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The Gristle

Water at the Boiling Point
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WATER AT THE BOILING POINT: Just as Lake Whatcom reservoir topped our list of stories for 2013, we predict the larger issues of water supply and water rights may top the list for 2014, as a number of streams flow together into a deeper, murkier channel.

In October, the state Supreme Court found the Dept. of Ecology does not have the authority to reallocate water for new beneficial uses when the requirements for appropriating water for these new uses cannot be met. The case stems from the agency’s 2001 instream flow (IFS) rule, which established minimum instream flow requirements for the Skagit River Basin. The 2001 rule prohibits water for new uses when stream flows fall below the minimums established by the rule. Skagit County argued that the rule effectively precludes new development that requires a year round water supply—like residences. Indeed.

Persuaded by arguments of the Swinomish Indian Tribal Community, the Supreme Court ruled that Ecology was not justified in reallocating water that is already subject to a minimum-flow requirement based upon a limited cost benefit analysis alone.

“We concluded,” justices ruled, “that a minimum-flow water right is not a limited right, but rather a ‘minimum flow is an appropriation subject to the same protection from subsequent appropriators as other water rights.’”

The significance of the ruling is multifold. First, it is consistent with (and therefore strengthens) other recent court rulings at the state and federal level that find a non-consumptive use of water is, itself, a beneficial use, necessary for fish and habitat. This has been the position of the tribes, including Nooksack and Lummi nations, as they have sought to quantify this non-consumptive use; and it is increasingly clear the courts find these arguments compelling. Additionally, the ruling limits the authority of Ecology to determine and prioritize the public interests served through the allocation of water. The court rejected a view that prioritizes rural residential wells as more beneficial than other uses—literally, the very exemption for so-called exempt wells.

“Under the balancing test, the need for potable water for rural homes is virtually assured of prevailing over environmental values,” the court commented. “But the [state’s] Water Resources Act of 1971 explicitly contemplates the value of instream resources for future populations.”

In December, Ecology awarded Skagit County a $1 million grant to find solutions to improve public water systems in response to the Supreme Court’s finding on the IFS rule. The award is one of 14 around the state, totaling $7.9 million, designed to kickstart more comprehensive regional planning for water­sheds and water basins.

Also in December—as if to slyly slip in a decision still under the control of an outgoing Whatcom County Council majority and an unrepentant, un-reorganized Whatcom County Planning Commission—the county attempted an update of the rural element of its comprehensive plan pertaining to water resource allocation. Laughably, given the scope and complexity of the issues, the planning commission limited its discussion to half an hour.

In June, the Western Washington Growth Management Hearings Board (GMHB) found the county had failed—miserably—to plan growth in areas served by adequate water supply, reaffirming the board’s rejection of the rural element of the county’s plan. The county appealed the board’s ruling, with another hearing on the issues scheduled later this month.

The board noted the limits of DOE’s ability to regulate and protect water resources, observing, “Ecology provides technical assistance and model regulations, but county land use plans and regulations are necessary to assure protection of rural character, including water resource protection.” The board emphasized, “It is local government—and not Ecology—that is responsible to make the decision on water adequacy as part of its land use decision and, in particular, with respect to exempt wells.”

However, the board also cautioned, “The Supreme Court made clear that where Ecology has administratively by adoption of rules closed a surface water body, as in much of Whatcom County, and an applicant intends to rely on a new withdrawal from a hydraulically connected groundwater body, new water is no longer legally available for appropriation and the [development] application must be denied.” The board’s citation anticipated the court’s ruling on the Skagit IFS.

While it rains a lot here and water seems abundant, water is not captured and tends to scour through creek beds in heavy weather events. Ground­water is sufficiently close to the surface that it is vulnerable to surface contaminants. Reduced snowpack and increased urbanization serve to worsen the capacity of the landscape to hold and carry abundant clean water. Sure, call it a conspiracy;  but it is conspiracy borne more of natural systems and cycles than by United Nations agendas.

A 2012 Northwest Indian Fisheries Commission report indicates that 77 percent of recent rural wells in Whatcom County have been been installed in basins closed either seasonally or year round to withdrawals. Tellingly, a similar percentage of county wells also suffer water quality issues typical as a result of reduced groundwater flows.

The rulings of state courts and boards all tend to flow in a particular direction, and not one favorable to the unfettered rights and access of residential well owners in the county’s over-subscribed basins: Ecology can prohibit but cannot prescribe; and counties must lead and may not defer in their coordination of water supply with growth demand. And while it is quite clear no one, at any level, wishes to take away the access of heartland homeowners to their well water, the preeminence of their claims amid a constellation of other competing claims is no longer assumed and unquestioned.

Skagit got a million bucks to wrestle with these problems in 2014. The money won’t stretch far, but Whatcom should watch where it goes and why.


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