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.

Yes, Virginia, There Will Be Enough Water For Your Christmas Tree

Yesterday was a strange day.

Bright and early, I got a phone call saying that a Channel 5 news reporter would be in Bellingham to do a story on “wells in Whatcom County.” 

Earlier this year, the state Growth Management Hearings Board found that Whatcom County’s planning for “rural” areas failed to protect water quality and quantity, and habitat for fish and wildlife. (You can read the decision here.   And I’ve blogged on water issues from time to time – most recently, here.)

I represented four local citizens in the case before the Growth Management Hearings Board, so I thought that the reporter wanted to talk about it.  But it turns out that the reporter was on the trail of something quite different from the truth, more elusive than reality.

The reporter was trying to find the Grinch who wants to steal the Tea Party’s Christmas.

The reporter said that we could meet either in my home or in my office.  You really don’t want to see the dust bunnies in my home, and I was going into my office at WWU anyway, so we agreed to meet there.

At about 12:30, the cameraman and reporter rolled in.  I talked about the issues in my best sound-bitey way, and then the questions came.

“Is it fair to take away people’s water?”

Say what?

I explained, as sound-bitingly as I could, that our case would not take away anybody’s water.  We’re asking the County to plan, which means that prospectively, the County needs to think about where water is available and where it isn’t.  In the future, when it decides about where land development should occur, the County should know whether or not water is available.

“They’re saying that people with existing wells will be closed down.”

They?

I had asked the reporter what brought him here, and he mumbled something about “getting around.”  “They’ were not identified. . 

Our case won’t affect existing wells, I said.  Hypothetically, the state could cut down on water use by people with wells if it decided to do so -- but that decision would be under state water law going back a hundred years, not as a result of our case.  And that’s a very unlikely scenario, I observed, because state water law is like a speed limit that’s posted, but everybody knows that nobody will ever enforce it.

The reporter’s last question:  “Do you have any evidence, any evidence at all, that there isn’t enough water?”

Oh my goodness, I said, there’s bountiful evidence.  The Department of Ecology closed many river basins in Whatcom County in 1985.  In 2003, the Department of Ecology and the Department of Fish and Wildlife designated the Nooksack as one of 16 “critical basins” in the state, where water is so overallocated that it threatens the survival of fish.  Many streams in the County don’t meet instream flows, not just periodically, but for much of the year.  Somewhere between 2/3 and 3/4 of the water used for irrigation is used without a legal water right.  And so forth.

If we didn’t have this evidence, I concluded, the Board would not have found in our favor.  The reporter nodded, and asked if there was anything else I wanted to say.

Yes, I said.  I want to say that we’re not interested in taking away anybody’s water.  We want the County to plan for the future, to make sure that there’s water for people, crops, and fish.

They filmed me reading my e-mail for a while, and off they went.

________________________________________________________________

What came out of it?  This report.

In the event that the link goes away, the report starts at the lovely, dust-bunny-free home of ubiquitous Tea Party activists Greg and Karen Brown.  Karen is watering her Christmas tree, while a voiceover announces, ominously, that the water might be the most expensive item under the tree.

Say what?  Do the Browns water their tree with Evian?

Karen, looking kind and sad, speaks forlornly about the people who want to take their well away from them.  Their home will be worth nothing!

Who ARE those mean people?

Well, guess who pops up next.

 

It’s not apparent why I’m there, or why it is that I’m talking about speed limits.  But at least there’s an inference that, in reality, nobody is going to desiccate the Browns’ Christmas tree.

____________________________________________________________

If you go to all the usual Tea Party places – the Whatcom Excavator, the blog of Tea Party activist and KGMI commentator Kris Haltermann – you can see the themes starting to line up.

• There is no water shortage.  (That’s the source of the reporter’s question, I’m sure.) 
• Therefore, there is no good reason for anybody to worry about water allocation, water quality, or water for fish.
• People who do promote good water allocation, who want to protect water quality, and who worry about water for fish are nothing but mean ol’ Grinches.

That’s the story that the reporter was pursuing, and that’s the story that he didn’t get.  

