Rulemaking - Amendment to Chapter 173-501 WAC IRPP Nooksack WRIA 1 - Formal comment period

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Comment From: Dick Ewing

1/19/22 @ 2:05 AM

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Comment From: Representative Luanne Van Werven

1/24/20 @ 6:00 AM

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Comment From: Washington REALTORS (Bill Clarke)

1/17/20 @ 3:17 PM

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Comment From: Max Perry

1/17/20 @ 2:18 PM

The update of the Planning Unit should be used as a basis by the Department of Ecology for rule making for WRIA 1. It most broadly represents the will and determinations of the majority of Whatcom County water stakeholders. New exempt wells should b...↓

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Comment From: Kathy Sabel

1/17/20 @ 2:11 PM

I have been attending the local WRIA1 meetings and Whatcom County Council meetings for the last several years, not long after moving here. I also attended a state hearing in 2018 on the proposed ESSB6091 language. I heard many citizens testify how ...↓regulations in the past had hurt their families, and regulations that continue to be implemented with their concerns not listened to. I am not a Washington state pioneer family with knowledge of the history of the county, but have seen through these meetings there are many who have been involved for many years with great wisdom. It was disappointing that the local stakeholders could not reach agreement to prevent this WRIA1 watershed planning effort going to the state level for rulemaking. If local stakeholders were not able to reach agreement on 1% of the water usage in WRIA1, how will local stakeholders be able to reach agreement on the remaining 99% water usage? Will Watershed Planning now move to the State Level? Are non-governmental water users being relegated to second class citizens? It remains to be seen, especially now with the State interviewing groups for an evaluation determining which watershed will have their water rights adjudicated as a priority with the report due September 2020. Here are my comments which I appreciate Department of Ecology response to: 1) ESSB6091 did not alter the 1945 5,000 gallons/day allotment to permit-exempt wells; it established 3,000 gallons maximum annual average daily use. The new rule replaces the 5000 gallons with 500 gallons per day for domestic use. Rationale for this level of reduction is questionable. Some people may have owned land for some years and may have planned selling it for an investment now or for retirement. Does First in Time, First in Right apply to land ownership first in time, or does there have to be beneficial use? 2) Department of Ecology (DOE) needs to include language on providing compensation to landowners for lost value of the land due to reduced water withdrawals. 3) What is the impact of using the NEB Interim Guidance vs the Final NEB? 4) The rule is using water reduction numbers some of the Initiating Governments (IG) proposed during the WRIA1 process of reviewing ESSB6091 water limits and fees. Additionally, Department of Ecology had meetings with specific government groups during rulemaking. Please explain criteria used for evaluating government and non-government stakeholder input. 5) Per information provided by Vincent Buys, ESSB6091 author, livestock watering and outdoor 1/2 acre use for lawn and non-commercial garden should not be affected by the rule. Current language in the rule changes this. Please explain how Department of Ecology reconciles the law with this rule. 6) Early in the Planning Unit process for ESSB6091 one of the consultants explained how the 3000 gallons maximum annual average use was derived with data. Please include in the rule the methodology from the legislation that concluded 3000 gallons is the appropriate value for permit exempt wells. 7) Since no outreach was done to the specific landowners of WRIA1 affected by the rule, how does Department of Ecology justify not doing this? Targeted outreach to existing and forecasted new permit-exempt well owners is needed. Outreach is needed prior to the adopting the rule since the trigger for the reduced allowed water withdrawal of the proposed 500 gallons is only memorialized when a building permit is issued. 8) In order for existing and future new permit-exempt well landowners to know of water withdrawal limitations, all land titles should have possible limitations noted in the title once the rule is effective July 2020, not later with an issued building permit. By having the rule documented in the title effective the adopted rule date, those with 5000, 3000 or 500 gallons should have a clear understanding of the land's water use allowed, and so will the county assessor along with owners and buyers. Please explain how Department of Ecology will mandate this or a similar requirement. 9) What form will enforcement of well withdrawals take? Will there be penalties? Will all wells, not just permit-exempt wells, have withdrawals enforced? 10) Outdoor domestic water use is a new interpretation of the current law which allows � acre for non-commercial garden and lawn (livestock separate) outside the 5000/3000 gallon limits. What law is Department of Ecology using to be able to legally make this change? 11) During the WRIA1 ESSB6091 Planning Unit process experts explained any possible effects of groundwater withdrawals from permit-exempt wells cannot be differentiated from the allowed error margin of the water models. Please explain how Department of Ecology justified requiring offsets when the uncertainty percentage of the model is less than or equal to the water use of permit exempt wells. 12) Adding a .5 extra offset for uncertainty seems arbitrary. How was .5 determined as appropriate? 13) In RCW 90.94, (which points to RCW 19.27.97 water availability), permit-exempt wells drilled prior to January 19, 2018 (ESSB6091 effective date) which do not meet the requirements of Chapter 18.104 (Water Well Construction) are subject to the 3000 gallon reduction from 5000 gallons if for a new water use when getting a building permit in WRIA1. Cities and Counties have been given authority to implement this requirement for water availability as per RCW 90.94/ESSB6091, and Whatcom County has implemented it. RCW 90.94.020 states: "This section only applies to new domestic groundwater withdrawals exempt from permitting under RCW 90.44.050 in the following water resource inventory areas with instream flow rules adopted under chapters 90.22 and 90.54 RCW that do not explicitly regulate permit-exempt groundwater withdrawals: 1 (Nooksack);". The rule is missing supporting documentation on the number of existing permit exempt wells that will be reduced from 5000 to 500 gallons due to the existing water well's construction for "new domestic groundwater withdrawals". Only 31 wells were reported to Department of Ecology from 2018 to 2019, and of those new wells it is not known at this time if any of them had been existing permit exempt wells. The rule erroneously omits these law-defined existing permit exempt wells from the rule. The law included existing permit exempt wells in it and so must the rule to be in compliance with the law. The rule needs to research and provide estimates for how many existing permit exempt wells will be reduced from 5000 gallons to 500 gallons under the rule. Without that information, this rule has left out vital information on the impact of RCW 90.94 on allowed water usage by existing permit exempt wells and the effect on any needed offsets for forecasted new permit exempt wells water usage. 14) I've heard there is a WRIA1 pilot trying moving a surface water withdrawal to a groundwater withdrawal. If so, I would appreciate more information on this as it seems the rule is reducing groundwater use while other processes are looking at increasing groundwater use. Thank you for the opportunity to comment. Kathy Sabel

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Comment From: Molly Crocker

1/17/20 @ 12:26 PM

Please see attached document.

