Yes, Virginia, There Will Be Enough Water For Your Christmas Tree

Yesterday was a strange day.

Bright and early, I got a phone call saying that a Channel 5 news reporter would be in Bellingham to do a story on “wells in Whatcom County.” 

Earlier this year, the state Growth Management Hearings Board found that Whatcom County’s planning for “rural” areas failed to protect water quality and quantity, and habitat for fish and wildlife. (You can read the decision here.   And I’ve blogged on water issues from time to time – most recently, here.)

I represented four local citizens in the case before the Growth Management Hearings Board, so I thought that the reporter wanted to talk about it.  But it turns out that the reporter was on the trail of something quite different from the truth, more elusive than reality.

The reporter was trying to find the Grinch who wants to steal the Tea Party’s Christmas.

The reporter said that we could meet either in my home or in my office.  You really don’t want to see the dust bunnies in my home, and I was going into my office at WWU anyway, so we agreed to meet there.

At about 12:30, the cameraman and reporter rolled in.  I talked about the issues in my best sound-bitey way, and then the questions came.

“Is it fair to take away people’s water?”

Say what?

I explained, as sound-bitingly as I could, that our case would not take away anybody’s water.  We’re asking the County to plan, which means that prospectively, the County needs to think about where water is available and where it isn’t.  In the future, when it decides about where land development should occur, the County should know whether or not water is available.

“They’re saying that people with existing wells will be closed down.”

They?

I had asked the reporter what brought him here, and he mumbled something about “getting around.”  “They’ were not identified. . 

Our case won’t affect existing wells, I said.  Hypothetically, the state could cut down on water use by people with wells if it decided to do so -- but that decision would be under state water law going back a hundred years, not as a result of our case.  And that’s a very unlikely scenario, I observed, because state water law is like a speed limit that’s posted, but everybody knows that nobody will ever enforce it.

The reporter’s last question:  “Do you have any evidence, any evidence at all, that there isn’t enough water?”

Oh my goodness, I said, there’s bountiful evidence.  The Department of Ecology closed many river basins in Whatcom County in 1985.  In 2003, the Department of Ecology and the Department of Fish and Wildlife designated the Nooksack as one of 16 “critical basins” in the state, where water is so overallocated that it threatens the survival of fish.  Many streams in the County don’t meet instream flows, not just periodically, but for much of the year.  Somewhere between 2/3 and 3/4 of the water used for irrigation is used without a legal water right.  And so forth.

If we didn’t have this evidence, I concluded, the Board would not have found in our favor.  The reporter nodded, and asked if there was anything else I wanted to say.

Yes, I said.  I want to say that we’re not interested in taking away anybody’s water.  We want the County to plan for the future, to make sure that there’s water for people, crops, and fish.

They filmed me reading my e-mail for a while, and off they went.

________________________________________________________________

What came out of it?  This report.

In the event that the link goes away, the report starts at the lovely, dust-bunny-free home of ubiquitous Tea Party activists Greg and Karen Brown.  Karen is watering her Christmas tree, while a voiceover announces, ominously, that the water might be the most expensive item under the tree.

Say what?  Do the Browns water their tree with Evian?

Karen, looking kind and sad, speaks forlornly about the people who want to take their well away from them.  Their home will be worth nothing!

Who ARE those mean people?

Well, guess who pops up next.

 

It’s not apparent why I’m there, or why it is that I’m talking about speed limits.  But at least there’s an inference that, in reality, nobody is going to desiccate the Browns’ Christmas tree.

____________________________________________________________

If you go to all the usual Tea Party places – the Whatcom Excavator, the blog of Tea Party activist and KGMI commentator Kris Haltermann – you can see the themes starting to line up.

• There is no water shortage.  (That’s the source of the reporter’s question, I’m sure.) 
• Therefore, there is no good reason for anybody to worry about water allocation, water quality, or water for fish.
• People who do promote good water allocation, who want to protect water quality, and who worry about water for fish are nothing but mean ol’ Grinches.

