Whatcom County Archives

Dairy Farm Pollution Costs Lummi Nation

An aerial photo shows a manure lagoon at a dairy farm adjacent to the Nooksack River. Courtesy of Kim Koon.

By Northwest Indian Fisheries Commission

Whatcom County’s booming dairy and agricultural industry has cost Lummi Nation shellfish harvesters millions of dollars already, and a recent closure of shellfish beds in Portage Bay is adding to the tally.

Manure from dairy cows is discharged either directly or indirectly into the Nooksack River, which flows into Portage Bay. In September, the tribe closed 335 acres of Portage Bay shellfish beds to harvest because of high fecal coliform levels that exceeded National Shellfish Sanitation Program standards. Continued poor water quality led to the closure of two additional areas in December, bringing the total to nearly 500 acres of shellfish beds that are unsafe to harvest. More areas may have to be closed in the coming months if conditions are not improved.

Lummi shellfish harvesters lost an estimated $8 million in revenue from 1996 to 2006, when 180 acres of Portage Bay shellfish beds were closed for the same reason. The Lummi Nation is pressing state and federal agencies to do a better job of keeping dairy farm manure out of the Nooksack River.

“The tribe has been working since 2005 to avoid this very situation from occurring,” said Merle Jefferson, Lummi Natural Resources director. “We do not have jurisdiction to enforce county, state and federal laws in the watershed so we must rely on Whatcom County, the Washington Department of Ecology, the Washington Department of Agriculture and the EPA to act. The federal agencies have a trust responsibility to ensure that the Lummi people can exercise their treaty rights to harvest shellfish in our usual and accustomed areas.”

Whatcom County is home to about 46,500 adult dairy cows, which can each generate 120 pounds of manure per day. Dairies store the waste in unlined lagoons that can leak 900 gallons of manure into the ground every day, according to a recent ruling under the Resource Conservation and Recovery Act.

Concentrated Animal Feeding Operations (CAFOs) – defined as industrial-sized livestock operations that confine animals to barns or feed lots – are required by the federal Clean Water Act to have National Pollutant Discharge Elimination System (NPDES) permits that regulate how much waste they release into the water.

However, none of the dairy farms in Whatcom County have an NPDES permit.

Smaller farms don’t meet the definition of a CAFO unless they have a documented discharge. Most claim not to spill manure into the water supply, said Andrea Rodgers Harris, a lawyer with the Western Environmental Law Center. Nevertheless, manure is being discharged into the Nooksack River and the groundwater. The Sumas-Blaine aquifer in Whatcom County is the most contaminated aquifer in the state.

“Ecology has concluded that the high nitrate pollution in the aquifer is largely due to manure pollution from dairy farms,” Harris said.

The federal Environmental Protection Agency (EPA) is working with the state Department of Ecology, which administers the permits, to enforce the Clean Water Act to “the fullest extent possible using available resources,” said Dennis McLerran, EPA Region 10 administrator, in a Dec. 9 letter to the Lummi Nation.

McLerran said that a farm that contributes significantly to pollution, even if it does not meet the definition of a “Concentrated Animal Feeding Operation,” can be required to get an NPDES permit. Animal feeding operations that are not significant polluters are covered under Clean Water Act provisions relating to nonpoint sources.

“We will continue to work with Ecology to take appropriate enforcement actions to bring such facilities into compliance with the NPDES general permit,” McLerran added.

The state is considering legislation, drafted at the direction of Gov. Inslee, to require all applicators of manure to be certified and licensed by the state

Another concern is pollution from Canadian dairy farms in British Columbia. A Vancouver Sun investigation learned that extremely high levels of fecal coliform bacteria are traveling across the border into Whatcom County via streams from the Fraser Valley.

In December, McLerran and EPA Deputy Regional Administrator Michelle Pirzadeh met with their counterparts in Canada to discuss updating a statement of cooperation between EPA and Environment Canada.

“During our meeting I stated the high priority EPA places on recovery of shellfish beds in Puget Sound, and specifically identified water quality problems and shellfish bed closures near the border as one of EPA Region 10’s highest priorities for our agencies to focus on in the coming year,” McLerran said.

In addition to working with EPA and Ecology, the Lummi Nation participates in the Whatcom Clean Water Program and the Whatcom County Portage Bay Shellfish Protection District, and is working to raise awareness about waste management practices.

Lummi also is seeking relief for fishermen affected by the closure. About 200 Lummi families make their living harvesting shellfish, and as many as 5,000 community members rely on the shellfish beds for ceremonial and subsistence purposes.

Whatcom’s new Superior Court judge has tribal background

Raquel Montoya-Lewis, shown in her office at Fairhaven College in 2011, was appointed to a new seat on the Whatcom County Superior Court by Gov. Jay Inslee on Monday, Dec. 15, 2014.RHYS LOGAN | WWU — Courtesy to The Bellingham Herald — Raquel Montoya-Lewis, shown in her office at Fairhaven College in 2011, was appointed to a new seat on the Whatcom County Superior Court by Gov. Jay Inslee on Monday, Dec. 15, 2014.
RHYS LOGAN | WWU — Courtesy to The Bellingham Herald

By Ralph Schwartz, Bellingham Herald

Whatcom County will have its first Native American Superior Court judge in 2015.

