Local citizens turn out for proposed water restriction “rule” meeting; State agency questioned about loss of rights by the people

by Sue Forde & Lois Krafsky-Perry
for Citizen Review Online

Feb. 18, 2009 –Seqim, WA -  Approximately 300 local citizens attended the public “workshop” to hear about and discuss the proposed rule for the Washington State Department of Ecology’s (DOE) Instream Flows at the John Wayne Marina. The title of the meeting was "Water for People, Farms and Fish."

The six main Ecology representatives, plus others present to observe, presented slideshows, handouts, and models to advise the people present about why they [DOE] must “manage” the water from local wells.  According to DOE’s handout, in-house water use from the reserves would likely be “debited” at an average of 150 gallons per day per new household.  “When the reserves are fully allocated, that is, when all the water has been “spoken for”, new water users would need to “mitigate” year-round.  Many believe is not enough to cover indoor and outdoor water needs, including a garden or irrigation.

The DOE brochure encourages the hooking into water systems. The brochure states, "People looking for new water supplies would be required to connect to a public water system, if available.  Water will be available for new homes needing small wells, subject to conditions of use."

Ecology representatives explained that the wells currently being used will be grandfathered in.  But wells that have been drilled and capped for future use will have to comply with the proposed new rules, which will include the well owners paying for their water, and paying for a meter on the wells they have already paid to drill and maintain.

The people present were clearly disturbed by what many called violation of their private property rights.  Ecology explained that they were there to take questions, and that after the final rule is put together – within 90 days, they hope – there will be a public hearing.

The method discussed was a “water exchange” – which included yet-to-be-determined fees for the right to use the water from one’s own well.  Attorney for the DOE Sarah Ferguson is writing the proposed in-stream flow “rule”, which was not available for review.  The DOE’s brochure states that the “rule is still under development.”

Cynthia Nelson, DOE lead planner and board member of the Dungeness River Management Team (DRMT)  told the people that the rules aren’t all written yet.  She mentioned several times that future well users “will have access to water.  It’s just that it’s going to come with strings attached to it, whereas before it has not.”  What she didn’t share was how tight those strings would be, or how much the related fees might be.

The “mitigation” of water used was discussed frequently by the DOE agency members.  According to the handout, mitigation “is a tool to offset potential impacts of water use.  A water exchange is one mechanism for buying or leasing existing water rights and making mitigation credits available for purchase by other users.”

A “water exchange” would require individuals digging new wells (or using previously capped wells) to pay a “one-time fee” to pay for the water they use.  Well owners would have to purchase “mitigation” to meet their “mitigation obligation” based on the amount of water they “expect to use.”

When questioned about the science behind the reasoning for the tight restrictions on private wells, Nelson responded that she didn’t know, and that they would put something up on their website later.

There’s no “black and white”, one of the DOE representatives asserted.  It’s hard to get a well and not affect surface water – there’s a lot of gray area – a “model” is our best hope to quantify those things.

The use of a “model”, which was mentioned several times during the presentation by DOE as the method to determine the reasoning for tight water restrictions, was called into question by one of their own regarding the lower aquifers.  In discussing how the water is measured in the river, there is a model that is being used. 

Citizen Kaj Ahlburg raised the issue about getting actual data, rather than relying on the value of modeling.  See if it measures up with what is reality, he said.

When asked for a citing of the law that covered these proposed rules, attorney Ferguson said she couldn’t – there is no specific statute, she stated.  “Most is in case law.” The current law, RCW 90.44.05, allows exempt wells to withdraw up to 5,000 gallons a day for household, irrigating, including gardens and watering livestock among other uses.

The instream flow rules – and idea for metering exempt wells – has been around for a number of years.  In 2004, Ecology brought the “concept” to the people, and  citizens made an outcry which pushed it back – temporarily - after builders, Realtors and other concerned citizens alerted the public about the problems with such a move. 

