THE LAKE & ECOLOGY; Can’t Have One Without The Other

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Mon, May 26, 2008, 7:51 pm  //  g.h.kirsch

Why all the hubbub about building moratoria in the Lake Whatcom watershed? You can't build or subdivide without adequate water, and the entire watershed is closed to new wells.

And the water districts, or their successor, not only can't expand their service outside the city and UGA, but can not withdraw water from the lake, or any of its surface or underground tributaries, for new users.

Bellingham's resolution to halt building in the watershed under city jurisdiction until a plan for protecting the lake is formulated, put forward by the mayor and unanimously approved by the city council, was merely acknowledgment of reality by the city.

Whatcom county, on the other hand, prefers to remain in denial and assumes its empty, forceless policies will suddenly be enough.

So who's allowing development in the watershed to continue? That's right, your county. Sure thy could do something, but they won't.

But it's not just the county that's taking the easy way out and ignoring the rules. Certainly the Department of Ecology has chosen to play along, and not only ignores the laws governing the use of water, and the rulings of the state's courts, but refuses to even respect rules they've written themselves.

LAWS & RULES

In 1971 the state legislature passed the Water Resources Act [RCW 90.54]. Yes, that was 37 years ago. The act required rivers and streams have flows sufficient to preserve fish and the natural environment. Lakes were to be protected and kept in their natural condition. Withdrawals of water which would conflict with that were only to be authorized if it was absolutely clear that public interest so required.

All wastes and other substances that might enter our waters were to be treated prior to entry. Established water quality standards were not to be violated. Pollution that would reduce the quality of our waters was banned, except, again, where overriding considerations of public interest required.

Notably, full recognition was to be given the natural interrelationship of surface and groundwaters.

In response, Ecology promulgated rules to implement the intent of the legislation. The purposes of those rules is set out in WAC 173-500-020. Important amongst them: identify streams closed to future appropriation; establish flows on perennial streams to provide for preservation of fish and other environmental values; curtail additional withdrawals of water when sufficient data is lacking for sound decisions; establish criteria for limits beyond which further appropriations may not be made.

And above all, Ecology acknowledged it would be guided by the declaration of fundamentals contained in the Water Resources Act.

Ecology did identify surface waters that needed to be closed. They are listed in WAC 173-501. Significant to our concerns in the Lake Whatcom watershed, Ecology closed the lake and Whatcom Creek. And more significantly, at WAC 173-501-070, Ecology stated that, while single domestic uses shall generally be exempt from the provisions established in that chapter, “Whatcom Creek is closed to any further appropriation, including otherwise exempted single domestic use.”

Subsequently, Ecology promulgated additional rules specifically to protect lakes and streams in the Methow basin. These are found at WAC 173-548-050. Ecology determined, based on existing information, that there was no water available for further use and closed substantially all the basin's streams and lakes, and ground water hydraulically connected with them. This included the right to use water established through permit procedures, and ground water withdrawals otherwise exempted from permit under RCW 90.44.050. [the so called “exempt well” loophole]

No wells were to be constructed for any purposes, including wells exempt from permitting under RCW 90.44.050, unless very limited and stringent conditions were met and construction of the well was approved in writing.

These rules clearly can be deduced from one of the cornerstones of our water law, that no right to use water can be vested where no water is available for appropriation.

CASES & PRECEDENTS

Some years ago, over in the Okanagon, the Hubbard brothers challenged Ecology's position that the brothers' right to water to irrigate their orchards was subject to the periodic closures of the Okanagon river because the groundwater they intended to use was tributary to the river.

After protracted litigation through the courts, the law was established that where Ecology has restricted the use of surface waters, the use of groundwaters in hydraulic continuity with those surface waters are subject to the same restrictions.

John Postema subsequently argued that it couldn't have been the legislature's intent to prohibit groundwater withdrawal where it would disaffect surface waters because wells exempted under RCW 90.44.050 were allowed, and they would necessarily have some affect on surface waters hydraulically connected.

In response, the Washington State Supreme Court stated quite succinctly, legislative exemptions from the permitting system do not redefine water law. The fact that one would take water without first obtaining a permit can not vest a right to its use where no water is available for new users.

