As reported in our recent post, “The Tale of the Nooksack Nine,” the Department of Ecology went above and beyond its usual water mismanagement when — faced with clear evidence of illegal water diversions from the Nooksack River – the agency decided to issue permits, rather than penalty orders, to the culprits.
More recently, it has been revealed that the Nooksack Nine — who now possess water rights — continue to divert in violation of the requirements of their newly issued rights. When does it stop?
On June 24 and 26 Ecology made good on a bad idea and issued water rights allowing the Nooksack Nine to divert water. These rights are, of course, interruptible. The permittees may use water only when the Nooksack River is meeting its regulatory instream flows. And because the Nooksack doesn’t meet those flows 50-80% of the time during summer months, these new water rights don’t provide much water.
(As noted in the previous post, these rule-based instream flows are inadequate to support salmon life cycles, and need to be updated to protect higher flows.)
The Nooksack River – like virtually every other river in Washington this year – is way, way below it’s normal flows. The graph at right indicates the Nooksack is at the lowest levels ever recorded for this time of year. So anyone with a water right issued after 1985 should not be diverting at all.
On June 25 and 30, 2015, Lummi Nation staff again floated the Nooksack River and identified 39 potential illegal diversions.
And guess who was diverting? That’s right – seven of the Nooksack Nine diverters were taking water out of the river – in violation of their brand-new rights.
Never mind that Ecology promised that enforcing these new permits would be their “number one priority.” Never mind that Lummi Nation and CELP asked Ecology to not issue the permits in the first place. Never mind that this sets a terrible precedent for hundreds of other illegal water users in the Nooksack basin.
On July 14, 2014, Lummi Nation sent letters to Maia Bellon, Director of the Department of Ecology, documenting the 39 potential illegal diversions and requesting enforcement action. Here’s how Merle Jefferson, Director of the Lummi Natural Resources Department summed it up:
Illegal water diversions from the Nooksack River and its tributaries have been occurring far too long, to the detriment of salmon and the Lummi Nation’s treaty rights to harvest. We expect that Ecology will enforce existing state laws and issue both cease and desist orders and appropriate monetary penalties when it is determined that individuals are diverting water without a legal right to do so. Ecology should not allow individuals and business to illegally divert a public resource for profit at the expense of others and the natural environment that depend on the same resource.
And we would add – Ecology claims that its enforcement authority is limited to a “step-wise compliance process” and that it cannot issue enforcement orders and penalties without first “working with” the violator. This is wrong. The law is clear. No one has a right to take public waters without a permit, or without being in compliance with their permit. Ecology’s handholding with unauthorized water users is incorrect as a matter of law and unsound as a matter of public policy.
In point of fact, Ecology should shut down the diverters and fine them $5,000 per day for each day of illegal water diversion. Indeed, the unauthorized use of water is a criminal misdemeanor, the local water master has the power to arrest water code violaters, and the local prosecuting attorney has the duty to assist.
Nooksack River water thievery is illuminating the Department of Ecology’s inability and unwillingness to uphold the law and to protect water resources that the state holds in public trust for the common good.
In a year of drought, this really matters. Is any elected, appointed or employed official with the State of Washington listening?
This is the third in a series of articles on Whatcom Water Insanity. Part 1 examines water stealing by the City of Lynden. Part 2 tells “The Tale of the Nooksack Nine.” Jean Melious’ blog, Get Whatcom Planning, also provides great info about Whatcom County water woes. Photos and graphics above are courtesy of the Lummi Nation.