The Gristle

The Fix Is In

Wednesday, March 1, 2017

THE FIX IS IN: If you hung a sign on a well that was dry most of the year, and that sign read, “Plenty of water! Available year ’round!” would you imagine that the hanging of that sign actually changed the conditions of the well, creating new water where there was none? Or would you imagine the sign represented some kind of cruel fraud, declaring something that just ain’t so?

That’s the essence of Senate Bill 5239, the legislative response to the state Supreme Court’s Hirst decision last fall that found counties (and Whatcom in particular) were planning development heedless of adequate water resource—a requirement for planning under the state’s Growth Management Act. The bill passed out of committee last week, sponsored by Republican Senators Doug Ericksen and Judy Warnick, the latter vice chair of the so-called (but now defunct as a result of November elections) Majority Caucus.

In October, the high court ruled that Whatcom County failed to protect water resources by allowing new wells to reduce flow in streams for fish and other uses. The court said counties must ensure, independently of the state, that water is physically and legally available before they issue building permits in certain areas.

Taken as a whole, a series of recent Supreme Court decisions represent a firm support of senior water rights over junior and subordinate water rights, and a recognition that the former are harmfully impacted by the latter. And those decisions have made it clear that counties are on the hook for responsible land- and water-use planning.

In response to the rulings, Whatcom County Council temporarily stopped accepting new applications for developments that depend on water from what are known as exempt wells. Council seeks greater clarity from additional review by the state growth board or through a legislative solution from lawmakers in Olympia.

The “legislative fix” sought by county administrators simply declares that water is available to support development by revising the law that was under review in the Hirst opinion to make certain that operative law is not controlled by the Hirst opinion. It would roll back the requirement that counties plan for growth in areas of adequate supply. In other words, the “fix” waves away the problem, magically declaring it ain’t a problem.

A particularly troubling section of SB 5239 actually spells out that instream flows are subordinate in rights to other uses, upending more than a century of water law and an understanding of the ecological function of those stream flows.

“This goes well beyond a legislative fix,” Trish Rolfe testified on behalf of the Center for Environmental Law & Policy (CELP), which opposes the bill.

The bill was heavily supported by the building industry and real estate lobby. It was provisionally supported by the Association of Washington Cities (AWC), whose representative in Olympia admitted that while it offers a solution it does not fix the problem. Ericksen was not available to testify on behalf of his own bill.

A competing bill, SB 5024, sought to determine whether groundwater supply is physically and legally available by directing state resources to the problem, a first step perhaps in creating water banks over which development plans might be laid.

SB 5024 allows for new development to occur in rural areas without adequate water supply provided the authorizing county adopts a mitigation plan. A county is given five years to allow new development before mitigation must be in place. The bill follows models used successfully in Clallam and Kittitas counties, where water banks are actually contributing to steam flows while allowing rural homebuilding to proceed. Unfortunately, that bill, provisionally supported by senior water users, had no financial support in the governor’s budget and stalled in committee.

Of course, as both bills suggest (one more forthrightly than the other) water supply is a problem.

Since 1986, the state Department of Ecology closed most Whatcom County stream basins to new water withdrawals, either year-round or during the dry months. Ecology itself has said that most water in Whatcom County has already been spoken for. Meanwhile, Whatcom County’s Comprehensive Water Resource Plan notes that more than 95 percent of 347 public water systems located in the County rely on groundwater; and approximately 20,000 homes obtain water from exempt wells that draw from that resource.

As noted in testimony in Olympia, the argument that residential well use represents only a fraction of water use is skewed by the fact that agriculture is a gargantuan user of water, estimated at more than 90 percent of total water use in the state. The argument essentially suggests that because the Ag use is a potentially unsolvable problem of mammoth proportions the merely elephantine but perhaps solvable problem of residential use should be ignored.

“Minimum stream flows should be maintained as a public right, and maintained on all streams,” commented Denise Smith, representing the League of Women Voters, told lawmakers in Olympia. Noting their membership includes many residents in rural areas, Smith stressed that SB 5329 “exonerates exempt well owners from any responsibility to the public trust. And this leaves us speechless.”

“We need to address the issue of stream flow mitigation, both for municipal water and permit exempt well uses,” noted Carl Schroeder, representing the AWC. “Neither of the bills fully address this problem.”

One bill offered a facile quick fix without solving any problems, and very likely worsening many other problems. The other bill sought a technocratic solution while admitting the problem is a complicated one and will require money and resources to address. Guess which bill survived in Olympia.

Cash Spell
Past Columns
Napkin Plan

November 15, 2017

Less Wave Than Slosh

November 8, 2017

Statistics of Shame

November 1, 2017

Cashing Out, Cashing In

October 25, 2017

A Creeping Paralysis

October 18, 2017

Fire and Water

October 11, 2017


September 27, 2017

Ounce of Prevention

September 20, 2017

Dwelling On It

September 13, 2017

Keeping the Dream Alive

September 6, 2017

A Bridge Too Far?

