Water in Rural Whatcom County

Jean Melious is an attorney who is representing four Whatcom County residents in the litigation discussed in this article. She is also a professor in the Environmental Studies Department, Huxley College of the Environment, Western Washington University. This article represents her opinions, not those of any other individual or organization.

Whatcom County has plenty of water, right? If I had a dollar for every time I’ve heard a Department of Ecology spokesperson make that comment, I could have bought you all a celebratory round during the Super Bowl.

At this time of the year, it doesn’t take an Ecology expert to see that Whatcom County gets a lot of rain. Moss grows on trees and roofs. Flooding sometimes is a concern. There is no question that Whatcom County has plenty of water … during the rainy season.

But way back in 1985, Ecology recognized that Whatcom County also has a dry season, and that during the dry season, there isn’t enough water to go around. In 1985, Ecology adopted an Instream Resources Protection Program that establishes instream flows and closes most of the Lower Nooksack basin to new water withdrawals, either year-round or seasonally.

An “instream flow” is a water right for rivers, recognizing that fish and other living things cannot survive when rivers run dry. The purpose of the Instream Protection Program, in its own words, is to “retain perennial rivers, streams and lakes in the Nooksack water resource inventory area with instream flows and levels necessary to provide for preservation of wildlife, fish, scenic, aesthetic and other environmental values, and navigational values, as well as recreation and water quality.”1

Like Ecology, Whatcom County has an obligation to protect water resources, including the water that fish and wildlife need to survive. The Growth Management Act requires the county to provide for protection of the quality and quantity of groundwater used for public water supplies,2 to protect “surface water and groundwater resources”3 and to “enhance … water quality, and the availability of water.”4

Unfortunately, neither Whatcom County nor Ecology views the protection of surface and groundwater resources as its primary concern in the Lower Nooksack. Instead, both the county and Ecology are arguing in court that the 1985 Instream Protection Program was intended to protect the rights of land developers, not of streams, fish or wildlife. The county and Ecology contend that the owners of new “permit-exempt wells”5 are so uniquely privileged that their wells can draw every last drop of water from the rivers and streams of Whatcom County6 — even when farmers have senior water rights, and even if wells take so much water that endangered salmon are jeopardized. Not surprisingly, the Building Industry Association of Washington strongly supports this stance, along with other organizations that have economic interests in land conversion in Whatcom County’s rural and agricultural areas.

My clients and I, and Futurewise, disagree with this interpretation of the 1985 Instream Protection Program. In 2013, in response to our appeal of the county’s Comprehensive Plan, the Growth Management Hearings Board found that Whatcom County did not adequately protect water resources as required by the Growth Management Act.7 Among other reasons, the Board found that the county had failed to ensure that permit-exempt wells would not impair instream flows.8

The county appealed this ruling. It does not claim that it has, in fact, protected instream flows from impairment by permit-exempt wells. Instead, it claims that it is not required to do so. Ecology joined the county in its arguments about instream flows, claiming that Ecology’s Instream Resources Protection Program never intended to protect fish, wildlife or the environment from the effects of permit-exempt wells. Under the language of the 1985 Rule, Ecology contends, permit-exempt wells are allowed to impair instream flows because the rule does not state to the contrary. While other water users, such as farmers, can be required to curtail their water use in order to protect instream flows, junior exempt wells are always allowed to take water — down to the last drop.

Ecology and the county’s argument relies on their belief that the state law of prior appropriation, or “first in time, first in right,” does not apply to exempt wells in Whatcom County. Ordinarily, any permit-exempt wells would be “junior” to the Jan. 1, 1986, priority date of the instream flow. Junior water users — all junior water users except permit-exempt wells, according to the county — may be required to cut down on their water use if needed in order to make sure that instream flows are met. Under the county and Ecology’s argument, however, junior permit-exempt water users always get their water, even when senior users have to cut back.

This means that a farmer with a water right dating back to 1986 would have to stop using water to protect instream flows, but a new house on a new 2015 exempt well could keep using water, down to the last drop. Not only does this approach fly in the face of state law, but it fails to meet the county and Ecology’s obligations to protect streams, fish and wildlife.

But can exempt wells really have any effect on the amount of water in a river? Let me quote an expert on this: Whatcom County. Back in 1999 — the last time Whatcom County did any water resource planning — it found that a proliferation of rural residential permit-exempt wells had already “created difficulties for effective water resource management” by drawing down aquifers and reducing recharge of streams.9

Back in 2009, when Whatcom County was concerned about farmland preservation, county planners wrote:

From the data available to Whatcom County, water appears to be in short supply for existing agricultural operations. With the existing water allocations, plus the requirement to maintain minimum instream flows, an additional 26,000 possible dwelling units (with wells – or needing water from water districts) placed in unincorporated Whatcom County would be detrimental to agricultural operations, the environment, and wildlife, including salmon that require the minimum stream flows to survive.10

Whether or not they win their argument in the current lawsuit, Whatcom County and the Department of Ecology have a choice. They have the authority – the obligation – to protect agricultural operations, the environment and wildlife, through effective water resource management. Or they may continue to focus on the demands of land developers in the County’s rural and agricultural areas, giving new development priority over the water needs of farms and fish.

The county’s future is being decided now, and it is a future that ensures that sprawling new rural development has priority over the water needs of farms and fish. If that is not the vision of the county’s future that you support, let the Whatcom County Council and state Department of Ecology know that you want water resource management in our county that protects agriculture, wildlife and the environment.

Email messages sent to council@co.whatcom.wa.us will reach all members. For information about how to contact councilmembers via the phone, snail mail or in person during open sessions at monthly council meetings, see http://www.co.whatcom.wa.us/council/whatcomcountycouncilcontactinfo.jsp. At the state Department of Ecology, contact   Doug Allen, manager of the Bellingham Field Office, at doug.allen@ecy.wa.gov.

Endnotes

1 WAC 173-501-020.

2 RCW 36.70A.070(1).

3 RCW 36.70A.070(5)(c)(iv).

4 RCW 36.70A.020(10).

5 Permit-exempt wells establish a water right that does not require an Ecology permit, although they are subject to all other state water laws governing water rights, including the “first in time, first in right” law of prior appropriation. Permit-exempt wells can provide an unlimited amount of water for stock-watering, an unlimited amount of water for watering a lawn or noncommercial garden of one-half acre or less, and 5,000 gallons per day for single and group domestic uses (houses). RCW 90.44.050

6 “The link between stream flows and groundwater withdrawals in the shallow Whatcom aquifers is well documented. A number of studies indicate that shallow aquifers of the county are responsible for approximately 70% of base stream flow.’” Hirst v. Whatcom County, Growth Management Hearings Board, Western Washington Region Case No. 12-2-0013 (June 7, 2013), Final Decision and Order at 24.

7 Hirst v. Whatcom County, Growth Management Hearings Board, Western Washington Region Case No. 12-2-0013 (June 7, 2013), Final Decision and Order (“FDO”).

8 FDO at 40.

9 Whatcom County, Water Resource Plan (1999) at 3; see also FDO at 24.

10 Whatcom County Planning and Development Services, Summary of Impediments and Opportunities Related to Agricultural Planning in Whatcom County, p.5 (Jan. 2009), available at http://www.co.whatcom.wa.us/pds/plan/lr/projects/agprogram/pdf/2012-summary-impediments.pdf.