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WA State Ecology Meeting in Skagit County – Discussion of the “Instream Flow Rule” that could Damage Rural Whatcom County, too!

Received this email tonight and wanted to share it as widely as possible.  Please share it and let others know that the Washington State Department of Ecology will hold an open, public meeting to discuss the Skagit Valley Instream Flow Ruling.  There will be valuable information for anyone who cares to learn and share what will be the outcome of this ruling if the people do not rise up and make their voices heard.  This is likely going to be the most important action taken either for or against rural life in Washington State, in our lifetime.

UPDATE: The Bellingham Herald’s Ralph Schwartz has put the exempt well lawsuit on his radar and Jean Melious’ s blog “Get Whatcom Planning,” also addresses the issue from the perspective of the Futurwise litigants.

Schwartz Article Futurewise Response

Currently the State of Washington has lived under the exempt well law whereby you are entitled to draw water, but if the Department of Ecology successfully changes the interpretation of this law to force property owners to prove that drawing water from a well does not potentially affect the level of instream water flows to rivers, creeks, streams, etc. in Washington State there action will forever change the landscape of rural counties.

Skagit Watershed Water Rights Work Session
Time: December 3rd, 2013 at 10:30am
Place: Skagit County Commissioners Hearing Room
1800 Continental Place, Mount Vernon

~ Kris Halterman

With all the recent changes to the Skagit Watershed and the requirements put upon farmers and rural landowners, I wanted make sure you all knew of an upcoming meeting. Please forward to everyone you know!

Ecology is coming to the Skagit County Commissioners hearing room at 1800 Continental Place in Mount Vernon on December 3rd at 10:30am to discuss the 2001 Instream Flow Rule (IFR). Please plan on attending this meeting to let Ecology know this rule and their implementation of it is unacceptable.

Nearly 500 homeowners are subject to Ecology figuring out a mitigation plan they have been unable to get done for years and 5,500 landowners now have to prove they are “helping” fish in order to use what has historically been known as a permit-exempt well. From personal experience, the onerous process requires costly mitigation that has virtually nothing to do with actually helping streamflows. Here are few points to remember:

1) The 1996 Memorandum of Agreement was to create a watershed master plan for all citizens of the Skagit Watershed. Instead, Ecology paved the way for a “study” that conveniently said there was no more water available in 2001 except for a few certain stakeholders water rights and that of fish.

a. Robert L. Wubbena, a consultant for shaping the 1996 MOA, provided additional testimony to Mentor Law Group on May 3, 2005 in a deposition:

Q: So your concern about the (2001) instream flow rule was that it didn’t make a provision for exempt wells above the pipeline crossing?
A: I think the Board of Ecology screwed up. That same issue is across the state right now. They have the same problem all across the state. And they
made a provision without addressing the intent of the (1996) MOA as well as the intent of the planning process.

2) Regarding that “study”, Ecology set the minimum instream flow level of the Skagit River at 10,000 cfs during the low-flow periods on the river. Keep in mind, of 2,900 tributaries they only determined instream flow levels for the Skagit River and 4 other tributaries that conveniently feed Skagit PUD’s reservoir (stakeholder). This leads to very presumptuous impact by permit-exempt wells. This hydro-graph below shows a 54-year period reflecting the actual median flow levels of the Skagit River versus the 10,000 cfs minimum instream flow level set. Clearly, the 10,000 cfs has not been historically met. Ecology granted water rights (instream flow level for fish) that has NEVER existed. This arbitrarily high flow level triggers landowners’ requirements to
mitigate for their use of water at a tremendous expense.
3) Permit-exempt well use was not included in the 2001 IFR. In an April 18th, 2007 Skagit Valley Herald article titled The ‘mystery’ of the missing water-rights clause, pp. A1, Ecology water resource manager Dan Swenson is interviewed to discuss the disappearance of water for exempt users. He explains how the verbiage got taken out of the 2001 IFR during a Feb. 17th, 2000 meeting, where the draft version had an exemption for wells, however, the stakeholders wanted the rule slimmed down to its essence and exempt wells dealt with later. Now we know how they are dealing with it later.
What sort of impact on the Skagit River’s habitat would landowners and farmers have if we they were included?
• 6,000 landowners (500 of which have already built)
• 500 gallon/day water use
• 50% septic recharge (75-85% is realistic)
• 100% hydraulic continuity to the Skagit River
Impact: 0.0023 feet of the Skagit River – The stakeholders that created this rule felt that 0.0023 feet was too much impairment for neighbors. In reality, the impact is much less because the water use is lower, septic recharge better, and hydraulic continuity substantially less. With responsible well use, there is only theoretical impairment. The habitat knows no difference. Ecology is allowing theoretical impairment to control this watershed. They have not proven anything. Demand that they prove there is an actual impairment!

Permit-exempt wells are requiring mitigation because Ecology chose not to address them in the 2001 IFR. Ever since, mitigation has been shielded as necessary for habitat protection because of theoretical impairments derived after the fact. It is a little too coincidental that the Skagit Watershed only had enough water for the stakeholders that shaped this rule. The 2001 IFR has put a great amount of economic uncertainty on the shoulders of our
community. Landowners and taxpayers of today should not have to bear the burden because past Ecology personnel “screwed up”. Please show up to let Ecology know this will no longer be tolerated.

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  1. Hi Kris,

    Thanks for calling attention to my blog, but it’s not accurate to say that I represent Futurewise or that my blog is a Futurewise response. I represent four local citizens. Futurewise has its own lawyer.

    Jean Melious

    • My apology if anyone reading my comments took it to mean that Jean Melious was representing “Futurewise.” My comment is that the four individuals Jean is representing are all members of Futurewise. The entity known as Futurewise would have no standing to put forth this petition to the Growth Management Hearings Board, but as a franchised organization Futurewise does orchestrate a lot of their members to put forth the actions that have damaged a lot of local farmers and rural property owner’s ability to use their property productively.

      • Hi Kris,

        That’s not accurate, either. I don’t know if any of the parties that I represent is a Futurewise member, but it’s really not relevant in any event. I was speaking for myself, not for Futurewise. .

        Futurewise can and does bring actions to move the County towards meeting its obligations under state law. But my clients and I have our own actions and interests. We are autonomous from Futurewise, and Futurewise is autonomous from us.

        And so the reference to “Futurewise’s response” remains simply wrong. As a journalist, I’m sure that you will want to correct that factual error.

        Thank you,
        Jean Melious

        • Thank you for the correction Jean. On the Dec. 14th program I asked questions about Futurwises’s standing to petition the GMHB. If Hirst, Brakke, Stalheim and Harris are not members of Futurewise I apologize for any error there. I know that Wendy Harris is heavily involved with Northwest Conservation Voters and each of the the individuals you’re representing are involved with many environmental groups. The point of the articles is more importantly to raise awareness of the case and the potential damage that the use of the “precautionary principle” whereby the property owner has to prove that they won’t negatively effect their watershed is probably impossible for them to do either financially or scientifically. Being guilty before having done the harm you are accused of isn’t allowed in a court of law that I am aware of and I do not see a difference here. Proving a double negative is a new hurdle that is not proven to be capable of doing.

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