By Nolan Baker
A half-million-dollar budget for review and court ruling of water rights along the Nooksack River basin is likely to be approved by Washington state legislature and signed by governor Jay Inslee, officials for the Department of Ecology (DOE) said.
Adjudication, or the legal process of a court reviewing and resolving a dispute, of the Nooksack River is “supported in the governor’s budget,” said Robin McPherson, adjudication assessment manager for DOE.
This process could finally put an end to decades of lawsuits and claims of water rights along Whatcom County’s primary waterway.
“It’s going to be time for the Nooksack community to start thinking about how [adjudication] happens and not whether it’s going to happen,” McPherson said.
What is an adjudication?
The DOE recently released a report to the legislature highlighting the Nooksack River basin as one of the two waterways in the state most in need of adjudication.
The adjudication process involves DOE issuing lawsuits to all parties with claims to water rights along the Nooksack, bringing them into a court process where each defendant submits a claim for water use. DOE then reviews each claim and determines legal rights to use water along the Nooksack.
The DOE website describes adjudication as “the legal process to resolve conflict and competition on a water source.”
The process is supported by local tribes, environmental groups and the commercial fishing industry, but opposed by Whatcom County farmers and their associated organizations.
The DOE’s 2020 report specifically pointed out that declining salmon populations, low water levels due to growing demand and diminishing snowpack, and a long history of disputes from various parties throughout the county have made the Nooksack River rife with conflict and competition.
According to the report, the Nooksack River supplies water for the public utility districts that serve roughly 80 percent of Whatcom County’s residents, provides irrigation for thousands of acres of farmland and stockyards, and is home to a dwindling population of endangered salmon – a population that must be maintained for Lummi and Nooksack treaty agreements and for southern resident orca whales.
With all of these different parties – tribes, farms, public utility districts and commercial fisheries – vying for water rights, the patchwork system of centuries worth of water claims is keeping solutions hard to come by as water levels continue to dwindle due to climate change.
A 2013 study conducted by the federal government and published in “Climate Change and Indigenous Peoples in the United States,” researchers Oliver Grah and Jezra Beaulieu state that “with climate change, increased stream temperatures are predicted that could push temperatures to the lethal level for salmonids.”
The DOE stated that parties along the Nooksack basin agree that protecting salmon habitat is crucial, but “they have not reached a resolution about how to balance needs for fish with needs for farms and communities.”
Who are the parties involved?
In a joint press release circulated March 25, the Lummi Nation and the Nooksack Tribe announced a campaign to educate the Whatcom County community on the need for an adjudication.
“Adjudicating water rights allows us to live here sustainably,” said Katherine Romero, general manager of the Nooksack Tribe. “We have listened to farmers, and they have said they need a water bank, or exchange, to move water rights where they are needed. Adjudication is how that happens.”
The tribes, which together form the Salmon Need Water campaign, are supported in their effort for adjudication by DOE, as well as real estate groups, fishery groups and environmental groups.
“The Nooksack River has sustained Lummi people since the beginning of time,” said Lawrence Solomon, chairman of the Lummi Nation in the press release.
“As Salmon People, we have for generations depended on the resources the Nooksack provides,” Solomon said. “The adjudication process will resolve how much water is being used, how much is available, and the legal right to the water.”
With DOE’s “first in time, first in right” policy, the Lummi Nation and Nooksack Tribe can date their water claim to 1855, the year the Treaty of Point Elliott was signed that guaranteed the tribes hunting and fishing rights. Washington didn’t enter statehood until 1889 and the first water code wasn’t adopted until 1917, so the tribes in Whatcom County own the most senior water rights.
For Whatcom County farmers, an adjudication would mean putting family farms out of business, losing millions of dollars in agriculture value and opening up the floodgates for real estate development.
Gavin Willis, the outreach and development director for Whatcom Family Farmers, an advocacy group for local farmers, said that lawyers have warned of massive price tags for legal defense if adjudication were to commence.
“We’ve been told by attorneys that water rights holders should expect to spend between $10 and $100,000 to defend their water right in court,” Willis said.
Not only will the cost for adjudication defense be too high for many farmers to bear, Willis said many farmers are fearful that junior water rights to the river will put their entire livelihood at risk if water levels get too low and their irrigation is shut off.
“Worst-case scenario […] at some point in the future, if the adjudication were to go forward, stream flows drop below the quantified tribal rights, that means everyone’s water gets shut off,” Willis said. “That would pretty much be the end of farming if that was something that would happen on a regular basis.”
Whatcom County is home to more than 100,000 acres of agricultural land that generated an excess of $300 million in 2014, ranking it the most productive agricultural county in Western Washington, according to a Washington State University study.
But the mounting anxiety over legal fees, the possibility of water shutoffs, and the costs already associated with commercial farming have made many farmers question their future in the county.
“Farming has always been a business that comes with a lot of uncertainty,” Willis said. “Adding another layer of uncertainty to that makes Whatcom County a less attractive place to farm.”
McPherson, the DOE’s adjudication assessment manager, argued that adjudication was the only reasonable way to assure water rights for as many as possible.
“We know that it’s not unanimously supported by farmers and agricultural groups,” she said. “We value farms as part of our environment and economy, but the way to ensure they have legal water for the future is to figure out what has legal water now.”