Saturday, August 2, 2014

Caution - Only For Those Who Can Think Beyond Soundbites

Hi all,

Yesterday the County Council received a long memo from local attorney Robert Carmichael on behalf of the Birch Bay Water & Sewer District in response to the Council's request for comments on our Water Action Plan. I have posted the entire memo here for the real water wonks among you who want to try to wade through it (13 pages). While the letter states up front it is only regarding water quantity and availability issues, it also takes some interesting forays into salmon, in-stream flows, the lack of connection between the county's land use planning and water issues, and current inadequacies in the County's Comprehensive Plan. It is a good read for those who want to better understand the complexity of these issues and how they are all so clearly intertwined. 

I agree completely with the two overarching statements in the memo for how the County should proceed with water quantity issues. Here is what Mr. Carmichael wrote:

"First, determining water availability must begin with a vision for achieving knowledge based allocations of water resources which meet the present and future needs of agriculture, industry, commerce, domestic uses, recreation, and fish and wildlife. To date, little progress has been made. There are many reasons for this failure, but one basic reason is that we lack an effective, well-focused process for determining minimum instream flows necessary to protect fish and wildlife."
"Second, there must be a concerted effort to integrate land use planning with water resource planning. While there presently exists a clear public process for land use planning, the same cannot be said for water resource planning. At present, the process of resolving water availability issues is unduly fragmented and disorganized, and, unfortunately, is becoming more so."

I also completely agree with many of the major points he makes such as:
  • Focusing only on the human demand side of the water equation will not create a good result. The real water available needs to be quantified too.
  • Setting in-stream flows that protect fish and other wildlife needs to be job one in determining how much water is then left over for human use.  
  • The need for better coordination between land use planning and water planning. Continuing to a grand degree to pretend these two are separate issues is just plain stupid.
  • The County's Comprehensive Plan needs significant work on water resource issues.
There are a few areas in the memo that while I don't disagree with Mr. Carmichael I have some major concerns. For instance Mr. Carmichael points out that the County needs to be the lead entity in these efforts because the County holds no water rights so is the one local government who has no built in conflict of interest. One of his points about this was:
"Parties holding meaningful water rights of their own have a built-in conflict of interest which no amount of good intentions can cure. It is essential to the credibility of the process that leadership come from an entity without direct legal interests of its own to protect."
Yet he then goes on to suggest a greater role for the WRIA 1 Planning Unit in these decisions. By the very make up and voting requirements of the Planning Unit those with these "built-in conflicts of interest" hold veto power over changing minimum in-stream flows that could affect their interests. I was on the Planning Unit for years and believe in the value of having a strong, knowledgeable body to help move these water issues forward, but that body needs to come up with methods to deal with members who may have more of an interest in not moving changes forward to protect the broken status quo. How can we make the progress Mr. Carmichael outlines if some of the Planning Units members are just there to say "No."  Can enough progress be made if all the recommendations coming from such a body are the lowest common denominator?  Luckily we have the tribes forcing some of these groups to pull their heads out of the sand. 

Mr. Carmichael's description of how the Planning Unit ought to operate is certainly a goal I support and think we should strive to attain. Unfortunately, his description would include the Planning Unit members understanding and commenting on the details of highly technical in-stream flow and groundwater models, habitat assessments, etc. Many of the current Planning Unit members do not have the scientific background to be able to do this, and are highly suspicious of those who do. This seems like another real barrier to the Planning Unit moving issues forward if there are members who are unwilling to accept technical findings if they are unable to understand the science that developed them. I will continue to support funding, perhaps at even greater levels, for the Planning Unit because I can't come up with a better way for the community to be involved in finding solutions to these problems. That funding will be jeopardized if the Planning Unit itself can not find a way to deal with technical issues that may be beyond the understanding of a majority of the members. We can't all have degrees in hydrology, biology, law, engineering, etc, so how do we find a way to review and trust technical information so the system does not bog down unnecessarily?

Finally, Mr. Carmichael also describes a whole range of studies and actions that the County as lead agency should be moving on. Most all of his suggestions seem valid and important to me. These suggested actions would cost the County hundreds of thousands of dollars at a time when we have no money in reserves to cover these costs, and funding from the state and federal governments is declining. Even the Department of Ecology recently quit attending Planning Unit meetings explaining that they did not have the resources to attend and had higher priorities. So if Mr. Carmichael and other members of the Planning Unit believe we should be providing more support and staffing for the Planning Unit, and for a variety of studies to support dealing with water quantity issues, it would be great if they would also provide support for paying for these things. Is each government caucus like the one Mr Carmichael represents willing to put $100,000 into a pot each year to pay for these ideas? Are they at least willing to pass a resolution in support of the County Council raising taxes slightly for the Flood Fund to pay for this? Asking for things is cheap, paying for them is a little more difficult.

I thank Mr. Carmichael and the Birch Bay Water & Sewer District for their memo which is the most in-depth and thought provoking response I have seen to date from the Council's request for such input. The County Council can certainly not solve all these problems this year as part of our budget process, but hopefully we can set a new course for the County on water issues that will lead to significant improvements in the coming years. Glad so many diverse voices are encouraging us to try!


  1. Thank you Carl. How long until we can have a variable use fee on all water that increased sharply during the three months with inadequate stream flow and water availability.

    1. Bob - There are many barriers to such an idea. First there are hundreds of different water providers who would all have to somehow get on board. Second, many of the largest users (Ag) and none of the private well owners pay fees to anyone so they would have to get roped in under some new scheme. Third, many users have no meters so that would have to get dealt with. And fourth, in many places we don't understand how the timing of groundwater withdrawals effect the in-stream flows, so it hard to know at this point when decreased pumping will help. I am not sure legally how this could all be accomplished, but I know of at least one individual who is trying to figure this out and I think we will be reading about it soon in the Weekly.

