Talking points on DOE’s hearing for metered wells

9/14/01

Martha Ireland's column in the Friday PDN covers some interesting points about the Washington State Department of Ecology's (DOE) public hearings, scheduled for Sept. 17 in Sequim, WA at the Carrie Blake Park beginning at 7 p.m.  She said she called Jeff Marti, lead drafter of the proposed new rules, and "Environmental Specialist".  Regarding the metering of private wells, he stated that they can't do it at this time because there aren't enough personnel.  She quoted him as saying "Practically speaking, we can't do it - we don't have the resources." (Yet!)

Marti (according to Martha), went on to say that Ecology would like to meter your wells; they simply don't have the resources to do so.

Following are some excerpts from various documents which can be found at the  DOE's website.  We've commented on the statements with italicized remarks, so you can know which is written in their documents, and which are our comments.

Bear in mind that rural residential wells typically account for less than 1 percent of water use.  Marti said that the lawsuit brought by American Rivers required Ecology to monitor 80 percent of our water use.

“The intent of this proposal is to establish requirements for the measurement of water that is diverted or withdrawn from surface and ground water.  The implementation of these requirements will provide information that is useful in evaluating whether such diversions or withdrawals are in compliance with water rights…[those] that are occurring in excess of authorized water rights, and further, to the extent that such practices are curtailed, decreases in water use would make more water available for aquatic habitat. 

“Similarly, information regarding water use may prove useful in rendering more informed permitting decisions and identifying opportunities for more efficient water use, better assuring the preservation of instream flows necessary for aquatic habitat.”[1]

More “efficient” water use?  Preservation of instream flows necessary for ‘aquatic habitat’?

“Another potential consequence of the measurement of water use is that water users may feel compelled to maximize their water use such that the quantity equals the amount originally specified by a water right permit, certificate or claim.  This is because a user may fear that he or she will relinquish the right to divert water that is not actually put to beneficial use.

“The measurement of water use and the reporting of water use data to the state may heighten this concern.  However, an important element of beneficial use is that the water use must be reasonable and not wasteful.  Diverting or withdrawing a certain quantity of water does not give the appropriator a legal right to that quantity if it exceeds what is reasonable for a specified use.”

Here, the unelected agency decides what is “reasonable” and what is “not wasteful.”  It’s no wonder people are in “fear” about this situation – in the past, people have been responsible with the use of their water; why should this change now?  With the threat of “compliance”, possible fines, etc. hanging over their heads, there is probable cause for real concern.

The reason we need more instream flows, they argue, is for the endangered fish. 

1. It becomes “necessary” to “manage” our state’s water resources so as to “insure that those entitled” to make beneficial use of water neither “waste” water in exercising their rights now use waters by withdrawal or diversion thereof in amounts in excess to that which they are “entitled.” [2]
2. One of the “tolls” of water management vested in the department of ecology is the “power” to require that “those diverting and/or withdrawing waters of the state, both surface and ground, provide a measuring device so as to provide for accurate measurement of waters so utilized…a satisfactory ‘water management program’ can be carried out “only” if surface and ground water withdrawals “are closely monitored”….[3]

1. It is impossible to “manage” water and resources; only “people” can be managed.
2. The “state” is the overseer as to how much water we use, and whether we are “wasting” it.  This is a SUBJECTIVE decision – who makes the decision as to what “wastefulness” is.  How can an unelected agency be controlled so that it doesn’t exceed its authority – as broad as that authority is by way of the words – and choose which individuals it will be “kind” to, and which ones will suffer their “wrath.”
3. Words mean things:  “Those diverting and/or withdrawing waters of the state, both surface and ground” refers to any and all individuals, corporations, etc. that use any kind of water.  This language does not say that the above is “limited” larger water users – it talks about everyone in the state!

4. Sohr emphasized that “currently” the Department of Ecology has no “intention” of “requiring people with small, individual water wells to measure their use.[4]

5. Again, Words Mean Things!  The word “currently” means at the present time, with the connotation of change later on. When taken in context, it means that although the DOE might not “intend” to meter individual wells now, that position can change at any time in the future.

6. Approximately 900 major water users in the 16 watershed areas of the state that have limited amounts of available water and streams with fish at risk of becoming extinct need to measure their water use by Dec. 2002.[5]

7. Let’s look at this statement.  Limited amounts of available water?  This is Washington, with one of the greatest rainfalls in the entire United States!  Streams with “fish at risk of becoming extinct”?  How can it be determined that fish are at risk of becoming extinct?  “Best available science” is quite often “junk science” in these issues.  A recent example of this is the case of Alsea Valley Alliance v. Daley, where the Oregon Court ruled that federal bureaucrats were wrong to list certain “wild coho Oregon salmon as "threatened" under the Endangered Species Act, when the bureaucrats didn't give the same protected status to other salmon that are similar in every way except that they were spawned in hatcheries.  As the court put it, the regulators had created "the unusual circumstance of two genetically identical coho salmon swimming side-by-side in the same stream, but only one receives ESA protection while the other does not."

8. To focus on the arbitrary and illogical ways that the Endangered Species Act is often implemented.  One result of the Pacific Legal Foundation’s (PLF) win - one hopes - might be more momentum for reforming the ESA, a poorly crafted law that gives bureaucrats too much discretion to interfere with property rights and trample on people's livelihoods.
   
