On December 6, the Whatcom County Council voted 5 to 2 (Brenner and Mann voted no) to lift the temporary moratorium that was passed on November 9, 2016. The new interim ordinance that replaces it forces rural property owners, who do not have access to a public water system, to hire an approved hydrologist to ‘prove’ that a proposed exempt well is not in hydraulic continuity with a closed stream. That means that the permit applicant must prove, beyond a shadow of a doubt, that the proposed well will not impair instream flows established by the 1985 Nooksack Rule. ( Dec 22 note: Brenner and Mann actually voted differently. The motions and votes were complex and confusing. Elisabeth has posted a full explanation of the motions and votes at her website, the Latte Republic, and we are posting the same as a pdf file linked here. - JServais)

In previous posts, I’ve argued that since neither the Growth Management Hearing Board (GMHB) nor the court invalidated Whatcom County’s development regulations, the county can continue to process permits under the existing Comprehensive Plan, until the Comprehensive Plan undergoes a routine update. See post Hirst letter written by Whatcom County Planning and Development Director, Sam Ryan. But County Executive Louws and a number of the councilmembers do not agree with that assessment. They believe, rightly or wrongly, that the GMHB will issue an order of invalidity, if they approve a permit for a single family home or development.

In a guest article posted by Mr. Hirst on Dec 4, Hirst asserts that the proposed ordinance will be temporary and will not last more than six months. Yet, the ordinance language states that it can be extended multiple times, that is, as long as the county meets its legal responsibility of conducting additional hearings, prior to voting to extend it.

So, why would the County Council want or need to extend the temporary ordinance beyond six months? It’s simple: the county doesn’t have the data required to perform water availability determinations. And there’s a good chance they will not have that data (for the majority of drainages in Whatcom County) for a number of years. Initial funds to collect data were spent in the Lynden, Everson, Nooksack, Sumas (LENS) area.

Mr. Hirst tells us we must stop issuing building permits, because if we don’t, the county will stop seeking reasonable solutions to enhance instream flows. But Hirst’s allegation that the county won’t do anything to find a solution to this problem doesn’t stand up to critical examination. After all, the county has been working in partnership with the WRIA 1 Planning Unit and Joint Board for more than sixteen years. In fact, the Joint Board recently released the Phase 2 - Data Collection and Conceptual Model Development FINAL DRAFT Groundwater Conceptual Model Report in September of 2016. The Board’s next step will be to authorize studies to collect data that will allow the county to create an integrated groundwater model. From there, county planning and development staff will be able to make informed available water determinations so all affected parties will know if and when water is legally and physically available.

Since 1985, DOE has stated that Whatcom County has a history of ‘over-appropriation’ in a number of drainage basins. That ‘over-appropriation’ is responsible for seasonal low instream flows, which impairs tribal treaty water rights and stresses returning salmon runs during spawning cycles.

The Nooksack River Watershed (WRIA 1) has a total drainage area of approximately 826 miles. Within that area, there are approximately 172 drainages and sub-drainages. These drainages and sub-drainages were eventually combined into seven aggregate watersheds based on their proximity to one another. To date, we only have detailed information about a handful of drainage basins. The lack of detailed data in a number of drainages prevents the county from making informed, court-ordered water availability determinations.

Let’s take a look at water consumption facts in Whatcom County. First, it is important to point out that more than 80 percent of Whatcom County’s 212,284 residents obtain their drinking water from public water systems that are subject to the Coordinated Water System Plan. The remaining rural population, approximately 41,741 people, rely on permit exempt wells for domestic water. In other words, only about 20% of the county’s population relies on an exempt well to provide water for their business, home or farm.

The interim ordinance 2016-066, places the burden of proving legal water availability on the individual building permit applicant. Additionally, it requires permit applicants to hire an approved hydrologist to conduct a water availability determination, prior to submitting a building permit application to the county for review. Therein lies the rub. The number of studies that contain some of the data inputs necessary for constructing an integrated groundwater flow model (absolutely necessary to make an informed decision) are only available in about 20 of the 172 drainages located in WRIA 1. (Pg. 8, Groundwater Data Assessment). So, once the county has created a short-term integrated groundwater model, what are people who live in the other 152 drainages supposed to do?

