Myth of the Inexhaustible Water Supply

The author, g.h. kirsch, settled in Whatcom County in 1969. He’s an entrepreneur, student of the law, and worldly philosopher who loves this place.

Doesn’t it seem like it’s been raining for an eternity here west of the Cascades? From time immemorial this indomitable force has shaped the land, the lives, and the livelihoods of generation after generation of those who settled here. On its constant journey back to the sea, it produced plush forests for a bounty of creatures and rivers teeming with salmon.

From the beginning, those who settled relied on the fish and game for their sustenance, and the woods and fibers for their shelter and protection. And even as history gave way to the present, as fishing, hunting and gathering gave way to canning, logging and farming, throughout, we have all relied on the health of this cycle to survive.

But as we have grown more numerous, we have come to take for granted that the cycle would go on, unbreakable and inexhaustible. What once was mythical is now merely a myth. We are so numerous that our very existence threatens the same. Only the most shortsighted and self-interested among us choose to ignore reality.

Water is not just necessary for life, it is a necessity for the way we live. From your toilet to your sink, in your garden or your tub, without water it just doesn’t work. From the dairy to the field to the factory it is necessary. And the truth is our needs for water are outgrowing its supply. Nowhere is this truer than in the need for water to keep developing in rural Whatcom County.

The pressure continues to extend water and sewer into rural and forest resource areas on Squalicum Mountain, which sits above Lake Whatcom, and build before there is enforcement. This is what the fight is all about. Whatcom County officials could immediately stop the desecration of the Lake Whatcom watershed, but they still lack the will to use the law provided them.

Early in the last century, with more and more settlers using water, we first came up against its limits. That precipitated the Washington [Surface] Water Code of 1917, the first effort to allocate state water, which had seemed infinitely abundant, among competing users. The act attempted to regulate surface waters, which were the primary and most accessible sources.

It was established that the waters of the state belonged to the public. No one owned the water, but we could gain a right to use it for good purposes. The earlier right holder, in times of shortage, had their needs filled even if the latecomer got none. No one would be allowed to take water where it was already spoken for.

Largely cut off from those surface waters, continuing settlement turned to groundwater (the first loophole in water regulations) until, in 1945, it was necessary to pass additional laws (the Ground Water Code) for its management. Most significantly, it was recognized that groundwater withdrawals could, but should not, adversely affect surface water rights.

Since then there has been a procession of attempts to fairly regulate and allocate use of this precious commodity. Washington state water law is a history in its own right. As populations grew and the situation worsened, new attempts were made to address the problems. The state Hydraulic Code of 1949 and the Water Resources Act of 1971 each worsened another attempt at correction. (For more details about Washington state water law, see the Washington State Department of Ecology Web site: http://www.ecy.wa.gov/pubs/98152.)

By the late 1980s many thoughtful people were very concerned that continued uncontrolled population growth and associated development threatened to destroy the very character of life they had come to know. Serious thinkers feared far worse. The upshot of this enlightenment was legislation in the early 1990s aimed at managing growth comprehensively, on a statewide basis.

The Growth Management Act, passed in 1991, was aimed at protecting our common wealth: vital resource lands and the industries reliant on their preservation, and areas critical to the conservation of natural habitat. It was needed to protect the lands that farming, mining and forestry relied upon, not just their current owners, in order to ensure they would remain for the generations to come. Its proposed provisions were repeatedly challenged and amended, but in large part the central principles survived to become the guiding law for us today.

The act required that counties, admittedly influenced by special interests, nonetheless plan locally for growth within their parameters. With few enforcement powers of its own, it did establish an adjudicative system where citizens could seek review of non-compliant regulations. Curiously, it relied on the disinterested to give much in order to prevent the self-interested from taking everything. Unfortunately it still relies on those same local authorities to respect those rulings.

