Wednesday, October 26, 2005

Only 'egregious' violations

This article appeared in the October 26 edition of the Peninsula Daily News Jefferson County edition.

I think that one of the more telling moments from the meeting was when Phil Wiatrak said, "I've heard a lot of talk about small agriculture, and it's wonderful. Is there water? No."

To bring the quantities up again ... we use 4% of the available annual groundwater recharge for all of our many allowable uses. The Department of Ecology and its predecessor water right administration bodies have appropriated 28% of that recharge for use. The 4% we use is only 14% of the amount of water that has been granted to us as our right. We think our water stewardship stacks up rather well in consideration of the quantities available in the watershed.

When it comes to the amount of water running into salt water from surface sources? According to the WRIA 17 watershed plan, they simply don't know. Only three of the watershed's streams have been officially monitored for the amount of water they discharge at their mouths. They've had five years to figure out how much is coming down all the rest of the streams, but haven't done so. How can there be a rule when the basic homework hasn't been done?

When the DOE says that there's no water available, and that they have to close almost everything to future withdrawals, some of us think that there's a bit of a problem with the conclusions they've arrived at.

On to the article...


State Ecology says it is not water police

By Jeff Chew
Peninsula Daily News


PORT TOWNSEND —— Responding to recent criticism that the state Department of Ecology is out to police water use in Jefferson County, a state official said Tuesday that the agency is not out to become a petty water czar.

"We have never busted somebody for a rain barrel and we never will," said Phil Wiatrak, an environmental planner for Ecology who represents the state on the Watershed Resource Inventory Area 17 Quilcene-Snow planning unit.

By state law, rain barrels are considered illegal diversions of natural water flow.

The planning unit met Tuesday in a crowded county commissioners chambers in the Jefferson County Courthouse.

Instead, Wiatrak said any Ecology enforcement official would track and go after "clear" and "significant" violations of state law, such as illegal "egregious" water diversions.

Wiatrak said that the state Legislature has mandated that Ecology set an in-stream flow rule for the state's 62 inventory areas.

"The fact of the matter is there will be an in-stream flow rule," Wiatrak said to a standing-room-only audience spilling out into the courthouse hallway.

The separate in-stream flow rule for the Washington Administrative Code would establish a water right based on seniority under state law.

The rule would be established to protect a minimally acceptable level of water for fish habitat.

Wiatrak said a rule is currently on "indefinite pause."

"We are carefully considering all we've heard," he said, adding that two of the agency's rule writers recently left the agency, compounding the inability to move forward.

Separate from the in-stream flow rule, county commissioners adopted a watershed plan in January that includes 43 recommendations to improve water resource management and protect and restore fish and wildlife habitat in WRIA 17, which includes all of eastern Jefferson County.

Currently, residents can use up to 5,000 gallons per day per home.

Under the proposed instream flow rule, the limit would be reduced to 350 gallons per day.

The proposal also calls for closure of the Big Quilcene River from March 1 to Nov. 15 and Chimacum Creek from March 1 to Nov. 30 to new water appropriations. It closes other water bodies in the area year-round to future water rights.

Existing water rights would not be affected under the proposal, but new applications would.

Closed to withdrawals

Islands such as Marrowstone would be closed to any groundwater withdrawals under the new rule unless approved by the state.

Wiatrak, who has admitted that Ecology failed to communicate effectively to residents on the in-stream flow rule, said no rule will be established without first going through the planning unit.

"If there is an issue in this community, I think it's important that the community wrestle with it," said Wiatrak.

"I've heard a lot of talk about small agriculture, and it's wonderful."

"Is there water? No."

Wiatrak urged more representation on the WRIA 17 planning unit.

On Tuesday, those asking to serve on the planning unit included Jim Hagen, Jefferson County Planning Commission chairman.

"I think it's really imperative that the Planning Commission have representation," Hagen said.

"There's no question at all that these water issues are going to impact matters that are before the Planning Commission."

Others asking for planning unit representation were real estate agents, well drillers and small-scale agriculture.

Wayne King, Jefferson County publicUtilityy District chairman, asked that planning unity meetings be scheduled in the early evening so working people could attend.


If the Department of Ecology is not playing the part of "water police", why are they using their participation in the Capital Press article (scroll down a bit from here, or click on the link to it from the right margin of this page) to make our small agriculture producers feel threatened by telling them that they are using water "illegally"? If they are not going down the enforcement path outlined in RCW 90.03.605, why are they coming up with $110,000 to educate and seek compliance?

And if they are going to go to all of this effort to "bring people into compliance" when those people are, in fact, using water in a manner granted by RCW 90.44.050, as clarified in 2003 by the decision in the Kim v. PCHB case, what else are they doing that exceeds their authority?

For that matter, if they can pull that kind of money out of a hat so quickly to bring a hammer to the table, how come there hasn't been a professional facilitator at the table for the WRIA 17 meetings in the months following the completion of the previous facilitation contract several months ago?

Is an agency that is misfiring on so many fronts really more capable of managing Jefferson County's water resources than Jefferson County's own agencies?

County pushes for water rights

This article appeared in the Port Townsend Leader's October 26, 2005 edition. Although it's pretty short, it represents the start of discussion of the issue in the pages of our most local newspaper.

There's an interesting comment from the Department of Ecology's Curt Hart, who says that Ecology wants to work with local residents and officials to figure out where to set instream flow levels. Perhaps the time to have done that was immediately after the first public workshop they held here on the proposed rule. There were plenty of us questioning both the provisions and the assertions contained in that draft. Looking at the current draft, there's certainly not much evidence that the DOE has been overly willing to work with our residents to this point, beyond putting the rule-making process into what we are now given to understand is "indefinite" hold status.

