Last ditch effort

Important election this week

Who owns the water rights in Washington state?

“Waters of the state belong to the public and can't be owned by any individual or group. Instead, a person or group may be granted a right to use a volume of water, for a defined purpose, in a specific place.” -Washington Department of Ecology

“In the U.S., surface water sources are generally considered public property and cannot be owned by any specific individual or group. Groundwater, meanwhile, can be either publicly or privately owned.” -Forbes

“Washington water law is based on the ‘prior appropriation’ system, often called ‘first in time, first in right.’ New water rights may not harm older water rights.” -Washington Department of Ecology

The water wars are heating up on the Sequim Prairie. 

Private property owners contest that the "maintenance easement", upon which the last open irrigation ditch in Sequim flows, does not obligate landowners to install a pressurized irrigation pipeline through their property.  The Clallam Conservation District (CCD) and others claim that the county and irrigation companies have the legal authority to install the pipelines, but the 2024 board of SPTIA (Sequim Prairie Tri-Irrigation Association) says they don’t.  The CCD admits that better communication could have mitigated the frustrations of landowners during the project's rollout when excavators and backhoes arrived on private property without prior approval, proper easements, or landowner permission. Still, the CCD insists it has the legal authority.  

During the 2024 SPTIA Annual Shareholder Meeting, four members of last year’s “pro-piping” board were ousted by a majority of attending shareholders, and four "piping with permission" members were installed.  The 2023 board stated that the meeting was closed and those board members departed. The 2024 board members remained at the meeting and passed a motion to withdraw from the piping agreement with the CCD.  Some ousted 2023 board members have hired an attorney to gain clarity.

The 2024 SPTIA board has sent a letter to the Department of the Interior, which is providing over $1.5 million in grant funding for the piping project.  The letter states that the grant's recipient, the CCD, is violating the terms of the grant by not obtaining the required approval, permits, and acceptance for the piping project from property owners.  For the landowners who have signed the "landowner acknowledgment form” which authorizes a pipeline, the requirements may have been met.  However, for the landowners who haven't signed the form and consented, the 2024 board says that the CCD is non-compliant with the grant terms.  Here is the grant wording that the SPTIA board considers to be breaking grant terms: 

For 129 years the Sequim Prairie has been irrigating fertile land with water from the Dungeness River.  Most residents know very little about the miles of irrigation ditches snaking through the valley. Even fewer know about the companies and districts tasked with managing and maintaining the vast network of pipes and canals.  The CCD website explains:

"Irrigation companies are private entities created to serve as water right holders and purveyors of irrigation water on behalf of company shareholders. Only company shareholders can use irrigation company water. Irrigation districts are special purpose units of government created for the same purpose. However, irrigation districts include a defined territory, and all property owners within that territory pay an assessment for the operations and maintenance of the irrigation district’s facilities. In exchange, all property owners within the district are entitled to use the water."

The CCD website also addresses water ownership:

“Irrigation ditches have been the traditional method of conveying water diverted from the Dungeness River to areas throughout the Sequim-Dungeness Valley for irrigation. Approximately 90% of irrigation water is used by farmers for farm related activities. The other 10 % is generally used for landscaping activities.”

In other words, 100% of ditch water can be used by shareholders. The CCD website claims that the county has easements to install a pipeline but that is where much of the piping controversy originates:

“Irrigation ditches and pipelines have easements that allow for their maintenance and prevent land uses that may adversely impact the function of the ditch or pipeline. Some of these easements are recorded with the County and are attached to the title of the property. Some are what are commonly referred to as prescriptive easements, which are claimed by the irrigation company or district based on historical use of the land.”

There is clear documentation that irrigation ditches have maintenance easements to remove brush and obstructions from the waterways, but these easements do not permit the installation of a pipeline.  The CCD addresses this:

What is a Landowner Acknowledgement form? New easements will be filed upon completion of construction to record/update easement and pipeline location.”

In other words, the CCD will record the easement after the excavators are gone and the dust has settled.  It's like getting a building permit after a house has been constructed.

When a landowner doesn’t sign the form, the CCD depends on prescriptive easements to authorize the pipelines.  A prescriptive easement allows someone other than the property owner to use the property.  For example, if a fence was built ten feet off a property line, but for years has been maintained by someone who isn't the property owner, that could result in the creation of a prescriptive easement awarded to whoever has been maintaining that fence.  In other words, "Even though that fence isn't on your property, you've maintained it for 30 years so you can keep using it."

The county claims that a “prescriptive easement” authorizes pressurized pipelines to be trenched through private property.

The irrigation ditches have been charging the area's aquifers for over a century and some landowners worry that piping the canals could cause wells to go dry.  Without drinking water, property values could plummet. Drilling deeper wells or connecting to a municipal supply is costly.  The CCD acknowledges this concern on their website:

“Will piping a ditch dry up my well, has it happened before? There is a possibility of this happening, Numerous groundwater studies have been done in the Dungeness watershed, some dating back decades. They all predict some range of groundwater drawdown if irrigation ditches are piped. Whether your well will go dry is difficult to say. It depends on a number of factors, most importantly, the depth of your well. The shallower the well, the greater the risk of going dry.”

