Washington Supreme Court to Whatcom County and Ecology: Work Together to Protect Water

It’s a “blockbuster.”  It’s “BIG.”  That’s how some commentators have described yesterday’s Washington Supreme Court decision in Hirst v. Whatcom County.  As someone who’s been working on the case for a few years now, I would describe it as. . .

common sense.

The case simply says that Washington’s Growth Management Act, or GMA, means what it says.  The GMA tells local governments to plan for their fair share of population, and to do so while protecting all of the reasons that people want to live here – including clean water and habitat for fish and wildlife.  The Supreme Court found that Whatcom County has not protected its ground and surface water resources, as the GMA requires, because it approves subdivisions and building permits without determining whether water is legally available for new development. 

To anybody who has been paying attention, this cannot be a surprising result. Water scarcity has been a well-known fact in the County for at least 30 years.  In 1986, the state Department of Ecology closed most of Whatcom County to new water withdrawals, either year-round or during the dry months.  Ecology itself has said that most water in Whatcom County has already been spoken for.  

The Supreme Court paid attention to these facts.  It noted that “a large portion of the County is in year-round or seasonally closed watersheds and that most of the water in the Nooksack watershed was already legally appropriated”; that “average minimum instream flows in portions of the Nooksack River ‘are not met an average of 100 days a year’”; and that “the County recognized as early as 1999 that [its] proliferation of rural, permit-exempt wells was creating ‘difficulties for effective water resource management.’”

These are facts – facts that the County never disputed.

And yet – Whatcom County has planned for a huge increase in development in its Rural area, in closed basins.  In areas of water scarcity, where is all of this new development supposed to get water?

The answer until now has been:  from existing, senior water users, that’s where.  The County and Ecology have turned a blind eye to the fact that new development in areas where water is not legally available simply takes water away from senior users.  That’s contrary to our state’s law of prior appropriation, or “first in time and first in right,” and that’s what the Supreme Court found.

Drop by drop, well by well, the County and Ecology have turned a blind eye to the need to plan for a stable, plentiful water supply.  They have ignored stream flows that are too low, and too warm, for threatened salmon species to thrive.  They have avoided making hard decisions today, despite the fact that delay will only make tomorrow’s decisions even more difficult.

In this case, Whatcom County pointed fingers at Ecology, saying “They let us do it!”  Ecology pointed its finger back to an undocumented past, claiming that when it adopted the Nooksack instream flow rule in 1986, Ecology didn’t know that cumulative groundwater withdrawals by permit-exempt wells could affect streams.  Based on this post hoc recollection of 30-year old beliefs, Ecology argued that nobody – neither Ecology nor the County – has any obligation to address the water rights or water demands of new rural permit-exempt wells.

The Supreme Court was having none of it.  It told the County that land use planning is, indeed, the County’s job, and that “the GMA holds counties responsible for land use decisions that affect groundwater resources.”  With respect to the need to respond to changed circumstances, the Court observed that, “[a]s scientific understanding of water resources has increased, so too have Washington’s restrictions on the availability of water.” As “Washington’s population increase[s] and the limitations on its natural resources become more apparent,” state law has made it clear that “sufficient water must be retained in streams and lakes to sustain fish and wildlife, provide recreational and navigational opportunities, preserve scenic and aesthetic values, and ensure water quality."

The Court also made it very clear that the County and Ecology need to work together to ensure water availability. Did the Court say that poor li’l Whatcom County will have to take over Ecology’s role in water law?  No, it did not.  It said that state law makes it very clear that Ecology needs to work with the County.

And given the most basic law of small-e ecology – that the earth is an interrelated system – how on earth could we continue to justify making land use decisions and water decisions in two separate silos? Sure, it’s easier for the County to make land use decisions without paying any attention to water supply. Sure, Ecology would rather not bother with land use decisions that also have the effect of allocating water through new permit-exempt wells, even where water is not legally available.  But now we know that operating within silos is not only a violation of natural systems.  It also violates state law.

No politician, no bureaucrat operating in highly charged political times, wants to deal with issues of scarcity.  Of course, County Council members and Ecology staff would rather let future decisionmakers take the heat.  Of course, this is a bad time and we are strapped for resources and so forth and so on (the same rationale that we hear before bridges fall down and trains crash).

But if not now, when?  When will we start to plan and protect our most precious natural resource, the substance that every living thing cannot live without?  When the last drop from the last North Cascades glacier has melted into the Nooksack and flowed out to sea?  When the last salmon has gasped out its last breath?  Do we need to wait for a human and natural catastrophe before we take water scarcity seriously? 

Or can we take heed of the fact that global warming is no hoax and that Mother Nature bats last, roll up our sleeves, and get to work right now? 

