Superheroes on the Washington Supreme Court

The Washington State Supreme Court issued a decisive 6-3 decision in a Skagit County water rights case yesterday.  The Court upheld the Swinomish Tribe’s challenge of a rule negotiated between the Department of Ecology and Skagit County.  You can read the decision here.

The Supreme Court rejected Ecology's view that new development could take water away from the water left in streams for fish, wildlife, and recreation based on "overriding considerations of the public interest."  Of particular interest to Whatcom County, the Supreme Court rejected the idea that rural wells are different from any other water use because they take just a little bit of water. And it cited the Growth Management Act to support its view.

Whatcom County just lost a lawsuit based on its failure to protect water quality and availability under the Growth Management Act.  It will be interesting to see if any of this makes a dent north of the Skagit County line.

One prediction is pretty safe, and that is that the local Tea Party will be hopping mad that “United Nations Agenda 21” has taken over the State of Washington.  Because facts never get in the way of this claim, it will not matter that Washington's instream flow laws were passed decades before the U.S. signed Agenda 21. Under the rule of socialist U.N. lackey George H.W. Bush.

I do hope that the "anonymous" local Tea Party blog, the Whatcom Excavator, is mad enough at the Supreme Court to do one of its cartoons where it dresses people in superhero costumes, as it did for the four Whatcom Wins County Council candidates:

Starting at the top, clockwise:  Barry Buchanan, Rud Browne, Carl Weimer, Ken Mann

The Supreme Court would look nice in tights, I think.

Anyway -- for the water wonks among us, here's a summary.

Ecology had adopted a rule that allowed year-round out-of-stream uses for “domestic, municipal, commercial/industrial, agricultural irrigation, and stock watering,” even when the new uses of water would not leave enough water in streams to protect in-stream flows necessary for “fish, wildlife, recreation, navigation, scenic and aesthetic values.”

Ecology found that the amount of water that would be taken out of streams was “less than an amount that would have significant impacts on fish populations in the river system” and found that the water withdrawals would meet “overriding considerations of the public interest.”

As the court summarized Ecology’s analysis,

On the benefits side Ecology placed the gained economic productivity in the river basin that Ecology determined would ensue from the water reservations over a 20-year period. Also on the benefits side, Ecology says that sources of water other than new withdrawals are as a practical matter unavailable and that without the reservations, new withdrawals for a number of beneficial water uses--stock watering, domestic, municipal, industrial, and agricultural uses--would be subject to interruption in times of low flow. Ecology found that impact on aquatic resources and recreational uses would be very small, and there would not be significant  harm to fish and wildlife, with only a "small loss" to fisheries over 20 years. Ecology determined the significant benefits clearly overrode the potential harm.

The court didn’t just say no, it said hell no.  In what might be called “a severe butt-kicking” in legal terms, the court found:

[A] minimum flow set by rule is an existing water right that may not be impaired by subsequent withdrawal or diversion of water from a river or stream. The exception in [state law that Ecology relied on, RCW 90.54.020(3)(a)] is a narrow exception, not a device for wide-ranging reweighing or reallocation of water through water reservations for numerous future beneficial uses.

Later in the case, the Court gave Ecology a little schooling on the purpose of instream flows:  The Court’s discussion might be a helpful history lesson for all of us:

Although there were no "minimum flows or levels" or "base levels" to begin with, as time passed and the state's population increased demands on water resources also increased. While appropriative beneficial uses of water frequently remove water from the stream or lake, many other uses require that stream flows be maintained, including fish production, recreation, navigation, and power production. Growing, competing demands for water led to a number of new laws over time, and among these are acts and statutes designed to further the goal of retaining sufficient water in streams and lakes to sustain fish and wildlife, provide recreational and navigational opportunities, preserve scenic and aesthetic values, and ensure water quality.

In 1955,* the Legislature declared the policy of the State to be that sufficient water flow be maintained in streams to support fish populations and authorized rejection of water right applications if these flows would be impaired. LAWS OF 1955, ch. 12, § 75.20.050 (codified as amended at RCW 77.57.020).

