All water in Washington belongs to the public, but not all rights to use the water are equal. Efforts by the Department of Ecology to quantify water rights in the Nooksack Watershed have sparked controversy in rural Whatcom County.
In the department’s first public meeting on Jan. 27, the DOE announced that it will require rural homeowners in Whatcom County to present documentation proving historic water use to the Washington Superior Court in a process called adjudication.
This will impact property owners who do not use city-owned and operated water sources and distribution systems.
The bank of the Nooksack River’s North Fork in Maple Falls, Wash. on Feb. 8, 2022. Extremes in river levels prompt calls for water management solutions. // Photo by Myles Weber
In adjudication, a judge will render a legally binding verdict determining the rights of the parties after reviewing evidence. The amount of water allocated to each user will be determined by the volume continuously used per year since water use on the property began.
Quantifying rights based on past use will prove a challenge for many homeowners who use private, permit-exempt wells and have not been required to keep records of water use.
A question submitted during the meeting asked whether the absence of documentation meant a user had no legal water rights, and the DOE appeared to have no solution. “Well, that’s something we’ll be thinking about as we go forward,” DOE’s Adjudications Coordinator Robin McPherson said.
The DOE is in the pre-adjudication phase and plans to file the lawsuit in 2023.
Why is the state preparing for adjudication now? The Lummi Nation and Nooksack Tribe petitioned the state legislature to perform an adjudication after voluntary water management solutions failed to impact salmon recovery.The tribal nations rely on harvesting salmon in the watershed, and low water levels threaten local populations.
“This is a good step and the only legal path we have in Washington to make sure there’s enough water in the Nooksack River for salmon, farming and people,” said Chairman Ross Cline Sr. of the Nooksack Tribe in a public statement.
The confusion concerning who has water rights was the reason for adjudication, but contradictions in how water law is applied complicate things.
Permit-exempt wells that draw less than 5,000 gallons per day have been allowed to operate as if they are not part of the legal system of water rights, according to Jean O. Melious in the Seattle Journal of Environmental Law. Historically, access to groundwater has been treated as a perk of property ownership to encourage settlement in the region.
“We have this law that’s based on principles from the 1800s when water was plentiful and there really wasn’t any concern for the environmental value of water,” said Alan Reichman, Senior Counsel for the Attorney General’s Office who represents DOE’s Water Resource Program.
The Washington state Water Code was established in 1917, which allowed rights for water use based on the rule “first in time, first in right.” This gives people with senior water rights priority. If there is not enough water for all users, those with junior rights must cease water use to ensure supply for senior rights holders.
Barren blueberry bushes at Williams Blueberry Farms in Deming Wash. on Feb. 8, 2022. The prospect of adjudication leaves the future of these farms uncertain. // Photo by Myles Weber
People were using water before 1917, so who has the most senior rights, and how much water do they have a right to use? That is what DOE intends to establish in the adjudication process.
The Lummi Nation and the Nooksack Tribe are expected to have some of the most senior water rights. Their residence on reservation lands is documented in the 1855 Treaty of Point Elliott, which ceded the majority of tribal lands to the United States government but secured tribal fishing rights.
Proof of occupation is necessary to establish the chronology of water rights, but the quantity of those rights is more challenging to prove. Speaking on his experience litigating the Yakima River Basin adjudication, Reichman indicated there are grounds for hope.
“Those who had used water came up with the evidence,” Reichman said. “Whether it was eyewitness accounts, their own accounts of things with regard to irrigation [or] aerial photography.”
Water rights are typically attached to a property and impact the land’s value. This makes adjudication particularly concerning for farmers, who rely on loans to stay in operation during the off-season.
“Those kinds of loans are based on the collateral that farms have, which is their land,” said Dillon Honcoop, the communications director for Whatcom Family Farmers. “Farms are cash poor generally and land-rich.”
Certified water rights can make land five to ten times more valuable, and lack of water certainty could impair the financing needed to keep farms afloat. Younger farms with junior water rights are at risk of losing access to water altogether during the dry summer months.
In 1985, the DOE established a water right for the Nooksack River called the instream flow rule to protect habitat for fish and wildlife. The rule established requirements for the volume of water flowing in the river, varying throughout the year.
Under Washington’s water code, if those instream flow levels are not met, junior water rights holders must cease water use. Adjudication will quantify and verify the legality of water uses in the Nooksack Watershed, which will allow the DOE to enforce water regulations.
“Our problem here locally is not a lack of water or a water supply problem, it’s a water management problem,” Honcoop said.
Calls for better water management are joined by the mayors of towns in Whatcom County devastated by the recent historic flood. The DOE rejected proposals from the mayors, whose plans, which include dredging and damming the river, would further harm salmon habitat.
A less-practiced method of water storage may present a fitting compromise. Off-channel reservoirs store water adjacent to water sources and are considered more beneficial to fish relative to on-channel alternatives, said Ben Lee, a Certified Water Rights Examiner and engineer at Landau Assoc.
“Benefits would be in sediment — more natural movement in [the] channel, fish passage — smaller [and] fewer obstructions, and temperature,” Lee said.
Channeling stored water back into the river during the dry season can mitigate the harm to fish from low waterflow and act as a buffer against flooding.
