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.,
Comments by Readers
Larry Horowitz
Mar 15, 2017Elisabeth, thanks for your insightful and well written article and for sharing your family’s story as it relates to water. I have no expertise in this field, so all I can offer are questions.
Enacting a human right to water bill is certainly intriguing, but it forces the question about limits to growth. Do such limits exist? If so, what resources are likely to become genuine growth constraints? Is water one of these resources? At what point does human population growth overwhelm an area’s resources?
Is it possible that even if such a law was adopted, it might be impossible to be honor during times of extreme drought?
Eli Mackiewicz
Mar 15, 2017Rainwater Harvesting for Sole-Source Single-Family Residential Development.
Legal.
Ecology-Sanctioned.
Reasonably Cost-Effective.
Anyone who tells you differently either 1) doesn’t know the law or 2) doesn’t understand the technology.
Ecology funds training to teach professional engineers how to design, permit, and use rainwater to provide 100% of potable and non potable uses. They leave the permitting decisions to “the jurisdiction having authority”, which in this case is the Whatcom County Health Department. Its been legal and permitted in the San Juan Islands for almost a decade.
Does it cost a little more? Sure, but not more than deluxe granite countertops. Priorties, people.
Might you have to give up the five acre lawn, irrigated with spinklers? Probably. But, think of the time and money savedn not mowing that lawn. And, you can still grow that 5,000 sf of veggies in the summer, if you’re willing to get a slightly bigger tank and go with water-conserving indoor and outdoor fixtures. Or, you know, you can just let that lawn turn gold in the summer - it’ll return.
Would you have to call in a water truck to fill your tank during drought years? Maybe, but its better than your well going dry.
Conversation welcomed. Its time to stop this urban vs. rural **ssing contest, seriously. We’re all on the same team, right?
Larry Horowitz
Mar 15, 2017Thanks Eli. I see that RainWater Collection (RWC) is now being used in Skagit County as well. Some interesting information on the RainBank site:
https://rainbank.info/skagit-county-permits-rwc-sole-source-water
“The Department of Ecology has conducted studies on rainwater collection and its effect on in stream flow rates and has concluded the practice to be BENEFICIAL to in stream flow rates.” (Emphasis added)
John Servais
Mar 15, 2017Eli,
No one said anything about granite counters. This is a subject with strong feelings on both sides. And strong beliefs. Please, let us not slip into being condescending.
Regarding rainwater. Should we require all city households to also depend on rainwater? Seriously - there is not enough. Is this not applying a double standard between city and rural?
This site is considered liberal and our conservative and rural friends tend to not comment here because they perceive they will be talked down to, held to different standards of conduct, and insulted. We need to all actively welcome diverse values and the thinking that comes with that. Lets look for practical solutions that work for all and may involve a little bit of compromise by all.
Elisabeth Britt
Mar 15, 2017Rainwater collection is one option. However, USDA will not provide funds to build or purchase a home with a cistern. The VA stopped approving loans for homes that rely on cisterns or rainwater catchment systems in 2011. It is also very difficult, if not down right impossible to finance a home with a cistern through FHA. These are three conventional home loan programs that many low-income and average income families depend on to build or purchase a home. There may be private money available. Those loans are known as Hard Money loans. Although the WA State Department of Financial Institutions prohibits hard money lenders from financing primary residences in our state. And for good reason, they are considered “sub-prime” loans. Or, perhaps, a portfolio loan through a state bank or credit union, which is more expensive and can add up to an extra $150 per month to a house payment. By the way, Freddie Mac and Fannie Mae won’t buy loans for homes that depend on cisterns. They consider them high risk, because if the owner defaults on the loan, they are very hard to sell.
Larry Horowitz
Mar 15, 2017John, I agree about the condescension, but I also see rainwater harvesting / RWC as an option for county residents for whom city water is not available and who may have a difficult time obtaining a permit for a well. I see this as a limited recommendation primarily for those who are affected by the Hirst decision, which at least for now, does not include city residents who have access to city water. (Or at least I did before reading Elisabeth’s post which did not print until after I posted.)
Eli Mackiewicz
Mar 15, 2017Commenters and other readers,
You are fair in your assessment. Apologies for any condescension. It was not my intent, but was indeed the effect. Please allow me a chance to clarify and (perhaps) take my foot out of my mouth.
