This brings up a number of questions: Can they make they legally make the fees retroactive? Is this a violation of the RICCO Act? Other Government agencies have been sued under this Act. Will they only be applied to future applicants? How will DOE separate actual fees for service from their geweral expenses?

The best solution to this mess is to take control of water away from DOE and give it to a new agency that has very clear guidelines about what its responsibilities are and the rules under which it will operate. This new agency should not include any of the current DOE management. In the viewpoint of most of the water users in this state they are ‘tainted’ with their past failures.

Who benefits? Me? yeah. When you shut me off, the senior guy downstream benefits. Charge him. Instream flows benefit fish.

And if you don’t manage, who benefits? The illegal user? The junior right? The guys who work for them?

Figure out who benefits.

Adjudication, flow setting, data collection, enforcement, etc provide no direct “benefit” to water right holders nor is that the statutory intent of such programs. To the contrary, such programs are clearly regulatory in nature, intended to support broader state interests. Further the “benefits” of programs relating to drought enforcement, watershed management, and well construction are disparate among communities and user groups within the state, and often provide no direct or indirect “benefit” to water right holders. Obviously, the watershed management program provides no benefits to water right holders in King and Snohomish Counties where no such programs exist due to tribal opposition and other factors. And although dam safety, reuse, and data collection are in the public interest, it is arguable whether these programs provide “benefits” to all water right holders, particularly given the fact, for example, that inland reuse simply does not appear viable from a regulatory context. It should further be noted that virtually all water right decisions in the state for new applications and change applications are now subject to cost reimbursement, a program whereby Ecology’s “management service” costs are fully recovered.

Overall, the assumption that above programs provide “benefits” to state water right holders that justify an annual water right fee appears legally problematic. More specifically, such an “annual fee” would appear to constitute a “tax” as opposed to a “fee for service” and thus may not be consistent with law. In this regard, the Washington State Supreme Court has made it clear that if the primary purpose of a law is to collect revenue to finance broad based public programs or improvements, rather than to regulate the person paying the charge, the charge may be recognized as an unlawful tax. The context of the above question, and more specifically Ecology’s stated interest in imposing an annual water right fee appears clearly intended to raise revenue for several arguably “broad based public programs,” as opposed to regulating/benefiting the conduct of (all) individual water right holders. Further, absent a direct relationship between the fee charged and the service received by the person paying the charge, a “fee” can be found to constitute an unlawful “tax”.

Given the broad scope of the “management services” Ecology is seeking to financially support, and the highly attenuated, if even existent direct relationship between many of those “services” and water right holders, it does not appear legally appropriate or sound public policy for Ecology to make a blanket assumption that (1) all water right holders (directly/indirectly) benefits from such services; and (2) that the recovery of costs for such services can properly occur via an (annual) fee schedule. Ecology may be better advised to increase program revenues by establishing a fee system where there is a clear and direct nexus between the service and applicant “benefit” and/or regulated conduct, and where the costs for such service can be effectively quantified. For services that do not provide a direct “benefit” or operate to clearly/directly “regulate” a water right holder’s conduct, Ecology may be compelled to determine how such costs can be addressed in the form of a properly framed tax measure.

As a final comment, it now appears that the great proportion of DOE’s programmatic efforts are focused on protecting and/or regulating unappropriated water that remains in streams/groundwater in order to protect stream/fish flows. It therefore seems reasonable that this programmatic priority or benefit of “resource protection” should be a subject of general fund support, as opposed to fees on individual water right holders.

Like a sliding scale where we are charged less if we use less? Sweet! Oh waitaminute, should you or I “conserve” for 5 years we lose that portion (Qa, Qi, Place of use, season, even purpose).

Unless we put it in a trust or water bank. Which opens users to partial relinquishment since a trust requires and extent and validity test.

The one water bank I’m aware of doesn’t require a test, but when you pull it out and someone complains…blammo! Extent and validity. And now maybe it’s been in the bank long enough that the user doesn’t not have the records (or the property is sold and its a new user) to prove one way or the other if the water was used. And the burden is on the right holder to prove they did use it, not on Ecology to prove you didn’t.

Oh and while Ecology states “Washington state lags behind California, Oregon and British Columbia in requiring users of water resources services to pay for the services.” We also lag behind Oregon who has NO partial relinquishment and we’re light years ahead of California which (for the most part) doesn’t even regulate ground water use at all.

I’m beginning to think Ecology is being quite selective with it’s facts to make a sketchy argument more appealing.

The fact is if you flush a toilet, or take a shower in this state you are a water user. Ecology manages the resource for the users…and that’s eveyone. Not just the single user (or municipality…they’ll be paying a fee too…right?) who has a permit to pump water out of the river/well. Those users are just first in the chain, and the easiest target to go after in a tight budget year.

Sigh.