Some old local farms using water for over 80 years would have been locked out of the Nooksack basin water rights adjudication court case without the legislative fix
Some water users in Whatcom County, particularly longtime multigenerational family farms, have been legally using the same water source since before state law began requiring water rights over 80 years ago.
Now that all water users in the county are being required to defend their water rights in court via the Washington Department of Ecology’s new water rights adjudication, those farms wouldn’t have been able to participate if they didn’t have a water right document. That meant the court case had put their entire future in jeopardy, through no fault of their own.
The recently-passed fix for this problem, Washington state Senate Bill 5212, allows those farms to still file a claim in the adjudication court case, and through the process document their legal water use.
“It has the effect of protecting the oldest water rights, and at least giving them the opportunity to participate in the adjudication to have a water right, because without that, they could’ve been locked out of the adjudication process,” said Bill Clarke, attorney for the Ag Water Board of Whatcom County. Clarke said the state had offered an opening for water users in such situations to file for the correct paperwork back in the 1970s, but few people even knew about it.
“Many of the people affected, they may be the second or third owner of that property,” said Clarke. “So it’s not what they did or didn’t do, it’s what a prior owner of the land decades ago should’ve done, and this is an issue all throughout the state, but that issue really comes to a head when there is a water rights adjudication.” Washington Gov. Bob Ferguson signed the state Sen. Sharon Shewmake-sponsored bill May 17.
In March, over 30,000 Whatcom County water users were served court papers by certified mail, notifying them the state Department of Ecology is suing them in Whatcom County Superior Court. The lawsuit, likely the largest in state history, requires water users to prove their legal water rights.
Experts say water users who do not–or cannot–participate in the so-called water rights adjudication will likely not have the right to use water as an outcome of the case.
Related:
Bill Clarke, water rights attorney for the Ag Water Board of Whatcom County, joins Dillon with details on the state legislature’s recently-approved fix for the problem, breathing new hope into the future of some of the area’s oldest farms. Tap below to listen now:
