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.

Still Outlaws

The Bellingham Herald reported today that County Council Chair Carl Weimer said "Happy Earth Day."  

This is a stunning development.  After all, Council Chair Weimer's remark stands in stark contrast to the official Whatcom County moniker for Earth Day:  “as [County Executive] Louws called it, National Jellybean Day.” 

Therefore, Q.E.D., the environmentalists are winning.  Everyone, please go back to sleep until the next election.

I wish that I could join the happy siesta.  Truly.  The past four years of County Council mismanagement have worn us all down.  

But the thing is, there's this pending case addressing Whatcom County’s failure to plan for the protection of its water resources in rural areas.  Yes, that case, the one where the Growth Management Hearings Board found that the County had not protected water quality or quantity.

The case that the County lost, although you wouldn’t know it from the folks vigorously asserting the sanctity of the County’s right to continue not to plan.  

These saber-rattlers neglected to address one salient fact:  not only did Whatcom County lose, but it has a current legal obligation to comply with the GMA.    

On April 15, 2014, the Growth Management Hearings Board found that the County remains in noncompliance with the Growth Management Act, because it still has not implemented the planning needed to protect its water resources.  The Board’s “Second Order on Noncompliance” states: 

"Whatcom County is in continuing non-compliance with the Growth Management Act as found in the Board’s June 7, 2013, FDO. This matter is remanded to the County to take action to comply with the Growth Management Act. . .”

The Board requires the County to file a status report in early October 2014, with compliance due on November 21, 2014.

How does the County plan to comply?  Nobody talked about that in the Herald article.

Republican Party leader and Tea Party activist Charlie Crabtree talked about how Whatcom County ought to fight in court because that's what "the party and conservatives" across the state want the County to do.  If the County Council believes that it is under an obligation to uphold the statewide conservative agenda, then so be it  -- and does that mean that the County will continue to thumb its nose at the Growth Management Hearings Board?

Council member Ken Mann asserted that my clients and Futurewise would need to come up with a "profound settlement proposal"  to avoid court.  No word on the County's plans to "take action to comply" with Board's order on water quantity.

Whatcom County is in charge of planning. The County has staff.  The County is the entity that is required “to take action.”

Whatcom County is [still] the outlaw.

I hope that optimism over the new County Council will be justified by words and actions demonstrating that the Council takes its own obligations seriously.   

The responsibility for “profound” proposals to address the County’s ongoing noncompliance with state law ought to be a two-way street.

“Whatcom County Has Plenty of Water,” And Other Happy Talk That Really Isn’t Helpful

This post is a delayed reaction to a panel discussion of Whatcom County water issues that took place last Saturday (this link will take you to Terry Wechsler’s summary of the forum on Northwest Citizen).

One phrase that was repeated umpty-times was “Whatcom County has plenty of water.”  Well, OK.

Let’s think about some other commodities that are plentiful in the County: 

Whatcom County has plenty of money:  Meander through Semiahmoo or Edgemoor, check out the coastal properties off of Chuckanut Drive, and it becomes readily apparent that there is plenty of money in Whatcom County.  I’m betting that we have so much money in Whatcom County that some of it even is sent abroad, to be hidden offshore. 

Whatcom County has plenty of food:  I was in Haggen’s just last night, and the shelves were downright groaning with food.  Farmers grow a lot of food here – milk, berries, all sorts of good things.  Plenty of food.  We even export some of it.  We have so much food that some of it gets thrown away.

And yet, people are poor.  And yet, people go hungry. 

The point is, of course, that overall quantity is one measure of plenty, but it isn’t the most useful measure when distribution is the problem.  And distribution is the problem with water.

Unless and until those winter flood waters voluntarily decide to route themselves into giant natural cisterns, and then accommodatingly flow onto farm fields in August, the fact that we have “plenty of water” (as an annual figure) doesn’t really solve our problem.

OH NO, have I started a meme?  Will people now claim that flood waters will route themselves into previously-unknown natural cisterns, and then will disperse themselves onto farm fields?

