SQUAXIN ISLAND LEGAL DEPARTMENT April 4, 2008 Ken Slattery ‘Washington Department of Eology Program Director — Water Resources Program P.O. Box 47600 Olympia, WA 98504-7600 Re: Petition for Amendment Mr. Slattery: Enclosed please find the Squaxin Island Tribe’s petition for the amendment of WAC 173-514. 1 look forward to the Department's response. If you have any questions, please feel free to contact me at 360-432-1771 ext. 11 Sincerely, _ Kevin Bftyon Enclosures: Petition ce: Jeff Dickison John Kanovsky SE 3711 OLD OLYMPIC HWY *SHELTON, WASHINGTON 98584 Phone: (360) 432-1771 © Fax: (360) 432-3699Petition for Adoption, Amendment or Repeal of a State Administrative Rule (RCW 34.05.330) Petition to Amend Chapter 173-514 WAC to Set Aside or Withdraw Groundwater in the Vicinity of John’s Creek in WRIA 14 near Shelton, Mason County. Petitioner: ‘Squaxin Island Tribe, a federally recognized tribe Responsible agency: Washington State Department of Ecology Date submitted: April 4, 2008 30 day response required: May 5, 2008 60 day response required: June 5, 2008 1. Introduction. Pursuant to RCW 34.05.330, the Administrative Procedure Act, and the implementing regula- tions of Chapters 43.21B, 43.27A, 90.22 and 90.54, particularly 73-514-090*, the Squaxin Island Tribe petitions the Department of Ecology to adopt and implement RCW 90.54.0260, to wit: (1) Reserve and set aside waters for beneficial utilization in the fu- ture, and (2) When sufficient information and data are lacking to allow for the making of sound decisions, withdraw various waters of the state from additional appropriations until such data and informa- tion are available. The Squaxin Island Tribe requests that the Department for rulemaking, pursuant to RCW 34,05.330, to adopt the provisions of RCW 90.54.050(2) requiring the withdrawal of water re- sources of the state for beneficial utilization until such time that sufficient information and data are available to allow sound decisions on future withdrawal of groundwaters of the state. Spe- cifically, the Tribe requests the Department to withdraw in the vicinity of John's Creek within : (a) groundwater resources to prevent additional appropriations through the permit to withdraw exemptions of RCW 90.44.050 (‘permit-exempt well"); (b) groundwater resources unless and until it is demonstrated that the withdrawal will not have, consistent with the Postema standard, any effect on the flow or the level of the surface water, and (c) surface water re- sources by expanding the seasonal closure period for consumptives to an annual closure. 2. Basis for the Request. 24 Authorizing permit exempt wells without determining whether water is available. Currently, the most common method of obtaining water in WRIA 14, without a water right permit, is through the use of an exemption to the permit to withdraw requirement allowed in RCW * Any person may petition an agency requesting the adoption, amendment, or repeal of any rule, RCW 34.05.330 Q. ? The department of ecology shall initiate a review ofthe rules established in this chapter whenever new informa- tion, changing conditions, or statutory modifications make it necessary to consider revisions. WAC 173-14-090. ® Please see attached Exhibit A for a map of the John’s Creek Vicinity. Petition to Amend Page 1 of 790.44.050*. The exemption has been used to authorize more than 278 wells in WRIA 14 since January 1984, when the exemption was first authorized. ‘The permit-exempt provisions are a procedural exemption only and do not authorize appropria- tion where the appropriation would otherwise violate the four part test or where water was not otherwise available. RCW 90.44.040, .020, .060. Exempt wells are only exempt from the pro- cedural requirements to obtain a water right permit; they are not exempt from other “substantive provisions of the water codes, such as beneficial use requirements, continuous use and the pri- ority system." An Introduction to Washinaton Water Law, Office of the Attorney General (Janu- ary 2000). Nonetheless, substantive decisions are not being made, and the abuse of the code is now ap- parent. Importantly, the County and the Department of Ecology have been complicit in the use of per- mit-exempt wells for numerous projects while water may or may not be available. Each fails to, or refuses to, consider the adverse affect of the related appropriation and/or to determine whether water is or is not available for appropriation. For its part, the County contends that the Department is responsible for such determinations; on the other hand, the Department contends that itis the County's responsibility for such determinations. The result is state and county gov- ermental acquiescence in a programmatic abuse of the water code. A building permit should not issue, and a permit-exempt well should not be authorized (ex- pressly by the grant of a building permit or implicitly by falling to determine if water is available), Until a determination has been made that water is available or that the four part test has been satisfied. A procedural exemption does not, and should not, as it currently does by County and DOE acquiescence and inaction, trump, the water code’s substantive requirements, The Squaxin Island Tribe has advised the County of its concerns in numerous fora, in several contested permits. There has been no change in County procedures to date, and buliding per- mits continue to be issued based on the use of permit-exempt wells, circumventing the need for a water right. John’s Creek routinely fails to meet the summer/fall minimum instream flows established in WAC 173-514-030: ‘At Control Station 12-0760-00, the 7-day average low flow, was significantly below the August 1 through October 15 minimum flow for that same period: ‘+ The 2004 7-day average was 1.5 cfs below the required minimum flow; ‘+ The 2005 7-day average was 2.9 cfs below the required minimum flow; and ‘* The 2006 7-day average was 2.6 cfs below the required minimum flow. Future consumptive water use is also subject to the instream flow established in WAC 173-514- 030. Given the current failure to maintain the required minimum flow, additional appropriation will only serve to exacerbate the problem. * Authorizes an exemption for, among others, “for single or group domestic uses in an amount not exceeding five ‘thousand gallons a day,... for an industrial purpose in an amount nat exceeding five thousand gallons a day ...” Petition to Amend Page 2 of 7