The mandate to better manage growth is most conspicuously about land management. Summing up its several goals, it was meant to direct most growth that would occur after its passage into already urbanized areas, or to areas that were identified for eventual annexation to those urban centers. The new law intended to stop sprawling low-density development outside of urban centers that threatened farming and forestry, the rural life, critical areas and habitat.

But deep within this law was a mandate to protect the water. It required that we protect natural surface waters, ground waters and the areas that recharge and discharge them. It required that we respect the cycle. It assumed existing water law. It demanded that we prohibit the urban from overrunning the rural, and provided protection for forest and farmland and safeguarded the creeks, streams and lakes. It should be an important tool in reversing the degradation of Lake Whatcom and restoring it to health.

To achieve these ends, with limited exceptions, the Growth Management Act bars further extension of those things urban, water and sewer systems in particular, in order to contain urban growth and preserve a functional rural and resource-based economy outside it. It recognizes that without these urban services, the land had a chance to protect itself.

It was expected that clearly limited supplies of groundwater would entail a limited amount of growth outside those areas already served by urban systems. It was anticipated there would be a variety of densities in the rural areas, 10, 20 and 80 acre tracts, that allowed for something like a Jeffersonian yeomanry to provide for all or part of their livelihood where they lived. It was to preserve rural character, where nature was the dominant theme.

None of this was readily accepted by the industry that thrived on the conversion of these rural lands. Passage of the law sent the fight to every county, where the wording of comprehensive plans and the drawing of zoning maps, which the new law required, had potentially huge financial benefits for the sufficiently influential.

Soon after these plans were finalized, in the mid to late nineties, the restriction on extending urban services into rural areas was attacked. One of the earliest conflicts was not far from the Legislature that had passed the law, on Cooper Point, a peninsula stretching northward from Olympia into Puget Sound.

The peninsula had been zoned largely rural, but there were two areas that were more densely developed. Thurston County had been planning, before the passage of growth management, to extend sewer service to these two areas and a few scattered residences along the shoreline. This pleased those poised to develop along the route of the new lines.

A group of concerned citizens, intent on preserving the rural character of the peninsula, filed a petition with the newly established Growth Management Hearings Board contending that the plan violated the law. After a contentious debate, the board agreed and ruled the county’s plan did not satisfy the requirements of the law that generally prohibited urban services except where they were “necessary to protect basic health and safety and the environment.”

Thurston County appealed to the Superior Court. The court agreed with the board’s ruling and went on to say that the plain language of the statute reflected the Legislature’s goal to reduce the conversion of undeveloped land into low-density development — to protect rural character and to bar expansion of such services in rural areas.

The court added that the push for further development of Cooper Point would be inevitable if the county were to expand the sewer. The court concluded that neither the ruling nor the statute prevented the county from responsible, long-range planning, but simply required that such plans comply with the Legislature’s mandate to preserve rural character. The Court of Appeals and the Washington State Supreme Court both upheld the decision and it is now established precedent.

In drafting the comprehensive plan here in our county, everywhere someone wanted a loophole (clustering in nearby forests, water systems in rural lands, rural zoning in important agricultural lands, etc.), and seemingly nowhere could the elected and appointed withstand the seduction of financially powerful constituents. Whatcom County’s mandated Comprehensive Plan is often little more than a way around the prohibitions in the law that spawned it, and refutation of the spirit in which it was passed.

Ever since its adoption, a few have stood against the giveaways, fighting for the law at the Growth Management Hearings Board and at the County Council. Some have done so at enormous personal loss. But they brought the light of public scrutiny to the business of government.

With so much wrong, much more remains to be undone. Recently, self-sacrificing individuals, fighting the loopholes that were allowed, have alerted the community to the wholesale destruction of the watershed and recharge zones in rural and forestlands on Squalicum Mountain. But few understand all the history behind these current events.

One of the more flagrant abuses of the new law in Whatcom County’s planning was the delineation of certain zones where denser rural development would be allowed. These zones were envisioned in the Growth Management Act but were premised on the fact that the areas already reflected those greater densities at the time of the act’s passage. And the Growth Management Act required that these special zones be strictly circumscribed on the basis of existing structures at the time. It was understood they might infill, but they would not expand.