  2. I don't see how anyone can argue with the idea that instream flow base line data is first priority. It would be like planning a budget with no idea how much money is in the bank. I think it's also possible to make very complicated issues understandable for lay people in decision making positions. Obviously so, since much of the world requires this. But, the decision makers have to be interested in solutions and not just their own narrow interests.

  3. (First a disclaimer - I've only lived here less than 3 years and arrived with the now obviously naive expectation that a place that "rains all the time" would have significantly less water supply issues than other areas where I've resided and participated in hydrological policy making).
    From what I now know, I think that figuring out "baseline" data, say for the Lynden, Abbottsford and Sumas aquifer can't be determined without looking at the past. This needs to start out with an understanding of what an anthropogenic concept that the aquifer level now is. This is a bank for which we will now need to determine a baseline minimal aquifer level "deposit" as an artificial construct. And one that is subject to considerable "foreign currency" transactions. In British Columbia, the aquifer was largely above ground, as Sumas Lake: Drowning the area is obviously not a viable option now. It also appears that BC is decreasing Ag land protections and thus facilitating development. The need for more drainage and greater aquifer pumping is likely to follow. On this side of the border what we call streams are often more like drainage ditches. The Dutch heritage of many farmers is no accident. The ability to transform "worthless" swamps in to prime farmlands which is honored as pioneering spirit of the past. But these days these same activities can incur huge fines from the EPA for wetlands damage. And as agricultural practices change from less intensive pasture and cropland (which can flood in the winter) to more developed use, such as for berries, barnyards or even homes, less winter recharge is possible. I personally don't see how a streamflow baseline can be established without adjudication as to the minimum levels to which the bank must be kept capitalized.

  4. I have a very naive question, because like Gaythia, I haven't been here even 4 years. But I don't understand why those who polluted the aquifer aren't fined and required to fund the water treatment necessary in the north part of the county. Similarly, shouldn't at least some of the funding to determine aquifer levels come from those who disproportionately need it and who are eyeing the Nooksack as an alternative? I know it's far more complex than this, but it seems to me that just as important as measurements, is looking at who uses and who abuses the resources we have, on and below the surface.

    1. Hi Terry,
      I'll take a crack at those questions. I think the simplistic answer to your first question is that we really don't know who specifically is responsible for much of the pollution, and that is especially difficult to prove in groundwater. Hopefully, the enhanced Pollution Identification and Correction Program that appears will get funded will help in this effort - at least for surface waters.

      I am not sure anyone is eyeing the Nooksack as an alternative, except perhaps the Nooksack water rights that Bellingham and the PUD already hold.To some degree the Watershed Improvement Districts that the Ag community will be trying to set up via special elections this fall will be taxing districts on ag users to help pay for some aspects of the groundwater investigations and solutions along with their impacts on quality.

    2. Nexus, causation and injury. Much, much harder to assign responsibility for fertilizer and pesticide contamination that occurs over a wide area and a broad time period than, say, a point source contamination by a unique hazardous chemical such might occur with such things as a tank leak.

  5. It's pretty safe to say that high nitrates in ground water in regions with cattle industry (or many other intensive ag activities) constitute a causative relationship. I have personally experienced this at numerous locations in the US, most notably at a research farm run by the University of Nebraska experiencing a plume from a feedlot miles away. Eventually, this is going to be a land use issue, I hope, such that the real cost of intensively managing cattle on land will be addressed.

  6. Here is a link to the USGS report, Hydrogeology, ground-water quality, and sources of nitrate in lowland glacial aquifers of Whatcom County, Washington, and British Columbia, Canada. This is the LENS Report that many folks familiar with WRIA 1 refer to.

    By clicking on the ion on the left of the page, you can download the full report as a PDF. The link from does not work.

    I recommend that folks who want to get background technical information regarding conditions in northern WRIA 1 read the entire report. It is not difficult reading.

    1. In the second paragraph, second sentence, the phrase Full-text PDF was left out. It should read: The link from Full-text PDF does not work. Sorry about that.

  7. I am certainly not a water wonk (yet!), but I did read through Mr. Carmichael's letter and dissected it as well as I could. It is very clever.

    When I see the word "must," as in the two paragraphs you quoted above, I immediately see red flags. Very often, this is used as a rhetorical device to channel the argument in a certain direction. It is not a given that we "must" proceed in a certain direction. There are other alternatives, but they may not get the exposure of an articulate and lengthy letter written by a powerful attorney.

    A major argument in Mr. Carmichael's letter seems to be that we need to establish proper instream flows BUT in order to calculate this, we need to include outstream flows in our calculations. I don't see this as a valid argument. Even though DOE may have used what Mr. Carmichael regards as a "mistaken belief" in groundwater supply (DOE may argue that they used a different criteria. I don't know.), it does not follow that "maximum net benefit analysis for all uses" need replace it. In other words, saying instream flows are based on a "mistaken belief" does not mean that the alternative should be the one Mr. Carmichael espouses. What it DOES do is change the way instream flows are calculated. This is a major change.

    In reality, Mr. Carmichael's letter is a blueprint in how to change instream flows based on salmon recovery efforts to instream flows based on the needs of farmers and industry. The mechanism to do this is the Planning Unit. If that is what the County Council wants to do, Mr. Carmichael's letter certainly shows you how to do it.