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This may surprise you: Water, even in wet Whatcom County, is a scarce resource. Although we get lots of rain and snow in the winter, summer flows in the three forks and mainstem of the Nooksack River and in its many tributaries are often too low to support healthy salmon populations.
Salmon are doing poorly, with several types on the endangered species list; largely because of that, the Southern Resident orca are also doing poorly. One of the many factors affecting salmon health is low summer streamflows throughout the Nooksack basin. Low flows lead to higher water temperatures, less dissolved oxygen and reduced access to habitat, all of which are bad for salmon.
The situation will almost surely get worse because of climate change: drier and hotter summers lead to more water use for irrigation; and less snow, earlier snowmelt, and less summer rain mean lower streamflows.
Two key factors complicate the search for solutions to these problems, which involve new water supply, storage and efficiency projects:
- Uncertainty about Tribal treaty rights: The Lummi Nation and Nooksack Indian Tribe hold water rights, based on the 1855 Treaty of Point Elliott. These rights include out-of-stream uses on the reservations plus instream flows to support healthy salmon and other wildlife. Although these rights are the most senior in Whatcom County, they are not yet quantified.
- Uncertainty under state law about who has what rights to how much water, when and where: The key problem here is farming: about half of the water used for irrigation either lacks a legal water right or is legally ambiguous. This leads to what the Washington State Department of Ecology calls “widespread noncompliance with water law.”
On Oct. 2, Ecology proposed to the state legislature to conduct an adjudication of water rights in the Nooksack basin of Whatcom County. Adjudication is a legal process, overseen by a Superior Court judge, that decides who has the right to use water. Upon completion, all water users have certainty over the amount of water they are allowed to use, where it comes from, the uses of that water and the seniority date for that water right.
Seniority is important because junior water rights are reduced or cut off during periods of drought, while senior water rights (especially tribal rights) may continue.
Many in Whatcom County favor adjudication as the only way to resolve long-standing conflicts over water rights. These parties include the two tribes, fishers, environmentalists and land developers. Other parties, especially farmers, generally oppose adjudication. They favor the continuation of settlement discussions that they believe will result in enforceable agreements to resolve local water issues.
I believe we need both adjudication and settlement discussions. I agree with the farmers that adjudication does not directly address salmon health: minimum instream flows, water quality (including temperature and oxygen, both of which are affected by flows), habitat improvements, land-use changes and floodplain restoration. But adjudication would, once and for all, clarify water rights, which the Ag Water Board of Whatcom County and others correctly see as a mess.
More than two decades of local history — studies, projects, reports and meeting after meeting — show that negotiations alone will not solve our water-resource issues. The threat of adjudication should encourage all water users concerned about the validity of their water rights to negotiate in earnest and reach enforceable agreements on projects that improve salmon health and ensure sufficient water for all uses and users. Working to resolve long-outstanding issues ahead of a Superior Court decision would then obviate the need for the lengthy and expensive legal process that concerns the farmers and others.
We are long past the time when more meetings and more studies are appropriate. The only way I see to get real action is through the threat/opportunity provided by adjudication. Ecology should begin adjudication in the Nooksack basin, which would motivate intense activity to resolve issues, which would then obviate the need for the time and expense of adjudication.
— Contributed by Eric Hirst
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