That’s the story that the reporter was pursuing, and that’s the story that he didn’t get.  

Because it’s simply not true.  

Water in Whatcom County

The Bellingham Herald published a thoroughly-researched article today on water rights.  It quoted part of an e-mail that I sent to reporter Ralph Schwartz.  The e-mail discusses the state law of water rights and then going on the discuss the intersection of water rights and the Growth Management Act.

The Herald article quotes the part of the e-mail that is describing the water rights system in general.  My concern is that this quote, out of context, could give the impression that my clients and I are proposing to shut down everybody's exempt wells, which is not the case.

[It's been pointed out to me that I need to learn to communicate in sound bites, which is excellent advice!  Next time.]

Anyway -- please do read the entire e-mail, to provide context for the quote.  The part quoted in the Herald article is highlighted in yellow.

I'm glad that the Herald included at least some of the explanation of the purpose of focusing on water resources in Whatcom County-- the yellow highlight at the end of the article. 

---

From: Schwartz, Ralph [ralph.schwartz@bellinghamherald.com]
Sent: Monday, November 25, 2013 12:54 PM
To: Melious, Jean O.
Subject: water issue - forgot 1 more question

Jean, 

To add to my last email:

Property-rights folks are concerned the pending decision on the water issue could mean shutting down well use or new wells in Whatcom County. What of this concern? Is it an overstatement of the case, or is that in fact what your clients want to see? How would you best describe the desired outcome in the water issue piece?

 

-Ralph

My response:

Ralph, 

The "property rights" folks have an easier time talking to reporters, because they view the world in a binary fashion:  either you're with them or you hate property rights.  The reality is much more complex. 

Two issues are starting to intersect, not only in Whatcom County but across the state:  the state water rights system and the Growth Management Act.   

Almost all of the surface water basins in Whatcom County are closed to further withdrawals, either year round or part of the year.  This means that the Department of Ecology has determined that these rivers and lakes are entirely "owned" -- no more water is available.  Additionally, instream flows have been established for some rivers.  An instream flow is a water right for the river.  It says how much water should stay in the river in order protect habitat. 

When groundwater is in hydraulic continuity with a closed surface water body, withdrawals from groundwater are also prohibited under state water law.  In a closed water basin, there is a presumption that groundwater is in hydraulic continuity. 

I didn't make any of this up; the Growth Management Act didn't make any of this up; the Growth Management Hearings Board didn't make any of this up.  This has been state law for decades. 

The state water law system is a "first in time, first in right" system. Senior water right holders have priority over junior users.  This includes "exempt" wells, which are only exempt from having to have a permit.  Exempt wells are not exempt from having to have a water right.  Exempt wells are a water right with priority dating to the date the well is used.  If no water rights are available from a particular source, such as a closed basin (where all the water is previously owned), junior users can be curtailed.

Again, this has nothing to do with me or the GMA.  It's state water law.  It protects the rights of senior users over junior users.  It could be that the "property rights" folks that you speak of are forgetting this fact when they claim that the government is taking "their" rights.  Under a long-standing system of law, new water users technically are trying to take away the rights of senior users.

How does this relate to the GMA? 

Through its planning and zoning, Whatcom County has provided enough capacity for the County's entire population increase between now and 2029 to occur in new development outside of cities (that is, in rural and resource lands).  If not one person were born in or moved into Bellingham, Ferndale, or any other city in the County, enough new houses could be built in our rural and ag areas for everyone.

Where will those people get their water?

The County doesn't know.  The County hasn't done any water resource planning since 1999.  The Consolidated Water Supply Plan, which is supposed to show who is providing water where, was "updated" in 2001. 

Since 1990, the GMA has required counties to protect water quality, the availability of water, and habitat (including fish habitat) in rural areas.  The Hearings Board found that the County has not protected any of these elements because it has failed to protect water quality and it has not ensured that water is available for rural development.

