Friday, June 18, 2021
CapitalPress.com 9
Water: ‘We’re pitting neighbor against neighbor’
Continued from Page 1
“It would follow what
Judge Boldt did — his inter-
pretation of treaty rights,”
Cline said.
‘Neighbor against
neighbor’
The tribes contend that
stream flows are too low
for salmon, particularly in
the summer when farmers
irrigate about 40,000 acres
to supplement the heavy
rain that falls on the region
during the rest of the year.
Cline said it’s proba-
bly too much to expect to
again see fish runs so thick
you couldn’t step into a
creek without stepping on
a salmon, but he said he
wants to at least go back
to the 1970s, before the
Nooksack spring chinook
were listed as a threatened
species under the federal
Endangered Species Act.
Water rights for cities,
industries and homeown-
ers with wells will also be
examined. Ecology says
it knows of 5,400 people
with water rights in the
Nooksack River Basin.
Some 14,000 rural resi-
dents might have wells.
Viewpoints on adjudi-
cation in Whatcom County
vary.
Environmentalists
say they like it, for exam-
ple. But it’s dreaded by
agriculture.
The more seed potato
farmer Greg Ebe talked
about adjudication in an
interview, the more he
shook his head. “Ridicu-
lous,” he said.
“I think there’s an ade-
quate supply of water,” he
said. “We’re pitting neigh-
bor against neighbor.”
Ebe said flows could
be improved if farmers
weren’t punished for not
using their full allotments
— the “use it or lose it” law.
In addition, he said, allow-
ing farmers more flexibil-
ity in moving water around
could free up more of it.
“Those two things we
could implement and have
more flow than now,” he
said. “We want the tribes to
get their treaty rights. We
want them to thrive, and we
want fish recovering.”
Ebe’s grandfather started
the farm in 1919. To pre-
pare for adjudication, Ebe
has hired a hydrologist,
hydrogeologist and law-
yer to prove and defend the
farm’s water rights in court.
“In Superior Court, our
water rights will be put
under a microscope,” he
said. “We’re leaving no
stone unturned. The stakes
are that high. Losing our
access to water essentially
puts us out of business.”
A promise not kept
Adjudication has been
brewing for a long time in
the basin. One reason, iron-
ically, is that it rains a lot
there.
Don Jenkins/Capital Press
Whatcom County, Wash., dairy farmer Hans Wolfisberg says a lawsuit over water rights planned by the Washington
Department of Ecology might help him, but might hurt him.
Whatcom County gets
40-plus inches of rain annu-
ally. Historically, water
rights were not as vigor-
ously pursued or enforced
as in arid Eastern Washing-
ton. A lot of farmers irri-
gated with no water right.
Over the years, water
became a rarer commodity.
In 1985, Ecology created
a new water right by set-
ting minimum flows for the
Nooksack River and trib-
utaries. Farmers warned
that Ecology was sowing a
water war.
In the early 1990s, Ecol-
ogy’s then-Deputy Direc-
tor Terry Husseman prom-
ised farmers without a
permit that the department
wouldn’t shut them off if
they applied for a water
right by Dec. 31, 1993.
More than 200 sub-
mitted applications, but
the water rights weren’t
granted.
“Applications
cannot
be legally approved unless
there is water available,”
Ecology adjudication man-
ager Robin McPherson
said in an email.
In the late 1990s, the
Legislature
considered
“amnesty bills” to legal-
ize the Husseman promise.
About one-third of What-
com County irrigators were
watering without a permit,
according to a bill report.
Most farmers irrigated
to supplement rain and
were not as familiar with
water-right requirements as
farmers in Eastern Wash-
ington, witnesses testified.
A bill was needed to address
the legal quagmire, they
said.
The Legislature passed
amnesty bills in 1997 and
1998. Gov. Gary Locke
vetoed both, saying the bills
were unfair to other water-
right applicants and that
Don Jenkins/Capital Press
Whatcom Family Farmers executive director Fred Lik-
kel sees widespread risk for agriculture in a lawsuit
planned by the Washington Department of Ecology.
local negotiations should
resolve water use disputes.
The tribes say the nego-
tiations failed, leading them
to seek adjudication. “To
be honest, I believe there’s
been too much concern for
the illegal water users,”
Cline said.
