Frequently asked questions about water management and the proposed Dungeness Rule

This page is being maintained as an archive of past information and will not be updated.

Introduction

The Department of Ecology filed a proposed water management rule for the Dungeness watershed with the Washington State Code Reviser’s Office in May 2012.  A public hearing was held on June 28, 2012.  The comment period ended at 5:00pm on July 9, 2012.  All of the comments received will become part of the official record.  The proposed rule documents are currently available along with the supporting environmental and economic analyses.

While Ecology staff has spent significant time in the Dungeness watershed providing information about water management in 2012, water management efforts are nothing new to the area. This watershed has a significant history of water resource planning.

Two significant plans establish a foundation for the proposed rule: the Dungeness-Quilcene Water Resources Management Plan, adopted in 1994, and the Elwha-Dungeness Watershed Management Plan, adopted in 2005.  Both plans call for the protection of instream resources and uses (such as fish, wildlife and recreation), and recommend adopting flow levels (“instream flows”) that protect these resources.  The Watershed Management Plan also recommended offsetting the impact of new water uses via mitigation.

This website contains answers to some of the questions Ecology staff encountered during their numerous visits to the community.

General information

  1. What is the purpose of the rule?
  2. How can I make sure my concerns are considered in this proposed rule?
  3. How can the basin be “over-appropriated” when some water rights aren’t being used?
  4. Will the rule improve stream flows?  

Water Exchange and Mitigation

  1. What is a water exchange (also called a water bank) and why do we need one?
  2. What are mitigation credits and how much would they cost? 
  3. Would there be a mitigation fee for all new homes?  Would there be ways to avoid it?
  4. Would there be alternatives to the Water Exchange for providing mitigation?
  5. What would happen to my mitigation credit if I sell my house?
  6. Would there be administrative costs associated with the water exchange (bank)?
  7. Are the rule’s “reserves” of water physically stored somewhere?
  8. How does the rule address the possibility that flows will improve or concerns about the instream flow studies in the Dungeness?
  9. Why were there more fish in the River in the 1970s, when there was less water (due to higher diversions)?

Water Reserves and New Development

  1. Could the proposed water reserve sizes be expanded, given that mitigation may be harder to implement for small streams?

Wells

  1. I already use a well to supply water to my house. How would the new rule affect me?
  2. Would the rule apply to previously drilled but unused wells?
  3. Would drilling new wells into deeper aquifers mitigate their effect? Could this be required in lieu of a rule?
  4. When wells are drilled into the second and third aquifer, how can you ensure these wells are constructed to prevent cross-contamination of aquifers?
  5. Will this rule take away the exemption enjoyed by people who drill permit-exempt wells?

Water Use

  1. Would water be available for vegetable gardens and landscaping?
  2. Where are areas that mitigation for outdoor use may not be available?
  3. Why would we have to mitigate for water used for landscaping and gardening?  Doesn’t it just go back into the ground?
  4. What is consumptive use, and what is the difference between indoor and outdoor consumptive use?
  5. What specifically are “incidental outdoor uses” and how do these fit into the picture?
  6. Is it legal to collect and store rainwater that falls on one’s own property to use for gardening?

Metering

  1. Why is metering for all new uses being considered, as opposed to alternatives such as basing average use from research on typical use, or voluntary meter use?

Economics

  1. When will we have a chance to review the economic analysis conducted for the proposed rule?
  2. Won’t this rule promote water speculation?
  3. How were fish valued in the economic analysis?

Science

  1. Is the science behind the groundwater model robust enough to use to determine mitigation?
  2. What are instream flows and how are they determined?

Effect on Pending Water Right Applications

  1. How many pending applications are there?
  2. Will adopting the rule help Ecology process pending water right applications?

For more information


General information

  1. What is the purpose of the rule?

The proposed rule would guide water use planning and decision-making for new water users, and set policies to help protect the availability of water supplies for current and future needs of people and the environment. 