Property owners have also been forced to spend tens of thousands of dollars removing mature trees that have died after piping. This has been a result of water loss, or because roots were severed during the trenching process.  The CCD acknowledges this concern too:

“Will there be loss of vegetation and who is responsible to replace it and remove any dead trees or stumps, how can I save my vegetation? Woody vegetation growing in the irrigation ditch right of way is subject to removal, whether for ditch maintenance or to replace the ditch with a pipeline. Trees within the right of way are the property of the landowner; however, the irrigation district or company has the right to remove them, just like vegetation along a road or other utility right of way. As part of ditch piping planning and design, an assessment is made of the trees to determine which ones will need to be removed, which ones can be saved, and which ones are likely to become vulnerable to death or decline due to either construction damage or a loss of water from the ditch. This assessment is typically done in consultation with landowners, and alternative routes are sometimes considered. The irrigation company or district will remove any trees in the easement that the landowner would like to have removed but will not be responsible for any remaining trees in the easement that die after construction is complete. This will be documented on the Landowner Acknowledgement form. In some cases, trees that will not be damaged during construction but might be susceptible to stress from a lack of ditch water can be irrigated to keep them healthy.

The CCD admits that wells may dry up, vegetation may die, and that it doesn’t have the proper easements but will file them after the work is done. Understandably, constituents have legitimate worries about their water and private property rights, and they are looking for an elected leader to bring their concerns to the county level. This is the role of Clallam County Commissioner Mark Ozias however, an increasing number of branches in Clallam County government have fallen under political control and are straying away from serving public interests.

Mark Ozias has used his seat on the Board of Commissioners multiple times to delay the completion of Towne Road (thus satisfying the wishes of his campaign's top donor). Last year, he exerted his influence over the Department of Community Development (DCD) to prevent a gravel pit from opening near his home. The DCD propagandized information about Towne Road’s recreational opportunities while withholding vital information about safety and affordability if the road were to remain closed.  The Prosecuting Attorney's office and Clallam County Sheriff were manipulated by Commissioner Ozias to investigate constituents who criticized the commissioner's behavior and actions.  Commissioner Ozias’ political agenda is so established that the Sheriff's Office acknowledged that opening Towne Road is a political issue. Now, it appears that the Clallam Conservation District, a subdivision of state government that works in conjunction with and receives funding from Clallam County, is poised to fall under political control as well.

In a recent op-ed published in the Peninsula Daily News, Jamestown S'Klallam Tribe's (JST) chairman/CEO Ron Allen has expressed disappointment at the recent delay in piping five miles of open ditch. "Instead of fighting in court, our Tribe wanted to work with our neighbors and community for a common cause," wrote Allen.  "We have been an example to others seeking a constructive alternative to litigation."

Regarding the completion of Towne Road, JST sent a letter to the commissioners requesting that the county, "leave the levee incomplete for three years as a better plan transpires."  However, when it comes to concerns over water rights, private property rights, and the installation of a pipeline without the proper communication, authority, or easements, "litigation" and "fighting in court" are mentioned rather than pausing to see if a better plan transpires. 

The Tribe’s website states that over 100 miles of irrigation ditches have already been piped. This May, Washington’s longest-running festival, Sequim’s Irrigation Festival, will celebrate 129 years of bringing water to this once-arid valley. After piping over 100 miles of ditches, why is there such a frenzy to pipe these five miles of ditch and control the water without addressing community concerns?

Will Commissioner Ozias support the delay of the piping project and address concerns as many constituents have asked, or will he push the agenda of his biggest campaign donor?

The CCD is overseen by a board of five supervisors, three of which are elected. Supervisors meet once a month to discuss district business, oversee district finances, and provide guidance on district activities. Commissioner Ozias has already stated that rather than having open discussions about the piping project, he would like to "focus" those talks. Will he focus those talks in the same way that he controlled conversations about Towne Road? Will the DCD and CCD impart all the facts to the public, or just the facts that support a political agenda? The top donor to Ozias’ last campaign, Jamestown S’Klallam Tribe, has been a piping advocate for decades and Jamestown Excavating has been awarded piping contracts.

This Tuesday will determine who the new supervisor on the Clallam Conservation District will be.  Two candidates are seeking the elected position.  Lori DeLorm, who supports the current piping project, is a Sequim native and member and employee of the Jamestown S'Klallam Tribe.  Judy May Larson, who supports piping with landowner permission, has lived in Sequim since 1993 and is a new board member of the SPTIA irrigation company.

Voters must be registered to vote in Clallam County however, the last day to request a mail-in ballot was February 29th. Voters who do not have a mail-in ballot may vote in person on Tuesday, March 19th from 12:00 PM until 7:00 PM at the Armory Square Office Building, 228W First Street, Suite H, Port Angeles, WA. 

Clallam County leaders are so entrenched in the political, divisive culture that they fail to see a basic principle:  When trust is lost, and rights are violated, the conversation is already over.  Heels get dug in, the gears of progress grind to a halt, and the most basic information must be dissected and questioned.  

Clallam County's unofficial motto, "It's political," is only a week old. In light of the DCD shielding the public from safety information, and knowing that the Board of Commissioners hid that the Towne Road Project was dead for six months, and taking into account that the CCD files easements after the pipelines are trenched, here's another motto to consider:

Welcome to Clallam County: It's better to beg forgiveness than ask permission.

Note: Monday’s commissioners’ work session starts at 9:00 am at the courthouse in Port Angeles and a “Towne Road Update” is on the agenda. The meeting is open to the public (no public comment allowed). Zoom instructions are available by clicking here.