Skagit Valley Herald, Mount Vernon, Wash.
By Rachel Lerman | Posted: Wednesday, December 4, 2013 8:00 am
MOUNT VERNON — State officials urged Skagit landowners Tuesday to “start fresh” and not rehash the past fights over water rights as the state searches for solutions.
“We’ve lost 12 years. And now we’re back to where we started from,” said Tom Loranger, program manager of the water resources program at the state Department of Ecology. “My hope is that we can start…with what we have right now: 2001 rule in place and what can we do and how can we work together and how can we partner with the the appropriate levels of government to provide some water solutions as fast as possible.”
Starting fresh, however, is unlikely to remove the tension around an ongoing water access problem for rural landowners.
More than 80 members of the public, many of whom were landowners with affected wells or property for which they are unable to get building permit, attended a meeting with officials Tuesday. Loranger and Ecology water resources manager Jacque Klug presented at an Instream Flow workshop also attended by Skagit County commissioners.
“My property values just took a massive hit,” said landowner and real estate agent Kyle Brown, who said property owners should have been kept in the loop. “…You guys are just sitting there playing a game. This is not a game to us. This is our life.”
The fight over water rights has lasted decades, this one sparking from a 1996 agreement between the Swinomish Indian Tribal Community, Skagit PUD, City of Anacortes, state Department of Ecology and Skagit County. The agreement designated water rights for the PUD and Anacortes and led to a 2001 Instream Flow Rule, which essentially established a water right for fish.
The Swinomish tribe has said the deeper flow level was set to protect salmon, which need cold water to survive.
The rule was later amended to allow some landowners to get water. But an October state Supreme Court changed that, leaving landowners who had obtained permits for wells since April 14, 2001, without a legal right to water. The ruling directly affects at least 475 homes and eight businesses. Ecology and the Swinomish tribe agreed not to curtail their water use while mitigation solutions are sought.
But for potential landowners and builders who cannot connect to a public utility, a legal source of water remains unclear. To get a building permit, land must have an uninterruptible water source, and all new wells in the Skagit River Basin could be interrupted if the water level drops too low.
Ecology says the solution lies in mitigating, or offsetting, all existing and future water usage. Klug presented many mitigation possibilities the department is pursuing with about $2 million from the state including buying senior water rights, storing water during the wet times of the year to release it during drier times and using existing public reservoirs.
Frustrated property owners urged Ecology to credit the septic water that goes back into the system and recharges the flow.
Storage could be key for the issue, Klug said.
“Really in the Skagit, we don’t really have a water shortage; we have a water timing problem,” she said.
Many landowners questioned the idea of allocating senior water rights, asking how it would be determined who gets to use them. Property owners with existing affected wells should be first, they said.
Allocation is one of the challenges Ecology faces, Klug said.
Commissioner Sharon Dillon said it was frustrating to keep trying mitigation plans that end up nowhere.
“I love your plans,” she said. “…But I’m fearful that we’re going to hang our hat on these, and three or four years down the road we’re gonna be in exactly the same spot that we are now. I really think that you need to have an answer to the mitigation part of it.”
But mitigation tactics could take months or years to implement, and landowners ready to build now are frustrated. Many asked again why a provision for exempt wells wasn’t included in the 2001 agreement and where the science was to support the idea that wells draw enough water to hurt fish.
Klug and Loranger reiterated that water law comes down to a “first in time, first in right,” law, meaning rights obtained earlier (senior rights) get priority over those obtained later. Klug said she understands a provision was not included because it was thought it could be worked out at the local level.
“I ask myself that every day,” she said. “Why didn’t we have a better package to deal with permit exempt wells in 2001? But we have inherited these set of facts, and we have to work through it.”
This issue will affect people across Skagit County, landowner Brown said, especially as it decreases property values. He said he is frustrated individual landowners have not been informed of the decision.
Ecology is working on getting accurate contact lists from Skagit and Snohomish counties, Klug said.
Landowners asked if the problem with decreased fish could be looked at in other ways, saying factors other than water level may be causing the population to decrease.
John Roozen suggested doing a populations dynamics study, which he would help fund, to find out how the fish population has changed over time and what factors might be causing the decrease.
Commissioner Ron Wesen asked if it was possible to re-work the instream flow rule. Loranger said flow rules have been amended in the past, usually from the result of petitions.
Commissioners Ken Dahlstedt and Wesen urged people to contact state legislators about the issue. The state controls water rights, they said, and legislators are the ones who can get results.
“We need them to see this is a big issue that’s going to affect people’s lives, their kids, their grandkids and their financial well-being,” Dahlstedt said.
He said the county would invite legislators from this area to come up for an evening forum to discuss the issue.