Clallam County citizens testify against "instream flow" rule

by Lois Krafsky-Perry and Sue Forde
Citizen Review Online

Feb. 9, 2012

Clallam County, WA - The Clallam County Board of County Commissioners (BOCC) held a public hearing to hear input from citizens about the Washington State Department of Ecology’s (DOE) Preliminary Dungeness Water Management Rule for WRIA 18 East (“Rule”).  The commissioners will use the citizens’ comments to help formulate official County comments on the preliminary rule.  

The hearing was held following the regular commissioners’ meeting on Feb. 7, 2012 starting at 10:45 a.m. at the county courthouse.  Approximately 80 individuals attended to share their thoughts about the “Rule”, the strong majority speaking against it for a variety of reasons.

Newly elected Clallam County Commissioner, Jim McEntire (R)  chaired the hearing, saying that this is an opportunity for the commissioners to become better informed. He reminded the attendees to make comments directly to DOE as well.  “You have as much right to comment as we do,” he said, reminding people they have until February 17th to make comments.  

There were several handouts available, including a Summary of the Preliminary Draft Language, which reflects some of the new regulations that will be affecting property owners in the Dungeness Valley.  The DOE will have control over the water and how it is used, as a result.  Included is the metering of wells on all new wells after the Rule goes into effect, an issue that has been fought by citizens for almost 20 years.  Exempted will be the federal government and the tribes.

The Rule would establish “small” reserves of water for “domestic use”.  Use of reserved water will be “metered and tracked” by DOE.  The allocation, according to the Summary, would be 150 gallons per day for standard “consumptive use on sewer”.  

The Rule establishes “maximum allocations” from the Dungeness River mainstem, with instream flow requirements that, according to many who testified, cannot be met.  If the allocation for water to the river cannot be met, it effectively cuts off the ability for any building to take place in the valley, as there will be no water available, unless mitigation fees are paid.

The Rule also describes DOE’s process for compliance and enforcement.

Information was supplied to attendees listing Senator Jim Hargrove’s (D) opposition to Ecology and listed questions about Flows in WRIA 18.  What is Ecology’s legal authority to control impacts to surface water from groundwater withdrawal?

Staff makes notes as citizens testify

Photo: County staff listens to citizens' testimony

Some answers on the handout, “Groundwater has been regulated in Washington since 1945 when the state groundwater code was enacted by the legislature (90.44 RCW).  The legislature expressly extended the prior appropriation. The groundwater code requires permits for most withdrawals when water is put to beneficial use.  The code exempts some small uses from the permitting requirement.  The 1945 legislature recognized the connection between ground and surface water and specifically stated that the appropriation and use surface water shall not be affected or impaired by a subsequent groundwater right (RCW 90.44.030.  Since 1945, a large body of PCHB appellate, and State Supreme Court cases has been developed addressing the interaction of ground and surface water and the obligation to regulate groundwater withdrawls to protect surface water rights.  There is also a growing body of case law throughout the western states regarding this specific topic.  Such cases have helped guide ecology’s standards of review when making permit decisions or developing “instream flow” rules.  Some of the more relevant Washington state cases include the following:  Olsen v Ecology, PCHB No. 78-58 (1978)  Withdrawl of groundwater in direct hydraulic continuity  wIth fully appropriated surface waters may be denied on the basis of unlawful impairment rights.  Olsen v Ecology, PCHB No. 78-58 (1978), Zwar v Ecology, PCHB No. 78-233 (1979).   Ecology may regulate a groundwater withdrawl for the purpose of protecting a river’s base flow.  Richert v Ecology, PCHB No. 90-158 (1991),

Phillip Martin, PhD,  shared his concerns and noted  litigation could cost from $500 to $4,000. “The rules are for all residents, not just newcomers,” said Martin. He talked about the measurable water from historic measurements and later said, “the standard that needs to be achieved with the instream flows cannot be achieved.”

