EP: 0031 - Whatcom County Water Adjudication with Crissy Impero

Water rights is a major concern in Whatcom County with Washington State moving forward with water adjudication for the Nooksack basin and surrounding areas. All owners & prospective buyers of vacant land or residential homes on a well or shared well, should be aware of what is upcoming. 

For more questions you can reach crissyimpero@johnlscott.com

Transcript

Hello and welcome to the Bellingham Real Estate Podcast. I'm Paul Balzotti and here with Crissy Impero. Welcome Crissy, This is your return visitor to the podcast?

Yeah, I'm an old veteran here.

Yes. Thank you for coming back. And today we are talking about water adjudication, which is a very, very, very fascinating topic and a big deal. And and we'll kind of get right into it. So you are I would say, the the expert on the topic of everybody in the office. You're on a well. So you're also you're you're right in it.

Yeah

You're living it and so let's. So water adjudication. It's only happened right in Yakima County in Washington. We're going to be the second county in Washington State.

County in Washington, the one in Yakima took about 40 years for the adjudication process to finalize.

Yeah, yeah, yeah. And so Whatcom County, where we're the second county in Washington state, that's going to be going through this process and this is basically has to do with the Nooksack basin. And anybody who's essentially on a well, why don't we start out by just wanted to share with everybody what water adjudication means. And and and we'll also if you're listening on the YouTube link, we're going to have we'll have some screenshots showing the map of what's effect and everything, but maybe to share with everybody about what adjudication, what's going on.

It's basically the Nooksack water drainage system and parts of Whatcom County are included. Even some parts of Skagit County are included. The kind of upper portion that involves some of that drainage and they're just wanting to get some accountability of how much water is being used in the county off of wells. And they want to know how much you're use is, when you're start date was, what you're using it for, how much gallons you're going through.

So the quantity of use, so the the reason behind the adjudication, a little bit of the back story in history is the stream flows affect salmon runs and salmon runs affect the treaty of Port Eliot, which allowed hunting and fishing rights to native tribes. And so the native tribes asked the superior courts to adjudicate, to find where the water usage.

And adjudicate means essentially a letter is going to go out to everybody who's on a Well, yep. Or a shared well and community wells are also going to involve.

And even the county municipalities are involved city municipalities. But individuals won't be adjudicated, the municipalities will be the ones that are adjudicated. So that’ll go through with them. So basically, yeah, they're going to go through and figure out the quantity and all that stuff of everybody in Whatcom County and parts of Skagit County to figure out what water usage are being used for and how much.

And, you know, historic. So and the two big key phrases are first in time first and right so the earlier you had your well and right established the better you are because if there is a water fluctuation in the future and they they want to start cutting some water usage say we're in a major drought or something, the people with the longest held water rights will get the most their water rights will be held first and the other ones will have to diminish their water usage if that ever comes to being.

But the then there's a first in time first and right. And then there's the use it or lose it. And if you don't use your water rights, like if you've had an abandoned farm or something like that, you could lose some of your water rights. And that's been in effect. I don't think they've really enforced it, but that has been a prior appropriation issue from the beginning of water rights.

So nonuse can equal relinquishment, but I think they're going to enforce it a little bit more now than they have in the past.

So so everyone's going to get a letter. And so it was going to be in it was going to be in the fall. Now give me the spring.

be like September and now the word is, is it should be coming out around April of 2024.

And so when the letter comes out, it's basically going to say you need to essentially put your hand up and explain what your water situation is, how many. And then and then essentially you the water rights that have been out so far, the whatever that is for most people, it'll stay the same.

Yeah, most people it wont affect.

and and but essentially the adjudication process is essentially them establishing the county and the state, establishing water rights for everybody. Yeah. And cataloging that with everybody.

Absolutely.

But then there is going to be essentially you don't they're not doing that unless there's there's going to be some sort of a granting of a you know, there's going to be like a limit on certain permits that wasn't there before.

well likley.

Right, right, right, right, right. And and and it's not just and why is it not just the Nooksack river basin itself? Why is it going out further? Because we mentioned it's on Lummi Island. It goes out. Do you know why that.

I don't know the exact reason for that. It's watershed into the bay, which, you know, I don't know the exact reason why some places that aren't truly.

Part of getting their water from Nooksack drainage. Yeah.

You know, we're just saying that point Roberts is even in this one. Yeah. Yeah. So? So they'll probably be getting adjudicated as well if they if they have well stuff and you know back with hurts when they had a well moratorium, they were trying to figure out if well water was actually affecting river flow. And then that kind of got set aside.