  1. How can I make sure my concerns are considered in this proposed rule?

A public hearing was held on June 28, 2012.  The comment period ended at 5:00pm on July 9, 2012.  All of the comments received will become part of the official record.  The proposed rule documents, comments, and supporting environmental and economic analyses are available:

  1. How can the basin be “over-appropriated” when some water rights aren’t being used?

“Over-appropriated” means more water has been legally distributed (as water rights) than is actually flowing in streams.

By state law, water users have rights based on priority (“first in time, first in right”).  Those with the earliest rights are first in line. It is evident that the basin is over-appropriated because some existing users of surface water rights are unable to fully utilize their rights.  So even with some existing rights not being used, year-round water supplies are still unreliable.

Approximately 1,300 water rights claims were established in the Elwha-Dungeness watershed before 1917 when the state water code was adopted, and 700 additional water rights certificates have been issued since then.

To help stream flows, local irrigators have voluntarily agreed to stop diverting water from the Dungeness when flows fall below 60 cubic feet per second (cfs) to compensate for limited water for fish. They have been doing this for more than a decade.

  1. Will the rule improve stream flows?

This question highlights a common misunderstanding about the proposed rule.  The rule is not intended to assure improved stream flows.  The proposed rule is designed to prevent new water withdrawals from causing further degradation to stream flows and fish habitat, and to protect the rights of senior water users.  Setting instream flows is one water management tool to protect streams from getting worse.

Another tool in the proposed rule to prevent worsening stream flows is the requirement that impacts to streams by new water uses need to be offset, or mitigated.  New water users will only be required to mitigate for their own impacts to surface waters.


Water Exchange and Mitigation

  1. What is a water exchange (also called a water bank) and why do we need one?

Operating like a bank, with deposits and withdrawals, the Dungeness Water Exchange would acquire water rights from willing sellers.  Existing senior water right holders could choose to sell all or a portion of their water rights for use by other water users.  The Exchange would also explore other creative opportunities to secure water for mitigation.  Water rights acquired by the Exchange would serve as “mitigation credits” which can then be made available for purchase by prospective new water users.

The water exchange would be an “institutional” water bank, meaning that it would be a way of keeping track of the water mitigation credits and withdrawals on paper.  It would not be a reservoir for storing millions of gallons of water.

Under the proposed rule, new water uses would only be allowed if that use is mitigated or offset by an existing water right.  A water exchange would provide an opportunity for people to gain access to water that has been “banked” from the Dungeness watershed.  

A water exchange would help simplify this transaction by making water available to many users under a single water right.  Multiple buyers pool funds and thus lessen costs for individual water coverage, the “mitigation credits.”

  1. What are mitigation credits and how much would they cost?

A mitigation credit is an amount of water that you would purchase from the water bank, to offset the impacts (mitigate) of your new water use.  It would be based on all of the following:

A mitigation credit would be legal documentation that your impacts are offset by water available through the Exchange.  Mitigation credits would be recorded with the deed to the property.  Under the proposed water exchange, purchasing mitigation would be a one-time transaction and cost, similar to paying for a building permit.  Costs would depend on how much water is needed and would be market driven, but it is estimated they would range from $500 to $3,500, according to preliminary estimates from an economist under contract with Clallam County.

  1. Would there be a mitigation fee for all new homes?  Would there be ways to avoid it?

The rule would require mitigation for water use in a new home, unless the new home can secure water in one the following ways:

The proposed Dungeness Water Exchange would be the easiest way for most new users of water to provide mitigation, by purchasing mitigation credits.  The Exchange would be in operation when the rule goes into effect.

The Local Leaders Water Management Work Group recommended that a policy of waiving the indoor/basic mitigation fee for owners of existing but unused wells (or finding a source to pay the fee) be investigated at the time the Exchange pricing policies are formed.

  1. Would there be alternatives to the Water Exchange for providing mitigation?

Rulemaking was delayed for a year to allow time to explore all water supply options, including the bulk purchase option.  The County made this suggestion several years ago but could not identify funds for such a purchase.  After thorough study, the Local Leaders Work Group was unable to arrive at an alternative to the pay-as-you-go water exchange, either.

