Tuesday, December 10, 2013

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.”


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.  


  1. I suppose, if one wished to be very technical, it need be admitted enforcement of the laws would take water away from people not currently using it. That's certainly something of a conundrum!

    But a true assessment of the law and the facts establishes your efforts protect people's water. Newcomers, those not currently using water, will not be able to take the water needed by current users.

    If anyone, or any policy, has created a threat to existing water users, it is Whatcom county government and their blind faith there is an infinite supply of water for growth and development ad infinitum.

  2. Well, sure. There's always the very slim possibility that state water law could be enforced. But that's always been true, and that's not what this is about.

    The sad thing will be if the Tea Party's divisive scare tactics generate enough fear and anger to keep people of good will from sitting down to work on the issues that we need to resolve. .

  3. Actually, I suspect the greatest threat to well water in the future of the "Bellingham Play" or "Bellingham Basin" will probably be fracking for coal-bed or conventional gas..

  4. Oh, I had it backwards: you're protecting our water! Although you say it is "hypothetically" possible that government could shut down existing wells, all it takes is a whim to convert this "hypothetical" to a full-blown reality. Meanwhile, you consider the "hypothetical" damage potential to the environment by normal human behavior to be a hard reality that requires the full invocation of the precautionary principle. Devoid of proof, you trot out the justification for tyrants the world over.

    If this thing that you're promoting as a benevolent act, protected from abuse by hundreds of years of legal precedent, is as benign as you say, then why is it even necessary? What you are proposing will require existing land owners and well operators to prove a negative at great expense, or risk serious consequences. Hundreds of years of jurisprudence in the American form of government says we're innocent until proven guilty. You have it backwards.

    1. Karl, what the heck are you talking about? It sounds like you're very frightened of state water law, and maybe you have reasons. But I don't know why you're yelling at me. As I explained carefully above, nothing in our GMA action has anything to do with existing wells, and we certainly have no control over state water law.

      Unless you've heard anything different from the Department of Ecology, nobody is talking about taking water away from existing wells -- except those who are trying to confuse and scare people.

      It's been interesting to see the term "precautionary principle" thrown around, presumably as a way to assert that the basin closures in 1985 were not based on real evidence. You can't blame me for the basin closures, either! If there is, in fact, ample water for everyone, there should be no problem proving it to Ecology (the folks who do have authority).

      I'm also not sure what I am "proposing" that would make people "guilty until proven innocent" or that "justifies tyrants." Honestly, this whole rampage is a mystery to me.

    2. Jean, I'm sorry if you thought I was yelling. Compared to the Bellingham Herald Politics Blog, I though it was being positively genteel; simply pointing out that your mocking tone about the tea party, and calling out specific individuals for ridicule, required some retort. After all, nobody honestly thinks they won't be able to water their Christmas tree. But there is a very good chance that they will not receive a building permit to use or modify their own property if they cannot afford to prove a negative regarding their exempt well.

      I do not fear water law, but I do know that there are two agendas or movements in this county: One which is anti-growth, anti-development and anti-business -- and wants to use the government to implement it. And the other which favors the rule of law, due process, and good science to obtain reliably reproducible results for proof of harm (instead of proof of not harm). The burden of proof is on the accuser. Futurewise seems to be opposed to the latter model.

      I realize that this is your blog, and you can say whatever you want. You're free to delete or moderate these comments. But since comments are enabled, I figured I'd throw in a bit of classical liberalism and see where the conversation went. Both sides deserve to be heard in this conflict of visions.

    3. Karl, you're not being mean or personal, so you're more than welcome to keep expressing your opinions. And I'll keep responding.

      I'm not a big fan of the black/white, us vs. them vision that you promote. For example, I'm not anti-business. I do believe that businesses should be accountable for some of the external costs that they create. Not all of the external costs -- taxes pay to alleviate some external costs, and some external costs are balanced out by external benefits. But if a business externalizes costs by polluting a shared resource -- such as water -- I don't see why that business should be favored over the businesses and people who use water for fishing, boating, swimming, and drinking.