Now is the right time to Get Whatcom Planning. 

Thanks, Eric Hirst, Laura Leigh Brakke, Wendy Harris, and David Stalheim!

Wasting a Good Crisis

“Never let a good crisis go to waste,” or so they say that Winston Churchill said.  I’ve been seeing that quote in a lot of news articles lately, possibly because the world has no lack of crises not to waste.

Close to home, on April 17, Governor Inslee expanded a previous drought declaration to cover Whatcom Skagit, and northern Snohomish counties.

Drought declarations are based on likely “hardships” to farmers, water providers, and fish.  Department of Ecology director Maia Bellon’s drought order states that “Many of our major rivers are forecasted to have April through September runoff volumes that will be the lowest in the past 64 years.”

“In watersheds originating on the western slopes of the Cascades Mountains,” Director Bellon continues, “there is a high risk that fish populations will experience extreme low flow conditions this year. . . “”

These are the conditions that are likely to be the rule, not the exception, with increasing climate change, according to UW Professor of Atmospheric Sciences Cliff Maas.  (Perhaps those who still don't want to "believe in"  climate change  will find it persuasive that Pope Francis is a believer.)

So, what will Washington and Whatcom County do, to take advantage of this crisis? 

Well, the state plans to respond by digging us into a deeper hole.

According to Ecology,  “Once an area has been declared in drought, it can qualify for drought relief funds that can be used for leasing water rights for irrigators, deepening wells or drilling emergency wells.”  

So this crisis likely will provide an opportunity for taxpayers to subsidize private enterprise, likely at the expense of public resources – such as fish.  To read more about such “mischief in the public policy arena,” read CELP’s new blog.

In Whatcom County, the drought will give us the opportunity to practice ignoring water scarcity on a larger scale than usual.

Even when there isn’t an official drought, Whatcom County’s water management is based on a single principle:  possession.  Possession is 10/10ths of water law in Whatcom County.  Dig a ditch or pond, sink a well, stick a pump in the river, take what you need – that’s the law.

• “Over 50% of ag water use in violation of some aspect of water code.”
  • Presentation, Whatcom Water Supply:  Searching for Certainty in Uncertain Times, 2013 (Farm Friends)
• “60% of irrigation non-permitted”
  • Farm Flash E-News, Jan. 2012 (Farm Friends) 
• "From the review of compiled public water system information, it appears that 326 public water systems do not have water rights." 
  • 2013 WRIA 1 Groundwater Data Assessment, p. 91

Even without drought conditions, fish are often out of water during the dry months. 

• “From 1986 to 2009, the Nooksack River failed to meet instream flows 72 percent of the time during the July-September flow period.”  (Source:  NW Indian Fisheries Comm’n). 
• “[A]verage minimum instream flows in the mainstem and middle fork Nooksack River are not met an average of 100 days a year.”  (Source:  Dept. of Ecology, Focus on Water Availability). 

The Nooksack “instream flows” were set in 1986, hypothetically to protect fish.  But they don’t.  Not only are instream flows ignored, but Ecology and the County have actively fought to reduce any protection that instream flows would provide (assuming that instream flows weren’t ignored, which they are).

For fear of backlash from building interests, Whatcom County and Ecology have teamed up (successfully, so far) to fight for the rights of new development to deplete instream flows.  The County and Ecology went to court to make sure that new water users can take water away from any senior water user with water rights dating as far back as 1986. 

And they've succeeded.  Ecology and Whatcom County obtained a court decision stating that new houses and subdivisions have the right to take water away from farmers and fish. Even if senior water users (such as farmers) have to cut back on water use to meet instream flows, even if brand new exempt wells dry up streams entirely, new exempt wells have highest and absolute priority.

This matters because of the very extensive rural sprawl that is baked into Whatcom County’s Comprehensive Plan and development regulations.  County planning provides for the greenfield construction of seven new City of Blaines (in population terms) outside of cities, in rural and agricultural areas. 

Where there’s already water scarcity, new greenfield construction will simply take water away from senior users.  Tough luck, fish and farmers! 

So -- what could we do about that? 

Well, I had a good idea.  My idea was that the County could use water availability to help guide its land use planning.  Where water is available, plan for growth.  Where water isn’t available, and can’t be made available without taking it from senior water users, guide growth away. 

What's the problem with that?  Potential backlash, of course.  I previously noted that "possession" is the only law of water use in this County, but come to think of it, that's wrong.  The second law is "avoid backlash."

Fish don't lash back, of course, and politicians only pretend to care about future generations during campaigns.  The reality is that future generations won't be voting in November.