And now we have the adjudication process. And so you kind of wonder how much is tied together on that. So if that was abandoned a little and I don't know, there could be a settlement that comes through whatever that would be, maybe a reservoir system or something like that.

When you see a settlement, what do you mean by a settlement?

They can settle? Other other states have settled and it's it's basically said, you know, okay, we're going to agree to this and to get out of doing this full adjudication process, it can take decades. It could take a long time to resolve.

But who who's against who here?

Who's against who?

You said who's settling?

settling with will basically the tribes from the treaties right back from 1855, that that treaty basically guaranteed the hunting and fishing rights. And that's why this is kind of coming to fruition now, is because the water levels and the salmon flow and stuff are affected. Right. So there there may be some sort of settlement in the future, like there maybe they all said, okay, we'll do this if we don't have to go through the full adjudication process.

And I don't know what other states did, but they have settled in other states in an adjudication process. Okay. Yeah.

Well so if you're a homeowner. So I think that and this is kind of probably the most important thing is if you own a home, somebody is listening to this, watching this. They own a home that is on on a well or they owned even vacant land, but they own a property that's on a well. What steps should they be taking now?

Like what to get ahead of this. Yeah or even if you're looking to buy a home with a well, right. What are you advising your buyers.

I’d do some research first, like every time I do a listing presentation or something, I go in first, get their tax I.D., look up everything on the home, then go to the health department, see what the health department has on well, or septic. Then I go to the Department of Ecology and take that tax I.D. and run that and see what they have on the Department of Ecology.

I've found several water rights claims to surface water rights that people didn't even know they had because it were done like almost 100 years ago.

Explain what surface rights means.

Yeah, surface rights are like a creek or a freshwater spring or something that comes up on your property and you're able to you've gotten a permit and a certification and claim to use that water like, say there's a year round stream going past your property. A lot of people in the historically have used that to irrigate their fields, whether they do it now or not, if they haven't done it in five years, pretty much going to have to relinquish their right.

And that's one of the things that the Department of Ecology has all these old water claims there that haven't been used. And so that's one of the things I think they're hoping to accomplish, is to relinquish some of these water rights that people have on their land.

So so basically. So you'd go on, you'd look at you go to the Department of Ecology, you go to the county, you pull up the water rights that are there.

Have that information. And when you get that letter, you should be able to figure out what your water rights are there for a basic home. If I was a big dairy or raspberry farm, I'd hire a water rights attorney. Yeah, because on a lot of the irrigation is by acre foot. And so in in the county. And so if say if you've got 50 acres that you have corn on or berries on or something and maybe you had a sprinkler system in the past and you had 12 acre feet and now you've got a drip line system or something that's more efficient, not as much of it evaporates and now you're only using four acre feet. You're using less. And that's one of the issues with farmers are like, so we're almost getting punished by using less because now our property value is going to be lower because we don't have as much water right? If we claim the lower, the less amount.

So that that that's what I want to get into next. So you if you're on if you're on a a regular residential home unit half acre. You have especially if it's newer home, older home, whatever and you have a regular private well kind of thing as it's going to be pretty clean cut now. But let's say we get to now we have five and then we have the dairy farms.

So we have this is going to be really simple. And then we have the dairy farms that's going to be not simple and that's going to be something where even if even if it could be, we, you know, they're going to want to have an attorney to deal with that. What about everybody in between? So let's say you have let's say you have ten acres and IT zone and classified for agriculture.

And I think this is where you're going with that is you're not using the water regularly right now. Like you're not you're not using it for agriculture, but you think you have the rights to use as much water as you want.

Right.

And explain a little bit more about what could happen when they go to apply and they say, well, right now I'm just I just have a field out here and maybe I have a horse or something, but I'm not using my land other than just for a regular water use. Right. How what's going to happen with these different classifications from what you understand?

Yeah. So from what I understand is that most homes will get at least 500 gallons for household use. Okay. And so that and we don't really meter wells right now, but that could be part of a settlement or something down the road. But anyhow, 500 gallons is most homes will have at least 5000 gallons of use for irrigating, say, a garden or lawn or something.

And then if you have livestock, you generally get more of an unlimited use. So if you have cattle or something like that, if you just have irrigation and and domestic for say five years but you don't have livestock, you might not ever get that livestock back again. That use for that, you know, especially if you're metered in the future, you might not have the full amount that you were used to say ten years prior if you had livestock on it.

And so what could you do to get ahead of that is just basically use more. You could use.

Your water and you know, like a lot of people are like I'm get livestock and stuff. And I was like, yeah, you could. But, you know, if you do it before the adjudication paperwork comes, but it's just kind of it's hard because I don't want people to lie or fabricate anything. I don't think anybody should do that because they have ways of satellite imagery that they could do drive bys, they can request a visit, all that stuff to verify your claims.

