The complexity of water rights adjudication - Salish Current
May 3, 2024
The complexity of water rights adjudication
James Davenport

The Nooksack River runs some 75 miles from the North Fork’s headwaters on Mount Baker to the Salish Sea, through forests, farmland and towns. (Rose_Braverman, CC BY 3.0, via Wikimedia Commons)

May 3, 2024
The complexity of water rights adjudication
James Davenport

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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.

Commentary: Court has conflicting principles to resolve in determining rights to water

[Ed.: The Washington Department of Ecology filed a basin-wide general adjudication for the Nooksack river system and nearby areas with the Whatcom County Superior Court on May 1. A water rights adjudication determines whether each water use on a source is legal, how much water can be used, and its priority during shortages.]

Water rights in the Nooksack Basin — Water Resource Inventory Area 1 (WRIA 1) — are under adjudication. (Ecology)

The problem Mr. Hirst describes [“Climate change complicates Nooksack adjudication,” April 8, 2024] is a thorny one. A water rights adjudication is basically a complex quiet title action. It is like a boundary dispute, where property owners argue over who owns what. The difference is that the property is owned by the public, the right to use some yet undetermined amount of it has been licensed by the state, the total amount of it is not yet judicially determined, the natural resource itself is diminishing and apparently will diminish further in future, to the risk of not only the competing human interests, but also the species and environment within the natural resource itself. This is a problem a competent court could sort out.

The state Legislature provided some guidance about this, but guidance conflicts internally. On the one hand it uses a 19th century strategy (prior appropriation, “first in time, first in right”) to address competing uses when water supply is short. On the other it uses a 20th century mandate to achieve “total maximum benefit” of water both in and out of stream. The adjudication court will first have to determine how resolve that dichotomy. 

Among its roles in the environment, the Nooksack provides significant salmon habitat; camouflaged by its coloring, a juvenile chinook salmon drifts in a clear stream. (U.S. Fish and Wildlife Service)

One traditional approach is to regard the later enactment as amendatory to the earlier one. The latter is contained in two statutes. The first RCW, 90.20.054, enacted in 1971 and amended several times most recently in 2007, says that many water uses, including “preservation of environmental and aesthetic values,” fish and wildlife enhancement, recreation and public enjoyment of the state’s waters, are all “beneficial” just like economic ones. It says that allocation of waters should be based on “securing maximum net benefits” (“total benefits less costs including opportunities lost”). Specifically this statute ordains that “the quality of the natural environment shall be protected, and where possible enhanced. … Perennial rivers and streams of the state shall be retained with base flows. … Withdrawal of water which would conflict therewith shall be authorized only in those situations where it is clear that overriding considerations of the public interest will be served.”

The second approach, first enacted in 1979 and amended in 1989, reiterates the “maximum net benefit” theme, addressing benefits from both “diversionary uses” and “retention of waters within streams and lakes in sufficient quantity and quality to protect instream and natural values and rights.” The fish are as important as the farms.

The earlier enacted statute is what is commonly called the “water code.” It was first enacted in 1891 and amended in 1917. It acknowledges the state’s power to “regulate and control” Washington waters and establishes the water-use licensing system based on “prior appropriation” (first in time shall be first in right). This statute also clearly states that these licenses will be “subject to existing rights.” 

Dairy farming and other agriculture are significant users of Nooksack waters. In recent years, deadly heatwaves requiring means such as misting sprinklers to keep cattle safe have demonstrated climate change impacts. (Courtesy Kate Steensma)

Washington’s Supreme Court has relied upon later-enacted legislative policy in water law cases when evaluating benefits established under prior law. The latter stated policy guides the implementation of the former statute. A state license to consume water must only be exercised under the constraints of the state’s later-enacted maximum net benefit policy. Retention of water in rivers and streams is “necessary to provide for preservation of wildlife, fish, scenic, aesthetic and other environmental values, and navigational values.” Even the earlier statute says that “waters within the state belong to the public,” and that its use is subject to “the power of the state to regulate and control” the public’s asset.

The luxury of a court considering a boundary line dispute is an awareness of the total size of the property in dispute. For a water adjudication court to put itself in the same position while applying the modern legislature’s “total maximum benefit” policy, it must first determine the size of the asset it is splitting, both now and in the future, and the size of each of the individual claims competing for separate benefit. In this case also, the volume of claim “necessary to provide for preservation of wildlife, fish, scenic, aesthetic and other environmental values” is undetermined. Because climate change lurks, the asset in dispute will shrink and critical fishery species will continue to be endangered under federal law notwithstanding DOE’s instream flow rule, as Mr. Hirst has illustrated 

Whether or not the court applies more modern, environment-oriented policy, the point Mr. Hirst makes, that as the climate changes the holders of later-perfected water rights will suffer greater risk of unavailable water than holders of earlier-perfected ones, also raises the necessary question: whether it is reasonable to conclude that Washington’s water laws do provide “equal protection” of the people as mandated by the Fourteenth Amendment of the U.S. Constitution? Access to water is, after all, a fundamental right. And, in Washington it “belongs to the public.”

See also: “Ecology files water rights adjudication in Whatcom County Superior Court,” May 2, 2024. (Washington Department of Ecology)

— By James Davenport

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