|Bertrand Creek, January 2013|
In October, the Supreme Court decided Whatcom County v. Western Washington Growth Management Hearings Board. While this case is often called the “Hirst case,” referring to one of my four clients, the official name accurately reflects the source of the litigation. It was Whatcom County that decided to take the case to court, not my clients or Futurewise.
The reaction to the Supreme Court’s decision has been varied and interesting.
Reaction 1: Across the state, many people are thrilled and thankful that the Supreme Court understood the importance of protecting senior water rights.
I attended a conference, a year or two ago, where a speaker said matter-of-factly, “Water theft is a way of life in Whatcom County.” That’s our reputation. We’re the county where senior water users watch helplessly while new wells take away their water.
Whatcom County’s laissez faire approach to water use – if you pump it, it’s yours – turns the state law of prior appropriation, or “first in time, first in right,” on its head. The Supreme Court’s decision reaffirms the fact that prior appropriation is state law, even in Whatcom County, and state law protects senior water users from water theft.
Reaction 2: “Whether we agree with it or not, let’s follow state law.” Many people are working hard to implement common sense responses to the Supreme Court’s decision.
Reaction 3: Hell No! “It rains here! A lot!” “The Supreme Court is crazy!” “Nobody ever suggested that Whatcom County has a water problem – the Supreme Court created a water problem!”
Some of these reactions are simply faux outrage, based on face-saving or economic interest. Take, for example, the loud whining noises coming from attorneys who wrote amicus (friend of the court) briefs on the losing side.
Other reactions within Group 3 simply reflect the fact that many people are new to the issue. They genuinely don’t understand the very long history of water shortages in Whatcom County. And when I say “very long,” I mean that water has been over-allocated in this county for at least 70 years.
The short chronology below is all facts, based just on documents at my fingertips. I have copies of all of the cited documents. Most, if not all, are available through a quick Google search. And there are many more documents addressing water shortages in Whatcom County.
Even though this is a truncated discussion of Whatcom County's long history of water problems, it is possible that some readers might want to do frivolous things. Baking gingerbread cookies. Watching Saturday Night Live's cold openings. Just in case you might not make it to the end, here's the spoiler, right up front. From the last entry:
Ecology’s November 14, 2016 letter to Whatcom County Executive Jack Louws states that “instream flows have not been met on average 142 days per year, and there are no years when instream flows have been fully met.”
Washington State Surface Water Code (Water Resource Act, RCW Chapter 90.54.)
· Implements prior appropriation: “First in time, first in right.”
· Requires a permit for surface water appropriation.
Washington State Groundwater Code (RCW Chapter 90.44).
· The Groundwater Code differentiated water flowing under property from other attributes of the property and established the state’s jurisdiction over the appropriation and use of groundwater.
· It also recognized the concept of hydraulic continuity between surface and groundwater.
· Groundwater is “subject to appropriation for beneficial use under the terms of this chapter and not otherwise.” RCW 90.44.040.
· Permit-exempt groundwater withdrawals are “entitled to a right equal to that established by a permit issued under the provisions of this chapter”. RCW 90.44.050.
This means that groundwater has not been part of a “property right” since 1945.
Department of Fisheries asks that a water right from Bertrand Creek be conditioned to require that the diversion be discontinued when the stream flow falls below 5.0 cfs.
Washington Departments of Fish and Game protest a water rights application for Bertrand Creek, noting that it is important spawning and rearing habitat and stating that 4.66 cfs out of a maximum flow of 6.0 cfs had already been appropriated from the Creek. (Source: Attachment to Ecology letter to Henry Bierlink, rejecting petition to amend the Nooksack Instream Flow Rule, dated 12/5/13.)
The “Bertrand Creek system” was recommended for closure.
Washington Department of Fish and Wildlife asks Ecology to close Bertrand Creek and all of its tributaries to consumptive diversion, because low summer flows harm the “already limited coho population.”
Emergency ban of the pesticide EDB. Groundwater investigations in northern Whatcom County. See http://www.atsdr.cdc.gov/HAC/pha/pha.asp?docid=1292&pg=1
Nooksack Basin instream flow rule adopted (WAC Chapter 173-501).
· Its purpose is to “retain perennial rivers, streams, and lakes in the Nooksack water resource inventory area with instream flows and levels necessary to provide for preservation of wildlife, fish, scenic, aesthetic, and other environmental values, and navigational values, as well as recreation and water quality”.
· Most of the basins of the populated western portion of Whatcom County are closed to further water appropriations, year-round or seasonally, and minimum instream flows are adopted.
Growth Management Act adopted (RCW Chapter 36.70A).
Whatcom County designates the entire geographic area of the county west of the national forest boundaries to be a “Critical Water Supply Area” for the purposes of RCW 70.116. A critical water supply area is an area where “water supply problems related to uncoordinated planning, inadequate water quality or unreliable service appear to exist.” AB91-197.
