HomeMy WebLinkAboutWater Resources October 11 19941
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WHATCOM COUNTY COUNCIL
Water Resources Committee
October 11, 1994
The meeting was called to order at 11 a.m. by Committee Chair Larry Harris in
the Council Committee Room, 311 Grand Avenue.
Also Present: Absent:
Marlene Dawson None
Robert Imhof
Other Council Members Present:
Ken Henderson
Ward Nelson
Alvin Starkenburg
Barbara Brenner
Committee Discussions and Recommendations to Council
1. DISCUSSION OF WATER USERS STEERING COMMITTEE
INFORMATION REGARDING LUMMI TRUST WATER RIGHTS
NEGOTIATIONS (AB94 -477)
The Steering Committe is made up of representatives from Bellingham, Lynden,
the Agricultural Preservation Committee, the Public Utility District and Whatcom
County.
Tom Anderson, Chair of the Steering Committee, took a few minutes to focus on
the current situation. The problem is driven by the fact that there is a perception that
we've overallocated the water in the basin, and there's no water left. There is a
moratorium on this area now, which is causing problems. The tribes are using that,
along with other reasons, to attempt to block not only new water rights, but increases in
use under existing water rights. This creates growth problems.
Rick Smith spoke on the industrial problems. The key issue is certainty of supply.
The current water situation is jeopardizing the certainty of supply. Based on projections
prepared by the Water Utilities Council for 1990 -2040, the demand for water in
Whatcom County will increase by about 96 %, not including industrial or agricultural use.
Water Resources Minutes, 10/11/94, Page 1
1 Besides the demand for water, other factors, such as moratorium on new water rights,
2 attempts at blockage on water use under existing certificates, drought and state laws,
3 regulations, policies, etc., enter into uncertainty for the water users, especially for
4 industry. Facts, cooperative planning and timely resolution are needed.
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6 Tom Mortimer (Seattle), legal counsel for the Public Utilities District Steering
7 Committee, commented on the process involved in the Lummi Tribe's desire to quantify
8 their tribal rights, both on and off the reservation. They then decided to pursue the
9 federal negotiation process, which involves the same preparation as litigation. This
10 process is an alternative to litigation; however, the feds will not pursue this process
11 unless there is a binding mechanism that will effectively bind all parties to a final decree
12 is in place. In other words, the binding mechanism is a state wide or general stream
13 adjudication that must already be filed and under way. The federal government is
14 interested in exploring this and have retained a firm to conduct an independent study of
15 the water resource conditions in this basin. The data they are collecting is identical to
16 the data the Steering Committee needs to collect. Any data collected by the feds is
17 considered proprietary, because it could be used in an adversarial action, negotiations or
18 litigation. The Steering Committee is moving forward to try to collect this information.
19 If the Department of the Interior decides the process is ripe for Whatcom County, the
20 basic process they will employ is that the Department Of the Interior and Bureau of
21 Indian Affairs representatives from the Portland, Oregon office will essentially comprise
22 a team, which will take the existing data and interview the Tribe regarding their legal,
23 historical and technical data that they believe supports their claim. The fact - finding
24 team will then interview local government interests and private water right holders to get
25 their perspective.
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27 This process allows the Steering Committee, if data has been prepared, to make
28 this a substantive contribution. This gives us the opportunity to influence and affect the
29 report that will be submitted to the federal government and will ultimately shape the
30 form of the federal negotiating position they will make when and if the process is
31 triggered. If the federal process collapses, it will also form the basis of the federal
32 government's advocacy position in any litigation that the tribe may pursue.
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34 The tribes want to pursue an on and off reservation process, as they have drafted
35 a memorandum of agreement which lays out the parameters under which they think the
36 litigation process should go. The feds have this document and have been instructed not
37 to comment on it.
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39 The Nooksack issue is under way; the federal process is separate and distinct from
40 the Nooksack initiative. The data recovered and studied in the Steering Committee
41 process can be used in this initiative, but the Steering Committee was formed for
42 purposes of defending their interests and representing themselves in this process.
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Water Resources Minutes, 10/11/94, Page 2
1 In the federal process, the feds have made no determination as to whether they
2 feel a suit should be filed in federal or state court, let alone whether they are going to
3 move forward. The tribes would like any suit to be filed in federal court. Others feel
4 that any legal binding mechanism should be filed in state court and any litigation should
5 occur in state court. This issue remains unresolved.
6
7 Mr. Mortimer stated the Steering Committee feels the state will not adequately
8 represent their interests or be fair. They believe there are conflicts of interest, and it is
9 not appropriate for the government to represent these interests.
