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| Bertrand Creek, January 2013 |
In October, the Supreme Court decided Whatcom County v. Western Washington Growth Management
Hearings Board. While this case is often called the “Hirst case,” referring to one of my four clients, the official name
accurately reflects the source of the litigation. It was Whatcom County that
decided to take the case to court, not my clients or Futurewise.
The reaction to the Supreme Court’s decision has been varied
and interesting.
Reaction 1: Across the state, many people are thrilled
and thankful that the Supreme Court understood the importance of protecting
senior water rights.
I attended a conference, a year or two ago, where a speaker said matter-of-factly, “Water theft is a way of life in Whatcom County.” That’s our reputation. We’re the county where senior water users
watch helplessly while new wells take away their water.
Whatcom County’s laissez faire approach to water use – if
you pump it, it’s yours – turns the state law of prior appropriation, or “first
in time, first in right,” on its head. The
Supreme Court’s decision reaffirms the fact that prior appropriation is state law, even in Whatcom County,
and state law protects senior water
users from water theft.
Reaction 2: “Whether we agree with it or not, let’s
follow state law.” Many people are
working hard to implement common sense responses to the Supreme Court’s
decision.
Reaction 3: Hell No!
“It rains here! A lot!” “The Supreme Court is crazy!” “Nobody ever suggested that Whatcom County
has a water problem – the Supreme Court created a water problem!”
Some of these reactions are simply faux outrage, based on
face-saving or economic interest. Take, for example, the loud whining noises
coming from attorneys who wrote amicus (friend of the court) briefs on the losing
side.
Other reactions within Group 3 simply reflect the fact that
many people are new to the issue. They
genuinely don’t understand the very long history of water shortages in Whatcom
County. And when I say “very long,” I
mean that water has been over-allocated in this county for at least 70
years.
The short chronology below is all facts, based just on
documents at my fingertips. I have copies of all of the cited documents. Most,
if not all, are available through a quick Google search. And there are many
more documents addressing water shortages in Whatcom County.
Even though this is a truncated discussion of Whatcom County's long history of water problems, it is possible that some readers might want to do frivolous things. Baking gingerbread cookies. Watching Saturday Night Live's cold openings. Just in case you might not make it to the end, here's the spoiler, right up front. From the last entry:
Ecology’s November 14, 2016 letter to Whatcom County Executive Jack Louws states that “instream flows have not been met on average 142 days per year, and there are no years when instream flows have been fully met.”
1917
Washington State Surface Water Code (Water Resource Act, RCW
Chapter 90.54.)
· Implements prior appropriation: “First in time, first in right.”
·
Requires a permit for surface water
appropriation.
1945
Washington State Groundwater Code (RCW Chapter 90.44).
·
The Groundwater Code differentiated water flowing under property from other attributes of
the property and established the state’s jurisdiction over the
appropriation and use of groundwater.
·
It also recognized
the concept of hydraulic continuity between surface and groundwater.
·
Groundwater is “subject to appropriation for
beneficial use under the terms of this
chapter and not otherwise.” RCW 90.44.040.
·
Permit-exempt groundwater withdrawals are
“entitled to a right equal to that established by a permit issued under the
provisions of this chapter”. RCW 90.44.050.
This means that groundwater has not been part of a “property right”
since 1945.
1946
Department of Fisheries asks that a water right from
Bertrand Creek be conditioned to require that the diversion be discontinued
when the stream flow falls below 5.0 cfs.
1950
Washington Departments of Fish and Game protest a water
rights application for Bertrand Creek, noting that it is important spawning and
rearing habitat and stating that 4.66
cfs out of a maximum flow of 6.0 cfs had already been appropriated from the
Creek. (Source: Attachment to Ecology
letter to Henry Bierlink, rejecting petition to amend the Nooksack Instream
Flow Rule, dated 12/5/13.)
1953
The “Bertrand Creek system” was recommended for closure.
1975
Washington Department of Fish and Wildlife asks Ecology to close Bertrand Creek and all of its
tributaries to consumptive diversion, because low summer flows harm the “already
limited coho population.”
1983-84
Emergency ban of the pesticide EDB. Groundwater investigations in northern
Whatcom County. See http://www.atsdr.cdc.gov/HAC/pha/pha.asp?docid=1292&pg=1
1985
Nooksack Basin instream flow rule adopted (WAC Chapter
173-501).
·
Its purpose 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”.
·
Most of the basins of the populated western portion
of Whatcom County are closed to further water appropriations, year-round or
seasonally, and minimum instream flows are adopted.
1990
Growth Management Act adopted (RCW Chapter 36.70A).
1991
Whatcom County designates
the entire geographic area of the county west of the national forest boundaries
to be a “Critical Water Supply Area” for the purposes of RCW 70.116. A critical water supply area is an area where
“water supply problems related to
uncoordinated planning, inadequate water quality or unreliable service appear
to exist.” AB91-197.
1992
The Attorney General issues Opinion No. 17, which states
that the Growth Management Act (GMA)
requires local governments to make the required water availability
determination before issuing building permits for projects relying on
permit-exempt wells. Local
governments must consider both quality and
quantity, under state water appropriation law.