      Perhaps you should speak to the Channel 5 reporter if you think that Karen Brown should not have been identified by name. Also, Karen has taken on a public role as the chair of the WRIA 1 Planning Unit Private Well Owners' Caucus, with Greg as her alternate: That role is closely tied to the King 5 report and might be viewed as representing the views of that caucus, so there's no reason not to identify her by name.

      If I ever use a term like "lawsuit-happy enviro-trolls," which appeared in a Whatcom Excavator article upon which you commented (favorably), you can accuse me of incivility. But not for anything in this blog.

      As for science -- we provided the Hearings Board with a strong scientific basis for its decision, and I recently provided the Planning Commission with additional evidence about water quality and quantity. All of my exhibits are available as links from

      Please feel free to propose additional references.

    4. Of course, Karen Brown is a public figure, in her capacity on the planning unit. She agreed to the interview with King 5. I'm sure she can take care of herself. However (as I pointed out earlier) her concerns are not specious. If things go the way Futurewise wants them to, Karen and many thousands of land-owners like her will find their property rights curtailed (also explained earlier) -- and the corresponding reduction of tax revenue will affect all of us -- with or without wells.

      My concern about science has to do with how the water is accounted for, and where it goes and what happens to it after it's drawn from the wells. I feel that many of the assumptions have not been adequately vetted by good scientific analysis. I am aware of at least one licensed hydro-geologist who has grave reservations about this.

      As for the civility, or incivility of the term "lawsuit-happy enviro-trolls"; I have to admit, when I read that I thought, "that is a good description of the problem". Predatory operators like to find legal wedges and then troll for lawsuits. They have made millions because people are willing to settle, instead of defending themselves in court. We know that Whatcom County government can be bullied with the threat of lawsuits. And when Futurewise sues the county, they are suing /me/, and I do not appreciate it.

      In the case of this particular issue, (exempt wells and water rights) I don't think we have a huge problem with "external" costs, or the tragedy of the commons. In fact, the tragedy of the commons seems to be a bigger problem when property rights are curtailed and collectivism rules the day.

    5. "Karen and many thousands of land-owners like her will find their property rights curtailed (also explained earlier)." Well, no. You haven't explained that. I've explained why it's wrong, but you simply have made an unfounded, unexplained assertion.

      Alas,I have made 0 dollars and 0 cents from being a "troll." Nor does Futurewise make a profit. That's just more scare-mongering and intentional divisiveness.

      If you think that state water law is collectivist, perhaps you should be calling the state legislature enviro-trolls. Nothing in our lawsuit affects state water law in the slightest. So your name-calling is misdirected.

      I would still be happy to hear about the scientific information that is the source of your concerns.

  5. Mr. Uppiano, do land use lawsuits filed by corporate clients like Caitac against Whatcom County take money from your pockets? Sure they do.

    Do land use lawsuits against Whatcom County filed by private citizens--represented pro bono by those same corporate clients--take money from your pocket? Of course.

    Don't demonize Futurewise for challenging the County for it's failure to follow State law.

    Particularly since Futurewise is winning the latest lawsuit and will likely prevail in the County's misguided appeal to the appellate courts, the costs of which will also come out of your pocket.

    And mine.

    1. Futurewise has a history of filing lawsuits every time the county does something that FW doesn't think fits their idea of state law interpreted to reflect their world view. Would that I could afford to do that. But even if I could, I would not. I'd simply vote in the next election. I guess that's the difference.

    2. Karl, that's silly. I can't speak for Futurewise, I can only speak for my own actions, but I'm pretty sure that nobody has the time, interest, or resources to file a lawsuit every time a County action doesn't fit their "world view," whatever that's supposed to mean. My clients' "world view" is simply that the people of the state of Washington spoke in 1990, when the Growth Management Act was passed, and that Whatcom County is part of Washington.