In 1969,* the legislature enacted the Minimum Water Flows and Levels Act, chapter 90.22 RCW. This is the act that authorized Ecology to establish, by administrative rule, minimum flows or levels to protect instream flows necessary for fish and other wildlife, recreation and aesthetic purposes, and water quality. RCW 90.22.010 provides in part:

The department of ecology may establish minimum water flows or levels for streams, lakes or other public waters for the purposes of protecting fish, game, birds or other wildlife resources, or recreational or aesthetic values of said public waters whenever it appears to be in the public interest to establish the same. In addition, the department of ecology shall, when requested by the department of fish and wildlife to protect fish, game or other wildlife resources under the jurisdiction of the requesting state agency, or if the department of ecology finds it necessary to preserve water quality, establish such minimum flows or levels as are required to protect the resource or preserve the water quality described in the request or determination.

The court concluded that, under the 1969 act, “a minimum flow or level cannot impair existing water rights and a later application for a water permit cannot be approved if the water right sought would impair the minimum flow or level.”

It’s interesting to note that the Court explicitly rejected the idea that exempt wells should be treated differently from other water users:

The dissent engages in a "factual analysis" intended to show that exempt well uses and rural public water supply systems qualify under a cost-benefit analysis for consideration under the overriding-considerations exception. But the analysis simply shows what is always true--there are hardships attendant to any water right with a later priority date and too little water available to satisfy all rights. The dissent also claims that the reallocations of water for exempt well users and rural public water systems should be permitted since they involve only small quantities of water and will have little impact on minimum flows. But the overriding-considerations exception is not a grant of general authority to reallocate water subject to existing water rights regardless of whether the impact on minimum flows and instream uses would be substantial or slight.

And because saying this once apparently didn’t make its point strongly enough, the Court said it twice:

The dissent says that allowing the reservations for rural public water supply systems and exempt wells is a matter of necessity if rural development and lifestyle is to be possible. In every basin where water is unavailable, the same can be said to be true. The legislature is well aware that water availability is a significant issue. It has enacted numerous laws reaching various aspects of the issue. See, e.g., Kittitas County v. E. Wash. Growth Mgmt. Hr'gs Bd., 172 Wn.2d 144, 175, 256 P.3d 1193 (2011) (noting that planning for rural growth requires that water quality and availability be protected under the Growth Management Act, chapter 36.70A RCW (citing RCW 36.70A.020(10), .070(1), .070(5)(c)(iv)))

"In every basin where water is unavailable" includes much of Whatcom County. Water availability is a significant issue. What will we do about it?  

Elect some superheroes of our own, I hope.
 

*Pre-Agenda 21 dates.

Water Rights

The City of Bellingham is proposing to do  – something – with its water right.  

Let me make one thing perfectly clear:  I am not suggesting that the City would ever do anything that was contrary to the public interest.  There’s been some sensitivity, in the social media world, about citizens questioning the City’s motives.  So I don’t want to fall into that trap.

I guess that what I’m questioning is the City’s ‘splainin’ ability.

As the Cascadia Weekly reported last week and the Herald reported today, Bellingham's Public Works Department is asking the City Council to consider two “Memoranda of Agreement,” one with Lynden, one with PUD 1. 

The MOA with Lynden is clear.  It creates a framework for an agreement between Bellingham and Lynden.  Lynden will provide the City with the use of Lynden’s water diversion/intake facility.  Bellingham will pay Lynden with water.  See Article 3, “Terms.”  

Some people have been saying that the MOA doesn’t really mean anything.  They claim that it’s so ambiguous, it’s not real. 

But take a look at the action suggested for the Council:  “Authorize contract.”

It’s a contract, everybody.  It doesn’t commit the City to providing a particular amount of water at this moment, but it commits the parties to negotiating in good faith to achieve this deal.

The second contract, the MOA with PUD 1, authorizes Bellingham to access “PUD 1’s property and diversion structure,” in return for which Bellingham agrees to pay the costs necessary for “a water withdrawal that exclusively benefits Bellingham.”  What is PUD 1 getting out of this (or, in contract terms, what is the "consideration" for PUD 1's agreement)?  The contract doesn’t appear to say.  I haven’t seen any explanation, although maybe I’ve missed something.