John, you operate a valuable public service with the blog. I do not wish to stifle any other commenter’s speech and certainly mean no insult to others. The word choice in my original post was bombastic and ill-considered, which I acknowledge and will edit. That said, I think you have interpreted my statements a bit unfairly. In no way do I suggest that anyone “require” rainwater harvesting on rural properties. Instead, my view is that this should be “promoted”, “allowed”, “encouraged” or even “incentivized”. And, I would support this strategy everywhere, including and especially within cities. I don’t feel that represents a double-standard as you suggest. I also support desalination in coastal areas as another innovative solution to our water supply problems in our county, but that’s a topic for another day.
Elisabeth, you make a accurate and cogent point. I didn’t mean to gloss over the challenges associated with rainwater systems. However, I wonder if it is wise to base long-term natural resource planning decisions on short-term policies of a single industry (lending)? Banks have had similar concerns about all sorts of new and emerging features, from septic tanks to swimming pools to solar panels, and those issues have been worked out as part of a growing and evolving relationship between developers and lenders. I see an opportunity to create a win-win outcome here, wherein homes are still built in closed basins but wells are only the option of last resort. Is there not a compromise somewhere?
To both (and all) - I actually support additional building in the rural county areas, a point of view that puts me at odds with many whom you may label as “liberals”. I just feel that buisness-as-usual is not working to protect the commons, so we’ll have to work hard at finding new and acceptable solutions. When we build new homes, in new areas, we should use new strategies to lessen their impact when feasible and reasonable solutions exist. I don’t see why we take a development strategy from the 1820’s and attempt to shoehorn it into the realities of the 2020’s when other, better, options are available to us.
I suppose I’m just more interested in talking about solutions than falling into arguments about the source of the problems. Thanks for reading and this opportunity to participate in public discussion of this important and vital local issue.
-Eli-
Eli Mackiewicz
Mar 16, 2017I wasn’t able to edit my first comment, so here’s the cleaned up and more productive version.
Rainwater Harvesting for Sole-Source Single-Family Residential Development.
Legal.
Ecology-Sanctioned.
Reasonably Cost-Effective.
Anyone who tells you differently either 1) doesn’t know the law or 2) doesn’t understand the technology.
Does it cost a little more? Sure, but not more than deluxe granite countertops (edit: this was a poor example. Instead, I should have said “any other amenity or upgrade that you might include as part of a new home construction project”). Priorties, people.
Might you have to give up the five acre lawn (edit: or a lawn of any size, for city folk), irrigated with spinklers? Probably. But, think of the time and money saved not mowing that lawn. And, you can still grow that 5,000 sf of veggies in the summer, if you’re willing to get a slightly bigger tank and go with water-conserving indoor and outdoor fixtures. No matter your water source, it may be time to seriously consider if outdoor irrigation using surface or groundwater is compatilble with summer droughts and our changing weather patterns.
Would you have to call in a water truck to fill your tank during drought years? Maybe, but its better than your well going dry. Today’s home desigers and civil engineers have the tools necessary to size a system - including inflow/outflow metering components - that may make this a moot point anyway.
These questions (cost, outdoor irrigation needs, adequacy of supply) ae common sources of hesitancy to adopting rainwater harvesting, so I have attempted to phrase them in ways that relate directly to our issues in Whatcom County. Conversation welcomed. Its time to stop this urban vs. rural bickering, seriously. We’re all on the same team, right?
Eric Hirst
Mar 16, 2017I agree with Elisabeth Britt that we can’t “blame declining salmon populations solely on low instream flows.” However, low flows and the associated high water temperatures and low levels of dissolved oxygen are definitely harmful to salmon and other fish. Therefore, protecting instream flows is a key component of salmon-recovery efforts and is also supportive of tribal treaty rights.
I also agree that “our current piecemeal water policies” interfere with the design and implementation of long-term solutions to our water-quantity problems. Many people argue that rural residential wells account for only small portion of total water use. However, nobody knows how much water these households actually use because we have virtually no data on that subject. State law allows rural households to withdraw up to 5,000 gallons/pay, which when multiplied by the thousands of such homes in Whatcom County adds up to a meaningful amount. Even if such homes use only a little water, they contribute to lower stream flows and merit attention.