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Comment From: WDFW (Megan Kernan)

1/17/20 @ 11:46 AM

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Comment From: Alan Chapman

1/17/20 @ 8:34 AM

Memorandum To: Washington State Department of Ecology From: Alan Chapman Subject: Comments on Rulemaking - Amendment to Chapter 173-501 WAC IRPP Nooksack WRIA 1 Summary 1. The identification of a conservation standard of 500 gallons per day...↓ is a more effective way to estimate the potential offset for impacts of new domestic permit exempt wells than an annual average daily impact of 3000 gallons. 2. The provision for retiming instream flows under specific conditions provides a useful tool in meeting the requirements of ESSB 6091 3. There are other out of date issues that should have been addressed it the rule amendment. Several instream flow levels are based on gauging stations that no longer exist and might be significant gaps in issuing new permitted withdrawals. 4. The supporting documentation should indicate that the project list was developed by the WRIA 1 Planning Unit in the rush to update the plan through the local process and was not final or completely agreed upon. Grant project funding for consideration under the Stream Flow Restoration Act (Chapter 90.94) should be prioritized by the local Planning Unit and Watershed Management Board before consideration in the statewide funding prioritization. 5. The local watershed planning process should be encouraged to continue working diligently on developing a comprehensive plan to balance salmon recovery, instream flow and ecosystem benefits to meet the diverse needs of the local community. 6. The resolution of existing conflicts between land use and water availability could be effectively addressed through increased flexibility in implementation of current water law to meet locally agreed objectives. This could be done by moving away from a system of water rights permitting to locally proscribed water management. 7. More information on the relationship between ground water and instream flows is necessary to forge a community consensus and the development of a locally accepted instream flow rule with the priority to meet treaty reserved hunting and fishing rights that integrates salmon habitat conditions with water quality and quantity. General Discussion The Department was faced with a difficult task to revise WAC 173-501 to allow the requirement of Chapter 90.94 RCW to permit exempt domestic wells to meet local building code requirements for the issuance of new residential building permits in areas not served by water purveyors under conditions that met the concerns raised in the Supreme Court of Washington decision in Whatcom Cty. v. Hirst, 186 Wn.2d 648, 381 P.3d 1 (2016) about impacts on senior water rights and critical salmon habitat. The Department's task was further complicated because of requirements to offset impacts of these new permit exempt wells on instream flow requirements without clear information on the impact of pumping ground water on instream flows, the lack of clear prioritized goals for ecological benefits of instream flows in diverse sub basins with different instream flow and habitat characteristics, and the impact on Planning Unit functioning on the absence of three of the initiating governments. The identification of a conservation standard of 500 gallons per day estimated domestic indoor and outdoor consumptive water use based on information from a number of situations throughout the state made it possible to estimate the more likely impacts of new domestic permit exempt wells on instream flows and senior water rights than the annual daily consumptive use of 3000 gallons indicated in Chapter 90.94 RCW that needed to be offset to protect senior water right holders and ensure net ecological benefits. It is not a limit to be enforced, but the most likely actual consumptive use. Because the conservation standard is an estimate and uncertainties relative to the number of projected households, the number of residents per projected household and the actual withdrawals from new domestic permit exempt wells may affect the validity of these estimates, The actual values should be should be regularly checked and adjustments made in offset and net ecological benefits required for mitigation. It should be recognized that instream flow is an important ecological benefit for the watershed residents but the use of the land and withdrawal for local economic, social and physical wellbeing of residents for housing, food and fiber, enterprises providing employment and infrastructure impact the ecological benefits of stream flow requires a balance between human needs and natural processes that can only be achieved through local actions consistent with statewide objectives. Watershed planning under Chapter 90.94 RCW recognized the need to harmonize the needs of many segments of the local community to the benefit of all. The supporting documentation should reflect that although a plan was developed through the 90.84 process it relied heavily on monitoring and adaptive management of proposed actions to address specific issues related to meeting salmon recovery , water supply, and providing for an increasing human population. The Planning Unit under this process involving the initiating governments and caucuses representing a variety of local interests for land development, sustainable fisheries, water supply and environmental protection has not functioned well with the withdrawal of three of the initiating governments from the process. While there was general agreement of all parties that the RH2 estimates of consumptive use were acceptable for considering offsets, there was more a rush to identify projects that could offset this estimated projected use than a consensus on the projects that should be implemented to offset the impact of new domestic permit exempt wells. It would improve the supplementing documentation to indicate that the projects identified are representative of the type of projects that would offset the impact of new domestic permit exempt wells on senior water rights and net ecological benefits and that the priority of specific projects directed toward offsetting new domestic permit exempt wells submitted for funding provided for this purpose under Chapter 90.94 RCW should be determined by the agreement of the Planning Unit as it is currently implemented and the Watershed Management Board representing implementing governments.

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Comment From: Earthjustice (Amanda Goodin)

1/17/20 @ 8:29 AM

Please see Comments attached in PDF format (1 PDF document): "Final Comments Nooksack WRIA 1 - Earthjustice 2020.01.17" with Attachment: Informal Comments Letter submitted May 10, 2019

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Comment From: Misty Mountain Farms (Stephanie & Robert Vitali)

1/17/20 @ 8:06 AM

As a small family farm in the Mount Baker foothills, we have been supplying naturally grown produce (no pesticides) to people in this community for some years, including in Ferndale, where we have a loyal customer base at the weekly Ferndale Farmers ...↓

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Comment From: Various citizens by sign-on le... (Various Citizens)

1/17/20 @ 6:55 AM

Please see attached sign on letter from over 200 individuals. Thank you.

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Comment From: Shannon Moore

1/17/20 @ 6:32 AM

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Comment From: Nooksack Indian Tribe (Ross Cline, Sr. Ross Cline, Sr.)

1/17/20 @ 4:53 AM

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Comment From: Oliver Grah

1/17/20 @ 4:47 AM

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Comment From: Whatcom County Association of ... (R. Perry Eskridge)

