Lummi Nation is privately shopping the outlines of a settlement agreement that could help end Whatcom County’s water dispute.
Lummi officials will host a meeting Friday, July 17, with representatives from the county government and the cities of Bellingham and Lynden. The tribe has already presented what it is calling the “Lummi conceptual proposal” to the Nooksack Indian Tribe, state agencies, the county’s public utility district for water, and local farmers.
The dispute involves how hundreds of water rights in the county affect each other, and how all of them could become constrained by a “water right” reserved for the Nooksack River and its tributaries to provide adequate habitat for salmon and other wildlife. The two tribes assert that the right to enough water for fish comes before all human uses of the water, whether agricultural, industrial or municipal.
Meanwhile, some farmers are irrigating their fields more than their water rights allow, or without any water rights.
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The various parties to the negotiations agree on some level that an ideal agreement would set aside enough water for everyone to get some.
It’s unclear ultimately what the amount of water set aside for streams will be. The tribes in 2011 asked the federal government to resolve the issue once and for all. (Both tribes submitted separate requests. The Lummis’ eight-page letter from June 6, 2011, to the Department of the Interior can be read here.)
Lummi representatives have been calling for a negotiated settlement agreement among interested local parties, to make whatever decision a federal court makes more acceptable to all involved.
“In the opinion of the Lummi Nation and my personal opinion as well, litigation is needed to achieve ... certainty and finality,” Lummi water resources manager Jeremy Freimund said at a public forum on water in March 2014.
“I know a lot of people get upset about litigation but the reality is, to get that certainty and finality, litigation is going to be required. It’s just a matter of if it happens before, during or after you negotiate,” Freimund said at the time.
Freimund invited county, Bellingham and Lynden officials to a meeting on Friday, July 17 to discuss the conceptual proposal. The invitation came in an email sent June 10, copied here in full:
From: Jeremy Freimund
Sent: Wednesday, June 10, 2015 4:17 PM
To: 'Fogelsong, Clare G.'; 'Kraham, Amy B.'; Tyler Schroeder; Jon Hutchings; Daniel Gibson; Steve Banham; Mike Martin; Mark Personius
Cc: Merle Jefferson Sr.; Leroy Deardorff Sr.; James S. Stroud; 'Harry Johnsen [email@example.com]'; Victor Johnson; Frank Lawrence III; Allen, Douglas R. (ECY); 'Cykler, Kasey (ECY)'; 'Tom Laurie'; McPherson, Robin (ATG); 'Tom Schlosser'; Gary MacWilliams; 'Oliver Grah'; Ned Currence; Treva Coe; 'Steve Jilk'
Subject: Meeting Regarding the Lummi Nation Conceptual Water Settlement Proposal for the Nooksack River Watershed
I hope that you are doing well. As a few of you may have heard, the Lummi Natural Resources Department has developed a conceptual settlement proposal for the water rights conflict in the Nooksack River watershed. We have received policy approval from LIBC representatives to determine whether or not the broader community supports or at least is not opposed to the conceptual proposal. So far, we have met with representatives from the Nooksack Indian Tribe, Washington Department of Ecology, Washington Attorney General’s Office, PUD No. 1 of Whatcom County, and representatives from the Whatcom County agricultural community to present the conceptual proposal, to solicit feedback, and to determine if there is interest in further developing the concepts in the proposal. So far, so good but we all understand both that the “devil is in the details” and that we need to have the support of the majority of the community if this effort to reach a settlement agreement is going to be successful.
The Lummi Natural Resources Department, the Department of Ecology, and a representative from the Washington Attorney General’s Office met again today. One outcome of the meeting today is the desire to have a joint meeting with representatives from the City of Bellingham, Whatcom County, and the City of Lynden to continue this effort. To be clear, although there will be representatives from the State of Washington to answer any questions that you may have for them, we will be presenting and soliciting feedback and interest on what is currently being called the “Lummi Conceptual Proposal”. Our preferred time and location to meet is July 17, 2015 from 9 am to noon at the Lummi Administrative Building. There is limited flexibility during that week of July 13th but the morning of the 17th was identified as the date and time that everyone in our meeting today could make. Attached is the agenda that we have been using in similar introductory meetings.
As you can see from the distribution list of this email, not including the parties on the cc line, you are all upper level administrative staff from the City of Bellingham, Whatcom County, and the City of Lynden. Please feel free to invite your mayor or executive to the meeting and/or a key council person if they would like to hear what is going to be said first hand. I have included legal staff from the City of Bellingham and Whatcom County in the invitation – I do not know who would provide legal counsel to the City of Lynden in this matter but please feel free to invite the appropriate person.
For planning purposes, please let me know how many people from your government will attend the meeting. Thanks for your consideration.
Reached by phone on Thursday, July 16, Lummi Chairman Tim Ballew said the proposal was part of ongoing negotiations with local governments and other groups.
“This will be a next step toward the work we’ve been doing, and depending on the response from the other water users there’s steps afterward that could be taken,” Ballew said.
Will the conceptual proposal be developed into something that could inform the federal-court decision on stream flows?
“It’s too early on in the process to actually say how that would work,” Ballew said.
Henry Bierlink, executive director of Whatcom Farm Friends, confirmed that farmers who recently organized into watershed improvement districts so they could be at the table in water discussions already heard from the Lummis about the proposal.
He said Lummi officials asked farmers not to talk publicly about the plan until all affected parties get to see it and respond to it.
“Some of the ideas work, some of the ideas won’t but it’s worth talking about,” Bierlink said of the plan.
The state Department of Ecology, which issues and enforces water rights, has been in the negotiations with Lummi Nation.
In response to questions about the Lummi plan, Ecology spokeswoman Krista Kenner offered this written statement:
We’ve had preliminary discussions with the Lummi Nation to explore some of their ideas that may help solve some of the complex water interests in the Nooksack watershed. Ecology is committed to finding sustainable water solutions that ensure future water for fish, irrigation for valuable Whatcom County agriculture, and a growing population. We hope the Lummi Nation can be an integral part of this process, along with local governments and farmers.