Finally, I agree that the county has refused to address the long-term water supply/demand issues facing Whatcom County for years. Although the so-called Hirst case has been underway for six years, the county cannot tell us how many rural residential wells are now operating and where they are. It cannot tell us how many more wells might be drilled over the next 20 years. And, as far as I can tell, the county has done no work on mitigation. I firmly believe that it is possible to protect senior water rights, restore instream flows and allow rural residential construction. The key is mitigation: creating water markets, requiring use of high-efficiency water fixtures, limiting (or banning) outdoor water use during the summer, and limiting impervious surfaces are some of the options the county should be examining. Doing so would address what Britt calls “impractical standards” and point the way forward to a sustainable water future that addresses human and environmental water needs.
Tip Johnson
Mar 16, 2017Indeed, the County has some work to do. It may be revisions to state statutes, but it will also require changes to local land use code. Jurisdictions have the responsibility to regulate land use in the public’s interest and enjoy the police power of zoning to designate such uses.
Despite the Hirst Decision, property owners have a constitutional right to a reasonable use of their property. Zoning determines what is reasonable. Permissible land use applications maybe reasonably conditioned, but should not be denied. If the zoning permits residential use, and the jurisdiction does not provide a public water supply, a well is the only practical alternative and therefore logically ancillary to the land use designation.
Should owners prevail in asserting this right, and the Hirst principal remain in force, the cumulative difference between property values developable and not could amount to a huge liability against the County. Appraisals can easily produce these numbers and are much cheaper than hydrology studies. Courts are generally protective of basic property rights.
Passing the burden of determining hydrology to private property owners is not a reasonable condition on development and won’t produce the results needed to provide a comprehensive framework for rational land use management.
The County should rezone any lands lacking adequate hydrological assurance to eliminate housing and other uses requiring water as permitted uses. Though unpopular, it is not a takings to change zoning to comply with public need. It is a taking to designate a use and then deny it.
A rezone would give the County time to develop the necessary comprehensive hydrology, consider where they will provide public water supply to support housing, and promulgate standards for alternatives such as catchment or delivery systems to support the permitting of designated uses.
It’s called planning.
As for the salmon, we will probably need to get the five Exxon Valdezes worth of leaked oil off of our roads and out of our streams if they are going to survive. And better agricultural practices. But that’s a different elephant in the room.
David Camp
Mar 16, 2017In Skagit County there was a massive down-assessment of all properties without water rights. As all these were rural, the net effect was to increase the tax burden on other taxpayers, urban and rural, but mostly urban. I wonder how much the Whatcom COunty Assessor down-valued properties without a water right? Because whatever the amount, all other property owners have to make it up.
As Elizabeth expounds elequently, a particularly troublesome aspect of the water issue is the absolutism and lack of practical can-do intelligence being demonstrated in the power structure. Why, for example, is the only type of household well being considered a huge 5,000 gpd volume? Practical housing designs and practices can reduce water use to one-tenth of that - particularly with a grey-water system separate to the septic system. Or outhouse - the original composting toilet with zero water use.
Here’s a free idea - rising sea levels will require rebuilding and fortifying dikes in Whatcom and Skagit COunties on a massive scale. Why not quarry the rock for the dikes strategically to create tanks and reservoirs to store water in the wet season and release in the dry?
At least Doug Ericksen tried to get some legislative fix to this problem - how on earth are we to deal with the increasing climate chaos in a practical and effective manner when as a society we can;t even begin to figure out how to deal with water issues without playing politics and abdicating all judgement in favor of absolutism?
Tip Johnson
Mar 16, 2017Servais may be right about the urban/rural double standard. Hydrology management should be comprehensive. He’s also right about catchment not being enough. However, it’s not far off. My roof produces probably 36,000 gallons of run-off annually (1500 ft2 projected area x 3 ft of rain = 4500ft3). Assuming 3 occupants and 40 GPD/occupant, my annual household use would be 43,800 GPA (40 x 3 x 365). The difference is only 7,800 gallons.
The difference this approach could make may even be far greater in urban than rural applications, but needs to be thought through. Reducing draws from the reservoir makes more water available for stream flow in the Nooksack. Most of my roof’s production disappears down approved stormwater conveyances that do nothing to enhance stream flows, instead substantially contributing to destructive peak events that notoriously destroy salmon nests.
Fisheries enhancement relies first on clean water, then on reducing peak events and increasing seasonal low flows. Low flows occur when it doesn’t rain and are cause by poor watershed management. Studies indicate that watersheds become compromised after 15% impervious surface. We are well beyond that in urban areas. Those who work for better water management also generally promote urban infill, so are we making the problem worse in town when we try to improve it in the country?
