Lawsuit contemplated to challenge state’s new Dungeness water rule

By Martha M. Ireland
For Peninsula Daily News

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A veteran challenger of government mandates

Kaj Ahlburg, a retired lawyer and investment banker, is no stranger to legal challenges against government mandates.

The Port Angeles resident got national attention when he was one of four individual plaintiffs who lost their challenge of the federal Affordable Care Act — also known as Obamacare — in the landmark U.S. Supreme Court ruling in June.

Ahlburg is now throwing his support behind a threatened legal challenge, spearheaded by the members of the North Peninsula Building Association, to rescind the state Department of Ecology’s in-stream flow water rules for Water Resource Inventory Area 18.

He is on the steering committee of the newly formed Olympic Resource Protection Council.

It includes building association president Rick Gross of Sequim as the council president and building association board member Greg McCarry of Sequim, who said Wednesday he is 90 percent sure that the lawsuit will be filed in Thurston County Superior Court by the end of February.

More than 500 fliers seeking monetary pledges of support recently were emailed to contacts and real estate agents in Clallam County, McCarry said.

The group also plans to contact by mail — for additional pledges — the 18,000 to 20,000 property owners east of Morse Creek who McCarry said will be negatively affected by the water rules, he said.

The group, which has about $20,000 in pledges, is seeking $100,000 to fund the effort.

The Resource Protection Council also wants to try to qualify as a 501(c)(3) nonprofit group, which would allow donations to be IRS tax deductions.

Paul Gottlieb, Peninsula Daily News
THE IN-STREAM FLOW rule for WRIA 18 East — the Dungeness water resource inventory area — that’s slated to take effect Jan. 2 may lead to a lawsuit.

Kaj Ahlburg, past president of the Port Angeles Business Association, local attorney Kristina Nelson-Gross, and Rick Gross, FaLeana Wech and Greg McCarry of the North Peninsula Building Association have formed a steering committee and are raising money to hire an attorney who specializes in water law.

“We hope to have the inflow stream rule invalidated,” Ahlburg said.

“We don’t assume it will go away if we win, but we hope to hit the reset button and get more realistic flow levels.”

While lauding changes negotiated by Clallam County Commissioner Jim McEntire, the steering committee thinks the rule will still be detrimental to property owners countywide.

“The value of properties without water will go down, which will shift more of the property tax burden onto others,” Ahlburg said.

He argues that the state Department of Ecology exceeded its legal authority when it went beyond protecting existing in-stream flows, and the agency did not provide the critiques or the balance state law requires.

“They are supposed to choose the least burdensome alternative,” Ahlburg said. “That is not what they have done.”

The rule sets unrealistically high minimum flow volumes, and seeks to meet them by focusing “on the minuscule impact on the river from withdrawals by private wells,” he said.

Basing minimum flow numbers on historical water volume records could have shut down most opposition to the rule.

Instead, Ecology clung to artificial levels, seldom if ever seen but imagined to be ideal for salmon.

The agency then separated water rights from property rights and created a bureaucratic monstrosity.

When the rule failed an in-house cost benefit analysis, Ecology assigned a different economist who made it pass by assuming huge costs for lawsuits its adoption would presumably prevent.

When that assumption didn’t hold water, Ecology announced that it had just discovered water rules are not required to pencil.

Thus, even Ecology admits its rule is fiscally flawed — yet the agency presses on.

Meanwhile, Sequim-Dungeness Valley water users — the biggest frog in this pond — have substantially reduced withdrawals from the river for agricultural use.

Shrinking farm acreage and conversion to sprinklers dropped the average per season use from the pre-1979, 150 cubic feet per second — or cfs — of water to 109 cfs and dropping, even before Ecology started working on the in-stream flow rule.

Fewer irrigated acres and more ditches piped to prevent loss to evaporation or seepage continue to reduce water use.

In September, the irrigators cut their historic water rights back to 93.5 cfs, with about 15 cfs in reserve.

Ecology scooped up the relinquished rights to stock a water bank from which newcomers can purchase water rights.

The agency imagines that having to purchase a water right at an estimated $1,000 per home (for indoor use only) won’t affect property values or development.

Water Resource Inventory Area 18 East covers Clallam County east of Morse Creek, portions of which have been irrigated for 117 years.

WRIA 18 West, from Morse Creek to west of the Elwha River, is next on Ecology’s rule-making agenda. Ahlburg lives in that area and doesn’t want the Dungeness rule to be the template for the Elwha rule.

Although the North Olympic Peninsula has no documentable water shortages, part of East Jefferson County received a restrictive water rule last year.

All other watersheds in the state, including Forks where rainfall averages more than 100 inches annually, are also slated to get in-stream flow rules.

Work on in-stream flows rules for the Dungeness and 15 other WRIAs deemed “fish-critical basins,” began in the early 1990s.

After 20 years of process, all sides agree on only one point: Water law — including the WRIA legislation — is complex and difficult to understand, and some parts conflict with other parts.

“I’ll never say our water law is efficient and logical because it isn’t,” Ecology Director Ted Sturdevant has said.

Instead of perpetuating inefficiency and illogic, Ecology should have hit the reset button.


Martha M. Ireland, a Clallam County commissioner from 1996 through 1999, writes a Commentary column for the Peninsula Daily News that appears on alternate Fridays.

She is active in the local Republican Party, her church and other community endeavors, and is on the administrative staff of Serenity House of Clallam County.

Martha and her husband, Dale, live on a Carlsborg-area farm.


Last modified: November 29. 2012 6:12PM
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