Scarce Groundwater in the Lake Whatcom Watershed

Tom Pratum is a board member of North Cascades Audubon Society, and a Lake Whatcom watershed resident who draws drinking water directly from the lake.

A small group of developers, along with Whatcom County Water District No. 10, have been working for over 20 years to bring a public water supply system to the North Shore area of the Lake Whatcom watershed. Led on by inappropriately high zoning density in this rural area, this quest has produced a prodigious quantity of documentation in the Water District No. 10 files. Examination of these files tells a story whose plot will be all too familiar to many readers.

Most of us know that once a developer has water and sewer services to connect to, housing construction soon follows. The requirement that the availability of these services be considered prior to granting a subdivision or building permit is codified in state law (RCW 58.17.110 and 19.27.097; see also Whatcom Watch, May 2003, page 14, “Water Planning and Growth”).

Sewer and water service can be provided on-site (e.g. septic systems and wells), or by public entities. Controlling the access to these can rightly act as a brake on sprawl.

In any watershed, direct introduction of wastewater is a bad thing, so septic systems are discouraged. In the Lake Whatcom watershed, this lead in the late 1970s to the establishment of a sewer system around much of the lake, which could potentially service a large part of the residential build-out of the watershed.

Controlling access to this system has been used effectively in Sudden Valley to delay build-out of that area (see “A Roller Coaster Ride,” Whatcom Watch, March and April 2000, page 1). There would be far more homes in Sudden Valley today were it not for the delayed construction of the Lake Louise sewer interceptor.

The provision of water on the North Shore aea in the watershed bears some striking similarities to the drama that unfolded on the South Shore/Sudden Valley area with respect to sewer service. Most readers will be surprised to learn that, in the 1990s, a low-level water-rights battle was occurring simultaneously with the high-stakes courtroom drama of the sewer interceptor.

At 243 billion gallons, Lake Whatcom would seem to have enough water to satisfy any hungry developer.

However, even if a developer had control of a point of withdrawal on the lake, they would need to have established a vested water right prior to the 1917 adoption of surface water law (RCW 90.03), or a surface water right application would need to be made—currently to the state Department of Ecology (see “A History of Water Law,” Whatcom Watch, February 2003).

Water rights are not easily obtained. Lake Whatcom has been closed to new consumptive water appropriations for a number of years (WAC 173-501-040), and the Lummi Nation has challenged all existing water rights applications because their senior water rights in the area are not yet quantified, and many water rights issues in the Nooksack River Basin are unresolved.

For those who are interested in preservation of Lake Whatcom as a drinking water reservoir, this lack of surface water access has been a good thing. Residential development has already degraded basin 1 to the point of its 303(d) listing in 2000 (see “Does Lake Whatcom Qualify as an Impaired Waterbody?” Whatcom Watch, February and March 2002), and development around basin 2 appears to be having a similar effect there.1

In order to get around this lack of surface water access, developers have the following options at their disposal:

(1) Rely on the extension of services from the city of Bellingham, which does have a surface water right dating from ca. 1883 (e.g. Geneva, Hillsdale area, Eagle Ridge).

(2) Establish a separate public water supply system using surface water (e.g Sudden Valley).

(3) Drill a well as an individual ground water source, or as a public system. If drawing less than 5,000 gallons per day, such a well is known as “exempt” and requires no state water withdrawal permit (RCW 90.44.050), although it must still be approved by the Whatcom County Department of Health.

Options (1) and (2) have been used to establish water supplies for much of the higher density development in the watershed—generally UR3 zones—mostly via the establishment of public water districts. The main player in establishing water and sewer service outside of the city limits in the watershed is Whatcom County Water District No. 10 (WD 10).

The water district’s actions have shown that it will provide services to any and all comers in its service area with no concern whatsoever with respect to the effect of resulting development on its primary water source—Lake Whatcom (see sidebar on page 12). However, it has been confounded in this quest by a lack of both water rights and infrastructure to distribute the water is does have rights to.

Water can be most easily obtained by tying into the existing city infrastructure. However, the city of Bellingham, being rightly concerned about the effects of development on the watershed that supplies all of its residents’ drinking water, has limited the extension of services in order to control growth.