In 2005, they epitomized the problem saying, “Our rural areas depend heavily on private wells for water supply. When and if you choose to build a home on your land, you must provide proof of an adequate supply of water before you can get a building permit. Your ability to dig a private well is the essential for your ability to build on your land. As written, the Plan proposes to limit (don't know how many) the number of wells by forcing well owners to draw from a "reserve" (don't know how much) of water. “ 

“The issue is water and your ability to get water for use on your property,” says the 2005 letter to the people of Clallam County. “Is there enough water in the Elwha-Dungeness Watershed to serve both people and fish? Hydrologic studies show there is. Does a private well, coupled with a septic tank, threaten fish habitat? A well maintained septic system can actually enhance stream flows during the dry season. The Plan calls for a limit on the number of private wells that can be dug in the Sequim-Dungeness Valley and sets streamflow targets for area rivers which historically, have never been met.,” it continues.

“Private wells are not the problem!” say the property rights’ advocates. According to the bulletin, “private wells, coupled with a properly maintained septic system put 75-90% of water withdrawn back into the aquifer. Private wells are essential for rural development. The amount of water withdrawn daily from all private wells in the State equals the amount of water the Columbia River discharges into the Pacific Ocean every 67 seconds. In some cases, recharged private well water helps keep streams flowing during dry seasons. Policy makers should seek long-term solutions, such as storing water during high flows.”

Steve Marble still calls the rule into question.  Hydraulic continuity is the concept of interconnectivity between the river and surface water. He raises the issues: how does one quantify the extent of the degree of connectivity? Is any consideration given to time of travel of the water from well site to river? What assumptions in terms of the influence of hydraulic continuity underlie the WRIA 18 Plan? The proposed saving from ‘exempt wells’ is 3+ cfs (cubic feet per second). What percent of the instream flow recommendation is the projected savings? The Plan is using an unmeasurable parameter and stretching it into far-fetched assumptions, which form the basis for giving the county much wider authority over land use, says Marble.

Several well drillers and other citizens have stated that there is no evidence for the so-called “hydraulic continuity” – which would have the water from wells feeding the river.  Nelson and planners of the DRMT [Dungeness River Management Team], led by county commissioner Steve Tharinger, when questioned, have not been able to supply true scientific data or proof for the word, "hydraulic continuity".

Marguerite Glover pointed out that there’s plenty of water here.  “The mountains can’t absorb the water,” she said.  Fish follow the water temperature – sometimes they’re in Canada, sometimes here.   It has nothing to do with the water in the river.  If that were the case, the Queets River would be full of salmon, she said.  With a restriction on our water usage, we can’t grow our gardens, she added.

Bob Forde of Sequim caught the attention of the listeners when he told the Ecology representatives, "Fundamentally, I don't trust you, and I don’t believe you." He also challenged their premise that the water supply is a finite resource.

Forde also raised the question about whether Ecology was pressing for a change in the law, which currently states that an exempt well may use up to 5,000 gallons a day.  There is a pending bill in the State Senate – SB-5888 – which would reduce that amount on 500 gpd.  Brian Walsh, facilitator for the DOE planning group, said that the DOE isn’t “proposing any legislation – no.”

DOE asserts that the “river needs to be ‘restored.’”    According to Michael Blanton from the DOE, they are trying to establish “water rights for the river”.  He stated that the river has a “right” to flow at a certain level.  “The river should have a right.” According to the DOE brochure, an instream flow rule “establishes a water right for a stream.”

Cynthia Nelson said there’s no guarantee the water’s going to be there, even after they impose water restriction rules on the people.  At this time, the proposed “rule” doesn’t allow for a sunset clause, in the event it doesn’t work, or to be “revisited” later. 

Ferguson explained that the limits on future well drilling and activation are still “under discussion”, and that the proposed in-stream flow rule will appear on Ecology's Web site before any limits and fees are finalized.

Norm MacLeod urged the people present to contact their elected representatives to let them know what they think about the proposed bill and the agency’s proposed “rules.”

Read previous related stories:

February 12, 2005- Watershed planning process frustrates landowners - Commissioner, agencies attempt to guide focus session toward concensus on proposed plan

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2/2/05- Concerned community wants answers about proposed WRIA 18 Plan - Majority still want it remanded for further work

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January 29, 2005 - Watershed Plan to be discussed at "Planning Team Focus Sessions"

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June 7, 2005 - Commissioners unanimously pass watershed management plan

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October 2004 - Sidebar: Statistics from Public Testimony for proposed WRIA 18 Watershed Management Plan

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These stories and more at:
Clallam County Watershed Management Plan