The Water Exchange would not be the only option.  A second mitigation option would be to develop an independent mitigation proposal.  It would have to be approved by the Department of Ecology before the new water use begins.  The requirements for an individual mitigation plan would be in the proposed rule.  This option would avoid the “mitigation fee” (purchasing mitigation credits from the Exchange), but there would still be a cost to provide independent mitigation.

Clallam County has recently come back to the idea of a one-time “bulk” mitigation project.  This approach would secure mitigation water to be provided to new water users, without an obligation for individual repayment.  The legislature could approve state funds for this purpose.  As a complement to the Dungeness Water Exchange and the Agreement in Principle signed last year, Ecology looks forward to collaborating with the County, City, local legislators and others to explore this funding option further.

  1. What would happen to my mitigation credit if I sell my house?

When a mitigation credit is bought, the purchase would be recorded against the deed that goes with the property.  This means when the property is sold, the mitigation credit would stay with the property and the new owner would have the right to use the water associated with that credit.

If a new property owner wants additional water (beyond what the previous property owner bought and was using), the new owner would have options such as:

  1. Would there be administrative costs associated with the water exchange (bank)?

The intent is for the proposed water exchange to be as self-supporting as possible.  It would have administrative costs just as all service delivery systems do. For example, our utilities and cities that supply water have administrative costs.

The “fixed costs” of running an exchange would be shared among all its users.  These costs would be small in comparison to the costs of implementing mitigation projects.

The Washington Water Trust (WWT), a non-profit organization, has been contracted by the County and Ecology as the “bank manager” for the day-to-day management of the Exchange, to buy and sell water rights and track the transfers.  A local advisory board would oversee the Water Exchange. Representatives from Clallam County, Ecology, the Sequim-Dungeness Water Users Association, the Jamestown S’Klallam Tribe, City of Sequim, Clallam PUD #1, and the Washington Department of Fish and Wildlife would be invited to take part in the Advisory Board.

The goal of the County, WWT and Ecology would be to keep all the costs down to the lowest level reasonably possible.  The cost or pricing measures would be designed to ensure the Exchange avoids use of state funds to subsidize private interests, which would be contrary to state law.

  1. Are the rule’s “reserves” of water physically stored somewhere?

The reserves are not stored in a reservoir or other place, but they are a small quantity of water that currently exists in groundwater and streams throughout the Dungeness Basin. The reserves  would be established to ensure that water is available for domestic (household) use.    In this watershed we will rely on mitigation (the offsetting of new water uses) to replenish reserves. If no mitigation options exist due to lack of water or water rights or the costs are too high then that reserve is not replenished and an impact, up to the amount of the reserve, will occur on that stream.    

  1. How does the rule address the possibility that flows will improve or concerns about the instream flow studies in the Dungeness?

The Local Leaders Work Group established a flow of  105 cubic feet per second as a target restoration flow for the Dungeness River.   This target flow is included in the instream flow rule as the trigger point at which the review of new data will occur. When flows in the Lower Dungeness river reliably attain an average daily flow at or above 105 cubic feet per second (cfs) (for 8 out of 10 years) during the low flow time of year, Ecology will meet with local partners and assess whether new Dungeness River instream flow or other technical studies are warranted. 

  1. Why were there more fish in the River in the 1970s, when there was less water (due to higher diversions)?

There is no evidence that there were more fish salmon and steelhead in the Dungeness River in the 1970s.  WDFW’s data base has no counts for Dungeness River summer steelhead, fall and summer chum, and Coho salmon during the 1970s.  WDFW only began counting Chinook and pink salmon and steelhead in the mid-1980s.  The population counts for pink and Chinook salmon show their numbers have increased since WDFW started counting in 1985 and 1986, respectively.  In 1975 the Department of Fisheries in their Catalog of Washington Streams and Salmon Utilization said the Dungeness State Salmon Hatchery at river mile 10.5 was built in 1902 and was successful until 1909 when extensive irrigation projects were developed along the river.  Severe depletions in the spawning stocks were noted thereafter.  The report noted (in 1975) that although the Dungeness River hatchery had been artificially propagating spring Chinook for over three decades, the runs have not increased appreciably.