We could probably greatly reduce urban impacts by allowing urban catchment and gray water diversion for landscape and garden, and promoting slower releases and more groundwater infiltration.
(Note to self: 4,500ft3 tank = 15’ x 15’ x 20’. Whoa! Probably not practical to grab it all, just sayin’)
Elisabeth Britt
Mar 16, 2017Great discussion. I’d like to thank each of you for taking the time to stop by NW Citizen to discuss an array of potential alternative drinking water sources for both rural and urban residents. One of the challenges we face as a community and state is the complexity of existing regulations. In June of 2013, the Washington State Department of Health, (Office of Drinking Water, ODW) published a paper titled “Alernative Water Supplies Draft Discussion Paper” for the Drinking Water Advisory Group. The paper discusses the current ODW approaches, restrictions and the ODW’s opinions regarding the use of alternative sources of drinking water including: rainfall catchment, trucked and hauled water, desalination of sea water using reverse osmosis, temporary water rights, interruptible water rights, purchased water rights and bottled water. Here’s the link to the handout.
Yes, the Department of Ecology has approved the use of rainwater catchment systems for individual rural homes in certain circumstances. And, while the ODW is in theory, supportive of rainwater catchment systems, they also have serious concerns regarding the contamination that takes place when rain water is collected from the surface of a roof. In fact, they require the owners of rainwater catchment systems to hire a certified water operator to operate the catchment system. ODW also requires property or water system owners to demonstrate that they have a reliable, steady supply of water; and, the managerial, financial and the technical capacity required to operate the roof top catchment treatment facility.
Yes, salt water dsalination plants are being used in the San Juan Islands to provide a reliable, uninteruptable source of drinking water for some Island communities. Unfortunately, these systems are not available to everyone. Waterborne marine contaminants, bacteria and pollution will prevent a number of communities from building or using Reverse Osmosis systems. But every day, we stumble upon articles about new technology that is being developed to help people gain access to affordable, clean, drinking water. There is an engineer at the University of Arizona at Thunderbird, who recently developed solar panels that draw moisture from the air and convert it in to pristine drinking water. If it can work in arrid, desert environments, perhaps it can work in humid, moist climates like the Pacific NW.
Once again, it is essential for members of the community to come together to discuss potential solutions for our current water stalemate. Each rural property and drainage basin is unique. So, it is up to us to ensure that planning and development services, state regulatory agencies and rural landowners have the ability to design custumized systems that can provide a stable, uninterruptible source of clean drinking water for each proposed home or business. Systems that protect the things we have come to treasure, like salmon, wildlife, wild spaces and our beautiful rivers and streams. But it may be easier said than done. Especially if local, state and federal home loan lenders can not (or will not) provide funding for these homes, due to overly restrictive or outdated underwriting guidelines and regulations. Perhaps we can form a community bank or a crowd funding source to assist people who do not have the financial strength to pay 100% of the cost of building their homes.
Jay Markarian
Mar 17, 2017Ms Britt - I was at the recent County Coucil meeting and saw first hand how the Council has recognized that they may have jumped to fast into the moritorium and supported a motion allowing the 250 people caught mid project to continue in getting water rights. I also read the Vedder Mtn documents and noted how the Council had great difficulty in understanding how a liciensed proffessional in the State of Washington can be challenged by another and that the applicant has to pay for it, highly irregular. I am a geologist and have had to do hydrogeologic investigations with the US EPA and found the rebuttal report by Camassia lacking in so many ways and was left wondering if there is a conflict of interest problem. The panel of experts invited to the meeting by the County Council were also looking at the science used in the Hirst decision and this to is being challenged as to it appropriateness/validity. In addition one gentlemen discussed breifly how water rights was being weaponized. I see that ever so clearly in the Small Water System that I am part of as we struggle to craft the various Service Area Policies. In short, the Hirst decision basis is crumbling but the discussion is still good, we do need to plan our regions water reseources. At this point the real issues and the hard work to address the need for a water resources plan should be the rallying point and the Council seems to be reaching this same conculsion. Two thumbs up to you for articulate and well written discussions.
Consider the collision of two lines of thought, the Sanctuary City amendment and the Moritorium on Drilling. Stop the ability to grow but invite undocumented aliens to seek sanctuary here. The sadest thing you can do for undocumented aliens is give them false hope that the Bellingham area is a place to live in and thrive in. It is a ecomonically robust community that is best suited as a sanctuary city not one of no growth.
