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Glover: Comments on instream flow and restoration – open letters to legislators

Posted 7/14/2012

From: Marguerite Glover

To: Senator Jim Hargrove

Representative Kevin Van De Wege

Representative Steve Tharinger

County Commissioner Jim McEntire

 

Dear Sirs:

 

I am sorry that, herein, I am not presenting any solutions. I do, however, strongly feel that the Department of Ecology was not forthcoming with all of the many plans, regulations, and enforcements, that our new Dungeness Water Management Rule will foment. It will be confusing and difficult for our County and City, to manage, and properly enforce. And, they will be bearing the brunt of citizens’ unhappiness. In the case of our City (Sequim), they didn’t even have a large role in the initial WRIA 18 process. But, now, more things (restoration, reserves) are being considered, that were never fleshed out, originally.
Many of us have been confused about why and how the Washington State Department of Ecology can now propose a two-pronged approach to their proposed Dungeness Water Management Rule. They are working to protect instream flows for the Dungeness mainstem, and for smaller tributaries and independent creeks/streams. They are also looking to restore habitat. Some of this may entail infusing those small creeks with recharge provided by Dungeness River water. This infusion could also provide a recharge for the reserves in the small stream sub-basins, as calculated by the Water Exchange. As more information comes out about what restoration plans could be, it is easily seen that the Dungeness Water Management Rule is more complicated and far-reaching tham citizens believed or understood. It would have been much better to provide all of the details of water transfers, change of use and place, mitigation, and how the Water Exchange will work, prior to the public hearing on the Rule, rather than afterward. Is using Dungeness River water to help small streams, in current water law? It has been given to McDonald, Matriotti, and Bell Creeks, at various times, through irrigation ditch/district conveyances. I believe that many questions remain unanswered. I also believe that Ecology will be making an attempt to let citizens know what will be happening. Previously, the communication and outreach was mostly to get all of us on board with their plans. Now, maybe it will be to let us know what their plans really are. I do know, and appreciate, that the Local Leaders Group tried to identify mitigation, recharge and restoration opportunities. But, this group did not include exempt well users. Most of the impact from the Rule is to exempt well users. They were not part of the discussion or process.

 

Much has been said and written about the Tribes’ ability to sue, if instream flows are not properly instituted, for protecting and enhancing fish runs. I found an old (2001) William and Mary Environmental Law and Policy Review treatise that spells out this ability pretty well. (William and Mary Environmental Law and Policy Review *). The article is full of evidence and court case cites. There are many alarming/enlightening statements. One of them is: “Essentially, the tribes’ treaty-reserved right to harvest fish is a property right that cannot be destroyed by either the government or private properties without compensation.”

 

And, of course, we have the Treaty Rights at Risk Initiative. Tribes say their treaty rights with the Unites States are at risk “because the region is losing habitat that salmon need to survive…their treaty rights won’t mean much if there’s no salmon to harvest; and they’re warning the federal government that they could resort to court action if more isn’t done.” (from a recent Seattle P-I article)

“Treaty Rights at Risk” is a white paper from the Treaty Indian Tribes in Western Washington. It was put out on July 14, 2011.

The Tribes maintain that habitat loss is outpacing the rate of restoration. They feel that NMFS has an overemphasis on reducing harvest, which impacts treaty rights, while ignoring science that says that “habitat loss and degradation account for an even greater take of salmon and orca.” Examples given of the federal government’s failure to protect tribes’ treaty-reserved rights, include: the U. S. Army Corps of Engineers’ permitting of dikes that salmon recovery actions seek to remove, and Washington state’s Shoreline Management Act permitting “shoreline development for single-family residences, including bulkheads and docks that degrade habitat.”  Here is the link to the “Treaty Rights at Risk” report: Treaty Rights at Risk **

 

While I don’t doubt that the Tribes have an ability to sue over water and fish, it seems to me that since private property owners with exempt wells also have a right to sue over water regulations, more of this discussion should have taken place, prior to putting out the Dungeness Water Management Rule, and prior to having the public hearing. Were the citizens aware of the impact of the Rule? And, were they aware of its two-pronged approach? I don’t think so.

 

Respectfully Submitted,

 

Marguerite Glover

Sequim WA 98382

marg@sequim.com

*

http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1217&context
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** http://nwifc.org/w/wp-content/uploads/downloads/2011/08/whitepaper628finalpdf.pdf

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