Washington Department of Ecology Disregards Legislative Intent in Nooksack Water Rule

The "Hirst Fix" law as passed the legislature and as effective on January 18, 2018 entitled "Water Availability" provides legislative intent to the Department of Ecology and counties within Water Resource Inventory Area in establishing water availability through in stream flow rules.  http://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/Session%20Laws/Senate/6091-S.SL.pdf?cite=2018%20c%201%20%C2%A7%20201

The law for Streamflow Restoration is codified in Chapter 90.94 https://app.leg.wa.gov/RCW/default.aspx?cite=90.94  Chapter 90.94.020 provides ecology the specific authority for rule making. Ecology must limit its discretion to meet the requirements as established by legisltive intent in 90.94.020.  Specifically, when drafting and amending rule making for the Instream Resources Protection Program - Nooksack Water Resource Inventory Area Rule, WAC 173-501, legislative intent as established in 90.94.020 establishes limitations on proposed rule making for the Nooksack In Stream Flow Rule.  https://app.leg.wa.gov/wac/default.aspx?cite=173-501

The current proposed rule amendment as presented by the Department of Ecology exceeds the legislative authority provided to the department in several key areas and must be corrected to align with legislative intent.  Those key areas are:

  • Gallons per day limitations which are less than the 3000 gallons per day per connection. 
  • Restrictions on out door water use which are not authorized by the legislature.
  • Drought curtailment is not authorized by the legislature for this rule.
  • Metering is not required or authorized by the legislature for this rule

May 10 2019

Whatcom Chapter, Citizens' Alliance for Property Rights

Department of Ecology (DoE) Water Resources Program

PO # 47600 Olympia WA 98504 - 7600

Attn: Annie Sawabini Re: DoE's April 8 2019 draft amendments to WAC 173-501, the Nooksack Rule....

On behalf of the board of directors and other members of the Whatcom Chapter, Citizens' Alliance for Property Rights (CAPR), please enter the following comments into the record.

Our organization has been directly involved on the Whatcom County WRIA 1 process and "Hirst" decision issues for several years; some members are active participants in the Planning Unit caucuses authorized by RCW 90.82. We've discussed the proposal's in the draft, and will focus on our priority goals, which are reasonable access to and limits on beneficial use of local public ground water resources for rural land owners for residential and agricultural use.

Our comments follow:

1. It's an important fact on this issue, here and elsewhere, that there is no quantitative data of any sort linking one, several, or hundreds, of Permit Exempt Wells (PEWs) to low stream flows in the dry season in any one drainage basin which adversely impact fish, water quality, and other valuable resources.

2. We are opposed to the new "conservation standard" rule, WAC 173-501 (5), ie the reduction of the daily water allowance from 3000 gallons per day (gpd), per RCW 90.94.020(5)(f)(ii), the 2018 "Streamflow Restoration" Act, for a home to 500 gpd for "indoor domestic use". As we said above, there is no "best available science" to support this drastic reduction. Also, this 500 gpd rule definitely discriminates against people who want to have a larger home than the typical 3-bedroom model, in order to accommodate their extended family. There are many recently formed households like this in rural Whatcom County, including many of one particular ethnic group.

3. This same new rule would also impose a much tighter limit on water for "outdoor domestic"use, such as lawn and garden watering, pools and ponds etc. The new limit would be an area not exceed 3630 sq ft, an area of 60 x 60 ft. This limit is substantially lower (its only 17%!) than the 0.5 acre (21,780 sf) allowed now by the 1945 Ground Water law: RCW 90.44.050 (b). It's obvious that many rural home sites have much larger lawn/garden/pond areas. Its also well known that many, perhaps most, rural residents do not water extensive lawn areas in the dry, summer season. We urge keeping the 3000 gpd allowed by current law, cited above.

4. New Rule WAC 173-501-065 (b) would drastically reduce the number of rural homes that can be served by a "group domestic" water system to 6. These privately owned "Group B" systems can use a Permit Exempt Well for up to 14 services, but Group A systems, 15 units and over, must have a water right. May 10 2019

Group Bs are required to provide storage if needed to keep daily withdrawals within the current 5000 gpd limit. Some are required to install meters per household. Outdoor water use can be limited if needed by system rules.

In many rural areas, here and elsewhere, due to county density/lot size restrictions and/or lack of suitable or feasible ground water or public water sources, Group B's are the only feasible source of potable water for rural residences. We don't see any public policy basis or issue in support of this new restriction. What is the problem driving this proposal?

5. New Rule WAC 173-501-065 (e) would allow DoE to require meters on all new exempt wells[in the future], "if more accurate water use data is needed for management of water resources in the area. As stated above, reliable quantitative data is not available now for such questions or analysis. Thus, there is no baseline data to justify meters.

This concludes our comments on key issues. We are also attaching a detailed analysis of the DoE draft "Rule Supporting Document, April 8 2019, on the subject rule draft. Please contact us if questions, comments.

/s/ Roger Almskaar, President, Whatcom Chapter; almskaarr@comcast.net; 360 739 1184 PO Box 30354, Bellingham WA 98228 Citizens' Alliance for Property Rights (CAPR)

For well-informed, in-depth, sourced analysis, see this link: https://proprights.org/blog/preliminary-review-doe-%E2%80%9Crule-supporting-doc%E2%80%9D-re-draft-%E2%80%9Cnooksack-rule%E2%80%9D-amendment-rcw-9094020-et




May 22, 2019