SEPA protest

Issues, Errors and Omissions on Environmental Checklist

and Objections to the "Determination of Non Significance"

The State Dept. of Ecology SEPA Handbook states:

Section 4, Non-project review:

The procedural requirements for SEPA review of a nonproject proposal are basically
the same as a project proposal. Environmental review starts as early in the process as
possible when there is sufficient information to analyze the probable environmental
impacts of the proposal.

"Nonproject review allows agencies to consider the “big picture” by conducting comprehensive analysis, addressing cumulative impacts, possible alternatives, and mitigation measures."

Under definition section for significant impact:

"What is considered significant will vary from one site to another, and from one jurisdiction to another, both because of the conditions surrounding the proposal at a particular location, and because of the judgment of the responsible official."

The water supply report must answer the SEPA check list taking into account the comprehensive impact of the plans, even though the report itself is may be a "nonproject."

WAC 197-11-390: states "(1) When the responsible official makes a threshold determination, it is final and binding on all agencies"
Since the water right applications and modifications are enumerated in the report, and listed in the SEPA checklist, this DNS has broad sweeping implications to the Dept of Ecology and the Dept of Fish and Wildlife. This will deprive citizens of the right to address environmental issues on a case by case basis.

Specific Issues:
1) The water right modifications and applications far exceed the 1 CFS exemption level set by Ecology for modifications of surface water rights.
The follow table shows the water rights pending with Ecology as of 2/6/2006, including 8 applications by EWUA in Jan of 2006 (prior to the SEPA DNS).

Application #	Source of water	Withdrawal rate	Annual volume (acre ft)	applicant
CS1-*62085ATJWRIS	Cascade Creek	3.00 CFS	1204.0	Rosario
S1-28408	Cascade Creek	1.00 CFS		EWUA
S1-28143	Cascade Creek	0.05 CFS	5	Taylor
S1-28144	Cascade Creek	0.5 - 5.00 CFS	instream flow preservation	Taylor
G1-28407	Cascade Lake	1.00 CFS		EWUA
S1-26308, Aug 1981	Cascade Creek	0.26 CFS	already declined (preliminary)	OWU
S1-23175, July 1978	Mountain Lake	0.80 CFS	already declined (preliminary)	OWU
CS1-71002J@1	Cascade Lake	2.66 CFS	504.0	Rosario
CR1-71001JWRIS	Cascade Lake		1879	Rosario
CS1-27616	Cascade Lake	0.98 CFS	171.0	Rosario
S1-23704	Big Twin Lake	3.00 CFS		EWUA
R1-28409/S1-28410	unnamed stream	0.90 CFS	314.0	EWUA
S1-28411/R1-28412	unnamed lake	0.67 CFS	46.0	EWUA
S1-28413/R1-28414	unnamed lake	0.67 CFS	61.0	EWUA
R1-28224	Purdue Lake reservoir		314.0	EWUA
S1-28225	unnamed	0.67 CFS	203.8	EWUA
S1-28226	unnamed	0.90 CFS	325.0	EWUA
G1-27704	well	40.00 GPM		EWUA
G1-27705	well	47.00 GPM		EWUA
G1-25871	well	45.00 GPM		EWUA

This data can be verified at www.ecy.wa.gov/programs/wr/info/wrats/Wria_sanjuan.pdf and should be updated at the end of the first week of March.
Since the SEPA DNS is to address the total impact, these water right modifications may be considered non significant as part of that total.

With one wide brush stroke, the county's "Determination of Non Significance", could exempt all of the above applications from SEPA review, resulting in substantial harm to the environment.

These volumes far exceed the estimated recharge of the watershed (RH2 and Sandy Taylor.)

The most obvious solution is to postpone water right modifications until further data can be gathered. Eastsound's near term needs can easily be met with existing domestic use rights. For long term habitat protection, water rights should be abandoned, or put into a permanent trust with the state. The existing plan of converting everything to domestic use as the first step in habitat protection is fatally flawed.

As a minimum, the water rights should be specifically excluded from the checklist. This would avoid concerns of this DNS being extended to apply to water right modifications whose impacts have not been investigated to date.

2) How were the threshold levels determined, and why are they so inconsistent with thresholds set by the state? The The responsible official, Ron Henrickson does not appear to have been involved in setting the levels, or even to have reviewed the details of the report prior to the publication of the DNS notice (based on phone conversations and email requests). This is cause for concern that the environmental issues have not been taken seriously. A request for public records was submitted 2/24/06 seeking further information from the county in this regard since there has not been any response to the email and phone requests for details. The committee members and Barbara Rosenkotter, the Salmon Lead Entity were not invited to review the environmental check list prior to publication, or even notified prior to publication. We were left to discover it as a legal notice in the paper along with the general public. This continues the pattern of excluding Barbara Rosenkotter from the process, despite reassurances from the County Council in Dec 2005 that she would be included.

