Our Water - War or Pieces?

Fri, May 24, 2013, 1:18 am  //  Guest writer

Lake Whatcom dam at the beginning of Whatcom Creek.

Marian Beddill writes this guest article on the saga of water rights in our area.  She has studied water resources and our Lake Whatcom water situation for many years.  

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Q:  What is the most critical natural resource for all living beings?
  A:  Air  (quality is a valid concern - as long as it is clean, we have enough quantity for everybody, everywhere, all the time.)

Q:  What is the second most critical natural resource for all living beings?
  A:  Fresh Water (not salt-water)  (both quality and quantity are concerns.)

Living beings (animals and plants) need water for survival, and (especially critical for animals) every person needs a minimal quantity over every period of a few days. With no water, first you're thirsty, and then you die. People living in a desert really know that. People living in better climates, would reply that they know, but they rarely pay any attention to it, since they just turn on the tap or the valve, and their water is there for their use. 

At a less critical short-term level, but still very important: -- business (especially including agriculture) needs water - that fact will be obvious to everyone. What is all too often not noted (not considered) by the general population is where that water "comes from", and how does it get from where it is found, to where it is needed. Enough water, at the right place, and at the right time. Clean.  And at the lowest possible price.

All of our water starts as precipitation - and that term includes rain, hail, sleet and snow. It falls to the earth, and some of it quickly evaporates. Of the part that remains liquid, some fell directly into a body of water - creek, river, lake or reservoir. Some falls onto the snowpack - the areas that never go "dry" are the glaciers. The part that falls onto land or snow that melts (or on structures) becomes runoff, and may move across the land surface in a wide variety of ways. The essential thing is that it then may move into one of those bodies of water, or go underground and join another kind of body of water - an underground aquifer. Those are the next-to-last steps in the water-supply systems, which we all take so much for granted.

And, the last step in a water-supply system is an industrial process which grabs some of that water (diverts it from it's natural free-flow), and sends it to users - homes, industries, agriculture, recreation, etc. But hold on - what about this "grab" process? How does that work, and who does it? And what's the deal on "sending it" to users? Who is allowed to grab water out of a river? Can they just put up a dam, and grab it all? (Or grab so much that the remaining flow is way less than "what the natural flow would furnish"?)

If the guy that is upstream/uphill takes too much water for "himself", the people who are below will suffer from not having enough. That principle has been recognized by civil society for centuries, and in the western part of what is now the USA, even before cities made urban laws, was known as "western water law" - the uphill user was required to leave enough for the customary needs of the downhill users.

And the pioneers knew how to settle an abuse of that community rule - with community force. Sometimes with pick and shovel, and in serious cases which continued too long, with another tool that was also "long".

Nowadays, we do better than that, by making agreements among everybody involved - so that each "user" is permitted to take ("to divert for his use") a "reasonable" amount of water from customary sources, to satisfy his realistic needs, while leaving enough for those below.

Ah, "below"! There are two meanings for "below" within this discussion. In natural conditions along a hillside or in a valley, we easily note and agree on what is "above" and what's "below" - uphill and downhill. But with the invention of pumps, a new characteristic of "elevation" came into play - grab downhill-water and push it uphill (or sideways, across) - to somewhere close by or farther away, so that somebody else has the water. That takes equipment and money, but those are ordinary things these days. So an entrepeneur might build a water-supply business, and make a profit by selling the "availability" to water.

That's nice for a while, handy and convenient for the customers (the "water-users"), and no big bother to everybody else. At least, no big bother so long as enough of the usual and accustomed flow of natural water remains in the resource place where this water-supplier is taking out his supply to send it to his "customers". 

That way of managing water became the ordinary thing, for many early decades in our state.

Then, as population and needs grew, it was recognized that this reasonable practice ought to be made official, and Washington Water Law was passed. In (probably over-simplified) simple terms, it declared that all natural flow of water was public, and is controlled by The State. All users (with exceptions for some household wells) must ask the State for a Permit to take water, and they cannot legally take it without such a Permit. What was once a just and fair community agreement, became law. If you want to take more water than only for a couple of houses, you must obtain and hold a valid permit for the approved quantity, and not use more than that. It's the law. The State assigned the management of this permitting program to the Department of Ecology, which set up a registry of allowed water users - specifying amounts, locations where taken, and locations and purposes for which the water would be used (as well as the identity of the taker of the water.)

So thousands of water-users registered their water use needs, and the registry system grew. Then, after a while (allow me to grossly shorten the story here) the records system did not manage to keep up with the requests submitted by new users. Also, there were little realistic inspections, and almost no enforcement of the terms of the permits (for both quantity and location.)  After a while, the permitting system had issued permits for perhaps double or more than the quantity of water that actually existed, so it was faced with a dilemma - either:
   deny a permit (bad), or
   allow a permit without being sure that there was enough water (bad).

The lovely, well-meaning community-minded system froze (permit us this pun), and access to water became a question of - if you build a capture-system, you are able to take that water, and do with it whatever you will. Run an industry, grow food, supply urban water to towns and cities, spray it on piles of coal, or sell it.

HUH? Sell the water? - rather than use it for yourself?

Yes, that's right. Over the years, individuals, industries, and businesses started taking water and supplying it to other people and businesses. Sometimes under the color of an association of users, jointly managing the mechanics (and the finances) of a cooperative. And sometimes just to neighbors. And sometimes putting it into bottles, and selling it to customers close or far away. That could be sold as simply water, or as some other product containing water. That middle-man profited by supplying this "raw material" (which belongs to someone else, the State) to third parties.

And that is where we stand today. Many State of Washington water-use permits are on the books (many lacking records of the uses of the water), and there are many water-users benefiting from the use of water, sometimes without a permit. Plus some permits whose paper quantities seem to be much larger than the actual use - so the volume-mismatches go both ways. The language in state law refers to "usufruct". And it says: "Use it or Lose it"

Aha! Maybe there is a solution! Where there is a large-quantity permit, but the user is only taking a portion of that, why not do the neighborly thing and revise that permit "down" to a smaller quantity. Then grant those unused quantities to users who; in real life, are taking more than their paper-permit shows that is allowed. Neither would really lose hardly anything in current real life, when the redistribution was made to match real and rational needs.

True, there might be some cases and places, where the expressed needs for water seem to be larger than the evident available volume. That will take some study, some energy put into deal-making, maybe a bit of heavier negotiation, and in worst cases, formal litigation in court or other ways.

But we must ask - which way is better for the community? Shall we have illegal activities making a profit over misuse of public resources with the government looking sideways, while legal activities are holding a freeze on public resources that they are not using? Or shall we shuffle the deal so that it comes out more fair and proper for all?

Our idea is to first have all the interested parties join in with realistic and open declarations and discussions of supply and demand. Work from that to achieve an agreement of the fairest and best use of our public water by the many acknowledged users, of the truly available resource. First, they will shuffle the cards, and agree on such a water-reallocation plan. Then they can all tell the State DoE to revise the permits-registry for the Nooksack River Water Resource Inventory Area (WRIA-1) so that the paper world matches the real world, and all will benefit (except maybe a few scoundrels who were trying to scam the system.)

Drink up, and enjoy your shower.

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Review by a water management fairness interest group.
Story written by Marian Beddill.

Whatcom County, Washington. May 2013