BRINGING IT ALL BACK HOME

So coming back to the Lake Whatcom watershed, let's establish a few indisputable facts. Lake Whatcom is tributary to Whatcom Creek. When we call the surrounding lands its watershed, we mean that the waters that run in the creeks and streams feed the lake. And we understand that the groundwaters that feed those streams, and the aquifers that recharge them and the lake, are naturally interrelated.

Can anyone not agree then that all the waters, above and below ground, that run to Lake Whatcom are also tributary to, in hydraulic continuity with, Whatcom Creek?

Since Whatcom Creek is closed to new withdrawals, even “otherwise exempted single domestic use,” and we know from the Hubbard ruling that groundwater in hydraulic continuity with the creek is subject to the same restrictions, is it so difficult to understand that even so called exempt wells in the watershed are prohibited?

All wells are prohibited because there is no water available for new users as long as Whatcom Creek is closed. So, “based on existing information” and given the precedent of the Methow rules, why would Ecology allow new wells in the Lake Whatcom watershed? Do they believe there is no hydraulic continuity? Do they not understand the Hubbard rule?

Well, that question has actually been put to them, and their answer is that Whatcom Creek's closure to further appropriations, including otherwise exempted single domestic use, only applies to surface water withdrawals. That's right, they don't understand, or ignore, the Hubbard rule, and take the position that stealing the water before it reaches the lake and the creek is alright.

If Ecology has data that shows the watershed is not tributary to the lake, let's see it. If they have insufficient data to unequivocally rule that the groundwater in the watershed doesn't feed the lake, then they are to curtail additional withdrawals until sufficient data is available.

But that's not the end of Ecology's misfeasance. Because the lake and the creek are closed, even wells that were earlier granted a water right, and even withdrawals from the lake itself, are restricted. No withdrawal for new users is allowed, and Ecology has a responsibility, guided as they are by the fundamentals of the Water Resources Act, to curtail anyone's use where a vested right does not exist.

IT'S ONLY A PAPER RIGHT

This takes us down to Skagit county, and the experience of one George Theodoratus. Mr. Theodoratus applied for and received a right to use water for a development he undertook near the Skagit river, up by Concrete. But by the time he had his subdivision ready, and the pipes in to all the lots, Ecology had set instream flows for the river that necessitated closing it at least seasonally.

Theodoratus (along with most of the development lobby) went all the way to the Supreme Court only to learn that to vest a right to water it was necessary to actually put the water to beneficial use (another cornerstone of western water law) and pipes in the ground were not putting the water to use. Theodoratus' right to water was limited to the amount actually being used before the river was restricted.

So, given the closure of the lake and Whatcom Creek, how is it that water districts, and others with water rights not yet put to beneficial use, or not being used to their nominal limit, aren't restricted from increasing their withdrawals for new users? You got it. Who cares.

ECOLOGY DUCKS AND PASSES THE BUCK

The two other cornerstones of our water law are equally important to the current crisis in the watershed. No one can gain a right to use water where it would impair the rights of earlier users. And most significantly, all water belongs to the public.

The Boldt decision, affirmed by the US Supreme Court, established that treaties made before Washington statehood ensure a right to sufficient water to preserve salmon everywhere, including Whatcom Creek, a right from time immemorial, clearly the earliest right, preceding all other rights to water.

Ecology recently determined that Lake Whatcom's water quality is impaired, and has required that further pollution of the lake be curtailed, and in fact that the maximum load of pollutants entering the lake be reduced to some 25% of the present level.

Again, this based on the law some 37 years ago to ban pollution that would disaffect the quality of our waters and prohibit withdrawals of water which would conflict with preservation of base flows sufficient for fish and retaining lakes in their natural condition.

It seems truly absurd that Ecology, with the twin mandates to prohibit pollution of the lake and deny withdrawals where water is unavailable, can not see the connection between the two in our watershed. The unlawful withdrawals they allow drive the development in the watershed that is the very source of the pollution they are to prevent.

It is even more absurd that they think that our county will take any meaningful steps to stop this polluting development. They are already looking for “peers” who will rebut Ecology's findings that require a plan to reverse the damage to the lake.

If Bellingham, and all those who want to save the lake and provide adequate water to restore our salmon resources, want to get something done, forget about county government. What is needed is an order from the Superior Court compelling Ecology to follow the same logic and apply the same rules it promulgated in the Methow Valley.

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