·
The Washington Supreme Court’s 2016 decision
affirmed the reasoning set forth in this 1992 Attorney General Opinion.
1993
(1) Whatcom County
Hydraulic Investigations – Part 1, Critical Well/Stream Separation Distances
for Minimizing Stream Depletion, by Tom Culhane (Ecology Water Resources
Open File Technical Report)
·
Ecology sponsored a study to examine hydraulic
continuity. The author evaluated whether
it was possible to specify a “critical distance” away from a stream that would
prevent stream depletion from wells. The report states:
o
Where
hydraulic continuity exists between pumped wells and surface water bodies, pumping
can deplete stream flows. The glacial deposits of Whatcom County frequently
allow for such continuity. (Page 1.)
·
The report concludes that “[i]t is not
scientifically defensible to pick a single, critical, well/stream separating
distance in order to minimize stream depletion.” (Page 12.)
Hydraulic continuity resulted in stream depletion when wells pumped
water at various distances from streams.
(2) LENS Groundwater
Study
Whatcom County completes the LENS Groundwater Study, which states on page 2:
Some of these contaminants [in
Whatcom County wells] have been found at levels exceeding those considered safe
for drinking water under the Safe Drinking Water Act. The presence of contaminants in water can limit its ability to be used
as a source of drinking water due to the increased costs of treatment,
monitoring and source protection. The nature and extent of the quality problems
has not been well understood making it difficult to develop appropriate
management strategies
In addition to the quality concerns,
there are quantity problems which raise
serious questions about how future and in some cases current water needs will
be met. Obtaining legal permission from the Department of Ecology to use
water for many needs is currently very difficult. In-stream restrictions on
withdrawals has restricted the use of surface water since flow limitations were
established in the mid-1980's. More recently, getting legal permission to use
groundwater has become very difficult due to the recognition that groundwater contributes
to surface water flows (hydraulic continuity). Tribal water claims to water
supplies both on and off reservation, as well as changes in the State role for
allocation, has cast even more uncertainty into the allocation picture.
1999
Whatcom County adopts a Comprehensive Water Resource
Plan. On page 49, the Plan states: "Many
County residents use groundwater as a source of drinking water. Over 95% of 347 public water systems located
in the County rely on groundwater. In
addition, approximately 20,000 homes
obtain water from exempt wells (not from ‘public systems’). Exempt
wells pose difficulties for effective water resource management.”
1999
Whatcom County Health Department asks Whatcom County to
require all subdivisions to rely on public water systems rather than
permit-exempt wells, based on concerns about the extent of water pollution in
northern Whatcom County. In 2000, after
considering several proposals to limit or ban the use of permit-exempt wells, a
majority of the County Council rejected the proposal, stating that water
problems were a state problem and the County did not need to address problems
with water quality or quantity. (Source:
Bellingham Herald.)
2000
Whatcom County adopts a Coordinated
Water System Plan which states, at page 8-10, that “due to the shallow
aquifer, some water systems have wells
that go dry during the summer and early fall. For these sources, interties with other water
systems, emergency sources and conservation measures may be options for
providing a reliable source year round,”
2005
WRIA 1 Watershed Management Plan adopted. It states, at page 58, that “The instream
flows established by [the Nooksack] rule are water rights under Washington law
and are protected like any other right in the priority system. . . ground water
withdrawals are affected due to their potential (and in some cases, proven) ‘hydraulic
continuity’ with surface water.”
·
It further states that “Concerns associated with
existing instream flows include:
o
Based on the limited streamflow data collected,
it is clear the established instream flows
are not met in many areas of WRIA 1 at many different times of the year – in
fact, the natural flow of rivers and streams often does not satisfy the
established flows;
o
There have been advances in the methods used to
evaluate instream needs and the methods used to establish the 1986 flows may
not reflect the best available science;
o
There is
no mechanism to ensure that instream flow needs can be met (whether they
are the 1986 flows or new flows).”
2011
Ecology releases the results of a 2007 follow-up study of
contaminated drinking water in northern Whatcom County. The study states, on p. vii:
The results of this 2007 study
indicate that pesticides are still present in groundwater in the Bertrand Creek
area where EDB, 1,2-DCP, dibromochloropropane (DBCP), or 1,2,3-trichloropropane (1,2,3-TCP) were
detected in 59% of the wells sampled.
EDB and nitrate concentrations were
slightly higher in 2007 compared to 1998 results. DBCP and 1,2,3-TCP concentrations were lower
in 2007 compared to 1998. During 2007, six wells [out of a sample size of 32] failed
to meet the drinking water standard for EDB, and one well failed to meet the
drinking water standard for 1,2-DCP.
Fifteen wells failed to meet the drinking water standard for
nitrate. A total of 81% of the wells had
higher nitrate concentrations in 2007 than in 1998.
2011
In Kittitas County v. Eastern Washington Growth
Management Hearings Board, 172 Wn.2d 144, 256 P.3d 1193 (2011), the Supreme
Court holds that the county “is required to plan for the protection of
water resources in its land use planning” because “[t]he GMA requires
that counties provide for the protection of groundwater resources and that county
development regulations comply with the GMA.” Ecology “ought to assist
counties in their land use planning to adequately protect water resources.”
