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The Gristle

Water at the Boiling Point

Wednesday, January 8, 2014

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.

Ticket Cascadia
Past Columns
A Stitch In Time

September 28, 2016

Closer to home

September 21, 2016

Zombie Stumbles On

September 14, 2016

Drip-drip-drip:

September 7, 2016

Much ADU about nothing

August 31, 2016

A Matter of Equity

August 24, 2016

A Lock on the Crypt

August 17, 2016

Zombie Terror

August 10, 2016

A Raucous Caucus

August 3, 2016

Lockup Lockstep

July 27, 2016

Polar Wastes

July 20, 2016

Chapter Two

July 13, 2016

Close the Schools!

June 22, 2016

Closing a Circle

June 8, 2016

Roads to Nowhere

May 25, 2016

Trails versus Jail

May 18, 2016

Events
Today
Eat Local Month

4:00pm|Bellingham and Whatcom County

A gold medal standard

4:00pm

Whatcom Water Week

10:00am|Whatcom County

Ensembulele

4:00pm|Bellingham Public Library

Final After-Hours Market

4:00pm|Depot Market Square

Autumn Soups

6:30pm|Community Food Co-op

Tame Your Inner Critic

7:00pm|Village Books

Little Women

7:30pm|Whidbey Playhouse

Looking for Betty MacDonald

7:30pm|Village Books

The Music Man

7:30pm|Anacortes Community Theatre

The Miracle Worker

7:30pm|Claire vg Thomas Theatre

Northwood Steak and Crab Bellingham Farmer’s Market
Tomorrow
Eat Local Month

4:00pm|Bellingham and Whatcom County

A gold medal standard

4:00pm

Whatcom Water Week

10:00am|Whatcom County

The Music Man

7:30pm|Anacortes Community Theatre

The Miracle Worker

7:30pm|Claire vg Thomas Theatre

Little Women

7:30pm|Whidbey Playhouse

Wild Things

9:30am|Whatcom Falls Park

Quilt & Fiber Arts Festival

10:00am|La Conner

Parkinson's Dance Class

10:00am|Ballet Bellingham

Spanish Storytime

10:30am|Lynden Library

Ferndale Farmers Market

1:00pm|Cherry Street

Get an edible education

4:00pm

Autumn Celebration Dinner

5:30pm|Bellingham Senior Activity Center

Love, Loss and What I Wore

7:30pm|Heiner Auditorium

Hellingham

8:00pm|Upfront Theatre

Handling the truth

9:35pm

Swinomish 2016 Village Books
Saturday
Whatcom Water Week

10:00am|Whatcom County

The Music Man

7:30pm|Anacortes Community Theatre

Little Women

7:30pm|Whidbey Playhouse

The Miracle Worker

7:30pm|Claire vg Thomas Theatre

Quilt & Fiber Arts Festival

10:00am|La Conner

Get an edible education

4:00pm

Love, Loss and What I Wore

7:30pm|Heiner Auditorium

Hellingham

8:00pm|Upfront Theatre

Handling the truth

9:35pm

Run Like a Girl

8:00am|Fairhaven Park

Model Train Show

9:00am|Northwest Washington Fairgrounds

Benefit Garage Sale

9:00am|T.G. Richards Building

Twin Sisters Farmers Market

9:00am|Nugent's Corner

Cabbage Class

9:00am|Garden Spot Nursery

Mount Vernon Farmers Market

9:00am|Riverfront Plaza

Anacortes Farmers Market

9:00am|Depot Arts Center

Healthcare Film

9:30am|Bellingham Public Library

Whatcom Artist Studio Tour

10:00am|Whatcom County

Fermentation Fun

10:00am|Blaine Library

Skagit Valley Festival of Family Farms

10:00am|Skagit County

Fall Fruit Festival

10:00am|Cloud Mountain Farm Center

Film is Truth Anniversary Party

10:00am|Bellingham Public Market

Fall Family Fun

10:00am|Glen Echo Garden

Birding Walk

10:00am|South Whatcom Library

Porpathon

10:00am|Salish Sea

Blaine Gardeners Market

10:00am|Peace Portal Drive

Bellingham Farmers Market

10:00am|Depot Market Square

Buddy Walk

11:00am|Fairhaven Village Green

Boating Center Open

12:00pm|Community Boating Center

National Geographic's 50 Greatest Photos Opening

12:00pm|Whatcom Museum's Lightcatcher Building

Banned Books Week Read-In

12:30pm|Village Books

Intro to NaNoWriMo

1:00pm|Bellingham Public Library

Artist Lecture

1:00pm|Whatcom Museum's Old City Hall

Matched Makers Opening

2:00pm|Museum of Northwest Art

Timber Rose

2:00pm|North Fork Library

Traditional Jazz

2:00pm|VFW Hall

Blessing of the Animals

3:30pm|Cornwall Park

Poetry Palavers

4:00pm|Village Books

Edison Opening

5:00pm|Smith & Vallee Gallery

Matzke Art Auction

5:00pm|Matzke Fine Art Gallery and Sculpture Park

Celebrating Jack Prelutsky

5:30pm|Western Library

Fred Morrison

7:00pm|Littlefield Celtic Center

The Aimees

7:00pm|BAAY Theatre

USA Dance

7:00pm|Presence Studio

George Winston

7:30pm|McIntyre Hall

Folk Dance Party

7:30pm|Fairhaven Library

Tannahill Weavers

7:30pm|Lincoln Theatre

Bellingham Chamber Music Society

7:30pm|Whatcom Museum's Old City Hall

see our complete calendar »

{/exp:stash:get_list} CW BOB 2016 Andrew Subin Artifacts Wine Bar Mount Baker Theatre Cascadia Weekly Subscribe Ad 1 Zoots Side Bar Everybody’s Store Bellingham Farmer’s Market Village Books Northwood Steak and Crab Swinomish 2016