I’ve heard two explanations for this initiative.

Scenario 1:  The first scenario is that state agencies came to Bellingham and Lynden and asked them to help out the small water systems that provide water in in northern Whatcom County.  Lynden said “We’d help, but we don’t have any water.”  Bellingham said “Sure!  We have water!”

I don’t know whether this is related to the May 2013 minutes of PUD 1, because nobody has really focused on connecting any water-planning dots, but it seems possible.  The minutes state:  

"The District [PUD1]  has worked with water associations, Washington Department of Health and the City of Lynden over the last several years in development of solutions to finding clean water to supply to several water associations in North Whatcom County that have their source of supply contaminated with high levels of nitrate. 

In order to move water to these associations there will need to be some infrastructure built to connect these systems and other modifications to utilize a City of Lynden source of supply.  The State Department of Health advised the District that Washington State Jobs Act Now funds may be available to the District to use to develop designs, permitting and key pipeline interties for the project. 

The District applied for these funds and the State notified the District that the funds are available to the District and the District can now take action to accept the grants.” (Update:  PUD 1 has already approved the MOU.  An excerpt from the minutes has been added below.)

 

We are all citizens of the same county, contrary to the views of the trolls who hate on Bellingham in the Herald comments section, so maybe it makes sense for Bellingham to provide water to North County. 

But it surely would be nice to know:  water for what?  And how much?

Some small water providers are in trouble in North County because nitrate levels in groundwater are so high that they don’t meet drinking water standards.  

Will Bellingham be providing water to folks who are currently affected by polluted drinking water? Only?

Small water providers have to pledge that they will be able to provide water within their service areas.  As readers of this blog know, Whatcom County has authorized enough development outside of cities to accommodate the County’s entire increased population for the next 20 years. 

Will Bellingham be providing water to the small water providers so they can meet their obligation to provide water to new development outside cities?

How will all of this help agriculture, as the Herald article suggests is the purpose of the venture?  Will the small water providers be providing irrigation water?  And if so, will this be additional to the water that’s being used now (with or without water rights), or will it somehow replace illegal use?

Maybe I’m missing something, but I haven’t seen answers to any of these questions.  They seem like reasonable questions to ask.

Scenario 2:  Lynden needs a little water, just a teensy bit of water, to make up for the fact that it is using more water than it has the right to use.  Bellingham has plenty of water and can give Lynden the water it needs, no problem.

First of all, I think that we need to know what Lynden’s water right actually is.

As recently as 2009, this was a disputed issue.  Ecology’s view was that Lynden has the right to somewhere around 1/5 as much water as Lynden thought that it had a right to.  The parties agreed to disagree. 

Has this dispute been resolved?  If so, we must know how much water Lynden has a right to, how much it uses, and therefore, how much water we’d be giving Lynden. 

There are lots more questions that have been asked about this idea in the past.

A few simple Google searches, which I’m sure that City Council members have done themselves (in lieu of information from the Public Works Department), shows that this idea has been considered at least twice.

In 2001, when the City considered a proposal to divert water from the Nooksack, using its water right to supply Lynden, the Lummi Indian Business Council objected quite strongly.  See page 9 of this Council agenda.  Have these concerns been addressed?  Maybe I’ve missed something, but I haven’t seen any information about how coordination with the tribes is going.

In 2003, the matter went back before the City Council, accompanied by a "Source Water Analysis Feasibility Report" that described the City’s water rights, flow conditions in the Nooksack, and discussed alternatives. To the best of my knowledge, this report hasn’t been updated for purposes of providing information on the current proposal.  

Perhaps because this report provided them with enough information to form the basis of intelligent questions, City Council members asked a lot of questions.     What about Bellingham’s water right?  What about the river?  What about groundwater contamination? 

And -- how much would Lynden pay?  “A lot,” was the response. 

Which brings us to the interesting question of payment. 

