Dept. of Ecology Questions Land Use Caucus Position on Water / Streamflow Rulemaking

In Hirst Decision, News by CTNW News

The saga continues as Whatcom County seeks a conclusion that best supports the rural property owners to have affordable access to water. The Planning Unit deadline to finalize a watershed planning update came and went. The Caucuses within the Planning unit have faulted many for this failure because of the numerous outside committees working on competing plans outside the Planning Unit meetings. Now that the Dept. of Ecology has taken over this process, a number of the PU caucuses have requested, based on Washington State RCW 90.82.130(5)(a), to be included in and part of any rulemaking that the Department of Ecology considers and enacts.

February 19, 2019
Ms. Mary Verner, Water Resources Program Manager
WA Department of Ecology
Dear Ms. Verner:

Thank you for your message dated 2/14/2019 in response to my inquiries dated 2/11/19.  After careful review of your information, the WRIA 1 Land Development has a few additional questions which I would like to submit for your consideration.

You stated that you will proceed with rulemaking “…under the directives and authority provided under Streamflow Restoration, RCW 90.94, and not under the Watershed Planning Act, RCW 90.82.”  With due respect, I do not think this statement addresses the issue we have raised.  The Stream Flow Restoration Act (RCW 90.94) amended RCW 19.27.097, RCW 58.17.110, RCW 90.03.247, and RCW 90.03.290; it also added language to RCW 36.70A RCW and RCW 90.  It did not amend RCW 90.82.

With both RCW 90.82 and RCW 90.94 in force, I think the two laws must be read to operate together harmoniously, without setting aside portions of either one.   You said, I think, that DOE has decided to disregard RCW 90.82.130(5)(a), which states:

“Once a WRIA plan has been approved … the department may develop and adopt modifications to the plan or obligations imposed by the plan only through a form of negotiated rule making that uses the same processes that applied in that watershed for developing the plan” (emphasis added).

As I argued in my earlier message, the WRIA 1 scope of work and plan covers instream flows.  Your letter says DOE will now change instream flows in WRIA 1 without going through negotiated rulemaking.  You say this decision was reviewed with the Attorney General’s Office, but you did not reveal the supporting rationale or documentation of it from the Attorney General.  Please provide the legal reasoning behind DOE’s determination that RCW 90.82.130(5)(a) does not apply in this connection.  In particular, please explain what the word “only” means here.

My earlier message also pointed out certain questions about compliance with the Open Public Meetings Act (OPMA) in WRIA 1.  Your response did not address those concerns, so let me go into it further.  I served as a Commissioner on the Whatcom County Planning Commission from 2012 until 2015.  During my final year on the Planning Commission, I served as Chair.  As part of that service, I received careful and detailed training on OPMA.  It was clear to me that OPMA required that I conduct the business of the Planning Commission only at the Commission’s formal meetings.

Engaging in a sidebar about Planning Commission business with other commissioners such that decisions are being made is prohibited. Extended to the Planning Unit, OPMA poses potential problems for governmental entities discussing Planning Unit business outside Planning Unit meetings.

The WRIA 1 Planning Unit is a subagency of government as defined in RCW 42.30.030 (5).  It is created pursuant to statute and its action is a legally-necessary antecedent to action of the County Council in adopting a watershed management plan under RCW 90.82.  As such, the Planning Unit is subject to OPMA.

In WRIA 1, however, certain members of the Planning Unit, including DOE, [1] openly deliberate about Planning Unit business in meetings conducted under the aegis of a so-called “WRIA 1 Watershed Management Board”. As members of that body, they claim the authority to accept, reject, amend, or otherwise take actions (including determinations) in respect to the work product of the Planning Unit.  Also, as government members of the Planning Unit, they can each veto a plan update.  In effect, this means that any two of these entities can conduct Planning Unit business at the WMB.

To make matters worse, this “WMB” entity, if it can be called that, has no statutory authority to engage in watershed planning.  It includes tribal entities that are not subject to OPMA.  As a consequence, I have difficulty reconciling the composition and activities of the WMB with the dictates of OPMA. 

Please explain how DOE, at the present time a voting member of the Planning Unit, can engage in votes-to-approve Planning Unit products with other members of the Planning Unit and non-PU entities both inside of and outside of Planning Unit meetings.
Dave Onkels
Land Development Caucus
cc           WRIA 1 Planning Unit
               County Councilmembers
               Jack Louws, County Executive
               Whatcom County Councilmembers
               Annie Sawabini, DOE
               Kasey Cykler, DOE
               Perry Eskridge, WCAR, Land Development Caucus Chair