The Gristle

No Fine for Nooksack Nine
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NO FINE FOR NOOKSACK NINE: With August arrives the earliest and most vulnerable of the Cascadia salmonids. Chinook require abundant cold, clean water to spawn, and the challenged species is returning to find the Nooksack River historically low, warm and cloudy with glacial milk. Chinook are an indicator species that yield clues about the health of the environment. The milk is an indicator, too, not only of a vanished seasonal snowpack, but loss of the icy heart of the glaciers themselves that feed the headwaters of the Nooksack.

“A healthy snowpack slowly provides water to rivers and streams, helping to sustain fish through the drier summer months,” state wildlife officials explained in their report on drought conditions across the state. “But, with little or no snowpack, flows in many rivers have dropped significantly and water temperatures have increased—conditions that are lethal to fish.”

In the tradeoffs between water consumption for human use and water for fish, fish are invariably the losers; however, as attorney and environmental writer Daniel Jack Chasan notes, “the tighter the water supply, the more tempting it will be to argue in any particular case that the public interest requires taking more water out of a stream, and away from fish.”

The situation is dire enough with known stream flows, but how do illegal withdrawals from the Nooksack River further diminish the equation?

Whatcom County is notorious as one of the most lawless water basins in Washington State, with as much as 70 percent of the water drawn for ag use either non-permitted or in violation of some aspect of the state’s water code. The 2013 Groundwater Data Assessment compiled for the Nooksack basin’s water resource inventory working group (WRIA-1) found “from the review of compiled public water system information, it appears that 326 public water systems do not have water rights.” Among the heaviest users without water rights are several large farms that draw directly out of the river, the Nooksack Nine.

In 2011, faced with declining fisheries, Lummi Nation appealed for a federal adjudication of their reserved (and ancient) water right for stream flows sufficient to support their treaty fishing rights.

The tribe hasn’t been idle as they’ve waited for a federal response.

In July, Lummi Nation proposed the outline of a settlement agreement that describes how the tribes and the county, its cities and water districts and farms, could potentially resolve outstanding water rights issues. The tribe also completed a survey of withdrawals along the Nooksack and reported this data to the state Dept. of Ecology. Underlying all is an effort by carrot or stick to bring noncompliant water users to the table to resolve the issues of stream flow.

In letters to the Director of Ecology, the tribe documented 39 potential illegal diversions and requested enforcement action.

“Illegal water diversions from the Nooksack River and its tributaries have been occurring far too long, to the detriment of salmon and the Lummi Nation’s treaty rights to harvest,” Merle Jefferson, executive director of the Lummi Natural Resources Dept., wrote to Ecology in July. “We expect that Ecology will enforce existing state laws and issue both cease and desist orders and appropriate monetary penalties when it is determined that individuals are diverting water without a legal right to do so. Ecology should not allow individuals and businesses to illegally divert a public resource for profit at the expense of others and the natural environment that depend on the same resource.”

Under the law, Ecology could issue fines for illegal withdrawals. Instead, the agency’s curious response in the face of shortage was to permit that which is not permitted, granting interruptible water rights rather than penalty orders to some of the most egregious scofflaws along the Nooksack. Ecology’s order brings them into compliance as precursor to limiting their access to water subject to stream flow minimums—conditions that exist along the river 50 to 80 percent of the time during summer months and inadequate to support salmon life cycles.

“Ecology’s response to the unauthorized withdrawal of water by seven of these nine applicants was to reward the illegal behavior, by allowing them to jump to the head of the line and have their application expeditiously reviewed,” attorneys for the Center for Environmental Law & Policy (CELP) commented in response to the agency action. “The incentive created by issuance of this water right is clear and perverse: rather than applying as prescribed by statute, and waiting to obtain a water right until one’s application is processed, a would-be appropriator who illegally withdraws water can expect to receive a water right in short order if the illegal diversion is discovered. This will very likely lead to other appropriators choosing to withdraw water illegally.

“Rewarding illegal diversion by expediting permit applications for the violators is a very poor public policy and sets a dangerous precedent,” CELP commented.

The agency’s order also drew rebuke from the WRIA-1 environmental caucus in a letter last week to Ecology Director Maia Bellon:

“In addition to Ecology’s failure to monitor the extent and nature of illegal water use in WRIA 1, we are concerned about Ecology’s ineffective actions to stop such illegal behavior,” caucus members wrote. “Of specific concern is Ecology’s recent grants of interruptible water rights to several farmers who had been diverting water illegally from the Nooksack River. Ecology’s piecemeal treatment of the theft of a scarce public resource addresses only symptoms of larger problem.” Ecology’s decision “harms the potential for a comprehensive solution that benefits farmers and enhances environmental quality,” caucus members wrote.

“Ecology has failed to use and enforce specific laws designed to protect stream flows,” CELP policy analysts stressed in a report coauthored by the Washington Environmental Council. “Water uses are not required to measure and report their water use, there has been little-to-no-enforcement of conditions on water rights that serve to curtail water use when stream and river flows are below minimum levels, and the agency has backed away from enforcing against illegal users when faced with political pressure.”

No one wins through Ecology’s action, but fish are the real losers.

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