Here and now, in 2013, we’re proposing to give Lynden water in return for a new diversion point.  Is a new diversion point worth “a lot”?  How much, exactly, is it worth?  And why? 

Is Lake Whatcom on its way out as our drinking water source, either because of water quality or quantity concerns? 

 

Is it feasible to provide drinking water from this diversion point, which is not very close to the population center of the City?

 

Is a new water diversion the only way to get “redundancy” with respect to water supply?  Are there any alternatives?

 

Is Bellingham proposing to supply water to Lynden AND to North County?  Or just to Lynden, which would then sell the water to North County?  What’s the plan?

 

If, as we’ve been assured, the City is acting wisely on behalf of City residents, I’m sure that all of these questions have been explored, quantified, and will be fully explained.  That way, we can all move forward in the knowledge that this water deal is in the interests of all citizens.

 

Even the much-loathed tree-hugging, latte-drinking urbanites of Bellingham.

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UPDATE:  The minutes of PUD 1, which approved the MOU with the City on August 13, don't provide a whole lot of clarity about the purpose of the MOU.  Which is stated to be "redundancy" in the City's water diversion points.  The discussion of the WRIA 1 planning unit is interesting:

"The PUD owns this diversion and has not used it for several years as the PUD now withdraws water at the “Plant 1” diversion just downstream from this diversion but still maintains ownership of the diversion of interest by the City.  The City is asking the PUD to enter into the MOA with the City so the City can make application to  the Department of Ecology for a Point of Diversion (POD) for some of the City’s water right. Approval of the MOA provides the City with the option to identify the diversion on the City’s application and if the City chooses to use the diversion, upon an approved POD at that location, then the City and the PUD will develop a formal “access agreement” and Interlocal Agreement formalizing the use of the facility by the City and / or the City and the PUD. 

Jilk indicated that the City has been looking for other points of division to build redundancy to their system. The first point of diversion would be near the City of Lynden and the second point would be as far downstream as possible with the notion to provide a more efficient source of water into the City’s system to accommodate future growth.. . . 

The next steps: Once approved by the City and the PUD Commission, the City will finalize the applications [to the Department of Ecology], then the formal review process including public comment and appeals. Sitkin estimated 160 to 180 days. There is no Environmental Impact Statement required and it is exempt from State Environmental Policy Act. There is no fiscal impact to the District to approve the MOA. 

In response to Karen Brown’s public comment, Jilk indicated that the MOA has not been a closed door process. The PUD was approached by the City for consideration for use of one of the PUD’s facilities and the WRIA 1 Planning Unit is not part of the determination process on this matter. Sitkin explained that the holder of a water right, whether a private water association, a private land owner, or a public or other municipal entity, would not agree to subject their water right to any relationship or governance with a planning unit established under the Watershed Planning Act. A planning unit simply has no regulatory or jurisdictional authority over water rights. That is the role of the Department of Ecology. A planning unit may have a role in watershed planning which may include a review of water quantity and related issues from a watershed and/or land use planning perspective."

 

Mendacity

Clearing compared to project plan

Bob Watters has an Op Ed piece in today’s Herald.  I won’t insult Mr. Watters by suggesting that he “wrote” the Op Ed piece.  His spinmeisters undoubtedly are responsible for that.

The Op Ed is an effort to downplay the significance of SSA's $1.6 million settlement with RE Sources, which sued Pacific International Terminals (owner of SSA Marin) over its illegal land clearing and road building on the site of the proposed Gateway Pacific coal terminal at Cherry Point.

Those who followed Get Whatcom Planning’s coverage of this issue ought to be inoculated against the nonsense in that Op Ed.  In case you missed our coverage, you can read it here (“New Roads for Whatcom County: Gateway Pacific Bulldozes Ahead”) , and here (“The Wrong Place at the WrongTime”),  and here (“Road to Nowhere”), and here (“Heedless Destruction”), and here (“How Would That Six-Year Moratorium Work?”), and here (“The Six-Year MoratoriumAgain: What Is ‘The Law’?”), and here (“Thinkin’ Bout a Moratorium”)  , and here (“Piecemealing”).  

