The essays, analyses and opinions presented as Community Voices express the perspectives of their authors on topics of interest and importance to the community, and are not intended to reflect perspectives on behalf of the Salish Current.
I am a retired litigation attorney, a member of the WRIA 1 (Water Resource Inventory Area 1, the Nooksack River watershed) Environmental Caucus and chair of Sierra Club’s Mount Baker Group. Recent letters to editors, and from local officials, demonstrate misunderstanding of “water rights adjudication” and spread misinformation, hopefully inadvertently.
Adjudication is a court proceeding to settle the validity, quantity and priority date of water rights in a watershed. Water rights require a state permit. Adjudicating the Nooksack River watershed is necessary because at least half the watershed’s agricultural users likely cannot prove water rights (per a November 2019 Whatcom Ag Water Board position paper). Unpermitted water is not only illegal, it denies water to those with legal rights (especially tribes, whose federally granted water rights outrank all others).
The state’s failure for decades to properly permit and track water use, and to identify illegal users, leaves only adjudication to resolve ownership of water rights. Adjudication works because courts have enforcement power. It brings together all legitimate water rights claimants — those with legally acquired and retained water rights that can demonstrate their rights.
But adjudication just establishes who owns water rights. It typically doesn’t address issues like decreased summer flow, winter flooding, floodplain use/condition, salmon population declines and water conservation. Determining how to fix these problems will be easier once adjudication concludes, because then those who need to acquire water rights can pursue various state permitting options to do so.
But deciding water use issues in a “collaborative process” pre-adjudication, like the “solutions table” Whatcom County proposed, cannot work without agreement as to who holds what water rights. A collaborative process not only requires voluntary agreement to the process, but also voluntary agreement to be bound by that agreement. Yet no one in a “collaborative process” would agree to lessen the water use they have enjoyed for years.
This has been proven over the last 20 years, where total failure is the result of voluntary collaboration efforts among tribes, agriculture, municipalities and others in the Nooksack watershed. Who can blame tribes for refusing to participate in the solutions table? They know that without adjudication first, water use issues will not be resolved.
Past adjudications have been expensive and time-consuming, for various reasons, including an overly bureaucratic hearing process, antiquated mapping techniques/information systems, as well as fear of losing water access and associated business losses. But our legislature addressed some of these issues in 2009 amendments to the governing statute, and we now have state-of-the-art technology to map and prepare for the Nooksack adjudication.
Once adjudication settles Nooksack water rights, market forces will lead to adjudicated rights being sold, leased and traded, with tools like water banks and exchanges, trust water rights and direct sales/transfers. Businesses will continue, but now knowing who has rights to water. Despite fear-mongering and fake news, the reality is that adjudication will empower the Nooksack community by legally establishing who may use what amount of water. Market forces to reallocate known rights will then begin.
— Contributed by Rick Eggerth
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