August 23, 2017

The Missing Middle

August 16, 2017

The Last, Best Solution

August 9, 2017

Fire and Water III

August 2, 2017

Fire and Water II

July 26, 2017

Fire and Water

July 19, 2017

Some Assembly Required

July 12, 2017

Good, Bad, Ugly

July 5, 2017

Zero Hour

June 28, 2017


June 21, 2017

Home for the Holidays

5:00pm|Ferndale Events Center

The 39 Steps

7:00pm|Sehome High School Little Theatre

Little Women

7:00pm|Ferndale High School

Peter and the Star Catcher

7:00pm|Squalicum High School

Romeo, You Idiot!

7:30pm|Heiner Theater


7:30pm|Mount Baker High School

Craft Bazaar

9:00am|American Legion Post #43

Holiday Festival of the Arts

10:00am|Meridian Street

Hot Cider & Cool Art

10:00am|Morgan Block Studios

Used Book Sale

10:00am|Everson Library

Red Barn Handpicked Holiday Market

12:00pm|Northwest Washington Fairgrounds

Holiday Gifts from the Kitchen

3:00pm|Lynden Library, Ferndale Library

It's Where the Sidewalk Ends

6:00pm|Bellingham Arts Academy for Youth

New Music, New Dance

7:30pm|Performing Arts Center Concert Hall

The Big Short One-Act Festival

7:30pm|McIntyre Hall

Bellingham Repertory Dance's Emerge

7:30pm|Firehouse Performing Arts Center

Backyard Brawl

8:00pm|Upfront Theatre

VFW Breakfast

8:00am|VFW Hall

Pancake Breakfast

8:00am|Ferndale Senior Center

Pancake Feed

8:00am|VFW Post 1585

Holiday Bazaar

9:00am|Hillcrest Chapel

Christmas in the Woods

9:00am|Garden Spot Nursery

NSEA Work Party

9:00am|Acme Elementary School

Turkey Trot

9:00am|Squalicum Creek Park

Climate Reality

10:00am|Bellingham Public Library

South Fork Winterfest

10:00am|Van Zandt Community Hall

Fall Gardening

10:00am|Lynden Library

Cheese Fest

10:00am|Everybody's Store

Bellingham Farmers Market

10:00am|Depot Market Square

Rexville Grange Holiday Art Show

10:00am|Rexville Grange

Holiday Farmers Market

10:00am|Port of Anacortes Transit Shed Event Center

Lynden Book Club

10:30am|Everson Library

Salmon Sighting

12:00pm|Haynie Creek

Conquering Writer's Block

2:00pm|South Whatcom Library

Fishboy Holiday Show

2:00pm|FishBoy Gallery

NaNoWriMo and Indie Publishing

3:00pm|Everson Library

Skagit Wine & Beer Festival


Homeless Summit and Cold Weather Giveaway

3:00pm|Maritime Heritage Park

i.e. artists talk

3:30pm|i.e. gallery

Small Works Opening

4:00pm|Matzke Fine Art Gallery and Sculpture Park

Smith & Vallee Artist Talk

4:00pm| Smith & Vallee Gallery

WA 129 Poetry Reading

6:00pm|Maple Hall

Giving from the Heart

7:00pm|Depot Art Center

A Light in the Darkness

7:00pm|Church of the Assumption

Welcome Home Celebration

7:00pm|Village Books

Ruach Consort

7:00pm|St. Paul's Episcopal Church

Contra Dance

7:00pm|Eagles Hall

Michael Kaeshammer

7:30pm|Mount Baker Theatre

Legends of the Blues V

7:30pm|Byrnes Performing Arts Center

Bellingham Farmer’s Market
Peter and the Star Catcher

7:00pm|Squalicum High School


7:30pm|Mount Baker High School

Holiday Festival of the Arts

10:00am|Meridian Street

Bellingham Repertory Dance's Emerge

7:30pm|Firehouse Performing Arts Center

Rexville Grange Holiday Art Show

10:00am|Rexville Grange

Cheese Fest

10:00am|Everybody's Store

Holiday Farmers Market

10:00am|Port of Anacortes Transit Shed Event Center

Rabbit Ride

8:00am|Fairhaven Bicycle

Community Breakfast

8:00am|American Legion Post #43

Rabbit Ride

8:30am|Fairhaven Bicycle

Getting in on the act


Sound of Music Singalong

1:00pm|Lincoln Theatre

A Musical Thanksgiving

2:00pm|McIntyre Hall

Harmony from Discord with Whatcom Symphony Orchestra

3:00pm|Mount Baker Theatre

The 25th Hour

4:00pm|Village Books

Southside Community Meal

5:00pm|Our Saviour's Lutheran Church

Way North Comedy Showcase

7:00pm|Farmstrong Brewing Co.

Rutie Dornfeld, John Miller

7:00pm|YWCA Ballroom

Bellingham Farmer’s Market Village Books
Holiday Festival of the Arts

10:00am|Meridian Street

Wander + Camber Beer Dinner

6:30pm|Camber Cafe

Rocks & Gems

7:00pm|Bloedel Donovan Community Building


9:30pm|Green Frog

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