Kah AlhburgPort Angeles resident Kaj Ahlburg told the commissioners he opposes the rules.  “You are that government closest to the citizens,” he said. He gave several major points: "First", he said, "Ecology wants to require minimum flows that in some cases have historically never been achieved or less than 10% of the time.  State law gives Ecology the right to protect actual stream base flows from overuse, not to shut down water use based on fanciful requirements that have never been met in the real world.

Photo: Kaj Ahlburg testifies

"Second, Ecology makes crucial assumptions, unsupported by peer reviewed science, about hydrologic continuity between all private exempt wells in the Dungeness basin, no matter how deep, and the aquifer feeding the streams.  State law requires Ecology to develop studies and data necessary for its rule making and Ecology needs to do

"Third, Ecology’s proposed rule does not engage in the balancing between protecting the quality of the state’s environment and strengthening the state’s economy that the Washington State Water Code requires." (Read the rest of Ahlburg's statement here.)

Carlsborg resident, Dr. Robert Crittenden shared statistics from several studies. He discussed standard area models, which he said, “tells nothing.”  He determined,  “the method is not scientific knowledge,” and pointed out the serious flaws. Crittenden gave an overview of history referring to a 1994 paper (the Hal Beecher study) written then and noted, “there was never a scientific management study.” He later said, “increasing the amount of water will not increase the amount of fish.” Read his testimony here.

When asked to clarify, Anne Soule with Clallam County Environmental Health, was not clear if model information is available.

Jeff Killian, from Sequim and a well owner, concurs with Ahlburg’s comments.  He asked how water from a 150-foot-deep well can travel uphill to affect the Dungeness River.  He said he opposes the recommendations of Ecology; if it’s not broken, don’t have to fix it, he added.

Steve Marble said this was “deja vu” - he and others have been following and commenting on this issue since 1982, when the first zoning overlay was placed over the county.  Salmon populations are more influenced by ocean conditions, he said, offering several examples.  We have to deal in the real world, he said, and the current parameters of the in-stream flows are “not realistic”.  The amount of water taken from wells is negligible.  We are monetizing water by metering wells, he said.  He went on to say that development of property represents 25% of the economy here, and in addition, this will destroy our rural lifestyles.

Bob Forde reviewed the summary handout, and noted he was alarmed by some of the terminology used, like “metering and measuring water use” that only Ecology can approve.  He said he’s been watching the advance of regulation and over-regulation.  The Washington State Constitution talks about “fundamental” rights of individual citizens; the water belongs to “us” to use and appropriate.  He read Article I, Section I of the Washington State Constitution.  “Nowhere in this Summary does it reflect a protection of individual liberty,” he said.

Shelley Taylor said we have a case of “fix-it-itus”.  She warned the county commissioners that they need to consider the “unintended consequences” of the actions of Ecology.

Dick Pilling read a letter on behalf of the Port Angeles Business Association (PABA) which has over 100 members.  He also read one that he himself had written as an individual citizen.  All were strongly opposed to the instream flow rule.

Harry Bell has been involved with the timber industry for many years, and said he is concerned about the lack of “good science”.  All streams have been impacted, he said, by log removal; now the rivers and streams are wider and more shallow.  He recommended the commissioners read “King of Fish” by David Montgomery (2003), who writes about “the plight of salmon and their spirituality”.  We need small dams to capture water in winter and release it in the summer, Bell stated.

Gary Smith, owner of a dairy farm on Schmuck Road, said he is a “contrarian” to all the others who have spoken so far.  He talked about the Dungeness Irrigators, and recommended a MOA (Memorandum of Agreement) be signed between the County Commissioners and Ecology “before” the “Rule” is implemented.  He is concerned about the cost of the overall program. He referred to a letter listing concerns and signed by local irrigators.

Marguerite Glover came forward with plenty of documentation to support her testimony. She has been involved with the water meetings since the 1980s.  She said many details have not yet been worked out...the reason the County Commissioners accepted the earlier plan was to keep grant funding in place. (Read her letter here.) 
Richard Jeppson said he concurs with the previous speakers.  “You’re privatizing a public resource,” he said.

