A Short Chronology of Whatcom County Water Rights and Water Resource Management

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

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?

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.