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Blockbuster Court Decision Protects Instream Flows and May Slow Rural Sprawl

Nooksack watershed (WRIA 1) map (Dept. of Ecology)

In 1985, the Department of Ecology adopted an instream flow rule for the Nooksack watershed in Whatcom County.  The rule establishes instream flows for 28 tributaries or points along the mainstem of the Nooksack River.  The rule also establishes partial or full closures of about 50 rivers, streams, and lakes throughout Whatcom County, meaning that new water rights can no longer be appropriated for part or all of the year where these waterbodies are closed.

Nooksack River percent days flows unmet (ECY 2015)Because of these closures, the Department of Ecology no longer issues water rights in Whatcom County unless those rights are conditioned to be interrupted when instream flows are not met.  This happens often in the Nooksack watershed.*  For example, the graph at left shows that instream flows on the mainstem of the Nooksack River are not met up to 80% of the time during summer months.  This low flow problem is evident in many of the tributaries in the watershed (and throughout the state, as discussed below).

Despite these low flow problems and stream closures, Whatcom County has for many years issued building permits for new rural development that relies on permit exempt wells for water supply.  It has long been understood that groundwater is connected to surface waters in the basin, and that pumping from wells captures water that would otherwise discharge to the Nooksack River and its tributaries.  This hydraulic connection between ground and surface waters has important ecological consequences because groundwater inputs create cool water refugia in streams and rivers for endangered salmon and other aquatic species.   Moreover, as climate change alters stream temperatures, groundwater inputs become even more important.  Despite an enormous amount of scientific data showing that groundwater connects to and enhances surface waters, the County did not evaluate the impact of is rural growth practices on Nooksack instream flows.

Whatcom County is required to prepare a comprehensive plan and zoning regulations under the Growth Management Act (GMA).  The GMA contains several provisos that require counties to administer their land use laws in a way that protects water resources.**  In a 2011 case involving Kittitas County, the Washington Supreme Court held that counties must ensure that water is both physically and legally available when implementing land use laws that will result in development that relies on permit exempt wells for water supply.

On October 6, 2016, the Washington Supreme Court followed up the Kittitas County decision, ruling in Whatcom County vs. Growth Management Hearings Board (also known as the “Hirst” case) that Whatcom County’s land use laws do not fulfill GMA requirements to protect water resources.  Instream flow rules represent water rights for the river that enjoy protection from more recent water diversions and withdrawals, such as those allowed under Whatcom County’s comprehensive land use plan and zoning regulations.  Such withdrawals cause impairment of instream flows that is forbidden under Washington law.

The Court further held that, when issuing building permits that plan to rely on permit exempt wells for water supply, it does not matter that the Department of Ecology has not closed a waterbody by instream flow rule.  Ecology’s inaction cannot serve as a basis for counties to evade their duty to protect water resources and uphold water resource laws.  As discussed below, this is a critical point given that a number of Washington’s instream flow rules are outdated and do not reflect the status of water availability.


Washington Instream Flow Rules (Dept. of Ecology April 2015)

As shown in the map at right, Ecology has adopted instream flows in about half the watersheds in Washington.  Many of the streams and rivers protected under these rules are not meeting their designated instream flows, especially during summer months.  However, with few exceptions, most counties do not evaluate whether rural development that is reliant on permit exempt wells is causing depletion of instream flows.  Many counties in Washington are presently issuing building permits that are in direct contradiction to the requirements set forth in the Whatcom County and Kittitas County decisions.  (Real estate purchasers, beware.)

Hue and cry is expected from the development community and local land use agencies regarding the Whatcom County decision.  The Court’s ruling calls into question existing practices of many counties that are doing exactly what the Court held illegal :  issuing building permits without proper analysis of water availability.   County land use practices are causing impairment of instream flows throughout the state.

Exempt well growth in Mason County (NWIFC 2016)

The use of exempt wells to fuel Washington’s rural sprawl has been going on since at least the real estate boom of the early 1990’s, much to the detriment of the state’s rivers and streams and the fish that need adequate flow for survival.  A new report from the Northwest Indian Fisheries Commission, 2016 State of Our Watersheds, documents how permit exempt wells are directly harming treaty salmon fisheries in multiple watersheds in western Washington.  As an example, 259 exempt wells were drilled in the Squaxin Island Tribe’s territories between 2010 and 2104 (adding to a total of nearly 6,000 such wells in the basin), damaging important coho and chum fisheries in Johns Creek, where the instream flow rule was adopted set in 1984.

little-spokane-river-water-well-logs-1922-2008A Spokane County report documents that, in the Little Spokane River watershed, 8,900 exempt wells were drilled between 1976 and 2008, after the LSR instream flow rule was adopted, even though the river does not meet instream flows about 80% of the time.  In fact, LSR surface water rights are frequently ordered to curtail in summer months, thus elevating junior permit exempt wells over senior out-of-stream water rights, as well as the regulatory instream flows.

