How Best to Resolve Nooksack River Water Issues
by Eric Hirst
How can we best resolve long-standing water-resource issues in the Nooksack River Basin? These problems — primarily too little water in the river and streams during the summer — have been recognized for at least two decades. These low flows create a loss of habitat and worsen water quality (especially lower dissolved oxygen levels and higher water temperatures), leading to dramatic declines in salmon runs and, therefore, orca whales. (1)
Climate change is:
1. reducing summer streamflows because of lower snowfall, glacier shrinkage, earlier springtime snowmelt, and less summer rainfall; and
2. increasing summer demand for irrigation water because of higher air temperatures and lower precipitation.
During the past several months, two approaches have been advanced to deal with these issues. The Washington State Dept. of Ecology (Ecology) proposed to begin adjudication in the Nooksack basin. (2) Whatcom County has about 5,000 water rights, many of which are of questionable legality. Adjudication, although an expensive and lengthy legal process, is the only way to determine who has what rights to use water. Governor Inslee’s budget includes $1 million for work that will lead to adjudication in the Nooksack and Upper Columbia for the next two years. And, the Whatcom County Executive proposed to restart settlement talks along the lines proposed by the Lummi Nation in 2015; (3) the county’s 2021 budget includes $200,000 for this process. In addition, the governor’s budget requested $250,000 to support this work over the next two years.
The farming community (represented by the Ag Water Board, AWB) and the private well owners caucus of the Water Resource Inventory Area 1 (WRIA 1) Planning Unit oppose adjudication; they believe that settlement discussions can yield a long-term solution to our water-resource problems. Lummi Nation and Nooksack Indian Tribe strongly favor adjudication; others supporting adjudication include the City of Bellingham, RE Sources, Center for Environmental Law & Policy, and the environment, fishers, and land development caucuses of the WRIA 1 Planning Unit.
Likely the best approach is to begin adjudication, which automatically includes the opportunity for settlement discussions with the expectation that the threat/opportunity of adjudication will, at long last, produce a meaningful settlement. Such an agreement would include implementation of projects (land-use changes, (4)water supply, storage, and water use efficiency) that resolve these problems. Under this scenario, a lengthy and expensive adjudication would be shortened by a meaningful, legally binding settlement agreement. This view is well expressed by the Lummi Nation:
“To be clear, the Lummi Nation supports negotiated settlement options, but these negotiations must occur within the context of the adjudication. Without the legal framework provided by the adjudication, those who benefit from maintenance of the status quo will walk away from the negotiations once discussions turn toward action. Perhaps we shouldn’t be surprised, those who are most opposed to the adjudication are the ones that benefit most by not following the law; those supporting the adjudication are the ones suffering the most. It is unconscionable to allow those that benefit from taking what does not belong to them to continue to do so simply because they prefer to get something for nothing. We need action now that is lawful, that is fair, and that is right — that is why we need an adjudication.” (5)
Preferred/ Feasible Outcome
Today’s water-supply situation is unacceptable and certain to get worse unless we act decisively and soon. The preferred solution to these problems would include sufficient water to:
• Support healthy salmon and other wildlife populations to meet tribal treaty rights;
• Irrigate sufficient farmland to maintain a sustainable, economically viable agricultural economy and lifestyle;
• Meet the needs of homes, businesses and industry.
The amounts of water available for both instream and out-of-stream uses are likely to be less than either optimal or current levels. And the cost, and therefore price we pay, for water will be higher. Higher costs and prices will reflect the increased scarcity of water and the cost of projects to enhance supply and improve efficiency of use.
Three obstacles complicate achievement of this outcome. First, we don’t know how much water needs to remain in the three forks, tributaries, and mainstem Nooksack River to ensure healthy salmon and other wildlife populations. (6) The only official indicator is Ecology’s 1985 instream flow rule, which specified minimum flows for 30 points twice a month.(7) Two decades later, Utah State University did considerable work quantifying optimal flows for salmon throughout the basin. (8) Neither tribe nor the Washington State Dept. of Fish and Wildlife has either officially endorsed the USU numbers or developed its own numbers. (9)
Second, the Lummi Nation and Nooksack Indian Tribe hold treaty rights to water for
1. out-of-stream on-reservation uses and
2. instream flows to provide a harvestable surplus of salmon and shellfish to support their traditional way of life.
These rights, the most senior in the Nooksack basin, are not yet quantified. And neither Tribe has publicly estimated their rights in terms of acre-feet and flow (cubic feet per second) by subbasin and time of year.