2011
In a case contesting the legal right of a new subdivision
relying on permit-exempt wells to take groundwater away from senior water users
in the closed Bertrand Creek watershed, the Pollution Control Hearings Board
upholds the Department of Ecology’s argument.
Ecology argued, and the Board agreed, that “the County’s reliance on Ecology cannot change the Legislature’s
choice that the County is the
appropriate entity to make the decision” regarding “whether appropriate
provisions had been made for potable water for the subdivision”. Steensma v. Dept. of Ecology, PCHB No.
11-053.
·
The Washington Supreme Court’s decision in 2016
agreed with Ecology’s argument and the PCHB’s conclusion that the County, not
Ecology, determines water availability.
2011
Department of Ecology’s Focus
on Water Availability, Nooskack Watershed, WRIA 1 states that
During the summer, there is little
rain and many streams and rivers are dependent on groundwater inflow. This means that groundwater and surface water
are least available when water demands are the highest.
Most water in the Nooksack watershed is already legally spoken for. Increasing demands for water from ongoing
population growth, diminishing surface water supplies, declining groundwater
levels in some areas during peak use periods, and the impacts of climate change
limit Ecology’s ability to issue new water rights in this watershed. . .
Though not closed, the Mainstem and
the Middle Fork Nooksack River are subject to year-round minimum instream flows. Based on USGS streamflow
data, these minimum instream flows are
not met an average of 100 days per year, often during the periods when new
water rights are desired (late spring through early fall)
The groundwater permit exemption
allows certain users of small quantities of groundwater (most commonly, single
residential well owners) to construct wells and develop their water supplies
without obtaining a water right permit from Ecology. Such a use is only exempt from the requirement to obtain a water right permit. These water uses are subject to all other provisions of the water code including the
seniority system and can be regulated to protect existing water rights.
2012
The Lummi Tribe’s chapter of the Northwest Indian Fisheries
Commission report, State of Our
Watersheds, shows that 77% of the
increase in permit-exempt wells in WRIA 1 has taken place in basins closed year
round or seasonally to water withdrawal.
2012
The Growth Management Hearings Board, Western Washington
Hearings Board, finds that the County’s Comprehensive Plan violates the GMA for
numerous reasons, including the following;
“Hirst’s unrebutted evidence
demonstrates that vacant lots in existing
rural areas can accommodate 33,696 additional people, where only 2,651 are
expected. . .” Governors Point v.
Whatcom County, WWGMHB FDO and Order Following Remand, Case No. 11-2-0010c and
05-2-0013c (January 9, 2012) at 120-121.
·
In these rural areas, outside of cities, most of
this new population will rely on permit-exempt wells in areas where the water
is already legally spoken for.
·
The
current population of Ferndale, Lynden, Blaine, Nooksack, Sumas and Everson
does not add up to 33,696 people.
2013
In June, the Growth
Management Hearings Board, Western Washington Region found that amendments to
Whatcom County’s Comprehensive Plan “left [the County] without Rural Element
measures to protect rural character by ensuring land use and development
patterns are consistent with protection of surface water and groundwater
resources throughout its Rural Area,” as required by the Growth Management Act
(“GMA”).
·
The Board emphasized that “[t]his is especially
critical given the water supply
limitations and water quality impairment documented in this case and the
intensity of rural development allowed under the County’s plan.” Hirst
v. Whatcom County, Growth Mgmt. Hearings Bd., Western Wash. Region Case No.
12-2-0013, Final Decision and Order (June 7, 2013) (“FDO”) at 43.
2013
The WRIA 1 Groundwater
Data Assessment states, at page 91:"From the review of compiled public
water system information, it appears that 326
public water systems do not have water rights."
2013
The Department of Ecology denies Bertrand Creek WID’s
petition to amend the Nooksack Rule to implement a seasonal, rather than
year-round, basin closure, stating that instream flows “are often met” in the
winter but “are not met 100% of the
time.”
2014
In November, Ecology representatives hold a meeting in
Whatcom County to explain how Ecology would respond to a request to modify the
Nooksack Instream Flow rule, based on some residents’ belief that the Rule
leaves too much water in streams.
Ecology (Christensen, presentation and power point) states that a new rule likely would require more
water to remain in streams, based on the following considerations (from the
Christensen power point):
·
“Current adopted flows are based on fish
preference curves and 50 percent exceedance values
·
Scientific understanding has changed since 1985
o
Could affect fish preference curves
o
Definitely would affect reliance on exceedance
values – we now use 10 percent exceedance curve
·
Tribal requests for federal adjudication of
treaty-reserved water rights
·
ESA listings of Puget Sound Chinook and
steelhead “
2016
While Ecology’s 2011 “Focus on Water Availability” stated
that instream flows in the Mainstem and Middle Fork Nooksack were not met on
average 100 days per year, Ecology’s November 14, 2016 letter to Whatcom County
Executive Jack Louws states that “instream
flows have not been met on average 142 days per year, and there are no
years when instream flows have been fully met.”
Available at http://www.whatcomcounty.us/DocumentCenter/View/24098
