Updated Nooksack Watershed Plan Failed

by Eric Hirst

This article is different from the ones I usually write. I pride myself on an analytical approach that is data-driven. This article is about my thoughts and opinions on the recent process in response to legislation passed early last year, the Streamflow Restoration Act. The act required local entities to update the 2005 Watershed Management Plan for the Nooksack River basin. (1) Although much important technical work was done, I think the process largely failed.

Let’s start at the beginning. In 2009, a new, conservative majority was elected to the Whatcom County Council. The council began to undo some of the land-use planning work accomplished by the prior council. In 2011, a group of citizens filed a complaint with the state Growth Management Hearings Board. We objected to the county’s failure to comply with the state’s Growth Management Act. That law requires local governments to consider the availability of water — both legal and physical — when making zoning decisions in rural areas. The county disagreed, asserting that it need only ensure compliance with a rule established by the state Department of Ecology (Ecology) in 1985 concerning minimum flows in the Nooksack River basin. (2)

In 2013, the state Growth Management Hearings Board issued its decision affirming our position that the county must consider potential scarcity of water when it prepares its Comprehensive Plan. Later that year, the voters elected a more moderate/progressive county council. These changes suggested to me that the county would negotiate with us on the best way to respond to the board’s decision.

Sadly, the county decided in early 2014 to stop settlement discussions and, instead, appeal the hearings board’s decision to Superior Court. The case was bumped up to the Appeals Court, which decided in favor of the county. We then filed an appeal with the state Supreme Court in Whatcom County, Hirst (Eric) vs. Western Washington Growth Management Hearings Board. In October 2016, the Supreme Court issued its decision strongly affirming our position and remanding the case back to the hearings board. (3)

Ever the optimist, I thought the county — having heard clearly from the highest court in the state — would be glad to negotiate with us. I was wrong. In meeting after meeting, the county insisted that the Washington State Legislature would “fix Hirst,” meaning undo the court’s decision. (4)

As the 2017 legislative session wound down, the Republicans refused to pass the state’s multibillion capital budget until the Legislature undid the Supreme Court decision, which did not happen. As a consequence, rural property owners in Whatcom County (indeed, throughout the state) were often unable to get building permits for new homes that would rely on wells for their water.

Although many people blamed me or the Supreme Court, I believe the fault lies with the county because of its refusal to consider the possibility that it might lose its case. Whatcom County squandered six years, during which time it could have thought about how best to offset the water used by rural homes.

In January 2018, the Democrats, concerned about the capital budget, gave in, and the Legislature suddenly passed a hastily and poorly written Streamflow Restoration Act. (5) The act undid the court’s decision and allowed construction and use of rural wells to revert to the pre-decision status, effectively ignoring real-world water-supply problems. (6)

The act also required watershed managers in the Nooksack River basin to update the 2005 watershed management plan. The purpose of the update was to mitigate (offset) the water (both indoor and outdoor) expected to be used by households living in new rural homes that use wells to supply their water over the next 20 years. The one-year deadline was too short.

Ably led by staff from the Department of Ecology and the Whatcom County Public Works Department, the process got underway soon after the law passed. The agencies hired consultants to conduct important background research. The work accomplished by the end of 2018 included:

Estimates of future growth in Whatcom County population and households from 2018 through 2038, and the allocation of these households to rural areas not served by a water association or water district.

 Estimates of the amount of water these homes would use within nine subbasins in the Nooksack River basin.

 Description and initial assessment of various projects to offset the water these new homes might use.

 Estimates of the ecological effects of these proposed projects, developed by the Nooksack Indian Tribe and Lummi Nation.

 Clarification of the positions of all parties involved that identified a lack of agreement on issues such as metering, offset amounts, water-use limitations, and fees.

 Draft plan updates, three in all. Although much important work was done last year, substance (in my view) took a back seat to process. The emphasis on process is demonstrated by the figure above, which shows the complexity of the process used to develop and approve a plan update. Only the leftmost column involves data collection and analysis; the other five focus on review and approval. This approach sadly demonstrates the old adage that too many cooks spoil the broth.

