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.