Whatcom farmers see Hirst decision as opportunity to update outdated water law

Whatcom farmers say Ecology regulations and recent court decisions prevent them from pursuing efforts that would improve fish habitat and instream flow conditions while ensuring farmers have water to grow food.
Whatcom farmers say Ecology regulations and recent court decisions prevent them from pursuing efforts that would improve fish habitat and instream flow conditions while ensuring farmers have water to grow food. The Bellingham Herald

The family farmers of Whatcom County thank County Executive Jack Louws and County Council Chairman Barry Buchanan for their efforts to address the water access crisis caused by a deeply flawed Washington Supreme Court Hirst decision. The Dec. 11 guest editorial in The Bellingham Herald appropriately called on the state Legislature to address the near-impossible restrictions on access to water through private domestic wells.

The very dark cloud affecting the lives and futures of many of our fellow community members may have a silver lining. It opens the way for the Washington state Legislature to address the outdated state water laws and policies that have been presenting serious problems to farmers for many years. We are blessed with abundant water in our river, streams and most importantly our huge and mostly untapped aquifers.

Despite use by families, municipalities and farmers in both Canada and Whatcom County, our aquifer is fully recharged by abundant rainfall and snowmelt every year. We don’t have a water shortage crisis, however, we do have a water access crisis – a crisis that has now reached beyond farmers to rural property owners.

Water access

Ecology regulations and recent court decisions prevent Whatcom farmers from pursuing efforts that would improve fish habitat and instream flow conditions while ensuring farmers have water to grow food. Ecology’s theory of “hydraulic continuity” – accepted over a decade ago by the Supreme Court, means that a new groundwater use may be denied if even a single molecule of groundwater would have provided instream flow. This “hydraulic continuity” theory has impacted agriculture for years, and now under the Hirst decision applies equally to a rural landowner seeking a residential building permit.

When Ecology adopted its 1985 Nooksack Instream Flow rule, the regulation closed surface water but not groundwater – until the “hydraulic continuity” theory arose years later. This theory has made Ecology’s rule completely unworkable – for farmers and rural landowners alike. Further, Ecology’s rule closes surface water even during winter months when flows are high – preventing farmers from exploring creative water management options used in other parts of the state and country.

The state Supreme Court ruling on “water for water” mitigation a few years ago means habitat mitigation that would achieve more benefits for fish is less important than trying to meet a numeric flow level adopted on paper. This decision is harmful to efforts to protect fish habitat in addition to hurting farmers and now landowners and shows why we need our elected representatives, rather than judges, to address these issues.

Conservation efforts

Farmers take water and habitat protection seriously. We worked with the Conservation District to plant almost 250 miles of stream buffers and over 1.5 million seedlings to protect water quality and help keep water cool. As private landowners through the Watershed Improvement Districts we have the will and ability to continue restoring fish habitat, but we need our habitat restoration and water supply efforts to be allowed to work together.

Water conservation is another high priority for farmers and provides another example of where our outdated water laws hurt conservation. Dairies use 60 percent less water per unit of milk produced than a generation or two ago and most berry farmers have installed micro-irrigation that significantly increases efficiency. But this conservation is punished by our state’s archaic “use it or lose it” relinquishment law. Any part of a water right not used for five years is subject to relinquishment – and so the water-efficient farmer is punished. This law was adopted to encourage rapid settlement and water use in the long gone “wild west” – the time for such a law is now over.

Protecting salmon

While there are many causes for the decline of the once massive salmon runs, no one doubts the importance of adequate stream flows to protect fish. Because of the importance of treaty rights, costly decisions are made based on “an abundance of caution” rather than on solid science and an in-depth understanding. Farmers through our six Watershed Improvement Districts have improved stream flow substantially by converting their rights to take water from streams to draw from the massive and fully recharged aquifer instead. More than that they are actually working to draw water from the aquifer and put it into the streams at critical times to improve stream flow and reduce temperature. Court decisions about presumed “hydraulic continuity” are halting these efforts to improve fish habitat. Such decisions need to be based not on assumptions but solid science. The Groundwater Modeling study, supported by the Watershed Improvement Districts, is designed to provide a solid basis for understanding that link. The state’s policy makers have to go beyond unproven, counter-productive assumptions and use best available science including the Groundwater Modeling study.

The financial hardships faced by our neighbors because of the Hirst decision are very real. But if its impacts spur the Legislature toward long overdue action something good will come of it. Its obvious flaws are drawing public and legislative attention to very important issues that our leaders have been dodging for far too long. Along with our county leaders, we urge our representatives to take a serious look at the outdated state water laws and enable farmers and citizens to do the right thing to protect our streams, fish, farms and our families.

Fred Likkel is executive director and Brad Rader is president of Whatcom Family Farmers.