Skagit County Commissioners hold Public Hearing with Washington State Department of Ecology – Instream Flow Hearing

The Contributors at Liberty Road have spent a lot of time addressing how important the issue of water rights and access to water are to property.  There are a lot of organizations who are pressuring counties to stop rural growth through changes to the demands required to obtain a permit to excavate for a well on private property.  These groups demand that property development or improvement must use the precautionary principle.  The private property owner who wishes to acquire or retain the right to draw water through a permitted well are being asked to prove that their well will not affect the watershed.  How do you prove a negative?  How do you prove that your well will not affect the level or quality of water in the watershed?  What happens when thousands of property owners lose the ability to develop or improve their property?  How much value will be lost?  How much property will be abandoned?  Whatcom County could face a similar action to what is currently happening in Skagit County if they mitigate and accept an instream flow rule that is too low.

Here are two video posts.  The first is a recent King 5 News clip that gives a scant bit of information from a Whatcom County well owner and Attorney Jean Melious.  The second video is from last weeks Skagit County Public Hearing with the Department of Ecology.

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Skagit County’s fate is NOT  an apples-to-apples example.  Skagit County’s mistake is that they accepted a too-low instream flow rule, via negotiation with the Swinomish, and now the Swinomish are holding their feet to the fire.  That’s what the state Supreme Court ruling was about.  Ecology fell for a bad deal; now the whole situation is out of control.

Whatcom County has not negotiationed or made a similar agreement with the Lummis and Nooksacks, though they constantly complain and lobby for it.  WHY?  Because it works where it’s been tried.  The Department of Ecology botched it for the citizens in Skagit County, who now have to pay mitigation to use waters of the state and that is a disgrace.

What we can’t allow here is an unscientific, arbitrary, “negotiated” instream flow or water rights settlement – and that’s precisely what the Joint Board keeps pushing out and promoting (like they did at the water symposium).

We need to get with it and stick with the better statutory processes – available to us under the Water Code and the Watershed Planning Act – and let the WRIA 1 Planning Unit assure that good science leads to the right kinds of solutions, to the extent that water quantity and quality problems exist.

Locally, litigants being represented by local environmental activist and attorney, Jean Melious; Eric Hirst, Laura Leigh Brakke, David Stalheim and Wendy Harris (all members of nonprofit-environmental activism groups, Futurewise, ReSources and/or Conservation Voters) petitioned Whatcom County:

Petitioners challenged Whatcom County Ordinance No. 2012-032 on rural land use planning. This case addresses whether the County Comprehensive Plan’s Rural Element includes measures limiting rural development to protect rural character by protecting surface water and groundwater resources, as required by RCW 36.70A.070(5)(c)(iv). The case also addresses the consistency of the County’s transportation planning with its rural land use planning.

One of the outcomes of their petion would enforce the use of the precautionary principle to prove your well will not negatively affect the watershed.  It is important that residents of Whatcom County become aware of the potential for huge losses to property values, farms, jobs and the redistribution of public tax obligations to the properties within the cities of Whatcom County.  This case is currently set to be appealed to a higher court, but that is happening with the current County Council.  At the last County Council meeting, council members Weimer and Mann attempted to defund the money needed to pay for this litigation.  So, it is likely that once the New Council Members are seated in January of 2014, that there will be a majority in place to abandon the litigation of this case.

It is not an exaggeration that He who controls the water – controls all future development…Whiskey’s for drinking and Water’s for fighting!  It’s time for all good citizens to standup and be heard on this issue.

Some common sense thoughts from local property rights supporters for you to consider:

· We have plenty of water in Whatcom County.

· This appears to be driven by  “urban elitists”  that have spread out across our state with lawyers to interfere in local water issues.

· What’s being proposed is that people can be denied a PERMIT to build, or to use much of their property if the outrageous impervious restrictions get passed.

· Rural people could be denied “rights to water for their property”  which makes property practically worthless no matter where it is located.

· Making our rural properties useless would eventually  impact the property tax base and shift the bulk of the county’s tax burdens to the cities.  So this  has the potential to impact all of us.

Our local “instream flow rules” actually DO explicitly allow exempt wells – and people like Jean Melious either don’t know it, or they’re trying to create an entirely false narrative/scenario (or a combination of both) – creating a new layer of building permit requirements that are fabricated on a misapplication or misinterpretation of the Washington state Water Code, itself.  Ecology is turning a blind eye to it … that’s a problem in itself.  Here’s what the gig is:


A water right permit is required from the State Deptartment of Ecology for groundwater withdrawals of more than 5000 gallons per day OR irrigation of more than 1/2 acre of lawn or non-commercial garden also require a permit. Permit applications are available at the Whatcom County Health Department.

My point is, be very careful to say that people are being denied “rights to water for their property.”  What’s being proposed is that people can be denied a PERMIT to build, or to use much of their property if the outrageous impervious restrictions get passed.  There’s no way that Whatcom County has the legal authority to make water rights decisions or even make water allocation decisions on their own.  The Health Department may be making well permits miserable.   That’s what no-growth proponents have figured out – they’re frustrating rights more than taking them away.

We have tons of water. Olympia can only do so much to bail us out if we don’t push-back locally.  This is very much a local fight.

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  1. We need to drive a stake through the precautionary principle. The precautionary principle is anti-science, and the opposite of “innocent until proven guilty”. It is the tool of tyrants.

  2. Yes, it has, is and will continue to be used to create havoc for private citizens and local governments. It’s a great waste of community resources that should be put to use keeping our communities safe and clean, our local businesses “in” business and people employed.

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