Nooksack water rights adjudication is on track for April filing - Salish Current
February 14, 2024
Nooksack water rights adjudication is on track for April filing
Clifford Heberden

Adjudication of water rights in the Nooksack Basin is on its way, and the Department of Ecology  notes water users who use their own water directly from a pump or a well will need to participate to validate their water use. A public comment period on draft claim forms runs through March 2. The North Fork broadens and then narrows to flow under the bridge on Highway 9 north of Van Zandt and conjoin with the South Fork. (Salish Current)

February 14, 2024
Nooksack water rights adjudication is on track for April filing
Clifford Heberden

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After three years of preparatory work, the Department of Ecology is poised to file for water rights adjudication of the Nooksack Basin in April.

“It’s a busy process but we’re definitely on track,” said Ecology adjudication manager Robin McPherson.

With anywhere between 5,000 and 25,000 claims projected to be filed, legislative representatives and court officials have begun procedures to acquire judicial and financial complements to lay the groundwork for this historic case, expected to take 20 years.

“We have been talking about how to ensure that adjudication goes smoothly. I think adjudication is the right thing to do,” said Sen. Sharon Shewmake (D-Bellingham). “It opens up opportunities that aren’t available right now, and certainly it just allows us to plan better.”

Requests for an additional Superior Court judge and a water commissioner with Senate Bills 5827 and 5828 signal adequate staffing has become a priority to avoid overburdening the county’s judicial system.

“The big sticking point is that adjudication as it is isn’t an easy process, and there are a lot of folks that are really worried and concerned,” Shewmake said. “The smoother we can make it go, the better; that’s why we want to make sure we have enough judicial resources.”

Officials are hoping to make adjudication of WRIA 1 — Water Resource Inventory Area 1, Ecology’s designation for the Nooksack Watershed — an example for water rights law in Washington.

“We have to hopefully get it right so that that precedent is set for future efficient water adjudications, where people can feel confident that they’re being heard and their case is processed in a timely manner,” said Shannon Hinchcliffe, principal legal analyst for water adjudication with the Administrative Office of the Courts (AOC).

Learning from experience

Whatcom County Superior Court is composed of four judges, three constitutional commissioners and a statutory commissioner for family law and other cases.

In 2020, the AOC released a judicial needs estimate projecting Whatcom County needed the equivalent of 8.46 judges’ time for adjudication. With an additional judge and the delegation of some of their duties to a commissioner or referee, that need could be met.

salmon in the Nooksack River
The Nooksack Basin ecosystem is vital habitat for chinook salmon, an important species for humans and animals in the Salish Sea region and beyond. (Roger Tabor, USFWS-Pacific Region, via Flickr)

“We don’t know what enough will be — all we can do is anticipate based on the study of Acquavella [adjudication of rights in the Yakima River Basin], our current caseloads and also other states and how they processed adjudication,” Hinchcliffe said.

Noting the heavy backlog impact of COVID-19 on the courts, officials want to avoid another backlog that would impede the efficiency of case processing in Whatcom County. In 2022, 6,168 cases were filed in the county.

“People talk a lot about Acquavella … which took a great deal of time,” McPherson said. “A lot of that time was because of inadequate staffing and people at the court who really worked for years with very limited staffing reviewing water rights.”

The Acquavella adjudication began in 1977 and a final decree was issued in 2019; a decision on appeals filed by several parties was issued in 2021.

Shewmake said the bill to include an additional judge in Whatcom’s Superior Court has bipartisan support coming out of the Senate Committee on Law and Justice.

Funding for the water commissioner position has already been appropriated in the 2023–25 biennial budget. The commissioner’s role will be to “issue decisions on factual and legal issues; enter default judgments, settlement agreements, and conditional final orders.” Those decisions would be implemented by a judge thereafter.

“I don’t anticipate that we would ask for another judge in the future,” Hinchcliffe said. “Part of the complement of the judicial staffing is to really try to delegate the caseload and the work appropriately throughout those roles.” 

Property owner? what to know

State law encourages the court to create special rules of procedure, including simplified procedures for claimants of small uses of water, and to consider entering appropriate pretrial orders.

The spirit of the law, enacted in 2009, is “not only efficiency but also trying to make things more accessible,” Hinchcliffe said. “The court is trying to figure out what that means and what that process will look like. It will be dependent on how they are staffed.” 

McPherson said all water users, whether they are permit exempt, or whether they have a certificate, a permit or an old court claim, will need to participate in the adjudication to validate their water use.

“All water users in WRIA 1 that directly use their own water from a pump or a well are going to need to file a court claim in the adjudication in order to verify that they have a legal right to use water in the future,” McPherson said.

McPherson reaffirmed that adjudication doesn’t change their legal right but validates their rights so that the court can understand and inventory rights in the area.

People who rely on public water services are exempt from engaging in this process.

Ecology recently published two draft claim forms for public comment, one intended to create a simplified claim procedure for small water users — people with single-home properties and wells for domestic water uses.

To qualify for this form, properties must be withdrawing under 500 gallons of groundwater for daily domestic use, from an existing well, and limit outdoor watering to half an acre.

“The court is looking at how to streamline those processes for people who are likely to be unrepresented, maybe need some assistance in accessing the court and understanding these things,” Hinchcliffe said.

The public comment period for claim forms ends on March 2. Water users can engage and submit comments here.

Cows at Steensma Dairy and Creamery near Lynden needed even more water than usual during the June 2021 heat dome event; the animals were cooled by misting systems during the extreme temperatures. (Katherine Steensma)

Summons will be mailed by Ecology once the case is filed in April. Claimants will be able to submit forms online or through mail. Hinchcliffe said water users will have the ability to be guided by Ecology as well as Whatcom County’s Public Works Department.

“We are going to send certified mail to everyone that we’ve identified that will be affected by this,” McPherson said. “The certified mailing will come out probably in May or June.”

People will have a year to file from the time of receiving the form. 

“If they receive the form sometime in 2024 it’ll be due a year later in 2025,” McPherson said. “They’re welcome to fill out the form in advance. I know a lot of people want to get it done right away to take care of that and that’s great.”

Ecology is looking to inform the public in as many ways as it can through mailings, traditional media, online and social media advertisements. The department is also working with the county on outreach.

“The key here is that we would love to connect with people who have homes on wells who want informational sessions or additional information, especially in rural areas,” McPherson said.

Long road ahead

Officials intend to ensure that the WRIA 1 adjudication — the first of the century in Washington — serves as a model of efficiency for future water rights cases in the region.

“To us, the best outcome is public trust and confidence, fairness and timely responses,” Hinchcliffe said. “For the citizens of Whatcom County, I would like them to know that everybody is trying to serve their interests even when it doesn’t necessarily feel like it.”

While adjudication may feel overwhelming or even personally threatening, she said, “what I would want to relate is that everybody is working towards the best outcome.” 

Looking back to Acquavella, Shewmake noted the rising values of agriculture in the Yakima River Basin.

“In the long run, it’s a good thing,” Shewmake said. “It should be an instructive story.”

Whatcom County has witnessed and suffered from droughts and floods more acutely in past years, affecting residents, the agrarian community and the natural environment.

“I think adjudication is the long-term answer that’s flexible to changes in markets, flexible to changes in human needs, ecosystem needs,” Shewmake said. “I want Whatcom to be an example of how you can do it and do it well.”

— Reported by Clifford Heberden

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