These are but two examples of situations that are virtually identical to Whatcom County.  In reality, this problem is proliferating all over the state.

The Court recognized that instream flows set by rule are protected as senior water rights, but held also that counties cannot rely on these rules to determine legal water availability.  The Court’s decision on this point is important, because Washington’s instream flow regulations are woefully out of date.  In the 1970’s and early 80’s the methods for identifying the quantities of water needed to protect instream values was very crude, the science of hydraulic continuity was not fully understood, and the problem of inchoate (paper) water rights was nowhere on the radar screen, nor were the treaty-based instream water rights of Washington’s tribes.   Instream flow rules are simply not a reliable indicator of how much water is in a stream or aquifer, and how much is available for new appropriations, including exempt wells.

For many years, there has been wholesale failure by the Department of Ecology, state lawmakers, and local authorities to rein in uncontrolled use of exempt wells.  State economic policy has promoted growth at any cost, causing great harm to Washington’s waterways.  By failing to step up and control groundwater use, the state and counties have left themselves open to lawsuits and adverse court decisions.  This trend will continue until a more enlightened approach to water management prevails.

Fundamentally, water managers must recognize that Washington’s water resources were over-appropriated many years ago.  We have come to the end of the water frontier.  Indeed, with climate change baying at the door, we must find ways to use less water and restore water to streams and aquifers that are even now in sharp decline.  A paradigm shift is needed and, with the help of the Washington Supreme Court, is getting underway.

Here are a few pertinent quotes from the Court’s decision in Whatcom County vs. WWGMHB (Oct. 6, 2016):

The GMA places an independent responsibility to ensure water availability on counties, not on Ecology. To the extent that there is a conflict between the GMA and the Nooksack Rule, the later-enacted GMA controls. Slip Op. at 10.

The GMA requires that an applicant for a building permit for a single family residence or a development must produce proof that water is both legally available and actually available. But [Whatcom] County does not require any showing that water is available for a building permit when the applicant is relying on permit-exempt water appropriation. This failure by the County is the crux of this case. Slip Op. at 19.

The Board found that [Whatcom County’s land use] provisions result in water withdrawals from closed basins and senior instream flows – flows that the record indicated drop below the minimum levels 100 days out of the year. The Board properly held that this conflicts with the requirement placed on counties to protect water availability under the GMA, as well as our holding in Postema, 142 Wn.2d 68.  Slip Op. at 25.

Counties may not rely on Ecology’s inaction in failing to close a basin as a determination that water is presumptively available for appropriation. Such inaction fails to provide any assurance that a new permit-exempt well will not infringe on senior water rights, and thus fails to satisfy the obligation the GMA places on counties to ensure that water is legally available before issuing a building permit.  Slip Op. at 34, note 13.



*Naiads has previously reported on Ecology’s shocking decision to issue interruptible water rights to illegal water users in the Nooksack watershed.  See our posts: The Tale of the Nooksack Nine and Nooksack Water Thievery Redux.

**For example, the GMA establishes a goal to “protect the environment and enhance the state’s high quality of life, including air and water quality, and the availability of water.”  RCW 36.70A.020(10). Comprehensive plans must include a land use element that “shall provide for protection of the quality and quantity of groundwater used for public water supplies.”  RCW 36.70A.070(1).  The rural element of comprehensive plans shall protect “critical areas, as provided in RCW 36.70A.060, and surface water and groundwater resources.”  RCW 36.70A.070(5)(c)(iv).  Applicants for building and subdivision permits must demonstrate adequate water supply for their developments.  RCW 19.27.097 and 58.17.110.

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Nooksack Water Thievery Redux

Sherman Polinder graphics 20150625-09_signed

The aerial map at top shows the location of a Nooksack Nine diverter (red dot). The photo shows the diversion device.  A comparison of GPS coordinates reveals that, on June 24, 2015,  Ecology issued Water Right No. S1-28777 for this diversion location to Sherman Polinder.  Under the terms of the permit, Polinder is prohibited from diverting when Nooksack River flows are below their minimums, as was the case when the photo was taken.

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.)

Nooksack Hydrograph for June 15, 2015

June 2015 flows in the Nooksack River (blue line) are well below the instream flow rule – which requires post-1976 water users to curtail their use.

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.

Ed & Dale Blok Graphics (6-30-15)

The aerial map at top shows the location of a Nooksack Nine diverter (red dot). The photo shows the diversion device. A comparison of GPS coordinates reveals that, on June 24, 2015, Ecology issued Water Right No. S1-28775 for this diversion location to Ed & Dale Blok. Under the terms of the permit, the Bloks are prohibited from diverting when Nooksack River flows are below their minimums, as was the case when the photo was taken.