What should happen next?

Well, much of what happens next will be driven by state water law, not by anything that we do.  The Department of Ecology is developing guidance for counties across the state, so they can determine whether water is available before they issue permits.  That's state water law, and it's what really has the "property rights" folks upset.  But remember --this guidance will only affect new development.  There's a lot of fear-mongering about how this will wipe everybody out.  What it would do is to require new development to show that water is available. 

What do we want? From my blog, earlier this year:

"The County’s position is that it doesn’t have any obligation to plan, or adopt development regulations, to protect water supply so long as the County’s regulations aren’t in actual conflict with the Department of Ecology’s rules.  In 1985, the Department of Ecology adopted rules stating that most of the watersheds in the County are closed to surface water withdrawals during all or part of the year. 

The County’s population in 1985 was somewhere between 107,000 and 128,000 (those are the 1980 and 1990 census figures).  Now the population is 205,000.  Not quite double, but somewhere between 75,000 and 100,000 people more than in 1985.  Times have changed since “Like a Virgin” and “Wake Me Up Before You Go-Go” were the top songs.

Times have changed, and not for the better, when it comes to water supply. We still have closed watersheds -- and we have thousands of people moving into those closed watersheds and digging wells there. Farm Friends has estimated that as many as ¾ of Whatcom County farmers are now farming without legal water rights.  We have an aquifer in which 70% of tested wells don’t meet state drinking water standards.  We have salmon streams that don’t have enough water in them to provide the habitat that salmon need.  And so on, and so forth. 

What could the County do?  It could plan.  It could figure out where water is available, where it isn’t, encourage development in areas where we have water and discourage development in areas where we don’t.  It could adopt rigorous regulations protecting water quality, because the County’s water supply problem in some areas is related to water pollution problems.  Of course, that would require believing in science -- including the science that says that leaking septic tanks and unlimited impervious surfaces are hard on water quality."
http://getwhatcomplanning.blogspot.com/2013/05/certainty-about-water-supply.html

Jean

That's Better

With a new County Council majority, maybe we can Get Whatcom Planning. Congratulations to Carl Weimer, Ken Mann, Barry Buchanan and Rudd Browne!

Greenwashing the County Council Races

Halloween is a time for costumes, and County Council incumbents Kathy Kershner and Bill Knutzen are trying to cover themselves in green veils.  By greenwashing their anti-environment records, they’re hoping to trick progressives who don’t pay much attention to County Council races.

Council Chair Kathy Kershner wins this year’s Incredible Chutzpah award for a flyer that announces “Taking care of our environment is not only the right thing to do – it’s the smart thing to do!”

As someone who’s been at the receiving end of Council Chair Kershner’s sharp tongue when I’ve dared to make this suggestion, I may be in a unique position to appreciate the cynical opportunism behind this flyer.

But you don’t even have to take my word for it.  As the Bellingham Herald stated today, in endorsing Barry Buchanan, Kershner’s opponent:

Particularly troubling is Kershner’s dismissal of the state’s Growth Management Act.  A quest for local control of growth becomes inertia, rather than moving forward as the law decrees.  We’ve seen enough of that kind of politics played on the national stage this year. Whatcom County doesn’t exist in a bubble; our decisions must obey the law and take into account our impact on the greater world.

Well, exactly. 

Another incumbent running for reelection, Bill Knutzen, appears on my Facebook page whenever I log on, which is becoming less frequent because I want to avoid seeing Bill Knutzen on my Facebook page.  His ad says that he will “protect natural resources.”

Bill calls our efforts to implement the Growth Management Act in Whatcom County “criminal,” and Kathy Kershner has called us “domestic terrorists.”

Here’s the most interesting question.  During this election campaign, why won’t they own their ideologies?
 