Elisabeth Britt
Mar 18, 2017Jay, thank you for sharing your observations about the County Council’s response to the Hirst decision with us. I was also deeply concerned after reading the rebuttal report that was submitted to the county regarding the Camassia hydrogeologic evaluation submitted on behalf of the Vedder Mountain permit. And, I’ll admit it, my head hurt after listening to county staff and the county’s new water attorney, refer back to Hirst, in answer to every query by some of the council members.
The Vedder hydrogeologic evaluation snaffu will have a chilling effect on all future building permit applicants. I don’t know any property owners who can afford to spend thousands of dollars on a hydrogeologic evaluation, (and, then a second hydrogeologic evaluation ordered by the county that is designed to derail the first evaluation). Just to have their permit application returned to them by PDS with a note attached that says: in our opinion, your request to drill an exempt well violates the Department of Ecology’s One Molecule Standard. Therefore your building permit application is denied. It is impossible for a permit applicant (any permit applicant) to prove beyond a shadow of a doubt that their proposed exempt well (or, even a proposed alternative water supply system) won’t displace one molecule of water that would otherwise be in transit at some point during the next thousand years to ground or surface water. Even if it’s in Canada. It’s mission impossible. Nor can the county conduct an independent, scientifcally-based hydrogeological evaluation to determine if a proposed well will potentially impact surface water or instream flows. They don’t have the data they need to conduct detailed studies or make informed decisions. I have never seen a more dysfunctional land use ordinance adopted anywhere in the state.
The United Nations tells us that everyone has a human right to water and sanitation services that are immediately accessible within a short distance from; or, in the immediate vacinity of their home. They also have the right to a water supply that is continuous and sufficient for personal and domestic uses. One of those domestic uses includes fireflow. A rural home located in a remote part of the county that depends on an exempt well must have an adequate supply of water to extinguish a fire, should a fire occur. That’s state law.
Yes, the right to water has become weaponized. Without water, people can not live in remote rural areas. Regrettably, it’s low-income families and rural businesses, the elderly, the young, the disabled and in Whatcom County’s case, newly arrived immigrants who suffer the most under the Hirst decision. Asking rural citizens to move into town, just to satisfy the whims of a minority, prevents residents from living in an established neighborhood close to other members of their community, their place of worship, school or employment. I do hope the state legislature provides a fix. Otherwise, our tradtional rural economy and established rural lifestyle, which is also protected under the GMA, will be extinct.
Jean Melious
Mar 29, 2017In Washington, the state owns the water. Like other western states, Washington has established a system of prior appropriation, or “first in time, first in right,” that the Department of Ecology implements. Since 1945, groundwater has been subject to prior appropriation.
So the right to use water is based, not on property ownership, but on “first in time, first in right” and the showing of a “beneficial use.”
Some large landowners have the right to use little or no water (ask Whatcom County farmers, many of whom lack legal water rights). A property owner may have a stream that runs right through the property, but no legal right to use the water, because that right belongs to someone else. Similarly, a property owner may have groundwater running beneath the property, but no right to use it because that right belongs to someone else. Water rights are not automatically part of property ownership, and a property owner’s inability to obtain the right to use water that has already been allocated to senior water users is not a “takings” issue.
We may all agree that prior appropriation is not the system of water allocation that we would prefer. Its application to Whatcom County, however, is hardly a “weaponization” of water rights. The Supreme Court, unsurprisingly, found that (1) prior appropriation applies to permit exempt wells, and (2) prior appropriation applies in Whatcom County.
What this discussion makes very clear is that the real estate industry and local governments have failed to inform their customers and constituents of water scarcity in the County, and of how that can affect property ownership in basis where water is already fully allocated. Look at the difference in the price of agricultural land with and without water rights—farmers have known this for a long time.
Here’s the Growth Management Hearings Board’s suggestions to Whatcom County about how it can make water available for new water users, for senior water rights users—including farmers and public water associations, whose water has been donated to junor permit-exempt well users under Whatcom County’s status quo—and for a healthy environment. What’s wrong with these ideas? Why doesn’t the County roll up its sleeves and get to work?
Final Decision and Order, Case No. 12-2-0013, June 7, 2013, page 43.
