by Luisa Loi
Despite flowing for thousands of years through this ever gray and rainy corner of Washington, the Nooksack River is a resource that tribes, farmers, cities, irrigation districts and public utilities have learned not to take for granted.
“We all know that water is a finite resource,” said Washington Department of Ecology Director Laura Watson during the Nooksack adjudication webinar held in January. “We have a lot of pressure and need for that resource right now, especially as we continue to see the population growing throughout Western Washington, including Whatcom County.” (1)
For decades, stakeholders in the Nooksack watershed — Water Resource Inventory Area 1 (WRIA 1) — have been involved in disputes and collaborative efforts to determine who has a right to the water, and how much they’re entitled to take. But, the results have been deemed unsatisfactory by some stakeholders.
In an attempt to solve these issues fairly and permanently, the Department of Ecology is preparing to bring all water users to court, starting in late summer 2023.
This giant lawsuit is known as adjudication.
Supporters of adjudication include tribes, fisheries, development and real estate, and environmental groups, with the Lummi Nation and Nooksack Indian Tribe petitioning for this process as they see it as the only way to reconcile tribal and state water rights (2).
In adjudication, defendants will prove the validity of their permits, certificates, or claims made before the adoption of the state water code (3). This process, which Ecology estimates might take 10 to 20 years to complete, will determine how much water the users can take, the purpose of such use, and who gets priority when water is scarce (4). Users will take priority based on the date of first use — the “priority date” — as established by Washington’s rule of prior appropriation more than 100 years ago (2).
Since users who pay a utility bill don’t hold water rights, they won’t be included in the lawsuit, but their providers will. At the same time, the federal government will be involved in the process, primarily on behalf of the two tribes (1).
“Adjudication is a really rare area of law where we can sue the United States in our state superior courts,” said Robin McPherson during the webinar. For example, the federal government may need to defend the water rights of national forests, with the date it became a national forest representing the priority date.
Adjudication, according to Ecology, would also simplify the purchase, sale or trade of water through water banks (5).
To prepare and file for adjudication, Ecology, in 2022, requested $2.738 million in the governor’s budget (6). If passed during this session, the state Legislature would allocate $1,363,000 and $1,375,000 in fiscal years 2024 and 2025 (7). Ecology estimates the funding could become available on July 1, 2023 — when the fiscal year begins (1).
In 2019, the Legislature assigned the Department of Ecology the task of establishing watersheds that had an urgent need for an adjudication process. Among the 62 Water Resource Inventory Areas — the WRIAs — in the state, the study determined two: the Lake Roosevelt area, or WRIA 58, and the Nooksack watershed. During the past two years, Ecology has been identifying WRIA 1 users (1).
Ecology is responsible for managing water use through permits. The agency has to evaluate applications to change the purpose and place of water use, determining how much water can be legally used, and whether the changes will affect other users. Ecology is also in charge of protecting instream flows by establishing closures and minimum flows during dry periods (2).
Although state law says junior water use shouldn’t impair senior use, Ecology can only enforce the law in the context of a new permit application, a conditional permit, changes and transfers and instream flow regulations. Ecology often recommends senior users to file a lawsuit in a superior court. This also means that superior courts have the final jurisdiction over water rights, making Ecology water rights susceptible to change in a superior court adjudication (2).
Tribes Have Earliest Claims
Water rights in WRIA 1 have been issued for more than 100 years, with most of the regulated water dedicated to agriculture. The Lummi Nation and the Nooksack Tribe have the earliest claims to the water, as their priority date goes back to at least the Treaty of Point Elliott in 1855 (5). In 1908, Winters v. United States established that tribes have the right to streamflows that could support harvestable fish populations (2).
These particular tribal water rights cannot be relinquished for nonuse. Normally, a water right that is found unused for five years can be returned to the state (2).
However, because tribal water rights have never been quantified, regulation is seen as a necessary means to determine the amount of water required to keep healthy salmon runs (1).
Ecology believes a clear and fair instream-flow law could resolve uncertainty, while also allowing tribes to regulate and plan their own current and future uses. The instream-flow rule in use, adopted in 1985, closed the majority of WRIA 1 to more withdrawals to protect streamflow, but it might not be sufficient to protect salmon habitat (2).
Every year, five different species of salmon swim the Nooksack River to hatch, spawn and die, including the endangered Chinook salmon — which is vital to southern resident killer whales. With rising water temperatures, salmon populations are doomed to plummet, as heat causes the snowpack to melt too early for the peak streamflows to coincide with spawning season (8).
Higher temperatures resulting from retreating glaciers further add to the stress by reducing dissolved oxygen levels in the water, and have also caused reduction of the average summer streamflow by almost 30 percent since 1963 (8).
At the same time, we experience more extreme precipitation events each year, such as the infamous atmospheric river that hit Western Washington and British Columbia in November 2021, causing at least $1 billion in damages (8).
As Ecology director Laura Watson observed, our area has experienced the “twin issues of too little water when you need it and too much water when you don’t.” (1)
Impacts of Climate Change
“As we see the effects of climate change continue to grow,” Watson said, “we’re going to see these swings become more extreme, and we’re going to see more damage.” According to data she presented during the webinar, climate change models predict a drought to occur almost every year by 2050. And, with warmer temperatures, there will be more rain than snow in the winter — thus more flooding (1).
During the adjudication webinar in January, Kasey Cykler said WRIA 1 has one of the most complicated records of historical water right documents in terms of quantity of documents and some confusing history, which makes regulation and compliance challenging. Cykler is the northwest region water resources section manager for Ecology (1).