And that is how the Tragedy of the Commons plays itself out, over, and over, and over. 

"Tragedy," as Garrett Hardin and Alfred North Whitehead define it, resides in "the remorseless working of things."

I still think that my idea was a good one.  Reflecting the remorseless working of water policy in Whatcom County, however, I have a new suggestion, and I think that it will be a popular one that will avoid backlash.

Everyone can agree that the highest and best use of water is for microbrews.  The proliferation of new breweries in Bellingham will help us to drown our sorrows.  To end with another optimistic quote from another eminent British thinker (John Maynard Keynes, this time), “In the long run we are all dead.” 

So let us eat, drink beer, be merry, and avoid backlash, until the long run catches up.

Cheers!

Of Salmon and Bagpipes

I’ve lived in Whatcom County since 1996, and it has always seemed a bit like Brigadoon to me. The land that time forgot. A county-dwelling friend claims that this aura is related to the County's staunchly conservative electorate: “These are the folks who ran as far away from civilization as they could, until the water and the border stopped them from going any further.”

Maybe that’s why the idea of “planning” meets so much resistance in our county. “Planning” means that change is going to happen, that the future may be different from the past, and that change might make us do things differently.

No change will be bigger than climate change. The scientific evidence of climate change’s effects makes it clear that our future is going to be quite different from our past. And when I say “our future,” I mean our future. Right here in Whatcom County.

Just yesterday, for example, a peer-reviewed article confirmed what we already know: that climate change is giving salmon a tough time. As NOAA Fisheries states: 

Many salmon rivers around Puget Sound have experienced increasing fluctuations in flow over the past 60 years, just as climate change projections predict - and that's unfortunate news for threatened Chinook salmon, according to a new analysis of salmon survival and river flow.

More pronounced fluctuations in flow can scour away salmon eggs and exhaust young fish, especially when lower flows force adult fish to lay eggs in more exposed areas in the center of the channel.

Flow fluctuates so wildly because of bigger storms, more droughts, and more water falling as rain instead of snow. This study makes it clear that these fluctuations are already happening – this is not just something that may happen in the future.

Oh well, you may be thinking, that’s OK, we’ll just get our salmon from British Columbia. Except that a recent Canadian study shows that warming waters in B.C. rivers will give chinook salmon heart attacks. Literally.

So maybe we shouldn’t “plan” to outsource our salmon dinners
.

These studies, and many more like them, show that the future will not be like the past. In fact, “the future” is now. It’s already on the job. What can we do about it?

Whatcom County is in the middle of its most important planning exercise: the update of its 2016 Comprehensive Plan. The Comprehensive Plan is supposed to identify and protect frequently flooded areas. It’s supposed to protect surface and groundwater resources. It’s supposed to protect fish and wildlife habitat. Climate change will affect all of these “protected” resources. We could -- in fact, we should -- plan to avoid and ameliorate the effects of climate change.

But I’ve been watching County planning for a while now, and I have a prediction based on past performance. I predict that Whatcom County will continue to plan for the past, because that’s where its most vocal residents are the most comfortable.

The County will continue to promote land conversion that way it’s always been done in Whatcom County-- without worrying about water supply, or how much pavement covers watersheds, or whether farm land is protected, or even whether impact fees are in place that could help to pay for some of the impacts of land conversion. The County will continue to give the very highest priority to making sure that tens of thousands of new houses can be built on farm land and in rural areas, even when the new houses’ new wells deprive salmon of the water that they need.

In short, Whatcom County will continue to plan for 1950, not for 2050.

Now, some readers are shaking their heads, saying “I live in the most progressive community in the universe! We love the environment! What are you talking about?” And that may be right, as far as it goes. Psychologically, if not geographically.

As Gail Collins has pointed out, there’s a large and increasing difference between what she calls “crowded places” and “empty places.” "Empty places" are a state of mind, not necessarily a geography; Texas views itself as an empty place, Collins notes, despite the fact that 80% of its population lives in urban areas

In our crowded place, Bellingham, it can be easy to stay cocooned in our proto-Brooklyn hipster vibe. But the fact is, our mini-Brooklyn is located smack in the middle of mini-Texas, when it comes to voting patterns and cultural affiliations.

Speaking of Texas – we have a lot of folks in Whatcom County who would find Texas Senator Ted Cruz’s favorite climate joke to be really funny: “It’s cold! Al Gore told me this wouldn’t happen!”

Best available science recognizes that climate change is already upon us. Whatcom County is required to use best available science when it protects critical areas.

But will it?

Or is that the sound of laughter over Al Gore jokes that I hear, almost muffling the faint strain of a bagpipe, as Brigadoon fades back into the past?

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 21^st 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.