Perhaps we're getting to a point where they are becoming willing to actually come out and work with those who have the local knowledge in context? We can only hope that's the case. Should we hold our breath?


By Kasia Pierzga
Leader Staff Writer

County officials are hoping to put the brakes on proposed state regulation of water use in East Jefferson County by calling for more research on how the use of groundwater affects salmon streams.

In a policy statement approved Monday, the Jefferson County Board of Commissioners called for better communications between the state Department of Ecology and a county group charged with developing recommendations to ensure there is enough water in local streams to preserve salmon runs.

Commissioner Pat Rodgers said he's frustrated with DOE for moving ahead with proposed water-use restrictions without what he considers conclusive supporting information.

"It's outrageous in my mind that we would abdicate the absolute rights of individuals on a hunch," he said. "we're hoping the DOE will do things that are necessary to determine what the facts are. Then we can come to a reasonable conclusion."

Robert Greenway, co-owner of Corona Farm in Port Townsend, praised the commissioners for taking action.

"I'm a passionate supporter of salmon and salmon streams," he said, "But we're worried that we would be controlled right out of business."

Ecology spokesman Curt Hart said DOE officials want to work with local residents and officials to figure out where to set in-stream flow levels.

"Can we make everybody happy? Probably not," he said. "But we can work with a broad cross-section of people to come up with the best possible solutions."

Tuesday, October 25, 2005

So ... the Department of Ecology thinks our small ag producers are using water "illegally"?

Over the past several weeks, we've learned a great deal about the Department of Ecology's instream flow rule-making process. Up to this point, aside from the information used for the questions asked in public meetings, we've been pretty much content to leave most of that information in collections that help us understand what is taking place in terms of the development of the rule.

This past Friday, October 21, an article appeared in the Capital Press, a weekly newspaper that is highly respected in the western states as a source of good information for the agriculture community. The article discussed the Department of Ecology's "discovery" that some of our local small agricltural producers may be using water "illegally".

Because we have highly reliable information that runs completely counter to the assertions apparently given to the reporter by officials from the Department of Ecology, and because the information they provided is likely causing anxiety for members of our community, we feel that it's time to bring our information to the forefront. It's in the form of a published opinion of the Appeals Court of the State of Washington, Division II, from January 2003. The docket number is 27804-9-II, and the case name is Kim v. Pollution Control Hearing Board, et AL. You may request a copy of your own from the Clerk of the Court by telephoning your request to their office at 253-593-2970.

The opinion was not appealed by either the PCHB or the Department of Ecology. In the absence of an appeal, the finding became settled law, which carries the same force as if the Supreme Court of the State of Washington had been the court in which the case was heard.

In a nutshell, the opinion finds that agriculture is an industry, and that it qualifies for the industrial exemption portion of RCW 90.44.050, the law that governs exempt well use. That means that you are allowed to engage in commercial agriculture with an exempt well, that you are allowed to use up to 5,000 gallons of water from that well every day, and that you are not bound by the one-half acre that you are allowed to water for a noncommercial garden.

The court rejected the Department of Ecology's and the PCHB's view that an administrative agency can alter the plain meaning of a statute to meet changing societal conditions. The power to do that is reserved for the state legislature only, and the opinion provided plain-language instruction to the Department of Ecology and the PCHB on this point.

From what the article contains, it appears that at least some officials at the Department of Ecology are under the impression that Kim v. PCHB doesn't apply to them. From a simple reading of the court's opinion, we think it's pretty safe to conclude that those officials are pretty far off base.

As you read on through this rather long posting, you'll find the text and references of the published opinion in Kim v. PCHB. Although you may prefer to read the article first, it's much more effective to read the opinion first to give yourself the full context of the comments of the Department of Ecology's officials.



IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

No. 27804-9-II

JOO IL and KEUM JA KIM, Appellants,

v.

POLLUTION CONTROL HEARING BOARD, ET AL, Respondents.

Published Opinion

MORGAN, J. - Joo Il Kim and Keum Ja Kim appeal a ruling that they must have a permit to use well water for their commercial nursery. Based on RCW 90.44.050, we reverse.

Since 1990, the Kims have owned real property on N.W. Central Valley Road in Poulsbo. The property is the site of their home and their business, a commercial nursery called Central Valley Greenhouse. The nursery's components are a greenhouse, a display area of less than a half acre, and parking spaces for eight cars.

The property is served by a well that was drilled in about 1965. The Kims take groundwater from the well for both their residence and the nursery. They use between 100 and 300 gallons per day "to directly water (via hand watering and watering wand) the plants that they raise and offer for sale to the general public." {1} They do not have a permit to take water from the well.

On August 28, 1998, the Department of Ecology (DOE) ordered the Kims to stop using well water for their commercial nursery unless they applied for and obtained a permit. DOE did not order them to stop using well water for their residence.

