On January 3, 2017, I filed a notice of appeal in the Bassett v. Ecology case on behalf of plaintiffs Magdalena and Denman Bassett, Judy Stirton, and Olympic Resource Protection Council. This sends their challenge of the Dungeness River Instream Flow Rule to the Washington Supreme Court. The next step is filing a Statement of Grounds for Direct Review by the Supreme Court, bypassing the Court of Appeals. The Supreme Court typically accepts direct review in water rights and instream flow cases of statewide significance.
The Bassett case raises several fundamental legal issues for the first time, including:
- Whether Ecology must balance the public interest (“maximum net benefits”) between instream and out-of-stream water needs before adopting minimum flows that exceed natural flow levels in the basin, and closing groundwater basin-wide to further consumptive uses;
- Whether Ecology is required to make 4-part test findings under RCW 90.03.290 as it does for other water rights when creating minimum flow water rights by rule; and
- Whether exempt-well water uses have “relation-back” priority dates like other water rights, which must be considered when adopting regulations that would deny legal water availability to rural properties.
These are statewide issues of considerable importance to individuals and communities who are being denied building permits based on lack of water availability as a consequence of instream flow regulations that failed to account for future water needs. See my article on the Whatcom County v. Hirst decision for more background on these issues.
Individuals and organizations who support the plaintiffs’ cause to make water available for rural areas and to reform instream flow protection law in Washington State should contact Tom Pors at (206) 357-8570 or the president of Olympic Resource Protection Council, Greg McCarry, at 360-509-0633.