Christina Nelson Gross said she agrees with what everyone against the plan has said.

Justin Wilson signed up to speak but decided not to do so.

Carol Johnson, executive director for NOTAC (North Olympic Timber Action Committee) said her organization is concerned about the DOE rules that will be applied to other watersheds.  “Forestry supports good science,” she said.  She pointed out that there are studies that run contrary to what the DOE has promoted, including the US Department of Agriculture - Pacific NW Research Station study (12/09) which explored connections, and found that the “shape of a watershed” dictates the flows.  DOE should use some of this information, she said - and added she would get a copy to the County Commissioners.

Dave LeRoux said there is nothing he likes about the Rule.  He said it is not helping farmland at all, and that DOE hasn’t considered the impact of drilling into the 3rd aquifer.  “Details are lacking,” he said.  “Where is the water coming from and what will it cost?”  The DOE Rule helps to hasten the demise of farmland, he said.  “The Rule is not ready for ‘prime time’”, he added.

Faleana Wech represents the North Peninsula Builders Association with some 200 members.  The organization has many concerns, she said.

Craig Ritchie, attorney for the City of Sequim, stated he has concerns about the Rule.

Pamela Cameron, a Sequim native, told about her dad, who was a county commissioner.  She remembers how gravel was taken from the Dungeness River and yet there was no sand buildup.  She referred to the help of putting in dikes.  “We used to keep ditches flowing all year round,” remembered Cameron.  She supported testimony by Marguerite Glover and LeRoux.  She also referred to piping of ditches.  “the water table used to be high,” said Cameron. She remembered farms on the Sequim Dungeness prairie.  “There were dairy farm sprinklers going in the summer and berries and crops here, in the past,” she said.  She warned there could be no farms, no crops, and no gardens here in the future.  She commented, “only the rich would be living in the Sequim Valley.”

Shirley Nixon, calling herself  a water resource lawyer and water advocate, said,  “I would not like the county to stand in the way of the Rule,” she said.  “The process needs to start...put faith in your staff and the stakeholders...Please don’t get in the way of the Rule.” She said what ecology is trying to do is like in Kittitas County.  Nixon remarked,” there will be litigation between neighbors if we have no rules.  She said, “there is misunderstanding of water law and property rights.” She continued, “water belongs to the public.”

Karl Spees, president of Citizens Alliance for Property Rights (CAPR-13), quoted Article I, Section 1 of the State Constitution (link).  The Instream Rule is part of a much bigger problem - it’s taking our public/private rights.  He urged the County Commissioners to reject it.

RW Robinson related his long history and spoke against the Rule.

Sue Forde urged the commissioners to stand against the Rule, and the unelected unaccountable bureaucracy that Ecology represents.  She also spoke against the “process” that has been used for the meeting - utilizing the “consensus process with predetermined outcomes” (See comments here)

Norma Turner talked about property rights, and said there should be “property responsibility.”  She said the recall of the County Commissioners was because they dissolved the planning commission.

Paul McHugh said that approximately 70% of the parcels in Clallam County belong to people who “live” here.  With a loss of water in the first aquifer because of regulations and tightening the ditches is harming property owners.  The idea that I couldn’t wash my car, irrigate my fruit tree  is a huge impact on our rural lifestyle, he said.  County regulations require that wells be drilled to the 3rd aquifer, many of which are artesian and means that a lot of pressure and water is moving down there.  They need to take another look at that.

Commissioner Jim McEntire thanked everyone who testified, and discussed the next steps to be taken.  He suggested they remand the comments to staff, and then have staff present a compilation of the questions and comments to present as a draft of points for more full treatment, which, once reviewed by the Board of County Commissioners, would be forwarded to the Department of Ecology.  It was agreed that the report would be given at next week’s work session (Monday, Feb. 13), and covered in the regular meeting on Feb. 14.

Comments will be accepted from the public until Friday, Feb. 10th by the Board of County Commissioners.  Comments will be accepted by the Department of Ecology until Feb. 17th.