Husseman died of an
apparent heart attack in
1998 while giving a pre-
sentation on water issues to
Locke’s chief of staff.
“Different people have
differing memories about
what was meant by Mr. Hus-
seman, and it was not well
documented,” McPherson,
of Ecology, said.
Nevertheless, Ecology
has tried for 30 years to
work with “noncompliant
water users,” she said.
“But we are limited to
the water available and
are required to follow the
law,” McPherson said. “If
someone thinks their per-
mit application should be
granted, they will be have a
chance to explain that to the
court.”
The future for many
farmers hangs on the Hus-
seman promise being kept,
Likkel, of the family farm-
ers’ group, said.
“That’s the difference
between a lot of people hav-
ing water and not having
water.”
Haves, have-nots
Hans Wolfisberg grew
up on a dairy in Switzer-
land. After hiking and skiing
around the U.S. he bought
a farm in Whatcom County
and named it Edelweiss
Dairy, an organic operation
with 150 milking cows.
The farm had a well.
Since Western Washing-
ton seemed to have a lot of
water, “I didn’t worry about
that,” Wolfisberg said.
Several
years
ago,
Wolfisberg acquired a right
to draw water from the
Nooksack River. When the
river drops, Wolfisberg gets
shut off. It happens every
summer just as he needs to
irrigate pastures.
“That right is fairly use-
less to me,” he said.
Wolfisberg said adjudica-
tion might firm up his water
right and make it more use-
ful. It might go the other
way, though. “My water
right then would be com-
pletely useless,” he said.
With little to lose, Wolfis-
berg doesn’t fear adjudica-
tion for himself. He said he’s
worried, however, about its
effect on the county’s over-
all farm economy.
Whatcom County has
three times as many dairy
cows as any other West-
ern Washington county. The
concentration of dairies was
one reason Wolfisberg chose
to farm there, he said.
“The whole commu-
nity of dairy farmers is still
here,” he said. “I feel that’s
undervalued.”
Whatcom County farms
produced goods worth
$372.8 million in 2017,
according to the last Census
of Agriculture. Neighboring
Skagit County, with the sec-
ond-biggest farm economy
in Western Washington, pro-
duced goods worth $287
million.
Whatcom County ranks
second in the state in milk
production, behind Yakima
County, and produces about
90% of the red raspber-
ries grown in the U.S. for
processing.
Cline, the tribal chair-
man, said that just as tribes
had to adjust to dwindling
salmon runs, farmers will
also have to adapt.
“They’re going to have
to be open-minded and fig-
ure out how to survive with
less water,” he said. “We’ve
already had to do that.”
Adjudication in Yakima
Ecology has adjudi-
cated water rights before,
Wells: OWRD’s study is intended to ‘stimulate conversations’
Continued from Page 1
Similarly, new wells are
only considered to interfere
with existing ones in limited
circumstances, Iverson said.
“There is a fairly high thresh-
old for finding injury.”
Applicants
are
often
“savvy” enough to know which
locations are more likely to be
approved for drilling, he said.
“The statutes say that we’re
going to presume that a new
application is in the public
interest, but that’s a rebuttable
presumption,” Iverson said.
Permitting entities must
always make decisions based
on “imperfect information,” but
the study indicates that Oregon
may not have the correct stan-
dards for approving ground-
water applications, said Meg
Reeves, retired general coun-
sel for Oregon State University
and the commission’s chair.
“This does raise the ques-
tions for me as to whether we
have drawn the line in the right
place as to whether we would
act to limit further appropria-
tion,” she said. “I hope we’ll be
able to find a way to do some-
thing with this information that
would help us prevent further
drawdown.”
Brad Williams Water Well Service
A water well site under construction. About 80% of new wells
in Oregon are approved in areas of groundwater concern, ac-
cording to state water regulators.
The OWRD’s study, which
has mapped the state’s areas
of concern for groundwater,
is intended to “stimulate con-
versations” with stakeholders
and may discourage drilling in
problem areas, Iverson said.
The analysis will also help
prioritize aquifer monitor-
ing and may indicate where
the agency should re-evaluate
the boundaries of groundwater
restricted areas, he said.
For example, some wells
next to the Mount Angel
Groundwater Limited Area
are showing declines similar
to those within its boundaries,
said Ben Scandella, OWRD’s
groundwater data chief.