The legislation authorized the Initiating Governments (IGs), in cooperation with the Planning Unit (PU), to prepare the required plan update. The IGs include the city of Bellingham, Whatcom County, Public Utility District #1, Lummi Nation, and Nooksack Indian Tribe, each represented by its top executive. The Watershed Management Board, which includes the IGs plus the small cities and Washington Department of Fish and Wildlife, took on that responsibility.

I view the other entities, especially the PU, (7) as advisory and without authority to fund and implement decisions. However, several members of the PU feel strongly that it is the primary decision-making body and that the other entities, including the watershed staff team, watershed management team, Watershed Management Board, and County Council are less important. (8)

The diverse nature of the PU members (many of whom are competent, knowledgeable and dedicated) and the lack of any “forcing function” made it difficult for the group to reach agreement on several challenging issues, especially with so little time available. Therefore, it tends to revert to the least-common-denominator, which yields do-nothing solutions.

This dysfunction is well illustrated by the substantial differences on policy issues among the PU caucuses and between the PU and Watershed Management Board. As the February 1, 2019, deadline approached for completion and submission of the plan to Ecology and Ecology approval, the PU and the board differed on limits to water use, the fee, metering, and other issues. For example, some PU members opposed metering because it might be used to control or tax water use, ignoring its value in accurately determining how much water these rural homes actually use.

According to Cascadia Weekly’s The Gristle, “… the Planning Unit was unable to reach consensus (9) — arguing over whether wells should be metered, and if metered whether that should be voluntary; grousing over the fee, if any, to permit new wells; and in particular quarreling over the volume of water each of these wells might draw. These are fairly straightforward questions, once you have acknowledged water supply is oversubscribed. But, of course, there is no agreement on that point either.” (Cascadia Weekly, Jan. 9, 2019)

As of late January 2019, the PU considered multiple versions of three plans written by two caucuses and the watershed staff team. The plans differed sharply in some respects. For example, one plan ignored outdoor water use and called for mitigation of only 37 acre-feet, compared with the 647 acre-feet in the other two plans. (10) Ultimately, the group could not agree on a plan. As a consequence, it is now up to Ecology to develop an updated plan for the Nooksack, with a deadline of August 2020. (11)

Specific Concerns
Here is a summary of my concerns with the substance of the draft report prepared by the watershed staff team. (12)

• Water-Use Efficiency (WUE) Largely Ignored
The report contains too little information on water-use efficiency. As a consequence, WUE projects were not adopted to the extent that their advantages warrant: use of well-established technologies, timing and location of benefits that align with mitigation requirements, low cost, flexibility, and lack of regulatory constraints. This deficiency is hard to understand given the information available to the PU. (13) Because WUE is spatially distributed (the potential for efficiency exists wherever a farm or home uses water) and temporally aligned with the need for increased streamflow, it is ideally suited to provide offsets aligned with time and location, and provide net ecological benefits.

• Climate Change Largely Ignored
Although the draft update acknowledges the adverse effects of climate change, these effects are nowhere incorporated into the analysis. The effects of climate change are already well underway in Whatcom County:

 Increases in summer air temperatures and decreases in summer rainfall, which imply greater water use for irrigation, and

 Smaller glaciers, less snowpack, and less summer rain, which means lower streamflows during the critical summer months. Thus, the plan update underestimates mitigation needs, which means the law’s requirements will not be met.

• On-Site Mitigation Not Considered
The ecological effects analysis conducted by the Nooksack Indian Tribe indicated that the draft plans would result in unavoidable adverse impacts to flow and fish in time and place. There would be flow deficits in some stream segments due to the location of the impacts and lack of local offset. A potential solution to this deficit would be on-site mitigation including rainwater collection and storage and later infiltration to the water table, local WUE projects, and/or hauling in water during dry periods.

• Disdain for Data
The process showed little interest in data, and instead often relied on anecdotes and assumptions. Specifically, the environmental caucus provided information on water-meter data available from rural Skagit County and Lynden (a reasonable proxy for Whatcom County rural homes). (14) The Whatcom County water associations, all of which are required by state law to meter all of their customers, could have provided data. Rather than examine and consider these options as proxies for rural well water use, the process chose to use assumptions.

