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DOE’s water plan ‘regulatory taking’? Hydroleogist speaks out about DOE’s actions

Alabama says “stop” the UN-driven property confiscation

 

from Rene Holladay

Posted 8/17/2012

I [Rene Holladay] think the info is quite important, as the concept about DoE’s [Washington State Department of Ecology] ability to take people’s property, which is happening all over the USA, is not actually even legal, yet only one state out of all 50 has a specific law to stop them in their tracks…… [The following is a letter Holladay wrote to her county commissioners in Spokane County, WA, and below that, discussion by a hydroleogist you’ll want to read]

 

Hello Commissioners,

Since we recently had the DoE in a meeting on local water issues, I thought I would forward this email I received from a good friend of mine who is a licensed hydrogeologist and geophysicist who has done major water related projects all over the globe.  We are very fortunate to have him here in our state, and he is trying to help landowners fight back against alot of bad practices the DoE is engaging in over the past couple years.  He frequently talks with the public and relays very important information that people just wouldn’t know without the help of an expert like him.  He is an expert in this field with excellant morals and ethics, and therefore is trying to help landowners.  In my opinion we certainly need his help.

I described the recent meeting we had with the DoE and below is his response about it.  Since I find his info very helpful, I am passing it on to the three of you as well- maybe you could use his info as well.  I am also sending this message to Shelly Short and Matt Shea so that they are also in the loop.

Since I’m writing to all of you, I also wanted you to know that the way that the DoE harms the landowners the most is with their regulations resulting in “Regulatory Taking”.  This is what they propose most often with asking farmers to permanently fence off their land 35′ beyond the highest watermark.  What they are asking with that is unconstitutional and I don’t know if you were aware of that or not?  They only get people to comply with that because of their immense intimidation tactics.

Regulatory Taking is unconstitutional because it does not follow “Due Process” of law.  This is what they tried to do to me and my family on our farm, and I told them that I absolutely would not comply with any of what they were asking, because they simply have no legal right, and that I would wait for a court order before I complied with such a demand, thus trying to hold them to Due Process.  But the agent just laughed at me and said “That is NOT the way we work!”  I asked him what he meant, and that is when he replied that “We will just fine you $10,000 per day until the fines exceed the value of your property, and then we’ll have you removed by the Sheriff!”

According to the definition of Private Property Rights by State Supreme Court Justice Richard B. Sanders, what they are doing is illegal.  This property rights definition can be found in my book,  “The Perils of Sustainable Development”:

 

“PROPERTY RIGHTS DEFINED:

In a “Fifth Amendment” treatise by State Supreme Court Justice Richard B. Sanders (12/10/97), he writes:

“Property “is defined by (Washington) state law. Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972). Our state, and most other states, define property in an extremely broad sense.”

“Property in a thing consists not merely in its ownership and possession, but in the unrestricted right of use, enjoyment, and disposal. Anything which destroys any of the elements of property, to that extent, destroys the property itself. The substantial value of property lies in its use. If the right of use be denied, the value of the property is annihilated and ownership is rendered a barren right.”

Ackerman v. Port of Seattle, 55 Wn.2d 400, 409, 348 P.2d 664 (1960) (quoting from Spann v. City of Dallas, 111 Tex. 350, 355, 235 S.W. 513, 19 A.L.R. 1387 (1921)).

And further, Justice Sanders states:

“While it is up to each state to define property for itself, the right to use one’s property has been universally understood to be a fundamental attribute of real property ownership. Compare Eaton v. Boston, C. and M.R.R., 51 N.H. 504, 511-512 (1872) (“the 111 framers of the Constitution intended to protect property rights which are worth protecting; not mere empty titles . . . among those elements is, fundamentally, the right of use . . . “) and Lord Coke: “to deprive one of the use of his land is depriving him of his land. What is the land but the profits thereof?” See also John M. Groen and Richard M. Stephens, Takings Law, Lucas, and the Growth Management Act, 16 U. Puget Sound L. Rev. 1259, at 1266, 1295 (Spring 1993).”

 

The website for the National Association of Rural Landowners goes on to state their position so well that I wanted to include this comment as well:

 

“Even a layman can understand that when “use” is severely restricted or taken, ownership becomes a barren right. If property ownership is a “barren” right, then private citizens have no right to own property. If the private citizen has no right to own property, then it follows that Government “owns” all property. Many in government and the environmental movement actually believe this and would like to see this to be the final outcome of private property in America today, the Constitution be damned.”