      All of the cards in the deck are stacked against people who challenge the County's enactments, which are deemed to be in compliance unless we can meet a very heavy burden of proof to show that they're not. So, if some wacky "world view" were all that we had to offer, we wouldn't get very far.

      If you, personally, can't find a pro bono attorney or pay an attorney to bring pro-development lawsuits, you can always join one of the many well-heeled organizations that do, including the Building Industry Association and Pacific Legal Foundation, both of which have been active in Whatcom County. There's no need to be worried about the development industry's ability to protect itself or promote its own interests -- it's very vigilant and effective. As is its right. Just as it is our right to be vigilant about the Growth Management Act.

    3. I am very grateful for Pacific Legal Foundation. I wish they weren't necessary. I wish we could settle our problems by voting instead of by litigation. The latter seems to give special interests way too much power.

    4. I agree that the Pacific Legal Foundation has too much power. And I'm glad that we found something to agree on.

    5. I said, "The latter" [meaning litigation] "seems to give special interests way too much power". My intended take-away was that I wish PLF was not necessary, but that I'm grateful for their support of the classical liberal principles on which this nation was founded, and that are still supposed to be constitutionally enforced.

      My problem with Futurewise and BIAW is that they both seem to be using litigation to promote their special interests with greater influence than they would otherwise derive from the electoral process. I might agree more frequently with BIAW than I do with Futurewise, but that's only because I believe it should be possible to protect our natural resources without forfeiting our natural rights.

    6. My point was that Pacific Legal Foundation is a special interest; you just don't view it as such because you agree with it. If electoral politics were the only influence on public policy, PLF would be out of business.

      Overall, the suggestion that the propertied classes are somehow at a disadvantage with respect to the use of litigation to influence public policy simply isn't credible.

  6. I don't understand what all the fuss is about. The "property rights" factions in Whatcom County have every reason to believe their days will be merry and bright in the coming year. And for the next 22 years.

    At last Thursday's County Planning Commission public hearing on Population and Employment Projections, every City and Municipality urged the Planning Commission to recommend the High Population Growth numbers provided by BERK.

    That's Bellingham, Ferndale, Blaine and Lynden.

    What's not to like about Government Advocated Population Growth? Particularly when that growth is endorsed by every County Planning Department,, Bellingham City Council, the Bellingham Planning Commission and likely every County Planning Commissioner ?

    That High projection translates to a 1.5% annual growth rate for Whatcom County. Or 291,949 persons by 2036. Up from our present 206,000.

    Never mind that the actual growth rate for the County over the last 5 years has been .8%. If those High Growth Forecasts don't pan out, we can always rely on government (that's us) to lure more people and projects---like coal terminals--to this corner of the world.

    Right now 75% of our population increase comes from in-migration. In 20 years, it will be 100%. And we can rely on government to raise taxes to fund the capital projects, infrastructure and social services to provide for these new folks.

    A more modest proposal--and one I can assure you will never happen--is the approach taken by Skagit County in 2003. A Steering Committee of City, County and Town planners reviewed the OFM numbers and the local ability to accommodate growth.

    Skagit adopted a population number halfway between the OFM Medium and Low projection.

    That was 10 years ago. Today, Skagit is right on target with a population of 118,000 and on track to hit their prediction of 149,000 by 2036.

    Applying the same formula to Whatcom County, we could plan for 62,100 new residents by 2036, or 2700 per year, for a total of 268,000 by 2036.

    This assumes a growth rate of 1.2% per year, which is more in line with traditional numbers and appreciably higher than the .8% growth of the past 5 years.

  7. Oh my, Xmas has come and gone... and Doug Ericksen's heart is still two sizes too small. He's pre-filed this little stinker of a Bill -- "SB 5983 Limiting the authority of growth management hearings boards to hear petitions challenging the regulation of permit exempt wells. 1/7/2014 Ericksen"