Rural Whatcom County, with the Nooksack River flowing in from the foothills past Deming, Everson, Lynden, Ferndale and to its delta in Bellingham Bay.
The Human Right to Water
It is time for the state of Washington to adopt legislation acknowledging the human right to water.
The Hirst Decision has created an impenetrable roadblock for rural property owners who want to build a home in remote parts of Whatcom County and do not have access to municipal or non-municipal water systems. Since the Hirst Decision became the law of the land, Whatcom County has determined that new homes dependent on a well as the primary source of water must be evaluated by a state-approved hydro-geologist, before a building permit application can be submitted. If Whatcom County Planning and Development Services has questions about the validity of the evaluation, it can request a second evaluation from an independent hydro-geologist of its own choosing. Naturally, the permit applicant has to pay for both studies.
As a case in point, last February, the owner a piece of property on Vedder Mountain submitted an application for a building permit. The applicant’s hydro-geologist determined the proposed well was in a small basin that is considered endorheic—a topographically closed basin. This means the basin retains water but the water leaves the basin via evaporation and seepage, it does not flow out to other ground or surface water bodies. A second consultant, Associated Earth Sciences, Inc., retained by the planning department to conduct an independent review of the permit applicant’s evaluation, told the county, “It is clear that the Camassia report does not provide the information necessary to evaluate if the use of the proposed well will have an impact on nearby regulated surface waters or impair other nearby senior water rights.” Mr. Lindsay, the author of the Associated Earth Science evaluation states, “…it should also be noted that the currently accepted regulatory standard with regard to impacts to a regulated surface water body is one molecule.”
Washington State Department of Ecology insists it must consider even the most “miniscule impacts of a new water right application, before approving a new water right.” This interpretation, which is defined as the “one molecule” standard, establishes that de minimis impacts constitute impairment, whether or not they are observable or significant. Adoption of this standard means Ecology must deny all applications that appear to have a negative effect on ground water, surface water and instream flows. Because of these impractical standards, Whatcom County’s new rule forcing hopeful property owners to submit a very expensive hydrogeology evaluation of a proposed well should be labeled “mission impossible.”
The county knows they don’t have the groundwater data needed to conduct a review of building permit or subdivision permit applications. Further, it is obvious to anyone who follows Whatcom County Council meetings that they are not one step closer to finding a reasonable or rational solution to this problem. Since implementing the initial Emergency Moratorium on exempt wells, they have done nothing.
In order to bring a measure of common sense to state water policy and law, our government must first acknowledge the human right to water. Unfortunately, neither state nor local government can fix this problem until the governor and state legislature admit our current piecemeal water policies are a major contributing factor to this stalemate. We have created a deadlocked public policy that disproportionally impacts hundreds of thousands of state residents who are living in poverty and/or in unincorporated areas that lack access to public water and sewer systems.
It is time for the state of Washington to adopt legislation that formally recognizes the human right to water. Yes, we love our salmon, the Salish Sea, our breathtaking wilderness and meandering rivers. It is the unique beauty of this area that brought our ancestors—and subsequently several million transplants—here to build their homes and businesses.
But to blame declining salmon populations solely on low instream flows is ignorant. As someone who has studied and worked on water issues at both the state and local level for more than two decades, I can assure readers that the decline and Ecological Society of America listing of wild Nooksack Chinook salmon and other fin fish is the result of a complex web of environmental sources, not just seasonal low-flow instream flows. In part, recovery hinges on providing adequate instream flows, including supplementation when necessary, to help ensure fish habitat. We have always had low flow periods during summer and fall, yet somehow, the fish have survived and managed to get upstream to spawn. Do we abandon ongoing efforts to restore salmon habitat? Of course not. But studies published by Lummi Nation, the Nooksack Tribe, NOAA, Whatcom County, The Pacific Salmon Commission, and others indicate that up to 90% of salmon mortality happens in Puget Sound and the Straits of Georgia.
I grew up in unincorporated Whatcom County and was brought up to cherish our forests, beaches, tidelands and wildlands. My father built our home on property he purchased in the 1950s, complete with a well and septic tank. We were taught to use water responsibly and avoid putting anything into the septic tank that would interfere with its normal operation. Eventually, my father become a Water District Commissioner and, with the help of our neighbors, set up a water district to provide water for our rural enclave. Having grown up here, I want to protect our resources just as much as Eric Hirst, Wendy Harris, Jean Melious and David Stalheim. But I want to protect our resources without destroying our traditional rural economy or uprooting families who have called unincorporated Whatcom County home for generations.
In 2012, the state of California adopted AB 685, becoming one of the first states in America to recognize the human right to water. AB 685 guarantees California residents, regardless of color, immigration status, gender, level of income, remote rural location or state of homelessness, the right to safe, affordable water without discrimination. The new law specifically requires state agencies to consider the human right to water in all public policy, rule making, programming and budgetary activities. For more information, please see, The Human Right to Water Bill in California An Implementation Framework for State Agencies. The Implementation Framework helps state agencies with the fulfillment of the law’s requirements by requiring them to prioritize water for personal and domestic use.
California now enjoys, through these new laws, a comprehensive understanding of the water challenges facing the state. The public finally has the tools it needs to begin the hard work of finding real, sustainable solutions to the thorny issues of water quality, supply, and quantity. They no longer need to sacrifice or torment their rural or economically disadvantaged citizens in order to accomplish those goals. Since implementing this law, human rights standards define the substantive criteria agencies must consider prior to implementing new programs and rules.
Whatcom County is not California. We are blessed with an abundance of renewable water resources. Most years, we have phenomenal snow packs and beyond that, we have a community that is willing and able to work together as a diverse group of stakeholders to find viable, workable, long-term solutions to our water management problems. In order to ensure we have balanced law, the public needs tools to provide them with meaningful opportunities for public participation in local water policy decision-making. Let’s make it happen. Even if it means replacing some of our current elected officials with individuals who are truly willing to work with, instead of against, us.
“Water, like religion and ideology, has the power to move millions of people. Since the very birth of human civilization, people have moved to settle close to it. People move when there is too little of it. People move when there is too much of it. People journey down it. People write, sing and dance about it. People fight over it. And all people, everywhere and every day, need it.” Tim Gopeesingh, Trin. & Tobago Minister of Educ.,