The Kims appealed DOE's order to the Pollution Control Hearings Board (PCHB). The PCHB affirmed, reasoning in part that it should interpret RCW 90.44.050 not in light of the intent of the 1945 legislature, but rather in light of "our current scientific understanding of ground and surface water continuity, the federal mandates to protect endangered salmon, and the increasing demand for water to serve our growing population and economy." {2}

The Kims appealed from the PCHB to the superior court, but that court also affirmed. The Kims then appealed to this court, which reviews the decision of the PCHB. {3}

RCW 90.44.050 is the governing statute. It was enacted in 1945. At all times since then, it has provided essentially as follows:

After June 6, 1945, no withdrawal of public ground waters of the state shall be begun, nor shall any well or other works for such withdrawal be constructed, unless an application to appropriate such waters has been made to the department and a permit has been granted by it as herein provided: EXCEPT, HOWEVER, That any withdrawal of public ground waters for stock- watering purposes, or for the watering of a lawn or of a noncommercial garden not exceeding one-half acre in area, or for single or group domestic uses in an amount not exceeding five thousand gallons a day, or for an industrial purpose in an amount not exceeding five thousand gallons a day . . . is and shall be exempt from the provisions of this section, but, to the extent that it is regularly used beneficially, shall be entitled to a right equal to that established by a permit issued under the provisions of this chapter: PROVIDED, HOWEVER, That the department from time to time may require the person or agency making any such small withdrawal to furnish information as to the means for and the quantity of that withdrawal: . . . {4}

The overall scheme of this statute is to require a permit except for certain "small withdrawals." The 1945 legislature defined a "small withdrawal" as (1) any amount of water for livestock; (2) any amount of water for a lawn or for a noncommercial garden of a half acre or less; (3) not more than five thousand gallons per day for domestic use; and (4) not more than five thousand gallons per day "for an industrial purpose."

The parties agree that the first three types of withdrawal do not apply to the Kims' use of well water for their commercial nursery. Accordingly, the question for us is whether, when the Kims take well water for their commercial nursery, they are taking such water "for an industrial purpose." In 1995, DOE's Shorelines and Water Resources Program commented on this "industrial" type of withdrawal in a document that it addressed "to all interested parties." It stated in part:

Following is an outline of Ecology's current understanding regarding the ground water exemption specified in Chapter 90.44 RCW. . . . This letter is provided to help reduce confusion and contribute to a common understanding of when and where the ground water exemption does apply.

. . . {T}he entire issue of the ground water exemption is very controversial and is likely to be the subject of legislative action this upcoming session. A strong possibility exists that one or more portions of the current statute will be changed. . . .

Under Washington's ground water code, small users of ground water have historically been exempted from the water right permitting process. . . . This exemption . . . is specified in RCW 90.44.050. . . .

. . . .

The following is Ecology's interpretation of the various portions of the exemption language.

A. ". . . any withdrawal of public ground waters for stock-watering purposes . . ." This provision applies to water farm animals (cows, horses, etc.) drink in the course of grazing or otherwise being raised under natural conditions. Commercial animal-rearing operations such as feedlots and kennels are considered industrial uses of water. . . .

. . . .

D. " . . . for an industrial purpose in an amount not exceeding five thousand gallons a day . . ." Ecology interprets "industrial" in the broadest possible sense, to include "commercial" and any other general industry. Under this interpretation, a commercial dairy using less than 5,000 gpd would be exempt.

. . . .

Ecology will revise this letter in accordance with any changes made by the legislature. If you have any additional questions, please contact Ecology's . . . regional office. . . .{5}


Since 1995, the legislature has not amended RCW 90.44.050, despite a number of proposals that it do so.
{6} Ecology, however, has altered its reading of RCW 90.44.050. It now asserts (1) that "the word `industry' excludes agriculture"; {7} (2) that "to interpret the `industrial purpose' exemption to apply to irrigation would render meaningless the exemption for noncommercial gardens less than one half acre in size"; {8} and (3) that to define "industrial purposes to include horticulture or agriculture would increase the types of uses to which the exemption applies, thus undermining the general rule that withdrawals must be permitted." {9}

We reject DOE's first assertion. At least 24 Washington statutes, {10} six Washington regulations, {11} and ten Washington cases {12} refer to the "agricultural industry." At least 300 cases from other jurisdictions do likewise. {13} Webster's dictionary exemplifies the word "industry" by referring to "the poultry industry." {14} Given the words that the 1945 legislature chose to use, there is no logical reason to allow a business in the construction industry, aluminum industry, or automobile industry to take 5,000 gallons per day without a permit, while denying the same right to a commercial nursery in the horticulture industry. We hold that the words "for industrial purposes" must be applied according to their plain terms, and that their plain terms include the Kims' commercial nursery.

We reject DOE's second assertion. The "industrial purposes" provision exempts commercial nurseries but not noncommercial gardens. The noncommercial garden provision exempts noncommercial gardens. Each provision has its purpose, and neither provision is superfluous -- even if the "industrial purposes" exemption is construed to include commercial nurseries.

We reject DOE's third assertion. To recognize that the "industrial purposes" exemption includes all industries is not to allow water to be used more now than before; it is simply to recognize and apply the law that has existed since 1945.

We do not overlook, but we do reject, the PCHB's apparent view that an administrative agency can alter the plain meaning of a statute to meet changing societal conditions. When a statute is rendered obsolete by changing conditions, the remedy is for the legislature to amend it; neither an administrative agency nor the courts may read it in a way that the enacting legislature never intended. Assuming without holding that RCW 90.44.050 is obsolete, it must be amended by the current legislature, not by PCHB or DOE. Accordingly, we conclude that the Kims' commercial nursery fell within RCW 90.44.050's "industrial purposes" exemption; that the Kims could lawfully take 100-300 gallons per day without a permit; and that the PCHB erred by ruling to the contrary.

Reversed.

Morgan, J.

We concur:
Houghton, J.
Quinn-Brintnall, A.C.J.

1 Clerk's Papers (CP) at 73.

2 CP at 67.

3 Bowers v. Pollution Control Hearings Bd., 103 Wn. App. 587, 596, 13 P.3d 1076 (2000), review denied, 144 Wn.2d 1005 (2001) (citing City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 Wn.2d 38, 46, 959 P.2d 1091 (1998)); Kaiser Aluminum & Chem. Corp. v. Pollution Control Hearings Bd., 33 Wn. App. 352, 354, 654 P.2d 723 (1982).