3) Question A 9 on the environmental check list, mentions water right applications with the dept of Ecology, but fails to mention the protests filed against several of the applications. The protests include specific habitat issues. The 17 points and attachments A-G of the protest filed by OWU in Dec 2005 are part of this comment on the DNS . The protest is a matter of public record and has been available on the web since it was submitted to Ecology. The committee members and leadership are well aware that the protests have been filed, but none of the habitat concerns have been addressed.

4) The report and SEPA checklist are obligated to use the best available science. There is significant double counting of water in the instream flow reports and the subsequent use of these numbers by other county reports. This results in an exaggeration of the flow in Cascade Creek by over 800 acre ft/year. It has been pointed out several times over the years to Vicki Heater, discussed at the meetings, and documented extensively with photographs, but the bad data persists, and the corrections and comments on the errors get buried. The error can be traced back to table 2.2 in the Apr 2004 WRIA Surface Water Storage Assessment. This should be corrected.

5) The report contains the very misleading statement: "Based on the little data that exists, the conclusion of this study indicates that the recommended flow is not available in the creek for salmon spawning and rearing during average years, even without diversions from the creek." Later it goes on to ask "(whether it is actually spawning habitat)," Salmon spawning has been extensively reported over the years. There are first hand reports from Dept of Fisheries of spawning in Cascade Creek. I have provided pictures and video of spawning activity. The minority report contains more detail, and is part of this comment on the SEPA DNS. The proposed modifications of water rights in Cascade Creek that have been neglected for decades will have a very detrimental affect on the summer flow for the chinook salmon and sea run cutthroat, and delay the critical early winter flow for the chum and coho spawning. It is unreasonable to claim that the proposed water right modifications would not have a significant detrimental affect on this critical habitat.

6) As pointed out by Steve Boessow at DFW, the summer flow below the Rosario Diversion is probably due mostly, if not entirely to return flow from the failing Rosario diversion (email attached). After was pointed out in OWU's protest to Rosario's water right modification (and included in the minority report) there was talk of repairing the ditch. It was pointed out to the committee that an HPA was required since the return flow from the ditch affects instream flow in Cascade Creek, and that the ditch discharges into a natural stream, which feeds Cascade Lake. This caution was ignored, and the work proceeded. WDFW was notified, and Rosario was instructed by Pete Castle to stop work (see attached email). This should have made it clear to the committee that recommendations and actions mentioned in the report, specifically changing the water actually diverted from Cascade Creek, was harmful to the fish and the habitat.

7) Hydraulic permits will be needed to complete most portions of this plan, but they are not mentioned in the response to question A 10.

8) The Mountain Lake/Cascade Creek watershed has several fresh water and estuarine wetlands, and very sensitive near shore habitat supporting a wide variety of unique animals. This is glossed over in the response to question B 3 a 1 (Surface Water). Have the proper agencies been notified about the impact on the estuarine wetlands and near shore habitat?

9) Have the Samish Indians or other interested parties been notified of the DNS, and made aware of the probable impact on the summer flow into Buck Bay?

10) The response to question 2 under the surface water section is incorrect. Extensive work will be required in stream beds, lakes and wetlands in order to develop the water rights described. It is unreasonable to include the water right applications as part of the checklist, then answer the rest of the questions as if there was no work required to develop the withdrawals and delivery. The impact will be substantial. This is a very serious omission. HPAs will be required at several points during the proposed changes.

11) The response to question 4 on surface water: "The report does not require any surface water withdrawal..." contradicts the inclusion of the massive water right modifications and applications. The Rosario diversion is reported as if it is actively in service 100% of the time at 100% capacity. The plans presented in the report require new withdrawals or renewing ones that have not been active successfully for decades, as documented in the protests to the water right modifications. The title of the report includes "Water Supply." It is obviously about supply water, which requires the withdrawal of surface water.

12) The response to question 5 is incorrect, there are flood zones in the lower reaches of Cascade Creek. In Jan 2005, the county road was flooded.

13) Question 4b states that no plants will be removed or altered. It would be impossible to implement a plan to supply water to Eastsound and Rosario without having an impact on plants. Areas in and around the streams and lakes would be affected, pipe would have be be buried for miles to get to Eastsound. This response conceals a substantial impact.

