The Lummi Nation and Nooksack Indian Tribe have treaty rights dating to 1855 and perhaps to “time immemorial” that guarantee them the right to harvest salmon. These rights are meaningless unless salmon populations can support a harvestable surplus of salmon. Healthy salmon populations require abundant and properly functioning habitat with adequate supplies of cold, clean water, appropriate substrate in the rivers and creeks and properly functioning riparian areas. The tribes separately wrote to the U.S. Dept. of the Interior asking the federal government to quantify their instream flow water rights, necessary to restore and preserve their rights to harvest salmon.
Salmon and other fish
The fact that Chinook salmon, bull trout, and steelhead are listed as threatened under the federal Endangered Species Act supports the tribes’ claims that their rights are severely impaired. Unfortunately, most Nooksack salmon runs today — not just those officially listed as threatened — are only a tiny fraction of their historical values. Many factors account for this decline, including conversion of forests to agriculture and urban/suburban development; straightening of rivers and streams; construction of dikes, ditches and drains; water pollution; plus ocean-side problems. A key symptom of these problems is that flows in the Nooksack River and its tributaries are often lower than the state Department of Ecology’s minimum flow requirements, which greatly complicates salmon (and other fish) recovery efforts.
Instream Flow Rule
In 1985 Ecology established minimum flows for many points in the Nooksack River basin. Ecology set these levels to protect fish (including salmon), other wildlife, recreation, water quality and aesthetics in the river and its tributaries. These levels are not being met at Ferndale for almost two-thirds of the days in summer. To make matters worse, water temperatures are generally higher when streamflows are lowest, further endangering fish, which prefer cool, moving water. To make matters even worse, low flows are correlated with high water temperatures and low levels of dissolved oxygen, all of which adversely affect fish. Recently, Ecology officials indicated that scientific advances since the rule was prepared would result in higher minimum instream flow requirements. Higher minimum flows mean less water available for human (out-of-stream) uses.
To make matters still worse, global climate change, reduced groundwater flows because of greater groundwater pumping and increases in impervious surfaces, and more surface-water diversions, have slowly reduced summer flows in the Nooksack River. Between 1963 and 2003, flows dropped by 27 percent. Over the past few decades, air temperatures have also increased slightly. These changes increase demand for irrigation and other outdoor water uses, further exacerbating both water-supply and environmental problems.
Implications for use
All out-of-stream uses (residential, commercial, industrial, and agricultural) are junior to those of the Native Americans. Until the tribal rights are quantified by a federal or state court, all other water users are uncertain about their long-term access to water.
This is an especially serious problem for farmers who irrigate. Irrigation is, by far, the largest user of water in Whatcom County, accounting for almost two-thirds of summer water use. Also, as much as 70 percent of agricultural water use violates state law. The degree of illegality varies greatly among farmers, with some water use differing from its permit only in the location of withdrawal/diversion or application, but some water uses are greater than allowed by a permit or lack any permit at all.
I’ve painted a dismal picture of declining fish populations and increasing water scarcity but that need not remain the case. Improve efficiency of water use and increase water supply could help.
ABOUT THE AUTHOR, SERIES
This is one of a continuing series of columns about the water problems and potential solutions in Whatcom County.
Eric Hirst holds a doctorate in engineering from Stanford University and worked for 30 years as an energy policy analyst at Oak Ridge National Laboratory. Since moving to Bellingham more than 12 years ago, he has served on three advisory committees for the city of Bellingham, was involved with the formation and early operation of the Whatcom County chapter of Futurewise and served on the board of RE Sources for Sustainable Communities.
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