So I think the basic five, ten, twenty acres, if you know, just claim what your use is based off of what you have on your paperwork that you found, what your well is put in for domestic and irrigation or domestic livestock, whatever. And then you can say, but we've historically been using it for, you know, cattle or horses or goats or whatever.

Yeah. You know, and stuff and claim your use for it. And then from there if you overuse that can send up a big red flag too. If you're saying that you use more than what say like if you say I've got 50 cows and I only have five acres or something like that, you know, you don't want to throw up red flags for extra investigation.

That's a huge exaggeration.

Sure. Sure. You know, that's of course.

They do. Have I mentioned this before in a in a Facebook post that, you know, try to go by a farm plan. You don't have to be on a farm plan, but go by the Whatcom County Farm plan of how many animals you can have per acre. And that generally won't shoot up a red flag on people.

So what about what about you own vacant land or you you're looking you're looking at like if somebody listen to this, they are looking at buying vacant land right now. It says, you know, it's you're assuming that you're going to put in a private well. I'm guessing that, you know, in the future, you know, based on as the adjudication process starts, starts really processing that they will, you know, in certain areas, you know, that that water rights are low and things like that, it will potentially, you know, cause restraint to maybe some properties, maybe not having even the rights to a private well?

Or do you think that or have you heard anything like that? Because my concern would be and I think most buyers would be like, do I want to buy vacant land right now that doesn't have a well and be concerned that they might say, hey, this area here all the water rights are claim there's no water available. And then you have a piece of land that you can't drill a well on.

I mean, is that I mean and then they might say that.

Is a potential.

Cause and they might say, hey, go get a rainwater catchment system, whatever. But you're not going to I mean, is that, is that something that your concerned.

That's a big concern, yeah. Yeah. And even even say a five acre piece with a well on it that hasn't been used for five years, that's almost the same category really. Because if it hasn't been used at all, it technically should be relinquished. Right. So, so a lot of people went and plugged wells in, especially after the hurts with the well moratorium that we had a few years back.

They put wells in, never actually activated them or used them for anything. And so that makes them basically a non use for if it's been five years, it could be interesting and you might not be able to use that land for your intended purpose. And I think another thing with that, you know, being said the for the intended purpose, right?

So you would just have to make sure that you are going to be able to do what you intend on that property. Bill Clark who did one of the lectures I went to, he is a water rights attorney. He said be very careful of the five acre piece of land with a will on it that hasn't been used, and I'm taking that as it might not be usable.

Yeah. In the future. So that. Yeah.

Or build your house now. Yeah.

Build your house now at least apply for the permits and all that. Yes. And get it get it going. I've told a few people it's like put a fence around it and get some animals on it or something and just use it. If you've had a well there and you do run animals there but you have a different well and maybe you're sectioning off for like a farm plan where you're, you know, putting them in this field and then moving them to that field, which is smart.

Right. And you want a well here and a well there so you don't have to like pump it to the, to another stock tank or something. Yeah. You could put animals a fence on, put animals on and they don't have to be there year round. Honestly, I hate to say this. They have you have to show use every five years.

Yeah. So just get some, get some use out of that. And that's what I meant earlier is like whatever you. Yeah whatever. Nothing, nothing to bloviate or lie but whatever whatever intent you have for the future. Yeah. Start implementing,

implementing it. And you know, here we just got about a six month grace period. Yeah. You know.

Just start working on whatever we want.

To work on. Yeah, yeah, yeah. And yeah, what people want to do with that. But here's another thing you won't be first in line because it's first in time first and right you will be at the bottom of the barrel. If they do ever start squashing water usage, you know, if they start saying, hey, we don't, you know, think that we're in a we're in a drought right now, We want people to start cutting back and stuff.

When I have livestock. Well, the nice thing about livestock is they can't cut you back on livestock, it'll kill them, you know, cut your way back on.

Just like if you have a house and you live in the house already, like they.

They got to get 500 gallons.

You got to give.

You pretty much your standard.

So they got to give they got to get the water to the animals. They kind of give to the water to the people that live in the house the other than that, everything's kind of up for grabs a little bit.

It could be. Yeah. It could be like how how the city will say, hey, every other day you can water and stuff like that. They can start saying, Hey, we're going to start cutting people back. And but it's again, it's going to be that first in time, first and right as well. So the people who have say say a surface water right on the same stream, one person has 1845 and another person has 1822 or something like that.