Elisabeth Britt
Mar 29, 2017Jean,
Thank you for taking the time to share your thoughts with us about potential solutions to Whatcom County’s rural water conundrum.
Please know that I am acutely aware that “water rights” are not a “property right” in the state of Washington or in any of the other states where water appropriation is governed by western water law. Nor do I recall claiming otherwise in the article posted above.
That said, disadvantaged communities, including residents of some impoverished and unincorporated communities, do not have the income or community resources to be able to absorb the financial and adverse health impacts of inadequate access to an affordable, uninterruptible, clean supply of safe drinking water.
In California, another state that appropriates water according to established western water law (and riparian law), AB 685 merely requires state agencies to identify populations who are facing water access challenges and to prioritize their ability to gain legal access to clean, affordable water, while taking steps to identify the underlying causes that are preventing disadvantaged communities or populations from gaining access to the human right to water.
I ‘m not an attorney. So, I am not attempting to interpret or practice law in my article or in any of my responses to comments posted above. As a former legislative employee, I understand that zoning is the preferred method for determing if a home or business can be built on a particular parcel of land.
However, as a former WRIA 1 Planning Unit Member, I understand that Whatcom County does not possess the scientific data it needs in order to be able to comply with the Supreme Court’s Opinion that the County, rather than Ecology, is required to conduct a water availability evaluation before approving or denying a building permit application. So, what do they do in the meantime? Punt? Deny every application that is submitted to PDS, until they find the funds they need to complete water availability determinations?
Everyone, regardless of where they live (urban v. rural) or their individual source of drinking water, (exempt well v. municipal or non-municipal supply) violates the Washington State Department of Ecology’s “one molecule” standard, every time they turn on the faucet in the bathroom to brush their teeth. So, what’s the solution? Do we hang up a “no vacancy” sign next to the “Welcome to Whatcom County” sign? Or, should we start issuing eviction notices to anyone who moved to Whatcom County after 1985? (Whew! I’m safe!)
Honestly, how ridiculous does this issue have to become - before we can agree as a community, that we have alternative solutions available to us to address potential future water shortages? Alternatives that provide abundant water for people, irrigation, ESA listed salmon, other threatened finfish, wildlife and recreation?
Jean Melious
Mar 29, 2017Hi Elisabeth,
Water shortage, and its relationship to disadvantaged communities, is an interesting issue. I don’t know if there’s much research on the issue. Are all of the new developments being built in Whatcom County, relying on groundwater, intended for disadvantaged communites? Tribal rights to fish in usual and accumstomed fishing grounds in the depleted rivers of Whatcom County date back to time immemorial—does that matter, when we think about water use and the impacts of unmet instream flows? When new development takes water from senior public water associations, is that OK because senior public water associations only serve rich people?
Disadvantaged communities in areas served by municipal and public water have to pay for water service. Permit-exempt wells get “free” water. Should we think about issues of equity between urban and rural households? Why is there an obligation to provide “free” water to people, so long as they live outside urban areas? When junior water users take water from a senior publicly-owned water right, such as an instream flow, is this a rational public subsidy? Or might there be a better way to address economic distress?
I agree that the County does not have information on groundwater. That is the result of a series of conscious policy decisions. The County chose not to develop this information, and has continued to choose to fund litigation instead of addressing water issues.
Ecology too has chosen not to address water issues in Whatcom County. As I understand it, this is based on promises made way back in the 1990s, when Ecology tried to do something about widespread water poaching in Whatcom County and hit political backlash. With its back against the wall and its budget before a hostile legislature, Ecology promised that it would not enforce, and a lot of people have made money in reliance on that old promise. As a friend of mine, who has lived here far longer than my mere 20 years, once said,: “A lot of people made a lot of money out of development in Whatcom County, and everybody sees that and wants to keep doing it.” That’s what makes the world (including Ecology) go around. Not a complaint, just a fact.
The discussion of the fact that water rights are separate from property rights responded to Tip’s assertion that the County has a constitutional obligation to donate senior water rights to junior water users. I don’t agree. The state could, of course, eliminate the state law of prior appropriation—and how would senior water users respond to that? Change, in any direction, is hard.
David Camp
Mar 30, 2017Thank you all for sharing your wisdom on this difficult matter.
