The Gristle

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DIVERSIONS: In a matter of profound importance to the future of Bellingham and wider Whatcom County, Bellingham City Council this week considered two agreements proposed by the mayor. The agreements initiate a study that could, in time, provide water to Lynden and Public Utility District #1 in exchange for the right to withdraw city water from a diversion/intake facility on the lower North Fork of the Nooksack River that currently serves Lynden and the PUD. The Public Utility District #1 of Whatcom County provides water service to Ferndale and industries at Cherry Point, as well as water associations and irrigation customers throughout the county’s northern tier, so the agreements in effect could make Bellingham the region’s central water purveyor.

Bellingham is already the senior-most holder of a water right to Lake Whatcom and contiguous systems, an almost inexhaustible supply of freshwater for municipal needs. In the 1960s, Georgia-Pacific constructed a project to serve water from a diversion in the Middle Fork of the Nooksack River through a pipeline into Lake Whatcom to serve up to 55 million gallons of water per day to Bellingham industry without drawing down the lake surface, thereby giving the city a secondary claim to water from the Nooksack River. The city is hardly in need of agreements that secure its own abundant water rights into the far future.

Why do it, then?

A central principle in Western water law is that if you do not use it, you may lose it; and with waterfront industry shuttered, the City of Bellingham has not been using its historic volumes of water for many years. What COB does not use, it cannot claim.

The city proposes to draw its supply additional diversion points on the lower Nooksack, as opposed to the more environmentally sensitive upper reaches; and it proposes to do so now, to strengthen the city’s future claims.

“The city and Public Works have a couple of important goals long into the future that have to do with creating some redundancy in the city’s water supply system, preparing to meet the needs of the city in the future,” Assistant Director of Public Works Jon Hutchings explained. “In recent months, the state Dept. of Health has been looking for some assistance from the City of Lynden and the City of Bellingham to come up with potential solutions to a problem, which is how to deal with five water associations in the north county that suffer from nitrate contamination in their wells.

“The two cities may each have part of what might be a solution,” Hutchings said, “but nobody knows at this point what those associations will want to do, what the state or federal government will press on them, but certainly there’s no option at all for substituting use without an additional point of diversion; in other words, if the City of Bellingham can’t move its water supply downstream to make it available we can’t participate in that solution at all.”

We’ve written before of the coming storm of water rights litigation as the tribes appeal to the federal government to protect their treaty fishing rights, including the streams and tributaries where fish spawn and thrive. The state Dept. of Ecology, too, is considering tightening its rules concerning stream and groundwater withdrawals drawn down by a proliferation of private wells. Crimped between these actions are agricultural interests and water associations who hold no clear rights to potable water.

An attempt to quantify and clarify regional water access was spearheaded by Kelli Linville when she was in the state Legislature through Water Resource Inventory Area (WRIA) planning units. WRIA 1 encompasses the river systems and drainage areas of western Whatcom, north-central Skagit, and Abbotsford, British Columbia. Unfortunately, the WRIA 1 planning process ground to a halt through the usual bickering and turf wars that plague Whatcom County politics. Yet the crisis builds. So in one sense we might consider the agreements sought by Mayor Linville represent her attempt to restart that dialogue in her role as administrator of the county’s single largest water purveyor. For sure, reducing the number of competing water association claims and consolidating their interests within Bellingham’s ironclad right and access to water makes sense in coming negotiations with the tribes.

The diversion dam that serves Middle Fork river water to Lake Whatcom was damaged in heavy floods in 2009 and, though repaired, remains inactive. When operating, the diversion loads considerable phosphorous from the Nooksack River into Lake Whatcom. Ecology has factored that loading into its baseline modeling of the total maximum daily load (TMDL) of pollutants allowed to enter the lake. In effect, Bellingham has the “right” to pollute the reservoir to that level; however, in negotiations with Whatcom County to reduce phosphorous entering the lake, Bellingham’s “right” could be a considerable bargaining chip, something surrendered to gain reduction concessions from the county.

The lower reaches of the Nooksack are less sensitive to withdrawals and their impacts to seasonal in-stream flows than upper reaches, so a deal to swap one draw location for the other holds potential at least to ease tribal treaty concerns.

“We were really close to a settlement in the three upper forks, which would cover everything above Deming, including Bellingham’s water right,” Bob Kelly, chairman of the Noosack Indian Tribe, said, “but the tribes don’t currently have an adjudicated right to in-stream flows. The tribes have a consumptive use right. So we all have to go together and ask a federal judge to declare the right exists. Once we have that, everything above Deming will be settled.

“It sounds like Kelli is trying to do something a little different, which is to substitute or abandon the city’s ability to draw from the Middle Fork and instead draw lower down,” Kelly speculated. “That is pretty different from what has been discussed to date.”

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