Sometimes there is too much water flowing in and around the Nooksack River—as there was after the river flooded last November—and sometimes there is not enough. Solving those twin problems will take collaboration, above all, says one commentator. (Salish Current file photo)
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.
A recent Community Voices essay (“Understanding water rights adjudication,” Salish Current, Oct. 5, 2022) suggests that adjudication is the way to solve the Nooksack’s water problems and any suggestion otherwise was “fake news.” The facts show otherwise.
Adjudication cannot solve the twin problems of too little water at one time and too much at another. The editorial recognized that. But after a multidecade lawsuit with water rights holders, the idea that those with rights to apply for permits doesn’t hold water. What rights and permits? After decades of litigation, few will have water rights as our basins are mostly closed to any new water rights already due to overallocation, and new permits for water rights haven’t been issued in years.
Advocates for adjudication want to shut off what they claim is “illegal” use of water by up to half the farmers. But most farmer use of water is legal. Antiquated water law in Washington can create challenges for farmers trying to update their water based on what their farm produces, but the implication that much of farm water use is illegal is a gross misstatement. The state told farmers applying for permits to use the water while they worked through the issue. Following state directions is not illegal.
Some say collaboration can only work after water rights have been decided by the courts. Not true. There are multiple examples of how collaborative settlements occurred both during and before litigation of water rights. A former Department of Interior attorney assigned to deal with Indian water rights says negotiations can address who has the right to water and how much—in addition to solving the other pressing problems. Further, a negotiated agreement can be given certainty through Congress and the courts. This is why this leading expert says tribes and the federal government have made negotiations the preferred method of resolving water disputes since 1990.
The idea that once adjudication is concluded those with rights will be able to trade for them has no basis in fact or legal history. No such transfers of water rights connected to the critical use of instream flows for salmon have occurred following adjudication, but they can and do occur as part of negotiations.
Even those advocating for adjudication recognize that Nooksack adjudication will be an exceptionally long and difficult process. Ecology has admitted there are huge additional complications to adjudication in Whatcom including groundwater, the international boundary, shared watersheds, and the inclusion of residential wells. One Ecology official said it could be 80 years to resolve—40 years more than Yakima!
Thanks to Congress, right now large sums of money are potentially available to help with exactly the fixes the river needs for our twin problems of too little and too much water. Adjudication wihout collaboration not only makes securing these funds far more difficult, the time and high cost will prevent working on problems that can be solved now.
No one can honestly claim adjudication will be short and inexpensive, or that it is the only way to quantify rights, and that market forces will kick in to reallocate water once adjudication is complete. None of this is true. National experts have confirmed: Adjudication is a lengthy, very expensive process that will hinder or stop the opportunities available now to resolve water rights. Much more than that, only collaboration can solve the twin problems of fish kills from too little water, and terrible damage and loss of life due to flooding.
— Contributed by Fred Likkel
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