4 Laws of 1945, ch. 263, sec. 5; Laws of 1947, ch. 122, sec. 1; Laws of 1987, ch. 109, sec. 108.

5 CP at 38-40.

6 See, e.g., Wash. S.B. 5494 (1995); Wash. S.B. 5593 (1995); Wash. H.B. 1685 (1995); Wash. S.B. 5827 (1995); Wash. H.B. 1772 (1995); Wash. S.S.B. 5517 (1995); Wash. S.S.B. 6698 (1996); Wash. S.B. 5275 (1997); Wash. H.B. 2396 (1998); Wash. H.B. 3106 (1998); Wash. H.B. 1314 (1999); Wash. S.B. 5289 (1999). None of these bills passed.

7 Br. of Resp't at 9.

8 Br. of Resp't at 10.

9 Br. of Resp't at 10.

10 See, e.g., RCW 15.04.402; RCW 15.08.025; RCW 15.24.900; RCW 15.62.010; RCW 15.65.028; RCW 15.65.033; RCW 15.66.015; RCW 15.66.017; RCW 15.85.010; RCW 15.92.090; RCW 17.24.171; RCW 22.09.405; RCW 28A.300.090; RCW 28B.30.543; RCW 36.70A.020; RCW 36.70A.060; RCW 36.70A.177; RCW 43.23.035; RCW 43.23.042; RCW 43.23.275; RCW 43.23.280; RCW 50.62.010; RCW 50.62.030; RCW 79A.30.050.

11 See, e.g., WAC 16-470-800; WAC 16-482-001; WAC 16-524-002; WAC 16-470- 800; WAC 16-482-001; WAC 16-524-002; WAC 16-752-300; WAC 16-752-700.

12 King County v. Central Puget Sound Growth Mgmt. Hearings Bd., 142 Wn.2d 543, 14 P.3d 133 (2000); City of Redmond v. Central Puget Sound Growth Mgmt. Hearings Bd., 136 Wn.2d 38; Double D Hop Ranch v. Sanchez, 133 Wn.2d 793, 947 P.2d 727 (1997), 952 P.2d 590 (1998); City of Ferndale v. Friberg, 107 Wn.2d 602, 732 P.2d 143 (1987); Stender v. Twin City Foods, Inc., 82 Wn.2d 250, 510 P.2d 221 (1973); Chas. Uhden, Inc. v. Greenough, 181 Wash. 412, 43 P.2d 983 (1935); Griffiths v. Robinson, 181 Wash. 438, 43 P.2d 977 (1935); State v. Clark, 43 Wash. 664, 86 P. 1067 (1906); Stewart v. Washington State Boundary Review Bd., 100 Wn. App 165, 996 P.2d 1087 (2000); Cox v. Lewiston Grain Growers, Inc., 86 Wn. App. 357, 936 P.2d 1191, review denied, 133 Wn.2d 1020 (1997).

13 These cases are too numerous to list but are available through computerized research.

14 Webster's Third New International Dictionary 1155-56 (1969).


Now let's get into the article that appeared in the October 21, 2005 issue of the Capital Press, written by Cookson Beecher. While you're reading the article, keep the Kim case in mind, remembering that the decision was published in January 2003. If the Department of Ecology was chastised by the Washington Court of Appeals just a little more than two years ago, how can they think that local citizens wouldn't learn about that and apply that knowledge to what is happening now?

Small-scale farmers face unexpected hurdle – water

Instream-flow rules could unravel fabric of local agriculture

By COOKSON BEECHER
Washington State
Staff Writer

The renaissance in agriculture fostered by small farms that supply fresh, locally grown food to local communities has run into an unexpected roadblock in Washington state — one that will probably take a legislative fix to overcome.

The issue comes down to what Department of Ecology officials describe as the “illegal” use of groundwater and surface water by some small-scale farmers.

In the case of water from exempt wells — those that don’t need to be permitted as long as they’re not drawing more than 5,000 gallons per day — some farmers are using water from these wells to water crops and livestock.

Department officials say that’s against state statute — no matter how small the plot they’re watering may be or how little water they’re using.

Wendy Balender, the department’s coordinator for instream flow rules, said that although there’s an exemption in the case of exempt wells that allows for the irrigation of lawns as well as gardens up to one-half acre in size, no such exemption exists for commercial agriculture, no matter its size.

“If it’s for commercial agriculture, there’s no exemption,” she said, adding that because this is state law, it would take the legislature to change it.

This dilemma surfaced during public meetings about the department’s proposed instream flow rule for the Quilcene watershed on the Olympic Peninsula. But department officials readily concede that this issue is not unique to the Quilcene.

“We’re taking a significant pause in rulemaking on this,” said Balender, adding that this issue extends beyond the Quilcene.

“We’re changing our game plan. We want to reach out to stakeholders. We’re not interested in shutting down farmers.”

Nevertheless, she said that if people are diverting surface water or groundwater for agricultural enterprises, they need to have a water right.

“Farmers need to become informed about the water they’re using,” she said.

She also said that in the majority of the Quilcene watershed, there’s not enough water to issue new water rights.

Phil Wiatrak, Ecology Department’s watershed lead for the Quilcene and other watersheds in the state, said that when this issue was brought up during public meetings, it caught department officials by surprise.

“We hadn’t been aware of it,” he said.

Many small farmers were equally surprised, most of them never dreaming that they were using water illegally to water their crops or livestock.

A key component of the proposed rule in the Quilcene watershed is the setting of minimum stream flows for rivers and streams in the watershed, including Chimacum, Salmon, Snow, Tarboo and Thorndyke creeks, as well as the Big Quilcene and Little Quilcene rivers.