Water Reserves and New Development

  1. Could the proposed water reserve sizes be expanded, given that mitigation may be harder to implement for small streams?

Ecology is proposing to establish reserves of water to ensure flexibility for allowing new domestic (household) uses throughout the Dungeness basin.  When deciding whether to establish reserves we must weigh how much benefit the public would gain with how much impact would occur to fish and other instream resources, which we are responsible for protecting under state law.  Ecology has the authority under RCW 90.54.020(3)(a) to allow limited impacts to protected “instream flows” when we determine that doing so is clearly in the overriding public interest.

So that flow levels would still be protective of instream resources (e.g. fish, wildlife, navigation), the reserves are limited in quantity to allow no more than a 1 percent impact on fish habitat during the low flow periods.  A benefit of having water in the Water Exchange is that this water can also be used to replenish the reserves.  If a specific reserve gets used up and no new mitigation credits are available, the rule would not allow a new use to occur unless additional mitigation water is secured to replenish the reserve in the affected subbasin.  We have estimated how long the reserved water could last without being supplemented via mitigation.


Wells

  1. I already use a well to supply water to my house.  How would the new rule affect me? 

The proposed rule wouldn’t change existing water rights, which you have already established if you are using water from your well.  You’d only be affected if you decide to increase your water use or add a new type of water use to your property.  Examples include starting to use additional water for new landscaping, building a second home on the property, or starting other new uses allowed under the groundwater permit exemption.  In this case, only the new amount of water would be subject to the rule requirements, not the existing use.

description of beneficial use
  1. Would the rule apply to previously drilled but unused wells?

The rule’s requirements would apply to any new water use that begins after the effective date of the rule.  This includes use of a previously drilled but unused well.  State water law differs from local building or construction permit codes, with one of the main differences being the concept of “grandfathering.”  Under land use permit codes, projects are “grandfathered” at the time of permit filing, meaning only the existing rules apply even if new rules are adopted at a later date. 

Under state water law, there is no “vesting” or “grandfathering” when it comes to water rights.  That means wells drilled before the effective date of a new regulation, but not put to use until after that date, are subject to the new requirements.  A water right under the groundwater permit exemption doesn’t begin until water is put to regular and beneficial use.

More information on water rights in Washington State:

  1. Would drilling new wells into deeper aquifers mitigate their effect? Could this be required in lieu of a rule?

The aquifers in the Dungeness are connected because the confining layers between them are not completely impermeable, meaning water can move through them. The Dungeness groundwater model demonstrates that water use from deeper wells still causes depletions to surface waters and the depletions are spread across a wider area. Thus drilling wells deeper would not eliminate the need for the rule.

  1. When wells are drilled into the second and third aquifer, how can you ensure these wells are constructed to prevent cross-contamination of aquifers?

All new wells must be constructed consistent with the requirements of  Washington’s “Minimum Standards for Construction and Maintenance of Wells”, Chapter 173-160 WAC.  These standards require wells to have sealed casings so aquifers are protected from cross-contamination. The proposed rule includes a reference to those regulations.  

  1. Will this rule take away the exemption enjoyed by people who drill permit-exempt wells?

No this rule will not take away the permit exemption.  The groundwater permit exemption is an exemption from applying to Ecology for a water right permit. After the rule is in place permit exempt wells can still be drilled without the well developer applying for a water right permit from the Department of Ecology.  A water user is still subject to the state water code, including someone proposing to use water under the groundwater permit exemption.  As before, once water from a permit-exempt well is put to “regular beneficial use” a water right is established.  The rule would require that newly established uses, including new uses under the exemption, comply with new water management requirements.  Thus, people owning drilled and unused wells who begin using their wells after the effective date of the rule are not “losing the exemption” they are allowed to withdraw water under the permit exemption, subject to requirements of the rule.  Since no water right is established until water is put to regular and beneficial use, a drilled and unused well does not yet have a water right associated with it.  Thus, nothing is “taken away,” as a water right does not yet exist. The law on how and when a water right is established does not change with the advent of the rule.


