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Who’ll Stop the Raid

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While the Lake Whatcom Water & Sewer District races to expand its infrastructure to serve sprawling development on the north shore of the lake, the King County Superior Court, Thursday, struck down the egregious legislation that allowed them, and municipalities, to flaunt century old water laws.

The court ruled that you can only get a water right by actually putting water to beneficial use. Paper water rights are not enough to allow their holders to increase their use of water where senior rights, and environmental issues such as in-stream flows, can not be met.

The case, Lummi Indian Nation, et al. v. State of Washington, et al., reversed the state legislature’s efforts, promoted by the Building Industry of Washington and other development interests, guided by our own Kelli Linville, to redefine municipal water suppliers to include private developers, and grant them special rights previously reserved for public entities.

King County Superior Court Judge Jim Rogers also went on to reiterate an earlier ruling that water right certificates issued to developers, water districts and cities, based on the size of the pumps and pipes in their water systems rather than on the actual amount of water they had put to beneficial use, were invalid. Judge Rogers found the attempt by the legislature in 2003 to circumvent the 1998 ruling of the Washington Supreme Court in Theodoratus v. Ecology was unconstitutional.

Since the 1980’s, new water withdrawals from Lake Whatcom and Whatcom Creek have been prohibited by state rules. Bellingham and the water district have nonetheless continued to increase their withdrawals from the lake, and its surface and subsurface tributaries, to serve new development on the strength of their paper water rights. These increasing withdrawals became unlawful with the 1998 ruling in the Theodoratus case. Only the legislature’s unconstitutional actions in 2003 provided cover for continuing to take water for new development.

Unless the Supreme Court reverses itself and overturns Judge Rogers ruling, there is no ambiguity. As long as the lake and the creek are closed to new withdrawals, the water district and the city are obliged to refrain from increasing their use of that water.

Bellingham has an argument that their rights were established during the period they served Georgia Pacific, and have not been relinquished in the period since that beneficial use ended.

But Lake Whatcom Water & Sewer District has no such claim. In particular, they have no right to increase withdrawals from their new well at Agate Heights which was intended to supply development along the north shore, and on Squalicum Mountain, through new infrastructure at the Lake Whatcom Residential Treatment Center.

This restriction is based on an even more settled rule from an eastern Washington case, Hubbard v. Ecology. In that case the principle was established that, where surface waters are restricted, groundwaters tributary to them are similarly restricted. This means that the same restrictions that prevent new withdrawals from Lake Whatcom and Whatcom Creek are applicable to the Agate Heights well, and any other well in the Lake Whatcom watershed.

So, will Whatcom county continue to allow subdivisions to go into the watershed? Will they continue to issue building permits for new construction? Will Ecology stop the increasing use of water needed for instream flow in Whatcom Creek?

What do you think?

So the water district is racing to get in their new reservoir, extend its water lines in the watershed and continue to raid the publics water, even while their county permit to do the same is being challenged.

And no one seems to want to stop them.

About g.h.kirsch

Citizen Journalist • Member since Jan 16, 2008

Comments by Readers

Tip Johnson

Jun 18, 2008

The City of Bellingham has a valid argument for increased withdrawal but the District does not?

Does that mean that with the merger, new connections could be made on the strength of the City’s water rights?

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g.h. kirsch

Jun 18, 2008

Given the closed status of Whatcom Creek and Lake Whatcom, and given Rogers’ ruling, I don’t think that Bellingham has a valid argument to increase their withdrawals from the lake.

The Rogers’ ruling is certainly headed for the state Supreme Court.  The argument will certainly be made that “real” municipalities need to have a reasonable time to put their water rights to beneficial use.  It’s not smart to predict the court.

Bellingham and LWW&SD;are not “merging” in the true sense of the word.  I would characterize their future relationship to be more like a joint venture with the district remaining in existence and the city in the driver’s seat.  Interlocal agreements will dictate the powers and responsibilities of the parties.

If the status of the lake and creek were to change, and the Supremes were to carve out a special status for municipalities and not water districts, the city could, by interlocal agreement, supply water for the infrastructure presently being created on the north shore.

However, if the state Supreme Court were to allow ever increasing use of water disaffecting instream flows and salmon habitat, you can expect the tribes to use the “nuclear option.”

That would be federal court, the Boldt decision (and the associated ruling recently by Martinez) and the Endangered Species and Clean Water Acts.

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