Rule proposal: Chapters 173-507, 173-508, 173-513, 173-514, and 173-515 WAC

Ecology should have engaged directly with WRECs, Watershed

planning units, and implementing governments under the Streamflow Restoration

Act to collaboratively draft rules during the rulemaking process rather than

just provide opportunity to comment on ...↓rules that were already written by the

agency.

The $150 fee reserved by the collecting government or permit

authority is not enough to operate an implementation program. In Thurston

County, the $150 fee that we reserve only covers the cost of administering

permit intake and conveyance of the $350 portion of the fee to Ecology.

The proposed rules do not address the authority of WRECs,

Watershed planning units, or implementing governments to increase the fees

collected to match the expense of offsetting impacts of new permit-exempt well

installations, as suggested in the Streamflow Restoration Act.

The proposed rules should be amended to explicitly codify

the authority of these groups to raise these fees according to the implementing

government's cost of providing an offset program. The proposed rules do not

address the authority of WRECs, Watershed planning units, or implementing

governments to change the well withdrawal limit according to an independent

determination of water availability by local permit authorities.

The proposed rules should be amended to explicitly codify the

authority of permitting agencies to adopt watershed-specific well withdrawal

limits Based on an indeterminate… an independent determination of water

availability And prevailing annual conditions. The proposed rules do not commit

continued funding for WREC or watershed planning unit meetings to adaptively

manage plans developed under the Streamflow Restoration Act.

The rules should commit continued funding for these planning

bodies to ensure effective implementation and commit funding to these groups.

And that's the end of our comment. Thank you.

Yeah, so I would like to echo some of the concerns that the

county staff just mentioned. Um…

Having lived in the area for over 40 years,

And seeing how climate change has affected our area.

I am I'm shocked, and I'm kind of overwhelmed by the

quickness of...↓ the sudden change in our rainfall, And, um, our water in the area,

um, the wetlands.

The Deschutes River, it all seems to be drying up, and many

of us are very, very concerned about this.

To have ecology go forward With this rulemaking, uh, without,

As was said before, funding.

The local agencies, such as Thurston County, to have the

ability To deal with these issues.

Um, it concerns us all.

Uh, I admire, um, ecology going forward With this

discussion, because this discussion about, uh, watersheds.

It's extremely important, and we all realize that water is

life.

And this is the substance, uh, whereupon we have our

agriculture. Um, in the area, and, uh, where we grow a lot of our food. So, of

course, we are concerned about Uh, stream flow restoration, and we are very,

uh, concerned that, uh, Having these permits, these water well permits, going

forward Um… will hurt.

The water table for this area, and so it will hurt the

river, it will hurt the wetlands, it will hurt the wildlife, it'll hurt the

stream.

There are endangered species in this area that might be

affected by the water table and the lowering of the water table. Many of us

feel that perhaps there have not been enough studies to look into these issues,

such as how this will affect the water table of the area,

And so, that is our concern. Thank you very much.

I'm the, uh, the president of the Deschutes Estuary

Restoration Team, Commonly known as DERT. Um, after the legislature enacted the

Streamflow Restoration Act in 2018. Um, ecology convened a water… watershed

restoration and enhancement Committee for WRI...↓A 13, the Deschutes watershed, and

DERT was the environmental representative to that committee into that process.

We spent two and a half years developing a plan per the direction of the

legislature ultimately produced  a final

draft plan in March of 2021, and I'm holding up a copy of it. the plan

identified and projected another 2,606 exempt wells that would be constructed

in the watershed by the year 2038. Um, estimated the impact to stream flows as

they were required to do and came up with a set of projects and other measures

to offset the impacts to the streams.

And also to improve the habitat in the watershed.

Um, those recommendations included a set of policy

recommendations. I don't know if you'll be able to see it, but It was chapter

6. Um, in the plan that was produced.

[I didn't know my video was off. Um… so I don't know what

you have… ] anyway, Chapter 6.

Um, of the, uh, plan included a set of policy

recommendations Including things like. additional water conservation, making

it easier to use reclaimed water.

Uh, I think there are a total of 15 recommendations,

including revising the in-stream flow rules that have been adopted

in 1980, 45 years ago. Um, because there was… one objection by one

party to that one recommendation, Uh, the plan did not receive consensus.

Afterwards, ecology followed the process outlined in state law.

And one of the things ecology did was delete the entire

chapter of policy recommendations. that they had voted in favor of as a member

of the committee. So as a consequence, we were left with a plan that actually

was not the plan developed by the committee, it was a plan that, was developed

by Ecology.

