Lummi Island Quarry Is Illegally Diverting Water

Meredith Moench is president of the Lummi Island Conservancy.

A permit from the Northwest Clean Air Agency requires the Lummi Island Quarry to suppress dust using water. The water for this purpose is piped into the quarry production areas from a 12,000 gallon tank continuously filled with water from a local creek. There is only one problem. This diversion of water is illegal. The quarry owner (Lummi Rock, LLC/Aggregates West) does not have a water right permit allowing them to do this.

The waters of Washington State collectively belong to the public and cannot be owned by any one individual or group. Those individuals or groups may be granted rights to use them. A water right is a legal authorization to use a predefined quantity of public water for a designated purpose. State law requires certain users of public waters to receive approval from the state prior to using water — in the form of a water right permit or certificate.

In August 2007, Lummi Rock LLC (Aggregates West) was informed of this fact following an inspection conducted at the quarry site by the state Department of Ecology. In a letter dated August 16, 2007 the quarry owner was informed that withdrawal of surface water (as he and his employees had described during the site inspection) could be a violation of Washington Water Code with possible fines of up to $5,000 per day of illegal use. He was also informed that no such water right was on record for this commercial withdrawal of water at the quarry and was advised to begin applying for a water right.

Despite this warning followed by unverified assurances from quarry personnel that the situation had been rectified, over the next three and one-half years the quarry continued to withdraw water from Aiston Creek. In March 2011, local residents documented this water collection system with photographs and GPS locator readings, noting that the water was being diverted via above ground HDP pipe approximately 1,000 feet downhill and southward into the quarry. After sending this information to the Department of Ecology, local residents noted that the collection system had been dismantled and the Department of Ecology announced that Lummi Rock had submitted a water right application on May 13, 2011.

Still lacking a water right permit, quarry personnel established a water withdrawal system in a nearby seasonal stream. By June, this stream had dried up. Returning to their previous site in Aiston Creek, quarry personnel reinstalled their old water collection system. This was subsequently dismantled by local residents in August and a complaint from the community’s Board of Directors was sent to the quarry owner. This letter complained of the location of the collection system on private community property and also noted its illegal nature. Quarry personnel reconnected the water collection system and located it a few yards away on quarry property and continued collecting water.

The Department of Ecology has so far chosen not to enforce the Washington Water Code despite the fact that the Lummi Rock LLC water right application is not proceeding and there is no guarantee that it will ever be approved. A huge backlog of water right applications means applicants may have to wait for many years for a decision. Lummi Rock, therefore, has opted for a cost reimbursement process whereby the applicant pays all the costs of processing, including the cost of a hydrogeologist consultant. The quarry owner entered into such an agreement which requires the payment of a security deposit of several thousand dollars in order to proceed. Lummi Rock has as yet failed to pay this required bond.

In the meantime, the water collection system remains in Aiston Creek, illegally withdrawing water around the clock and diverting it into the quarry. This delay in complying with the agreement entered into with the Department of Ecology should be no surprise to anyone familiar with Lummi Rock, LLC’s compliance history of foot dragging and after-the-fact permits. For details, see Whatcom Watch quarry articles in Oct/Nov. 2011, December 2011, and January 2012 issues. In the meantime, the Lummi Island quarry’s bid for a 137 percent expansion continues. For additional information go to lummiislandquarry.com

On January 19, 2012, Whatcom County Planning and Development Services made the decision to withdraw the Revised SEPA Determination of Non-significance (DNS) which they had issued December 13, 2011. The decision to halt the environmental review process for the Lummi Island quarry's 137 percent expansion bid comes following review of the submitted comments as well as enforcement issues at the applicant's active quarry site on Lummi Island. Among the comments objecting to the DNS determination were those from the Lummi Island Conservancy, the Lummi Nation (noting impacts to Lummi Treaty Rights and associated resources), the state Department of Ecology, and numerous private citizens citing a wide range of environmental concerns.

County staff further stated, "The reasoning for this withdrawal is to reconsider the significance of the proposal and to adequately define the scope of environmental review. This will include reviewing how the non-project action (Mineral Resource Lands zone change PLN2011-00009) relates to the proposed project actions (permitting requirements associated with ENF2011-00117)." The latter is a reference to shoreline violations found at the current active quarry site owned by Lummi Rock LLC. Whatcom County PDS issued a Notice of Violations November 23, 2011. For details on these see the front page article in the Whatcom Watch January 2012 issue.