When Raquel Montoya-Lewis begins her term in January, she also will be the only Superior Court judge of tribal descent in the state.

Gov. Jay Inslee announced Monday, Dec. 15, he had appointed Montoya-Lewis to Whatcom County Superior Court. Montoya-Lewis, 46, is from the New Mexican tribes Pueblo of Laguna and Pueblo of Isleta. She is chief judge for the Nooksack and Upper Skagit tribes, and an associate professor at Western Washington University’s Fairhaven College.

“I’m really excited and honored to serve Whatcom County in this role,” Montoya-Lewis said in a phone interview on Monday. “I also recognize the importance of the appointment in terms of the question of diversity. I think it’s really important that the state court system reflect the people that it serves.”

“Raquel’s 15 years of experience as a judge will be well appreciated on the Superior Court,” Inslee said in a statement. “She is wise and has a strong commitment to service and to promoting justice. I know she will serve the community and the court exceptionally well.”

Montoya-Lewis was named this year to the Federal Advisory Committee on Juvenile Justice. She also is an appellate judge for the Northwest Intertribal Court System.

She was heartily endorsed by Bellingham City Council member Roxanne Murphy, a member of the Nooksack Indian Tribe.

“She has handled some of our most complex cultural, political and societal issues and managed these cases with the utmost care, intelligence, timeliness and fairness,” Murphy wrote in an email to the governor she sent on Wednesday, Dec. 10.

Montoya-Lewis has presided over the highly publicized “Nooksack 306” case in tribal court. The tribal council seeks to disenroll 306 members who the council says were mistakenly added to the rolls in the 1980s. The case has gone back and forth, but Montoya-Lewis has generally ruled in favor of the council, saying it has broad authority over membership decisions.

Montoya-Lewis remains the presiding judge in the case, and she said Monday she couldn’t comment on it.

The governor’s appointment stems from a bill passed by the 2013 Legislature authorizing a fourth Whatcom County Superior Court judge. Inslee’s selection comes two years after Deborra Garrett became the first woman to be elected to Whatcom County Superior Court. Besides gender balance, the appointment provides the court with another judge to take on the backlog of civil and felony criminal cases in the court.

“I think Raquel is going to be able to come in and hit the ground running,” Judge Charles Snyder said. “We’ll probably start giving her cases as soon as she gets in the door.”

Snyder sat with Montoya-Lewis on a panel discussing diversity in the legal system in 2012.

“I found her to be a very bright person who obviously has a good knowledge of the law,” Snyder said on Monday. “She will bring a new perspective, being the first Native American to come on the (Whatcom) bench.”

Montoya-Lewis emphasized her impartiality, regardless of who comes before her in the courtroom.

“There is certainly a large number of native people that come through the civil and criminal court in Whatcom County,” she said. “I think I will bring a unique perspective in serving that part of the community, but I see my role as serving the entire county. I see my role as being fair and neutral and unbiased.”

Water dispute clouds future for Whatcom County farms, factories

By JOHN STARK — THE BELLINGHAM HERALD

Everyone involved in Whatcom County’s water rights disputes seems to agree that a local settlement would be a good idea, but representatives of Lummi Nation have made it clear they will not sacrifice Nooksack River salmon to benefit farms, industries or cities.

Speaking at a May 30-31 water supply symposium at the Hampton Inn in Bellingham, Lummi Nation attorney Diana Bob said the facts were clear.

Dan Kruse, left, and Robert Teton of the Lummi Natural Resources Department, use a net to try to catch juvenile salmon to count on Feb. 15, 2012 at Marine Park in Bellingham. The department counts juvenile salmon around Bellingham Bay about once every two weeks. The Lummi and Nooksack tribes have asked federal agencies to file a lawsuit on their behalf to help determine the amount of water they should be guaranteed to bolster Nooksack River salmon stock.COLIN DILTZ — THE BELLINGHAM HERALD — Dan Kruse, left, and Robert Teton of the Lummi Natural Resources Department, use a net to try to catch juvenile salmon to count on Feb. 15, 2012 at Marine Park in Bellingham. The department counts juvenile salmon around Bellingham Bay about once every two weeks. The Lummi and Nooksack tribes have asked federal agencies to file a lawsuit on their behalf to help determine the amount of water they should be guaranteed to bolster Nooksack River salmon stock.
COLIN DILTZ — THE BELLINGHAM HERALD

“We have fish dying in the Nooksack River because we do not have sufficient flows,” Bob said. “That is an unacceptable proposition to Lummi.”