Jean, I have a counter to your argument distinguishing the “free” water rural people draw and the “paid-for” water city and water district people draw. I think it is a false distinction - what city people pay for is the infrastructure to collect, store, and deliver water - the water itself is “free”. How is this in any way different to a rural property owner who must pay for the infrastructure to draw and deliver his water? In most cases drilling a well, and buying and maintaining a pump cost more on a household basis than city water, where the costs are spread over all households. I say this as someone whose water line was broken by a frost heave last winter and had therefore no running water for two months til the ground thawed - and repairing the line was definitely not “free” - it cost just under $1,000 to get an excavator in and repair the line.
I think the distinction you make is not only unreasonable, it appears to be discriminatory against rural households.
Jean Melious
Mar 30, 2017David, you have a well and a water right, and the Hirst case is only prospective. Thinking about future water users, I was pondering whether the best way to address poverty and high housing costs is to allow new water users to take water that already belongs to existing water users—like you, potentially. If water subsidy is the best way to address housing and poverty issues, maybe we should subsidize urban water users as well. Or maybe not. Maybe there’s a good reason to use existing water users’ rights to subsidize other water users in rural areas.
But we don’t discuss these issues—we just let the status quo continue, and the status quo is not supportable into the future. The recently-released Nooksack River Basin chapter of the Northwest Indian Fishery Commission’s 2016 “State of Our Watersheds” report ends with this paragraph:
“Increasing air temperatures, increasing winter flows, decreasing summer flows, and increasing sediment loading and transport with continued climate change will add to existing legacy impacts, further threatening salmon survival and recovery in the Nooksack River watershed.”
Will addressing permit-exempt wells solve this? No, of course not. But it’s once piece of a larger conversation about how we’re going to adapt to current water scarcity—“existing legacy impacts”—and Climate 2.0.
Elisabeth Britt
Mar 30, 2017Good morning Jean and David and thank you for your comments. I have a string of meetings this morning, so I will not be able to fully respond to your comments until later today. Jean, please know that I have read the 2016 “State of Our Watersheds” report. And I believe there is truly only one way to address the unpredictable effects of future climate change. Increasing winter flows (high water) and the increased sediment loading that destroys spawning beds can be controled in part by building off channel storage, in locations where it is appropriate to do so. Having off channel reservoirs allows us to capture excess water (including a percentage of flood water) and increases habitat for salmon. I have been following the efforts of the tribe, state and NOAA to protect the ESA listed Nooksack Spring Chinook . A 2005 study released by the Pacific Salmon Commission acknowledged that recovery of the ESA listed Nooksack Chinook is impossible, as long as the Canadian/American fishery is catching the majority of returning adults. In fact, they reported that 90% of salmon mortality is taking place in the Straits of Georgia and waters off the Pacific NW coastline.
The state of Washington, in partnership with the tribes, captured and tested Spring Chinook in order to identify native wild fish via DNA testing. To make a long story short (only because of limited time) the precious chinook were used to produce fertilized eggs. Some of the salmon fry were raised at the Washington State Fish Hatchery in Kendall. When the fry were old enough to be returned to the river, DFW shipped them to Machester, where NOAA has a marine facility. The fish were raised to maturity at the NOAA facility. Eventually, a couple of hundred thousand fry were released into the river. If memory serves me correctly, about 89 fish returned to the Nooksack. Most years, the U.S. doesn’t release any data about returning ESA listed fish counts. The field in the report is listed as N/A. In otherwords, Jean, we have a tremendous amount of work to do before the ESA listed Chinook can recover. That is, if they can ever recover.
The invisible elephant that most writers and attorney’s ignore while discussing salmon habitat, ESA recovery and instream flows is the fact that we live in close proximity to an international border. The Federal government has an obligation to ensure that the tribes (all of the NW tribes protected by the treaties) have access not only to their usual and accustomed fishing and gathering grounds, but also to a healthy, thriving population of fish that allow the tribes to not only feed their own people, participate in time honored ceremonies, but harvest fish commerically, in order to make a living. In part, the USA failed to protect the ESA salmon through indifference and neglect. Yes, those are strong words. In part, the USA was hampered from renegotiating Nooksack Chinook harvest limitations, due to the rigidity of the fishing treaty between the US and Canada.
The U.S.A.‘s authority ends at the Canadian border. Yet, our Canadian neighbors withdraw surface and ground water that recharges our surface and ground water in Whatcom County. That said, let’s go back to discussing the tremendous negative impact that a proposed exempt well is really going to have on salmon habitat, ESA recovery and instream flows.