“This is an example of how
this tool can help us see areas
where the existing boundar-
ies of groundwater restricted
areas may have been appro-
priate when they were created
but don’t necessarily reflect the
current conditions,” he said.
The agency’s study does
have a “data availability bias,”
in that it focuses on areas where
irrigation is the most prevalent,
Iverson said.
Areas of concern are also
measured by township, a
36-square-mile unit of land
measurement in which ground-
water conditions may vary, he
said.
The map will be incremen-
tally improved as OWRD
incorporates more data in the
future, Iverson said.
“We wanted to make an
objective and repeatable eval-
uation,” he said. “This ground-
water concerns map is going to
be easily updated over time and
we fully intend for it to be a liv-
ing map as more information is
brought in.”
most notably in the Yakima
River Basin. The adjudica-
tion, called the Acquavella
lawsuit, was filed in 1977.
The final decree, prioritizing
2,300 surface-water rights,
came 42 years later, in 2019.
Ecology says adjudicat-
ing the Nooksack Basin can
be done in 10 to 20 years.
The Nooksack adjudication,
however, may be even more
complicated. Acquavella did
not prioritize any groundwa-
ter rights.
Also, large irrigation dis-
tricts represented the Yakima
farmers. Whatcom County
has no irrigation districts.
“Farmers will have no
other choice but to lawyer
up in this situation,” Likkel,
of the family farmers, said.
Ecology has approached
adjudication
enthusiasti-
cally. It successfully lobbied
for money this year to start
preparing. It plans to file the
suit in 2023.
Ecology and the tribes
are in accord on the need for
adjudication. The tribes set
up a website, salmonneed-
water.org, that echoes some
of Ecology’s talking points
on adjudication.
“The position of the
Lummi Nation is that time
is of the essence, and adju-
dication is really urgently
needed now to bring lasting
solutions,” Kara Kuhlman,
the Lummi water resources
manager, said during a
video forum on adjudication
hosted by the tribes.
At the same forum,
McPherson, of Ecology, said
tribes “graciously” agreed to
quantify their rights in state
court.
“Many state water users
are daunted by thinking,
‘Oh, the tribal water rights
in prior appropriation are
before us.’ Well, that’s cer-
tainly true,” she said.
As Ecology prepares for
adjudication, talks to avoid
a long, divisive and expen-
sive court battle will go on.
The Legislature appropri-
ated $250,000 to Whatcom
County for negotiations to
“complement water rights
adjudication.”
“That’s been happening
for like the last 20 years,”
Cline, the Nooksack Tribal
Council Chairman, said.
The tribes say you can’t
have “creative solutions”
until you know who has
water rights. Ecology has
equally embraced going to
court, taking the position
it’s the most efficient way to
resolve claims to water.
Ebe, the potato farmer,
says he is braced for a “long,
drawn-out, arduous pro-
cess” but maintains that it’s
all unnecessary.
“A collaborative process
could result in a lot of win-
ners,” he said.
“We feel agriculture is
the most compatible use for
salmon recovery,” Ebe said.
“It’s pretty logical. If we
don’t have agriculture, we’d
have pavement.”
WOTUS: Biden
inherited several
lawsuits challenging
the Trump rule
Continued from Page 1
rule was environmentally conscious and clear.
“Today’s announcement fails to recognize the
concerns of farmers and ranchers,” he said in
a statement.
Duvall called on EPA Administrator Michael
S. Regan to not return to the “regulatory land
grab that was the 2015 WOTUS rule.”
“He must keep his word to recognize the
efforts of agriculture and not return to flawed,
overly complicated and excessive regulations,”
Duvall said.
Biden inherited several lawsuits challenging
the Trump rule. The Biden administration said
it will ask courts to remand the rule to the EPA
and Army corps.
Regan said in statement the rule was “lead-
ing to significant environmental degradation.”
The lack of protection was particularly sig-
nificant in arid states, such as New Mexico and
Arizona, according to a join statement from the
EPA and Corps.
The Clean Water Act’s scope has become
a partisan issue, subject to rewrites after pres-
idential elections.
Farms groups and red states sued to over-
turn the Obama rule. Conflicting rulings left
roughly half the states under the Obama rule
and half under the pre-Obama standard.