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Whidbey Environmental Action Network
Restoration Education Preservation
Box 53, Langley, WA USA 98260
(360) 579-4202 wean@whidbey.net
Dedicated to the preservation and restoration of the native biological diversity of Whidbey Island and the Pacific Northwest
Jan. 7, 2009
TO: Freeland Water and Sewer District Commissioners
5492 S. Harbor Ave.
Freeland, WA 98249
FROM: Steve Erickson
RE: Fletcher request for water service outside of UGA and for agricultural use
Please consider these comments in your deliberations regarding the proposed Fletcher annexation.
We have received a letter from Gary Hess regarding three issues. We have several comments about those and two other issues.
1. Can the District supply water for commercial agricultural use?
The letter reports a conversation with Dept. of Ecology personnel. First we note that the reference to RCW 90.03.105 is erroneous; the relevant section that was apparently meant is §15, not §105. Second, Andy Dunn is no longer with DOE. On Jan. 7 I spoke with Jaccque Klug, the acting Water Resources Section Supervisor in DOE’s Northwest Region. I was particularly curious about the court case the letter alludes to, since I was unable to find any Washington State appellate court decision that matched this case. In fact, this decision was in King County Superior Court. It is not a published appellate decision, which means that it has absolutely no precedential value. It has been certified for direct appeal to the state Supreme Court and oral arguments in the case will be heard by that body next Tuesday. Until and unless this decision is affirmed by a Washington or Federal appellate court, the District should ignore it. The existing law is still in effect. In summary, that law still requires that a change in water right is required for the District to provide water for commercial agriculture, as has been requested.
2. Will provision of water for agricultural use by Fletcher impair groundwater availability for other District customers?
The letter here confuses three related, but different issues. The first is whether providing water for this agricultural use is legally permissible even if it impairs senior water rights. As the letter correctly states, the District cannot impair senior water rights. And that holds true regardless of the use the water is put to. The second issue is whether provision by the District of water to Fletcher obligates it to supply Fletcher in the future, regardless of competing demand from other landowners in the District. As the letter correctly points out, once the property is annexed into the District, the District must supply it. (However, see our discussion below regarding whether supplying this property is consistent with other local plans.) Once it does so, this may create an obligation to prioritize service to this property in the future to the detriment of other District customers. The District should research this legal issue prior to deciding to annex this property. The third issue is not at all legal, but substantive: will providing the large volume of water that irrigated agriculture will likely require impair the other area wells? To date, Fletcher has not stated what quantity of water he seeks for agricultural use. This information is needed for both reasoned decision making and environmental analysis. We expect that this information will be disclosed in the required environmental checklist (discussed below at 4).
3. Is annexation of this property consistent with regional plans?
The proposed annexation is not consistent with regional planning efforts. As Hess’s letter correctly cites, providing water service to this property must be “consistent with the requirements of local plans . . .” WAC 246-290(1)(d). Moreover, the District should not subvert regional planning efforts. This agricultural land was excluded from the NMUGA. That portion of the NMUGA process is finished and settled. Historically, providing infrastructure such as piped water greatly increases pressure to convert land from low density, rural, and agricultural uses to high intensity urban use. For that reason, this annexation is inappropriate, counter to good planning, and inconsistent with the existing regional plans for the area and this particular property. This is yet another reason to reject the annexation.
4. Has there been environmental analysis of the annexation?
To date, there has not been the analysis required by the State Environmental Policy Act (SEPA). The annexation is subject to SEPA’s requirements for analysis. The annexation does not fall within SEPA’s categorical exemptions and SEPA specifically defines this sort of annexation and its reasonably forseeable impacts as actions fully subject to SEPA’s requirements.[1] If the District chooses to proceed, it must produce an environmental checklist and make a threshold determination as to whether the annexation and its forseeable impacts will have no probable significant environmental impacts, whether it will have probable significant environmental impacts that can be mitigated, or whether the adverse impacts cannot be mitigated and an Environmental Impact Statement (EIS) must be prepared. Please inform us as to when the required public comment period will be held.
[1] 197-11-704 WAC 197-11-704 Action. (1) "Actions" include, as further specified below:
. . .
(2) Actions fall within one of two categories
. . .
(b) Nonproject actions. Nonproject actions involve decisions on policies, plans, or programs.
. . .
(iii) The adoption of any policy, plan, or program that will govern the development of a series of connected actions (WAC 197-11-060), but not including any policy, plan, or program for which approval must be obtained from any federal agency prior to implementation;
(iv) Creation of a district or annexations to any city, town or district;
