Did the State Ignore Water Law? Ecology Publishes Findings 26 Years Later

The writer settled in Whatcom County in 1969. He remains a student of the law and worldly philosopher who loves this place — and is of the genus irratibile vatum.

Part 2

On December 31, 2002, now some 26 years without putting the water from the Johnson’s well to significant use, with no evidence of the thousands of new residents predicted, with repeated extensions without any evidence that the predicted buildout was anything but speculation, with Lake Whatcom in a state of steady and accelerating decline, with most of our local wild salmon populations threatened with extinction, Ecology published their findings.

They recommended that the Lake Whatcom Water and Sewer District (LWW&SD) be allowed to move the point of withdrawal, and the excessive inchoate right originally granted, to the North Shore Water Users’ well.

And more, Ecology allowed them 10 more years to speculate on putting the water to use for new residential development all along the north shore of Lake Whatcom. They allowed the water district to move more than the annual amount actually put to beneficial use to a well in a different legal subdivision.

Now it is important to distinguish between “findings of fact” and mere opinions. Written findings of fact must include evidence upon which a conclusion is based, the major premises, as well as the conclusions, or findings. Without including the facts, the conclusion is not a finding of fact. It is merely an expression of opinion.

The writer of Ecology’s report in this instance claimed they based their recommendation on a review of state statutes.

Well, when considering an application for a change in the place of use, point of withdrawal and/or the purpose of use of water, in addition to finding no other water users will be impaired, and the use will not be detrimental to the public welfare, our earliest water laws require a finding that the permit to be changed has been beneficially used, and the change will not result in an increase in the annual consumptive quantity of water used. [RCW 90.03.380]

The statute goes on to define “annual consumptive quantity” as the estimated or actual annual amount of water withdrawn under the permit, reduced by the estimated annual amount of return flows, averaged over the two years of greatest use within the most recent five-year period.

For the Johnson’s well, the evidence included in the Report of Examination found that was just a little more than half an acre-foot. The writer, however, rationalizes their finding and says, “Although Water District 10 [now LWW&SD] has only perfected a small portion of the water right permit (0.61afy out of 465.9 afy) they have demonstrated through their diligence in extending their permit and pressing Ecology to make a decision on the well location changes that they are making good effort to perfect the water right.”

“Pressing Ecology to make a decision?” The water district had ignored the matter for some four years at one point, only to “press” Ecology after the matter was brought to the district’s attention by Ecology. The entire history of the matter is anything but an account of “diligence.” It’s the story of a bunch of developers and a water district speculating on the housing market and using the law to keep their interests ahead of the public’s.

Ecology’s own internal policy covering requests for additional time in developing a water right, where “unforeseen” conditions have arisen, acknowledges the statutory purpose “to discourage any attempt to retain priority on an undeveloped right with an intent to speculate or where there is a lack of diligence in developing a project.”

And that same policy statement warns staff that numerous extension requests may indicate an intent to speculate or lack of diligence and that they must give increased scrutiny to requests for long-standing permits where several extension requests have already been authorized.

Twenty-six years! “The diligence in extending their permit” is anything but evidence of “diligence” in putting the water to beneficial use.

The report writer went on to explain, “RCW 90.44.100 allows changes in point of withdrawal for an unperfected groundwater right so long as the change does not alter the original purpose of the water right.”

An oversimplification for sure; the writer clearly ignores the Supreme Court’s finding in Thoedoratus [Ecology v. Theodoratus; 135 Wn.2d 598] that when amending a permit the entire permit is subject to scrutiny under public interest considerations added to statutes after the original permit was issued; and that permission shall only be given if water is available and appropriation will not impair existing rights or be detrimental to the public interest.

But this was a de facto change in the original purpose of the water right. The Johnson well permit was originally granted for a class B, domestic use, to serve 15 or fewer residences. Ecology had been notified in April of 1991, the proposed use of the well from which water would be withdrawn under the amended permit was “municipal.”

How can two permits, drawing from the same well, held by the same permittee, serving the same customers, not have the same purpose? Ecology quietly, inappropriately, and without notice to anyone, allowed the water district to change the original purpose of the Johnson well permit.

Ecology ignored the court’s cautioning in Merrill [R.D. Merrill Co. v. Pollution Control Hearings Board], “flexibility in amending permits is not unlimited.” RCW 90.44.100 is specifically concerned with the preservation of priority rights after an application for amendment to construct an additional or replacement well. In its discussion of the law’s intent, the Merrill court was focused on moving a permit to “another location on the property.”