   The deceptive games that regulators play were highlighted in the case.  As PLF attorney Russ Brooks noted:  "If the thousands of hatchery-spawned coho had been counted originally, their significant numbers would have called into question the need for listing ["wild"] Oregon coho as a 'threatened species' in the first place."
   
   PLF argued that regulators had relied on "politicized" or "junk science" to list the "wild" coho salmon.  Oregon officials, under the direction of federal bureaucrats, had systematically slaughtered thousands of hatchery-spawned salmon and millions of their eggs in the Alsea River basin between 1997 and 1999, claiming they were a threat to the genetic purity of so-called "wild" salmon - even though the fish were genetically alike.

By December 31, 2001, complete “rulemaking” on water measuring rules are to be in place.  By June 30l 2002, the DOE will issue “measurement orders” to 25 percent of the largest holds of claims, permits and certificates in the 16 critical watersheds.  (Clallam County is one of these.)[6]

According to “Measuring Water Use”, “source metering” involves the “installation of gauges or other measurement devices where water is withdrawn from the ground or diverted from surface water to determine how much water is being used.”  This statement does not limit from where the water will be “measured” – it is an all-encompassing statement.

It’s all about the “impact” on “fish stock”.  Fish have become more important that citizens.[7]

The statement is made that the 1969 measuring rule is “outdated.”  (Chapter 508-64 WAC).  The new proposed rules will include:

1. Who will meter and when it is required;
2. Specific data collection and reporting requirements.
3. Requirements for both open channel and pipe diversions are included.  (Open channels by definition could include ditches, streams, runoffs, etc.)
4. Performance of the meter.  Who pays for this? 

Does this sound like America, the home of the free?  Why does an unelected agency have such control over Americans – all in the name of “saving the fish”?  How much will this cost Americans in terms of lost freedom, costs of building metering facilities, costs of monitoring, costs of paperwork, and loss of control over their water usage?

Will the same thing happen here as happened in Klamath Falls?  There, water was cut off from the farmers so the “endangered sucker fish” could have it.  What about the rights under the US and State Constitutions of the PEOPLE?

The rules keep changing – and never for the better in the interest of freedom for the people.  In the past couple of years, DOE has been requiring measuring devices on “all new water rights for surface and ground water withdrawals, as well as on changes, transfers and enforcement actions.”[8]  Does this sound like your well won’t be metered?

Let’s take a look at the “Regulatory Fairness Act Compliance Document”.  It states that the proposed rule “affect all water users (present and future) who fall within the regulated population.[9]  Further, the stated impacts will be harder on small businesses, according to the report.

Samples of the private sector potentially regulated under this proposal include:

            Agriculture (irrigation, stock watering, etc.)

Construction and property development

Food processing

Lumber and wood products

Pulp, paper and paper products

Chemicals

Stone, clay, and glass, and concrete products[10]

The cost to implement the rules, handle the additional paperwork, hire more enforcement officers for the DOE, etc., will amount to untold amounts of money that are passed on to the taxpayers in the way of increased cost.

The Environment Checklist which is required by the State Environmental Policy Act (SEPA) is revealing. 

Here are some of the answers given by DOE to questions posed on the SEPA form:

1.      “To comply with these requirements, individuals may be required to construct and install water measurement facilities that will require them to undertake activities (e.g. dredging, filling, grading and excavation) that cause direct environmental impacts.

2.      What happens when an individual is required to comply with DOE’s requirements, and can’t comply with the requirements of the Critical Areas Code, for example?  Will they lose the use of their property, yet still have to pay taxes on it?  Will they become unable to use their water?  What are the costs to the individual for “compliance”?

3.      …Individuals required to comply with this rule may be required to engage in activities that may cause erosion.   Measures to control and reduce erosion will need to be site-specific and are likely to be imposed if the activity requires the proponent to obtain a state or local permit, eg. Hydraulic Approval Permit, Section 404 Dredge and Fill Permit, Section 401 Water Quality Certification, Shoreline Permit.)”

4.      More permits.  More money.  More control by government over your property.  Where does it end??

5.      “Because this rule applies to the entire state…most directly affected by the rule proposal will be the approximately 7,000 water right applications that are pending before the department.  Approved applications will be subject to the measurement and reporting requirements specified in the proposed rule.”

6.      “The proposed rule is a rule of general applicability that may affect anyone who diverts surface or groundwater in Washington.”

7.      That means “ANYONE” – not just the ones they “say” are going to have to comply now.  Watch out, folks, it’s on its way!

8.      “The proposal will be relevant to “all public surface and groundwater bodies in the state.”

9.      Note the word “ALL”.  That means, “ALL”!

10.  “…individuals required to comply with this rule may be required to install concrete or metal structures to control and measure the flow of diverted water, to enclose and shelter measurement devices.”

11.  How much will this cost individuals property owners?  Not only are some going to be required to install meters, but also the shelters for the meters – costing possibly thousands of dollars.

12.  “There are more than 15 million acres in Washington state used for agriculture and agriculture comprises the majority of water use in the state.”

13.  This statement is false.  If they said the majority of water use by humans, they would be more accurate.  The truth is that humans use only 1% of the total water in the state of Washington!

A look at the proposed rules themselves:

To whom does this rule apply?  To the owner or owners of ANY water diversion and to the department (of ecology).

ANY water diversion is quite clear. This would include ditches, flumes, etc. owned by ANYONE.