My concern is not as far-fetched as you might think.  The statement that got the biggest rise out of the audience last week was farmer Marty Maberry’s announcement that a previously-unknown deep aquifer, “bigger than the Amazon and the Columbia Rivers put together,” had been discovered under Seattle.

Members of the audience (1) immediately thought that he meant “under Whatcom County” (he hadn’t said that, but we all tend to hear what we want to hear), and (2) asked how we can get one of our own.  Marty suggested that we should be putting our money into drilling, so we can discover more previously-unknown deep aquifers.

Well, heck.  Who can blame Marty.  We all want a silver bullet.  And dealing with water issues in this county does have all the fun and sense of achievement of trying to run through a vat of drying cement.   I think that everybody involved is frustrated and would like to be rescued by a giant deep aquifer.

The only problem is that there is no vast, previously-unknown deep aquifer under Seattle.  There is a vast underwater canyon that belches salty, nutrient-laden water into Puget Sound, as my comments on the Northwest Citizen argument explain (with links).  UW researchers recently found that this canyon is bigger than the Amazon and Columbia Rivers, combined.   But it’s no freshwater source.

It’s a bummer.  It throws us back into the vat of drying cement, where none of us wants to be.  But you know what -- we’ve made a big part of that vat ourselves by our heedlessness in ignoring water issues.  The natural world is complex and only getting more so with climate change.  And that’s the reality that we face.

Therefore, I would suggest that it doesn’t help to keep repeating “we have plenty of water” without some clarification.

Who are “we”? Do We the Fishes count?

How do we gauge “plenty”?  Do time-and-place matter?

The state of Washington answered both of those questions in 1985, when it established instream flows (for We the Fishes) and closed watersheds during dry periods.  Yes, fish are part of “we.”  No, “plenty” doesn’t mean that we have enough water when and where we need it.

Almost thirty years later, it’s not like these concerns have gone away.  “Plenty” is as plenty does, and our “plenty” has some strings attached.

So please, no more empty happy talk.  Let’s have some action.

_________________________________

Why is Grumpy Blogger so grumpy?  See the response to Progress Hornsby, below.  

As promised, here's the factual record of Whatcom County's water resource management, in the words of the State Growth Management Hearings Board.  

But hey, this is nothing that Happy Talk can't handle. If we all believe -- REALLY BELIEVE -- that we have the best of all possible County governments. . . . 

if we all snap our fingers and say "Yes, Tink, I believe!". . . . (or, alternatively, "Whatever is, is right," with the theme from Candide running through our minds),

then all these problems just go away. 

"The record demonstrates the following in the County’s Rural Area regarding surface and groundwater resources:

Water Wars Forever

As our loyal readers know, Whatcom County's rural and agricultural areas can accommodate enough new houses to take care of the County's population growth for the next 25 years.  Not one new house or apartment needs to be built in a city -- the County's zoning allows all the new houses anybody could need to be built in rural and ag land.  

And you know that the rural and ag areas don't have water to spare.   Most of the basins in Whatcom County are closed to further withdrawals, but that hasn't affected the County's decision to allow all those new houses to be built, tapping groundwater that will not be available to farmers or to fish.

And you know that the Growth Management Hearings Board has found that the County needs to protect water quality and quantity.  As a result, the County is under a legal compliance obligation; it is supposed to be working towards compliance with the Board's order.  That's the law. 

And you know that the County has the option of improving its water quality and quantity planning to comply with the Board's order. 

Instead, the County Council just voted to spend $40,000 more taxpayer-provided dollars to keep fighting in court.  

And today, in a compliance hearing before the Growth Management Hearings Board (this is a public hearing, so I'm not telling any tales), the County's attorney stated that the "County does not intend to take any further legislative action without guidance by the court."

So much for following the law!

So much for protecting water quality and quantity!
 
So much for all of those campaign promises NOT to keep funding Seattle attorneys to fight against GMA compliance!  I hope that We the Taxpayers are prepared for many more requests for many more tens and hundreds of thousands of dollars, because this Council apparently does not see a need to end the old Council's GMA battles any time soon.