Water Use

  1. Would water be available for vegetable gardens and landscaping?  

The draft rule won’t affect you if you already use water from a household well, a community water system, the City of Sequim, the Public Utility District (PUD), or an irrigation company or district.  Once the rule is adopted there would be several ways to secure water for lawns and gardens, depending on where your property is located:

  1. Where are areas that mitigation water for outdoor use may not be available?

Mitigation water for outdoor use hasn’t yet been identified in areas away from existing irrigation pipes and ditches.  (These areas are the southernmost part of the watershed and to the west of Siebert Creek).  Some of these areas are served by public water supply, but not all.

However, we haven’t ruled out finding water for outdoor use in any part of the Dungeness Watershed.

  1. Why would we have to mitigate for water used for landscaping and gardening?  Doesn’t it just go back into the ground?

Water is used for irrigation when it is not available by precipitation to provide water that plants need to grow and survive.  Therefore the sole purpose of irrigation is to provide water that can be consumed by plants.

Although some irrigation water used outdoors does eventually return to the water table and streams through deep percolation and runoff, most of it is likely to be consumed through plant uptake and transpiration, evaporation, and storage in soil.  The amount of water needed and absorbed by plants increases during the growing season (May through September) with peak water needs in the month of July.

  1. What is consumptive use, and what is the difference between indoor and outdoor consumptive use?

Consumptive use is legally defined as water use that diminishes the volume or quality of the water source.  This means water that is withdrawn and used either does not return to the source or returns in such poor quality that it degrades the water quality of the source.  For new water uses under the proposed rule, the water sources are the aquifers.

Indoor consumptive use for a residence depends on whether the home is served by a septic system or a sanitary sewer.  If the home gets its water from a well and is on a septic system, then most of the water isn’t consumed.  That’s because the water that goes down household drains mostly returns to the ground after being treated by the septic system and percolating through your home’s drainfield.  Typically, only about 10 percent of water used within a home is consumed by drinking, cooking and evaporating.  And septic systems are subject to regulations to protect water quality.

If a home relies on a well but is served by sanitary sewer system, the discharge from the sewage treatment plant frequently goes to a different location and doesn’t return to the source aquifer. In this case 100 percent of that use is consumptive.

Irrigation of a lawn or garden is the typical outdoor use of water for a residence.  Most of the water that is applied to plants is used by the plants and doesn’t return to the source, thus is considered mostly consumptive.

  1. What specifically are considered “incidental outdoor uses” and how do these fit into the picture?

Incidental outdoor use includes non-irrigation uses of water such as washing cars, windows, and decks.  These are small uses, and for purposes of tracking and debiting they would be considered domestic uses.

  1. Is it legal to collect and store rainwater that falls on one’s own property to use for gardening?

On Oct.12, 2009, Ecology issued an Interpretive Policy Statement clarifying that a water right isn’t required for rooftop rainwater harvesting for use on- site for household use include gardening.  This will not change under the rule.


Metering

  1. Why is metering for all new uses being considered, as opposed to alternatives such as basing average use from research on typical use, or voluntary meter use?

Water meters are already in widespread use in the Dungeness watershed by farmers, community water systems, the City of Sequim, the PUD, Batelle Labs, and a variety of businesses.  In compliance with a 2001 Superior Court ruling, metering is required in 16 “water short” critical basins in our state, of which the Dungeness basin is one.

It is true that there are ways to estimate average use other than by requiring meters for all new uses.  But for the Water Exchange to function fairly and accurately, measuring and tracking water use is necessary. Individual users will be purchasing mitigation credits based on how much water they would like to use.

