Wednesday, November 27, 2013

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 []
Sent: Monday, November 25, 2013 12:54 PM
To: Melious, Jean O.
Subject: water issue - forgot 1 more question
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?
My response:


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."



  1. Jean,
    Thanks for posting the entire text. Seems pretty convincing.

    The way water law works is unclear to most of us lay persons. For example, during a winter flood when the Nooksack is running 25-thousand cubic feet per second past Ferndale, is that transient pulse of water legally "capturable" for a storage reservoir? To the lay person, this water seems destined only for runout into the bay, not for a senior tenant's use by prior right. Or does state water law preclude junior tenants' harvesting these winter transient pulses?

    To a lay person like myself, it seems that the ecosystem crunch is during summer, when streams run down to their lowest flows yet salmon start relying on the streams for spawning. This will only get worse as climate change advances, with the reduction of glaciers causing less contribution to summer base flow.

    In terms of the big picture, are we headed to a future of newly-constructed water-storage reservoirs in Whatcom County to capture river flow when it's in surplus (winter)? Is that the inevitable future?

    Are there physical sites where this would even be feasible from an engineering perspective?

    Baffled in Bellingham,
    Abe Jacobson

    1. Abe,

      Those are all excellent questions. Here's Whatcom County's "Instream Resources Protection Rule" -- see what you think!

      That's a slightly tongue-in cheek answer, but only slightly. The rule says that the mainstem of the Nooksack is subject to an instream flow requirement but isn't closed, so could some of the water go into a reservoir? I'm not sure of the answer to that in any sense. Logistically, from an engineering point of view, legally -- I don't know. In addition to the rule, the tribes also have a water right based on their fishing rights, dating back to time immemorial. How does that affect the answer? I don't know.

      I have heard that some farmers and irrigation districts are proposing reservoirs as a solution to their water rights issues.

      All of this highlights the main point that my clients and I have been making: Whatcom County needs some good water resource planning.

      Farms need water, people need water, fish need water. Sometimes there's too much water in the wrong place -- flooding in Ferndale, as you mention -- and sometimes there's not enough water in the right place -- farms in summer. As you suggest, a solution will take into account all of these factors. As opposed to just running around screaming "They're going to take your property rights!"

      Which is the drum that developers and realtors are already banging in Whatcom County. Of course they are -- it's in their self interest. Their incomes depend on building new houses for new residents, even at the expense of farms, fish, tribes, and other current water users. Is that a defense of property rights? I'm not so sure.

    2. Abe, you're correct that global climate change will makes things worse. According to experts, the greatest changes we will see locally are seasonal shifts in water availability.

      Historically, winter precipitation was in large part made up of snowfall in the hills and mountains. This snowfall did not significantly increase the flow of river water, but accumulated as snow pack. Then, over the spring and summer, the snow melted and added to the river flow, sometimes late into the year. This cool flow in the warmer months is a boon not only to the fish, but to farmers that depend upon irrigation.

      Under the new scenario we are facing, winter precipitation may very well arrive as rain instead, leading to large wintertime river flows. That also means less snowpack, which in tern means less springtime melt and runoff. This would lower the springtime flows, and worsen the drier conditions of summertime. Basically, too much water in the river when we do not need/cannot use the water, and too little water in the river when we need it most.

      Global climate change might also effect the amount of rainfall in the other times of the year -- increasing or decreasing it. I don't recall the details. Regardless, it makes it more imperative that we get a good handle on water usage and planning.

  2. Once again, as ever, you've nailed it Jean. And this was the basis of Dan Pike's action to petition Ecology to enforce the closure of the Lake Whatcom basin to protect the lake, Whatcom Creek, and, of course, the city's water supply.

    It was some six or seven years ago I sat in a conference room in the courthouse with Hal Hart, Dewey Dressler, two of McEchran's lackies, and representatives of Health and other county departments to explain this same reality. Surprisingly, Pete Kremen had the gumption to give me the opportunity.

    Of course it was received as the ravings of a lunatic and dismissed. Yes, the times they are a changin!

  3. Interestingly, from a very different position, Skip Richards is making the same point:

    "I have stated many times in other venues, however, that to address land use policies without first resolving the underlying water issues is foolish, shortsighted and doomed to failure. Now those chickens are coming home to roost. I take no pleasure in saying I told you so, but I did, and hope you begin listening now – better late than never."

    1. And as he should. You correctly observed, it's the law, no one is making this stuff up.

      I don't recall, right now, if it was in Hubbard or Postema, but the state's courts long ago determined that water "quality" as sit relates to the establishment of instream flows means "quantity" because with insufficient quantities stream temperatures rise reducing their quality for salmonoids, among other things.

      Judges, from Boldt to Martinez, have consistently ruled in favor of the salmon, whose right to water "is from time immemorial."

      Readers might be informed to read

  4. Those who are interested in land use and water supply, including the effects of climate change on water supply in the Nooksack Basin, should take a look at the slides from a presentation by Steve Jilk of PUD 1 for a conference in 2011:

    In fact, take a look at the conference page -- there are many interesting presentations:

    In the URL, "Whatcomwin" is short for the Whatcom Watersheds Information Network:

    1. I'm very interested in land use and water supply, but I find these references opinion and narrative - not facts based on field work and empirical evidence. I strongly the support the idea that we do need very good, open and public watershed planning, but not planning devoid of real science.

    2. There are plenty of facts out there, Ellen: surface waters closed to additional water withdrawal, TMDL requirements, closed shellfish beds, nitrates in public water systems. The facts point to the need for land use not to go "full speed ahead", but to stop and address these facts first.

      The second part of planning is when you don't have all the facts to make a decision, then you go gather those facts. Develop a water management plan and groundwater budget after you get that data. Then, you can move forward with logical development that protects resources.