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Whatcom Water Insanity Part 1: Lynden Water Stealing & Milk as “Foreign Water”

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WRIA 1 Map (Dept of Ecology)

Nooksack Watershed Map (Dept of Ecology)

This is a story, the first of many, about water resource issues in Whatcom County.  Whatcom County is well known as a place where a lot of people and farms and companies steal water.  One of the water thieves is the City of Lynden.

 

Bald Eagles

Bald eagles fishing for salmon in the Nooksack River (Photo Seattle Times)

By water thieves, we mean farms, dairies, cities and anyone else who takes water out of the Nooksack River (including tributaries and connected groundwater), without a water right.   This is wrong – it is stealing.  It hurts the river and its salmon and steelhead and the shellfish beds in the bay.  However, for decades, rather than bring enforcement action to halt water stealing in Whatcom County, the state agency in charge – the Department of Ecology – has hesitated, stumbled, apologized and pretty much done everything it can to avoid dealing with the problem.

With respect to Lynden, the city’s latest plan to stop stealing water is not to actually stop stealing, or to adopt aggressive water conservation, or to purchase and transfer existing rights, or any other water budget neutral solution.  No, instead Lynden wants credit for the wastewater that the Darigold powdered milk plant is already putting into the Nooksack River a mile downstream of the City’s water treatment plant.

The problem with this scheme, however, is that it too is illegal.

  • Darigold doesn’t own its wastewater, and can’t transfer it to the City.
  • The wastewater is already in the river so the “offset” is illusory.
  • Even if it weren’t illusory, there’s still a mile of river (and salmon habitat) that would be de-watered.
  • The wastewater from the Darigold plant is not “foreign water” (see below for more on the amazing concept that milk is foreign water).

Given all this illegality, Lynden is now asking the WA Legislature to make it all good.  And amazingly, the Legislature is complying.  Senate Bill 5298 sailed through the Senate, and was heard in the House Ag & Natural Resources Committee on March 24, 2015 – and could pass out of the committee and on to a floor vote sometime soon.

So, just to review.  A city that has been stealing water and harming flows in the Nooksack River has asked the Legislature to change the law to allow it to get credit for wastewater that is already being put into the River.  And the Legislature is prepared to do it.

So, why is water stealing such a big deal?

Nooksack River IRPP flows v fish flows

Redline – WA state’s take on flows to protect Nooksack River instream values Greenline – Flows actually need to protect instream values.

First, there’s the river.   In 1985, the Department of Ecology adopted an instream flow rule for the Nooksack River.   However, these instream flows were a compromise and not adequate to protect fisheries.  The graph at right shows what flows are needed (green line) versus what flows are protected under the law (red line).

Nooksack River percent days flows unmet (ECY 2015)

Fascinating graph showing how often the rule-based instream flows are not met throughout the year.

And that red line is not reality. The flows that are supposed to be protected in the instream flow rule are in fact often not achieved.  So water stealing by Lynden (and others) really does hurt the river and its fish.

Second, the Legislature is rewarding a scofflaw.  And this is really bad policy, because there are quite a lot of water thieves in Washington – in Whatcom County and elsewhere.  If the Leg gives in on this one, where does it end?

Third, is the “foreign water” concept – the idea that the mitigation water from the Darigold plant is adding new water to the Nooksack River.  In western water law “foreign water” means water that is imported from another watershed.

But here, the Department of Ecology has determined that Darigold wastewater is foreign because it comes from the cows.  In other words, the cows drink Nooksack River water, and they produce milk.  But once the milk comes out of the cow, it’s foreign water.

Once you’ve had a good laugh about that, feel free to call your legislator and ask that they stop rewarding water thieves, including the City of Lynden, and oppose SSB 5298.

More laughs and lots of good information about water and land use in Whatcom County can be found at Get Whatcom Planning.

 

 

 

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Author: naiads

Opinionated public interest water lawyer

2 thoughts on “Whatcom Water Insanity Part 1: Lynden Water Stealing & Milk as “Foreign Water”

  1. Pingback: The Tale of the Nooksack Nine, or, the Rewards of Water Thievery | Naiads

  2. Pingback: Nooksack Water Thievery Redux | Naiads

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