HomeMy WebLinkAboutCommittee of the Whole February 26 2002 morning1
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
WHATCOM COUNTY COUNCIL
Committee Of The Whole
February 26, 2002
The meeting was called to order at 9:30 a.m. by Council Chair L. Ward
Nelson in the Council Chambers, 311 Grand Avenue, Bellingham, Washington.
Present: Absent:
Sharon Roy Barbara Brenner
Laurie Caskey- Schreiber Sam Crawford
Seth Fleetwood
Dan McShane
1. DISCUSSION WITH SENIOR DEPUTY PROSECUTOR DAN GIBSON
REGARDING PENDING OR POTENTIAL LITIGATION (AB2002 -018)
Dan Gibson, Senior Civil Deputy Prosecutor, stated he would review material
that is public in nature. Western water law is a mystery even to those with
experience. He would provide information on how it works. Western water law is
the body of law that applies to water usage in the western United States. It is
governed by the doctrine of prior appropriation, which is "first in time, first in
right." It is not the nearness to water that determines a right to use, but
chronological order. In 1917, the State began to govern surface water rights. In
1945, the State turned its attention to groundwater and adopted a similar scheme
for appropriation and use of groundwater.
A feature of the law is that one must use the right or lose it. One must put
water to a beneficial use. If one doesn't use it or a portion of it for five years, then
that person loses the right. There are exceptions to this for municipalities.
Overlaying this scheme are tribal claims to water. The State administers
rights because, in the grant of statehood, the federal government passed that on to
the State. As it pertains to federal lands, the federal government held back a
portion of the water that was not available to the State to administer. Those are
called federal reserve water rights. The federal government reserved water rights
and did not pass them on for administration by the State for the amount of water
necessary for tribal use, which is the amount of water necessary to fulfill the
purpose for which the reservation was carved out and established. That is called a
federal reserve water right. The federal reserve water right dates back to 1855 in
the case of local tribes, the date in which local tribes entered into the Point Elliot
treaty. However, tribes also make a claim to a "time immemorial right." The
tribes' argument was that they did not give up any claim to water, and their right is
Committee of the Whole - morning meeting, 2/26/2002, Page 1
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
a prior right that the federal government never obtained from the tribe, and the
tribe never gave up. The two things are federal reserve water right, which is
western water law, and the tribal claim to water dating back to time immemorial.
The current situation can be described in different ways. They live on the
west side of Cascades, which means that population in rural counties has been
relatively sparse in relation to the abundance of water. West of the cascades, they
haven't worried about it as much as those east of the Cascades, where they were
forced to engage in these issues 100 years ago. Many people here have been
putting water to use. The local economy is heavily dependent upon the water use
of those people. Those people are using the water to which they have a vested
claim and no clear right. That describes a significant portion of water use
throughout the county because no one has been enforcing water rights, because it
wasn't a problem. They have recently seen increased competition for water and
more scrutiny on this issue.
The State Department of Ecology (DOE) considers the Nooksack Basin
closed, which means there is no water left. It's all been appropriated. In the late
1980s and 1990's, farmers and agriculturalists applied for rights. Their applications
have been sitting at DOE because no water is left and because DOE is too busy to
process the applications anyway. This situation applies to both surface water and
groundwater.
Groundwater is in hydraulic continuity with surface water bodies, which DOE
says makes groundwater not available. A related concept is of instream flows.
Instream flows that were set in the mid- 1980's are secondary in time and right to
those people who held rights prior to that time, except for the tribal claim.
Whatcom County received notice from a DOE attorney saying there is an on-
reservation adjudication, and the County may want to protect its interest. They are
now at that point.
McShane stated he heard Mr. Gibson say that instream flows were set in the
1980's, and prior water rights granted by the State of Washington would still be
recognized and are part of that setting, but the tribe may question some of those
rights. Gibson stated the tribe will stake a claim to the water dating back to at
least 1855, if not to time immemorial, which would precede any claims that arose
after 1855.
Caskey- Schreiber asked if Whatcom County could just recognize the tribe's
rights and negotiate with them. Gibson stated the DOE is the agency charged with
the responsibility of governing water usage here. The DOE has stepped back in the
2514 process. In the 2514 process, the DOE has instructed locals to work out their
problems, and said they would implement a good solution. There is no direct
negotiation with water. It will have to eventually go through DOE in some fashion,
because DOE will have to implement rules that would enable citizens of the state to
use their water.
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Roy asked for a synopsis of how the salmon legislation is intertwined here.
Gibson stated there is a federal requirement to not engage in a take. States must
avoid a take. Some amount of water is necessary for fish survival. States must
plan salmon recovery in connection with watershed planning to maintain a sufficient
amount of water for productive fishery.
Roy asked if there is agreement on what that amount is. Gibson stated there
is not.
Fleetwood questioned whether it interferes with people who have water
rights first when some entity has a higher water right, whether it's the federal
government, state, or tribe, that requires more instream flow. He questioned how
they allocate the lesser amounts. Gibson stated there is theoretically an absolute
decrease. They start at the bottom of the list until there is enough water to satisfy
those who came first.
Nelson asked if Mr. Gibson looked at court cases regarding state rights
compared to federal reserve water rights, and similarities to this situation. He can't
image that they are exploring new ground here. Gibson stated there was a
Montana case dating back to 1908. The most recent case in 2001 discusses what
the tribes are entitled to of the federal reserve water rights.
Nelson asked if the "time immemorial" argument has been brought up
before. Gibson stated those cases have been focused on federal reserve water
rights.
Nelson asked if the federal government in those cases clearly identified their
use and tribal use. Gibson stated they included tribal use. The precise amount is
the method of quantification, which has been done.
Nelson asked if an agreement will always require a court ruling. Gibson
stated it will almost always require a formal recognition through, at best, a friendly
adjudication. Most of these cases are still in process.
McShane stated the Committee of the Whole would now discuss the County's
role with the adjudication and other areas within the water resource inventory area
(WRIA) from a legal position. Gibson stated that is correct. He would discuss
Whatcom County's role in relation to the adjudication, and the relationship of the
adjudication to the broader basin -wide issues. That requires discussion in executive
session because it is a discussion of legal risks that have the significant potential of
adversely affecting the county.
McShane moved to go into executive session for approximately 15 minutes to
finish discussion of this item.
Motion carried unanimously.
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
ADJOURN
The meeting adjourned at 11:00 a.m.
Jill Nixon, Minutes Transcription
These minutes were approved by Council on March 26 , 2002.
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
L. Ward Nelson, Council Chair
Committee of the Whole - morning meeting, 2/26/2002, Page 4