Third, agricultural irrigation is, by far, the largest water use, accounting for about two-thirds of the total during the critical summer months. But roughly half of this water use is, in one way or another, not compliant with state water law. (10)
Also, no data exist in the public domain on actual (metered) water use for irrigation; all the numbers on this water use are estimates, which have never been validated with real-world data for Whatcom County farms. Thus, we have no idea whether these estimates are even close to actual water use. (11) Estimates of crop water use are based on the Washington Irrigation Guide, whose numbers are decades old and may not reflect current climate, soil moisture, crop types and irrigation technologies. (12) These estimates are based on irrigation in much drier climates than Northwest Washington.
Until we have publicly available numbers for these factors, settlement discussions cannot yield a comprehensive solution, i.e., a multiyear resource plan that specifies land-use practices, supply, storage, and efficiency projects to fill the growing gap between out-of-stream demands and instream flows needed to support wildlife and meet treaty obligations to the two tribes.
Since passage of the Watershed Planning Act in 1997, (13) we have seen many efforts to address and resolve local water-resource problems. These activities and plans include:
• 2005 Watershed Management Plan
• 2005 Instream Flow Action Plan
• 2007 Detailed Implementation Plan
• Negotiations around Bertrand Creek and Middle Fork Nooksack (later expanded to all three forks of the Nooksack River)
• Birch Bay deep well project n Groundwater model n 2019 Drought contingency plan
• 2019 Watershed Management Board (WMB) implementation plan
• 2019 Ecology plan to offset rural residential water use
Although much good was accomplished with these plans and projects, they have not yet resolved the problems facing the Nooksack River Basin. To illustrate the limitations of the activities listed above, I briefly discuss four here.
WRIA 1 Watershed Management Board 2018-2023 Implementation Strategy: (14)
This report is a plan to develop a plan rather than a resource plan itself. The plan identifies “technical appendices,” which were not available at the time of its publication. It also includes several milestones that have already been missed. More important, this plan nowhere includes any of the elements required for a true resources plan: forecasts of future water needs, identification of supply and demand resources to fill the growing gap between increasing demands and diminishing supplies, analyses of different resource portfolios (including the economic, environmental and regulatory costs and risks of each option), and so on.
The Implementation Strategy does cover several important topics and identifies the lead agency for each one: Groundwater model (Whatcom County lead), Regional Water Supply Plan (PUD #1), Drainage-Based Management (County), Salmon Recovery Plan Update, and Monitoring and Data Management. The estimated cost for this 5-year plan is about $6 million. Two new projects — Regional Water Supply Plan and Drainage-Based Management — are intended to address current and projected needs and resources, solutions, and opportunities to integrate with other land use, water quality and habitat restoration plans. They are just getting underway in three pilot subbasins.
The groundwater model represents another important project that is not yet complete. Begun in 2014, this project developed a computer model to simulate the interactions between groundwater flows and streamflows for the lower Nooksack basin. (15) Such a model could be used to evaluate, for example, the benefits of shifting some surface water diversions to groundwater withdrawals. The model was completed in 2019 and submitted to Whatcom County. Because it is a complicated model that requires specialized knowledge to operate, it has not yet been used to address any WRIA 1 water issues. Whatcom County just issued a contract — more than 18 months after the final report was issued — to conduct a peer review of the model and recommend next steps. And no work has been conducted to estimate how climate change might affect groundwater levels and flows and their effects on streamflows.
Whatcom County Drought Contingency Plan:
The PUD (Public Utility District No. 1 of Whatcom County) obtained a grant from the U.S. Bureau of Reclamation to develop a drought contingency plan. As part of that process, which began in 2017, the PUD hired a technical consultant and created a broadly based task force to guide the consultant’s work. The report included a vulnerability assessment, mitigation actions (taken during non-drought periods to alleviate the adverse impacts of a drought), and response actions (taken during a drought to alleviate adverse impacts of a drought).(16) Because the PUD received less funding from Reclamation than was requested, the final report was generic and lacked detail. That is, it did not identify mitigation and response actions specific to the WRIA 1 subbasins (e.g., actions that should be taken ahead of a drought along Bertrand Creek or actions to be taken during a drought on the Middle Fork Nooksack). At the task force meeting in February 2019, participants agreed to continue meeting to flesh out these details, needed to make the report operational rather than aspirational. That work has not yet begun.
Birch Bay Deep Wells:
Birch Bay Water & Sewer District obtained a grant from Ecology to drill a few wells into the deep aquifer in the California and Dakota creeks area. Begun in 2017, this project demonstrated the feasibility of pumping up to 8,000 acre-feet a year from these wells, which have no connection to the Nooksack River. A subsequent study looked at alternative uses of the water and alternative routes to deliver the water to different areas (e.g., south to Cherry Point, east to Lynden, or south to Ferndale). (17) Unfortunately, this study did not estimate the cost of this potential new supply, in dollars/acre-foot. Perhaps more important, no organization has purchased or expressed interest in purchasing this water.
