Friday, January 31, 2014

Talking to the Tea Party About Water

Sumas River.  Photograph by Lee First.
Tea Party activist and KGMI radio personality Kris Halterman posted a blog about last Tuesday’s County Council meeting.  The short blog contained the usual misstatements and inaccuracies about our water case, and added an assertion that we had failed to respond to Tea Party talking points. 
In fact, we responded to two sets of Tea Party talking points:  those posted on the Tea Party web site and those posted on Ms. Halterman’s KGMI web site.  Our response is here.

And now I’d like to ask the Tea Party to respond to the information below, all of which is based on state agency reports and the County’s planning documents. 

The only responses I’ve heard so far are (1) bad city people want to warehouse rural people in concrete jungles, to live like rats in mazes, and (2) the County should spend millions of dollars to hire Tea Party-approved scientists to redo the work of agencies, in order to reach Tea Party-approved results.

Argument (1), promoted by state Senator Doug Ericksen on Ms. Halterman’s radio show, is an effort to create animosity and division in order to divert attention from the facts. It does not, of course, address Whatcom County’s situation.

Argument (2) assumes that Whatcom County’s desire to assuage the Tea Party knows no temporal, monetary, or legal limits.  While the County’s actions over the past four years do support this assumption, the voters who elected the Council majority appear to hope that the County will someday start to base its policies on facts and law.

If the Tea Party is willing to go beyond these two arguments, and to engage in the solution of the issues identified below based on fact and law, I’d be very interested to hear its proposals.

From (the Tea Party talking points are in italics, and our responses are in plain type):

 This case, and the issue generally, raises numerous important concerns:
If there are water quality and quantity problems, how have those been proven – to whom?
  • The WRIA 1 State of the Watershed report shows year-round or seasonally closed watersheds account for a large part of the County.  Ecology has found that average minimum instream flows in the mainstem and middle fork Nooksack River are not met an average of 100 days a year. 
  • Ecology’s Focus on Watershed Availability report states “Most water in the Nooksack watershed is already legally spoken for.”  Instream flows for WRIA 1 were established in 1985 and codified at WAC 173-501.  As a result of instream flow requirements, some of the water sources are closed year round to additional withdrawals and some are closed part of the year. 
  • In its 1999 Water Resource Plan, the County reported that a proliferation of rural residential exempt wells already created “difficulties for effective water resource management” by drawing down underlying aquifers and reducing groundwater recharge of streams.  Since the report was issued, more than 1,000 additional wells have been drilled in closed basins.
  • The link between stream flows and groundwater withdrawals in the shallow Whatcom aquifers is well documented.  A number of studies indicate that shallow aquifers of the County are responsible for approximately 70% of base stream flow. 
  • The Sumas-Blaine aquifer is the only readily available drinking water source for 27,000 rural residents of Whatcom County.  Nitrate contamination in the aquifer has been documented for over 40 years.  In a 2012 study, 29% of sampled wells failed to meet drinking water standards for nitrates, and 14% of wells had double the maximum allowed nitrate levels.
  • A 2012 Washington State Health Department study on fecal coliform pollution in Puget Sound ranked Drayton Harbor as the second-highest contaminated shellfish bed in Puget Sound.
  • Whatcom County has 77 impaired water bodies under the Clean Water Act’s Section 303(d) standard.  Of these, only 6 water bodies have been analyzed and have had standards established for Total Maximum Daily Loads (TMDLs). 
  • The County’s own Comprehensive Plan states:  “Surface and groundwater quality problems can be found in many areas of Whatcom County. . .There are significant legal limitation in obtaining water.  Management actions between and within jurisdictions are not always well coordinated or consistent. . .These problems and issues have already led to many impacts. . .includ[ing] health concerns associated with drinking contaminated water; fisheries depletion and closure of shellfish harvesting areas and other instream problems; a lack of adequate water storage and delivery systems to meet the requirements of growth and development; concerns with the availability of water to meet existing agricultural and public water supply demands; potential difficulties and additional costs associated with obtaining building permits and subdivision approvals; and other related increasing financial costs to the community.  Long-term resolution of the numerous, complex and changing water issues requires actions in many areas.”  
This evidence, and much more, was cited in the Growth Management Hearings Board’s decision."

Tuesday, January 28, 2014

Doing the Math on Exempt Wells

The Tea Party is all a-twitter about a letter that spokesman Greg Brown sent to the County Council.   

The letter, headed "Water Supply Issues or? Can you do the Math?", has the virtue of simplicity, which is always compelling to overworked elected representatives.  It has a narrative that has been compelling in the County over the past five years:  rural good, city bad.  

The only problem is that it's wrong, both mathematically and legally. 

There is plenty of room for a robust debate about the solutions to water quality and quantity issues.  But let's have that debate based on facts and law.

I just sent the following response to the County Council:

Dear County Council:

Greg Brown submitted a letter that purports to show that the County’s water planning should ignore water use from exempt wells because (1) only 10% of water used by those with septic tanks is not returned to groundwater, based on Ecology’s assumptions as set forth in the rule recently adopted for the Dungeness watershed, and (2) “there is generally no return flow” from city water use.

The most significant problem with Mr. Brown’s letter is that it does not accurately portray groundwater use as estimated in the Dungeness rule (attached).  This is what the rule really says:

WAC 173-518-085

4.(a) For parcels served by an individual or community septic system, ten percent of indoor water use is assumed consumptive.

(b) For parcels served by a sanitary sewer system, one hundred percent of indoor water use is assumed consumptive.

(c) Ninety percent of outdoor water use is assumed to be consumptive.