 The answer has to be:  Because they want to win.  The people of Whatcom County want environmental stewards, not environmental despoilers

Over the past four years, Ms. Kershner and Mr. Knutzen have made numerous speeches claiming that they are working “for the people” with their pro-sprawl, pro-pollution votes on the County Council. 

Ironically, their campaign ads show that they don’t want “the people” to know what they’re up to. But when the election is over, they'll discard the green veil and will show their true colors again.

Vote for Barry Buchanan, Rud Browne, Carl Weimer and Ken Mann.

Superheroes on the Washington Supreme Court

The Washington State Supreme Court issued a decisive 6-3 decision in a Skagit County water rights case yesterday.  The Court upheld the Swinomish Tribe’s challenge of a rule negotiated between the Department of Ecology and Skagit County.  You can read the decision here.

The Supreme Court rejected Ecology's view that new development could take water away from the water left in streams for fish, wildlife, and recreation based on "overriding considerations of the public interest."  Of particular interest to Whatcom County, the Supreme Court rejected the idea that rural wells are different from any other water use because they take just a little bit of water. And it cited the Growth Management Act to support its view.

Whatcom County just lost a lawsuit based on its failure to protect water quality and availability under the Growth Management Act.  It will be interesting to see if any of this makes a dent north of the Skagit County line.

One prediction is pretty safe, and that is that the local Tea Party will be hopping mad that “United Nations Agenda 21” has taken over the State of Washington.  Because facts never get in the way of this claim, it will not matter that Washington's instream flow laws were passed decades before the U.S. signed Agenda 21. Under the rule of socialist U.N. lackey George H.W. Bush.

I do hope that the "anonymous" local Tea Party blog, the Whatcom Excavator, is mad enough at the Supreme Court to do one of its cartoons where it dresses people in superhero costumes, as it did for the four Whatcom Wins County Council candidates:

Starting at the top, clockwise:  Barry Buchanan, Rud Browne, Carl Weimer, Ken Mann

The Supreme Court would look nice in tights, I think.

Anyway -- for the water wonks among us, here's a summary.

Ecology had adopted a rule that allowed year-round out-of-stream uses for “domestic, municipal, commercial/industrial, agricultural irrigation, and stock watering,” even when the new uses of water would not leave enough water in streams to protect in-stream flows necessary for “fish, wildlife, recreation, navigation, scenic and aesthetic values.”

Ecology found that the amount of water that would be taken out of streams was “less than an amount that would have significant impacts on fish populations in the river system” and found that the water withdrawals would meet “overriding considerations of the public interest.”

As the court summarized Ecology’s analysis,

On the benefits side Ecology placed the gained economic productivity in the river basin that Ecology determined would ensue from the water reservations over a 20-year period. Also on the benefits side, Ecology says that sources of water other than new withdrawals are as a practical matter unavailable and that without the reservations, new withdrawals for a number of beneficial water uses--stock watering, domestic, municipal, industrial, and agricultural uses--would be subject to interruption in times of low flow. Ecology found that impact on aquatic resources and recreational uses would be very small, and there would not be significant  harm to fish and wildlife, with only a "small loss" to fisheries over 20 years. Ecology determined the significant benefits clearly overrode the potential harm.

The court didn’t just say no, it said hell no.  In what might be called “a severe butt-kicking” in legal terms, the court found:

[A] minimum flow set by rule is an existing water right that may not be impaired by subsequent withdrawal or diversion of water from a river or stream. The exception in [state law that Ecology relied on, RCW 90.54.020(3)(a)] is a narrow exception, not a device for wide-ranging reweighing or reallocation of water through water reservations for numerous future beneficial uses.

Later in the case, the Court gave Ecology a little schooling on the purpose of instream flows:  The Court’s discussion might be a helpful history lesson for all of us:

Although there were no "minimum flows or levels" or "base levels" to begin with, as time passed and the state's population increased demands on water resources also increased. While appropriative beneficial uses of water frequently remove water from the stream or lake, many other uses require that stream flows be maintained, including fish production, recreation, navigation, and power production. Growing, competing demands for water led to a number of new laws over time, and among these are acts and statutes designed to further the goal of retaining sufficient water in streams and lakes to sustain fish and wildlife, provide recreational and navigational opportunities, preserve scenic and aesthetic values, and ensure water quality.

