Seven dairy farms in Whatcom County have reached an agreement with Lummi Nation to keep their cows’ manure out of Portage Bay and to compensate the tribe’s shellfish harvesters for the loss of their ability to harvest because of fecal coliform pollution there.
The bay is home to the tribe’s commercial, ceremonial and subsistence shellfish beds, where about 800 acres are now closed six months out of the year because of fecal pollution in the Nooksack River and streams that empty into it.
Fecal coliform bacteria come from human and animal feces. The bacteria enter Whatcom County’s waterways from a number of sources – horse and cow manure, pet and wildlife waste, and failing septic systems – and indicate there could be pathogens absorbed by the shellfish that may sicken people who eat them.
The two sides signed the agreement Thursday, after 15 months of talks.
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As a tribal leader, my job is to protect my tribe’s treaty rights. Sitting back and doing nothing is not an option.
Lummi Chairman Timothy Ballew II
They said they were working together instead of going through a lengthy and acrimonious legal battle. The farms that signed the agreement were the ones the Lummis originally had planned to sue.
The decision to instead form a Portage Bay Partnership, among other steps, will “set a path forward for clean water for the community,” Lummi Chairman Timothy Ballew II said.
The goal is to reopen the Lummi’s shellfish beds, which could take at least two to three years, if not more.
“As a tribal leader, my job is to protect my tribe’s treaty rights,” Ballew said. “Sitting back and doing nothing is not an option. We are willing to take the steps necessary and take the time needed to correct the problem.”
Dairy farmer Rich Appel said a court battle would have “destroyed” the farms.
Appel Farms wasn’t among the seven that could have been pulled into the legal battle, but Appel was among a group of eight people – four farmers and four Lummi leaders – that negotiated the agreement.
Farmers said the agreement is a chance for the agriculture industry and the tribe to, for the first time, forge a working relationship.
“We and the Lummis probably have not understood each other for years. We did our thing out here and they did their thing over there,” said Larry Stap, co-owner of Twin Brook Creamery, a dairy farm north of Lynden that has been in the family since 1910.
“We have to understand each other and talk and learn about each other,” added Stap, one of the farmers who signed the agreement.
What the agreement does
▪ $450,000 in compensation for the estimated 250 Lummis who have lost income because they haven’t been able to commercially harvest shellfish, specifically clams, since the Portage Bay beds were closed in 2014-15. Dairy and other farmers in Whatcom County are picking up the cost. The harvesters will be compensated until the beds are reopened.
▪ Creating water quality improvement plans for the farms that are part of the agreement. Two farms will start, and experts agreed upon by the farmers and the tribe will create the plans, which will be finalized by May 1, after going out to the farms and inspecting their operations. The legally binding plans will be specific to each site. The same process will be used for the remaining five farms.
Farmers said it will allow them to show the tribe what they do to protect water quality, including regulatory requirements under the Dairy Nutrient Management Program overseen by the Washington State Department of Agriculture and the Washington State Department of Ecology.
“We’ve never said that we can’t improve or that we don’t impact water quality. Agriculture is a big part of Whatcom County,” Appel said.
Stap said it showed that dairy farmers were stepping up to the plate.
“If we have problems,” he said, “we’re more than willing to correct them.”
▪ Money to enhance the Lummi shellfish beds.
▪ Forming the Portage Bay Partnership, which will allow farmers and the Lummis to unite to clean up water.
That could include tackling other possible sources such as stormwater, hobby farms, and cross-border pollution from streams coming south from Canada.
Appel said improving water quality will require a greater countywide effort.
Ballew hoped other farmers will join.
“In all honesty, it’s going to take more than the initial round of signatories,” Ballew said. “One of the many goals of the Portage Bay Partnership is to encourage other folks to be part of the solution.”
There are about 95 dairy farms in Whatcom County.
Merle Jefferson, executive director of the Lummi Natural Resources Department, also hoped the seven farms will be joined by others.
“Farms are not wholly responsible for the contamination,” Jefferson said, “but the farms that have joined the partnership are stepping forward as leaders in fixing it, and we hope others will follow their example.”
To Appel, the agreement is about what both sides want and share.
“I look at a relationship with the tribe as something that can give us some surety for the future. They’re looking for some surety for their future. They need clean water. They want to be able to pass these things onto their children,” Appel said. “I get that. I want to be able to pass my farm on to my children.”
Years of frustration
The last time shellfish beds in Portage Bay were closed because of high levels fecal coliform pollution was in 1996.
At that time, the state Department of Ecology and the Environmental Protection Agency led a cleanup plan using state legislation approved in 1998 that required dairy farms to undergo routine inspections and create written plans for containing manure and preventing it from washing into public waterways. Before 1998, dairy farms were inspected only if a complaint was lodged against a farmer.
Failing septic systems and municipal sewage systems also were addressed.
The effort cleaned up the Nooksack River and its tributaries, and allowed 625 acres of tribal shellfish beds to reopen in 2003, and the last 115 acres to reopen three years later.
“Our people were damaged,” Ballew said of that closure.
In recent years, the Lummis have expressed concern about water quality once again degrading because cuts to budgets and enforcement created regulatory gaps.
Given the history of the first closure, Stap said he understood why dairy farmers would come under suspicion again.
But he has faith the industry is doing the right thing now.