The Attorney General issues Opinion No. 17, which states that the Growth Management Act (GMA) requires local governments to make the required water availability determination before issuing building permits for projects relying on permit-exempt wells. Local governments must consider both quality and quantity, under state water appropriation law.
· The Washington Supreme Court’s 2016 decision affirmed the reasoning set forth in this 1992 Attorney General Opinion.
(1) Whatcom County Hydraulic Investigations – Part 1, Critical Well/Stream Separation Distances for Minimizing Stream Depletion, by Tom Culhane (Ecology Water Resources Open File Technical Report)
· Ecology sponsored a study to examine hydraulic continuity. The author evaluated whether it was possible to specify a “critical distance” away from a stream that would prevent stream depletion from wells. The report states:
o Where hydraulic continuity exists between pumped wells and surface water bodies, pumping can deplete stream flows. The glacial deposits of Whatcom County frequently allow for such continuity. (Page 1.)
· The report concludes that “[i]t is not scientifically defensible to pick a single, critical, well/stream separating distance in order to minimize stream depletion.” (Page 12.) Hydraulic continuity resulted in stream depletion when wells pumped water at various distances from streams.
(2) LENS Groundwater Study
Whatcom County completes the LENS Groundwater Study, which states on page 2:
Some of these contaminants [in Whatcom County wells] have been found at levels exceeding those considered safe for drinking water under the Safe Drinking Water Act. The presence of contaminants in water can limit its ability to be used as a source of drinking water due to the increased costs of treatment, monitoring and source protection. The nature and extent of the quality problems has not been well understood making it difficult to develop appropriate management strategies
In addition to the quality concerns, there are quantity problems which raise serious questions about how future and in some cases current water needs will be met. Obtaining legal permission from the Department of Ecology to use water for many needs is currently very difficult. In-stream restrictions on withdrawals has restricted the use of surface water since flow limitations were established in the mid-1980's. More recently, getting legal permission to use groundwater has become very difficult due to the recognition that groundwater contributes to surface water flows (hydraulic continuity). Tribal water claims to water supplies both on and off reservation, as well as changes in the State role for allocation, has cast even more uncertainty into the allocation picture.
Whatcom County adopts a Comprehensive Water Resource Plan. On page 49, the Plan states: "Many County residents use groundwater as a source of drinking water. Over 95% of 347 public water systems located in the County rely on groundwater. In addition, approximately 20,000 homes obtain water from exempt wells (not from ‘public systems’). Exempt wells pose difficulties for effective water resource management.”
Whatcom County Health Department asks Whatcom County to require all subdivisions to rely on public water systems rather than permit-exempt wells, based on concerns about the extent of water pollution in northern Whatcom County. In 2000, after considering several proposals to limit or ban the use of permit-exempt wells, a majority of the County Council rejected the proposal, stating that water problems were a state problem and the County did not need to address problems with water quality or quantity. (Source: Bellingham Herald.)
Whatcom County adopts a Coordinated Water System Plan which states, at page 8-10, that “due to the shallow aquifer, some water systems have wells that go dry during the summer and early fall. For these sources, interties with other water systems, emergency sources and conservation measures may be options for providing a reliable source year round,”
WRIA 1 Watershed Management Plan adopted. It states, at page 58, that “The instream flows established by [the Nooksack] rule are water rights under Washington law and are protected like any other right in the priority system. . . ground water withdrawals are affected due to their potential (and in some cases, proven) ‘hydraulic continuity’ with surface water.”
· It further states that “Concerns associated with existing instream flows include:
o Based on the limited streamflow data collected, it is clear the established instream flows are not met in many areas of WRIA 1 at many different times of the year – in fact, the natural flow of rivers and streams often does not satisfy the established flows;
o There have been advances in the methods used to evaluate instream needs and the methods used to establish the 1986 flows may not reflect the best available science;
o There is no mechanism to ensure that instream flow needs can be met (whether they are the 1986 flows or new flows).”
Ecology releases the results of a 2007 follow-up study of contaminated drinking water in northern Whatcom County. The study states, on p. vii:
The results of this 2007 study indicate that pesticides are still present in groundwater in the Bertrand Creek area where EDB, 1,2-DCP, dibromochloropropane (DBCP), or 1,2,3-trichloropropane (1,2,3-TCP) were detected in 59% of the wells sampled.
EDB and nitrate concentrations were slightly higher in 2007 compared to 1998 results. DBCP and 1,2,3-TCP concentrations were lower in 2007 compared to 1998. During 2007, six wells [out of a sample size of 32] failed to meet the drinking water standard for EDB, and one well failed to meet the drinking water standard for 1,2-DCP.
Fifteen wells failed to meet the drinking water standard for nitrate. A total of 81% of the wells had higher nitrate concentrations in 2007 than in 1998.
In Kittitas County v. Eastern Washington Growth Management Hearings Board, 172 Wn.2d 144, 256 P.3d 1193 (2011), the Supreme Court holds that the county “is required to plan for the protection of water resources in its land use planning” because “[t]he GMA requires that counties provide for the protection of groundwater resources and that county development regulations comply with the GMA.” Ecology “ought to assist counties in their land use planning to adequately protect water resources.”