Outdoor water use was based on the Washington Irrigation Guide (WIG), which is decades old and out of date. (15) Further, the evapotranspiration coefficients in the WIG are based on a wet/cool time period, 1951-1980. Therefore, the outdoor water use estimates in this update are certainly too low, leading to further depletion of streamflows. Water-meter data would obviate the need to rely on an outdated WIG and a single aerial photograph, used to estimate the amount of land irrigated for each new home to be built. Also, the update excluded rural “parcels irrigating more than a half-acre,” which automatically underestimates outdoor water use.

The discussion of metering ignores the 2003 Municipal Water Law, which required every water utility in the state to meter every one of its customers.(16) Why should rural homes be exempt from this requirement? We need data, not assumptions and estimates, to accurately define the amount, location, and timing of rural household water use.

• Double Counting of Benefits
Some of the mitigation projects would likely be done in any case and/or are already underway (e.g., switching water rights from surface to groundwater). It is not appropriate to include these projects as mitigation since they would have been completed without this process.

• No Ranking of Selected Projects
The plan update provides limited information on the projects selected on rationale for assessment, potential negative side effects, and capital and operating costs. However, no effort was made to compare projects along these dimensions. In particular, it would be helpful to decision makers to know how these projects compare in overall cost-effectiveness, dollars/acre-feet. How are policy makers, faced with limited budgets, to decide among competing projects?

• Inappropriate Aggregation
The nine aggregated subbasins are badly matched to where the rural homes will likely be built. For example, only nine homes are expected be built in the Middle Fork watershed, compared with 594 in Coastal North. It might have made more sense to subdivide the Nooksack basin in accordance with expected home construction rather than along hydrological lines. Specifically, the Lower Nooksack could have been divided into smaller drainages (e.g., Bertrand Creek, Fishtrap Creek, etc.). And the three forks could have been combined into one subbasin for purposes of this analysis.

• $500 Fee
The Legislature authorized counties to charge a $500 fee for a new well. This dollar amount appears to have no substantive justification. Similarly, the allocation of $350 to Ecology and only $150 to the county appears arbitrary. Therefore, the process should have included serious discussion of the reasons for a fee and a possible fee increase:

 Cover the administrative costs of issuing the required permits to drill a well and construct a house,

 Help pay for the mitigation options that offset the water use,

 Ensure equity among all water users in Whatcom County, i.e., treat utility customers fairly relative to those who obtain water from a well. (17)

• 3,000 Gallon Per Day (gpd) Limit
Similarly, the Legislature appears to have chosen the 3,000 gpd limit with no justification. (18) A review of the limited data available on rural household water use suggests a much lower limit would be reasonable (say, 300 gpd), with a higher limit in the summer where outdoor water use is permitted.

One option, which was not discussed during the update process, is to offer “packages” that include indoor water use only and one or more indoor-plus-outdoor packages. This approach is used in other parts of Washington, including Kittitas and Clallam counties. This option would include a much higher fee for households that choose a package with outdoor water use.

Of course, without metering, the limit is meaningless because there is no way to determine whether homes comply.

Because I have little patience with bureaucracy, I missed many meetings last year. Thus, my understanding of what happened in this planning process is limited, and my conclusions should be taken with a grain of salt.

We failed. Sadly, there is lots of blame to go around. The Legislature passed an awful bill that was complicated, confusing, and allowed too little time for serious analysis, deliberation, and agreement on a plan update. Whatcom County, for years and years, refused to address the water used by rural wells. And the PU was unable to overcome its special-interest nature, which prevented the development of consensus, middle-ground solutions.

The water-quantity problem we were asked to address — use by new homes using wells for their water supply — is small, roughly 1 percent of county water use. If we were unable to agree on projects to mitigate for this water use in a way that protects instream flows and the fish and other wildlife that depend on these flows, how will we address the much larger, more complicated, and serious issues associated with agricultural water use? I am not optimistic.