1/17/20 @ 3:37 AM

This comment is provided on behalf of the over 830 members of the Whatcom County Association of REALTORS(R). This comment is in addition to the many comments provided by individual members. The text of the comment is included here while the "offici...↓al comment" on letterhead and signed by the Executive Officer/Gov't Affairs Dir. is in the PDF document attached. January 17, 2020 Annie Sawabini, Rulemaking Lead Department of Ecology P.O. Box 47600 Olympia, WA 98504-7600 RE: Proposed Nooksack River Instream Flow Rule Amendment – Water Resource Inventory Area 1 WSR 19-04-091; Chapter 173-501 Wash. Admin. Code Ms. Sawabini: On behalf of the over 830 members of the Whatcom County Association of REALTORS®, please consider the following comments on the above proposed rule amendment. It is the opinion of our members that this proposed rule is contrary to the spirit and intent of the Streamflow Restoration Act, that the rule will have devastating impacts on the rural lifestyle in Whatcom County, and that the evidence cited as support for this rule is erroneous. At the outset, it is instructive to recall that WRIA 1/Whatcom County was at the very center of the controversy that resulted in the Washington Supreme Court decision in Hirst v. Whatcom County. That case, at its essence, was a Growth Management Case that concluded counties were no longer able to rely on Department of Ecology for a determination that utilizing permit-exempt wells for rural development was appropriate; counties must now make a separate determination that an building permit utilizing an exempt well for potable water did not impair senior water rights or a protected water body. The impact of that decision, particularly in Whatcom County, was extensive and devastating. Families were suddenly homeless, projects in-process were scrambling for allowable water sources, and the Whatcom County Assessor was poised to reduce rural land values using a 90% market reduction factor. Overnight, rural households went from pursuing the American dream to living a Washington nightmare. After nearly fourteen months of laboring under a construction moratorium imposed by the Whatcom County Council, and with the assistance of our state legislative delegation and the excellent input from our State Association's water counsel, we celebrated the passage of Engrossed Substitute Senate Bill 6091, the legislation to be entitled the Streamflow Restoration Act. The prospect of local stakeholders debating and deciding on the appropriate use of local resources was a welcome challenge, one that many of us accepted eagerly. Unfortunately, after months of work, the Planning Unit did not successfully present a WRIA 1 Watershed Plan update to the County Council and the process shifted to Ecology. Metering: At the outset, the Association notes that Ecology's or Whatcom County Council's authority to meter wells is undisputed. While we understand that Ecology wanted to reassert its power to issue a metering order at any point, it seems unnecessary to raise a controversial topic in a rule amendment when Ecology does not appear ready to issue such an order. Including that language in this amendment only serves to fuel rhetoric and enflame passions. We would suggest removing that language as Ecology's authority to implement metering is without question and does not bear special mention in a rule specific to WRIA 1. Titles: It is interesting at the outset to note that Ecology extensively relies on the titles of Rev. Code Wash. § 90.94 as justification for a focus on stream flows and habitat restoration. Several times during the public hearing, staff would rely on the fact that the "crux of the statute" was to ensure that adequate stream flows are maintained balanced against development in rural areas. The original title of ESSB6091, however, was entitled "AN ACT Relating to ensuring that water is available to support development . . .." ESSB 6091, pg 2 (2018). There is no mention in the title about streamflow restoration or habitat restoration. That is not to say that those considerations are not important as they are clearly established in the section, but Ecology's focus in this rulemaking proceeding is clearly and overwhelmingly focused on streamflow restoration and habitat; water use by rural households is clearly a secondary consideration in this process and, as a result, leads to an absurd result. Domestic Use: A review of any legal authority involving rulemaking reveals one indisputable truth: words matter. Precision in language is the hallmark of a well drafted administrative rule. Similarly, administrative rules should seek to utilize the same language of an authorizing statute to ensure consistency and to avoid any implications that the agency may be exceeding any delegated legislative authority. This rule amendment does not meet this basic standard. The rule amendment relies heavily on the term "domestic" and creates two categories for regulation: "indoor domestic water use" and "outdoor domestic water use." This is a dichotomy that is not supported in the applicable statutes. Ecology's supporting document relies exclusively on a single Washington Supreme Court Case, Dept. of Ecology v. Cambell & Gwinn, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002), as justification for the expansive use of the term "domestic" in this rule amendment. Cambell, according to the court itself, "involves the scope of the exemption for "any withdrawal of public ground waters ... for single or group domestic uses in an amount not exceeding five thousand gallons a day." RCW 90.44.050." Id. at 9, 43 P.3d at 10 (emphasis added). The court, analyzing the number of residential connections available on a single permit-exempt well for domestic purposes, ultimately concluded that if more than a single residence connected, the total withdrawal by those homes for domestic purposes could not exceed the 5,000 gallon per day limit expressed in Rev. Code Wash. § 90.44.050. Id at 21, 43 P.3d at 15. What is interesting to note is that nowhere in Dept. of Ecology v. Campbell does the court discuss any other exemption within the exemption clause of Rev. Code of Wash. § 90.44.050. The most interesting aspect of Ecology's "Supporting Document" analysis of "domestic" is not the use of Dept. of Ecology v. Campbell, but the fact that Ecology even cites a subsequent case that confronted head-on the exemption clause of Rev. Code of Wash. § 90.44.050, but then completely ignores the implications of that Washington Supreme Court ruling. If that were not egregious enough, the Department also ignores guidance provided in a subsequent Attorney General's opinion on the matter that explicitly analyzed the various exemptions contained in the exemption clause of Rev. Code of Wash. § 90.44.050. Presentation of a legal analysis to the public that, at best, contains only one-half of an analysis of the relevant statutory and case law (no applicable policy documents are cited) under the guise of "harmonizing" is a disservice to the public subject to this law. Ecology has not harmonized anything, but instead has merely attempted to use various parts of Rev. Code of Wash. § 90.94 in an effort to make a new administrative definition of the term "domestic." This omission is even more egregious when one considers that Ecology, in its own supporting document, makes reference to various other WRIAs for guidance on the drafting of this rule. While the vast majority of those recent WRIA rulemaking proceedings do not address "domestic use" in any format, one WRIA does: Dungeness (WRIA 8) adopted in 2013. Ecology Supp. Doc., pg. 15-16. Ecology explicitly recognizes in its summary of that WRIA rule, "Domestic use is defined as indoor use only, with outdoor use separate." Id. The Dungeness rule was, perhaps, one of the most contentious and thoroughly examined rulemaking process in recent memory, a process in which our REALTOR® colleagues were intimately involved. Yet, Ecology ignores clear precedent in terms of distinctions between indoor and outdoor use in that rule, a rule citied as authority in another aspect of the immediate proceeding, and takes an entirely different tack by combing the separate uses. Again, this omission is beyond comprehension when the distinction between indoor and outdoor use is clearly expressed in the supporting document for WRIA 