Those instream flows are directed at protecting salmon. And while department officials declined to give advice about whether small-scale farmers using water without official water rights should buy their seeds for next year’s crops, they also said that the department is “quite a ways out” on coming to a decision.

Jefferson County Commissioner David Sullivan, who has been following this issue closely, said when it comes to small-scale farmers’ use of limited amounts of water, it comes down to a matter of scale. He hopes that the Ecology Department can come up with a solution that protects small-scale farmers and also salmon.

He pointed out that this issue has surfaced during previous legislative sessions but that in the chaos of law making, it gets overridden by more pressing issues.

He believes that a solution to this dilemma is essential because small-scale farmers play an important social and economic role by helping keep land in open space and supplying people with good local food.

“I support them in this,” he said. “They’re an asset. They add to the rural character and the rural economy.”

Sullivan is proud of successes made by the local watershed planning group in reaching consensus on 43 recommendations, pointing out that the group includes government officials from a wide range of agencies, scientists, local citizens, and the Jamestown S’Klallam tribe.

“I’d hate to see the plan undone with conflict at the end over instream flows,” he said. “We really need to build on our successes instead of veering toward a heavy handed regulatory approach.”

Katherine Baril, director of Washington State University Jefferson County Extension, said that the growth of small farms that supply local communities with food is happening statewide and nationwide.

“It’s a renaissance in agriculture,” she said. “It’s good economics for the community, good for the environment, and good for food security.”

The challenge, she said, is to create a system that keeps enough water in the streams for salmon, lets people grow local food, and involves enough trust that people are willing to sit around the table to solve problems.

Cookson Beecher is based in Sedro-Wooley, Wash. Her e-mail address is cbeecher@capitalpress.com



Well ... what do you think? Is the Department of Ecology dealing with Jefferson County's residents in a credible manner, or does this make you feel as if there's something just a wee bit wrong with this process. For instance, why are they coming to Jefferson County claiming that the people who grow a bit more food than they need, so that they can take it to the Farmers' Market, are using water "illegally"?

As if that's not enough, just how is it that the Department of Ecology feels that it's OK to ignore the plain language of a court finding that doesn't go their way?

Please feel free to share this with your neighbors, both those who live here, and those who live far away. There are 62 WRIAs in Washington. Let's make an effort to be sure that people living in each and every WRIA learn as much as possible about what's happening here. What's happening here today is going to be happening to them tomorrow ... unless we can make things change.

Monday, October 24, 2005

New water users group formed

Things have been just a wee bit busy since the evening of Thursday, October 20, 2005. It feels as if that was several weeks ago, instead of just a few days. Some really newsworthy things started happening then, though.

A group of more than fifty Jefferson County neighbors and their guests from further afield came together at the Chimacum Grange Hall and talked about the Department of Ecology's instream flow rule-making process in WRIA 17. After a presentation and a question and answer session, a vote was taken to decide whether or not we should form an interest group to work together to protect our water rights and those of people who have not yet arrived in our area. With a unanimous decision in hand, an interim board of directors was appointed and approved.

During the WRIA 17 Planning Unit's most recent meeting, the Department of Ecology official present had noted that stakeholders not represented by groups should form associations of some kind if they wanted a better chance of being represented at the WRIA Planning Unit table. So, now Ecology has what it wanted in that regard. The newly formed group will evaluate the current state of the planning unit process to determine whether requesting a seat at the table will be advantageous.

The group is now in the process of going through the paperwork necessary to form as a political action committee, which will provide the ability to lobby elected officials on the instream flow rule-making process and other water issues statewide. There will be an operating fund and a legal fund to support the group's activities. Nominations and elections for a regular board of directors and officers will take place as soon as the group formalization process is complete.

As a PAC, the group will be able to work with organizations with similar interests, and will be advocating its positions directly to Washington's Representatives and Senators. They will also be able to participate in court proceedings as deemed necessary.

We certainly do live in interesting times!

Jefferson County Policy Statement on Implementation of the Watershed Plan for WRIA 17

The Jefferson County Board of County Commissioners agreed upon this formal policy on the morning of October 24, 2005. They will consider a resolution adopting to policy at their November 7, 2005 meeting. This policy was developed to make a clear distinction between the WRIA 17 Planning Unit's work on the watershed plan and the instream flow rule being proposed by the Washington Department of Ecology.



Jefferson County Policy Statement on
Implementation of the Watershed Plan for WRIA 17

Introduction

It is the County’s belief that water is a resource that requires careful management and that we have the creativity and ability to work together to provide that management.

We wish to point out that our County has a long-standing history and legacy of large public policy efforts, applied very effectively with the cooperation of our citizens.

We believe in and continue to rely on the good will, common sense, and creativity of those citizens.

We agree that we have the wisdom to manage our water resources by working together in good faith. We recognize the need to act as good stewards in conserving and using water wisely, and that we should not wait until we have a water availability crisis before we work together to make improvements in the ways that we use water. We understand that at present we annually use approximately 4% of our groundwater recharge, and that this represents a use of about 14% of WRIA 17's appropriated water.

We recognize that we are at a new point in the west’s long and enduring dialog on water use. Water law set during previous generations with somewhat different needs than ours may need review and consideration of how well they apply to today’s conditions. We approach this issue with fairness, creativity, and honesty.

Background

Under the provisions of the Watershed Management Act of 1998, a watershed planning unit representing local governments and stakeholder groups was formed several years ago to develop a watershed plan for the Quilcene-Snow Watershed, otherwise termed Water Resource Inventory Area 17 (WRIA 17). The watershed is one of 62 WRIAs in Washington, and one of sixteen that were determined to be critical watersheds for the survival of threatened and endangered fish species.

