Over 50 real estate agents, brokers and developers along with private property owners from around Whatcom County gathered in Pioneer Pavilion Community Center last night for the first of four forums about property rights.
Real estate broker Mary Kay Robinson introduced speaker Robert Carmichael noting, “Tonight is all about the Hirst Decision, which is why we are all here.”
The Hirst Decision is an October 6, 2016 Supreme Court decision that specifically put Whatcom County on notice that it had failed to protect water resources.
Carmichael, a land use attorney in Bellingham, started his presentation with a history of water rights in Washington state beginning with the requirement for applying for water rights in 1917 and the utilization of the prior appropriation doctrine, often referred to as “first in time, first in right.”
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Click for more informationCarmichael also explained the “instream flow rule.” Set instream flow values for streams and rivers are used by the Washington Department of Ecology (Ecology) to determine whether surface water is being overused. There are natural variations to stream levels throughout the year, so the value is often the median level over a year according to Carmichael. This is a level of stream flow necessary to provide for wildlife, fish, scenic, aesthetic and other environmental values.
Evidence presented during Hirst’s Washington State Supreme Court case showed instream flows dropping below the rule level for 100 to 140 days out of the year and the court saw that as evidence of the water not being protected. This, according to Carmichael, is due to the court ignoring or misunderstanding this and other evidence.
In the court’s decision, now known as the Hirst Decision, the Court said water is not legally available if a new well would impact a protected river or stream or an existing water right. As a result, Whatcom County has placed a moratorium on developments requiring new water wells, except permit-exempt wells. The decision also appears to set a legal precedent that applies in other counties across the state.
Carmichael also explained current water rights and how many holders of large amounts of water rights in Whatcom County, including the City of Bellingham, appear not to be using all they have access to and could vacate the unused amount, making it available to others. He also conceded vacating such water rights was unlikely without substantial motivation.
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Click for more informationCarmichael pointed out water rights have become such an important issue that Benton, Kittitas and Yakima Counties have spent over two decades going through the legal process in Superior Court, referred to as water right adjudication, to determine who has a valid water right in the Yakima River Basin. No one in Whatcom County has begun such a process according to Carmichael. In 2011, the Nooksack and Lummi Tribes asked for adjudicated water rights but no action was taken.
Indian tribes hold the most senior water rights which ties back to the prior appropriation doctrine, giving priority to the oldest water rights.
According to Ecology, adjudication is currently the only definitive and legally binding way to determine who has a valid water right, how much water can be used and who has priority during shortages.
The Property Rights Week series continues tonight at 7pm with a presentation about balancing property development + environmental protections.