In a case contesting the legal right of a new subdivision relying on permit-exempt wells to take groundwater away from senior water users in the closed Bertrand Creek watershed, the Pollution Control Hearings Board upholds the Department of Ecology’s argument. Ecology argued, and the Board agreed, that “the County’s reliance on Ecology cannot change the Legislature’s choice that the County is the appropriate entity to make the decision” regarding “whether appropriate provisions had been made for potable water for the subdivision”. Steensma v. Dept. of Ecology, PCHB No. 11-053.
· The Washington Supreme Court’s decision in 2016 agreed with Ecology’s argument and the PCHB’s conclusion that the County, not Ecology, determines water availability.
Department of Ecology’s Focus on Water Availability, Nooskack Watershed, WRIA 1 states that
During the summer, there is little rain and many streams and rivers are dependent on groundwater inflow. This means that groundwater and surface water are least available when water demands are the highest.
Most water in the Nooksack watershed is already legally spoken for. Increasing demands for water from ongoing population growth, diminishing surface water supplies, declining groundwater levels in some areas during peak use periods, and the impacts of climate change limit Ecology’s ability to issue new water rights in this watershed. . .
Though not closed, the Mainstem and the Middle Fork Nooksack River are subject to year-round minimum instream flows. Based on USGS streamflow data, these minimum instream flows are not met an average of 100 days per year, often during the periods when new water rights are desired (late spring through early fall)
The groundwater permit exemption allows certain users of small quantities of groundwater (most commonly, single residential well owners) to construct wells and develop their water supplies without obtaining a water right permit from Ecology. Such a use is only exempt from the requirement to obtain a water right permit. These water uses are subject to all other provisions of the water code including the seniority system and can be regulated to protect existing water rights.
The Lummi Tribe’s chapter of the Northwest Indian Fisheries Commission report, State of Our Watersheds, shows that 77% of the increase in permit-exempt wells in WRIA 1 has taken place in basins closed year round or seasonally to water withdrawal.
The Growth Management Hearings Board, Western Washington Hearings Board, finds that the County’s Comprehensive Plan violates the GMA for numerous reasons, including the following;
“Hirst’s unrebutted evidence demonstrates that vacant lots in existing rural areas can accommodate 33,696 additional people, where only 2,651 are expected. . .” Governors Point v. Whatcom County, WWGMHB FDO and Order Following Remand, Case No. 11-2-0010c and 05-2-0013c (January 9, 2012) at 120-121.
· In these rural areas, outside of cities, most of this new population will rely on permit-exempt wells in areas where the water is already legally spoken for.
· The current population of Ferndale, Lynden, Blaine, Nooksack, Sumas and Everson does not add up to 33,696 people.
In June, the Growth Management Hearings Board, Western Washington Region found that amendments to Whatcom County’s Comprehensive Plan “left [the County] without Rural Element measures to protect rural character by ensuring land use and development patterns are consistent with protection of surface water and groundwater resources throughout its Rural Area,” as required by the Growth Management Act (“GMA”).
· The Board emphasized that “[t]his is especially critical given the water supply limitations and water quality impairment documented in this case and the intensity of rural development allowed under the County’s plan.” Hirst v. Whatcom County, Growth Mgmt. Hearings Bd., Western Wash. Region Case No. 12-2-0013, Final Decision and Order (June 7, 2013) (“FDO”) at 43.
The WRIA 1 Groundwater Data Assessment states, at page 91:"From the review of compiled public water system information, it appears that 326 public water systems do not have water rights."
The Department of Ecology denies Bertrand Creek WID’s petition to amend the Nooksack Rule to implement a seasonal, rather than year-round, basin closure, stating that instream flows “are often met” in the winter but “are not met 100% of the time.”
In November, Ecology representatives hold a meeting in Whatcom County to explain how Ecology would respond to a request to modify the Nooksack Instream Flow rule, based on some residents’ belief that the Rule leaves too much water in streams. Ecology (Christensen, presentation and power point) states that a new rule likely would require more water to remain in streams, based on the following considerations (from the Christensen power point):
· “Current adopted flows are based on fish preference curves and 50 percent exceedance values
· Scientific understanding has changed since 1985
o Could affect fish preference curves
o Definitely would affect reliance on exceedance values – we now use 10 percent exceedance curve
· Tribal requests for federal adjudication of treaty-reserved water rights
· ESA listings of Puget Sound Chinook and steelhead “
While Ecology’s 2011 “Focus on Water Availability” stated that instream flows in the Mainstem and Middle Fork Nooksack were not met on average 100 days per year, Ecology’s November 14, 2016 letter to Whatcom County Executive Jack Louws states that “instream flows have not been met on average 142 days per year, and there are no years when instream flows have been fully met.”Available at http://www.whatcomcounty.us/DocumentCenter/View/24098