The adopted watershed plan contains 43 recommendations for improving water resource management practices and protecting and enhancing fish and wildlife habitat in WRIA 17. Recommendation 34 of the approved watershed plan is the adoption of instream flows. This instream flow will become a rule in the Washington Administrative Code (WAC), and will establish a water right in the line of seniority under Washington water law to maintain acceptable flows for fish habitat. The WRIA 17 Planning Unit has not reached agreement on an instream flow rule.

The Washington Department of Ecology has authority to establish WAC rules to implement the Revised Code of Washington (RCW) as passed by the Legislature. The process for establishing such rules involves public notice and opportunities for participation. Because the planning unit did not reach agreement on a rule within the specified time limit for doing so, the Department of Ecology proceeded with conducting the rule-making process, and has released several drafts of the proposed rule for WRIA 17. In its present form, the September 20, 2005 draft imposes severe limits on future surface and groundwater withdrawals. While senior water rights are not affected, future water rights would be junior and interruptible.

County policy (October 2005) — Supported by the Three
Water Resources Goals
in the Environment Element of the
Jefferson County Comprehensive Plan


1. The WRIA 17 Watershed Plan adopted unanimously by the Board of County Commissioners (BoCC) in January, 2005 is distinct and separate from the instream flow rule being proposed by the Department of Ecology. This separation should be published as necessary and appropriate to contribute to the public understanding of this distinction.

2. The Department of Ecology has issued a number of draft versions of a proposed instream flow rule for WRIA 17. The County is not in agreement with the provisions of this series of drafts.

3. A Department of Ecology official has acknowledged in local media that the agency has done a poor job of communicating its positions. The County’s sense is that several provisions of the draft rule are adequately enough communicated in the text of the rule as to cause grave concern to this legislative body that the Department of Ecology may well be exceeding its legal authority with several of the rule’s provisions.

4. While the County understands that doing nothing about water quantity challenges is not a good option, the premature adoption of a controversial and poorly thought out instream flow rule, supported by questionable assumptions, would be a serious mistake and would cause significant harm to the WRIA 17 Planning Unit’s efforts.

5. Recent public concern with the provisions of the draft instream flow rule have helped us understand that the citizen stakeholder groups most adversely impacted by the provisions of the proposed rule are not represented on the WRIA 17 Planning Unit. These stakeholders, having more at risk than other WRIA 17 residents, should be encouraged to form interest groups and be invited to the table as voting members of the WRIA 17 Planning Unit.

6. The County expects to see more solid, independently verifiable research, data, and information — preceded by an examination of what questions need answering — before a viable instream flow rule is adopted and implemented. Because this rule may contain significant economic development constraints affecting future viability of the County’s citizens and government, the research must be submitted to outside peer review for verification of the conclusions and recommendations before the rule will be accepted.

7. The County remains willing to be involved in the instream flow rule-making process, and fully expects to be included in the rule’s development. The County further intends to negotiate in good faith to achieve an agreed-upon strategy for actively managing instream flows. The Board of County Commissioners’ sense is that an expanded WRIA 17 Planning Unit is an appropriate body for pursuing an appropriate instream flow rule that addresses the County’s concerns.

8. The County is concerned about the challenge of consistent and impartial enforcement of an adopted instream flow rule, particularly if that rule is developed in an atmosphere of uncertainty and controversy. The County holds that most people — when provided with education, technical assistance, and incentives — will make the choice to use their water resources efficiently and wisely without the need for enforcement actions.

9. Good water resource stewardship is more effective when it is simply the way we act voluntarily as managers of the resource. It is not cost-effective to attempt to manage water resources through regulatory enforcement.

10. The watershed plan contains 43 recommendations generated through a consensus process. The plan can be amended as necessary, and as is required to be fully compliant with Washington law. The WRIA 17 Watershed Plan should be immediately reviewed to ensure that its provisions are all within the provisions of established Washington law. Ambiguous language needs to be clarified where it exists.

11. Action on the 42 remaining recommendations can and should proceed while the instream flow rule-making process continues as a separate activity. This includes moving forward with efforts to improve water conservation and habitat protection and restoration watershed-wide, particularly with regard to threatened salmon species.

12. Water availability and quantity for human, fish, and other wildlife use is an issue of concern to all. There are many options for managing instream flows and improving our water use practices that have not been adequately explored, planned for, or implemented locally. Any strategy for addressing water quantities must consider all options, including increased storage capacity optimally located for the specific storage unit’s intended purposes, along with the development of a comprehensive water conservation program. Highly restrictive water use, or rationing, while valid as a last resort, remains just that … a last resort.

13. Large-scale watershed management is a highly complex issue. Meeting the challenges of this complexity requires a multi-disciplinary approach, from legislative initiatives to implementation of technological advances. Coordination between governmental and private sector activities is essential. Improving our water use management is a time-consuming process, and it is important for our citizens to engage in voluntary efforts to help make wise use of our water resources.

14. Public information and education regarding the WRIA 17 process has been inadequate. That must change now that we are approaching the implementation phase of the watershed plan. Concerns expressed by citizens must be addressed quickly and incorporated into future deliberations. Those who will be affected by the plan must be allowed to participate in the making and implementation of the plan in order for the solutions to have willing public support.

15. The County supports developing a comprehensive water management strategy that protects salmon, ensures water supply, and supports local food production. A workable system that includes an agricultural trust water right or other measures that would tap new, reserved, conserved or transferred water for ongoing local food production is one of the key beneficial uses protected by regulation and is a priority.

16. We will evaluate and take advantage of available funding that is compatible with the County’s priorities to implement the Watershed Plan recommendations.

