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.


  1. The continued misperception by County electeds that using developers attorneys is acceptable is disappointing; the fact that the County Prosecutor's office okays this behavior is even more appalling.

    As you point out, there are many stakeholders in water issues, and water fights are going to be a major part of the landscape not only locally, but globally in the coming years. In this state, every time we allow greenfield development in areas of anadramous (read 'salmon') fish habitat, we are incurring costs that our children will have to pay, or perhaps we will, if the decisions come sooner. The state is staring at a federal court decision from Judge Martinez--a Lynden native--which demands expenditures in the ballpark of $2.4 billion for a partial fix of the culvert part of that equation.

    It is fiscally irresponsible to saddle the taxpayers with the costs of private profit--and if citizens understood what was going on, communities like Lynden, Sumas, and Everson, which have much more to lose in terms of costs they will likely have to bear, would be outraged. Or so I like to think...

    1. Thanks for your comments, Dan.

      I didn't mean to leave the impression that the Prosecuting Attorney's office has agreed with the use of outside attorneys in this case. I read about the proposal on Kris Halterman's web site -- it appears to be an effort by building industry organizations to create a "workaround" for Council members who ran on a promise not to pay more for outside attorneys.

  2. Jean, thanks for the correction. I was writing about the GMHB order but thinking about WAC 173-501, which says a "water right application" would be denied on a closed stream unless the project proponent can show drawing water would not affect surface flows. (Ecology tells me the exemption that applies to exempt wells in this case could be overturned in the county's case once it reaches Supreme Court.) As you noted, this would be the fallback position if the county doesn't take any of the active steps suggested by the GMHB in its June 2013 order, on page 43. Many of them would also be unpopular among the property-rights advocates: "(The county) may limit growth ... reduce densities or intensities of uses ... impose low-impact development standards throughout the rural area ... or develop mitigation options." The mitigation options might leave the most room for solutions palatable to the property-rights folks.

    1. No problem, Ralph. That formulation is one that the Tea Party has been using, and they're the loudest voice on this issue, so it's easy to slip into that common mischaracterization of the Board's decision.

      I chuckle when people say "when this gets to the Supreme Court." The Supreme Court accepts very few cases for review, so even if the County decides that it's a better use of tax dollars to litigate than to update its water quality and quantity planning, there's no guarantee (and a low statistical likelihood) that the Supreme Curt will hear the case.

      With respect to available options -- Tea Party spokesperson Greg Brown sent a letter to the County Council, bringing up a water use rule that was recently adopted for the Dungeness watershed. That rule requires that all groundwater use (without a water right) needs to be mitigated, and also has to be metered. That's one possible approach for the County to think about, and Greg's letter may indicate that the Tea Party is starting to understand the available options.

      Greg's letter focused on water consumption from exempt wells. The Dungeness rule estimated that 90% of outdoor water use is consumptive -- that is, the water does not go back into groundwater. That's pretty close to Whatcom County's estimate of 85% consumptive use of outdoor water. Outdoor water is what matters, of course, because it's by far the largest residential water use and because it spikes in the summer, when farmers are also using water and when stream flows tend to be low.

      Greg appeared to believe that the Dungeness rule establishes that only 10% of water from exempt wells is consumed. That's only indoor water use, though, for that watershed. The Whatcom County estimate is 15%. But in any event, the number that matters for our streams is the outdoor use, and whether it's 85% or 90%, it's mostly consumed.