I was impressed with the dedication and competence of the staff from Whatcom County and Ecology who led this process. I was also impressed with the Watershed Management Board, especially the two tribes, for their determination to focus on the long-term health of fish. But the PU, made up of a wide-ranging, self-selected group of interests — not one of which represents the broad public — had no mechanism to ensure agreement. Those caucuses concerned that proposed changes would hurt their interests found many ways to subtly undercut, delay, and deny progress and stall the process. (19)

If we really want the public to help resolve our water-supply problems (the purpose of the PU), Whatcom County should create a citizens’ advisory committee and give it a clear mission. We also need better institutional leadership, from either Whatcom County or Ecology, to ensure that a comprehensive, integrated plan is developed, funded, and implemented.

1. The state Dept. of Ecology classifies river basins as Water Resource Inventory Areas (WRIAs). The Nooksack is WRIA 1.

2. The county ignored the fact that Ecology’s rule was silent on groundwater flow and consumption, even though the issue at hand concerned rural residences that use wells for their water supply.

3. https://fortress.wa.gov/ecy/wrdocs/WaterRights/wrwebpdf/91475-3opinion.pdf.

4. See the website https://fixhirst.com/ for information on those who opposed the 2016 court decision and why.

5. https://app.leg.wa.gov/RCW/default.aspx?cite=90.94

6. Chinook salmon, steelhead and bull trout are listed as threatened under the federal Endangered Species Act. Many factors affect the low numbers of these fish, including low flows in the Nooksack River and its tributaries during critical times, generally summer and early fall.

7. The PU consists of about 15 caucuses: Agriculture, Diking/Drainage, Environmental, Fishers, Forestry, Land Development (realtors and builders), Non-government water systems, Port of Bellingham, Private Well Owners (rural households using a well), Public Utility District #1, Small Cities, and Water Districts. The state Dept. of Ecology and Whatcom County are also active in the PU but generally do not vote on issues. The city of Bellingham, Lummi Nation, and Nooksack Indian Tribe declined to participate and chose instead to focus their efforts on the Watershed Management Board.

8. Some people cite the 1998 Watershed Planning Act (90.82 RCW) in support of a primary role for the PU. But the act states that the PU is “to give input and direction to the process.”

9. In reality, the PU did agree on a policy package. It decided to accept the Legislative decisions on maximum allowable water usage, the administrative fee, and lack of metering. However, the IGs strongly favored more robust measures to improve streamflows and salmon survival.

10. The PU’s Land Development Caucus interpreted a Washington State Attorney General Opinion (AGO 2009 No. 6 – Sep 21, 2009) in support of their recommendation that outdoor water use not be considered.

11. https://ecology.wa.gov/Regulations-Permits/Laws-rules-rulemaking/Rulemaking/WAC-173-501

12. https://www.dropbox.com/sh/u0jchn7kh4v09uv/AACqlzNTp_doUTtd2xw_cvbka/11-20-2018_Draft%206091%20WMP%20Update?dl=0&preview=DRAFT+6091+WMP+Update_WST+Review-mtg_section+revisions_11-20-18.docx&subfolder_nav_tracking=1

13. Environmental Caucus to WRIA 1 Planning Unit, Water-Use Efficiency (WUE) Mitigation Options For WRIA 1 In Response To ESSB 6091, July 9, 2018.

14. E. Hirst, How Much Water Do Whatcom Rural Homes Use? July 2018.

15. https://fortress.wa.gov/ecy/publications/publications/1211004.pdf.

16. In 2003, the Washington State Legislature passed Engrossed Second Substitute House Bill 1338. This law required all utilities to install water meters for all their customers by January 2017.

17. When the city of Bellingham spent tens of millions of dollars to upgrade its Post Point sewage treatment plant, did county residents contribute to that cost? If not, urban residents should not be asked to subsidize mitigation projects in the county’s rural areas.

18. How else can we explain the large differences in the legal limit across the state, ranging from 5,000 gpd to 950 gpd?

19. According to The Gristle, “… the diverse and often fractious Planning Unit is not a unit, and to a large degree many of its citizen members do not plan and indeed are hostile to planning.” (Cascadia Weekly, Jan. 9, 2019)

Eric Hirst moved to Bellingham in 2002. He has a Ph.D. in engineering from Stanford University, worked at Oak Ridge National Laboratory for 30 years as a policy analyst on energy efficiency and the structure of the electricity industry. He spent the last eight years of his career as a consultant. In Bellingham, he has continued his work as an environmental analyst and activist.