A lawsuit filed by a local conservation nonprofit against the City of North Bend and the State Department of Health (DOH) was dismissed Oct. 15 in King County County Superior Court.
The lawsuit filed by The Friends of the Snoqualmie Valley Trail and River in April was seeking to appeal the DOH’s approval of the city’s 2020 Water Systems Plan over concerns that it did not do enough to mitigate water taken from the Snoqualmie River.
County Superior Court Judge Patrick Oishi approved the DOH and city’s motion to dismiss the lawsuit without the option to appeal in Superior Court. However, the Friends still have the option to appeal to a higher court.
When asked why they sought dismissal in the case, Franji Mayes, a DOH spokesperson, said the department does not comment on ongoing litigation.
The lawsuit was asking that the court issue an injunction to stop the water plan from being enacted, require an environmental review and place a moratorium on development until the city addressed the Friends’ concerns.
The water plan outlines how the city plans to deliver water to its residents over the next five years, and includes areas that are expected to see significant development. The plan was approved by the city council, DOH, Department of Ecology and by a 7-2 vote of the King County Council.
The Friends group is headed by President Jean Buckner, a North Bend resident and longtime water rights advocate, who said the group is considering appealing the decision. Buckner argues the city should have a backup water source, as required by its well permit, to protect the Snoqualmie River.
“We and our attorney maintain that the merits of our case are strong and compelling,” she said. “We believe the facts support our argument that the [Snoqualmie] River is at risk due to increasing demand with lack of adequate mitigation if there is a dry year.”
In 1999, it was discovered that North Bend had been taking too much water from its well and entered a decade-long building moratorium. In 2009, the city’s Centennial Well came online, but because the well comes from the same groundwater that feeds into the Snoqualmie River, the city was required to find a back-up source of mitigation water to pump back into the river during dry years when river levels reach certain low points.
The city brought Hobo Springs online as a mitigation source for the Centennial Well, but according to its well permit, the city is required to have a backup source for Hobo Springs. Hobo Springs can be unreliable during dry years. In the summer of 2015, North Bend violated its well permit by being unable to fully mitigate its water use from Centennial Well.
The Friends argue this violation occurred before several new housing developments were built. However, the city said this was before a recent expansion of Hobo Springs, which increased its mitigation supply.
The city has spent decades negotiating with Sallal Water Association, hoping to reach a deal where the water association would provide the city mitigation water, but to date, no deal has been reached.
“[The water] plan is predicated on the city reaching an agreement with Sallal Water Association to obtain additional mitigation water within the next two years. The city is acutely aware of the need to increase the supply and curb the demand of mitigation water and must do so soon,” the city wrote in its 2020 Water Systems Plan. “Under present peak summer demand, if a drier summer were to occur, the flows at Hobo Springs would be at or just below those required to properly mitigate water demand.”
The Friends have concerns about what would happen if a dry year comes before a second mitigation source is in place or if the city continues to grow.
According to the city’s water plan, North Bend is expected to grow by roughly 2.5% over the next decade, with adequate water rights and storage capacity, but it “is at or near its mitigation capacity limits.” Danna McCall, a spokesperson for North Bend, said that the city has been in continual contact with Sallal. She said the Department of Ecology has confirmed the city is in full compliance with its water rights in regards to mitigation to the Snoqualmie River.
“The court ruled we did not show we are currently being harmed as there is currently adequate mitigation,” Buckner said. “Only if and when there is inadequate mitigation can we show harm. This logic is frustrating. What will happen if there’s a dry year before the required additional mitigation is in place?”
This is the second time the city has sought a dismissal in the case. In June, the city unsuccessfully asked to removed itself from the case based on grounds that paperwork had not been properly served.
Four copies of the lawsuit were delivered to the city, according to court documents. The original copy was delivered, by hand, to City Administrator David Miller. However, the city argued Miller was not eligible to receive the paperwork on behalf of the city because he is the city administrator, not the city manager.
In a signed response from a professional server, who delivered the copy to Miller, the server said Miller met him at the door and accepted the documents on behalf of the city. At the time, City Hall was closed to the public due to pandemic restrictions.
Friends lawyer Tom McDonald said it was unfortunate that the DOH and the city made a motion to dismiss the case before it was seen in court.
“I am very disappointed we were not able to get the merits,” McDonald said. “I believe the record clearly shows the approval of the Water Systems Plan allowed the city to approve development and connections that will cause unmitigated impacts to the Snoqualmie River when minimum flows are not met.”
In the interim, Buckner said The Friends will continue to fund efforts and work with other groups to find ways to protect the Snoqualmie River. This includes a potential appeal to the Court of Appeals.
“Funds continue to flow in,” Buckner said. “We’re moving forward, we’re looking at options about how to do that, but we will.”
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Editor’s note: This story has been revised since publication to remove inaccurate information regarding the delivery of documents to City Hall.
