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The Tale of the Nooksack Nine, or, the Rewards of Water Thievery

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This is Part 2 of a series on Whatcom Water Insanity, covering illegal use of water in the Nooksack River basin.  See Part 1 here.  See paragraph at bottom for two post-publication corrections.

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ferndale-wa aerial (landsat.com)

Nooksack River wrapping around farms near Ferndale, WA. (Image: Landsat.com)

Just as California drought provides compelling lessons about the price – economic, social, and environmental – being paid for water mismanagement, we also have examples in Washington State.

Whatcom County is notorious as one of the most lawless water basins in Washington State.  For years, illegal water diversions from the Nooksack River have been reported in articles, conference presentations, legislative testimony and more.

And what’s crazy is that this illegal use has actually become an accepted modus operandi.  Nevermind that diverting water without a permit is a misdemeanor, or that stealing water causes systemic harm to the environment, including endangered fisheries and water quality.  Rather, there appears to be widespread agreement that illegal use of the waters of the Nooksack watershed is nothing more than business as usual.

No one has done anything about it – until now.  Unfortunately, what’s being done is dead wrong.

The Department of Ecology has claimed (for years) that it lacks the resources to identify and enforce against unpermitted water use in Whatcom County.

Nooksack chinook (NWIFC)

Nooksack Chinook running the gauntlet of low flows (Image: NWIFC)

In 2013, the Lummi Nation decided to assist on the data collection side of the matter.  Tribal staff floated the Nooksack River in the vicinity of Deming, Washington.   GPS readings were taken wherever a water diversion pump was found, then compared with the state water rights database.  Thirteen “unpermitted” users were identified.

Lummi Nation staff provided their data to Ecology.  Reasonable minds would expect Ecology to order these malefactors to cease pumping and pay penalties.  This seems particularly important in the Nooksack basin, where a clear signal needs to be sent to end water thievery.

But Ecology did not issue orders or penalties.

Instead, Ecology has decided to reward the illegal diverters by giving them permits.

Ecology has drafted a template to issue water rights to the Nooksack Nine.  Click here to view it.

Nooksack River percent days flows unmet (ECY 2015)This approach would be wrong in almost any circumstance, but it is particularly egregious given the condition of the Nooksack River.  The illegal users will be required to curtail their use whenever Nooksack River flows drop below what’s required in the Nooksack Instream Flow Rule.  As shown in the graph at right, during the irrigation season that happens between 50-75% of the time.

To ensure that water users comply with the terms of their permits, ie, curtail their use 50-75% of the time, requires enforcement.  But lack of resources is the very reason Ecology claims it cannot identify, much less stop, illegal water use in the Nooksack basin.  How is it that Ecology now has the capability to police these permits?

Ecology’s general lack of enforcement capability – particularly in the water resources realm – is well documented.   See, for example, Dan Chasan’s 2000 study, “The Rusted Shield,” or the Center for Environmental Law & Policy’s 2002 white paper, “Dereliction of Duty.”

Just this year, Ecology acknowledged on its website that its poor record of water rights enforcement is dissolving into non-existence.  For the last three years the Washington State Legislature has converted the state Water Resources Program into a permit factory, requiring it to process at least 500 water right decisions per year or lose $500,000 in budget.   As a result, “Ecology staff have needed to reprioritize and temporarily defer some work in other water rights categories including permit management, plan review, seasonal changes, enforcement, and technical assistance.”

So, Ecology will actually get credit for issuing permits to the Nooksack illegal users.

Nooksack River IRPP flows v fish flowsEven more problematic is that the illegal users will be taking water that is needed for fish.  The instream flows established in the Nooksack Rule, adopted in 1985, are out of date and scientifically unsupported.  These rule-based flows, even when met, are not adequate to protect salmon and other species.

Pursuant to the Nooksack (aka WRIA 1) watershed planning process, to which Ecology has contributed about $800,000, studies demonstrate that higher flows are needed for fish.  The graph at right compares the appropriate biological flows (in green) with the flows set forth in the rule (in red).

These flows are derived from studies that Ecology funded and concurred in.  So why is the agency issuing new permits conditioned only on meeting the lower flows?

The bottom line is that the Department of Ecology should not be issuing water rights that will drive the river toward the red line flow, and fail to preserve the ability to restore water to the green line flows.   Ecology especially should not be issuing new water rights to scofflaws who for years have stolen the public’s water.

This situation reveals the unseemly essence of Washington state water resource policy.  Every drop of water that can be justified as available – even under the thinnest of pretexts — will be allocated for out-of-stream use.  We see it not just in the Nooksack, but in river basins throughout the state.

The state’s “water grab” policy — combined with exercise of unused municipal water rights, water thievery and waste, and the depleting impacts of drought and climate change — will destroy the public interest and values in Washington’s rivers.  You don’t have to look to California to see the devastating consequences of a state mismanaging the public’s water.

This is the second article in a series focusing on water resource issues in Whatcom County, Washington.  Part 1 addresses the City of Lynden’s efforts to get the Legislature to change the law and “fix” its illegal usage.  Readers should also check out the superlative water & land use blog, Get Whatcom Planning.

We’ve made two corrections to this article since original publication.  First, the tribal survey of illegal diversions occurred in the Deming reach of the Nooksack River (not the Ferndale reach).  Second, the Department of Ecology contributed $800,000 toward watershed planning, not $2 million.  The other $1.2 million has been spent on post-planning technical work and instream flow negotiations.

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Author: naiads

Opinionated public interest water lawyer

3 thoughts on “The Tale of the Nooksack Nine, or, the Rewards of Water Thievery

  1. Pingback: Drought Conundrums | Naiads

  2. Pingback: Nooksack Water Thievery Redux | Naiads

  3. Pingback: Nooksack Water Thievery Redux / Naiads, Rachel Paschal Osborn | noisy waters northwest

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