Representatives of the county Ag Water Board say nearly four decades ago, the state led approximately 200 local farmers to believe it would approve their applications for permits to withdraw groundwater — most of which, the board says, are still unprocessed.
However, staff from the state Department of Ecology say the department could not have guaranteed applications would be approved and farmers were likely told they would not face enforcement for using water before their applications were processed.
These differing interpretations may come to a head during the state’s water adjudication process in the Nooksack Basin.
The adjudication, triggered by a lawsuit filed by Ecology last year, is a legal inventory of water rights in the area and their levels of priority. It will likely take more than a decade to reach a conclusion.
Prioritization of rights belonging to private well owners, farmers, municipalities, tribes and government agencies will come down to a court ruling.
The water board, which manages water resources and represents agricultural interests in the Nooksack watershed, does not have documentation of the promise Ecology allegedly made to farmers back in the 1980s or ’90s. Nor does Ecology.
A judge will eventually decide how to weigh farmers’ unprocessed applications.
State establishes groundwater law
Washington enacted a groundwater code in 1945, establishing for the first time a requirement to obtain a permit for groundwater use nearly three decades after the state passed its surface water law in 1917.
Those whose water use predated the groundwater code could file a “statement of claim” to a water right during set filing periods in the years after: between 1967 and 1974, in 1979, 1985 and between 1997 and 1998.
A statement of claim is distinct from a water right application, which asks the state to approve a new use of water. Claims assert water use began before either the state’s 1917 surface water code or the 1945 groundwater code became law, therefore making it legal.
“Failure to file claim,” the law reads, “waives and relinquishes right.”
But not everyone who could have filed a claim understood the process and why it was necessary, said Gavin Willis, executive director of the water board.
“I imagine that there’s probably some landowners at the time who viewed it as government overreach and didn’t want to share that information either,” he added.
In 1985, Ecology established an instream flow rule, or minimum water levels for rivers and streams, for the Nooksack River. Instream flow rules are legal water rights subject to the state’s “first in time, first in right” principle. In other words, water rights are given priority during shortages based on the date they were established.
The rule got some farmers’ attention, Willis said. A number of them realized they had never filed a claim or submitted a water right application for their groundwater use.
The water board and Ecology understand what happened next differently.
An undocumented ‘promise’
Willis said Ecology staff, specifically former Deputy Director Terry Husseman, told farmers who were using groundwater to apply and the department would eventually process their applications.
Some of those applicants started using groundwater before the 1945 code, he said, and the majority’s use started before the 1985 instream flow rule.
Bill Clarke, attorney and lobbyist for the water board, said those conversations happened at meetings in Whatcom County about the instream flow rule. He was unsure whether these would have been public meetings or meetings with specific farm groups.
Though Ecology did not explicitly promise to approve applications, Clarke said, the department’s assurance that farmers could keep using water and their applications would be processed implied Ecology would not deny those applications.
Ecology’s commitment is known by some in the agricultural community as the “Husseman promise.”
Willis estimates about 200 farmers applied around that time, in the late ’80s and early ’90s. A search of the state Water Right Record turned up 207 pending water right applications for irrigation in the Nooksack Basin submitted between 1985 and 1995. However, an Ecology staffer cautioned this figure is a rough estimate.
Some whose groundwater use predated 1945 did not file a claim in the 1997 and 1998 window, Willis said, because they already had pending applications and believed they would eventually be issued permits.
Essentially, those applicants missed their chance to stake a claim on water they’d been using for decades.
Ecology staff have an alternate perspective.
“We don’t actually have any documentation of this promise,” said Jimmy Norris, a spokesperson for the department. “But our understanding was not that it guaranteed approval, but that people wouldn’t be penalized or prosecuted if they used water while they were waiting for approval.”
Robin McPherson, Ecology’s adjudications manager, understands Husseman’s assurance as conditional: that the department wouldn’t enforce against applicants “unless there were complaints” – and there are complaints against farmers’ water use in the region regularly, she said.
Husseman can’t answer questions about what he told farmers. He died in 1998 while serving as deputy director.
But when Husseman allegedly made his promise to farmers around the ’80s, groundwater right applications were more likely to be approved.
New hurdles to approval
Ecology has become more restrictive in granting groundwater rights in recent decades due in part to increased understanding of groundwater’s impact on surface water, said Kasey Cykler, Ecology’s Northwest Region manager for its Water Resources program.
Most areas in the Nooksack’s watershed are now closed to new water rights during the times of year people want them, she said, like in the summer.
Ecology has only a handful of employees processing applications in the Northwest region, which spans a wide area that includes King, Island and Kitsap counties. Processing water right applications is time-consuming, Cykler said, and must be legally defensible.
“Rather than focus our limited number of people (on) processing many denials, or what are likely denials, to the applications up here,” she said, “we focus them on different areas of the region just because of those staffing constraints.”
Clarke, the water board’s lawyer, believes the farmers who applied for water rights based on conversations with Husseman were “caught in a shift change,” in hockey terms, meaning “right as you’re making some decision, the regulatory structure changes.”
Willis said he imagines some of those applicants have pursued other ways to get water, like by purchasing water rights elsewhere. However, he believes the majority “are dependent on those applications.”
McPherson stressed the importance of farmers with pending applications participating in the adjudication process.
“That is their best opportunity to have these concerns heard,” she said. “This is their moment to tell that story.”
Forms that water users must fill out to participate in the adjudication process will be sent out later this year.
Sophia Gates covers rural Whatcom and Skagit counties. She is a Washington State Murrow Fellow whose work is underwritten by taxpayers and available outside CDN's paywall. Reach her at sophiagates@cascadiadaily.com; 360-922-3090 ext. 131.
