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Well metering, “mitigation” payments to be presented by DOE; public hearing follows

Posted June 26, 2012


Sequim, WA – The Washington State Department of Ecology (DOE) will hold an open house and public hearing on June 28th  on the Dungeness Water Resources Management Program Rule.  The meeting will begin at 6 p.m. at the Sequim Community Church 950 5th Ave, Sequim, WA.  As is the usual practice of the State agency, there will be a “show and tell” presentation held first, with the hearing scheduled to take place immediately thereafter.  In past presentations of this sort, the presentation by an agency goes on so long and is so dry, that many people get discouraged  and tired, and leave before the public hearing session begins.  It seems to be a pre-planned method to avoid the agency’s representatives from hearing much from the public.


The following information was forwarded by Kaj Ahlburg:

This proposed rule will require well metering and mitigation payments in the thousands of dollars for all new construction east of Bagley Creek, as well as for those who already have wells but are not using them yet or who plan to change their water use in the future (e.g., commence watering a garden when they have not done so in the past).  And if you live outside this area it will likely still affect you.

    A. When the assessed property values of the thousands of “have not” properties, who are not grandfathered under the rule as to exempt well use, go down, with a constant total amount of property taxes being collected each year everyone else’s property taxes will have to increase.
    B. The rule for WRIA 18 East once adopted will most likely serve as a template for WRIA 18 West (Bagley Creek to Elwha River).
The time to make any changes to it is now.
     A few interesting points for those who want to comment on the rule.
    1. Under RCW 34.05.328 (1)(d) any rule is illegal if its benefits do not exceed its costs.  The cost benefit calculation for this rule only passes muster because Ecology assumes benefits of $20 million or more from avoiding litigation and $20.5 million from “protecting” past investment in salmon restoration if the rule is passed.  Without these assumptions, which seem to be taken out of thin air without any rational justification, costs exceed benefits and the rule collapses.  Ecology’s in-house economist on the WRIA 18 team Tryg Hoff on March 19, 2012 wrote in a memorandum to the rule making team: “This is a formal notification to the WRIA 18 rule writers that the evaluated Draft Rule presented on March 15 for the Dungeness watershed does not meet the legal requirements outline in RCW 34.05.328 (1)(d) of the Administrative Procedures Act.” Two days later he wrote to his supervisor: If you are directing me how the analysis should be written, I would have to say you are asking me to break the law. I intend to keep my professional integrity intact despite … ignoring the economic evidence and pressure to make me do unlawful things.”  Two days after that he was removed from the WRIA 18 rule making team.
    2. Commissioner McEntire has proposed a solution that, while not as good as abandoning the rule entirely (not very likely in the absence of a political change at the top of Ecology) would remove its most serious adverse effects on property owners and the local economy.  This would involve the State of Washington, with money appropriated through its capital budget, purchasing the mitigation rights required by the rule from existing senior water rights holders and not charging individual home owners for domestic or garden watering use.  This has been done in Skagit County.  Since the legislature is not in session now, the rule would have to incorporate a provision that it will be suspended if such funds are not appropriated during the 2013 legislative session and so spent.  Since under RCW 34.05.328 (1)(e) Ecology “must” adopt the least burdensome alternative, and this would be much less burdensome than what is currently proposed, arguably Ecology is required by law to consider this alternative.  I understand that Sen. Hargrove would be support such a solution.
    3. Other areas you may wish to comment on include:
    – For the impact of private permit-exempt wells we are only talking about 0.77 cfs out of a minimum instream flow of 180 cfs, a de minimis amount below the measurement error level.
    – Ecology bases the rule on studies that are over 20 years old and have not been updated to reflect current conditions.
    – Ecology claims that if you take water out of a 400 ft. deep well far from there river the is hydrologic continuity with the river and you diminish the amount of water in the river.  They have never produced solid science supporting this claim.
    – Some of the minimum flows Ecology requires historically have been met only 10% of the time, and some never.  Rather than protecting the water actually in the rivers, the rule attempts to restore the rivers to flow levels never actually achieved.
    I have obtained and reviewed over 1,700 pages of internal Ecology e-mails relating to the rule making, including those relating to Tryg Hoff’s removal from the team.  If anyone is enough of a glutton for punishment to want to take a look, let me know and I will provide you with access to them.
And from Roger Rheinheimer:
Check the Math!

Taking the above flow figures and converting it to gallons, population and number of residences. The minimum instream flow of 180 cfs converts to a daily water flow of 89,579,520 gallons. The generally accepted water usage per household is 300 gallons per day, and that figure assumes a household is comprised of four people. So to suck the Dungeness dry at its lowest flow, it would take 298,598 homes with a combined population of 1,194,392, roughly twice the population of Seattle proper. It would be interesting to compute the maximum population permitted under existing zoning laws in the area Ecology says will impact the river flow. I bet it is a very small fraction of any measurable impact: In other words, it is impossible!

This is clearly a solution desperately in need of a problem.

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