While it agreed in 1970 to supply the Geneva area under more or less unlimited terms, in the North Shore area it only agreed to service Eagle Ridge (see development map on page 11) lots of record as of June 10, 1988.2 This is a small fraction of the potential build-out on the north shore of the lake.

Attempts by developers to extend water service further along North Shore Road past Eagle Ridge have usually been met with rejection by the city. The original Winchester Estates development (see development map) had its service request for 96 water hook-ups rejected, and their subsequent lawsuit against the city failed.

However, Winchester Estates was scaled down and reincarnated as North Shore Estates, and a request to service the 28-lot plat with city water was granted at the City Council meeting (See page 17, vote 58) on April 28.3

In Sudden Valley, on the south shore, a separate public water supply system was established, which eventually became part of Water District No. 10. In 1988, the city protested the Sudden Valley surface water right claim on the basis of the fact that the city controlled the level of Lake Whatcom, which had been set at a specified maximum level by a prior court case.

The city felt that sufficient reservoir storage to satisfy the water district’s claim could not be accomplished at this specified level. However, this protest was eventually settled, and Water District No. 10 now has a substantial surface water right claim, which is drawn just south of Austin Creek and is sufficient to supply at least 5000 residential units.4

As a parenthetical note, Water District No. 10, at its March 12, 2003, board meeting, approved the construction of a water system inter-tie at a cost of nearly $800,0005 that will allow the Geneva area to be supplied by water drawn from the Sudden Valley water right.

This will allow the district to disconnect the Geneva area from the city water supply infrastructure, and not be bothered by the city’s environmental concerns.

While a limited number (estimated at 250) of homes along the lake are able to obtain surface water directly from Lake Whatcom, the lower density rural and rural residential zones, especially along North Shore Road, could only hope for groundwater option (3). “If all else fails, drill an exempt well” could be the water consultant’s answer to a developer’s probing questions.

Exempt wells have been used and abused for years. Fortunately, a recent State Supreme Court ruling6 clarified the fact that the exempt well provision is for single domestic water supplies, and “bundles” of exempt wells cannot be used by developers to supply large developments.

However, even if you are allowed to drill an exempt well—or any well for that matter—can you get any water out of it?

To obtain groundwater one needs (1) precipitation—water will not be present without a source of recharge, (2) porous material into which water can be entrained—solid rock has little water holding capacity, and (3) topography appropriate for water accumulation—since water moves under the influence of gravity, it is more likely to accumulate at lower points.

We generally can satisfy our precipitation needs, but the second two items will vary in differing geologic regions of the watershed. A map of the geological formations that underlie the Lake Whatcom watershed is shown in the geologic map. The underlying geology shows three basic regions, two of which are of bedrock character, and one of which consists of less consolidated material.7

A vast majority of the area that would likely be subject to residential development is underlain by bedrock known as the Chuckanut Formation. This is an approximately 10,000 foot thick sedimentary structure—we’ll call it sandstone although it also contains some shale—that has been folded and uplifted by continent building tectonic activity.

This sandstone formation is very familiar to anyone who has traveled down Chuckanut Drive, strolled up Sehome Hill or hiked much in the watershed, as it is exposed in many places.

Lake Whatcom is surrounded by low level peaks that are part of a Westward spur off the Cascade range which terminates at Blanchard Mountain immediately adjacent to Puget Sound. The most familiar peaks of the watershed—Squalicum Mt., Lookout Mt. and Stewart Mt.—consist of Chuckanut sandstone (the remaining peak, Anderson Mt., is of earlier metamorphic composition).

In some areas, the planes of the sedimentary formation—which originally were parallel to the surface – have been tilted and folded over millions of years to be nearly perpendicular where exposed.

The water-bearing properties of this Chuckanut sandstone can be described as: “Generally very low permeability, little if any groundwater. Occasionally, small amounts of water may occur in zones of fracturing and bedding.” 8

To summarize–drilling a groundwater well here is a hit or miss proposition. A good example can be seen from well logs submitted as part of a groundwater evaluation for the North Shore Estates development.9

Two logs taken from the same 5-acre parcel show that, in one area a well producing a reasonable flow could not be drilled even at a depth of 325 feet, while in another area a good producing well was obtained at a depth of only 25 feet. There are also anecdotal reports of wells in this area producing methane and hydrogen sulfide.9

The watershed near Agate Bay between Squalicum and Stewart Mountains shows yet another type of geology – that of a glacial outwash. During one or more of the several ice ages that affected this area, a river flowed through this valley and into what is now Agate Bay.

