By Rob Ollikainen
Peninsula Daily News
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PORT ANGELES — Clallam County commissioners will reconsider Tuesday a memorandum of understanding with the state Department of Ecology for implementing the Dungeness water management rule.
The three commissioners tabled a vote last week after Sequim land-use lawyer Kristina Nelson-Gross warned them of potential liability.
Nelson-Gross cited a portion of the memorandum that lists the county's responsibilities, specifically the verification of a “mitigation certificate” and confirmation that “applicable mitigation obligations” have been met.
Ecology's controversial rule for the greater Sequim-Dungeness Valley will take effect Jan. 2.
“The whole principle behind my caution, if you will, against those two items is that there is case law that says if things are intended to be regulatory in nature, a memorandum of understanding is not the appropriate place for those nondiscretionary, mandatory items,” Nelson-Gross said.
Chief Deputy Prosecuting Attorney Mark Nichols said he was comfortable with the memorandum.
“We've spent a fair amount of time on this agreement,” he said.
“We've reached our own determinations as to the county's appropriate role.
“The rule is regulatory; an MOU [memorandum of understanding] is not intended to be. It is a guidance document that the county has gone at lengths to craft to try to ease, minimize and hopefully eliminate any inconvenience to persons across the county.”
Case law review
Nichols said he would review any case law that Nelson-Gross could provide “just in the interest of due diligence.”
“I think maybe another week just to fine-tune this thing one more time wouldn't hurt,” said Commissioner Jim McEntire, whose district covers the Sequim-Dungeness Valley.
McEntire, R-Sequim, and state Sen. Jim Hargrove, D-Hoquiam, negotiated the memorandum with Ecology and helped secure state funds to offset mitigation costs for future water users.
The rule is intended to protect existing water rights and water supplies for human consumption and fish habitat.
It sets minimum in-stream flows and requires owners of new wells to mitigate water use in ways that include the purchase of credits through a water exchange, also known as a water bank.
The exchange will be set up by Jan. 2, Ecology officials said.
Hundreds of people protested the rule in verbal and written comments as it was taking shape earlier this year.
Among the opponents were members of the North Olympic Peninsula Building Association, which is contemplating a lawsuit to rescind the water rule as it currently exists.
Nelson-Gross is a member of a building association steering committee that intends to challenge Ecology's authority.
She said the county's stated responsibilities in the memorandum of understanding expose it to liability.
“The issue is that once [mitigation] certificates become recorded or in some other way verified, they become in effect a property right, and so that water right attaches itself to the property,” Nelson-Gross said.
“So if there is some error in recording, whether through some disconnect between the entity at the county or the applicants, if something doesn't get verified when it has been recorded, that creates some risk of liability.
“At some point, some purchaser down the road is going to say, 'I have paid for this certificate.' There was no procedure in place to say, 'I have it recorded, it wasn't recorded, now what we do?'
“So that's my concern on those two items.”
Speaking more generally, Nelson-Gross applauded the commissioners and the Prosecuting Attorney's Office “for the incredible amount of work that they have obviously put into this memorandum.
“From the rumors that were going around at the very beginning of the process, it appears that you held your ground,” she added.
In a related agenda item, commissioners will consider Tuesday a contract amendment with Ecology adding $100,000 to offset the domestic mitigation cost for future water users.
Under the amended contract, state funding would be increased from $350,068 to $450,068.
Reporter Rob Ollikainen can be reached at 360-452-2345, ext. 5072, or at firstname.lastname@example.org.