8. Regulation of public groundwater within Washington State is governed by Rev. Code Wash. §§ 90.44.020 et seq. The general rule is that any withdrawal of groundwater requires a permit with four express exceptions: 1) stock watering; 2) "the watering of a lawn or of a noncommercial garden not exceeding one-half acre in size;" 3) "single or group domestic uses in an amount not exceeding more than 5,000 gallons a day" or 4) industrial purposes not exceeding 5,000 gallons per day. Rev. Code Wash. § 90.44.050 (2018). The applicable clause in Rev. Code Wash. § 90.44.050 (2018) is commonly referred to as the "exemption clause." See, Five Corners Farmers v. Ecology, 268 P.3d 892, 898, 173 Wn. 2d 296, 306, ¶ 15 (2011). The Washington Supreme Court relied on prior Attorney General opinions that reached similar conclusions concerning the appropriate interpretation of this statute. See, e.g., WA AGO 2005 No. 17 (Nov. 18, 2005). "Each category is limited only by the qualifying phrase following it." Five Corners Farmers, 268 P.3d at 901, 173 Wn. 2d at 313, ¶ 28. This rule contradicts the separate categories of outdoor watering and domestic water by conflating "single or group domestic uses" with "watering of a lawn or noncommercial garden not exceeding one-half acre in size." This attempt is even more blatant in that the statute uses the word "domestic" to reflect one type of use and "watering" to denote an outdoor use. This is a sophisticated statute, one that is complex and relies on different words to distinguish between very different uses. The distinction between domestic uses and watering uses is also reflected in the Streamflow Restoration Act. A careful review of that statute reveals that the legislature restricted its discussion related to withdrawals to "domestic" uses; the legislature made no reference to watering of lawns or gardens. "[P]otential impacts on a closed water body and potential impairment to an instream flow are authorized for new domestic groundwater withdrawals exempt from permitting under RCW 90.44.050." Rev. Code Wash. § 90.94.020(1) (2018) (Emphasis added). "This section only applies to new domestic groundwater withdrawals exempt from permitting under RCW 90.44.050 . . . and does not restrict the withdrawal of groundwater for other uses that are exempt from permitting under RCW 90.44.050." Rev. Code Wash. § 90.94.020(8) (2018) (Emphasis added). It is axiomatic that the legislature is aware of prior enactments when adopting new statutes and, when the legislature uses different words to characterize different uses, that the legislature's intent is clear that a different result should occur. Here, if the legislature wanted to include "watering" as a use combined with "domestic" uses, it could have easily done so. That distinction, however, is one that the legislature clearly intended to be limited to domestic uses and, indeed, specifically refused to address the other uses in the exemption clause. Science: Numerous Association members attended the open houses scheduled for late April in Whatcom County. Many members' questions focused on the need for such a drastic reduction in the amount of water authorized for withdrawal under the preliminary rule. The answer, provided, was that recent rulemakings in other WRIAs supported the reduction as did the Department's research. When we told the representatives that we did not see how that conclusion was supported, we were told to "present other science." The sparse description of Ecology's research in the preliminary draft supporting document, unfortunately, does not explain why such a drastic reduction was necessary for this WRIA. First, the only description applicable to other WRIAs and WRIA 1 appears to be proximity in time. "In order to develop water use standards for the new permit-exempt wells, Ecology looked at other water use standards, descriptions, and assumptions established for domestic permit-exempt wells in recent instream flow rules in other WRIAs in Washington." Rule Supp. Doc. pg. 9. The next paragraph states that these are post-2001 rules, that the rules are not uniform, and that withdrawal limits were based on location or other conditions. While this is interesting information, there is no attempt by the Department to describe those considerations how the Department utilized those considerations in the WRIA 1 analysis. To then foist the "burden of proof" on the public to bring better information is not only an abdication of Ecology's role in this process, but is patently unfair in that it requires the public to then prove that a reduction from the statutory amount is not warranted. In any event, the Association shall try. WRIA Comparison: The Association reviewed the various recent rules cited by the Department. Aside from the bare information available from various Ecology websites, it is impossible for laypersons to delve into those rules and perform an adequate comparison. What was possible, however, was to discuss the impacts that these recent rules have had on members of other Associations who work in and have a familiarity with the impacts created by those rules. The most drastic comparison is available for WRIA 18, Dungeness, as the Association there was intimately involved in the process of developing the rule and there has been significant litigation about that rule. The Washington Court of Appeals dedicated an entire segment in its opinion concerning the WRIA 18 to describing the condition of the Dungeness basin saying: Because of water scarcity, DOE determined that surface water was not reliably available for new consumptive uses in the basin. The rule closed year-round eight specific tributaries as well as all unnamed tributaries to the Dungeness River. [Citation omitted.] It also closed the Dungeness River mainstem between July 15 and November 15 every year [Citation omitted.] Bassett v. Ecology, 51221"II, pg. 4 (Wash. App. Ct., Div. 2, April 2, 2019) The picture depicted in the Dungeness rule is one of a stressed watershed in which there has been obvious over appropriation in most if not all surface water bodies. It should also be noted that the Dungeness, as a matter of geography, does not receive nearly the same amount of precipitation or runoff that the Nooksack River receives. Similar conditions as the Dungeness exist for the Quilicene-Snow (WRIA 17). Ecology's preliminary rule includes amendments to the current Nooksack Instream Flow rule. What is interesting to note is that there are no amendments proposed to the seasonal or year-round closures contained in that rule. Indeed, the mainstem of the Nooksack river is not proposed to be closed at all and only two "forks" of the river, the North and South Fork are closed for two and four months respectively. This is made more interesting by Ecology's own Figure 4.1 that demonstrates that offset volumes in this rule are predominantly in the North Fork (21 acre feet/year), which is only closed two months of the year while the South Fork, which is closed 4 months of the year, is expected to only require 4 acre feet/year of offset. These numbers are even less when you account for the fact that Ecology used a 1.5 multiplier to calculate these volumes meaning the actual offset for the North and South forks are 14 afy and 2.6 afy respectively. The Middle Fork, which has even less offset required, is not proposed for closure at all. Tributaries to the Nooksack, according to the rule are either closed or seasonally closed at a ratio of approximately 46% to 54% respectively, a vast difference from the Dungeness where all tributaries are closed. The two most recent rules in close physical proximity to WRIA1 are WRIA 3 (Skagit) and WRIA 5 (Stillaguamish). The Skagit basin has been closed to all groundwater withdrawals since the Washington Supreme Court's ruling favoring the Swinomish Nation, so no definitive conclusions may be drawn from that rule. WRIA 5, however, does not contain a gallon limitation on new groundwater withdrawals that are shown to not have a hydraulic connection to surface waters. Likewise, the other WRIAs listed in the supporting documents do not have withdrawal limits save those located on the peninsula or in the arid WRIA near Walla Walla (WRIA 32) which has a limit nearly two and one-half times that proposed for WRIA 1. Definition of "Domestic": It should also be noted for completeness that no WRIA cited as