In 1955,* the Legislature declared the policy of the State to be that sufficient water flow be maintained in streams to support fish populations and authorized rejection of water right applications if these flows would be impaired. LAWS OF 1955, ch. 12, § 75.20.050 (codified as amended at RCW 77.57.020).

In 1969,* the legislature enacted the Minimum Water Flows and Levels Act, chapter 90.22 RCW. This is the act that authorized Ecology to establish, by administrative rule, minimum flows or levels to protect instream flows necessary for fish and other wildlife, recreation and aesthetic purposes, and water quality. RCW 90.22.010 provides in part:

The department of ecology may establish minimum water flows or levels for streams, lakes or other public waters for the purposes of protecting fish, game, birds or other wildlife resources, or recreational or aesthetic values of said public waters whenever it appears to be in the public interest to establish the same. In addition, the department of ecology shall, when requested by the department of fish and wildlife to protect fish, game or other wildlife resources under the jurisdiction of the requesting state agency, or if the department of ecology finds it necessary to preserve water quality, establish such minimum flows or levels as are required to protect the resource or preserve the water quality described in the request or determination.

The court concluded that, under the 1969 act, “a minimum flow or level cannot impair existing water rights and a later application for a water permit cannot be approved if the water right sought would impair the minimum flow or level.”

It’s interesting to note that the Court explicitly rejected the idea that exempt wells should be treated differently from other water users:

The dissent engages in a "factual analysis" intended to show that exempt well uses and rural public water supply systems qualify under a cost-benefit analysis for consideration under the overriding-considerations exception. But the analysis simply shows what is always true--there are hardships attendant to any water right with a later priority date and too little water available to satisfy all rights. The dissent also claims that the reallocations of water for exempt well users and rural public water systems should be permitted since they involve only small quantities of water and will have little impact on minimum flows. But the overriding-considerations exception is not a grant of general authority to reallocate water subject to existing water rights regardless of whether the impact on minimum flows and instream uses would be substantial or slight.

And because saying this once apparently didn’t make its point strongly enough, the Court said it twice:

The dissent says that allowing the reservations for rural public water supply systems and exempt wells is a matter of necessity if rural development and lifestyle is to be possible. In every basin where water is unavailable, the same can be said to be true. The legislature is well aware that water availability is a significant issue. It has enacted numerous laws reaching various aspects of the issue. See, e.g., Kittitas County v. E. Wash. Growth Mgmt. Hr'gs Bd., 172 Wn.2d 144, 175, 256 P.3d 1193 (2011) (noting that planning for rural growth requires that water quality and availability be protected under the Growth Management Act, chapter 36.70A RCW (citing RCW 36.70A.020(10), .070(1), .070(5)(c)(iv)))

"In every basin where water is unavailable" includes much of Whatcom County. Water availability is a significant issue. What will we do about it?  

Elect some superheroes of our own, I hope.
 

*Pre-Agenda 21 dates.

Water Rights

The City of Bellingham is proposing to do  – something – with its water right.  

Let me make one thing perfectly clear:  I am not suggesting that the City would ever do anything that was contrary to the public interest.  There’s been some sensitivity, in the social media world, about citizens questioning the City’s motives.  So I don’t want to fall into that trap.

I guess that what I’m questioning is the City’s ‘splainin’ ability.

As the Cascadia Weekly reported last week and the Herald reported today, Bellingham's Public Works Department is asking the City Council to consider two “Memoranda of Agreement,” one with Lynden, one with PUD 1. 

