Water Rights, Adjudication, and Whatcom County Agriculture

by Craig MacConnell

Our maritime region accumulates the most biomass (accumulated living and dead lifeforms) per square foot as any place on Earth. This is due to several factors centered around temperature, precipitation and daylength coupled with productive soils and aquatic resources.

Indigenous people have lived here from time immemorial. Their existence relied on abundant natural resources of and from water, prairies, and forests. 

European explorers arrived by ship on the northwest coast in the 1700s, starting with the Spaniards in 1775. The area was then claimed in turn by Russia, England, and, finally, the United States. The first Federal land claims started in the 1850s by Henry Roeder and Edward Eldridge around Whatcom Creek’s entrance to the bay. The land beyond the shoreline was an impassible mix of large and downed timber. From this beginning, the driving forces were resource extraction. Timber, coal, and fish.

Throughout the 1850s, Washington Territory Governor Isaac Stevens signed numerous treaties with many Native American tribes throughout the Northwest. Hereafter known as the “Stevens Treaties,” these treaties, while being different from tribe to tribe, all contained language stating that “at all usual grounds and stations further secured to said Indians in common with all citizens of the Territory …” This phrasing would have a huge impact on the way these treaties would be interpreted and understood.

The Fraser River Gold Rush of 1858 and logging opened the low flatlands created by the historical Fraser River. John Tennant and his Lummi wife Clara filed the first official land claim on the Nooksack River in 1859. Soon other settlers were running livestock and poultry, first for themselves, followed with supplying Bellingham and elsewhere.

The Pacific American Fisheries (PAC) organized in 1899 in Fairhaven. The largest canning operation in the world, PAC employed more than “1,000 Chinese and 4,500 white persons” and canned most of the Puget Sound catch. PAC did their own shipbuilding to supply enough vessels. PAC shipped canned product around the world.

Land Clearing Program
After World War I, the federal government started a large land clearing program, providing dynamite to rural residents to blow up the stumps that covered the old previously forested land. This allowed plowing and leveling which brought about full-scale agriculture. In 1917, Washington State University [then called State College of Washington, Washington State College] established an Extension office in Whatcom County as a result of the Smith Lever Act of 1917. Earliest Whatcom records showed only one farmer marketing or purchasing association operating in 1917, the Washington Cooperative Egg and Poultry Association, based here in Whatcom County. The establishment of these farmer marketing associations, such as the later Whatcom County Fruit and Vegetable Growers and others organized the farmers and facilitated the development of an agricultural industry in Whatcom County.

The law of water rights in Washington is complex. The law is based on “common law” (law based on custom and tradition and court decisions) as well as on state statutes enacted by the Legislature. Washington has an extensive body of case law on water rights dating back to the early 1900s and detailed administrative regulations adopted by the Department of Ecology.

Fresh water resources in Whatcom County include snowpack in the Cascades feeding, with rainfall, a river network, dominated by the Nooksack River, with some minor coastal drainages as well as a large multinational aquifer, the Abbotsford-Sumas Aquifer, which generally underlies the flat plain between the towns of Sumas, Blaine, Ferndale, and Everson and the Nooksack River, occupying about 150 square miles. This aquifer’s water level varies seasonally, but is in most cases, very close to the surface. Water movement in the aquifer is towards the Nooksack River and is variable from slow to very slow compared to a stream. There is an interconnectedness between ground and surface water that varies considerably seasonally and spatially. 

Washington State “Owns” the Water
Washington state “owns” all of the water and gives rights to users for its beneficial use which includes domestic, irrigation, industrial, and others, including nonconsumptive uses such as fish and wildlife, recreation, and aesthetics. Each water right, except for municipalities and nonconsumptive uses, needs to be used or it is lost. The right will specify place, purpose and quantity that can be used.

Most of the water rights for agricultural use are in eastern Washington, where there are large irrigation district water right holders, often supplied by large federal irrigation dams and distribution systems. There are no similar infrastructures or water suppling irrigation districts in western Washington for agriculture.

The well-known “Boldt Decision [1974]” verified that the local indigenous tribes had treaty rights to half of the fish (salmon) and demanded allocations based on science and that science showed a significant impact on potential salmon populations in the region by water users. Logic followed that you need not only the fish but the entire support system as well: water, habitat, passage, and environmental factors such as temperature and oxygen levels suitable for spawning and development.

Whatcom County agriculture representatives estimate that as many as 60 percent of Whatcom County irrigators do not have any or adequate water rights. This is probably due to the fact that each farmer would have to have known about and followed precisely the complex web of water right procurement individually when they first put water to use — there was no professional irrigation district to do that for them here on the westside of the mountains. Ignorance and confusion were common, and many failed at what was once thought normal — just using what appeared as abundant water. Floods and field drainage were more of an apparent issue than irrigation water. Many irrigators, separated from nearby surface water streams dug a shallow “irrigation trench” where groundwater became surface water which was quickly filled by the aquifer and pumped for use.

Agriculture in Whatcom County
Many people fail to understand the size and importance of agriculture here in Whatcom County. In 1910, Whatcom County had 179,834 acres in farms (13 percent of all land). In 1925, 145,747 acres. In 1974, 132,921 acres producing products worth $54,790,000, farm gate value.

The 2017 Census of Agriculture shows Whatcom County’s market value of products sold was $372,850,000. Of the 39 counties in this agricultural state, Whatcom agricultural value is ranked 6th in the state, larger than any other western Washington county (even Skagit). Nationally, out of 3,077 farming counties, Whatcom is 165th.

Whatcom County land area is 1,348,480 acres of which 102,523 acres are in farms. Whatcom County has a policy goal of retaining at least 100,000 acres of agricultural land (7.4 percent). The USDA identifies about 100 different soil types in the county ranging from organic peat to sandy loam soils. The well-drained soils tend to be close to the Nooksack River as the larger soil particles (sand) drop first as the river floods. These are very well suited for red raspberries. Whatcom County produces most of the nation’s processed red raspberries. The organic peat and heavier soils are well suited to blueberries, Whatcom’s fastest growing and largest economic crop. All these high value crops require irrigation to be economically viable.

Lack of Legal Water
A daunting question is: if agriculture in Whatcom County were to lose, let’s say half, of its productive capacity due to lack of legal water, what will be the expected outcome? How much market loss will the agriculture support industries tolerate before their businesses are no longer viable? If the tractor dealers, bovine veterinarians, feed suppliers leave, then what happens to that beautiful productive agricultural land? Organic farmers? Data shows that their contribution, while growing, is still a drop in the bucket and they still need water, too.

Here is what will happen to the land — houses, more and more spread out, expensive for public services, houses. No one wins in this situation, except maybe those selling lawn mowers.

I am grateful for the review by the editors Dorie Belisle and Henry Bierlink.  


In 1980, Craig MacConnell, WSU Emeritus Plant Scientist and Director Whatcom County Extension from 1980-2010, was hired by WSU and Whatcom County as Horticulture faculty to conduct research and education efforts that were significant to the local crops. He also was responsible for several train- the-trainer volunteer programs: Master Gardener, M. Composter, Watershed Master, and Carbon Masters. He formed a team to educate the agricultural industry regarding water rights and formed the Whatcom County Agriculture Preservation Committee. Later efforts were in renewable energy and anaerobic digestion of dairy waste.

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