While there may be sufficient data to build a regional groundwater model for the northern parts of WRIA 1, (thanks to a Groundwater Management Study that was created by Simon Fraser University in British Columbia), the county will have a difficult time approving or denying individual building permit applications in drainages that the county has little or no groundwater data on. Fortunately, we do have data on the Bertrand, Fishtrap, Johnson, Lower Dakota and Nooksack to Deming drainages, as well as the drainages on the Lummi Peninsula. That data can be used to construct a short-term integrated ground water model. The rest of the county is and will remain uncharted territory. And that is why the proposed ordinance is inherently unfair. The county doesn’t have the data it needs to be able to determine if water is available in all but 20 basins. So, why force individual property owners to spend thousands of dollars on studies that neither the county nor an approved hydrologist have adequate data to complete?
County Executive Jack Louws sent me an email verifying that Whatcom County is continuing to work on out-of-stream water modeling, “…as well as the ongoing monitoring of instream flows, as the county has traditionally done.” Louws indicated “…these items are in the budget, but not to levels needed due to the court decision. We are working to determine the next steps, which I’m sure will include augmented water studies. When the path has been determined, budgets will be developed and we will present to council budget amendments and funding sources to accomplish the tasks.” Executive Louws also told me, “We are encouraging the legislature to put money aside in the next biennial budget to help counties, related to this issue, as funding sources are scarce. Regardless, we have to get it done.”

• Once again, I agree with Chief Civil Deputy for Kittatas County, Neil Caulkins, who asserts that the court placed responsibility for determining water availability on the county, not the individual property owner. It’s the county’s responsibility to build an integrated groundwater model and collect all the necessary data it needs to operate and maintain an up-to-date groundwater model, not the individual citizen. Whatcom County should not be forcing individual families to absorb this expense, when, according to the 2015 United Way Alice Report, 42% of Whatcom County households struggle just to afford basic necessities. Read more about this statistic in the Bellingham Herald.

For additional points of view on who is responsible for conducting water availability determinations, please visit the MRSC Insight Blog and read Neil Caulkins four-series-post on the Hirst decision. Caulkins asserts that only the county is regulated by GMA, not individual property owners. Hence, the county is responsible for determining water availability.

Again, it is important to understand that Whatcom County is not experiencing a water shortage. We have an average of 70 to 165 inches of precipitation in the upper reaches of the Nooksack River drainage each year. A bit less in the lower Nooksack River drainages.

No, what we have is a water storage problem. If we want to meet or exceed the Department of Ecology’s 1985 Nooksack Rule regarding in-stream flows, we may have to build off-channel storage and habitat to provide adequate flows during seasonal low-flow periods (May through October). And, yes, there is strong resistance from various community stakeholders to any proposal for building off channel reservoirs. Some say it will take fertile farmland away from farmers. Others, like Mr. Hirst, believe it will cost too much to build reservoirs. In his guest editorial, Hirst states he would rather restrict seasonal outdoor use of water for families during peak garden and stock-raising season. But what does that do to a large number of county residents who depend on backyard gardens and raising cattle or other stock animals for their family’s annual food supply?

And, we will have additional management tools at our disposal, once we form a comprehensive understanding of the way groundwater moves through each of the drainages (hydraulic continuity) and how the underground movement may or may not contribute to surface water flows. For example, in some drainages, we may be able to locate property owners who are willing to abandon shallow irrigation wells, if Ecology will issue them the right to drill a new well in a much deeper aquifer. This hypothetical water swap would allow additional shallow groundwater, if it is found to be in hydraulic continuity with surface water, to flow freely to streams and rivers.

In closing, we do not have a water shortage in Whatcom County. Unfortunately, we do have a serious gap in groundwater availability data; which, once obtained, will allow us to make reasonable, informed decisions about the current and future impact of single family residence exempt well withdrawals on in-stream flows and salmon habitat. We also have a water storage problem. At some point, we will have to form a strategy to ensure the Nooksack River and its tributaries have adequate water during low flow periods.

I have been working on water issues in Whatcom County for over 20 years. Despite numerous setbacks, including the unavoidable funding crisis caused by the Great Recession, I remain convinced we can solve our complex water problems without having to punish exempt well owners or other rural county residents. We are better than that. And our county government deserves our thanks for all the hard work they have accomplished to date through the watershed planning process.