I'm very disappointed as a citizen.  But as an advocate -- well, nobody ever promised us a rose garden, so on we go. 

Whatcom County Leadership Needed to Protect Water Resources and Agricultural Land

The League of Women Voters’ March 15th session on water resources focused on “solutions.”

After the four panel members (Jeremy Freimund, Lumm Water Resources Manager; Hanry Bierlink, representing the Whatcom Agricultural District; George Boggs, from Whatcom Conservation District; and Ann Wessel, from the Department of Ecology) finished their remarks,  the League moderator noted that the speakers had used a whole host of words --  “litigate,” “ cooperate,” “be optimistic,” “be holistic” – and so forth.

As she ran through the string of words, I noticed that one word was missing:  “plan.”  Whatcom County has the obligation to plan to protect water resources.  Why didn’t anybody talk about that?

That absence came out in the subsequent conversation.  Henry Bierlink noted that water “is a land use issue, it’s an economic development issue, and everything else.”

Speaking of planning (or the lack thereof), the next question asked how much farm acreage the County is losing to development.  Henry responded that we lost a lot over the past 20 years, but now it’s plateaued and we have the 100,000 acres that the County Council has committed to protect.

I was standing in the back of the room, shaking my head vigorously – not because I doubt Henry’s word that more than 100,000 acres are currently being farmed in Whatcom County, but because the County has NOT protected 100,000 acres of agricultural land.  Only 88,000 acres are zoned for agriculture (don’t take my word for it – click here and see page 3).

On top of that, even the 88,000 acres that are zoned for agriculture are not permanently protected for agricultural use, as George Boggs emphasized.  The issue, he said is “what we can lose” – and this County has 4,000 development rights in prime agricultural land. 

Why does that matter?  As these lots are developed, they will withdraw some water, and in some places, that may be a problem.  But the bigger problem is the potential for incompatibility.

Unlike anywhere else that I know of, Whatcom County’s zoning allows residential buildings to be built right up to a farmer’s property line.  In fact, under some circumstances, a setback applies to farm buildings, which are constrained in their location in order to protect residential uses.  This is a formula for conflict.

As restrictions tighten on the use of pesticides and other chemicals (don’t take my word for it, click here),   the ever-increasing number of residential buildings in Ag areas will increasingly constrain farming.

Whatcom County has a chance to address this issue in its upcoming Comprehensive Plan update.  It could revise its zoning code and provide some protection to Ag uses.  As George Boggs noted, the issue of residential development in agricultural land is an issue of great urgency. And yet the County Council recently voted NOT to docket a measure that would put the County on the road to protecting the additional ag land that everybody agrees that we need. 

Is Whatcom County in the business of planning?  Reacting?  Merely defending the status quo? 

That leads us to the most profound statement on leadership of the session. Jeremy Freimund, the Lummi Nation’s water resource manager, described the “Lessons Learned” from his years of being in the thick of water resource litigation.  The main “lesson learned,” he said, is that politicians want to be able to say “”the judge made me do it.”

True leadership, as he pointed out, would be to stand up and admit that concessions are needed to get to a negotiated agreement.

I think that we elected a new County Council in hopes that there would be a welcome return to leadership. Perhaps this hope only extended as far as the review of the Gateway Pacific coal terminal, and perhaps we are all too jaded or too indifferent even to dream that Whatcom County will ever again engage in the kind of leadership needed to address our other tough problems.

Water problems.  Council Chair Carl Weimer recently proposed, and the Council recently adopted, a Water Action Plan.  This could and should be part of the solution.  Will it have any teeth?  Will the Council have the political will to buck the status quo? 

The protection of agricultural lands.  Will the County do what it takes?  Ken Mann has proposed a Transfer of Development Rights program to remove development rights from agricultural land.  Does the Council have the technical support, the money, and the backbone to make it work?  And if not, what is Plan B?  Is planning any part of Plan B?

As George Boggs put it, “if you want change, you need to clamor.”