 

So to add one last thing to this subject, the State of Alabama recently passed a law to get the UN related property confiscating to stop.  They realized the DoE and EPA are sidestepping the authority of law through these “Regulatory Taking” cases, and they passed a law stating that all property rights issues MUST follow “Due Process”.  This simple action effectively eliminated UN driven property confiscation, and the Bill directly accuses the UN of being the perpetrator.  Every time the DoE tells a farmer to move back 30′ from the highest watermark, they are refusing to follow due process.

I am starting a movement this fall across the state to have all the active people I know in the State talk to their Reps about either supporting or authoring a copy of Alabama’s Bill 477.  I think that with the prospect of a new Governor in 2013, and the idea of so many people petitioning their Reps on the West side of the State, if we could get the whole Republican side behind it, there would only have to be another what.. 5 Democrat Reps support it in order to pass it in the House.  Of course new elections are on the way, so the numbers may be different at that point, but I believe with an active state-wide group of people it can be done.  I believe that WA State seriously needs to copy Alabama’s actions.  What one state can do, another state can do- wouldn’t you agree?  I’d like to encourage all of you to view Alabama’s Bill 477, and here is the link for that Bill:

 

http://legiscan.com/gaits/text/645326

 

Below is the Hydrogeologist’s reply email about the meeting with the DoE.

 

Sincerely,

Rene’ Holaday

Author of “The Perils of Sustainable Development”  – available online at Amazon.com

—————————————

—–Forwarded Message—– From: Steven Neugebauer Sent: Aug 6, 2012 8:21 AM To: ‘Appy Holaday’s Sport Horses’ Subject: RE: Summary of Spokane Water Availability Advisory Group Meeting

 

Thanks René,

 

Ecology rarely if ever asks permission and they know that if they stay waterward of the ordinary high water mark they are technically in “waters of the State”, so my guess is that they probably already collected water samples.  Regardless, we have yet to see Ecology actually create a sampling plan and a Quality Assurance Project Plan that even comes close to the USEPA requirements nor have we seen Ecology (or for that matter, the USEPA) conduct truly scientific sampling activities that consider actual sources, fate and transport, and risk based assessments.

 

These sampling activities are seldom (if ever) designed by a licensed geologist or specialty geologist and the Ecology staff who conduct the sampling are agenda driven; choosing to ignore the obvious (such as the most likely sources of many of the potential “contaminants of concern” (COCs).  Phosphorous is an element that was discovered in urine.  Soluble forms are typically found in all animal waste and in decaying plant litter (this element is vital to all living things).  Dead and decaying animals and plants also release soluble phosphorous (and nitrogen, which is also found in animal wastes).  Also the bioturbation zone in soils (these are the weathered and altered sediments at the surface and typically to 30 inches below the surface), where plant roots, insects, burrowing animals, and areas where animal droppings and urine has been deposited.

 

However, a major source of phosphorous in water is fish and other aquatic animals and other water dependent (everything is technically water dependent) animals such as water fowl) animals.  This includes nitrogen and of course coliform bacteria (which can be genetically tested to determine where the coliform bacteria came from, but we have never seen Ecology do this), because the primary source is from animal wastes.  However, dead animals and vegetation can also raise nitrogen and phosphorus.

 

Phosphorous is a unique element and not all forms will cause algae blooms and in fast moving rivers, it is very unlikely this will happen.  Even lakes that become eutrophic (high in nutrients) often become this way because of the high amounts of vegetation and other sources of organic compounds (the process of turning a shallow pond into a bog is a natural process that is mainly due to large accumulations of vegetation that provides the organic material), such as wildlife, including fish, amphibians, birds, and mammals (such as beavers, who product tremendous amounts of nutrients in their ponds).

 

Regardless, this has been Ecology’s tried and true method of placing restrictions on Waters of the State (TMDLs) even when their sampling and methodologies used are completely invalid (they have also invented unorthodox statistical analysis that ignores standard deviations up to orders of magnitude (we have one site where they had a variance of 16 times and they believed this correlated perfectly).  Ecology has ignored the federal code for years when it comes to agricultural drainage and irrigation return flows and preys on those who do not know their rights and what the codes actually say.  However, the agency believes its codes trump the federal codes because the agency’s standards are more strict than the federal code, without really knowing why the congress exempted agricultural drainage and irrigation return flows in 1977 (this was done on purposes and was one of the reasons for the 1977 amendments, because the CWA was destroying agriculture in the United States).