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.

Well said.

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.




The Tale of the Nooksack Nine, or, the Rewards of Water Thievery

This is Part 2 of a series on Whatcom Water Insanity, covering illegal use of water in the Nooksack River basin.  See Part 1 here.  See paragraph at bottom for two post-publication corrections.


ferndale-wa aerial (

Nooksack River wrapping around farms near Ferndale, WA. (Image:

Just as California drought provides compelling lessons about the price – economic, social, and environmental – being paid for water mismanagement, we also have examples in Washington State.

Whatcom County is notorious as one of the most lawless water basins in Washington State.  For years, illegal water diversions from the Nooksack River have been reported in articles, conference presentations, legislative testimony and more.

And what’s crazy is that this illegal use has actually become an accepted modus operandi.  Nevermind that diverting water without a permit is a misdemeanor, or that stealing water causes systemic harm to the environment, including endangered fisheries and water quality.  Rather, there appears to be widespread agreement that illegal use of the waters of the Nooksack watershed is nothing more than business as usual.

No one has done anything about it – until now.  Unfortunately, what’s being done is dead wrong.

The Department of Ecology has claimed (for years) that it lacks the resources to identify and enforce against unpermitted water use in Whatcom County.

Nooksack chinook (NWIFC)

Nooksack Chinook running the gauntlet of low flows (Image: NWIFC)

In 2013, the Lummi Nation decided to assist on the data collection side of the matter.  Tribal staff floated the Nooksack River in the vicinity of Deming, Washington.   GPS readings were taken wherever a water diversion pump was found, then compared with the state water rights database.  Thirteen “unpermitted” users were identified.

Lummi Nation staff provided their data to Ecology.  Reasonable minds would expect Ecology to order these malefactors to cease pumping and pay penalties.  This seems particularly important in the Nooksack basin, where a clear signal needs to be sent to end water thievery.

But Ecology did not issue orders or penalties.

Instead, Ecology has decided to reward the illegal diverters by giving them permits.

Ecology has drafted a template to issue water rights to the Nooksack Nine.  Click here to view it.

Nooksack River percent days flows unmet (ECY 2015)This approach would be wrong in almost any circumstance, but it is particularly egregious given the condition of the Nooksack River.  The illegal users will be required to curtail their use whenever Nooksack River flows drop below what’s required in the Nooksack Instream Flow Rule.  As shown in the graph at right, during the irrigation season that happens between 50-75% of the time.

To ensure that water users comply with the terms of their permits, ie, curtail their use 50-75% of the time, requires enforcement.  But lack of resources is the very reason Ecology claims it cannot identify, much less stop, illegal water use in the Nooksack basin.  How is it that Ecology now has the capability to police these permits?

Ecology’s general lack of enforcement capability – particularly in the water resources realm – is well documented.   See, for example, Dan Chasan’s 2000 study, “The Rusted Shield,” or the Center for Environmental Law & Policy’s 2002 white paper, “Dereliction of Duty.”

Just this year, Ecology acknowledged on its website that its poor record of water rights enforcement is dissolving into non-existence.  For the last three years the Washington State Legislature has converted the state Water Resources Program into a permit factory, requiring it to process at least 500 water right decisions per year or lose $500,000 in budget.   As a result, “Ecology staff have needed to reprioritize and temporarily defer some work in other water rights categories including permit management, plan review, seasonal changes, enforcement, and technical assistance.”

So, Ecology will actually get credit for issuing permits to the Nooksack illegal users.

Nooksack River IRPP flows v fish flowsEven more problematic is that the illegal users will be taking water that is needed for fish.  The instream flows established in the Nooksack Rule, adopted in 1985, are out of date and scientifically unsupported.  These rule-based flows, even when met, are not adequate to protect salmon and other species.

Pursuant to the Nooksack (aka WRIA 1) watershed planning process, to which Ecology has contributed about $800,000, studies demonstrate that higher flows are needed for fish.  The graph at right compares the appropriate biological flows (in green) with the flows set forth in the rule (in red).

These flows are derived from studies that Ecology funded and concurred in.  So why is the agency issuing new permits conditioned only on meeting the lower flows?

The bottom line is that the Department of Ecology should not be issuing water rights that will drive the river toward the red line flow, and fail to preserve the ability to restore water to the green line flows.   Ecology especially should not be issuing new water rights to scofflaws who for years have stolen the public’s water.

This situation reveals the unseemly essence of Washington state water resource policy.  Every drop of water that can be justified as available – even under the thinnest of pretexts — will be allocated for out-of-stream use.  We see it not just in the Nooksack, but in river basins throughout the state.