In this instance the water district’s application wasn’t to allow an additional point of withdrawal (though that was the misleading notice provided) or move the permit to a replacement well, but to change the point of withdrawal to the North Shore Water Users’ well; not just located off the property, but in a completely different legal area. The North Shore Water Users’ well could not be a replacement well.

The permit could not be statutorily amended to be either an additional point of withdrawal, notwithstanding Ecology’s erroneous public notice back in 1994, or a replacement well. A reexamination of water availability and impacts on earlier rights and the public interest needed to precede amendment of their permit. And amendment of the permit required that Ecology consider statutory changes subsequent to issuance of the original permit, and the ensuing rulings of the courts.

One would have hoped that protection of the public interest would have prompted Ecology to employ the regulations of the original water code restricting such changes in the point of withdrawal to the amount actually put to beneficial use. That would not seem inappropriate given the Merrill court’s observation that “other statutes govern appropriation” besides the groundwater code.

No, Ecology’s position was, and is, that the court didn’t just allow them unlimited flexibility in approving changes to groundwater permits, including changing the point of withdrawal to a different legal area without the need to find water availability or protect the public interest; Ecology says the court required it.

Although Ecology must consider closures to lakes and streams as part of the water availability test under RCW 90.03.290, they claim the court mandated the use of RCW 90.44.100 when processing application to change groundwater permits and claim the Groundwater Code does not include a water availability test.

That’s right, Ecology ignores the incorporation of the water availability test in the Groundwater Code and the Supreme Court decisions in Theodaratus and Merrill.

Ecology was apparently content to ignore the law, the facts and the evidence. The Report of Examination makes no mention of Lake Whatcom or Whatcom Creek, and no discussion of the impact of an increase in the annual consumption of water on instream flows.

And what of the public’s welfare? Ecology simply writes, “No detriment to the public interest could be identified during the investigation of this application for change.” There you have it. No evidence, no facts, not even a description of what was investigated. Simply an opinion.

And what of the state statute that requires Ecology consult with the Washington State Department of Fish and Wildlife (WSDFW) to ensure a proposed use will not put fisheries at risk. Nothing in the record establishes that any notice was even provided to WSDFW when the water district applied for amendment of their permit. The only record Ecology could produce was a letter from the Department of Game in July of 1977 stating no objection to the original application. Scribbled on the letter: “Fish OK 2-15-77.”

To the report writer’s credit, they did recommend the change request be approved subject to existing rights and provided that, if it be shown the change has a detrimental effect on existing rights, the well operator was to mitigate for this impact and/or alter or cease withdrawal of water.

And they recommended the change be subject to existing rights held by the United States for the benefit of tribes with treaties. Perhaps Ecology will reconsider these recommendations. Perhaps Ecology will direct the water district to reduce or curtail withdrawals because the increasing withdrawals conflict with instream flows and are contrary to the public’s interests. But it’s not likely.

So now you know how Trillium and the other developers, working with the Lake Whatcom Water & Sewer District, have gamed the system for what is now 32 years to put their speculative interests ahead of ours.

Now you know why Bellingham ultimately had to pay extra millions to purchase this otherwise undevelopable land from David Syre and Peter Watts, (two law school graduates) and how Dr. Richard Giesbrecht was able to develop Opal Terrace in the watershed.

And now you know how the people we relied on failed us.

The fact remains, the water district could have used the water from Johnson’s original well to serve the 2,080 new residents they predicted would be using it by 1996 without ever moving it; all the maneuvering was just about keeping a priority date ahead of us and the needs of the lake and the salmon. There was never a legitimate reason to extend more time to these speculators.

And the irony of ironies is that based on their agreement with the developers in 1999, the water district committed the water from the well to the property owners’ successors in interest. Watts and Syre sold their land to the city of Bellingham. LWW&SD is either stealing the water from Bellingham, or the city is willing to provide the water to develop the north shore of the lake.

Now you know why the water district’s claim to water for more development along the north shore is a fraud. And you probably wonder how Ecology could let this happen, and how long they will let it to go on.

If, like me, you see yourself as merely transient, inheriting what’s passed down, with a right to enjoy it and a duty to pass it on, you share the feeling of responsibility we all have to preserve our common wealth.

Today, some 30 years later, Ecology sure can’t say “Fish OK” anymore. Thanks.

There will be no rivers without water, and no salmon without rivers. Without our help, they will soon be fish out of water. And with their demise goes something less tangible, but an equally tragic loss. When our bays are no longer alive with salmon, when our rivers no longer run with these great fish fulfilling their natal instincts, when our creeks and streams no longer team with smolts destined for the Pacific, when the redds are empty, so too will our lives be emptier, forevermore. §