December 14, 2005

Sirs,

The members and owners of Olga Water Users, Inc., (OWU) respectfully protest and object to the applications for changes to water rights as published in the following legal notices: Application No. CS1-*62085ATJWRIS; Application No. CS1-71002J@1; Application No. CR1-71001JWRIS ; Application No. S1-28226; and any other applications that affect water rights from the Cascade Creek/Mountain Lake watershed on Orcas Island, Washington. A check in the amount of $200.00 is enclosed with this Protest letter.

Our objections concern those applications for water rights, or portions thereof, which allow the diversion of water from the Mountain Lake/Cascade Creek watershed to Cascade Lake, commonly referred to as the Rosario Hydro diversion. The basis of our objections are:

1. The Rosario Hydro diversion infrastructure is in a condition of severe disrepair, and has been for several years. The certificate of adjudicated water right CS1-62085, which applies to this Rosario Hydro diversion, states that it is “specifically subject to relinquishment for nonuse of water”. We maintain that the state of disrepair of this diversion infrastructure is so significant as to provide very substantial return flow, 100% for most of each year, with only a fraction getting through to Cascade Lake at the highest attempted diversion rate. The unused portion of this water right is subject to relinquishment. (Attachments “E” and “G”)

2. Rosario has not consistently paid the required Hydroelectric fees applicable to this water right. State regulations stipulate that the failure to pay fees “..within two years after June 12, 1929, shall be conclusive evidence of abandonment.”. No fees at all were paid during the first sixty five years of ownership of these water rights, until the year 1996, and the correct fees have only been paid since 1998. We maintain that those rights, or portions thereof, for which the applicable fees were not paid have been abandoned.

3. Surface water right modifications affecting more than 1 CFS are subject to SEPA review. The applications incorrectly state that SEPA does not apply. Please see the attached email from Barbara Ritchie, SEPA/ORA Unit Mgr., State Dept. of Ecology. (Attachment “B”)

4. Any alteration or repair of the Rosario diversion infrastructure, including the ditch and piping, requires HPA since this would alter the substantial return flow that currently affects the natural flow in Cascade Creek.

5. A careful study of the historical disrepair of the diversion is needed. We have attached a few pictures showing extensive growth in the ditch, extensive erosion from the return flow (active and historical). We have verbal statements from citizens dating back to the childhood of those in their 90's that Cascade Creek has had a steady flow every summer. This is clear evidence of substantial historical return flow from the diversion. (Attachments “E” and “G”)

6. Cascade Lake overflows from natural recharge every year. A storage efficiency of zero cannot be considered a beneficial use of water. The portion of the Rosario diversion water right that would normally take Cascade Lake past the point of overflowing has never been perfected. (Attachment “H”)

7. The hydroelectric and other uses of water from Cascade Lake have continued despite the inefficient and wasteful return flow permitted from the Rosario diversion, which was not supplementing the natural recharge of this lake. We maintain that the portions of the withdrawal and storage rights that depend on the water diverted from Cascade Creek have been relinquished. (Attachments “E” and “F”)

8. During the spring of 2005, during a statewide drought previously announced by the Governor, while Cascade Lake was overflowing from natural recharge Rosario insisted that the full volume allowed by their water rights (both hydroelectric and undeveloped domestic use) be discharged from Mountain Lake into Cascade Creek for diversion to Cascade Lake. Since Mountain Lake serves as the source of water for other Orcas Island communities, this egregious waste of water detrimentally impacts the rights of other citizens. (Attachment “H”)

9. The amount of water sought in these modifications far exceeds the requirements described in the San Juan Multi-Purpose Storage Assessment. State laws prevent the speculative approach of hoarding water resources that belong to the people of the State of Washington. We maintain that Eastsound Water Users Association has not made sufficient reasonable efforts to use their existing water sources before seeking these additional rights.

10. The published legal notices fail to clearly state that they include water diverted from Cascade Creek. The public must be given proper notice of the potentially devastating impact of the proposed new withdrawals, including the possibility that Cascade Creek would be dry for a portion of each year below the Rosario diversion during years of normal rainfall. This would be severely detrimental to the existing fish and wildlife, including the sea-run cutthroat and resident salmon species, and to the estuarine wetlands along the creek near Buck Bay, the near-shore tidelands and eelgrass beds, and the resident shellfish population, and the public enjoyment of the environment. (Attachment “A”)

11. There is inadequate quantitative historical data available for the instream flow of Cascade Creek, and current measurement studies do not take into account the very significant return flow from the Rosario diversion (double counted as stream flow). Neither do they take into account those periods when it was known that the diversion was intentionally shut down. Refer to DTA report and San Juan County water assessment report.

12. The annual volume of water successfully diverted via the Rosario diversion for longer than the past five years is less than the 34 acre/feet already converted to domestic use. We ask for independent verification of the flow through the diversion, under current conditions of the diversion infrastructure, prior to any physical repairs or legal modifications. (Attachments “E” and “G”)

13. The applicant has the burden of proof to demonstrate that the water right to be converted has been in continuous beneficial use. The existing V notch weir at the diversion is not accurate and has been poorly maintained. The claim that 100% of the right was diverted every single day is patently absurd and false. Independent measurements by the Department of Fish & Wildlife and photographic evidence contradict Rosario’s claims. (Attachment “F”)

14. Water removed from Cascade Creek has its origins in Mountain Lake, which serves as the storage reservoir for this creek. If the Rosario water right of 1204 acre/feet per year were actually to be drawn from Cascade Creek, the effect on Mountain Lake will be a draw on the lake level of just over six feet per year. Natural recharge has been shown to be about four feet per year, leaving a net loss of two feet per year in the lake level. Over time, this will have a disastrous impact on local fish and wildlife, be harmful to the lawful rights and interests of other Orcas Island citizens, prevent other water right holders from being able to draw water for municipal use, and effectively serve against the public interest. (Attachment “D”)

15. Olga Water Users, Inc., has priority in time for the consumptive use as a municipal supplier of water from the Mountain Lake/Cascade Creek watershed. It is unconscionable to allow the proposed changes to proceed and potentially enable a future person or entity to have rights senior to the oldest public water system on Orcas Island, thus creating unequal rights and protection in the event of a water shortage.

16. Since the standards for reliability for the water supply of a municipal provider are far more critical than that for a private hydroelectric water supply, it would be far easier during drought conditions to request a private hydroelectric producer to cease operations so as to conserve water than it would be to ask a municipal water purveyor to stop using water.

17. The attached analysis based on 5 years of independent water level measurements in Mountain Lake show that the recharge of the 1993/1994 rainy season could only support a 500 acre ft. withdrawal without depleting the level in Mountain Lake. We would be derelict in our duties to allow the conversion to domestic use of a right when we have clear evidence that the supply is not sustainable. The public and private plans to quantify the available water should be available for public review so that we can be aware of limitations in the strategies before more public funds are spent on measurements which may contain significant errors or oversights. (Attachment “D”)

Olga Water Users, Inc., objects to the indicated applications for water right changes, believes there may be very severe detrimental impacts of the proposed changes, and urges the Department of Ecology to insist upon more careful study and analysis of the relevant facts prior to a decision in this matter. We are concerned that many of the interested parties who have vested interests have not been properly notified of the significant potential negative effects of the proposed changes, and that the long term implications have not been sufficiently disclosed to the citizens of the State of Washington, who are in fact the owners of the water at stake here.

Sincerely,

Attachments A through G