Community Voices / Nooksack water rights adjudication is an existential threat to farming’s future

The Nooksack River runs through farmland, towns and forests, providing water for many uses along the way. With multiple interests involved, some are calling for water rights adjudication, while others — including a Community Voice commentator — see a better result in resolving the issue outside of the courts. (Photo by Kevin martinez13CC BY-SA 4.0, via Wikimedia Commons)

By Henry Bierlink

— My friend Eric Hirst expressed his opinion that a water rights adjudication would be a step forward for our community as it would “resolve” our long-standing squabbles over water rights and set us on a path for improved fish habitat and clear water allocation. His case is far from compelling to those who are most affected by state water law policies.

Local farmers view adjudication as an existential threat to their future. We are in a long-term battle to maintain farming as part of the Whatcom economy and culture. We watch development overwhelming productive agricultural valleys all along the west coast. The Puyallup and Kent valleys were once the heart of west-side agriculture with highly productive soils and thriving farms. They rapidly disappeared beneath condos and warehouses. 

We’ve learned from these examples and have established protections for our farmland and market-based tools to keep productive land in farming. It is only logical that we would also be battling to ensure farms have the needed infrastructure to be viable. Water supply, drainage and flood management are necessary elements of a rationale farmland protection strategy. 

We have made progress towards a countywide strategy to value our farms. That work is threatened by a pending water rights adjudication. 

A state water rights adjudication is a strictly legal process by which the Department of Ecology brings a lawsuit against all Nooksack Basin water right holders, 5,000+ of them. Each landowner, city, water district, etc. must respond to the suit with evidence to support their consistent water use and the amount they have used. Failure to respond or lack of evidence of consistent and full use of the water right results in a complete or partial loss of that right. The end result is a clear list of who has the right to water from the most senior to the most junior and how much water each right is allowed. 

That seems nice and tidy and useful for Ecology’s future water right management of the basin. But it does little to resolve our community’s natural resource management goals and perversely affects our farmland protection strategy. Farms are legally vulnerable under water law as decades of water right mismanagement have resulted in clear disconnect between water rights and irrigation practices. Adjudication will result in significant loss of legal water for farms. 

Farmers already struggle with the high cost of local farmland inflated by development pressures and the proximity to the large population north of the border. It forces movement to high-value crops with irrigation needs. A loss of legal access to water portends clear movement to the only economic alternative to landowners — rural sprawl. 

It is ironic that adjudication will intensify the conversion of ag land to rural residential with reliance on private wells for water. Recent legislation based on the “Hirst Decision” provides clear preference in law for private wells over irrigation and municipal water rights. Eric’s argument for adjudication results in the rural sprawl disaster he rightly seeks to avoid!

Farmers agree with Eric about restricting rural sprawl, intensifying local water settlement negotiations and creating sound and lasting natural resource management policies that enhance our fisheries, farms and communities. Whatcom County Executive Satpal Sidhu has outlined a path towards these ends. Let’s commit to that path rather than seeking a “silver bullet” solution like adjudication. We are highly motivated to help local settlement discussions succeed as the gun is aimed at us. 

Henry Bierlink is a Lynden native. He operated a Lynden dairy farm for several years, earned an M.A. in political science from Western Washington University and has over 30 years of engagement in agriculture and public policy. He currently serves as the administrator of the Ag Water Board, a facilitating entity for six Watershed Improvement Districts (Irrigation Districts) located in Whatcom County. He also serves as executive director of the Washington Red Raspberry Commission and the Washington Seed Potato Commission. 

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