The Washington State Department of Ecology has initiated a costly process in Whatcom County called a water rights adjudication.  Ecology openly calls this “the Nooksack Basin adjudication”.  Yet, those who live in the Sumas River basin know this simple fact: all of their water runs north into Canada, NOT to the Nooksack River.  Tom Pors is assisting this group with a motion to the Whatcom County Superior Court to remove the Sumas River basin from the boundaries of this costly and lengthy legal action.  

SUMAS-OUT is a group of water right holders in the Sumas Watershed who are asking to be removed from the legal process of adjudication.  They are 11 farming and dairy businesses, along with the City of Sumas, supporting a joint legal effort to file a motion with the Superior Court to exclude the Sumas River and associated groundwater from the adjudication.

Why exclude the Sumas River?   Adjudications are long (the Yakima River adjudication took over 40 years) and expensive (you may need to hire a qualified lawyer to defend your water rights).  The Nooksack adjudication includes groundwater, which creates considerable uncertainty about future regulation to protect instream flows.  But the Sumas River is not tributary to the Nooksack and 70% of the Sumas basin is in Canada.  It isn’t necessary to include the Sumas River in the adjudication boundary.  

When will the motion be filed?  After Ecology serves a summons in the adjudication, probably in early 2025. 

If the motion is successful, what happens?  If the Sumas River and associated groundwater is excluded from the boundary of the adjudication, water right holders in the Sumas Exclusion Area will not have to file a claim or defend their water rights in the Nooksack Adjudication. 

Do I have to join SUMAS-OUT to benefit?  This is a voluntary effort. If successful, this effort will benefit all property within the proposed excluded area.

How can I help?  Right now, we are raising money for attorney and consulting fees to file and win the motion.  Contributions can be made to Sumas Out c/o DAWG c/o Foothills Bookkeeping 410 W 3^rd St, Nooksack, WA 98276. You can also contact Thomas Pors if you want to join the motion as a supporting party after it is filed.

Law Office of Thomas M. Pors, 1700 7^th Ave., Suite 2100, Seattle, WA 98101

Tom has accepted a CLE speaking engagement at The Seminar Group’s 16th Annual Washington Water Code seminar, which will be held on November 14 and 15, 2023 in Tacoma, Washington and on-line. Stay tuned for final details on Tom’s topic and the specific date and time for his presentation.

For more information and registration, contact The Seminar Group on this link.

For more information and registration, call Law Seminars International at 206-567-4490 or click on this link.

Registration is open by phone: (206) 567-4490; email: registrar@lawseminars.com; or online: www.lawseminars.com/seminars/2019/19WATWA.php 

The Bassett case contends that Ecology lacked statutory authority to adopt the Dungeness Rule at WAC 173-518 because: (1) they failed to consider the maximum net benefits to the public of closing the groundwater and requiring mitigation that is not always available; (2) Ecology failed to consider the public interest and availability of water when it created instream flow water rights that are rarely met, thus impacting rural water availability for current and future generations; (3) Ecology ignored property rights to use exempt wells in rural areas for domestic and other uses; and (4) Ecology’s cost-benefit and least burdensome alternative analyses for the rule were based on false analyses and improper legal conclusions. If my clients are successful in this challenge, the Dungeness Rule would be invalidated, but the local rivers and streams would still be protected from non-exempt groundwater withdrawals through Ecology’s permitting program. Thousands of rural properties in the basin that are not currently eligible for individual wells as a water supply would no longer be encumbered by Ecology’s overly burdensome and unnecessary rule.  Currently, rural property owners who need a building permit are charged mitigation fees to pay for the costs of restoring flows to the Dungeness River, regardless of any real evidence of impacts from individual wells.

If you are interested in supporting this case, please contact Tom Pors or his client Olympic Resource Protection Council (ORPC) which has information and resources on its website.

Tom represents two of the municipal water right applicants in the  pilot project authorization under ESSB 6091, Part 3.  Please feel free to contact Tom for more information about pilot projects and the “Foster-fix” sections of ESSB 6091.  You can also download his recent article entitled, “ESSB 6091 – Part 3: The Potential for Mitigation Flexibility in Water Rights Permitting After Foster v. Yelm” by clicking here.  

This paper begins with an examination of the history of instream flow protection and its effect on groundwater availability, describes the Yelm water right application decision, and the PCHB appeal and decision. It concludes with the Foster decision and its effects on water right permitting, and discusses the potential “Foster fix” in Part 3 of ESSB 6091, adopted by the Washington Legislature and signed into law in January 2108.

To download the complete article, click here.

• It requires updates to several watershed plans and new watershed restoration and enhancement (WRE) plans in multiple watersheds;
• It allows counties and cities to comply with GMA relating to surface and groundwater protection by relying upon applicable minimum instream flow rules, effectively overruling the Hirst decision in most watersheds;
• It grandfathers wells that were drilled prior to the January 19, 2018 effective date in all but a few watersheds but with lower daily volumes;
• Pending development of required WRE plans and rules, it establishes a $500 fee for building permits based on exempt wells with a maximum 950 gallons per day per connection;
• It establishes a watershed restoration and enhancement account, with new bond authority and the intention to appropriate $300 million over 15 years for streamflow enhancement projects; and
• It establishes a Joint Legislative Task Force to develop and recommend a mitigation sequencing process that may resolve mitigation availability issues from the Foster v. Yelm case, and directs Ecology to process water right applications for five pilot projects using a new mitigation sequencing standard.

I am preparing a more detailed article on ESSB 6091, which will be published here in the coming weeks.

[1] ESSB 6091, Ch. 1, Laws of 2018.

The ELUL mid-year meeting will be held at Suncadia on May 10 to 12, 2018.  Tom’s panel will be presenting on Friday, May 11th at 1:15 p.m.