The flow of water in the Nooksack and its tributaries is reduced by withdrawals of water for the city of Bellingham and Cherry Point industries, but Whatcom County farms withdraw even more to irrigate raspberries and blueberries. River water is also used to irrigate cow pastures in dry months.

Both the Lummi and the Nooksack Indian Tribe have a federally recognized right to catch Nooksack River salmon. The tribes have asked federal agencies to file a lawsuit on their behalf to force the state to take steps to define the amount of water that they should be guaranteed, to bolster the flow of water in the river and its tributaries. That likely would mean curbing the amount of water that other users are allowed to withdraw.

The tribes asked the feds to file the lawsuit more than a year ago, and so far there has been no word of a response.

Farmers admit that more than half the water they withdraw is not authorized by state law. Farm groups’ attempts to negotiate a deal with tribes have broken down, as have negotiations between the tribes and city of Bellingham. The city diverts water from the middle fork of the Nooksack River to replenish its direct water source, Lake Whatcom.

While the city has reduced its take of river water and could likely cut it even more, berry growers could be badly squeezed.

Marty Maberry, a prominent fourth-generation berry grower, said he too wanted to see salmon populations increase. He suggested that if farmers can get enough water to stay in business, they could help bolster the amount of water in streams by drilling new wells to spill into streams. He said underground water supplies are abundant in the county.

In many cases, pumping from wells also can reduce the flow of water in nearby streams, making solutions complex. But cutting off the water supply to Whatcom County farms is a poor response, Maberry said.

“The production of food and the care of the land that we farm runs as deep red in my blood … as it does in tribal members about fish,” Maberry said. “They were here first, but we were here second or third.”

He questioned the logic of taking Whatcom County fields out of production.”

We’re in the most natural place to grow food that you can find anywhere in the United States,” Maberry said, adding that putting farmers out of business because of tribal water and fishing rights would embitter the community.

Lummi representative Randy Kinley said the tribes don’t want to put farmers out of business, but they are not afraid of stirring up resentment if that’s what it takes to guarantee their rights.

“We’ve been there and I’m not afraid to go back there,” Kinley said, referring to the 1974 federal court ruling that recognized treaty fishing rights and forced dramatic reductions in salmon harvests by non-Indians.

“That’s not saying we won’t sit at the table,” Kinley said. “We want to be community members. … We hope we can keep the community together, but the community has to understand where we’re coming from. … We don’t want to put anybody out of business, but you have to understand the predicament you got yourselves into.”

Kinley and others noted that withdrawal of Nooksack water for agriculture has increased rapidly in recent years with little oversight by the state or Whatcom County.

Whatcom County’s Cherry Point is home to two oil refineries and an aluminum smelter that provide hundreds of high-wage jobs. They also use significant amounts of Nooksack River water, supplied by Whatcom County Public Utility District.

The proposed Gateway Pacific Terminal coal export pier also would use river water from the PUD. PUD spokeswoman Rebecca Schlotterback said Gateway Pacific has already lined up its water supply via a PUD contract that extends to 2042.

While the PUD has a legal right to Nooksack water to cover its industrial customers, that right (and every other Nooksack River water right) is considered “junior” to the tribes’ water rights, since they were here first. Attorney Jay Manning, former chief of staff to Gov. Chris Gregoire and former director of the Washington Department of Ecology, said the PUD’s right to its water supply is not ironclad in that situation. Other water users also may be ahead of the PUD in the water line, if the available supply of water is cut back by a court order that allocates a larger share of water to the tribes for salmon populations.

“It’s going to be a function of math,” Manning said. “Where is the PUD’s right in that chain of priority? … Will there be enough water for the PUD to honor that (Gateway Pacific) contract? We don’t know that.”

Manning urged the crowd not to despair. He said workable solutions can be developed at the local level.

Perry Eskridge, government affairs director for the Whatcom County Association of Realtors, said local solutions would be best.

“If we don’t figure this thing out on our own, it is going to be figured out for us,” Eskridge said. “Somebody with a little bit more authority is going to shove it down our throats and we are not going to like that.”

Several speakers urged people to continue to work for a local agreement. Two of those speakers suggested that the tribes still may be motivated to make a deal, because there is no guarantee that the federal government will agree to take the state to court, and no guarantee such a court action would give the tribes all the water they want for salmon.

Michael Mirande, adjunct professor at Seattle University School of Law, said legal uncertainty has spurred out-of-court settlements of thorny water rights cases elsewhere.

Jim Bucknell, northern regional manager for RH2 Engineering, agreed.”

If any one person was absolutely certain they would prevail in a lawsuit, they would have sued long ago,” Bucknell said.

Bucknell also observed that no settlement will be painless.

“If you think there’s a solution that everyone in this basin is going to love, you’re delusional,” Bucknell said.

Reach John Stark at 360-715-2274 or john.stark@bellinghamherald.com. Read his Politics blog at blogs.bellinghamherald.com/politics or follow him on Twitter at @bhamheraldpolitics.