Right. The 1822 is going to have the senior right to that water if they're irrigating fields or something like that with the water. So yeah, that's, that's what that and then they use it or lose it and that's that prior appropriation for that.

And if you, if you've already done everything you're going to do like you've, you've, you've worked out okay, I'm using the water to the best ability that I can honestly use it or I've applied for my permit or I've done whatever I've done, or I’m already using my property the way I want to use it.

It looks like you can also go register on their website and we can put a link out to that to get to get in line to just get that process going. It probably and I think and that's what something I would absolutely say to a to homeowner is, you know, get in line and get your process going as soon as it's available.

Be proactive about it. Yeah, because I I'm very confident and I'm sure you you know, we're both saying the same thing that also three or four years down the line. And when we're in the middle of this process and it's been going for a few years because it'll take years, the properties that have already that have already gone through the process, their value is higher than than than somebody who hasn't who's been kind of trying to, like, put their head in the sand.

yeah. And, and and so this isn't something where you want to wait.

No. And you you definitely want to file. Yes.

That's what I'm saying. As soon as possible.

File, you might be just held down to domestic only. Right. No irrigation or anything. So yeah, it's like you know, we don't like it, but it's something you got to do. And I know a lot of people just are, like you said, putting their head in the sand and hope and wishing it would go away. And it's just not going to go away and not to our knowledge.

And a lot of these properties don't have like even a water. They don't have anything on file. Even so it's like they.

Yeah, yeah. We've got exempt wells that people dug a long time ago and they, they use domestic and irrigation and livestock and stuff. Those are included. Those are okay. They're not, they're not said all those don't count or anything. No. As long as you can show the historic use on them. Maybe some old pictures of, you know, cows drinking from something or the house being built and showing that, you know, it was from this Well, and the stuff that's it's actually pretty common.

They think this is going to be affecting about 1500 excuse me, 15,000 residents and county properties and stuff. So.

Yeah, yeah, I think they said up to is close to 20%, but maybe up to 20% of the populace. But that would make sense. 15,000. Yeah. At least 15,000 households.

Households.

Yeah. And about 20% of the population in Whatcom and surrounding area. So. So be on top of it. Yeah. Did you have something else you want to finish.

One thing that's kind of interesting so say if you're on a shared well and this came up in one of the talks with one of the water rights attorneys and they said we're on a shared well. And we have you know, each has the 500 gallons per day used for domestic. What about the irrigation rights and stuff? And it goes back to the use it or lose it.

So if one person has a garden and irrigate and has flower beds and all that stuff and nobody else does and they've been doing that, they could be the one person who has the right out of say four the community or shared well. Yeah. So if they keep record if the other people haven't used the other people don't claim any irrigation but one person does that parcel could be the parcel that gets that irrigation right in the future.

So this is one of those things that's the use it or lose it. And so to like I said, for a shared well it could all shuffle to one property.

So that's a really good that's a really good thing to to close out on is if you're on a shared well you should be getting together with the other owners of the shared well and discussing the game plan together. Yeah. So you're all in the same page. Yeah. Because that is absolutely a great point that on a shared well you could get people going rogue and applying on their own and potentially getting more water rights than the other person.

And so be proactive, be proactive, be proactive. If you're buying a property on a well, if you're buying a property on agricultural land, buying any vacant land in Whatcom County, see Chrissy or see somebody who knows what they're talking about, do your research.

And I think one important thing, nowhere in any of the documentation does it help you out with this when you're buying or selling. It does say on the well, the well addendum that basically water rights are not you know, we are not guaranteeing any water rights transfers on there. It's a new, new addition to the well addendum and that's it.

So I think we should put as an addendum, say on an optional clause or the well addendum, put something in like buyers want to see within X amount of days the adjudication paperwork from the seller so that they know what the usage is, so that they know what they're buying. As far as, I can't have my hobby farm, They never had livestock, they never did this, they never claimed irrigation.

They've never, you know, done anything. It's just domestic only. And we wanted it for other things, even though it's on acreage or something. So you want to see what they're claiming. I also think before that time and even during that time, testimonials from the prior owners of what they've used for so that they could use that say if you buy something right now and the adjudication process hasn't started, you're going to want something saying with the historic use of that property has been so you can file that with your adjudication paperwork.

I think that's very important.

So a lot of due diligence, a lot of due diligence. So that is all really helpful. And we will again have links on YouTube and on the podcast with different sites to go to to to look up what's there for each property. But ultimately it's going to take more than just looking up what's online. It's going to take a lot of proactive work.

And so see

a lot of due diligence to be done and and again, see Crissy if you if you need more. Thank you for watching or listening, you guys. Cheers.