Nonetheless, um… The statutory provision that ecology is now

relying on for this rulemaking is the provision in the Streamflow Restoration

Act. that says, um, ecology at this point has to conduct rulemaking. to

implement the recommendations in the final plan.

I read the final plan, and I made this comment back in the

fall.

There is no recommendation in the final plan, and there was

no recommendation from the WREC to take the existing statutory provisions. Um,

and place them into rule.

So I think that the process that ecology is following is not

authorized, um, by the law. Um, and as I mentioned before, it's totally

inconsistent with the general direction by the legislature to state agencies

for rulemaking. Um, which is, you engage the parties who are affected by the

rulemaking ahead of time, you develop the rules, and conjunction with those

people. Um, you evaluate alternatives. Uh, and then you move forward. So, when

we found out about this rulemaking, we actually wrote to the director of the

Department of Ecology.

and said, please have a meeting with the people who

developed this plan, spent two and a half years developing the plan and explain

to us why you're proposing to do what you're doing instead of implementing a

number of policy recommendations that the group recommended.

We never heard back from the Director of Ecology.

Which is very disturbing. Um, so, what we're looking at is a

rule developed internally by the Department of Ecology without regard to the

committee process that took two and a half years.

In addition to that, ecologies, um. proposed rule simply

green lights Um, another 2,606 exempt wells. with documented impacts to stream

flows.And with no requirement that those withdrawals, groundwater withdrawals,

be metered. that they be mitigated, or that there be any monitoring for them.

Um, so Ecology is essentially saying, we're okay. with

reducing the stream flows in the watershed.

Um, for… some reason that they haven't discussed with

anybody else in the watershed. Other than, as I understand it, the Squaxin Island tribe.

Um, so we object. We think legally ecology cannot do this.

Um, we think from the perspective of the legislature.

 they are not doing this consistent with the direction of the legislature.

Um, for, um… engaging in rulemaking and adopting rules.

Uh, we think they're doing it knowingly. affecting stream

flows.

Um, that already have, um, significant problems. And ecology

has already identified these problems in its TMDL, That it adopted for the

Deschutes River and its tributaries.

acknowledging that there are temperature problems, dissolved

oxygen problems, that allowing additional exempt wells will simply exacerbate. So

our request, and we will be providing formal comments, although I appreciated

Claire's comment that. We submit a comment and never got any feedback.

We'll be providing formal comments, but our request at this

point is that Ecology actually take the 2 years that it's allowed to take for

this rulemaking. and actually have some discussions with the people who are working

in the watershed. Um, trying to… maintain, um, and restore habitat trying to

maintain and restore streamflows. Uh, which this particular rule will not be

doing. Um… You have ample time under the statute to have those discussions. I

don't see any reason why you shouldn't be having those discussions.

and if… If you proceed down this path, which you seem very

determined to proceed down without regard to the comments you're getting Um, I

think it's both illegitimate and unwise. And our request is that you take a

pause.

Thank you.

Good morning, uh, Claire Newman, attorney for the Port Gamble S’klallam Tribe, I'm gonna leave my video off, um, because it's been interfering with my Wi-Fi.

My comments here today will be in addition to written comments that are submitted.

The tribes ...↓reservation and a portion of its treaty reserved usual and custom fishing area are located in WRIA 15.

The Tribe's reservation confirms its Federal Reserve water rights necessary to fulfill the purpose of the reservation as a permanent homeland for the S’klallam people.

The tribe was a member of the WRIA 15 Watershed Restoration and Enhancement Committee, and offered comments at multiple stages of the planning process.

These comments repeatedly express concerns that the WRIA 15 streamflow restoration Enhancement Plan would be ineffective at offsetting impacts to in-stream flows for permit-exempt wells that it did not fully comply with RCW 90.93.030, and other statutes governing surface and groundwater diversion. And that it would threaten the tribes' Federal Reserve water rights

and treaty fishing rights.

The current rulemaking process does not reflect the tribes' myriad concerns or

recommendations.

My comments here today and the, uh, comments that will be submitted incorporate my reference the tribe's prior comments on the WRIA 15 streamflow Restoration Act enhancement plan, and those were submitted through letters from the Port Gamble- S’klallam Tribe, Dated May 3rd, 2021, October 13th, 2023, November 18th, 2024, and April 28th, 2025.

And these letters all raised very similar concerns repeatedly about the, uh, very shallow aquifers and small streams that are particularly vulnerable to dewatering and high temperatures and other threats to habitat that are located in WRIA 15, um, where the tribe has its usual and custom fishing

areas.

An important framing to this rulemaking is that we are here discussing permit-exempt wells because there's not enough water for all of the new water permits that are requested for development.