For example, there isn’t a process in place to determine the validity of thousands of claim forms that were submitted to certify pre-1917 use — which is exempt from permitting (2). There can also be overlapping water-use rights for the same property, which can cause confusion on what the legal water use for that property is (1).
As a result, Ecology is only able to enforce the law when violations are reported, as the process requires a considerable amount of time and staff (2).
“It’s been really difficult for water resource managers to differentiate valid water rights from those that are duplicative, relinquished, abandoned, or simply aren’t valid,” Cykler said (1).
Permit-exempt wells for small domestic and industrial uses — despite using relatively little water — will increase, creating greater demand for water. Without permits, Ecology can’t keep track of these uses. An adjudication however would, according to the agency, prevent interference with senior water users by accurately recording these uses, and defend well owners’ rights (2).
In the absence of a single process to resolve disputes, many cases are litigated on different facts and laws, which leads to inconsistent resolutions (2).
Support and Possibilities
After identifying all WRIA 1 users and water rights to be adjudicated, Ecology will submit the information to the county superior court. Then the judge issues a summons sent through personal service or certified mail, notifying defendants that they’re being sued and setting a deadline to show up to court. If the senate passes HB 1792 during the 2023 legislative session, which passed 97-0 in the House floor on Feb. 28, the following rules would apply:
• A summons is a court document which sets the date users must appear in court. The latest time to file a new claim is less than one year after that summons is delivered — not when the court date is set.
• The date for these new claims must receive court approval, and the court reports the date change within the proper time period, which is no less than one year after the summons was delivered, unless extensions apply.
• Ecology must distribute a draft version of the adjudication claim to tribes, local governments and special purpose districts, giving at least 60 days to submit public comments on the draft.
• Once the court has refiled a new claim, adjudication cannot occur more than three years after the court refiled the claim (9).
According to McPherson from Ecology, staff will provide online, phone and in-person support for users. While people are welcome to hire an attorney, this process was developed to help defendants without legal representation, and make electronic or paper filing available.
Ecology’s website also features a water rights search page, which people can use to find permits, certificates and claims (10).
Ecology is also proposing a simplified process for permit-exempt wells using up to 500 gallons or less of water per day, which would show the date of first use, and certify that they made continuous use of the water without exceeding the limit. At the end of the process, these users will receive an adjudication certificate for that amount of water (1).
Other permit-exempt users which use between 500 and 5,000 gallons of water daily, such as small farms, will submit claims showing the history, purpose and place of use of the water. Evidence, McPherson said, can be something as simple as the defendant remembers seeing and a signature to that statement (1).
She explained that Ecology needs to collect evidence to verify water use, and is responsible for proving that it is more likely than not that their conclusion is correct. Users will then obtain an adjudication certificate for up to 5,000 gallons per day. Even if the user finds documentation on the water rights search page, they will still need to file a claim to learn how much of the water in that certificate is still valid — unless it’s been verified within the past five years — according to McPherson (1).
In 2021, the state Legislature passed a bill, SB 5092, granting Whatcom County $250,000 — half for fiscal year 2022 and half for fiscal year 2023 — “To support a collaborative process among local water users and water right holders that can complement water rights adjudication in the Nooksack watershed,” also known as a Solutions Table. The same bill also provided Ecology with $1 million — split into $463,000 and $537,000 for 2022 and 2023 respectively — for the preparation and filing of adjudication (11).
Building Trust Amid Concerns
Some parties, like the local farming community, oppose adjudication, preferring local settlement discussions as they would encourage collaborative solutions. Now that adjudication is set to happen, people like Fred Likkel hope it won’t be without collaborative community work that fosters trust and creativity.
Likkel is the executive director of Whatcom Family Farmers, a farmers’ advocacy group based in Lynden.
“Farmers are very much for getting certainty as well,” he said. “If an adjudication provided the certainty that people like to claim, we would have tried before, but it’s not going to. If an adjudication is not combined with some collaborative community work, it makes it a lot more difficult.”
Whatcom Family Farmers fears that, without building trust with all the stakeholders, many farmers will lose water rights that allow them to support and protect farmland from urban development. And if it becomes a protracted court battle, he said he worries that Whatcom County farmers wouldn’t survive that long.
“We are looking forward to seeing in fact everybody will come to the table,” Likkel said.
For the current legislative session, Whatcom County Executive Satpal Sidhu and the Whatcom County Council have requested legislators to fund adjudication and to allocate additional funding to further support the Solutions Table (12), which hasn’t been included in the budget proposal presented in Olympia (7). According to the executive’s community outreach coordinator, Jed Holmes, they are still hopeful that the House and the Senate will allocate funds for this purpose later in the session.
On Oct. 27, 2022, Ecology hosted a solutions showcase with leaders of the Yakima Integrated Water Plan to learn about their experience with adjudication and negotiations. At the end of the meeting, County Executive Satpal Sidhu commented:
“The money will come if we speak with one voice, and if we have credible projects. I think that’s a challenge we have in WRIA 1, to come with one voice and build projects which can benefit and bring maximum benefit to the maximum number of parties involved.”
2. Washington State Department of Ecology. “Water Resources Adjudication Assessment Legislative Report – Watersheds Proposed for Urgent Adjudication and Future Assessment”
Luisa Loi is a freelance reporter based in Bellingham with an interest in covering local environmental issues. You can learn more about Luisa through her LinkedIn (Luisa Loi), or by reaching out to firstname.lastname@example.org.