The Gristle

Another turn in the water barrel
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ANOTHER TURN IN THE WATER BARREL: The alliance of land speculators with farming interests has been as durable as it has been uneasy—the one converts a resource the other desperately needs, and the conversion creates encroachment and a spiral of incompatible competition—but perhaps never more uneasy than now, as the county takes up the issue of water resources.

Members of the Whatcom Farmers Cooperative met in Lynden earlier this month to learn more about the ongoing legal challenge of Northwest tribes for a non-consumptive use of water—in short, their right to leave water in streams sufficient for fish and habitat—and to perhaps organize additional Watershed Improvement Districts (WID), which might restart a cooperative negotiation that broke down in 2011 with the collapse of the county’s watershed management planning unit. Farmers learned that responsibly organized and recognized WIDs can petition the state Dept. of Ecology to develop local cooperative solutions to issues of water quality and quantity.

Through their discussions, farmers have discovered—with maybe a hard swallow—they have more in common perhaps with the tribes than rural homeowners: They hold, in many cases, an actual right to water; and the oversubscription of exempt residential wells threatens the quality and availability of water for their crops. The law protects a senior holder of a water right over subordinate junior claims. And farmers’ve grown increasingly aware that all the hollering, stalling and years of political obstruction that helped collapse negotiations in 2011 invites the inevitable decision of the courts that may prove unfavorable to their farming interests. Peace serves those interests better than war.

The hollerers and political obstructionists showed up on the warpath at Whatcom County Council chambers last week to storm about their water rights… which simply, as a matter of legal record, do not exist. The “exemption” that permitted their exempt wells essentially means they did not have to hold a water right to draw less than 5,000 gallons per day for residential use, they were exempt from the need to first secure a water right. These rural property owners were goaded into action by a mendacious mass mailing by the Whatcom Tea Party, seeking to use controversy to organize and raise funds.

The reality is, nothing was on the council’s agenda last week that prompted such a demonstration, other than their decision to let stand and continue a court challenge of a state growth board finding that county land-use planning was inadequate in addressing water issues—a decision County Council had already made!

The state’s Growth Management Hearings Board determined in June that county land-use “policy does not limit development so as to protect water resources” under criteria established by the state Legislature and reaffirmed by the courts. The chance the county will prevail in its legal challenge to this decision is vanishingly small (and, moreover, it does absolutely nothing to address the larger issue of overservice of water to water users), but council seeks certainty that will help shape better policy—including addressing the concerns raised by property owners stung into an angry frenzy by the Tea Party.

“These broad assertions have not been proven nor tested in a court of law,” Tea Party representatives declared in the mailer, a declaration that is comically untrue.  Western water law is more than a century old, with reports on water availability and quality stretching far back into the 1970s. In fact, only a political opportunist or fool would champion moving these decisions from a cooperative agreement between the tribes, farmers, rural homeowners and Ecology to the purview of the courtroom, where the iron precedent of case law would be enforced.

“A council member told me personally after the meeting, that the show of strength from all the emails turned the council and made them reconsider dropping the case,” a representative of the group declared.

“For me the vote the other night was a vote to maintain the status quo of the case, not to embrace the tea party nonsense,” Council Chair Carl Weimer said. “We did not take settlement off the table. We did not provide any more funding for outside counsel, although perhaps a majority of the council is ready to go there.

“I voted for the motion because things are already in motion, the briefs have been prepared, and an actual court decision [about the GMHB finding] would provide some certainty for the county no matter which way that decision goes,” Weimer explained. “I think some property owners are going to be surprised at some point when they learn that Western water law, based on the simple concept of ‘first in time, first in right,’ (which they mistakenly believe they are exempt from), will not be changed by this case.”

Three recent water law cases are instructive. Two—one in the Columbia Gorge, the other in the Dungeness aquifer that waters Port Angeles and Sequim—were made better by stakeholders (including owners of exempt wells) sitting down together cooperatively with Ecology and establishing a water management rule to secure supplies and allocate uses. Their cooperative efforts secured state and federal funds to assist with the effort. In the third, fee-land residents on Lummi Peninsula declared an ugly war on Lummi Nation, which controlled the groundwater, and decided to take their chances in court. The Fee Land Owners Association (FLOA) got savagely kicked in the head, lost on every front, and, for their troubles, fumbled access to federal funding for an improved water treatment facility.

The Tea Party and the land speculators who back them seek another turn in the barrel. Perhaps Whatcom farmers can summon a different future.

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