Permit-exempt wells have always been, uh, very poor band-aid to a really large problem.

Um, like other, uh, comments, um, that have been made already, um, by Thurston County and DERT,  ecology did not consult with the tribe prior to adopting the plan, even though the tribe was one of the entities that dissented from the plan, um, in the WREC and this is contrary to, um, good, um, tribal-state relations and government-to-government relations, um, that the state, uh, knows all too well it must follow.

The plan does not ensure that the, um, that, first, that there is, adequate, uh, supplies of water in the aquifers before perm-exempt wells are allowed to be drilled,

It does not, uh, ensure that mitigation projects are feasible, that they will be funded, that they will be built before the new permit-exempt wells come online, or that they'll be built at all.

in fact, uh, during our meetings with the director, she, acknowledged that, um, once the streamflow plan is enacted, um, that ecology washes its hands of it and is not involved in implementation whatsoever.

Um, ecology was charged in its… by its own policy, to examine and evaluate the streamflow restoration plan, um, but that's not what Ecology did. It adopted the plan verbatim.

Um, and when the Tribe has asked for a red line showing the differences in the plan that was submitted to Ecology,

And the one that it promulgated, the tribe has not received a response. In the tribal state meetings, uh, leading up to this rulemaking, ecology has conceded that it has not done any accounting of the amount of funds that it expects to receive from the fee collection, to put

towards mitigation projects, but that it knows that these fees will not come anywhere close to covering actual costs. Nor has ecology gone to the legislature to request additional funding for mitigation projects.

And you have counties and tribes begging ecology to raise these fees. But ecology refuses to even engage in a substantive discussion about this problem.

This leads to the reasonable person to the conclusion that ecology doesn't really care whether or not the mitigation is built.

I would just add that, um, every year, the, uh, ecology is required to report back to the legislature on its progress, um, protecting in-stream flows, um, and every single year, its statement to the legislature includes almost the same paragraph that says, no in-stream rules, our plan for WRIAs, not covered by chapter 90.94, uh, that recent decisions, such as Postema, Kittitas, Swinomish,

and Foster continue to make it challenging for ecology to adopt new in-stream flow rules. While these cases do not directly restrict ecology's authority to adopt in-stream flow protection and rule. They limit available tools to balance water needs of diverse users.

I want to emphasize, um, that this statement that ecology makes annually to the legislature, um, really, falls far short of ecology's obligation to Protecting stream flows as water rights.  and it acknowledges that, um, it's not for lack of authorization, um, but for lack of, uh, creativity and effort to find new ways of protecting in-stream flows, and that the streamflow restoration plans have,

um, tools built into them that could have been, that could be…realized, but that ecology really seems uninterested in actually supporting local jurisdictions in, um, in, supporting those, those efforts.

So, those are the tribe's comments for now. We will submit additional comments later. Thank you so much.

Thank you, my name is Rhonda Larson-Kramer. Ecology has

explained that this is a limited-scope rulemaking that does not include

monitoring. That it maintains the status quo of no monitoring, and that a pilot

program is currently underway to explore mete...↓ring. I want to respectfully

explain why that rationale is not sufficient under the streamflow Restoration

Act.

This rule does change the status quo in a legally meaningfully by authorizing additional permit-exempt wells.

When new withdrawals are authorized, the relevant question is not whether monitoring existed in the past, but whether ecology can demonstrate compliance with the Act going forward. The Act requires that new water use be offset. And that the watershed plans achieve a net ecological

benefit. Those are performance-based standards. A pilot program, by definition, is exploratory and non-binding. It cannot substitute for enforceable monitoring tied to the authorization of additional withdrawals.

Ecology also has up to 2 years to complete this rulemaking, and has stated that it does not need the full 2 years. That choice matters here. If the pilot program yields useful information about metering feasibility and costs or effectiveness, Ecology would have an opportunity to incorporate

that information if it is used, the full statutory timeline of the rulemaking.

Finalizing the rule now forecloses that opportunity to use the pilot program information. Without monitoring requirements connected to this rule, ecology has no way to confirm whether offsets are working, whether cumulative impacts are exceeding projections, or whether in-stream flows are being protected over time.

Compliance becomes assumed rather than demonstrated. A limited scope rulemaking does not relieve ecology of its obligation to ensure that the conditions necessary for statutory compliance actually exist.

If monitoring is essential to determining net ecological benefit. And it is, then authorizing additional permit-exempt wells without it puts this rule at odds with the Act.

At a minimum, additional permit-exempt wells should be conditioned on and implemented and funded monitoring network. with clear triggers. for adaptive management if stream flow impacts exceed projections.

Thank you.