17. Other ongoing County programs and projects will be integrated into the watershed management process.

18. We recognize that our destinies are connected to the way we manage our water resources, and that we will share the results of doing so wisely.

Tuesday, October 18, 2005

Jefferson County to study county water plans

Panel seeks more data for longterm controls

by Jeff Chew
Peninsula Daily News


PORT TOWNSEND —— Citing strong public concerns about state Ecology's proposed in-stream flow rule, Jefferson County commissioners set out Monday to clarify and specify the county's watershed planning policy.

"I think we need to articulate just what the county's policy really is," said Commissioner David Sullivan, the board's liaison to the county's Water Resourcess Inventory Area 17 watershed planning unit.

Sullivan said county watershed planning needs to be clear with the public and county staffers.

Calling himself the "lead editor" on the WRIA 17 policy statement, Sullivan urged his fellow commissioners and about 20 attending the meeting to air their suggestions and issues.

"We should try to err on the side of openness," said Sullivan, D-Cape George.

More information needed

Sullivan and Commissioner Phil Johnson, D-Port Townsend, agreed with Commissioner Pat Rodgers, R-Brinnon, that more information was needed before the state Department of Ecology sets any in-stream flow rule, which is separate from the WRIA 17 plans.

"We lack good data and information to make good decisions," Rodgers said.

Rodgers asked for another week to more closely study the draft policy and he congratulated Sullivan for the work he had invested in it.

Sullivan said he was fine with adding at least another week to refine the draft policy.

The watershed plan is a compilation and integration of comments from county staff from several departments and staff with Washington State University's Extension Service in Port Hadlock.

The watershed plan the commissioners adopting in January include 43 recommendations to improve water resource management and protect and restore fish and wildlife habitat in WRIA 17, which includes all of Jefferson County and the most easterly part of Clallam County.

The WRIA planning unit agreed two years ago on the recommendations to Ecology, leaving the draft plan on the shelf, awaiting further study on in-stream flows and how to protect them.

The separate in-stream flow rule for the WashingtonAdinistrativee Code would establish a water right in the line of seniority under state water law. The rule would be established to protect a minimally accepted level of water for fish habitat.

'Big-picture issue'

"Watershed management is a big-picture issue," the county draft policy states.

"It did not reach crisis level in a day and it will not go away in a day."

"Meeting this challenge requires a multi-pronged effort, including potential amendments to state statutes, modernization of technologies, and coordination between public and private-sector activities."

After the commissioners opened the floor to more than 30 people attending the meeting Monday, Ripley Creek Road resident Greg Fay said he was concerned if proposed Ecology rules would hurt future generations in their water use on larger pieces of land.

"I'm just urging you to take a leading role," said Fay, asking for a public meeting on the proposed policy.

Robert Greenway, who owns Corona Farms in Port Townsend, said there is concern among small farmers like him countywide, who fear they will lose their water rights.

"We all want salmon and clean water, and we want our local agriculture to thrive." said Greenway.

Jim Tracy, attorney for Fred Hill Materials, complimented the commissioner for taking a leadership role.

Tracy urged the commissioners to consider looking into "conflict of law" and "whether DOE is exceeding its authority."

Sullivan said the policy was merely the commissioners taking a "negotiating posture, where we come from, not what DOE does."

Port Townsend resident James Fritz said if the county is to save salmon, "We better work together."

Chimacum resident Donna English raised concerns about forced metering of water wells that she thought Ecology officials were considering.

Sullivan, however, said, "We can't make you put a meter on your well."

Richard Hill, raising concern that Ecology's intention was to force metering as a prerequisite for keeping water rights, urged the commissioners to seriously examine the issue.

No minutes at meetings


Others raised concerns that WRIA 17 planning unit meetings were taking place with no minutes taken for lack of funding.

Dana Roberts, Jefferson County Public Utility commissioner from Port Townsend, said he welcomed the expression of "broader public interests" on the watershed plan.

Roberts said he was sorry that not enough comments on the plan were heard from the agricultural community.

Public Utility District Commissioner Kelly Has from Marrowstone Island urged commissioners to give the public a 30-day comment period on the county's draft watershed plan policy statement.

Following two public meetings in September over the much maligned proposal to manage water use in east Jefferson County, an Ecology official said the state agency "did a lousy job" of communicating with the public.

Phil Wiatrak, an environmental planner with Ecology, in September addressed an audience of about 40 packed into the Jefferson County Library conference room attending a WRIA 17 planning unit meeting.

That lack of communication about the proposed WRIA 17 water management rule could delay the rule another six months, said Wiatrak, who works with the planning unit of East Jefferson County representatives.

Ecology officials took harsh pummelings from county well drillers, fruit farmers and many others attending the information forums that each drew crowds of more than 100.

As a result of public comments, questions and criticisms, Wiatrak urged the WRIA 17 planning unit to make changes in the panel's makeup, including representatives of small agriculture and real estate businesses.

Ecology policymakers, who wanted more study on how best to protect stream flows, came up with the proposed rule allowing access to 3.87 million gallons of water a day areawide.

That sets an average single household usage benchmark of 350 gallons daily, based on an assumption that the average person uses 70 gallons daily, officials said.

Today, residents can use up to 5,000 gallons a day per home.

The rule in question also calls for the closure of the Big Quilcene River from March 1 to Nov. 15 and Chimacum Creek from March 1 to Nov. 30 to new water appropriations. It closes other water bodies in the area year-round to future water rights.

Existing water rights would not be affected under the proposal, but new applications would.

Islands such as Marrowstone would be closed to new water appropriations to new groundwater withdrawals under the new rules unless otherwise approved.