As these examples demonstrate, individual projects have been useful. However, in no sense do these bits and pieces add up to a comprehensive plan that addresses the critical issues in the Nooksack basin. We need an integrated resource plan with the following elements:
• Baseline: how much water do we use now, when and where? As much as possible, these numbers should rely on water-meter data rather than estimates.
• Baseline: what surface and groundwater sources exist today to meet current demand?
• Projections of future demand and supply under alternative scenarios, including likely effects of climate change.
• Compilation of land-use, supply, storage, efficiency, and pricing options that can fill the gap between growing demand and declining supply.
• Economic, environmental, and regulatory analysis of different resource portfolios.
• Selection of a preferred portfolio.
• Creation of a short-term (two to three years) action plan to begin implementing the preferred portfolio, including assignment of project-specific responsibilities to different organizations, budgets, accountability, and legal enforcement.
Sadly, none of that process exists today in Whatcom County. Worse, there are no plans to begin such a process, without which we cannot adequately address local water-resource issues.
• Continue on current path: Farmers are optimistic that current efforts are, this time, likely to yield plans that identify clearly the problems in each subbasin, appropriate projects for each area, budgets, funding sources, and accountability for project completion, operation, and success.
• Focus on adjudication: Water rights in WRIA 1 are a mess. Adjudication, although a lengthy and expensive process, will once and for all clarify who has what rights to use water, for what purposes, where and when. Although adjudication does not deal with many other issues (e.g., water quality, habitat, instream flows, and land use), it does settle a long-standing and major obstacle to problem resolution.
• Begin adjudication to pressure parties to settle: This option views initiation of adjudication as a powerful motivator that, at long last, will get the parties (especially the two tribes and farmers) to negotiate in earnest, to complete the process, and produce a legally binding agreement approved and enforced by a state court. This process of negotiated agreement can best occur within adjudication. The Whatcom County Executive has proposed such an approach, although his proposal lacks many details necessary to begin meaningful discussions.
It is now 10 months since the county executive first proposed to lead settlement discussions. In my view, little has been accomplished since then to define and initiate these negotiations. Although the executive has met several times with the planning unit and Watershed Management Board, as well as individual groups, we still have no details on:
• Who are the proposed participants and what are the criteria for inclusion? What role will Ecology play?
• Is the goal to develop a plan to address the five sets of issues identified by the Lummi Nation? Or, is it to develop a plan and then ensure its implementation, including funding for projects called for in the plan?
• How will this new effort succeed after two-plus decades of studies, reports, committees, meeting after meeting, and projects have not yet resolved WRIA 1 water-resource issues?
• How will this effort relate to ongoing processes of the WRIA 1 WMB, Management Team, Staff Team, and Planning Unit? How does the work of the Whatcom Conservation District, six watershed improvement districts, Whatcom Water Alliance, and others fit into this proposal?
• What does it mean to assign the “lead role” to the WMB?
• How does this proposal relate to the WMB Implementation Strategy?
• What technical studies need to be completed ahead of these discussions? Possible topics include desirable streamflows to support salmon, reliable (i.e., water-meter) data on agricultural irrigation water use, and the effects of climate change on future water demand and supplies.
The agricultural community believes that settlement discussions — this time — will succeed. But, they offer no evidence to explain why and how conditions are different in 2021 than they were in the past. In what ways is today’s situation different from what it was 5, 10, 15, and 20 years ago?
The lack of progress in starting settlement discussions over the past few months strengthens my support for starting adjudication as a powerful way to stimulate meaningful settlement discussions.
My assessment of the local water-supply situation is:
Urgent Need for Action Now
• Salmon are doing poorly, and largely because of that the Orca are also doing poorly.
• One of the many factors affecting salmon health is low streamflows throughout the Nooksack River basin.
• Low flows lead to higher water temperatures, less dissolved oxygen, and reduced access to habitat, all of which are bad for salmon.
• The situation will get worse because of climate change: drier and hotter summers lead to more water use for irrigation; and less snow, earlier snowmelt, and less summer rain mean lower streamflows.
• We should move quickly to identify, define and implement a suitable mix of projects to fill the growing gap between supply and demand.
Persistent Barriers to Participation by Key Stakeholders
• Responding effectively to water-supply problems requires active support and cooperation from farmers. But state regulations discourage farmers from improving irrigation efficiency, likely a large and very cost-effective way to address these issues. And Ecology’s unwillingness to study and adopt solutions to the large amount of water used without authorization also inhibits farmer participation in solutions.