I wrote about this so often because I was outraged.  Outraged at the blatant violation of federal, state, and local law and SSA’s brazen efforts to pretend it was no big deal.

From the moment I saw the overlay of road-building compared to what was permitted on the site, there was no question in my mind that this could possibly be a “mistake.” 

Clearing compared to geotechnical well permit

A “mistake” is when your contractors are off by a few feet.  A “mistake” is when communications get garbled and you start a week before you’re authorized.  A “mistake” is when you drill a few extra holes.

Clearing roads in a pattern that has absolutely nothing to do with any permitted activity is no “mistake.”

And that’s what the litigation revealed. 

As RE Sources’ press release on the settlement agreement explained, one of the leading national experts on large-scale construction project management, Philip S. Lanterman, conducted an in-depth analysis of SSA’s “mistake.”  He concluded:

 “In my opinion, it is probable that [SSA-owned] PIT  intentionally chose to proceed with the geotechnical investigation without necessary permits to obtain the expected economic benefit of securing the geotechnical information early in the project timeline, and PIT has actually received such benefit.. . . 

PIT’s efforts to ensure legal compliance of the geotechnical investigation were so far below the standard of care that, in my opinion, they evidence extreme recklessness as to legal compliance or, more likely, an intentional violation of the law.”

In other words, SSA took a calculated risk.  It could break our laws and nobody would find out – or, if they did, so what.  Nobody would do anything about it.

And if it weren’t for RE Sources, that would have been true. 

Is that the kind of business we want in our community?  Is that the kind of operator that we can trust to operate North America’s largest coal terminal in our back yard?

Who Should Be Having a Tea Party?

I was pondering the fact that the current Council majority, plus the candidates for Council with similar views and political affiliations, have decided to shun constituents who don’t agree with them.

Won’t talk to us or listen to us.  Those who believe that environmental protections are important, those of us who think that planning ought to ensure that infrastructure will meet the needs of future development, are to be treated as anathema.

Don’t believe me?  Read these comments by Bill Knutzen and Ben Ellenbaas, who at least were honest about their reasons for refusing to attend a candidate forum on growth and the environment.   Despite multiple invitations and efforts to find a date without conflicts, Kathy Kershner and Michelle Luke also would not participate in the forum.

The claim that litigation against the County disqualifies people or organizations from participating in public affairs is ironic.  It’s ironic (a nicer word than “hypocritical”), for two reasons:

(1) Because the shunning only applies to those who support planning and environmental protections, not to property owners, developers, or their trade associations (such as the Building Industry Association of Whatcom County, which is holding a forum that Mssrs. Knutzen and Ellenbaas agreed to attend), all of whom sue the County and all of whom are consulted on a regular basis; and

(2) Because litigation is the consequence of the County’s decision to ignore a segment of its constituents.  My clients and I have submitted dozens of letters and hundreds of pages of supporting documentation expressing our concerns over rural planning over the past few years.  The County simply ignores them.  

We have offered to meet with the County to discuss our concerns.  We are (sometimes quite rudely) told that the County is not interested.  

Council Chair Kershner went so far as to tell the Northwest Business Club that we are “domestic terrorists” with whom the County should never negotiate.  

Beyond the sheer silliness of this, the more serious issue is the disenfranchisement of a large number of constituents.

The Boston Tea Party, as you may recall, was not about over-taxation.  It was about taxation that was dedicated to a particular corporate interest:  the British East India Company, a “too big to fail” entity that one commentator called “the Monsanto or Microsoft of its era.”    The tax on tea harmed local interests while benefitting the government’s preferred for-profit entity, and that’s why the colonists revolted.

And now, guess who is being taxed – to support litigation that upholds the profit interests of developers, to pay for infrastructure needed for sprawl, to pay the salaries of County Council members who won’t speak to us – without representation?

Members of RE Sources.  Members of Futurewise.  Citizens who work to implement environmental protections and good planning, but who are told that their views and their voices are unwelcome in Whatcom County.

It’s un-American. In fact, it's downright revolting.