Water use in rural areas spikes in the summer, when farms and residences are using water and when streamflows are low.  Many surface waters in the County are only closed in the summer.  Thus, the 90% figure is the most important one, because most residential water use falls into that category.

The Dungeness estimates are similar to the County's own estimate of water consumption, which we provided to the County in our letter of January 23, 2014.  The Lower Nooksack Water budget estimates that 85% of outdoor use and 15% of indoor use is consumptive (not returned to groundwater). Please refer to the Lower Nooksack Water Budget (2012) at 259. The Lower Nooksack Water Budget can be found at

Mr. Brown's letter further failed to explain that the Dungeness rule requires all water use (including groundwater use) to be metered and mitigated.  Ecology clearly did not base its rule on Mr. Brown’s theory that groundwater use can be ignored – undoubtedly because this theory violates state water law.

Mr. Brown’s assertion that there is "no" return flow from urban water users is also incorrect.  Outdoor use from city users will have the same return flow as from rural users.  Of course, that percentage is low – but it is also low for rural landowners.

Ultimately, of course, the effort to start a "rural vs. urban" water war is a red herring.  The County's obligation to plan for water quality and quantity is based on its Growth Management Act obligation to adopt an adequate rural element.  If Mr. Brown believes that the City of Bellingham, for example, is wasting water or does not have an adequate water right, he should address the City of Bellingham.  The County still needs to adopt a GMA-compliant rural element, regardless.

Thank you for considering our comments.

Sunday, January 26, 2014

Who Needs Water?

Last Wednesday’s City Club meeting provided a forum for Whatcom County Executive Jack Louws and Bellingham Mayor Kelli Linville to discuss the most significant issues faced by Whatcom County.   

According to an article in the Bellingham Herald, Executive Louws is concerned about water issues, especially the potential economic effect of water scarcity on speculative land developers.  The Herald quoted Executive Louws as stating "People who have invested in the raw property and have made their living doing that are concerned, and we need to find a resolution to it."

'There is no question that people have made money, a lot of money, from the conversion of rural and agricultural land to residential development in Whatcom County.  That is why the Building Industry Association and its various alter-egos – the Farm Bureau, the Citizens’ Alliance for Property Rights, the Realtors, the Tea Party – are so active here. 
And there’s no question that the building industry is one constituent of Whatcom County, with one well-recognized interest.
The question is:  is it the only interest?  Or does the County also have an interest in making sure that we have water for agriculture, for fish, for tourism, for drinking? 

If so, the County has plenty of issues to address, from pollution of the aquifer that provides drinking water to the northern part of the County, to the fact that somewhere around ¾ of the water used for agricultural irrigation is not based on a legal water right, to low stream flows that can jeopardize salmon.

But if those issues don’t matter, and encouraging rural land conversion really is the County’s primary water resource goal, the new Council will soon have the opportunity to make this clear. 

The Growth Management Hearings Board recently found that the County has an obligation to connect its land use planning to the availability of water.  And please understand:  Whatcom County has the obligation to connect its land use planning to water.  The Herald article inaccurately stated that the Board “would require Whatcom property owners to prove new wells would not affect the levels of certain streams.” 

The Board did no such thing.  It told Whatcom County to determine that water is available where development will occur.  Now, if the County makes a decision to throw up its hands and tell County property owners that they have to come up with proof of water availability themselves – well, that would be the County’s decision.  The Board’s decision addresses the County, as the responsible planning body.  The folks trying to scare property owners by telling them that they’ll have to make the water availability decision themselves are assuming that the County won’t do its job.  (Of course, given the County’s approach during the past four years, this prediction may carry a grain of salt.)

But back to the case.  Rather than trying to bring its land use and water planning into the 21st century, the County appealed the Board’s decision to court, hiring Seattle attorneys to fight against the obligation to plan for water quality and quantity.  The amount of money allocated to legal battles emerged as an election issue during last fall’s County Council race. 

Apparently the mere possibility that the Council might not continue to fund outside lawyers to fight against better land use and water planning has upset the folks discussed by Executive Louws:  the people who make their living by buying raw land to develop.  They are so concerned that they have assured the County that they will provide the legal horsepower needed to keep fighting and avoid planning, according to Tea Party activist and KGMI radio personality Kris Halterman,

So the County doesn’t need to pay for outside lawyers, because the lawyers for land development interests are lining up to represent Whatcom County.

In a very stark and real way, this raises the question of who the County Council represents.  Is Whatcom County’s interest in water congruent with the interests of “people who have invested in the raw property and have made their living doing that”?

Maybe it is.  If so, I sure hope that the County Council will have the guts to say so.  If our County’s long-term economy and quality of life is so dependent on rural land conversion that the County Council is content to let these organizations represent the County, the Council ought to make that finding and back it up.

 That view would run counter to another perspective:

How does one put a dollar value on being in the presence of crystal clear water coursing down a steep slope through a rock-lined, moss-edged stream bed among evergreen trees, for example? While commercial uses of the state's instream flows might be made--tourism and paid-for recreation, for example--such uses do not entail the total benefits derived from streams and lakes.

Hey, who wrote that environmental hogwash?  Some tree-hugging hippy, right?

Wrong.  The Washington Supreme Court wrote that, a few months ago, in Swinomish Indian Tribal Community v. Dep’t of Ecology, 178 Wn.2d 571, 600, n. 15 (2013).

Does the state Supreme Court have a point?  Might Whatcom County’s water resources provide “total benefits” that aren’t based solely on the economic value of using water for land conversion?  Will the County Council recognize those benefits, and see the opportunity that it has to work for a broader solution, or will it follow the path of least resistance by putting the development industry incharge our future?

The next few months will tell.