Bureaucracy, inefficiency hinder Whatcom watershed planning group

THE BELLINGHAM HERALDMarch 30, 2014 

The planning unit has maybe the most uninspired name of any government body, but most of the players in Whatcom County's complicated water-rights dispute say its role is vital.

The planning unit brings those who otherwise would have little or no voice into the discussion of how to divvy up the overextended water supply in the Nooksack River basin.

Citizen supporters, especially rural conservatives, say the planning unit can defend against current threats to water use. Some farmers who are irrigating without water rights could be cut off and forced to shut down. Rural landowners may not be able to drill water wells if they might draw down nearby salmon streams.

"Since many landowners in Whatcom County who are on private wells or who irrigate have not been required to hold a legal water right in the past, the implications involved are huge," wrote the Building Industry Association of Whatcom County in a blog post on the association's website.

But the planning unit has been swimming upstream in unfriendly waters since restarting six months ago, after four years of inactivity. Funded a decade ago by six-figure grants from the state, the planning unit is now on a short-term, shoestring budget. It is under pressure to work faster and accept a reduced role.

EARLY DAYS

The planning unit is the product of a 1998 state law setting up a mechanism for watershed planning. The state was divided into water resource inventory areas - another ungainly name - in which water quality and quantity, and protection of salmon, would be considered. The Whatcom planning unit, made up of representatives from development, farming, forestry and other groups, came up with a plan for improving the Nooksack watershed and a priority list for projects. It's also been overseeing studies of groundwater and stream flows, and compiling data.

The Whatcom County Council approved the Nooksack plan in 2005. It included language that kept the planning unit intact, to review progress on the plan and recommend changes. By early 2009, the value of the planning unit was being questioned, and it quietly went away.

"The planning unit really didn't have a job to do," said Jon Hutchings, who in 2009 worked for the county public works department. He is now with Bellingham public works. "The planning effort had been consummated. ... They were not meeting regularly, and when they were meeting they were getting updates on the work (of other organizations)."

Skip Richards, an original member of the planning unit who still represents nongovernmental water systems, said planning unit meetings were stopped after he and others questioned whether the 2005 plan was being carried out properly. Shortly after that issue was raised, a watershed planning "staff team" proposed taking the planning unit out of the decision-making loop and making it only advisory, Richards said. Shortly after that, the staff team stopped scheduling planning unit meetings.

TRIBES ABSENT

State law envisions a role for tribes on the planning unit, but from the beginning Lummi Nation and the Nooksack Tribe decided not to participate.

"The longstanding policy of the Lummi Nation is to work in a government-to-government relationship," the Lummi Indian Business Council wrote in an email to The Bellingham Herald. The planning unit mixes governments and nongovernmental groups.

The tribes and the three other governments overseeing watershed planning - the county, Bellingham and the Public Utility District of Whatcom County - formed a joint board that gave the tribes a direct role in watershed planning. The joint board is not called for in state law but rather was formed locally, with a structure decided by the five governments.

The joint board gave itself extensive authority. According to agreements among the governments approved from 1998 to 2000, the joint board can write its own budget and spend money without oversight from any other government. It can determine the makeup of the planning unit, and it can review and approve the planning unit's decisions. Final authority for watershed planning still rested with the County Council.

MARGINALIZED ROLE

With the added layer of the joint board, and the influence wielded by the tribes in water-rights negotiations, the planning unit now appears to be on the outside looking in.

The group got $22,000 in 2013 from the joint board and the County Council to spend on a meeting facilitator. After the money ran out, the joint board this year declined to fund the planning unit. The County Council on March 11 asked the county executive to write up a budget proposal with $20,000 for the planning unit to continue meeting for the next six months.

But county Executive Jack Louws gave the planning unit an ultimatum: streamline its "glacial" decision-making process (as planning unit member Perry Eskridge once called it) and finish its to-do list. The planning unit got none of its goals accomplished in the past six months, Louws said.

"Give it one more shot and give them one more opportunity to make it happen," he said.

Past and present planning unit members who represented agriculture also disapproved of funding the planning unit in its current form.

Charles Antholt, a Western Washington University professor and former planning unit member, said the time for planning is over. It's time to act on the plan, which is nearly a decade old.

The farmers operating with an inadequate water right could benefit from further study of the groundwater - how much there is, and where it connects to streams.

"Farmers want to see that get done and done soon," Antholt wrote March 10 in an email to the County Council.

TRIBAL DEMANDS

The biggest voice of all will continue to belong to the tribes. The Nooksacks and Lummis in 2011 filed a request with the federal government to litigate and finally resolve the water dispute - at least the part that involves their instream flow rights. They argue the instream flow, which simply is a water right for salmon, would rank higher than any water rights established since settlers started staking claims some 150 years ago.

Local tribal and government officials are trying, off and on, to negotiate an agreement on instream flow to avoid having a federal judge make the decision for them. Even if the local parties come to an agreement, it would need to go to court.

Tribal and local-government officials agree a resolution is years away.

With so much depending on the outcome of a court case that has yet to be filed, what can happen in the meantime?

"I think there's a lot of significant things we can get done," County Council Chairman Carl Weimer said. "Most of the water quality things we have in front of us ... even some of the water quantity issues." Weimer got the council to agree on a water action plan, a wide-ranging accounting of the county's water problems with a call to prioritize them in the 2015-16 budget. Weimer asked the planning unit to help work on most of them.

Council member Barbara Brenner is skeptical of the planning unit's chances for success. Part of the problem is that the joint board wields too much power, she said.

She isn't giving up on the planning unit, though.

"It's going to be hard, but we need it," she said. "The outcome either could completely fail or be excellent."

The planning unit's biggest task will be to prepare the county for the court case requested three years ago by the tribes, Brenner said.

"The planning unit is the key to litigation," she said. "They will have all the information and data for us when we end up in court, and I'm sure we will."

Reach Ralph Schwartz at 360-715-2289 or ralph.schwartz@bellinghamherald.com. Read his Politics blog at bellinghamherald.com/politics-blog or get updates on Twitter at @bhampolitics.

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