The state’s “water grab” policy — combined with exercise of unused municipal water rights, water thievery and waste, and the depleting impacts of drought and climate change — will destroy the public interest and values in Washington’s rivers.  You don’t have to look to California to see the devastating consequences of a state mismanaging the public’s water.

This is the second article in a series focusing on water resource issues in Whatcom County, Washington.  Part 1 addresses the City of Lynden’s efforts to get the Legislature to change the law and “fix” its illegal usage.  Readers should also check out the superlative water & land use blog, Get Whatcom Planning.

We’ve made two corrections to this article since original publication.  First, the tribal survey of illegal diversions occurred in the Deming reach of the Nooksack River (not the Ferndale reach).  Second, the Department of Ecology contributed $800,000 toward watershed planning, not $2 million.  The other $1.2 million has been spent on post-planning technical work and instream flow negotiations.


Whatcom Water Insanity Part 1: Lynden Water Stealing & Milk as “Foreign Water”

WRIA 1 Map (Dept of Ecology)

Nooksack Watershed Map (Dept of Ecology)

This is a story, the first of many, about water resource issues in Whatcom County.  Whatcom County is well known as a place where a lot of people and farms and companies steal water.  One of the water thieves is the City of Lynden.


Bald Eagles

Bald eagles fishing for salmon in the Nooksack River (Photo Seattle Times)

By water thieves, we mean farms, dairies, cities and anyone else who takes water out of the Nooksack River (including tributaries and connected groundwater), without a water right.   This is wrong – it is stealing.  It hurts the river and its salmon and steelhead and the shellfish beds in the bay.  However, for decades, rather than bring enforcement action to halt water stealing in Whatcom County, the state agency in charge – the Department of Ecology – has hesitated, stumbled, apologized and pretty much done everything it can to avoid dealing with the problem.

With respect to Lynden, the city’s latest plan to stop stealing water is not to actually stop stealing, or to adopt aggressive water conservation, or to purchase and transfer existing rights, or any other water budget neutral solution.  No, instead Lynden wants credit for the wastewater that the Darigold powdered milk plant is already putting into the Nooksack River a mile downstream of the City’s water treatment plant.

The problem with this scheme, however, is that it too is illegal.

  • Darigold doesn’t own its wastewater, and can’t transfer it to the City.
  • The wastewater is already in the river so the “offset” is illusory.
  • Even if it weren’t illusory, there’s still a mile of river (and salmon habitat) that would be de-watered.
  • The wastewater from the Darigold plant is not “foreign water” (see below for more on the amazing concept that milk is foreign water).

Given all this illegality, Lynden is now asking the WA Legislature to make it all good.  And amazingly, the Legislature is complying.  Senate Bill 5298 sailed through the Senate, and was heard in the House Ag & Natural Resources Committee on March 24, 2015 – and could pass out of the committee and on to a floor vote sometime soon.

So, just to review.  A city that has been stealing water and harming flows in the Nooksack River has asked the Legislature to change the law to allow it to get credit for wastewater that is already being put into the River.  And the Legislature is prepared to do it.

So, why is water stealing such a big deal?

Nooksack River IRPP flows v fish flows

Redline – WA state’s take on flows to protect Nooksack River instream values Greenline – Flows actually need to protect instream values.

First, there’s the river.   In 1985, the Department of Ecology adopted an instream flow rule for the Nooksack River.   However, these instream flows were a compromise and not adequate to protect fisheries.  The graph at right shows what flows are needed (green line) versus what flows are protected under the law (red line).

Nooksack River percent days flows unmet (ECY 2015)

Fascinating graph showing how often the rule-based instream flows are not met throughout the year.

And that red line is not reality. The flows that are supposed to be protected in the instream flow rule are in fact often not achieved.  So water stealing by Lynden (and others) really does hurt the river and its fish.

Second, the Legislature is rewarding a scofflaw.  And this is really bad policy, because there are quite a lot of water thieves in Washington – in Whatcom County and elsewhere.  If the Leg gives in on this one, where does it end?

Third, is the “foreign water” concept – the idea that the mitigation water from the Darigold plant is adding new water to the Nooksack River.  In western water law “foreign water” means water that is imported from another watershed.

But here, the Department of Ecology has determined that Darigold wastewater is foreign because it comes from the cows.  In other words, the cows drink Nooksack River water, and they produce milk.  But once the milk comes out of the cow, it’s foreign water.

Once you’ve had a good laugh about that, feel free to call your legislator and ask that they stop rewarding water thieves, including the City of Lynden, and oppose SSB 5298.

More laughs and lots of good information about water and land use in Whatcom County can be found at Get Whatcom Planning.