support for this rule reduces the size of the land available for outdoor water as is proposed in the WRIA 1 rule and, moreover, the rules do not contain consistent definitions of the term "domestic." As mentioned above, words matter in the administrative rule context and effective rulemaking relies on consistent interpretation and application of identical words. Even "domestic" definitions that include outdoor uses attempt to draw the distinction between the two in an attempt to give credence to the exclusion clause of Rev. Code Wash. § 90.44.050 (2018). Ecology should take this opportunity to use a clear, succinct definition of the term "domestic" to only include water for usual and customary household uses as are identified in other WRIA rules. Ecology should avoid, at all costs, any definition that would blend or otherwise confuse the clear delineation of uses provided by the legislature as set forth in Rev. Code Wash. § 90.44.050. Meeting Instream Flows: Ecology includes as support for the proposed rule a graph demonstrating the percentage of time instream flows are not met for the Nooksack River. Sup. Doc. Figure 3.1, pg. 10. The most interesting conclusion to be drawn from that graph is not the percentage of time that instream flows are not met, but the consistency with which the data points on that graph are tightly concentrated and the trend is not capable of any other interpretation as it is clearly similar. When one considers that those data points represent monthly readings over a nearly 50-year period, a period of time when the population of Whatcom County has very nearly tripled, the flow rates year-to-year have remained uncannily consistent to within a few percentage points. If the impact from permit exempt wells from an increased rural population were to be significant to this discussion, it would necessarily follow that there would be a demonstrated change in the percentage of time flows are not met. This is not supported by the evidence cited by Ecology. Impermissible Use of Statutes: Ecology also includes a disturbing discussion wherein it asserts as follows in relevant part: The new domestic water use standards in RCW 90.94 were not uniform across the 15 WRIAs specified in the law. * * * The WRIAs included in RCW 90.94.020 include a MAA of 3,000 gpd. The WRIAs included in RCW 90.94.030 include a MAA of 950 gpd, reduced during drought to 350 gpd for indoor use only and for maintaining a fire control buffer during drought. Sup. Doc. pg 9. The determination by an administrative agency that two separate statutory provisions that contain explicit language on withdrawal limitations for separate categories of WRIAs should be interpreted together to support a 80% reduction from the statutory limit expressly stated for a WRIA is baffling. Had the legislature intended that WRIAs in Rev. Code Wash. § 90.94.020 would be subject to lower limitations similar to those in Rev. Code Wash. § 90.94.030, the legislature would have blended the two together, most likely in a single statutory provision. We are not allowed to guess about legislative intent, however, and this is not what the legislature clearly stated. What is more disturbing is that Rev. Code of Wash. § 90.94.020 actually provides that rules should specify "[s]tandards for water use quantities that are less than authorized under REC 90.44.050 or more or less than authorized under subsection (5) of this section for withdrawals exempt from permitting." There is absolutely no evidence in the supporting document that Ecology sought to evaluate whether a withdrawal amount between the 5,000 gpd in 90.44 and the 3,000 gpd MAA in Rev. Code Wash. § 90.94 et seq. is appropriate. It would appear that Ecology has abandoned such an evaluation in favor of a cookie-cutter approach to WRIA rules when the legislature clearly intended that different WRIAs would be evaluated in the context of differing circumstances. Ecology's own Policy Document, POL-2094, cited in the Supporting Document, clearly delineates the different standards for watersheds listed in the Act. Ecology, on page 4 of POL-2094, apparently limits determinations of drought and rules applying to declared drought emergencies to WRIAs listed in Rev. Code Wash. § 90.94.030. Section 5 of the policy document states: For WRIAs listed in RCW 90.94.030: Where applicable, record withdrawal curtailment during drought emergencies on affected properties. Streamflow Restoration Policy and Interpretive Statement, POL-2094, pg 4 § 5, (2019). Ecology also makes a distinction on the types of rules Ecology will adopt depending on whether the WRIA is listed in Rev. Code Wash. § 90.94.020 OR § 90.94.030. The Policy Statement states in relevant part: If a watershed plan has not been adopted by the prescribed deadline, Ecology is required to commence a rulemaking process under RCW 90.94.020 or 90.94.030. • Ecology will not write a watershed plan update for WRIAs identified in RCW 90.94.020. As required under the law, Ecology will initiate rulemaking and develop rule supporting documents that meet the intent and requirements of RCW 90.94.020. At a minimum, the rule supporting documents will include: a WRIA-wide estimate of consumptive use from new permit-exempt domestic withdrawals over the planning horizon; a list of projects and actions that Ecology is reasonably assured could be completed to offset the consumptive use; and a NEB determination. • For the WRIAs identified in RCW 90.94.030, Ecology will follow the procedures specified in RCW 90.94.030(3)(h). Ecology will submit the final draft plan to the Salmon Recovery Funding Board for a technical review, and provide recommendations to amend the final draft plan, if necessary. Ecology shall consider the recommendations and may amend the final draft plan without committee approval prior to adoption. Id. at pg. 11 (emphasis added). Contrary to its own policy document, Ecology now combines the requirements of .020 and .030 to include a drought component to the WRIA 1 rule, a WRIA that is clearly excluded from .030, the only section that includes the mention of drought considerations. Yet, Ecology somehow "harmonizes" the sections, in direct contravention of its own policy document, to introduce a construct of "subsistence gardening" and restrictions should a drought emergency be declared. This is not only a gross misinterpretation of the statute, but a violation of Ecology's own stated policy. Bertrand Creek: Ecology's supporting document contains much information about Bertrand Creek located in the North Central portion of Whatcom County. This water body, situated in the heart of the agricultural area of Whatcom County, is perhaps the most burdened water body in the entire WRIA. Accordingly, Bertrand Creek and its hydrology has been studies comprehensively and the particular circumstances of that body are well understood by environmentalists, agricultural groups, land use professionals, and even local scientists. What is also interesting is that it is well known to persons in Whatcom County that a local respected hydrologist performed an evaluation on the effect of permit exempt wells in the Bertrand Creek watershed. That evaluation demonstrated that if 100 new permit exempt wells were constructed in the Bertrand Creek watershed, the impact on that stream would be negligible. Specifically, Mr. Lindsay writes: The exaggerated maximum worst-case potential impact to flow in Bertrand Creek from the 100 wells would be around 0.38 afd (3.8 % of late summer flow) and the more realistic impact estimate, based on 350 gpd of use, is around 0.027 afd, or only 0.3 of late summer flow. Assoc. Earth Sciences, Lindsay Memo, June 19, 2017, pg. 5 (Ex. "A"). Mr. Lindsay continues saying: Even in areas of the proposed numerical model with high data density, and good calibration data (Bertrand Creek drainage), the extremely conservative estimate of maximum potential impact to surface water from the use of 100 permit-exempt wells will be significantly less than the lowest possible streamflow measurement error that will be used to calibrate the model. The more realistic potential impact of 0.027 afd is less than 6% of the potential error associated with the streamflow measurement data. Therefore, any simulated predicted impact to the stream based on this scenario would be statistically insignificant and not defensible. Id. The