The MOA with Lynden is clear.  It creates a framework for an agreement between Bellingham and Lynden.  Lynden will provide the City with the use of Lynden’s water diversion/intake facility.  Bellingham will pay Lynden with water.  See Article 3, “Terms.”  

Some people have been saying that the MOA doesn’t really mean anything.  They claim that it’s so ambiguous, it’s not real. 

But take a look at the action suggested for the Council:  “Authorize contract.”

It’s a contract, everybody.  It doesn’t commit the City to providing a particular amount of water at this moment, but it commits the parties to negotiating in good faith to achieve this deal.

The second contract, the MOA with PUD 1, authorizes Bellingham to access “PUD 1’s property and diversion structure,” in return for which Bellingham agrees to pay the costs necessary for “a water withdrawal that exclusively benefits Bellingham.”  What is PUD 1 getting out of this (or, in contract terms, what is the "consideration" for PUD 1's agreement)?  The contract doesn’t appear to say.  I haven’t seen any explanation, although maybe I’ve missed something.

I’ve heard two explanations for this initiative.

Scenario 1:  The first scenario is that state agencies came to Bellingham and Lynden and asked them to help out the small water systems that provide water in in northern Whatcom County.  Lynden said “We’d help, but we don’t have any water.”  Bellingham said “Sure!  We have water!”

I don’t know whether this is related to the May 2013 minutes of PUD 1, because nobody has really focused on connecting any water-planning dots, but it seems possible.  The minutes state:  

"The District [PUD1]  has worked with water associations, Washington Department of Health and the City of Lynden over the last several years in development of solutions to finding clean water to supply to several water associations in North Whatcom County that have their source of supply contaminated with high levels of nitrate. 

In order to move water to these associations there will need to be some infrastructure built to connect these systems and other modifications to utilize a City of Lynden source of supply.  The State Department of Health advised the District that Washington State Jobs Act Now funds may be available to the District to use to develop designs, permitting and key pipeline interties for the project. 

The District applied for these funds and the State notified the District that the funds are available to the District and the District can now take action to accept the grants.” (Update:  PUD 1 has already approved the MOU.  An excerpt from the minutes has been added below.)

 

We are all citizens of the same county, contrary to the views of the trolls who hate on Bellingham in the Herald comments section, so maybe it makes sense for Bellingham to provide water to North County. 

But it surely would be nice to know:  water for what?  And how much?

Some small water providers are in trouble in North County because nitrate levels in groundwater are so high that they don’t meet drinking water standards.  

Will Bellingham be providing water to folks who are currently affected by polluted drinking water? Only?

Small water providers have to pledge that they will be able to provide water within their service areas.  As readers of this blog know, Whatcom County has authorized enough development outside of cities to accommodate the County’s entire increased population for the next 20 years. 

Will Bellingham be providing water to the small water providers so they can meet their obligation to provide water to new development outside cities?

How will all of this help agriculture, as the Herald article suggests is the purpose of the venture?  Will the small water providers be providing irrigation water?  And if so, will this be additional to the water that’s being used now (with or without water rights), or will it somehow replace illegal use?

Maybe I’m missing something, but I haven’t seen answers to any of these questions.  They seem like reasonable questions to ask.

Scenario 2:  Lynden needs a little water, just a teensy bit of water, to make up for the fact that it is using more water than it has the right to use.  Bellingham has plenty of water and can give Lynden the water it needs, no problem.

First of all, I think that we need to know what Lynden’s water right actually is.

As recently as 2009, this was a disputed issue.  Ecology’s view was that Lynden has the right to somewhere around 1/5 as much water as Lynden thought that it had a right to.  The parties agreed to disagree. 

Has this dispute been resolved?  If so, we must know how much water Lynden has a right to, how much it uses, and therefore, how much water we’d be giving Lynden. 

There are lots more questions that have been asked about this idea in the past.

A few simple Google searches, which I’m sure that City Council members have done themselves (in lieu of information from the Public Works Department), shows that this idea has been considered at least twice.