Because it’s simply not true.  

Water in Whatcom County

The Bellingham Herald published a thoroughly-researched article today on water rights.  It quoted part of an e-mail that I sent to reporter Ralph Schwartz.  The e-mail discusses the state law of water rights and then going on the discuss the intersection of water rights and the Growth Management Act.

The Herald article quotes the part of the e-mail that is describing the water rights system in general.  My concern is that this quote, out of context, could give the impression that my clients and I are proposing to shut down everybody's exempt wells, which is not the case.

[It's been pointed out to me that I need to learn to communicate in sound bites, which is excellent advice!  Next time.]

Anyway -- please do read the entire e-mail, to provide context for the quote.  The part quoted in the Herald article is highlighted in yellow.

I'm glad that the Herald included at least some of the explanation of the purpose of focusing on water resources in Whatcom County-- the yellow highlight at the end of the article. 

---

From: Schwartz, Ralph [ralph.schwartz@bellinghamherald.com]
Sent: Monday, November 25, 2013 12:54 PM
To: Melious, Jean O.
Subject: water issue - forgot 1 more question

Jean, 

To add to my last email:

Property-rights folks are concerned the pending decision on the water issue could mean shutting down well use or new wells in Whatcom County. What of this concern? Is it an overstatement of the case, or is that in fact what your clients want to see? How would you best describe the desired outcome in the water issue piece?

 

-Ralph

My response:

Ralph, 

The "property rights" folks have an easier time talking to reporters, because they view the world in a binary fashion:  either you're with them or you hate property rights.  The reality is much more complex. 

Two issues are starting to intersect, not only in Whatcom County but across the state:  the state water rights system and the Growth Management Act.   

Almost all of the surface water basins in Whatcom County are closed to further withdrawals, either year round or part of the year.  This means that the Department of Ecology has determined that these rivers and lakes are entirely "owned" -- no more water is available.  Additionally, instream flows have been established for some rivers.  An instream flow is a water right for the river.  It says how much water should stay in the river in order protect habitat. 

When groundwater is in hydraulic continuity with a closed surface water body, withdrawals from groundwater are also prohibited under state water law.  In a closed water basin, there is a presumption that groundwater is in hydraulic continuity. 

I didn't make any of this up; the Growth Management Act didn't make any of this up; the Growth Management Hearings Board didn't make any of this up.  This has been state law for decades. 

The state water law system is a "first in time, first in right" system. Senior water right holders have priority over junior users.  This includes "exempt" wells, which are only exempt from having to have a permit.  Exempt wells are not exempt from having to have a water right.  Exempt wells are a water right with priority dating to the date the well is used.  If no water rights are available from a particular source, such as a closed basin (where all the water is previously owned), junior users can be curtailed.

Again, this has nothing to do with me or the GMA.  It's state water law.  It protects the rights of senior users over junior users.  It could be that the "property rights" folks that you speak of are forgetting this fact when they claim that the government is taking "their" rights.  Under a long-standing system of law, new water users technically are trying to take away the rights of senior users.

How does this relate to the GMA? 

Through its planning and zoning, Whatcom County has provided enough capacity for the County's entire population increase between now and 2029 to occur in new development outside of cities (that is, in rural and resource lands).  If not one person were born in or moved into Bellingham, Ferndale, or any other city in the County, enough new houses could be built in our rural and ag areas for everyone.

Where will those people get their water?

The County doesn't know.  The County hasn't done any water resource planning since 1999.  The Consolidated Water Supply Plan, which is supposed to show who is providing water where, was "updated" in 2001. 

Since 1990, the GMA has required counties to protect water quality, the availability of water, and habitat (including fish habitat) in rural areas.  The Hearings Board found that the County has not protected any of these elements because it has failed to protect water quality and it has not ensured that water is available for rural development.

What should happen next?

Well, much of what happens next will be driven by state water law, not by anything that we do.  The Department of Ecology is developing guidance for counties across the state, so they can determine whether water is available before they issue permits.  That's state water law, and it's what really has the "property rights" folks upset.  But remember --this guidance will only affect new development.  There's a lot of fear-mongering about how this will wipe everybody out.  What it would do is to require new development to show that water is available. 