conclusion from this modeling seems to oppose, diametrically, the conclusion that Ecology has suggested that further withdrawal limits are necessary. If 100 wells have a negligible impact on a highly appropriated water body, so negligible as to be almost undetectable, it is not possible that further restrictions WRIA-wide are necessary or warranted. Projected Households are Inflated: Ecology has stated on numerous occasions that this rulemaking is informed by the work of the WRIA 1 Planning Unit during 2018. When asked how much of the research and work was utilized by Ecology in the development of this rule, the response at the open houses and public hearings was that virtually none of that work was allowed to be used by the Department. What is very interesting to note is that some of the work seems to have been "cherry picked" when it suits the Department's views, while other information has been cast aside. An example of such "cherry picking" includes that list of proposed projects evaluated by the Planning Unit to support the offset of anticipated consumptive use of new construction during the 20-year planning cycle. At the initial public hearing, it was stated that only projects that had received some funding or were otherwise deemed "viable" were included in Ecology's evaluation and, because those projects did not adequately offset consumption, a conservation limit was necessary. Yet, during the very next public hearing when a member of the public noted that fully-funded or partially-funded projects on the Planning Unit list exceeded anticipate consumptive use by a factor of nearly 2.5, the analysis suddenly changed to including projects in specific sub-basins and subsequent analysis using "adaptive management." Later, another member of the public provided information that, contrary to the Planning Unit's estimate of permit-exempt connections, Whatcom County has only issued 31 permits in the first two years of the 20-year planning cycle. Stated another way, ten-percent of the planning period has passed and actual permits expressed as a percentage of anticipated permits is only 14%. If "adaptive management" were to play the significant role that Ecology purports it to play, would it not seem appropriate to realize that the Planning Unit's estimate of permit-exempt wells for domestic purposes would need to be reevaluated in light of the significant disparity concerning actual permits? Yet, in the face of evidence that Whatcom County is only meeting 14% of the anticipated need for permit-exempt wells, Ecology uses this as evidence that an extreme reduction in daily withdrawals is warranted. Such analysis defies explanation. One example is the projected housing estimated to be constructed in the rural areas of Whatcom County in the next 20 years. Ecology utilized the Planning Unit's working number of 2,150 new homes over a twenty-year period, or approximately 107 new homes per year on average. What Whatcom County reported at the end of 2018, a number that has not been updated as of this writing, is that only 8 homes using permit-exempt wells had been constructed in Whatcom County during the first year of the planning period. The Association requested updated numbers as required to be kept by Whatcom County pursuant to Rev. Code Wash. § 90.94.020(5)(c) (2018), but the County has not responded. In any event, it would appear that the number of proposed households is not on track for the over 100/year as projected, but is something much less, a fact that was known to Ecology's representative during the Planning Unit process but apparently is ignored for purposes of this rulemaking proceeding. Current building permits should be evaluated and projections altered to closely approximate the real number of home that may be constructed during the planning period. Reductions of Outdoor Watering Area: Similar to the discussion of exempt uses under the exclusionary clause of Rev. Code Wash. § 90.44.050(2018) concerning domestic use, it is unclear on what authority Ecology is relying to limit outdoor watering to 1/12 of an acre. It would appear that Ecology has taken the 3,000 gpd limit, divided that by 500 gallons, and made a determination that a Group "B" water system would only support six units. Using that six unit figure, Ecology then has divided the one-half acre outdoor watering limitation in Rev. Code Ann. § 90.44.050 (2018) to arrive at the 1/12 value. As outlined in the "domestic" discussion above, the exclusionary clause sets forth four distinct and separate uses that are limited only by the qualifying language following each category, i.e., "domestic and industrial are limited to 5,000 gpd; outdoor watering is limited in terms of size (one-half acre); stockwatering is unlimited. Ecology is not permitted to simply amend a statute to fit an agenda without express legislative authority to do so. Accordingly, the preliminary rule should reflect the one-half acre limitation in the statute as written or Ecology should delineate the authority granted to it to make such an amendment to the statute, and amendment that is not obvious from the statutory language of either the groundwater or streamflow acts. Fiscal Impact: Finally, the Association has discussed the implications of this rule on land values in rural Whatcom County with our real estate appraiser members. The results of their analysis also demonstrate additional hardship resulting from this rule. The appraised each noted that values assigned to land take in a variety of factors, one of which is the availability of potable water necessary for construction. As a matter of appraisal principles, land that is constrained in some manner from neighboring properties must, accordingly, have less of a value than the value assigned to the unencumbered property. The reduction from 5,000 gpd to 3,000 gpd was not a significant reduction as the ability of most rural households to use that amount for domestic use was not substantially limited. However, the 80% reduction proposed in this rule from the 3,000gpd limit will be a significant factor that then implicates not only the operation of a household, but ancillary uses, likely a machine shop, that will not be possible. Such a limitation for rural households means, in essence, that the land cannot be put to the use customarily associated with a rural lifestyle. Accordingly, the market value of that property must be reduced. The implications are immense. Lending institutions are required to value lending portfolios based on appraised value and, in turn, calculate financial reserves based on those values. A significant drop in the value of rural properties resulting from water limitations means that institutions will be required to revalue the portfolios, adjust reserve balances, and make future lending decisions based on the values established after the rule. The typical scenario will be that a rural household that has a loan on a property prior to construction will suddenly realize that the amount of additional borrowing power for construction is limited to new appraised value; the number will certainly be less and, in worst case scenarios, may be negative. Households that have financed land through personal loans or using lines of credit could suddenly find themselves having to provide additional collateral (property or cash) to the lender in order to secure that debt. The practical result is that, rather than preserving the rural lifestyle, we have added additional unnecessary burdens. The Whatcom County Association of REALTORS®, together with our members and aligned organizations, remains committed to creating an amended instream flow rule for WRIA 1 that both meets our needs for water conservation, habitat restoration, and rural lifestyle preservation. The preliminary rule from Ecology will not achieve those goals. Accordingly, the Association requests that Ecology revise and propose a rule closely aligned with the significant legislative goals sought to be achieved through this legislation and that more closely balances the disparate interests fairly. If the rulemaking team has any questions concerning these comments, the Association is prepared to meet with Ecology at any time to further discuss our concerns. Sincerely, R. Perry Eskridge Exec. Officer/ Gov't Affairs Dir. Land Use Caucus Chair, WRIA 1 Planning Unit cc: 42nd Leg. Dist. Board of Directors File RPE/

