Guest editorial: Whatcom County's water rights are in danger, litigation pending

Published on Wed, Aug 14, 2013 by Roger Brown

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In 1998, Puget Sound Chinook salmon were listed as “threatened” under the Endangered Species Act (ESA). This designation meant that these fish were vulnerable to eventual extinction and required urgent development of a recovery plan to protect them. 

A key part of the recovery plan adopted for Puget Sound Chinook was the Watershed Planning Act (WPA- RCW 90.82), that allowed each region to assess its own water situation and to set goals and objectives for water resource management by developing a watershed management plan. 

A critical consideration was to organize planning at the local level “… by placing it in the hands of people: Who have the greatest knowledge of both the resources and the aspirations of those who live and work in the watershed; and who have the greatest stake in the proper, long-term management of the resources,” RCW 90.82.010.

Each of the plans developed under the WPA was specific to a particular region, called a Water Resource Inventory Area (WRIA). Our area is designated as WRIA 1 and includes the Nooksack basin, the Drayton Harbor basin and most other areas of Whatcom County. 

The entity responsible for directing planning was called the Planning Unit, and was designed to give a meaningful voice to local governments and a substantial array of community interests. The county, Bellingham and the Public Utility District #1 (PUD) were represented with individual seats at the Planning Unit.

Small cities and water districts participated in planning through a caucus structure, which allocated one seat at the table to each caucus. The city of Blaine participated in the Small Cities Caucus and Birch Bay Water and Sewer District participated in the Water Districts Caucus. Additional caucuses represented agriculture, land development, private well owners, water associations, fishers, forestry and environmental interests.

The meetings of the Planning Unit were open to the public and the scope of its planning responsibility was extremely broad – covering water quantity, water quality, habitat and in-stream flows (that is, the amount of water required in streams, principally to support fish). 

Beginning its work in 1999, the Planning Unit produced the WRIA 1 Watershed Management Plan in 2005 and the Detailed Implementation Plan in 2007. Under these plans, the Planning Unit was to continue to operate after plan approval to oversee development of in-stream flow recommendations and to approve plan updates.

Unfortunately, certain problems have arisen that present serious concerns for the region in general and for Blaine and Birch Bay in particular.

First, the community-based planning concept found in the WPA has been discarded. The WPA’s open and inclusive process has been set aside, and legitimately interested stakeholders have been excluded. To understand how this problem came about, it is necessary to go back to January 2000, when the tribal governments chose not to participate in the Planning Unit. 

To bring the tribes into the discussion, Bellingham, the PUD and the county signed an interlocal agreement with the Nooksack and the Lummi, under which these five entities would operate as a joint board. The joint board was to “… carry out the purposes of RCW 90.82,” and received extremely large allocations of county funds ($5.5 million between 2000 and 2003). 

Regrettably, this well-intended effort had the effect of creating a planning forum that could rival and potentially undermine the Planning Unit, which is in fact what happened. At this point, there have been no meetings of the Planning Unit for more than four years. The Joint Board, which has no statutory warrant to direct watershed planning, operates independently of the county council, approving its own budget and watershed planning actions. 

On July 23, the county council approved a policy calling for restoration of the Planning Unit, but it is unclear how this body can operate effectively while the joint board continues as the county’s predominant water planning agency.

Second, the tribes have written letters to the U.S. Department of the Interior requesting adjudication in federal court of their treaty-based water rights. Although not widely known at the time, these requests were made in 2011 and directly implicate the water rights of Blaine and Birch Bay. The Lummi Nation’s letter to the federal government asserts a treaty right to “fish in the … river systems … emptying into the bays from Boundary Bay south to Fidalgo Bay.” 

This description of the Lummi’s water-right interests clearly includes the Drayton Harbor watershed, where the water rights of Blaine and Birch Bay are located and whose streams support chum, coho, cutthroat, fall Chinook and steelhead. The tribes assert in-stream flow rights sufficient to support their claimed fishing rights in these areas. Adjudicated tribal water rights would be senior to all other rights, and would have to be fully satisfied before other rights could be exercised. 

In recent years, Blaine and Birch Bay have worked together to develop new water rights, increasing available water rights from 4.2 million gallons per day in 2002 to 7.5 million gallons per day in 2010. Although these water rights are based in groundwater, hydraulic connection of groundwater with streams in the area – if shown in court – could result in rulings that reduce or extinguish many Blaine/Birch Bay water rights.

On advice of counsel, we have determined that  the tribes’ requested litigation is highly likely to affect our interests, either by requiring that we defend our claims directly in the initial litigation or by establishing precedents for future cases. Because of these concerns, Birch Bay Water and Sewer District has been working with other water districts to regain our voice in the planning process, re-establish a process that is fair to all parties and prepare for potential litigation over water rights.

 Because of our history of cooperation and shared interest in water rights in the Drayton Harbor watershed, we are committed to careful consultation with city of Blaine policymakers on these critical issues.

Roger Brown is general manager  of the Birch Bay Water and Sewer District  and the water district’s caucus representative to the WRIA 1 Planning Unit.

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