What do we want? From my blog, earlier this year:

"The County’s position is that it doesn’t have any obligation to plan, or adopt development regulations, to protect water supply so long as the County’s regulations aren’t in actual conflict with the Department of Ecology’s rules.  In 1985, the Department of Ecology adopted rules stating that most of the watersheds in the County are closed to surface water withdrawals during all or part of the year. 

The County’s population in 1985 was somewhere between 107,000 and 128,000 (those are the 1980 and 1990 census figures).  Now the population is 205,000.  Not quite double, but somewhere between 75,000 and 100,000 people more than in 1985.  Times have changed since “Like a Virgin” and “Wake Me Up Before You Go-Go” were the top songs.

Times have changed, and not for the better, when it comes to water supply. We still have closed watersheds -- and we have thousands of people moving into those closed watersheds and digging wells there. Farm Friends has estimated that as many as ¾ of Whatcom County farmers are now farming without legal water rights.  We have an aquifer in which 70% of tested wells don’t meet state drinking water standards.  We have salmon streams that don’t have enough water in them to provide the habitat that salmon need.  And so on, and so forth. 

What could the County do?  It could plan.  It could figure out where water is available, where it isn’t, encourage development in areas where we have water and discourage development in areas where we don’t.  It could adopt rigorous regulations protecting water quality, because the County’s water supply problem in some areas is related to water pollution problems.  Of course, that would require believing in science -- including the science that says that leaking septic tanks and unlimited impervious surfaces are hard on water quality."
http://getwhatcomplanning.blogspot.com/2013/05/certainty-about-water-supply.html

Jean

That's Better

With a new County Council majority, maybe we can Get Whatcom Planning. Congratulations to Carl Weimer, Ken Mann, Barry Buchanan and Rudd Browne!

Greenwashing the County Council Races

Halloween is a time for costumes, and County Council incumbents Kathy Kershner and Bill Knutzen are trying to cover themselves in green veils.  By greenwashing their anti-environment records, they’re hoping to trick progressives who don’t pay much attention to County Council races.

Council Chair Kathy Kershner wins this year’s Incredible Chutzpah award for a flyer that announces “Taking care of our environment is not only the right thing to do – it’s the smart thing to do!”

As someone who’s been at the receiving end of Council Chair Kershner’s sharp tongue when I’ve dared to make this suggestion, I may be in a unique position to appreciate the cynical opportunism behind this flyer.

But you don’t even have to take my word for it.  As the Bellingham Herald stated today, in endorsing Barry Buchanan, Kershner’s opponent:

Particularly troubling is Kershner’s dismissal of the state’s Growth Management Act.  A quest for local control of growth becomes inertia, rather than moving forward as the law decrees.  We’ve seen enough of that kind of politics played on the national stage this year. Whatcom County doesn’t exist in a bubble; our decisions must obey the law and take into account our impact on the greater world.

Well, exactly. 

Another incumbent running for reelection, Bill Knutzen, appears on my Facebook page whenever I log on, which is becoming less frequent because I want to avoid seeing Bill Knutzen on my Facebook page.  His ad says that he will “protect natural resources.”

Bill calls our efforts to implement the Growth Management Act in Whatcom County “criminal,” and Kathy Kershner has called us “domestic terrorists.”

Here’s the most interesting question.  During this election campaign, why won’t they own their ideologies?
 

 The answer has to be:  Because they want to win.  The people of Whatcom County want environmental stewards, not environmental despoilers

Over the past four years, Ms. Kershner and Mr. Knutzen have made numerous speeches claiming that they are working “for the people” with their pro-sprawl, pro-pollution votes on the County Council. 

Ironically, their campaign ads show that they don’t want “the people” to know what they’re up to. But when the election is over, they'll discard the green veil and will show their true colors again.

Vote for Barry Buchanan, Rud Browne, Carl Weimer and Ken Mann.