The Washington Department of Ecology filed a water adjudication rights lawsuit on May 1. The lawsuit concerns Water Resource Inventory Area 1, which includes the Nooksack River basin and several adjoining smaller watersheds, such as the coastal drainages of the Dakota and California Creeks and Lake Whatcom. Thousands of people in Whatcom County will be affected.
A water right is state permission to withdraw public water from the ground or a surface water source. Since the state owns the water, farmers, cities and homeowners on private wells all need a water right to use it, said Henry Bierlink, an executive director of the Washington Red Raspberry Commission.
According to the state’s Department of Ecology, water users will receive a summons by mail in the coming months with instructions for filing their claims. Those who do not file their claims with the court risk losing their ability to use public water legally.
Those filing provide the following information: when water was first used on their property, the source of the water, where the physical point of diversion/withdrawal is located, where the water is used and what the water is used for.
“People who rely entirely on public water do not have to file a claim. However, thousands of homeowners, farmers and other commercial water users who are not connected to public water will need to file a claim,” said Joseph Brogan, an attorney who specializes in water rights at the Foster Garvey law firm in Seattle.
According to Scarlet Tang, a communications manager for the Northwest Region of the Washington Department of Ecology, the form will not be due until late 2025 at the earliest. She also said that water users will have a year to complete the claim form after it is served, and no action is required before then.
Water withdrawals often adversely affect streamflow levels by depleting water that would otherwise be present in streams and rivers where listed fish species reside, Brogan said, adding that this makes obtaining water rights approval difficult.
“The Department of Ecology, tribes and local leaders have worked on water issues for over 30 years. While previous efforts laid some groundwork and collected useful data, they did not lead to comprehensive solutions,” Tang said in an email.
According to Tang, Washington legislature directed the Department of Ecology to assess areas of the state for adjudication in 2019, where they determined that Water Resource Inventory Area 1 has the highest priority in terms of unquantified claims and water management challenges.
Adjudication filed by the state’s Department of Ecology will produce a legally binding inventory of water rights, from oldest to newest, according to Tang.
“We’ll know how and who has the right to use water, how much they can legally use and what the order of priority is for those rights,” she said.
This treatment is necessary to solve the water shortage issue, Tang explained. The peak demand for water in this area is during the summer, when streamflows are at their lowest. Water shortages are expected to become more common as the population grows and as impacts from climate change increase, she noted.
“It’s very challenging to manage current and future uses due to unresolved issues about water rights seniority and the amount of water that is already legally allocated,” Tang said.
According to Brogan, those water users who cannot prove they have used all the water shown on their claim or water rights certificate — mostly agricultural users in this region — will be disadvantaged.
“I would say a majority of the farmers do not have everything they need in terms of water rights,” Bierlink said.
When irrigation systems became the norm around the 1950s and 1960s, not all farms went through the water rights application process, according to Bierlink.
“In 1990, the state promised us they would work with us if we submitted applications to legalize our water use,” he said.
As a result, over 300 water rights applications were submitted to the state from Whatcom farmers after 1990, Bierlink noted.
“Only a handful have been processed, so a lot of farm fields are in limbo,” he added.
Rather than relinquishing the water unused by drip irrigation, farmers applied to transfer the extra water to unpermitted fields in close proximity, Bierlink said.
“The state helped us with that process,” he said. Crucial to a water right is the assertion that the specific amount of water permitted will be used for a specific, pre-approved purpose and place.
However, after 2020, when the state began to float the idea of an adjudication, it changed its approach to the farmers abruptly, Bierlink explained.
“This is a broken promise, as the adjudication will make nearly all the applications denied,” he said. The adjudication will make it impossible to spread the saved, excess water to the unpermitted fields, according to Bierlink.
“The law reads that if you don't use it, you're gonna lose it,” he said. This has been the law since 1967.
It indicates that less water will be available for farmers in Whatcom County. Only the water used for permitted fields will be counted as the amount of water farmers actually need and use. The saved, excess water used for unpermitted fields will be regarded as unused and will be taken away by the Department of Ecology, Bierlink said.
Bierlink anticipates that Washington’s berry industry will struggle as berry farmers go out of business. As a result of the adjudication, 25% to 40% of berry fields will not receive water they need.
Whatcom County is the world's largest producer of red raspberries, producing more than 65% of the U.S. red raspberries for the frozen market, according to the Whatcom Family Farmers website.
Whatcom's red raspberry industry has already struggled with diminishing market competitiveness due to the increasing import of cheaper raspberries and low yield due to the heat wave that swept across the Pacific Northwest in 2021. This water rights lawsuit serves as another threat to the industry.
The lawsuit is good news for tribes and the regional salmon that hold cultural significance for them. Water law in Washington State is based on “first in time, first in right,” according to Tang. Brogan said tribal rights are typically the most senior, meaning they have higher priority.
According to Brogan, some river systems are over-appropriated, and tribes often do not get the amount of water they feel they are entitled to.
Streamflow is a key aspect of salmon habitat. Salmon need sufficient water in rivers and streams to spawn, rear and migrate, Tang added.
“In theory, salmon will benefit by the tighter regulation of water withdrawals that are the product of an adjudication,” Brogan said.
While Tang indicates that this adjudication will open up a solution to the demand for water by providing clarity for the water market, Bierlink thinks it is hardly a helpful scenario.
The Washington Department of Ecology has not stated when the adjudication process will be complete. They expect it to take at least 10 years, Tang said.
Ikumi Mashiko (she/her) is a city news reporter this quarter at The Front. She is a junior exchange student from Japan. She enjoys swimming in open water, skiing and cooking. You can reach out to her at ikumi.thefront@gmail.com.