Whatcom County’s plan grossly inflated the area of many of these zones in order to satisfy large and small landowners who lobbied vigorously for expansion of the defining boundaries to bring in their undeveloped parcels, which were then enormously more valuable. At the time, one of the landowners to benefit from this circumvention of the law was Whatcom County Executive Pete Kremen. To err is human, but to benefit is divine.

Though this abuse was caught and brought to the Growth Management Hearings Board, and the county admitted their boundaries were inappropriate; they still have not corrected them. The county administration is responsible for enforcing the law and properly redrawing the boundaries.

Years have passed without correction. Applications to subdivide have been vested. The corruption of the planning process was in large part behind the resignations of so many of Whatcom County’s planning staff in 2007. With little hope of change or of the application of good planning principles, the best have left.

The county administration seems satisfied that those who remain have gotten the message. With its planners gone, Whatcom County Planning and Development Services has become what the county executive and his cronies always wanted it to be, “Development Services.”

Nowhere is the emasculation of the law more apparent than in the Whatcom County plan’s compromising protection for water and the rural areas where the watersheds and recharge zones that it relies upon are found.

As we come to the present, continuing development in the rural county, which sadly is the history of impairment of life as we know and love it, is the continuation of the impairment of waters we rightly rely upon. Just as newcomers in 1917 needed to be restricted from taking the water already promised to their predecessors, the overappropriation of water that has been allowed demands we curtail the development in rural areas that has cost us too much already.

An enormous legal event occurred in the 1970s that bears on our present situation — US v. Washington, February 12, 1974. The Boldt decision was about far more than a division of the already dwindling salmon resource. The judge found that, “The tribal right to fish includes a right to have sufficient water for fish, a right that predates all other water rights.”

The Federal District Court for the Western District of Washington ruled that the treaties with various tribes implied a right to water sufficient to sustain those salmon. And the court recognized that this right superseded “all other water rights.” Indeed the fish have relied on those rains and rivers from time immemorial. In that sense, everyone is a latecomer.

The continuing legal dispute over habitat management that followed Boldt’s ruling, upheld by the U.S. Supreme Court, will come nearer its inevitable conclusion in a proceeding scheduled for this October in the Federal Court in Seattle in a sub-proceeding of the Boldt decision known as the “Culvert Case.”

The likely outcome will render the currently unmet instream flows, established in the late 1980s by the Washington State Department of Ecology, of minor importance when tribes and federal officials reappraise the actual amount of water, and other habitat considerations, required to preserve these threatened and endangered species.

Decades of thoughtless development that has taken the water from these fish will, when that water is restored, turn out taking the water we so naively considered our own by right. And in the meantime, our county still ignores the mandate for growth management, more concerned with accommodating development wherever someone with sufficient influence has made an investment.

The two most heinous loopholes that Whatcom County allows are: (1) the so called exempt well, which allows water to be taken even where stream flows are inadequate, without any demonstration that water is available for newcomers and (2) the unconditional extension and expansion of water and sewer lines for new development in rural areas.

This is ignorance compounded by greed. When the question of following the law is put to the county’s administration, it is ignored. While they pledge that watershed protection is their highest priority, they shirk their duty.

Whatcom County has ample discretion; indeed they ignore their mandate to require real evidence of water availability in order to build or subdivide. As noted before, they could immediately stop the desecration of the Lake Whatcom watershed, but they still lack the will to use the law provided them. They could stop the impairment of salmon streams, but they just don’t really give a damn.

Our leaders do not stand with us. And still standing alongside them are those who claim their property rights are a license to profit at the public expense. This is the truly sad redistribution of wealth that exploitation demands.

Or perhaps, in the end, it will be seen for what it is, the distribution of poverty; the dissipation of our common wealth. §