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Comment From: WRIA 1 Environmental Caucus (Karlee Deatherage)

1/17/20 @ 12:32 AM

Please find our comment letter attached. Thank you.

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Comment From: Luanne Van Werven

1/16/20 @ 2:03 PM

I am submitting these comments for the administrative record for the proposed instream flow rule amendment for chapter 173-501 Washington Administrative Code (WAC) in the Nooksack WRIA. The Department of Ecology (DOE) is incorrectly implementing ...↓

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Comment From: Center for Environmental Law &... (Trish Rolfe)

1/16/20 @ 10:42 AM

Please find attached CELP's comments on the proposed Amendments to WAC 173-501. Thank you.

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Comment From: Janelle VanLant-Rodriguez

1/16/20 @ 9:36 AM

Rulemaking Lead Sawabini, Please consider my comment on the proposed Nooksack River watershed permit-exempt well rule. Based on the information below, I believe that the proposed rule unfairly restricts indoor water use by rural households and tha...↓

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Comment From: Associated Earth Sciences, Inc... (Jay Chennault)

1/16/20 @ 7:27 AM

The Draft Rule Supporting Document (Publication 19-11-093) includes a description of Project ID 8: MAR- North Fork site (page 43). Potential managed aquifer recharge (MAR) project sites have also been identified on the Lower Nooksack, Middle Fork, an...↓

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Comment From: City of Lynden (Steve Banham)

1/16/20 @ 6:56 AM

On page 36 of the Preliminary Draft Project ID 8 identifies Managed Aquifer Recharge (MAR) only in the North Fork and this solution should be expanded to include the Middle Fork and South Fork were in-stream flows and water temperature are also a con...↓

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Comment From: Craig Herter

1/16/20 @ 4:50 AM

I am both pleased and amazed that so many people have taken the time to comment on the Department of Ecology's proposed rule amendment. I think this should demonstrate to the Department of Ecology that this is a matter of vital interest to the rural...↓

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Comment From: Paul Graf

1/16/20 @ 4:11 AM

The notion that wells for domestic home use could have any measurable impact on stream flow of the Nooksack River makes absolutely no sense bordering on absurd. Where is the justification for imposition of such onerous restrictions upon the citizens ...↓

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Comment From: RE Sources (Shannon Wright)

1/16/20 @ 3:33 AM

Please see attachment for our comment letter. Thank you.

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Comment From: Daniel Clark

1/16/20 @ 2:42 AM

The proposed rule to limit water usage to 500 gpd (and also land usage) has many flaws that have already been documented. One concern not mentioned is the illegitimate use of statistical averages in determining usage (one example being the average...↓ of a 2.5 person household). Statistics can be an adequate tool for determine averages and behavior among large groups of people. However, it is an insufficient tool for determining how specific individuals/families are impacted. For example, the committee uses an average household size of 2.5 people for determining appropriate water usage. My family, however, is a family of 6, not including animals or including future elderly family members who are soon to be cared for. Furthermore, not only does my family sleep at our residence, my children are educated here and my wife and I (both corporate professionals) work from home. Because we live, and also work, and also play at our home, we often use more than 500 gpd. What is not taken into consideration is that unlike most individuals/families, we don't use ANY water at a school or workplace--nothing. Furthermore, our carbon footprint is much less than other individuals because we don't drive or consume resources at a school or workplace. Thus, as a result of the use of "averaging," my specific family (and families like mine) are discriminated against--even though we have a smaller carbon footprint. The committee's use of statistical averaging actually portends a legitimate Constitutional discrimination claim (these often arise when illegitimately applying statistical averages to specific parties). Not only does the illegitimate application of statistical averaging cause Constitutional Claims to arise, but these claims are buttressed if facts used by rulemaking agencies appear to be unfounded and/or specious. Here there are many good reasons to presume that some of the "facts" used by the committee are specious (e.g., improper inconsideration of recharge rates occurring from both annual rainwater and recharge from septic systems). I would advise the committee to reconsider the rule and align the rule with the clear guidelines promulgated by the legislature. If not, there are sure to be many lawsuits filed against the DOE. As the rule stands, the rule prevents my family and families like mine from enjoying the use of rural property within Whatcom County.

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Comment From: Jeremiah Ramsey

1/16/20 @ 12:25 AM

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Comment From: Damian Pro

1/15/20 @ 8:12 AM

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Comment From: Joseph Knight

1/15/20 @ 5:28 AM

I am writing about the rule-making requirements for new exempt wells in the Nooksack Basin (WRIA1). It is very important that you include metering as part of the new regulations. The principle is simple -- if you do not measure it, you cannot manag...↓

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Comment From: Natalie McClendon

1/15/20 @ 3:50 AM

Thank you for your work struggling to find a solution to our limited water that works for most people, and the fish. The bottom line is that the Nooksack Basin is over-appropriated and has been closed to new water rights permits for a long time. Rura...↓

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Comment From: jeff Baker

1/15/20 @ 2:16 AM

Rulemaking Lead Sawabini, To Whom it may concern: Please consider my comment on the proposed Nooksack River watershed permit-exempt well rule. Based on the information below, I believe that the proposed rule unfairly restricts indoor water use b...↓

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Comment From: Merle Jefferson

1/14/20 @ 5:42 AM

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Comment From: Tamara Acree

1/14/20 @ 4:48 AM

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Comment From: Christine Cicchitti

1/14/20 @ 4:44 AM

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Comment From: Joel Roosendaal

1/14/20 @ 4:44 AM

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Comment From: Irina Kulyak

1/14/20 @ 3:31 AM

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Comment From: Jayme Holman

1/14/20 @ 3:11 AM

Rulemaking Lead Sawabini, Please protect my rights as a property owner . Please consider my comment on the proposed Nooksack River watershed permit-exempt well rule. Based on the information below, I believe that the proposed rule unfairly rest...↓

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Comment From: Brady DenB

1/14/20 @ 3:10 AM

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Comment From: Wynden Holman

1/14/20 @ 3:10 AM

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Comment From: Robert Washburn

1/14/20 @ 2:51 AM

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Comment From: Justin Nelson

1/14/20 @ 2:31 AM

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Comment From: Shannon Medearis

1/14/20 @ 2:31 AM

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Comment From: Stephanie Roosendaal

1/14/20 @ 2:31 AM

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Comment From: Ethan Potts

1/14/20 @ 2:29 AM

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Comment From: Loren Van Corbach

1/14/20 @ 2:28 AM

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Comment From: James Kaemingk

1/14/20 @ 2:26 AM

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Comment From: David Rehm

1/14/20 @ 1:57 AM

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Comment From: Linda Stull

1/14/20 @ 12:58 AM

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Comment From: Skip Richards

1/14/20 @ 12:35 AM

Please see attached.

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Comment From: Brent McMillan

1/13/20 @ 8:36 AM

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Comment From: Sean Hackney

1/13/20 @ 8:33 AM

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Comment From: Danielle Groeneweg

1/13/20 @ 5:21 AM

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Comment From: Karla Roosma

1/13/20 @ 3:24 AM

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Comment From: Kurt Swanson

1/13/20 @ 3:19 AM

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Comment From: Sandra Hicks

1/13/20 @ 2:30 AM

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Comment From: Tessa Shelton

1/13/20 @ 1:12 AM

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Comment From: Sean Ryan

1/12/20 @ 2:05 PM

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Comment From: Lester Van Mersbergen

1/12/20 @ 1:42 PM

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Comment From: JEAN HUNT-BROWN

1/12/20 @ 1:23 PM

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Comment From: Thonnie Wailes

1/12/20 @ 10:04 AM

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Comment From: Jennie Nilsen

1/12/20 @ 8:33 AM

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Comment From: Cal Leenstra

1/12/20 @ 7:28 AM

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Comment From: Judith Sturlaugson

1/12/20 @ 7:11 AM

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Comment From: ken marr

1/12/20 @ 7:01 AM

Ken Marr Rulemaking Lead Sawabini, Please consider my comment on the proposed Nooksack River watershed permit-exempt well rule. Based on the information below, I believe that the proposed rule unfairly restricts indoor water use by rural household...↓