In 2001, when the City considered a proposal to divert water from the Nooksack, using its water right to supply Lynden, the Lummi Indian Business Council objected quite strongly.  See page 9 of this Council agenda.  Have these concerns been addressed?  Maybe I’ve missed something, but I haven’t seen any information about how coordination with the tribes is going.

In 2003, the matter went back before the City Council, accompanied by a "Source Water Analysis Feasibility Report" that described the City’s water rights, flow conditions in the Nooksack, and discussed alternatives. To the best of my knowledge, this report hasn’t been updated for purposes of providing information on the current proposal.  

Perhaps because this report provided them with enough information to form the basis of intelligent questions, City Council members asked a lot of questions.     What about Bellingham’s water right?  What about the river?  What about groundwater contamination? 

And -- how much would Lynden pay?  “A lot,” was the response. 

Which brings us to the interesting question of payment. 

Here and now, in 2013, we’re proposing to give Lynden water in return for a new diversion point.  Is a new diversion point worth “a lot”?  How much, exactly, is it worth?  And why? 

Is Lake Whatcom on its way out as our drinking water source, either because of water quality or quantity concerns? 

 

Is it feasible to provide drinking water from this diversion point, which is not very close to the population center of the City?

 

Is a new water diversion the only way to get “redundancy” with respect to water supply?  Are there any alternatives?

 

Is Bellingham proposing to supply water to Lynden AND to North County?  Or just to Lynden, which would then sell the water to North County?  What’s the plan?

 

If, as we’ve been assured, the City is acting wisely on behalf of City residents, I’m sure that all of these questions have been explored, quantified, and will be fully explained.  That way, we can all move forward in the knowledge that this water deal is in the interests of all citizens.

 

Even the much-loathed tree-hugging, latte-drinking urbanites of Bellingham.

-------------------------------------------------------------------

UPDATE:  The minutes of PUD 1, which approved the MOU with the City on August 13, don't provide a whole lot of clarity about the purpose of the MOU.  Which is stated to be "redundancy" in the City's water diversion points.  The discussion of the WRIA 1 planning unit is interesting:

"The PUD owns this diversion and has not used it for several years as the PUD now withdraws water at the “Plant 1” diversion just downstream from this diversion but still maintains ownership of the diversion of interest by the City.  The City is asking the PUD to enter into the MOA with the City so the City can make application to  the Department of Ecology for a Point of Diversion (POD) for some of the City’s water right. Approval of the MOA provides the City with the option to identify the diversion on the City’s application and if the City chooses to use the diversion, upon an approved POD at that location, then the City and the PUD will develop a formal “access agreement” and Interlocal Agreement formalizing the use of the facility by the City and / or the City and the PUD. 

Jilk indicated that the City has been looking for other points of division to build redundancy to their system. The first point of diversion would be near the City of Lynden and the second point would be as far downstream as possible with the notion to provide a more efficient source of water into the City’s system to accommodate future growth.. . . 

The next steps: Once approved by the City and the PUD Commission, the City will finalize the applications [to the Department of Ecology], then the formal review process including public comment and appeals. Sitkin estimated 160 to 180 days. There is no Environmental Impact Statement required and it is exempt from State Environmental Policy Act. There is no fiscal impact to the District to approve the MOA. 

In response to Karen Brown’s public comment, Jilk indicated that the MOA has not been a closed door process. The PUD was approached by the City for consideration for use of one of the PUD’s facilities and the WRIA 1 Planning Unit is not part of the determination process on this matter. Sitkin explained that the holder of a water right, whether a private water association, a private land owner, or a public or other municipal entity, would not agree to subject their water right to any relationship or governance with a planning unit established under the Watershed Planning Act. A planning unit simply has no regulatory or jurisdictional authority over water rights. That is the role of the Department of Ecology. A planning unit may have a role in watershed planning which may include a review of water quantity and related issues from a watershed and/or land use planning perspective."