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12 CapitalPress.com December 1, 2017 Creek provides important habitat for many species of fish FISH from Page 1 the area looked to pumping groundwater into Bertrand Creek as an attempt to demon- strate on a modest scale some- thing helpful and practical. “A number of us under- stand this is not an issue we can hide from,” said What- com County raspberry grower Marty Maberry. “I see this po- tentially as the biggest issue agriculture has to fix.” The idea was simple: Take water from the aquifer at the end of irrigation season and pump it several hundred feet to Bertrand Creek to help fish survive low stream flows in late summer and early fall. The groundwater would even- tually have percolated into the stream, but by then win- ter rain would have increased stream flows anyway. It made sense to the farm- ers to reallocate the water this way. But it wasn’t easy. Roadblocks “We ran into roadblocks every step of the way,” Maberry said. “It took a long time to do something that should have been done in five minutes.” Washington produces more red raspberries for pro- cessing than any other state. Most of those berries are grown around Lynden. Ber- trand Creek, a rain-fed stream whose source is in Canada and flows into the Nooksack River, has provided irrigation water to area farmers. The creek also provides important habitat for many species of fish, according to the Washington Department of Fish and Wildlife, includ- ing chinook salmon and steel- head trout, which are on the federal endangered species list. Three decades ago, over farmers’ opposition, Ecology officials set minimum flows for the Nooksack and its trib- utaries, including Bertrand Creek. The Hirst decision was based on protecting those flows in the Nooksack Basin. Even before then, farm- ers along the creek had been transferring their water rights so they could obtain water from the aquifer instead of from the stream. “It wasn’t sustainable to continue pumping out of the creek,” said potato seed farm- er Greg Ebe. Last fall’s pumping of groundwater into the creek was the next step in increasing its flows. The Bertrand Watershed Improvement District, an ir- rigation district, obtained a permit from Ecology to tem- porarily transfer groundwater directly to the creek. Ecology also provided $65,000 for the project. The Lummi tribe objected to the water-rights transfer, stating in a letter to Ecolo- gy that all withdrawals from the watershed could hurt the tribe’s rights. The Nooksack Courtesy of Whatcom Family Farmers Hydrogeologist Chuck Lindsay talks about raising Bertrand Creek in a video made by Whatcom Family Farmers. Don Jenkins/Capital Press Whatcom County, Wash., raspberry grower Marty Maberry walks past a ramp Oct. 18 delivering groundwater to Bertrand Creek. “We ran into roadblocks every step of the way,” he says. tribe didn’t comment on the application. Neither tribe re- sponded to requests for com- ments for this article. Ecology’s Bell- ingam-based watermaster, Kasey Cykler, said the agency made sure the watershed im- provement district informed the tribes, Whatcom County and the Washington Depart- ment of Fish and Wildlife about its plan. “Ecology’s goal was to ensure widespread support of the (watershed improvement district’s) project, which we believe they received from the tribes, WDFW and the coun- ty,” she said in an email. Maberry said farmers are mindful of the tribe’s trea- ty rights. “It’s something we need to take seriously, and we do take their claims serious- ly,” he said. The project was also com- plicated by the state Supreme Court’s so-called Foster deci- sion, which was handed down Oct. 8, 2015. The 6-3 ruling struck down a plan to give the city of Yelm in Thurston County more water, without hurting fish. Ecology and tribes agreed that the plan, which took 20 years to write and included retiring water rights and im- proving habitat, would actu- ally benefit fish. The court, however, said no mitigation plan could justify lowering streams and rivers below state-set minimums, even for a month or two a year. The minimum stream flows, according to the court, are water rights and protected by the principle “first in time, first in right.” The decision can be seen as an affirmation of Western water law and protective of senior water rights, including agricultural water rights. The ruling, however, limits ways that water can be redis- tributed, even in cases where there’s widespread support, including from senior wa- ter-right holders. Don Jenkins/Capital Press Bertrand Creek flows through Whatcom County in northwest Washington. Farmers pumped ground- water into the low-running stream to help fish. “You lose on all sides when you can’t do water-right trans- fers,” Washington Farm Bureau associate director of govern- ment relations Evan Sheffels said. “It gets in the way of a lot of market solutions.” The Foster decision threat- ened the Bertrand Creek plan because the timing of the creek’s flows would be changed. “The Foster decision makes projects like these much more difficult for Ecol- ogy to approve,” Cykler said. Maberry said the decision could keep farmers from do- ing more for streams. “Foster is a bad legal deci- sion, and it hinders the ability to do good things,” he said. Ecology decided the Ber- trand Creek project was OK. The wells are not far from the creek, so the timing of flows may not be changed too much, though Ecology will be watching, Cykler said. Creek rises As the irrigation season wound down, water from three wells on Maberry’s farm was pumped into the creek. There was a question about whether the water would actu- ally increase the creek flow, or just soak into the surrounding ground. The experiment began Sept. 13. Shortly after noon, 1.1 cubic feet per second be- gan flowing from the wells into the creek. Two miles downstream, the creek was running at 7.2 cubic feet per second, according to Ecology’s gauge. By the next day, the creek was at 8.2 cubic feet per second. Lynden re- ceived no rain during that time, according to Washington State University weather records. The creek was still short of the 13 cubic feet per second it needed to meet the mini- mum-flow