Thursday, August 22, 2013

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."



  1. I realize I see a coal pile behind everything, but I just find it mighty interesting that PUD can grant 1.9 bil. gal./year for 30 years to GPT for dust suppression, while Lynden goes begging. That would be the same Lynden that is an unqualified terminal booster, BTW.

  2. This deal of the City of Bellingham with Lynden, might have some nice benefits for each.
    But we don't really know what they are, or might be.
    Sure, Lynden will gain some water, & Bellingham will gain something, but it is not specified.
    It is not the role of the Council to sign blank checks.

    Before this deal is inked, we need to know the whole story.
    What will Lynden gain, and at what "cost"?
    What will Bellingham lose, and at what "cost"?
    Who else might be in the deal, for better or worse?
    Who will be able to use the water that it seems will be delivered? Slaughterhouses? Ooops!
    How will large withdrawals near Lynden or Ferndale affect the water between there and the bay?
    Who else ought to also gain some benefit, but will thus be shut out?

    So many cards in the game, and they are all still tucked into the deck, being held by one or a few. That is NOT the way the original WRIA-1 Planning activity was created - it specified that all proposals were shared with all the major interest groups, and they ALL had to agree before anything went forward. The City of Bellingham signed on.
    So it feels like the Planning group ought to convene, so that all may have a voice, before anything like this gets inked.

  3. Oh, Touché! But let's keep our eye on the cartel, however it might develop. But generally, one public water utility is possibly better than many.

  4. Oooo, Tip. Careful there! In Whatcom there are already maybe 20 or 30 public water utilities. (Besides the cities.) Many practical factors stand in favor of the small ones, so long as they have a proper water-right, and good management. I see no need to combine them, if that's what you meant.

  5. Marian, as we've discussed before, you're far more optimistic about the WRIA planning group than I am. Some of the interests around the table are more organized and focused than others, and I can't see that "re-initiating" the planning group would result in any kind of balanced planning. Or in any more results than last time.

    The City's water rights are a valuable asset that should be used wisely. If we can help with rational land use and planning in the County, good for us. Perhaps first we ought to see some rational land use planning.

    If we subsidize sprawl, more septic tanks, and the County's adamant insistence that it is not required to plan rationally, we're suckers. Nothing, yet, has established that we're not suckers. That's why I'm hoping that we'll see a clear explanation of the reasoning behind the MOUs.

  6. While all the small water providers and small cities go begging for water to support development, Bellingham has an enormous inchoate water right. Earlier, the usual suspects colluded to run illegal water lines up the Guide. The GMA prohibits the extension of urban levels of water service into areas not designated for urban growth.

    Those elected to do the bidding of the development community are simply carrying out the plan interrupted by the interloper, Mayor Pike.

    Any benefit to Bellingham is hard to see. The city already has a diversion from the Nooksack into Lake Whatcom. Who really needs water running up and down the Guide?