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April 9, 2004
Mr. Bob Spahr, Chair Chehalis Basin Partnership
Dear Chairman Spahr,
Due to some serious reservations about the content of the draft Watershed management Plan for the Chehalis Basin I voted against approval of sections 1, 2 and 3 of the plan at the March 26, 2004 Chehalis Basin Partnership meeting. It is my opinion that the plan focuses heavily on continuing a process rather than achieving results, and fails completely to address the real uncertainty of whether there is enough water to meet instream flows and existing water rights. Debate on and resolution of the difficult issues is deferred for discussion "to be held at some future date." How much longer will it be before we start to actually do something to fix the issues we know are out there?
Since the 26th I have met with the Steering/Technical Committee, and individually with other Partnership members. I still have what I consider to be serious reservations about the plan. However, I do not wish to stand in the way of the majority of the members who approve of the plan. Therefore, if the Partnership agrees to note my formal disagreement and include the comments I am providing in this letter as part of its approval process I will drop my position blocking consensus and agree to approving sections 1, 2 and 3 of the plan. Briefly, here are my major concerns:
THE PLAN DOES NOT PRESENT A STRATEGY
According to RCW 90.82.070 (2) watershed plans should include strategies to supply water in sufficient quantities to satisfy the minimum instream flows for fish and to ensure that adequate water supplies are available for agriculture, energy production, population and economic growth under the requirements of the state growth management act. The Partnership appears to feel that laying out a framework for developing the necessary strategies satisfies this requirement and that the detail can be developed later - perhaps under phase 4. 1 maintain that the legislature's intent was that Phase 4 would be used to decide how to implement the strategies developed during the planning process. It all boils down to this simple question: What are the results this plan will achieve? I see individual actions that by themselves have value, but I don't see how they combine into a strategy that is designed to achieve specific results or outcomes.
THE PLAN DOES NOT PROTECT FISH
This Watershed Plan recommends keeping existing 1976 instream flows in place until additional study can be completed (action 53). Other than suggesting that flows be monitored where they have been set (actions 55 & 56) 1 do not see any actions in the Instream Flow section that will "satisfy the minimum instream flows for fish and ensure that adequate water supplies are available ." Instream flows are nothing more than a paper water right for the river. An instream flow has a date of seniority and identifies a quantity of water that may or may not protect fish and biological functions depending on the methodology used to establish the flow. The instream flows established in 1976 are junior to the vast majority of water rights, and may have- never been set with the intention of protecting fish anyway. Flow monitoring during 2002 indicates that the instream flows established under the 1976 regulation are in many cases not being met, yet the plan contains no strategy enforcement or otherwise - that will lead to achieving the flows that have been set. Finally, studies evaluating the relationship between stream flow and fish habitat have been completed for several salmon bearing streams but the results of those studies were not. addressed in this plan except to say that "we'll talk about that later." This plan does not protect fish.
THE PLAN DOES NOT SUPPORT AGRICULTURE, POPULATION GROWTH, ECONOMIC DEVELOPMENT
The plan cites forecasts that population is likely to double in the Chehalis Basin by the year 2025. As population grows demands on the rivers, streams, and ground waters in the Chehalis Basin will increase. Already there are communities and individuals that are unable to obtain the water they need. The situation is only going to get worse.
When you compare the quantity of water represented by existing water rights and claims to actual river flows it is clear that the Chehalis Basin is over allocated. It is my understanding that Ecology must treat all water rights and claims as valid because only the courts have the legal authority to determine the validity of individual water rights and claims. The result is great uncertainty and the inability to make a positive finding that water is available - one of the four tests that Ecology must meet before establishing a water right'. The result is the denial of applications for new water rights.
Until a process is carried out to determine which water rights and claims are valid, and the seniority date of each (including instream flows) the Department of Ecology has Limited ability to enforce against illegal water users.
The Chehalis Tribe has made it clear that it is reluctant or unwilling to quantify its water right or to participate in a general adjudication of all water rights in the Chehalis Basin. I ask the Tribe to consider this possibility: since they have a time-immemorial water right that predates all other rights maybe they would be better off seeking to quantify their right before a general adjudication so that they are given the first slice out of the pie rather than waiting until last and being seen as taking away part of someone else's slice that has already been found valid - subject to the tribal right. The reason for this is that there will be no certainty of any state water right until the Tribal water right is resolved. I also ask the Partnership to consider this possibility: given the controversy surrounding adjudication, maybe the Partnership can recommend establishment of a new process - something other than a general adjudication - that would achieve the same results. As it stands according to action #6, the Tribe and Ecology are the only entities discussing this important issue with no guidelines or deadline. Maintaining the status quo does nothing to protect water users or fish.
Adjudication of water rights and claims in the basin would provide the certainty needed to facilitate protection of senior water rights, enforcement for instream flows, and promote marketing of water - all essential during times of drought. I recognize that clarifying water rights and claims through adjudication may not result in more water being available. It is likely that we will find that the Chehalis Basin as a whole is still over allocated. But at, least we will know who has valid Water rights and for what amount. Moreover, for the first time we can clearly know how much water is actually being used. This information will help individuals or groups who need water to avoid wasting time and money seeking transfer of water rights that are not valid. It will make it possible for Ecology to protect valid water rights (including in stream flows) against illegal water use. Because of our reluctance to deal with this issue, the watershed plan does not ensure that "adequate water supplies are available for agriculture, populate, and economic growth.'
Finally, I can not find any discussion or actions that address requirements of the state growth management act. We have also failed to address flooding which is not a required element of the plan, but which is a serious issue for many residents of the basin.
The concerns described above lead me to conclude that our efforts - this watershed plan - will not result in the water fish need to thrive in our watershed and that the continued uncertainty about water will make economic development difficult outside those few communities that have large amounts of unused water available.
I believe this plan should have accomplished more to identify stream flows that are needed to ensure a healthy watershed and establish these as instream flows than recommending additional study (action 54). By not doing more, we are leaving it to the legislature to determine how in stream flows will be set and achieved, and establish the schedule for doing so (see substitute house bill 2396 from the 2004 session). There is always the risk that the legislature will act according to its own will regardless of what we do, but with this information we could at least have had a chance to influence the outcome
Sincerely,
J. Roach Appointed Citizen Representative from Thurston County
' The four tests are: the water must be put to beneficial use [RCW 90.03.290]; the use of the water will not impair existing water rights [RCW 90.03.290]; water must be available [RCW 90.03.290]; the use of the water must be in the public interest [RCW 90.54.020(10)]
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