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
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
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
