundwater withdrawals through Ecology’s permitting program. Thousands of rural properties in the basin that are not currently eligible for individual wells as a water supply would no longer be encumbered by Ecology’s overly burdensome and unnecessary rule. Currently, rural property owners who need a building permit are charged mitigation fees to pay for the costs of restoring flows to the Dungeness River, regardless of any real evidence of impacts from individual wells.
If you are interested in supporting this case, please contact Tom Pors or his client Olympic Resource Protection Council (ORPC) which has information and resources on its website.