This community has been working in partnership with our tribal neighbors to restore habitat, conserve water and to form a scientifically based understanding of the complex issues that are preventing the Wild Spring Chinook population from recovering. Lawsuits and bickering will not help the fish. Nor will they be able to arrest the potential effects of climate change. Even though at this point, we are not 100% certain what those changes will be. What we do know is that off channel storage can help protect habitat from high water/flood events, by diverting water from the river to a carefully designed system of off channel storage reservoirs. If Eric Hirst’s assertion that our Cascade glaciers will eventually melt is true, then storage will be the only way we can ensure that fish, wildlife, people and farmers have an adequate supply of clean water to meet their future needs.
It is so frustrating for me to attempt to write about an issue that we all care about, when very intelligent people refuse to see the forest for the trees. If, in fact, the ESA listed Nooksack Salmon are extinct. (And, if that’s true, my heart is also breaking). Then the federal government has an obligation to make reparation payments to the tribes. Is that the solution I want? Of course not. For those of us who have been working on water issues for most of our adult lives, the worst thing that can happen is losing the fish that we have been fighting so hard to save. Now, how do a couple of hundred exempt wells fit into this picture? Are they really the only thing that is standing between recovery and extinction? Hardly.
It’s time to implement a holistic water resource management plan. And the federal government should be paying the lion’s share of the expenses. After all, they allowed our Canadian neighbors to over fish our endangered chinook for years.
That said, we can spend billions of dollars to attempt to address and correct habitat issues. (And, please know that we have spent large amounts of money to restore habitiat). We can de-populate the county. We can hang a no tresspassing sign at every point of entry to Whatcom County. And despite our best efforts to return Whatcom County to it’s once pristine condition, the ESA listed wild Nooksack Chinook may not survive. And that, once again, is heart breaking. For the Lummi Nation, for the Nooksack and for the thousands of Whatcom County residents who have invested thousands of hours of their time and expertise to help struggling fish populations recover.
We can talk about social justice issues when I return this afternoon.
David Camp
Mar 31, 2017Awesome discussion. Jean, yes, I agree, equity requires sharing of water rights. How many households actually draw 5,000 gallons per day? With minimal conservation measures, most households can use less than 1000 gallons per day - with grey water systems, rainwater storage, etc. household water use can be reduced even further. I’d be totally happy to “share” 4,000 of my 5,000 gpd allocation with other users and I’m sure most would also. And as you note, “exempt” household use is the lowest and the least of the water users in the County - it’s agriculture that uses the most water and this is the thorniest issue to address in the medium to long-term. IMHO local agriculture should be prioritized - we need a healthy local farm economy. How to do this while ensuring the salmon have enough cool water to return and breed is the 64k question.
As Elizabeth notes, overfishing is a problem - if I recall correctly, the Fraser river chinook also returned in miniscule numbers last year - but a bit of a red herring (forgive the pun) - if we draw too much water from the Nooksack, even if commercial fishing were ended tomorrow, the surviving salmon would be unable to breed anyway.
Yes water storage on a large scale as in California is the obvious solution. And with sea level rise threatening much of the low altitude farmlands of the County over the next 100 years, perhaps there is an engineering solution that can mitigate both problems. Building up the dikes requires massive amounts of quarried rock - why not quarry so as to create reservoirs? In California, dams and reservoirs and irrigation districts have been in existence since the 1890’s to store and channel the Sierra snowmelt to (mostly) agricultural users. Why not here also? A side benefit is electrical generation - one irrigation district I’m familiar with with has 70% cheaper electricity than PG&E’s - a massive benefit to residents besides the irrigation water.
This is an international issue - the Nooksack and the Fraser are parts of the same delta system - building up the dikes in Whatcom County won’t work unless they build up the dikes in the lower mainland of BC also! Fishtrap Creek rises in BC - and because the Nooksack used to flow into the Fraser, it would not surprise me if there were groundwater flows still going north under its old channel. And the salmon know no border. So yes federal involvement is necessary in managing the fishery (already subject to treaty), the ground and river water, and in the long term, a managed response to sea level rise. But managing our local water resource equitably is a local issue which requires work - open discussion, airing of conflicting views, and fair management by local government which is the County. This “one molecule” thing seems to me to be an abdication of the proper job of government in favor of useless absolutism. It’s not a way forward.