Monday, October 17, 2005

Jefferson County WRIA 17 policy statement being developed

This morning the Jefferson County Board of Commissioners deliberated on a new policy on the WRIA 17 Planning Unit's work and its relationship with the Department of Ecology's instream flow rule-making process. The county's policy seeks to differentiate the WRIA 17 watershed management plan from Ecology's rule-making, help the public understand that the two are completely separate, and that the watershed management plan is well worth supporting, and that its recommendations are worthy of implementation.

As public interest in the Planning Unit's work and, more specifically, as public resistance to the instream flow rule as currently drafted by the Department of Ecology grows, our concerns are being noted by decision-makers at the local and state level. This notice is resulting in actions of various kinds. Jefferson County initiates a clarifying policy document. The Department of Ecology hints that it's going to take enforcement action against exempt well owners "illegally" using water.

We're making a difference. We need to continue making that difference, and we need you to join us in our efforts. If you're not already involved, please feel free to get in touch, come to a meeting where WRIA 17 is being discussed, whatever you can do. Let's all work together to get control of our water resources back into our hands, where it belongs. We have done a pretty good job of taking care of our water over the years, and we don't need an unsympathetic state agency coming in and taking over Jefferson County's local government and individual responsibilities.

Here's the text of one of the pieces of public testimony read into the record at today's Commissioners' meeting. It outlines some of the thinking being done in regard to the county's policy update, and we think you'll find it interesting...



Jefferson County Board of Commissioners
P.O. Box 1120

Port Townsend, WA 98368

October 17, 2005

Commissioners:

I support the effort to establish a county policy on implementation of the WRIA 17 watershed plan, and to distance the county from the Department of Ecology’s instream flow rule-making process. However, I recommend that you allow an additional week to refine the language of your proposed policy statement. The present version reads more as an early draft than a settled, well focused policy of government. Taking action a week from now will still allow the policy to be in the public domain ahead of the next WRIA 17 Planning Unit meeting.

Should the Department of Ecology sign their proposed instream flow rule as currently drafted, I feel that it will be open to litigation from multiple standpoints. Foremost from the county government standpoint is that it would appear that the establishment of the reserves, and the insistence that the county agree to abide by the provisions of the reserves’ severe rationing of the availability of exempt well permits, amounts to an abrogation of the county’s authorities and responsibilities under the Growth Management Act, without legislative authority for the Department of Ecology to do so.

I believe that the Department of Ecology’s new restrictions on how future exempt wells would be allowed to be used are likewise an unauthorized abrogation of the provisions of RCW 90.44.050, which in 1945 established the provisions for exempt well use. The 1945 law has not been amended to the best of my knowledge, and any change to acreage watering or withdrawal amounts are solely within the purview of the legislature, not an administrative department.

You may wish to consult with your inside counsel on these issues for a more precise outlining of the potential legal issues present in the current draft of the Department of Ecology’s instream flow rule for WRIA 17. I would be happy to discuss my observations with your counsel. Distancing the county from the rule-making process now could help avoid being included in litigation arising from the rule.

The WRIA 17 Planning Unit has made a tremendous investment in time, resources, and research that has resulted in a watershed plan that deserves continued work. As one of sixteen designated critical watersheds, there are many things that should be done to improve the way we manage our resources. However, it’s important to note that we’re not using all that much of WRIA 17’s available water. Of the nearly 46 trillion gallons of annual groundwater recharge, all of our uses of groundwater combined have used only about 4% of the available recharge amount annually. That 4% represents about 14% of the water that we have water right permits and exempt wells to lawfully withdraw. We’re already being pretty good stewards of the resource, and have been making very conservative use of it.

Water storage for active instream flow management and other uses is an area that has a great deal of potential for innovative solutions. This is perhaps a much more productive approach to ensuring adequate water for all uses than the Department of Ecology’s currently preferred rule-based strategy, and certainly allows for more effective implementation of the Planning Unit’s recommendations.

The Planning Unit is in need of broader stakeholder representation from groups that are only recently becoming aware of how greatly provisions of the watershed plan and its related rule-making processes may affect their futures. This points to an incomplete community representation on the Planning Unit that needs to be addressed. These recently awakened stakeholders should be invited to and welcomed into the Planning Unit as voting nongovernmental members.

Jefferson County is blessed with highly talented and entrepreneurial people, many of whom are engaged in small, sustainable agricultural endeavors that are viable under Washington’s current exempt well limits as set in RCW 90.44.050. They should be supported in their desire to produce wholesome produce for themselves and our local market in the context of WRIA 17’s watershed management plan, not prevented from following their dreams by a remote and unresponsive state bureaucracy.

The county’s concern about the challenge of consistent and impartial enforcement of an adopted instream flow rule will certainly be valid if the Department of Ecology moves toward the adoption of a rule substantially the same as the current draft. In my reading of the department’s guidance documents, though, I see considerable room for using far less punitive and much more innovative options than those they are currently proposing. There need not be the level of “shared pain” that the draft rule indicates we might suffer.

Jefferson County is not alone in its discomfort with the Department of Ecology’s instream flow rule-making. Snohomish County is refusing to sign the department’s initial reserve in the Stillaguamish River Basin (WRIA 5). It’s good that Jefferson County is today considering a more proactive approach. Let’s move ahead and see what we can do together to manage our local water resources locally, instead of having that management be imposed from a distance.

As we do so, though, could we review the language we use in the policy statement? There are a few things that are not quite as accurate as they perhaps could be … and it would be good to include a stated commitment to supporting the needs of the human residents of Jefferson County, as well as the fish.

Thank you very much for your time and kind consideration of my input.