This river is responsible for the gravel found here, while the advancing glaciers are responsible for finer material. Several occurrences of this have produced a layered effect—sand and gravel layers separated by finer clay layers—sometimes referred to as ‘blue clay’ or ‘hardpan.’

In contrast to the case of Chuckanut formation, the water-bearing properties of the coarser layer of material can be described as: “Very permeable, yields large quantities of groundwater.” 8 This area is a prime location for groundwater resources, as reported to Water District No. 10 in August 1980.10

A good number of residences have taken advantage of this groundwater in the Y-Road/Agate Bay Lane/Squalicum Plateau area. However, the focus of development activity is closer to Bellingham (see development map above), and the water supply infrastructure did not exist to bring this supply toward the sprawling town, nor did the district have a groundwater permit—which would be required for any multi-unit supply wells.

One very productive well had already been drilled in the area by Duane Johnson in 1971, and this became known as the “Johnson” well.10 Water District No. 10 acquired the Johnson well property, and the well with it, and also obtained a permit for the use of this well for a municipal water supply (the permit was applied for in 1976).11 The groundwater permit for the Johnson well allowed 465 acre feet per year to be withdrawn (approx 150 million gallons).

At that time, this was the largest actual water right held by the district. As previously indicated, its surface water right at Sudden Valley was unresolved due to objections from the city of Bellingham, which, among non-native entities, has the most senior water rights on the lake.

A very interesting proposal was floated by the water district manager in 1984 to pump water out of the ground in the Agate Bay area, flow it into the lake, and pump it out again at Sudden Valley.12 Since it is known that the groundwater aquifer being tapped in the Agate Bay area ultimately flows into Lake Whatcom,13 this would have amounted to “robbing Peter to pay Peter” and fortunately never came to pass.

It was the intent of the district to develop this ground water resource into a municipal water supply that would serve several thousand people in the area along North Shore Road and Agate Bay.4,14 However, the utility local improvement district (ULID) proposed for this purpose was later rescinded due to lack of interest at the time (early 1980s).

Somewhat independently, Richard Giesbrecht, a Vancouver, B.C. developer, had proposed a development in the Agate Bay area to be known as “Richalou Estates” (since renamed Agate Heights Estates).

A well had been drilled on property controlled by Giesbrecht that was in a location appropriate to serve Giesbrecht’s plat, but the well had a more limited capacity to provide water (32.4 acre feet per year, approximately 10 million gallons), and the water right obtained for that well would only serve a limited number of residences.15 This became known as the “Giesbrecht” well.

In the late 1980s, development interest picked up, and developers started lining up for water services. Trillium owned approximately 200 acres above Dellesta Park, which they had obtained from Georgia Pacific (see development map). This property had been used for forestry in the distant past, but was obviously ripe for residential development, and local land-use consultant Roger Almsgaar argued unsuccessfully on behalf of Trillium to get the area included in the city of Bellingham Urban Growth Area in 1994.16,17

Peter Watts, another Vancouver, B.C. developer, had accumulated 104 acres in the same area by 1985 and also had his sights set on development via the entity Evergreen View Ventures—whose holdings have since grown to 125 acres (see development map on left).18,19

If developed at their raw zoning densities, these two properties would yield 354 residential units (109 from the Trillium property—which consisted of 219 acres in the early 1990s—and 250 from Evergreen View Ventures 125 acres).

The record shows that the only thing preventing the immediate development of these properties was the availability of water.18,20,21 The groundwater under these properties is scarce given the bedrock geology.22 The developer’s best hope was in the Giesbrecht and Johnson wells.

Giesbrecht approached WD10 in hopes of developing a joint water supply system that would service not only his plat, but those of developer James Doucette, and proposed plats of Trillium and Evergreen View Ventures.23 This would involve some combination of the district’s water right at the Johnson well with Giesbrecht’s well.