14) Question 4c requires the applicant to list threatened or endangered species. The response "many" does not provide sufficient information to make any kind of an informed decision. This response is inadequate and conceals the potential for significant harm.

15) In section 5 on Animals, none of the boxes are checked., and nothing is circled. Some entries are underlined, but it is not clear if this is part of the response or not. The answer should list the specific species including sea run cutthroat, chum, coho and chinook, as observed by WDFW.

16) Alternatives were not open for discussion or mentioned in the report. Rosario has sufficient domestic use water rights for future development, they need to increase plant capacity. There are significant needs for water on the West side of the island, and there are substantial areas of recharge in that direction as well. These options were not considered. The current strategy to convert private septic systems to Eastsound Sewer has reduced the recharge of the Eastsound aquifer of recharge during the critical dry season, in the order of 100,000 gallons per day. No serious effort was put into examining the potential for using secondary water for recharge or irrigation of the sports fields. The school was discouraged from using a catchment system for the same irrigation.

17) The drive to limit the use of exempt wells in the Eastsound area was driven by the financial concerns for EWUA. The decision was not consistent with the science in the report by Doug Kelly to the BOCC in Dec, 2005. The effective moratorium on exempt wells will lead to increased demand for water from Cascade Creek and Cascade Lake.

18) The plan repeatedly states that insufficient data is available, yet encourages Ecology to expedite decisions to support the report. Why the rush? Eastsound still has substantial water available in the Eastsound aquifer. There is no data to suggest the water table is dropping. The reported levels are far above those described in Doug Kelly's report as being safe from sea water intrusion.

19) The Rosario diversion should have a fish screen immediately. The dam should have a notch cut in it to provide a minimum flow before any water is diverted such that fish can pass over the dam without getting trapped in the V notch, or sucked into the ditch. The portion of the water right that has not been relinquished, if any, should be diverted efficiently in a pipe, and not intercept any other water along the way. The existing ditch intercepts several small seasonal streams that would otherwise naturally flow into Cascade Creek. The diversion should be shut down entirely when Cascade Lake is overflowing already, or when it is clearly going to overflow in the near future. The situation during the 2005 drought when Rosario insisted on water being dumped from Mountain Lake, while Cascade Lake was already overflowing is appalling. A logical plan to conserve water was not given any consideration by the committee. The Mountain Lake Preservation Plan is included as part of these comments.

20) The Department of Fisheries (Hal Beecher) recommended no additional flow studies on Cascade Creek because the conclusion would be that there is no additional water available for out of stream uses. Even adding back in the current diverted water, the summer low flows would be below the "optimal" flows for fish production. The comment was one of conserving time and money since the outcome was evident from the data at hand. Yet the report proposes additional studies.

21) SEPA applies to water right modifications. (there are exemptions for applications affecting less than 1 CFS) (Letter from Barbara Ritchie, Dept of Ecology) Many of the individual water right modifications exceed this level, and the combined total is more than an order of magnitude greater than the exemption level. How can this disparity be reconciled?

22) Missing Critical Data:
A) Daily rainfall records are available for more than the past century in Olga. The data is available from NOAA for a modest cost. This data would be tremendously valuable for correlating recent instream flow measurements and lake level changes to high and low rain seasons. The parks have provided 4 years of weekly level records in Mountain Lake. By looking at the rate of fall and taking into account the rain season, it can be seen that the sustainable rate of discharge is far below the water right modifications mentioned in the report. Although there are no records of valve adjustments during this time, step discontinuities in the first derivative of the level provide a very good indication of what happened. This data is far to significant to ignore. I have repeatedly offered to perform the calculations if the county would obtain the rainfall data.

B) There are references to reports such as the RH2 study estimating the recharge of Mountain Lake and Cascade Lake. The reports must be made available in their entirety, or the references removed. The very round number estimate of 2000 acre ft per year causes concern on many levels. First, it would appear to be accurate to a single significant digit at best. Second, how does this correlate with measured data? We have years of measured lake levels, simple analysis would validate or guide refinement of the model.

C) The systematic omission of records, understatement, and double talk about the prisons of endangered species and active natural spawning, in addition to the restoration efforts in these watersheds is very misleading to anyone reading the report.

The statements and omissions in the environmental check list do not accurately reflect reality. The prudent thing to do is advise Ecology to postpone the water right modifications until sufficient data is available. The report should accurately reflect the truth about chum, coho and chinook salmon in the creek, without the double talk.

Sincerely,

Sandy Taylor,
Olga Water Users Inc.