• Responding effectively to our water-supply problems requires active support and cooperation from the two tribes. Neither the Lummi nor the Nooksack have been clear about how much water they believe they are entitled to under the 1855 Treaty of Point Elliott. They have also not been clear on how much water is needed in the mainstem and tributaries to support healthy salmon populations.
Lack of Leadership
• Finally, no entity is in charge. We have a multiplicity of groups, including utilities; watershed improvement districts; PUD #1; and WRIA 1 Planning Unit, Staff Team, Management Team, and WMB. But no organization has stepped forward to lead the way to a sustainable water future.
• Although the participants in the various WRIA 1 processes are generally well intentioned, we are too focused on process, yielding a failure to produce. That is, we plan and then plan again, but still — 20 years later — have no long-term strategic plan that we are implementing.
• Given this continuing inability to comprehensively address local problems (as opposed to the current project-by-project piecemeal approach), I see no alternative to the opportunity (or threat, depending on one’s perspective) of basin-wide adjudication. The Whatcom County Executive wrote:
“Various water interests in Whatcom County have been engaged in water planning activities for over 20 years to resolve long-standing water management issues including participation in the watershed planning process under RCW 90.82. While a lot of good work has been accomplished during this time, there is a lot more to do to resolve these issues, including implementing the Watershed Management Plan approved by County Council in 2005. There have been several efforts by various stakeholders to engage in settlement discussions, yet, significant agreements on water management issues have not come to fruition.” (18)
I agree and hope the pressure (but not the reality) of adjudication yields substantial, long-lasting solutions to our water-supply problems.
1. Many other factors affect the health of salmon, including water quality, habitat, and ocean conditions.
2. Ecology, Water Resources Adjudication Assessment Legislative Report, Watersheds Proposed for Urgent Adjudication and Future Assessment, Pub. 20-11-084, Sept. 2020.
3. S. Sidhu, “Memo to Ag Water Board on Possible Water Adjudication Process,” Whatcom County Executive, April 29, 2020. Also S. Sidhu, “Nooksack Basin (WRIA 1) Water is our lifeline …, ” presentation to WRIA 1 WMB, Oct. 29, 2020.
4. Decades of logging, coal mining, and the clearing of land and draining of wetlands for farms, as well as historical and current commercial logging practices, all affect streamflows.
5. L. Solomon, “Lummi Nation asks for meaningful action on Nooksack water rights issues,” The Bellingham Herald, Nov. 20, 2020.
6. This work should include consideration of natural flows, those that occurred before the settlers moved here in the mid-1800s.
7. Washington State Dept. of Ecology, Instream Resources Protection Program—Nooksack Water Resource Inventory Area (WRIA) 1, Chapter 173-501 WAC, June 9, 1988.
8. 1C. Bandaragoda and J. Greenberg, Data integration of WRIA 1 Hydraulic, Fish Habitat, and Hydrology Models, June 2013. See especially Appendix A: Site Information.
9. No single set of flowrates can be considered correct or feasible (politically and economically). In principle, one could determine flow rates that are optimal for fish health. These values might be infeasible (i.e., unachievable even if all out-of-stream uses are eliminated from that watershed). Other, lower values could yield satisfactory outcomes for salmon and other wildlife. Still lower values might be feasible if habit restoration and protection and water-quality improvements are made.
10. Whatcom Ag Water Board Position Paper on Water Right Adjudication in the Nooksack Basin, April 2020.
11. E. Hirst, How Much Water Does Whatcom Irrigation Actually Use? April 2017.
12. U.S. Dept of Agriculture, Natural Resources Conservation Service, Washington Irrigation Guide. http://www.nrcs.usda.gov/wps/portal/nrcs/detail/wa/technical/engineering/?cid=nrcs144p2_036314. See also Ecology, Updating the Washington Irrigation Guide, Pub. No. 12-11-004, Jan. 2012.
14. WRIA 1 WMB, WRIA 1 Watershed Management Board 2018-2023 Implementation Strategy, Aug. 2019, approved Sept. 2019.
15. Associated Earth Sciences, Inc., Final Technical Report Phase 4 – Numerical Model Analysis and Documentation, June 2019.
16. Public Utility District #1 of Whatcom County, Whatcom County Drought Contingency Plan, WPUD 116.142, Sept. 2019.
17. CHS Engineers, North Whatcom County Regional Water Supply Feasibility Study – Phase 1, for Birch Bay Water and Sewer District, Feb. 2018.
18. S. Sidhu, Whatcom County Executive, “Memo to Members of Ag Water Board,” April 29, 2020.
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.