This then lead to the adoption of a resolution by WD10 establishing the North Shore Well Service Area.24 The area was designated to include 756 potential residential units,25 and encompass the area of the Trillium, Evergreen View Ventures, Richalou Estates and adjoining properties. Trillium, Evergreen View Ventures, Giesbrecht and Doucette became loosely known and the “North Shore Well Users Group.” 26

In order to execute this agreement and bring it to fruition, WD10 first acquired Giesbrecht’s existing water right, and began serving customers from this existing well. The district interpreted the water right from this well as adequate to serve 108 residences,15 and had clearly planned on also using the water right at the Johnson well to serve the projected needs of the North Shore Well Users developer group.25

The district felt that the best path would be to drill a higher capacity well at the Geisbrecht site, and transfer the water right from the Johnson well to that site. It was felt that the Geisbrecht and Johnson wells tapped the same portion of the glacial outwash, and thus the same aquifer.

While the district was able to have the higher capacity 10” well it drilled at the Giesbrecht site considered a replacement well for the original Giesbrecht well, it had to apply for a change of water right to move the Johnson well right and combine it with the Giesbrecht water right, which it did in 1994.

This water right change application was protested by the Lummi Nation primarily on the grounds that it would surely amount to an increase in water withdrawals prior to the time when the tribe’s water rights had been quantified.27

Just as the lawsuits by the Clean Water Alliance had put a temporary stop to the Lake Louise Sewer Interceptor and the accelerated development of the Sudden Valley area that would result (see “A Roller Coaster Ride,” Whatcom Watch, March and April 2000, page 1), this protest put the brakes on development of the Trillium and Evergreen View Ventures properties.

During the time this dispute was being considered, the infrastructure for the well and a water holding tank were built, and service was provided to the now Agate Heights Estates plat, as well as several other short plats adjacent to it.

In the meantime, several things were occurring. In June 2002, Whatcom County instituted an interim downzone of much of this area from RR2 and R2A to R5A. This interim downzone has been extended twice, but has yet to be made permanent.

In July 2002, the city of Bellingham purchased what remained of Trillium’s holdings in the area for $1.7 million. Earlier this year, the Lake Whatcom Residential Treatment Center, which owns 75 acres between the Richalou Estates and Evergreen View properties, granted a conservation easement to the Whatcom Land Trust in a three-way deal with Whatcom County.

These events have blown a fairly large hole in the potential demand for water service in the North Shore area. It should be remembered that the shallow soils and groundwater of this area make it an inappropriate location for development in any case.

Unfortunately, as a New Year’s present to WD10, the Department of Ecology granted the disputed water right change on December 31, 2002—

discarding the protest of the Lummi Nation.13

Normally, using law in place at the time the application for change was made, a water right change would not be allowed unless the water had already been put to beneficial use (RCW 90.03.080)—which WD10’s Johnson well water right clearly had not.

However, Ecology interpreted this change under RCW 90.44.100, which allows the new Giesbrecht well to be considered a replacement well for the Johnson well even though that water right had not yet been perfected.28

It should be noted that a state legislative bill (HB1337), being considered at the time of this writing in the special session of the legislature, would make future water right transfers such as this possible without application to the Department of Ecology. §

This puts the remaining members of the North Shore Well Users Group and WD10 in the position of pounding the pavement looking for additional interested parties to justify putting in the distribution system for this water.

The granting of the water service extension from the city of Bellingham to North Shore Estates is a direct result of this very real threat to the watershed.3

With this potential North Shore well water system hanging over all of our heads, the city had little choice but to grant the developer’s request, or be left with the possibility of runaway development from Eagle Ridge out North Shore Road—an area containing watershed sub-basins which drain into lake basin 2 where the city’s water intake is located.

Is this the end of the story? Clearly not. Even with Trillium out of the picture, Peter Watts (Evergreen View Ventures) appears to be unwilling to give up his development plans, or sell his property to the city of Bellingham.19

We’re left with the same lesson as was learned from the Lake Louise Sewer Interceptor–Water District No. 10 cannot be counted on to behave in the best interests of this community (but we could change that–see Whatcom Watch, May 2003, page 16 “Do You Drink Water and Live in Sudden Valley?,” ). Saving the watershed from impacts of residential development cannot be done solely by withholding water and sewer services from developers.