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Skagit County backs couple’s right to use their well

Posted: Tuesday, December 2, 2014 6:00 am | Updated: 8:55 am, Tue Dec 2, 2014.

By Daniel DeMay | Skagit Valley Herald

Richard and Marnie Fox have a right to use the well on their Sedro-Woolley property, regardless of an instream flow rule that limits water use in the Skagit Basin, Skagit County said in a response filed last Monday in Skagit County Superior Court.

The document is in response to the Foxes’ motion asking the court to force the county to issue a building permit — an action the county has not taken because a Department of Ecology rule appears to say there is no legal access to water in much of rural Skagit County.

In the response, the county argues that Ecology removed a paragraph from the draft 2001 instream flow rule before publication that would have allowed rural landowners to continue the use of permit-exempt wells for single homes.

“Somehow, the provision for exempt wells inexplicably disappeared from the 2001 rule when it was published,” Will Honea, chief civil prosecuting attorney for the county, wrote in the response. “The removal of the exempt well language by Ecology was either an act of dishonesty or negligence.”

The Foxes took the county to court earlier this year after it refused to issue a building permit until the couple provided proof of legal access to water. In a July hearing on the matter in Snohomish County, after one judge had told the county to issue the permit, Ecology and the Swinomish Indian Tribal Community asked to and were ultimately allowed to join the case as defendants.

The case is being heard in Snohomish County because Skagit County judges have recused themselves.

The missing paragraph is an issue that has popped up several times over the 13 years since the rule was enacted. In a 2007 interview with the Skagit Valley Herald, Dan Swenson, then a water resources manager with Ecology, said the clause was removed during a meeting in 2000, when the parties — the county, Ecology, the Swinomish Indian Tribal Community, the Upper Skagit Tribe and other stakeholders — agreed to deal with it later.

The provision for exempt wells was never resolved, however, and now the county and the Foxes argue that, essentially, because exempt wells are not mentioned in the instream flow rule, they are not subject to it.

“Legal access to water (for exempt wells) has already been determined by the Legislature,” said Peter Ojala, the attorney for the Foxes. “So, the regulators can say or think that there’s no water, but the Legislature has already said that for these small uses there’s legal access.”

Ojala said the missing paragraph is not a focal point for his case, other than the fact that it’s not included in the rule and other laws. He said he is approaching the case as just someone reading the law, and the law doesn’t address exempt wells.

For the county, however, the missing clause is cause to invalidate the entire rule, according to the response filed last week. The removal of the clause, whatever the reason, makes the rule “unenforceable,” Honea wrote in the response.

Richard Fox was glad to see the county taking a position in support of his case, although he was far from confident that he would see a positive outcome, he said.

“To have the county come back and say they agree with (us), that’s a relief,” Fox said. “At least somebody is starting to swing and use a little common sense.”

The Swinomish Tribe and Ecology have also filed responses with the court, taking slightly different arguments against the Foxes’ motion, but both focusing on the need to maintain minimum stream flows to preserve fish habitat and standing behind the instream flow rule.

The science behind the rule that set minimum flows for the Skagit River and Cultus Mountain tributaries and eventually left roughly 5,700 rural parcels with no legal access to water has been called into question by many opponents of the rule, but Ecology has repeatedly stood by it publicly.

A petition from several real estate, building and farm groups filed with Ecology Nov. 21 argued that the rule should be repealed or at least limited in its reading on the basis that the science does not prove all groundwater withdrawals are completely or even largely connected to surface waters like the Skagit River and its many tributaries.

Ecology’s Water Resources Program Manager Tom Loranger said he was still confident in the studies that led to the rule and he still believed a simple repeal of the rule would lead to more litigation — something that has been almost unending since the rule was put in place.

The Foxes, Skagit County, Ecology and the Swinomish Tribe will return to court in Snohomish County on Dec. 16 where a judge will hear arguments and possibly decide to affirm a prior writ of mandamus — an order forcing the county to issue the building permit.

Ojala is confident the judge will find in his clients’ favor, but he expects both Ecology and the Swinomish Tribe to appeal such a decision, possibly to the state Supreme Court.

— Reporter Daniel DeMay: 360-416-2148, ddemay@skagitpublishing.com, Twitter: @Daniel_SVH, Facebook.com/byDanielDeMay

 

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