Opinion

Community Conversation: Steps to bring water use into compliance with state law

Here is a truly boring start to a controversial opinion piece. Proposed policy 8A-2-10 of Whatcom County’s draft comprehensive plan calls for “Securing an adequate, sustainable and legal supply of irrigation water to support the long-term viability of the local agricultural industry.”

Widespread illegal water use: With rare exceptions, all water users must have a valid permit before taking water from streams, rivers, and lakes or from groundwater wells. However, up to 70 percent of agricultural water use in Whatcom County 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 users lack any permit at all. Because agriculture accounts for 65 percent of summer use, when water supplies are critically low, bringing farmers into compliance with water law is a major issue.

The proposed policy articulates a noble and lofty goal. Unfortunately, as far as I can tell, neither the county nor the state Department of Ecology is making much progress to achieve this goal.

Solutions are challenging: In fairness, finding a solution to this problem is complicated and involves many moving parts and players. In particular, resolution requires close cooperation among the Lummi Nation and Nooksack Indian Tribe, farmers, Ecology and the county. The tribes are essential because their treaty rights and associated senior water rights would allow them to block any solution that they believe would limit future water use on tribal lands, hurt salmon recovery or reduce instream flows.

Ecology must be part of this process because it is the agency charged with enforcing state water law, including the granting of water permits. Whatcom County is important because of its responsibilities, under the Growth Management Act, to harmonize land-use and water-resource planning (such as ensuring that zoning matches water availability and that agricultural lands have sufficient legal water). Farmers must be involved because they are the ones making changes, and they must believe that the solutions are fair. Finally, the process must have a firm deadline (such as 5 or 10 years) to ensure that participants compromise and work hard to create and implement a real solution.

Steps toward resolution: A necessary first step is to identify the number, extent, and variety of water uses that lack adequate permits. Ecology does not have such data: it does not know the locations of water extraction, locations of water use, purpose of water use, and annual amounts used vs. allowed (acre-feet). Farmers know, but they have no incentive to report unlawful behavior.

The next step is to define mitigation requirements for various categories of illegal water use. For example, a farmer who is only slightly out of compliance with the terms of his/her permit might be required to pay a nominal one-time fee to be brought into compliance. At the other end of the spectrum (use of water with no permit at all), the farmer might pay a substantial fine (state law allows fines up to $5,000 a day for each violation of water law) and pay a fee for water used without a permit for the next several years. At that time, the farmer must either have obtained a valid water right (purchased it from someone else) or must stop extracting water. For the intermediate categories, the mitigation requirements might involve relinquishment of development rights, creation of wider buffers along streams, planting trees along river banks, restoration of wetlands, and/or a monetary payment. Mitigation for all categories should require metering and monthly reporting of water use to Ecology.

It will take time: Because this proposal is complicated and controversial (farmers will want water rights for free, the tribes will oppose actions that might worsen instream flows), it might take several years to achieve full compliance with state law. However, at that time zoning, water rights, soil quality, and other relevant agricultural factors will finally be aligned in a way that protects and promotes long-term agricultural productivity and environmental quality in Whatcom County.

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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