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.

This paper begins with an examination of the history of instream flow protection and its effect on groundwater availability, describes the Yelm water right application decision, and the PCHB appeal and decision. It concludes with the Foster decision and its effects on water right permitting, and discusses the potential “Foster fix” in Part 3 of ESSB 6091, adopted by the Washington Legislature and signed into law in January 2108.

To download the complete article, click here.

The Bassett case raises several fundamental legal issues for the first time, including:

1. Whether Ecology must balance the public interest (“maximum net benefits”) between instream and out-of-stream water needs before adopting minimum flows that exceed natural flow levels in the basin, and closing groundwater basin-wide to further consumptive uses;
2. Whether Ecology is required to make 4-part test findings under RCW 90.03.290 as it does for other water rights when creating minimum flow water rights by rule; and
3. Whether exempt-well water uses have “relation-back” priority dates like other water rights, which must be considered when adopting regulations that would deny legal water availability to rural properties.

These are  statewide issues of considerable importance to individuals and communities who are being denied building permits based on lack of water availability as a consequence of instream flow regulations that failed to account for future water needs.  See my article on the Whatcom County v. Hirst decision for more background on these issues.

Individuals and organizations who support the plaintiffs’ cause to make water available for rural areas and to reform instream flow protection law in Washington State should contact Tom Pors at (206) 357-8570 or the president of Olympic Resource Protection Council, Greg McCarry, at 360-509-0633.

Judge Tabor made his initial ruling from the bench after a trial on October 21, 2016.  He did not think that plaintiffs met their burden of proving that Ecology violated its statutory authority by adopting the Dungeness Rule without a maximum net benefits test or the four-part test for creating water rights at RCW 90.03.290, and held that the rule was not arbitrary and capricious.

Please contact Tom Pors at tompors@comcast.net or Greg McCarry at greg@westerrahomes.com if you would like to support this effort to reform the State of Washington’s troubled water resources program and fix defective instream flow rules that have led to basin-wide water availability issues without adequate planning or public notice.

Judge Tabor stated from the bench, “[I]n ruling that I do not find that there is an absolute legal requirement that there be the four-part test, that does not necessarily imply that a four-part test might not be appropriate in this case.” Thus, he denied Ecology’s request for summary judgment that the four-part test is never required for adoption of minimum flow rules as a matter of law. Judge Tabor considered arguments that the entire statutory scheme for water rights appropriation and instream flow protection required some sort of public interest evaluation, such as “maximum net benefits to the public” before all available waters in a basin were appropriated for instream flows. He stated further, “[S]o maximum benefits test, that certainly may be an issue in the administrative review, and there’s some suggestion that based on that rule the four-part test might be required.”

A summary judgment ruling in favor of Plaintiffs would have resulted in the invalidation of the Dungeness Rule because it is uncontested that Ecology did not make four-part test findings before adopting minimum flows in the Dungeness Rule. In fact, Ecology has never made four-part test findings or conducted a maximum net benefits test before adopting any of its 29 instream flow protection rules, many of which have the unintended effect of closing basins to new appropriations for domestic, municipal or other uses without rigid water for water replacement mitigation.

A hearing on the administrative record in the Bassett case is expected before the end of the year. Please contact Tom Pors if you have questions about the Dungeness Rule challenge or challenging other instream flow protection rules that exceeded Ecology’s statutory authority.