January 6, 2019
To WRIA 1 Planning Unit and other WRIA 1 Watershed Management Project participants:
Re: Actual legal definition of “domestic” use: Department of Ecology erred in its 6091 “Initial Policy Interpretations” Guidance Document, when it incorrectly defined “domestic use” as follows: “Domestic use: The Legislature did not define “domestic use” in the new law. However, they chose to specify that during a drought, we may curtail use to only 350 GPD per connection for “indoor domestic use” in selected basins. This distinction leads us to interpret that the larger quantities authorized in non-drought years (950 or 3,000 GPD, depending on which basin) include indoor and outdoor uses for a household (including watering of a lawn and noncommercial garden).” (Publication 181108, P. 3)
It is improper to combine the exemption for “single or group domestic” use and the separately exempt “watering of a lawn or noncommercial garden not exceeding one-half acre in area” use. In RCW 90.44.050, they are separate, and that fact has been repeatedly supported, as here: AGO 2009 No. 6: “1. The statutory exemption from permitting requirement for use in watering lawns and noncommercial gardens is not included within the exemption for domestic use.”
The interpretation of the law by Ecology that combined the exempt uses, exacerbated by Ecology’s interim guidance in “Recommendations for Water Use Estimates” led Ecology’s contractor, RH2 Engineering, (and staff), to conclude in its Task 1 technical memorandum, that the amount of water required to offset potential impacts to streamflow in WRIA 1 is 647.51 acre- feet per year . The Planning Unit accepted that offset quantity as the basis for the process.
Based on the actual statutory definition of “[single and group] domestic”, the estimated quantity of groundwater requiring offset for potential impact to streamflow is “15.4 gallons per day per household of estimated consumptive indoor water use…” (RH2 technical Memorandum, August 21, 2018) Page 13. Generously calculated, that quantity of water translates to 42 acre-feet per year for all of WRIA 1.
The Planning Unit should complete a new, simplified Update incorporating this concept, while retaining the process-approved 647.51 afy for actions and projects, for approval and submission to the Whatcom County Council. This approach would result in an Update that can be approved by the council within the statutory deadline.
We intend to introduce a simplified Update in draft form to the WRIA 1 Planning Unit under Agenda Item 6 of the January 10 Planning Unit meeting.
Sincerely, Land Development Caucus