standards, but the project worked as intended. “I would say we made a significant impact,” said Chuck Lindsay, the watershed improvement district’s con- sulting hydrogeologist. “One of the reasons I liked this proj- ect so much is that we were ac- tually doing something.” The plan was to pump groundwater into the creek until Nov. 15. But a month af- ter the experiment began, an Oct. 18 storm dumped almost 2 inches of rain on the area. By the next day, the creek was running at 437 cubic feet per second. The experiment in putting water into the creek ended ear- ly because there was too much water in the creek. Maberry said the test was just a start, a pilot project, and that he hopes Ecology will al- low more projects like it. “The farmers are the only ones actually doing anything,” he said. 9th Circuit upheld the Short-term rentals of farm dwellings are increasing lawsuit’s dismissal SOLAR from Page 1 RIGHTS from Page 1 “This would set prior ap- propriations doctrine on its head,” Glick said. If the environmental groups had prevailed, this legal theory would apply only to irrigators who withdraw water from fed- eral land. However, the federal government owns a tremen- dous amount of property in Oregon, he said. Ultimately, though, the en- vironmental plaintiffs were unsuccessful. U.S. District Judge Ann Aiken disagreed that the For- est Service’s analysis was in- sufficient and dismissed the case. In August, the 9th U.S. Circuit Court of Appeals up- held her ruling and the plain- tiffs didn’t challenge the deci- sion before the U.S. Supreme Court by a mid-November deadline. Nonetheless, the environ- mental groups’ legal theory demonstrates how Oregon instream water rights can be “weaponized” in federal lit- igation, said Glick. The 9th Circuit upheld the lawsuit’s dismissal in an unpublished memorandum, which means it doesn’t have precedential value, he said. “It could be tried in some other context,” Glick said of the legal theory. Paul Dewey, executive director of Central Oregon Landwatch, said the law- suit’s goal wasn’t to change Oregon water law regarding instream water rights. Rather, the plaintiffs sim- ply used the minimum flow levels in Oregon’s instream water right certificates as evidence in the case, Dewey said. “It’s an evidentiary issue for a federal court to deter- mine a minimum instream standard,” he said. The plaintiffs could have cited another document as evidence of minimum flow requirements, Dewey said, adding that people con- cerned about the lawsuit may have an ulterior motive. “This seems like an agenda to undermine the in- stream water law,” he said. Oregon lawmakers have allowed Tillamook County to require wetland develop- ments to obtain conditional use permits, whereas con- version of farmland to wet- lands is allowed outright elsewhere in the state. As part of this pilot proj- ect, the county may also devise a system to steer wet- land development toward certain areas while preserv- ing farmland elsewhere. Representatives of the agricultural and environ- mental communities appear to be rethinking their origi- nal approach to the problem, said Johnson. The initial idea was to create a map of areas where wetland development is ap- propriate, but that concept appears to be falling out of favor, he said. Tillamook County has some of the best grazing land in the state, so it’s difficult to prioritize certain areas over others, Johnson said. “It’s just not that clear- cut,” he said. Instead, stakeholders are moving toward a checklist of factors that would help determine whether a site is appropriate for wetland de- velopment on a case-by-case basis, Johnson said. A potential electrical transmission line in Tilla- mook County is also worri- some to dairy farmers whose properties it may traverse, he said. Stray voltage of electrici- ty can be damaging to cattle health, but dairies are also concerned about impedi- ments to aerial spraying and “big gun” field applications of manure, he said. Short-term rentals of homes through popular on- line websites such as Airb- nb are often blamed for aggravating housing short- ages in cities, but the issue is cropping up on farmland as well. Popular Oregon tour- ist destinations such as the Hood River Valley and Sau- vie Island are increasingly seeing farm dwellings de- voted to short-term rentals, Johnson said. Arguably, such rentals deviate from the approved use of farm dwellings, which are meant to provide housing to farmers and farm workers, not tourists, he said. While such rentals may encourage agritourism, growers worry about the “tail wagging the dog” — a situation where surrounding agriculture basically pro- vides an excuse for rentals, Johnson said. The issue has gained enough prominence that it’s likely to spur legislation in 2018 or 2019, he said. In other board business: • A year since a state audit criticized the Oregon Department of Agriculture’s backlog of food safety in- spections, the agency has reported a major reduction in those overdue inspec- tions. The backlog has been cut from 2,841 overdue inspec- tions to 739, in part due to an electronic inspection tim- ing system and a reduction of ODA staff time dedicated to federal regulations, ac- cording to Alexis Taylor, the agency’s director. • The board has recom- mended five farmers to serve on the 12-member commis- sion of the Oregon Agri- cultural Heritage Program, which is aimed at preserving farmland with easements: • Doug Krahmer, a blue- berry farmer with several operations in Western and Central Oregon. • Woody Wolfe, a farm- er and rancher in Wallowa County who has has estab- lished two easements. • Ken Bailey, a farmer who manages 2,500 acres of fruit orchards in the Colum- bia Gorge. • Chad Allen, a dairy farmer from Tillamook County who serves on the Oregon Dairy Farmers As- sociation board. • Lois Loop, a retired USDA employee who pro- duces grass seed, small grains and clover in Polk County, will serve in a posi- tion specializing in agricul- tural water. The commission’s re- maining seven members will be chosen by Oregon State University, the Ore- gon Fish and Wildlife Com- mission, the Land Conser- vation and Development Commission and the Oregon Watershed Enhancement Board.