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11 The County has two different sets of interest: the on- reservation issues deal with
12 jurisdiction; the off - reservation issues deal with the tribes' treaty involving many acres of
13 land throughout Whatcom County, which are arguably subject to land use permitting
14 decisions and land use decisions. Those decisions arguably have affected the habitat,
15 treaty rights, fishery resources and other interests that the tribes will bring to bear in any
16 federal negotiation process or arguably any federal litigation.
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18 Tom Anderson pointed out there are three possible solutions: the state court
19 option is impossible because the state is unwilling to implement a state adjudication; the
20 Nooksack initiative is the state's effort at a negotiated process (it is currently going
21 forward without participation by the tribes); and the federal negotiation is the process
22 that is currently being pursued and monitored by the Steering Committee. The Steering
23 Committee itself does not have a direct role in this initiative.
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25 If the federal negotiation process goes forward, who represents who? What
26 happens if the negotiations fall apart? The federal government will file a legal action
27 before they negotiate that will either be their conclusion or potentially what they fall
28 back on as a mechanism to go forward if the negotiations fail. The water right holders
29 will be named as parties to this action. What is unclear is how the County could be
30 involved in this process. The County is the land use authority, which impact the fish
31 habitat. This may make it possible for the County to be named as a party.
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33 Tom Mortimer spoke to environmental servitude, which is when a federal
34 government negotiates a treaty, it not only provides for the opportunity of hunting and
35 fishing but, associated with that right to make it of any value, is the ability to protect the
36 resource and the habitat which generates the fisheries and the wildlife that they are
37 entitled to hunt. This is a right which could fall within and outside reservation
38 boundaries. This goes beyond water rights issues; it allows the tribes to affect land use
39 changes by local governments and other parties that are in a position to either affect
40 them or in a position which a claim may be made against them, which demonstrates that
41 the way in which they have engaged in land use planning or land use decisions has
42 degraded the habitat and violated their treaty rights. The question for the County and
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Water Resources Minutes, 10/11/94, Page 3
1 other parties involved is what is the level of that sharing and what is the County's
2 responsibility in terms of maintaining the habitat in their usual and accustomed hunting
3 and fishing grounds to a level which allows for that common development and use of the
4 resource by the tribes.
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6 The Department of the Interior has indicated they will use the Adair decision,
7 which is a lawsuit that held that the tribe not only has an ability to claim the aboriginal
8 rights to water resource and treaty and habitat protection within its original reservation
9 boundaries but can also make such claims without its reservation boundaries to the
10 degree they can be supported by historical data and past practice and ethnographic
11 information.
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13 Jim Bucknell, Department of Ecology, spoke about data. One of the underlying
14 causes of difficulties is the lack of data in water resource management. Not much is
15 known about water availability; more needs to be known. A solution is to try to obtain
16 better data. A clear and concise data base is the goal, not one which is conflicting.
17 What is the appropriate management decision for the resource other than arguing over
18 the raw data. We, as a public agency, will insure that all parties have access to the data,
19 and intend to contribute cash and in kind services up to a 50150 split. Also, we have
20 initiated discussions with the Steering Committee on a draft memorandum of
21 understanding.
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23 Kelli Linville, state representative, spoke as to what we can expect from the state
24 legislature in the ensuing time frame. She is a member of the Water Leadership Team,
25 representing the Natural Resources Committee. One of the goals which will be
26 presented to the public is adequate and fair funding of whatever policy that is developed.
27 That effort is bipartisan.
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29 Michael Barkley, Cascade Environmental Services, spoke to unanswered questions
30 from the Council. The assessment plan is based on a thorough understanding of the
31 Steering Committee's goals and objectives as described in a July 15, 1994 report to the
32 Steering Committee. The plan is based on the need for cooperation and coordination
33 with efforts of other parties, in particular the Department of Ecology. It is also based on
34 the consultant's team existing knowledge of the water and fisheries resources in the
35 Nooksack Basin.
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37 The first work order is collaboration and consensus building; the next is collecting
38 and cataloging of existing information.
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40 The budget was then discussed, which consists of four areas: legal research, legal
41 services, clerical and contract administration, and environmental services and data
42 collection. A five -year projection, not shown, was also done.
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Water Resources Minutes, 10/11/94, Page 4
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Ad
ourn
There being no further business, the meeting was adjourned around 12:30 p.m.
ATTEST:
Ramona Reeves, Clerk of the Council
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Larry Harris, Cbuncil Member
Water Resources Minutes, 10/11/94, Page 5