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.

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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."

 

Mendacity

Clearing compared to project plan

Bob Watters has an Op Ed piece in today’s Herald.  I won’t insult Mr. Watters by suggesting that he “wrote” the Op Ed piece.  His spinmeisters undoubtedly are responsible for that.

The Op Ed is an effort to downplay the significance of SSA's $1.6 million settlement with RE Sources, which sued Pacific International Terminals (owner of SSA Marin) over its illegal land clearing and road building on the site of the proposed Gateway Pacific coal terminal at Cherry Point.

Those who followed Get Whatcom Planning’s coverage of this issue ought to be inoculated against the nonsense in that Op Ed.  In case you missed our coverage, you can read it here (“New Roads for Whatcom County: Gateway Pacific Bulldozes Ahead”) , and here (“The Wrong Place at the WrongTime”),  and here (“Road to Nowhere”), and here (“Heedless Destruction”), and here (“How Would That Six-Year Moratorium Work?”), and here (“The Six-Year MoratoriumAgain: What Is ‘The Law’?”), and here (“Thinkin’ Bout a Moratorium”)  , and here (“Piecemealing”).  

I wrote about this so often because I was outraged.  Outraged at the blatant violation of federal, state, and local law and SSA’s brazen efforts to pretend it was no big deal.

From the moment I saw the overlay of road-building compared to what was permitted on the site, there was no question in my mind that this could possibly be a “mistake.” 

Clearing compared to geotechnical well permit

A “mistake” is when your contractors are off by a few feet.  A “mistake” is when communications get garbled and you start a week before you’re authorized.  A “mistake” is when you drill a few extra holes.

Clearing roads in a pattern that has absolutely nothing to do with any permitted activity is no “mistake.”

And that’s what the litigation revealed. 

As RE Sources’ press release on the settlement agreement explained, one of the leading national experts on large-scale construction project management, Philip S. Lanterman, conducted an in-depth analysis of SSA’s “mistake.”  He concluded:

 “In my opinion, it is probable that [SSA-owned] PIT  intentionally chose to proceed with the geotechnical investigation without necessary permits to obtain the expected economic benefit of securing the geotechnical information early in the project timeline, and PIT has actually received such benefit.. . . 

PIT’s efforts to ensure legal compliance of the geotechnical investigation were so far below the standard of care that, in my opinion, they evidence extreme recklessness as to legal compliance or, more likely, an intentional violation of the law.”

In other words, SSA took a calculated risk.  It could break our laws and nobody would find out – or, if they did, so what.  Nobody would do anything about it.

And if it weren’t for RE Sources, that would have been true. 

Is that the kind of business we want in our community?  Is that the kind of operator that we can trust to operate North America’s largest coal terminal in our back yard?

Who Should Be Having a Tea Party?

I was pondering the fact that the current Council majority, plus the candidates for Council with similar views and political affiliations, have decided to shun constituents who don’t agree with them.

Won’t talk to us or listen to us.  Those who believe that environmental protections are important, those of us who think that planning ought to ensure that infrastructure will meet the needs of future development, are to be treated as anathema.

Don’t believe me?  Read these comments by Bill Knutzen and Ben Ellenbaas, who at least were honest about their reasons for refusing to attend a candidate forum on growth and the environment.   Despite multiple invitations and efforts to find a date without conflicts, Kathy Kershner and Michelle Luke also would not participate in the forum.

The claim that litigation against the County disqualifies people or organizations from participating in public affairs is ironic.  It’s ironic (a nicer word than “hypocritical”), for two reasons:

(1) Because the shunning only applies to those who support planning and environmental protections, not to property owners, developers, or their trade associations (such as the Building Industry Association of Whatcom County, which is holding a forum that Mssrs. Knutzen and Ellenbaas agreed to attend), all of whom sue the County and all of whom are consulted on a regular basis; and

(2) Because litigation is the consequence of the County’s decision to ignore a segment of its constituents.  My clients and I have submitted dozens of letters and hundreds of pages of supporting documentation expressing our concerns over rural planning over the past few years.  The County simply ignores them.  

We have offered to meet with the County to discuss our concerns.  We are (sometimes quite rudely) told that the County is not interested.  

Council Chair Kershner went so far as to tell the Northwest Business Club that we are “domestic terrorists” with whom the County should never negotiate.  

Beyond the sheer silliness of this, the more serious issue is the disenfranchisement of a large number of constituents.

The Boston Tea Party, as you may recall, was not about over-taxation.  It was about taxation that was dedicated to a particular corporate interest:  the British East India Company, a “too big to fail” entity that one commentator called “the Monsanto or Microsoft of its era.”    The tax on tea harmed local interests while benefitting the government’s preferred for-profit entity, and that’s why the colonists revolted.

And now, guess who is being taxed – to support litigation that upholds the profit interests of developers, to pay for infrastructure needed for sprawl, to pay the salaries of County Council members who won’t speak to us – without representation?

Members of RE Sources.  Members of Futurewise.  Citizens who work to implement environmental protections and good planning, but who are told that their views and their voices are unwelcome in Whatcom County.

It’s un-American. In fact, it's downright revolting.