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Comment From: Lori Smith

1/12/20 @ 6:32 AM

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Comment From: Michael Rawls

1/12/20 @ 4:30 AM

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Comment From: Renay Daniels

1/12/20 @ 4:16 AM

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Comment From: James Pope

1/12/20 @ 2:48 AM

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Comment From: Tricia Gale

1/12/20 @ 2:35 AM

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Comment From: Sunny Lake Hahn

1/12/20 @ 2:26 AM

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Comment From: Diva Menke

1/12/20 @ 1:57 AM

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Comment From: Nanette McDowell

1/12/20 @ 1:27 AM

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Comment From: Lorrie Dujmovich

1/12/20 @ 1:24 AM

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Comment From: Kenneth Swanson

1/12/20 @ 1:09 AM

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Comment From: Brooke Stremler

1/12/20 @ 1:05 AM

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Comment From: Sara Fassett

1/12/20 @ 12:30 AM

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Comment From: Liz Standow

1/12/20 @ 12:30 AM

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Comment From: Carl Dufton

1/12/20 @ 12:11 AM

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Comment From: Renata Mason

1/12/20 @ 12:03 AM

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Comment From: Jasmin Worden

1/11/20 @ 3:46 AM

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Comment From: Cliff Langley

1/11/20 @ 3:02 AM

I would first like to draw your attention to the statement in our Declaration of Independence which I believe applies to all levels of government. "That to secure these rights Governments are instituted among men, deriving their just powers from the...↓

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Comment From: Lawrence Humes

1/11/20 @ 1:43 AM

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Comment From: Atul Deshmane

1/10/20 @ 10:13 AM

The rules do not seem to change how new home owners learn about their water related restrictions. It would be beneficial to have a more explicit statement of water limitations.

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Comment From: Joy Brown

1/10/20 @ 7:25 AM

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Comment From: Julie Osborn

1/10/20 @ 6:08 AM

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Comment From: Cherie Kukhahn

1/10/20 @ 4:04 AM

Rulemaking Lead Sawabini, Here are some thoughts to consider about the proposed Nooksack River watershed permit-exempt well rule. Based on the information below, I believe that the proposed rule unfairly restricts indoor water use by rural househo...↓

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Comment From: Anne Koglin

1/10/20 @ 2:48 AM

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Comment From: Bradley Hanks

1/09/20 @ 9:10 AM

Rulemaking Lead Sawabini, Please consider my comment on the proposed Nooksack River (WRIA 1) watershed permit-exempt well rule. Based on the information below, I believe that the proposed rule unfairly restricts indoor water use by rural household...↓s and that the restriction on outdoor water to an area less than that authorized by statute is not only wrong, but also erodes the rural lifestyle that is the essence of Whatcom County. The rule restricts indoor water use to 500 gallons per day. While this amount of water might be appropriate for households in urban areas, rural households tend to be larger in number of residents and require more water for household use. 500 gallons per day is the accepted use of a family of four in an urban setting, but NOT FOR larger rural families leading a rural agricultural lifestyle. During the hearings, Ecology staff raised the point that many comments have been made recommending a reduction in the proposed rule of 500 gpd withdrawal limit. I would submit that those advocating a reduction from that level have little to no knowledge of rural living and would hazard a guess that the majority espousing such a miserly approach are probably urban dwellers. Ecology's rule making staff has repeatedly stated a comparative approach was used in determining withdrawal limits for WRIA 1, though there is no indication that the WRIA's used for comparison are remotely similar to the Nooksack Basin. I feel the 500 gallon limit is an arbitrary number imposed by Ecology to severely restrict water use in Whatcom County, and believe the influence applied by major stakeholders in WRIA 1 upon Ecology has shaped the rule more than accurate scientific data. I urge the rule making staff to reconsider the withdrawal limits per the Planning Unit's recommendation of 3,000 gpd. There is also the issue of enforcement. While I certainly do not support metering of permit-exempt wells in the rural areas of the county, it does raise the question of how indoor domestic use will be monitored and, if necessary, enforced when a household exceeds the indoor use limit. Enforcement would be easier for outdoor use, but enforcement of an arbitrary and unrealistic indoor use limit seems to be ineffective. I also disagree with the artificial restriction on outdoor uses proposed for single connection permit-exempt wells. Rev. Code Wash. § 90.44.050(2019) explicitly allows the use of a permit-exempt well to water one-half acre of noncommercial lawn or garden. Ecology now seeks to limit that use to only 1/12 of an acre through some undisclosed mathematical formula. While the restriction can be understood when more than one household is connected to a permit-exempt well, restrictions on a single connection are unnecessary and unwarranted. This portion of the rule is the most confusing to understand, and the rationale and methodology used to arrive at this interpretation are puzzling at best. Finally, I would note that we are in this situation as a direct result of the Whatcom County Council's abdication of their responsibility to the citizenry of Whatcom County for their failure to act on the Planning Unit's recommendations. By "kicking the can down the road" on this issue, they have successfully painted Ecology as the "bad guy," thereby absolving the council of any responsibility for this government taking. The council's inaction in this matter is a profound dereliction of duty, and the punishment for their failure to act should be meted out at the ballot box. Thank you for considering my comments. I anticipate seeing a rule that better balances the needs of rural households against our desire to efficiently use our water resources. Bradley Hanks

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Comment From: David Rehm

1/09/20 @ 8:16 AM

Rulemaking Lead Sawabini, Why the push for restricting water? the vast majority of water used from wells would not end up in downstream flows/salmon habitat, and 90% of the water goes right back into the ground in the septic system anyway. This is...↓

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Comment From: Nina Denson

1/09/20 @ 8:12 AM

STATEMENT TO DEPARTMENT OF ECOLOGY My name is Nina Denson, I live in Custer, WA, and I am an exempt well property owner. I have been to two public hearings. I have heard the figures and calculations the Rule Committee have used to make their arb...↓

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Comment From: Lori Jo Smith

1/09/20 @ 5:16 AM

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Comment From: Hearing Transcript January 9, ...

1/09/20 @ 3:00 AM

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Comment From: Hearing Comment Visual Aid Jan...

1/09/20 @ 3:00 AM

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Comment From: joell kuoppala

1/09/20 @ 2:47 AM

Rulemaking Lead Sawabini, I am not sure how this would effect homes with more than a few people in it but my family has a home with 10 people living in it and i do believe that this would not be enough water for them and they are on a well. Pl...↓

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Comment From: Jason Cavanaugh

1/09/20 @ 1:12 AM

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Comment From: Jen Freeman

1/08/20 @ 1:32 PM

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Comment From: Dawn Sexton

1/08/20 @ 9:43 AM

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Comment From: AG WATER BOARD OF WHATCOM COUN... (Henry Bierlink)

1/08/20 @ 9:34 AM

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Comment From: Kathy Stanford

1/08/20 @ 8:48 AM

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Comment From: Hearing Transcript January 8, ...

1/08/20 @ 8:00 AM

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Comment From: Valerie Hauter

1/08/20 @ 6:15 AM

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