The Nooksack River flows from its Mount Baker headwaters 75 miles past the forests, towns and countryside of Whatcom County before entering Bellingham Bay. It provides drinking water, irrigation for farms and spawning habitat for endangered salmon.
Since 1985 when the Washington State Department of Ecology issued an instream flow rule for the Nooksack Basin because of seasonal water shortages, the contentious issues of how much water is available in the watershed, when it is available and who has rights to that water have remained unresolved among tribes, farmers, developers and municipalities.
After the watershed planning group failed to adopt any of several draft plans, and were unable to meet the legislative deadline of February 2019, Ecology took over planning and in October 2020 announced its intent to resolve the issue through the legal action of adjudication. State money to move that process forward is proposed in the budget under consideration by the Legislature.
Ecology documents contend that the adjudication process will “lead to full and fair water management by confirming legal rights to use water.” Adjudication was recently used in Yakima, where after 42 years 4,000 claims to water rights were legally resolved.
In Whatcom County, Ecology says, adjudication will permanently determine who among the estimated 5,400 claimants have the right to use the water of the Nooksack Basin, how much they may use and when, and will help with “significant difficulties regulating water use in the Nooksack watershed, where there is unresolved and widespread noncompliance with water law.”
Some farmers and agriculture organizations are concerned that adjudication could mean that many groups and individuals lose rights to the water that they’re currently using. The Whatcom Agricultural Water Board (AWB) said in a December 2020 letter to the Lummi Nation and Nooksack Tribe that, “while a water rights adjudication would ultimately quantify water rights, it would not restore natural resources and we believe would only delay the actions necessary to restore salmon and maintain agriculture in the Nooksack Basin.”
Instead of adjudication, the AWB proposes that the county and state fund a neutral party to facilitate water rights discussions that start water conservation and reclamation projects immediately and work towards restoring salmon populations to 1985 levels.
The AWB estimates that it would take about 25 years for adjudication to be completed. Ecology estimates 10-20 years for final resolution of all rights.
Henry Bierlink, AWB administrator, says land prices are rising in the Nooksack Basin due to residential pressures, and farmers are being forced to grow higher-value crops, which often require irrigation and water supplements. “Adjudication will take away significant water rights and shut the door on those that have been trying to legalize their water uses for decades,” said Bierlink. (See also Bierlink’s commentary “Community Voices / Nooksack River water rights adjudication is an existential threat to farming,” Salish Current, Nov. 13, 2020)
Tribes want adjudication
The Lummi Nation and the Nooksack Tribe have the oldest and first rights to water in the Nooksack Basin watershed.
The Lummi Indian Business Council and Nooksack Tribal Council responded to the AWB’s letter in late February stating that they will support only adjudication, saying that only through a complete inventory and court determination will water levels in the Nooksack river and tributaries be protected.
The Lummi also expressed frustration with government initiatives to recover salmon populations, especially as “more than once, we have watched as others walked away from voluntary negotiations when the conversation became difficult.”
The letter said that without the context of adjudication, the tribes have no confidence that voluntary negotiations will prove fruitful.
The tribes say that they will remain committed to collaborative work, but do not believe that any of the suggestions laid out in the AWB letter are viable alternatives to adjudication. They are, however, willing to work towards these goals during adjudication, as they “disagree that an adjudication will take over 25 years to complete, as legislative, administrative, and technological improvements have streamlined the process considerably.”
Money to move ahead
Jed Holmes, Whatcom County Community Outreach Facilitator, said the county is budgeting $500,000 over two years to begin discussions with parties of interest outside of the adjudication process. The county had asked for $400,000 over two years from the state legislature to support these discussions, and the governor’s budget requests $250,000 over two years, totaling $750,000 to support discussions while Ecology begins adjudication.
“The dollar amount is not the most important piece of that budget line item. What’s significant is the fact that the Department of Ecology included this in its budget ask, indicating that it sees value in having and funding discussions in parallel with adjudication,” said Holmes.
While the state budget has not yet been finalized, these amounts aren’t expected to change significantly, and “the county believes that the budget proposed by the governor is satisfactory,” Holmes said.
Budget for the adjudication is estimated to cost around $1 million over the first two years, plus the additional $750,000 for side discussions and consultations with the county, also over two years. The $1 million budget, if approved by the legislature, will fund Ecology’s first two years of work on adjudication, before court proceedings begin.
“The decision on whether to proceed with adjudication will be made very soon at the state level, with the legislature’s decision on whether to fund the process. While those decisions are outside our purview, there’s not much doubt which way the wind is blowing,” said Holmes.
Whatcom County natural resources program director Gary Stoyka said the county has funded two contractor positions to conduct outreach to the stakeholders and lobby ensure that funding for the parallel discussions make it through the legislature.
Local government viewpoints
While Seth Fleetwood, mayor of Bellingham, initially opposed adjudication in a May 2020 letter to Ecology, he has since changed his position to supporting it, stating “throughout the last few months, it has become clear that adjudication is not only highly probable, but more importantly, that the initiation of that process may lead to information necessary to resolve issues of water rights and the instream flow rule that are so critical to us all.”
Fleetwood concurred with Whatcom County Executive Satpal Sidhu’s position and plans for the adjudication process to also be an opportunity for discussions with other stakeholder groups, and that in the two or three intervening years before the adjudication court process begins, community discussions can take place.
“Adjudication itself can serve as the leverage to bring people together,” Fleetwood said.
If and when the adjudication process begins, a multitude of issues will need to be resolved.
For example, the AWB contends that “holders of water right permits, certificates, claims, or exempt uses would be responsible for hiring legal counsel to represent them in this court case.”
To the contrary, Ecology states that they “intend to provide a process where most users can submit their claims without attorneys,” and that “permit-exempt users [like new homeowners] will be provided a simplified process.”
According to Ecology, for groups who haven’t established prior water rights, many of whom are farmers, “Adjudication is the best chance these farms have to identify available water and secure water for their future.”
(See also Eric Hirst’s commentary “Community Voices / Whose water is it in Whatcom County?” Salish Current, Oct. 9, 2020.