 

Keep up the fight and think about creating your own CAPR chapter in Steven’s County.  The Pend Oreille County chapter (newly formed) has been very active since it was formed and was able to change the minds of the commissioners and is helping the commissioners fight Ecology and in some cases municipal staff to protect the citizen’s rights!

 

Cheers!

Steve

 

Steve Neugebauer

SNR Company

Principal Hydrogeologist

15211 3rd Place NE

Duvall, WA  98019

425-788-3015

425-788-6873 (FAX)

206-291-5556 (CELL)

http:\\www.snrcompany.com

 

 

Subject: RE: Summary of Spokane Water Availability Advisory Group Meeting

 

It is clear that the “facilitator” is doing her job as an expert in the Delphi approach and that no logic, reason, or science will sway this.  I still do not know how she is getting around the geologist licensing codes or why they believe there is a ground water shortage.  As I have discussed, most wells are not built to last (they are cheaply built) in Washington State and are often completed in the shallowest aquifer that provides water (in some cases this may not be ground water).  Also many wells are completed in fractured bedrock or “decomposed” granite aquifers that have very different aquifer characteristics than the primary sedimentary aquifers do.

 

In reality, ALL wells require maintenance over time and if this is not done, yields will drop.  This has nothing to do with ground water availability, it has everything to do with well efficiency.  Biofouling, migrating fine material, and “silting” are just a few of the maintenance issues that need to be addressed.  Also, fractured bedrock aquifers do not have the storage capacity or hydraulic conductivity of sedimentary aquifers and are susceptible to significant seasonal piezometric surface elevation (ground water levels) fluctuations.  There are a lot of reasons for this, however, these wells almost always produce plenty of water during the wet season and if the property owner really has large demands for water during the summer, they simply need to store some of the abundant ground water from the wet months.  This can be as simple digging a hole in the ground and lining it with Bentonite ( a mini reservoir), or by installing tanks, or using other methods for storing the water.

 

Also, development permits should not be tied to any standard for available potable water because this could be a major problem if Ecology does what I think they will do, begin closing different ground water “basins” to new water rights (and may do what they did in Kittitas County by revoking some of the existing water rights).  There are still exemptions on the books for wells that irrigate up to a ½ acre of lawns and provide water for livestock.  However, if the development permits are tied to water ground water availability the land will become useless if water rights are not granted and this will be catastrophic for everyone, including the municipalities.

 

It should be up to the property owner to determine what is sufficient for their ground water needs and the property owner needs to understand that in some areas, the cost of obtaining the amount of ground water they want will be more than it will in other areas (drilling costs).  However, by linking the requirements for minimum amounts of ground water to the ability to develop a property, the municipalities will essentially be “taking” the property and it makes it real easy for Ecology to decimate an entire basin in one swoop when it ceases issuing water rights.

 

As we have discussed in our workshops many times, ANYONE who is creating public policy, creating laws, or otherwise affecting citizen’s use of their property MUST read the AG’s opinion on unconstitutional takings (I have attached a copy) and be familiar with what can constitute a taking.  This panel is essentially creating the environment for unconstitutional takings and abuse of the police power (you cannot protect people from themselves with the police power).

 

Regardless, the lack of science and the lack of any evidence that there is a major problem with the amount of available ground water or “dry” wells, especially when the reason the well is “dry” or has lower yields is simply because it has not been maintained or is reaching the end of its lifespan, simply because of the way these wells are constructed.  There are relatively inexpensive ways to guarantee you will have a well that will require minimal maintenance and will have a very long life, however, it is more expensive (but much less expensive in the long run) and it seems that many well drillers are not familiar with these methods, although all should know that sometimes drilling deeper is an option that will ensure the well will not be subject to seasonal variations in ground water recharge (piezometric or potentiometric ground water elevations).  However, for many people in rural areas, especially those where the majority of the development is for “vacation homes”, the existing well types will last the lifetime of the structures on the property simply because there is not a high demand on the well.

 

Regardless, I understand your frustration.  Having a “scientific” issues being spearheaded by a Delphi facilitator who has no license and no knowledge of ground water steering this group is frustrating, but it has worked for Ecology in the past and I think it is about to stop in the most appropriate place, northeastern Washington where the citizen’s do not see the world through rose colored glasses and know when their rights are being impacted in major ways.

 

Thanks for what you are doing and know that we are here to help you wherever we can!

 

Cheers!

 

Steve

 

Steve Neugebauer

SNR Company

Principal Hydrogeologist

15211 3rd Place NE

Duvall, WA  98019

425-788-3015

425-788-6873 (FAX)

206-291-5556 (CELL)

http:\\www.snrcompany.com

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