Water Update

Rarely-seen inhabitants of the Nooksack River call the alarm.

In 1985, the Department of Ecology adopted an instream flow rule for the Nooksack Basin, covering most of Whatcom County.

Why?

To protect the environment, that’s why.  But don’t take my word for it.  Here’s what the rule says about itself, in its own words:

"The purpose of this Chapter is to retain perennial rivers, streams, and lakes in the Nooksack water resource inventory area with instream flows and levels necessary to provide for preservation of wildlife, fish, scenic, aesthetic, and other environmental values, and navigational values, as well as recreation and water quality." (WAC 173-501-020)

How are we doing?  Well, from 1986 to 2009, the Nooksack River failed to meet instream flows 72 percent of the time during the July-September flow period.  That means that too much water was pumped out of streams, and drawn from the groundwater that feeds into streams, 72% of the time during the dry period.

100% - 72% = 28%.  A grade of 28% is an F.

We’re flunking, big time.  Why are we OK with that?

One explanation comes from opinion-leaders in Whatcom County – the development industry, the Tea Party – who say that the problem isn’t that we are failing to protect the environment by depleting stream flows.  Rather, the problem is the rule.  It’s just that the Instream Resources Protection Program (the full name of the rule) provides too much protection to instream resources.   Instream flow requirements keep too much water in rivers and creeks, they assert.  Cut down instream flows!  The salmon are drowning! 

So they’ve been pressuring the Department of Ecology to adopt a new instream flow rule which, they believe, would allow more water to be pumped out of rivers and creeks, reducing the amount of water left in streams.

On December 3, Ecology presented the WRIA 1 “Planning Unit,” including these self-same opinion leaders (the development industry and the Tea Party), with its assessment of what a new instream flow rule for Whatcom County might look like.  Power point presentations from the program are here (Christensen), here (Wessel), and here (Pacheco). 

The takeaway:  If Ecology adopted a new instream flow rule, more water would have to remain in rivers and creeks in order to meet the goals of preserving fish and wildlife. 

• Our scientific knowledge has increased – for example, we’ve learned that fish actually like water.  Who knew!

• The Endangered Species Act listings happened after the 1985 Rule, so we’d actually have to protect endangered salmon in WRIA 1 if we adopted a new rule.

• Ecology would actually have to comply with state water law if it set a new rule.  All sorts of “new” cases – some of which are a quarter century old by now, but who’s counting – would require additional protections.   Ecology believes that it’s always 1985 in Whatcom County.  A new rule would bring us out of our comfortable time warp and into the harsh environmental reality of the 21^st century.

In short, not only are we failing miserably to keep enough water in our rivers under the 1985 rule, but the 1985 rule wouldn’t protect fish and other resources even if anybody paid any attention to it.

What will Ecology do about this?

As an Ecology representative once said, about Lake Whatcom:  when you’ve dug yourself into a hole, the first step is to stop digging.  But Ecology is not applying that logic to instream flows.

Ecology is arguing in court that the Instream Resources Protection Program is intended to make sure that an unlimited number of new residential wells can draw water from closed watersheds, regardless of their effects on instream flows.  According to Ecology’s argument (which my clients and I think is wrong), residential wells have higher priority than any other water use, even including senior water users such as farmers.  According to Ecology, new residential wells have the legal right to take the very last drop of water from rivers and creeks that are required to be “protected” by instream flows.

I believe that Ecology’s argument stems from expediency rather than conviction.   Ecology knows that water resources are not adequately protected in Whatcom County, but it does not believe that it is equipped to do anything about it.

Look at slide 12 in the Christensen presentation of December 3rd, included in the links above.  Ecology (1) is focusing on Spokane, (2) believes that other counties, some of which have no instream flow rules at all, are even worse off than Whatcom, (3) does not want to have to deal with complying with state water law as it has developed since 1985, and (4) just plain doesn’t have the budget to deal with us.

So Ecology has made it pretty clear – as clear as a bureaucracy can be, on the record – that Whatcom County’s problems are its own.  We have a 1985 rule, and that’s all we get from the state.

“We,” in this context, means Whatcom County.  What is Whatcom County doing to protect water resources?

Whatcom County, along with its allies in the building industry (REALTORS®, Building Industry Association, and Farm Bureau), are fighting in court to avoid protecting instream flows, supporting Ecology’s claim that residential wells have priority over instream flows (and other senior water users) down to the last drop.

The County backed itself into a corner on this issue, of course, by planning for a whole lot of new development outside of cities.  In fact, Whatcom County has planned to allow the equivalent of five new Blaines to be built on agricultural and rural land.  This new development will, for the most part, rely on new wells for water.

The County has no idea whether and where water is available for new development.  It doesn’t want to connect new development to the availability of water, as the Growth Management Act requires.  Fish don’t vote, after all, so there won’t be any repercussions if they are left high and dry.

My clients and I, and Futurewise, are opposing the County’s interpretation of the Nooksack Instream Resources Protection Program.  We don’t think that that the Instream Resources Protection Program says that new residential wells are “exempt” from instream flows.  Here’s a presentation that I gave at a recent legal seminar, with my take on the case.

On December 24^th, we responded to two briefs filed by Whatcom County’s “friends in court,” or “amici curiae.” For those who want to dive into the arguments, here’s the brief that the REALTORS®, Building Industry Association, and Farm Bureau filed to support the County, and here’s our response. 

Here’s the brief that the Washington State Association of Counties filed, and here’s our response.

The Court of Appeals in Seattle will hear arguments on the water case on January 15^th.  If we win, perhaps the County and Ecology might start putting their heads together to figure out how to make sure that land development connects to water quality and quantity.

Win or lose, some water issues are starting to percolate.  So to speak.  County Council member Carl Weimer’s Water Action Initiative may have some results.  Here’s a discussion on Carl’s blog.

Farmers are moving forward to get water.  I assume that a January 8th session on a potential “Whatcom water exchange” is related to this effort (here’s a link).  Bill Clarke, the lead author of the brief filed by the REALTORS®, Building Industry Association, and Farm Bureau, will be speaking, as will a lawyer from Whatcom County’s Seattle law firm, Van Ness Feldman.

It will be interesting to hear what water is available for exchange.  The City of Bellingham and PUD 1 have substantial water rights, making them the logical targets.  Will farmers really tax themselves to pay for the infrastructure that they need to draw water out of the Nooksack?  Or will we all wind up footing the bill?

My prediction for 2015 is that fish and wildlife will continue to foot the bill.  They’re nobody’s constituents.

Next, our children and grandchildren will pay the price.   They’re not voters either.

That’s the remorseless outcome of short-term politics applied to long-term goals and needs.  As our bridges fall beneath us, we shrug and oppose new taxes.  As our water dries up, we shrug and bury our heads in the sand.

We will reap what we sow.