Legal adjudication process could take decades; some farmers worry about impact on water access
The Lummi Nation and Nooksack Tribe have partnered to advocate for water rights resolution in the Nooksack River basin.
In a joint March 25 press release, the Nooksack Tribe and Lummi Nation announced the Salmon Need Water campaign, created to educate the community about the importance of water rights for their efforts to preserve indigenous salmon species.
As part of the campaign, they are asking the state to fund a legal process that would end decades of uncertainty over water rights in the Nooksack basin.
“Water is a key element. Adjudicating water rights allows us to live here sustainably,” Katherine Romero, general manager of the Nooksack Tribe, said in the press release.
The process of adjudication brings water users and landowners in a watershed into a court process after the Department of Ecology serves a lawsuit to all concerned parties. After defendants submit their water rights information and those claims are reviewed and submitted, the court will issue a decree determining legal rights to use water in that area.
“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,” Romero said.
According to the Department of Ecology, water banking is a tool used to facilitate the voluntary exchange of water rights, transferring one water right to one new water use when the existing right cannot be directly changed to a new one.
“People have been trying to sort through competing claims of water in the Nooksack basin for decades, and it hasn’t worked,” the press release stated. “An adjudication brings certainty and solutions to make sure we have water for salmon, for people and for local farms.”
The campaign announcement comes as the Washington State Legislature reviews this biennium’s funding for the Department of Ecology.
“It could take 10 to 20 years before the case is finally resolved,” Robin McPherson, adjudication assessment manager for the Department of Ecology, said in an email. “The time depends on many factors.”
McPherson said that quantifying water rights in the area could benefit the region’s agriculture and environmental health.
“Whatcom County has a long and scattered history of water rights issues and disputes,” McPherson said. “This process will put everyone on the same page and ensure there is water for farms, fish and people.”
The process of adjudication would create a legal structure for the organization and distribution of water usage in the river basin. McPherson said it is a big project that will take time and effort from all parties to determine seniority of rights from senior to junior standing.
“This will take a number of years. We anticipate that the first two years will be preparation, with filing a lawsuit in 2023,” McPherson said.
Ecology v. James Acquavella, which decided water rights in the Yakima basin in 1989, took 40 years to complete. The final decree was announced on May 9, 2019, granting and prioritizing the water rights of an estimated 2,300 people and organizations that claimed the right to access and use water in the region.
“Adjudication would include water users who take water by streams and rivers from pumps, as well as those who withdraw water from aquifers with wells,” McPherson said, not people who access water from a provider like a city’s water utility. “Groundwater and surface water are connected and need to be regulated together to ensure fairness and avoid impairment.”
Gerald Baron, executive director of Save Family Farming, a non-profit that advocates for Washington farmers, said in an email that the hierarchy of water rights could hurt the future of farming in the county.
“The mere threat of it is causing banks to be uncertain about the future of farms and is likely already affecting investment decisions needed to keep farms going long term,” Baron said.
According to Baron, adjudication would be “without much doubt the end of farming.”
About 1,300 farms in Whatcom County exist in the Nooksack Basin. Over 100,000 acres of agricultural land generated a market value of over $300 million in 2014, according to statistics compiled by the WSU Whatcom County Extension.
“Farming today depends on an integrated infrastructure of suppliers, experts, equipment dealers, bankers, etc. Once a critical mass is lost, the farming area is no longer viable,” Baron said. “It has happened throughout Puget Sound with Whatcom and Skagit counties being among the very few remaining.”
Without irrigation and the certainty of access to water when it is most needed, Baron said farms with junior water rights would not be able to survive periods of drought, which could increase with climate change.
Gavin Willis, outreach and development director for Whatcom Family Farmers, said in an email that farmers recognize water rights seniority belongs to indigenous communities that have occupied the Nooksack basin for more than 12,000 years. However, Willis said a hierarchy of water rights in the basin could be a problem for farmers who rely on the aquifer for irrigation.
“During low-flow seasons (late summer, when irrigation water is needed) water would be shut off for users at the bottom of the seniority list anytime that total flows are less than total combined water rights,” Willis said.
Shutting water off to the most junior users, Willis said, would disproportionately affect first-generation and minority farmers who have more recently acquired land in Whatcom County.
“Rather than a lawsuit that could cost our state a combined $1 billion and stretch out for many decades, farmers would prefer to see increased attention towards collaborative, comprehensive planning designed to increase instream flows in priority areas, improve habitat, address flooding issues and maintain rural and agricultural lands,” Willis said.
Treva Coe, habitat program manager for the Nooksack Tribe Natural and Cultural Resources Department, said in an email that improved riparian and floodplain protections would be critical for increasing ecosystem resilience to climate change in the area.
“Our floodplains are important areas for agriculture, and we also see increasing development, both of which increase the pressure to halt or slow channel migration or protect from flooding,” Coe said. “Restricting future development in the floodplain is the best way to keep people out of harm’s way, especially as the magnitude and frequency increases with climate change.”
Coe said adjudication would not address these concerns directly, as the intended outcome of adjudication is an inventory of legal water rights.
“However, adjudication often motivates settlement – which could include habitat restoration and improved protection – and invites large investment in solutions,” Coe said.
While conditions in the Nooksack River basin are not as degraded as other, more urbanized basins in the Salish Sea, Coe said that doesn’t mean it is healthy.
“Some aspects of habitat are in fairly good condition, while others are heavily degraded, especially in areas with more intensive land use,” Coe said. “The state of our salmon populations – many at critically low levels or stocks of concern – reflect in large part the loss and degradation of their habitat.”
Cliff Heberden is a journalism student and reporter for the Front. His work focuses on local news and coverage of ongoing issues and legislation. You can reach him at firstname.lastname@example.org.