Without measuring and tracking, there would be no means to verify if the amount of use equals the amount of water that’s been “exchanged” for mitigation.  Without a way to verify, we would have to require an additional cushion of mitigation, which would increase costs for new water users.  For this reason, metering and reporting water use will keep mitigation fees as low as possible.

The Dungeness River Management Team and local governments discussed the possibility of a voluntary approach to metering.  The conclusion was that such an inconsistent sample would provide little useful information. 


Economics

  1. When will we have a chance to review the economic analysis conducted for the proposed rule?

You can comment now.  Every Ecology water management rule proposal includes an economic analysis.  The draft economic analysis was included when the proposed rule was filed in May. Comments are invited on both the economic analysis and the proposed rule during the formal review period (through July 9, 2012).  The economic analyses are based on the final draft rule language, and therefore are one of the last major steps before the rule proposal is filed.

  1. Won’t this rule promote water speculation?

When the rule is in place the water exchange will deter speculation by having discretion over who it sells to, and an Exchange Advisory Board would monitor activities of the exchange, including who can purchase credits.  The current membership proposed for the Advisory Board includes Clallam County, Ecology, City of Sequim, Clallam County  PUD#1, Dungeness Water Users Association and the Jamestown S’Klallam Tribe.

  1. How were fish valued in the economic analysis?

Ecology uses a value of $5,000 per returning spawning salmon in its economic analyses.  This value is based on findings of a 1999 University of Washington study that estimated the value of returning salmon.  The UW estimate has been adjusted to reflect current dollar values.  The $5,000 figure reflects 20 years of the public’s willingness to pay to maintain and restore salmon populations and habitat.  This number is consistent with a wider set of analyses, multiple studies, and restoration values researched in them, which are noted in the CBA.  People may value salmon for a variety of reasons, some of which may include fishing, their cultural significance, salmon’s role in the ecosystem, a desire to prevent extinction, and/or the value of incomes of people who make a living off salmon.


Science

  1. Is the science behind the groundwater model robust enough to use to determine mitigation?

Yes.  The 2008 Dungeness Groundwater Flow Model was originally developed by the U.S. Geological Survey (USGS).  Although there are uncertainties with all computer groundwater models, Ecology and other project partners (including Clallam County, Clallam County PUD, the City of Sequim, USGS, Jamestown S’Klallam Tribe, Foster-Wheeler /Tetra Tech, Aspect Consulting, and Pacific Groundwater Group) have all closely examined the model and agreed that it provides the best simulation available of groundwater conditions in the Dungeness River basin.

In the past 15 years, over a million dollars have been invested in collection of data, model construction, revisions, calibration, peer review, and documentation.  Local project partners have contributed time and resources and actively participated in the project every step of the way.  As a result, the 2008 Dungeness Groundwater Flow Model is currently one of the best groundwater models in the state.

The model is a tool to quantify and simulate groundwater movement through the basin and subbasins at a regional scale.  It was developed as a way to evaluate and predict impacts on ground and surface waters from piping irrigation ditches and increasing groundwater withdrawals from wells.  It was also recently revised so it could evaluate groundwater recharge projects currently under discussion.  These projects could potentially mitigate new groundwater withdrawals or increase stream flows in late summer.

  1. What are instream flows and how are they determined?

For more information on the science behind the proposed rule:


Effect on Pending Water Applications

  1. How many pending applications are there?

There are 45 water right applications pending for community domestic, industrial and irrigation water across the Dungeness watershed.  These requests for water haven’t been granted because water has not been reliably available year-round.

  1. Will adopting the rule help Ecology process pending water right applications?

With a thriving water exchange in place with adequate water available, applicants willing to buy mitigation credits would not have to wait behind senior applicants and could proceed with having their application processed.  That’s because, with the requirement for mitigation and the exchange in place, Ecology would be able to make a case that the applicant is not “diminishing the source” of water.


For more information