Whatcom County Council member Ben Elenbaas proposed six amendments to the economic section of the comprehensive plan in hopes of making a decades-long process quicker.
The Nooksack River rose and flooded during the recent atmospheric river, but this water cannot be stored when the inevitable drought occurs in late summers for farmers and fish alike. As glaciers are shrinking and more precipitation is falling as rain rather than snow, water shortages are frequent and water rights are questioned.
The Nooksack water adjudication — a large court case that will set legally enforceable water rights for nearly everyone using water in the Nooksack River basin in Whatcom County and parts of Skagit County — is underway.
Recently, Whatcom County Council member Ben Elenbaas proposed six amendments to the economic section of the county’s comprehensive plan on water rights, with an emphasis on pushing toward a settlement approach to the adjudication.
The hope is to make the decades-long process quicker, something the agricultural community has been pushing for. Elenbaas also strives to reduce fiscal burdens and economic uncertainties.
One of the amendments proposes that the county shall “actively pursue and support a negotiated or mediated settlement process among all major water use sectors — agricultural, municipal, industrial, tribal and environmental … The county should provide leadership, facilitation and technical support to help all parties reach consensus on allocation, mitigation and conservation measures that sustain the county’s economic base while protecting ecological resources.”
Additionally, Elenbaas proposes that because the state proposed the adjudication, “the county shall advocate for state reimbursement of adjudication-related costs. Including courtroom expansion, judicial staffing and administrative expenses — while simultaneously pursuing settlement strategies that can reduce or eliminate the need for these ongoing expenditures.”
The money saved from a negotiated settlement was proposed to be used for water storage, water transportation efficiency and mitigation banking, which is the funding for restoration, creation or protection of wetlands, streams or endangered species habitats.
The last amendment has the goal of integrating agriculture and housing water needs, since stable water supply supports job creation, food security and housing affordability.
Gaining information
Pushing toward a settlement could help with economic uncertainty but, alternatively, playing out the legal process of deciding water rights will provide information and data that isn’t currently available.
“The value that we see in the adjudication process is it’s an information-gathering tool,” said Kaia Hayes, land and policy manager of the Bellingham-based nonprofit RE Sources. “It helps to answer a lot of the remaining question marks that aren’t answered by a lot of the monitoring and scientific data that’s available to us but can be an important piece of answering the human, social, cultural and economic pieces of what to do about a climate change watershed.”
The adjudication process also can spark further funding and resources that weren’t available without getting the legal ball rolling.
“We’re able to unlock a lot of funding resources to support implementing those projects, but those are the kinds of conversations that can happen in parallel with the legal process of quantifying and ordering the water rights,” Hayes said. “We are not in favor of trying to find a loophole around adjudication. We support the process playing out, and we support people having the tools they need to successfully participate and to be able to quantify and keep their water right so that they can have their needs met.”
What is adjudication?
Adjudication assesses the uses of water in a river basin and proves the seniority of water right claims. It seeks to resolve uncertainties to ensure that farmers, tribes, water districts, rural well owners, fish and other stakeholders have enough water in the coming years as climate change contributes to lower stream flows during summer months.
Water rights adjudication has happened one other time in Washington, the Yakima River basin, and it took 42 years.
“What we really want is solutions for our natural resources and from what I see from our farmers; I don’t know if we have 30 or 40 years, and I’m not so sure that the salmon do either,” said Fred Likkel, executive director of Whatcom Family Farmers.
The Yakima adjudication resolved decade-long water conflicts and sparked collaborative watershed planning that will benefit fish and farmers in the long run, but it took decades. It showed the way for water resources managers around the state, with lessons of what does and doesn’t work during this process. It also honors treaty rights by quantifying tribal reserved water rights for instream flows and establishing their senior water rights, according to a thesis project out of Western Washington University.
“The adjudication doesn’t solve the issues, the settlement drives the issues,” Likkel said. “That doesn’t mean the adjudication doesn’t happen, but the settlement is what is what brings about solutions. And so when the community agrees together, this is the path we want to go forward, and all of a diverse group of people say, ‘Yes, this is what we want to do.’ That’s when you see the funds coming from federal and state to start driving these solutions.”
The long adjudication in Yakima resulted in significant legal fees and staff time. Another downside was stakeholders in the Yakima basin disagreed about the amount of water they were granted at the end of the process.
“If you look at the Yakima that wasn’t a judge saying, ‘this is my conclusion, the case is over.’ It was a negotiated settlement at the end of the day. And I’m saying, let’s skip the 50 years of economic uncertainty, and let’s go right to the settlement,” Elenbaas said.
After the success of quantifying water rights in 2019 for tribes in the Yakima Basin, the Washington State Legislature requested the Department of Ecology to explore which watersheds could be candidates for future adjudications. Priority was given to watersheds with water quantity problems and home to a tribe that claimed senior water rights for instream flows that had not been quantified yet.
This led to the Nooksack basin.
In April 2021, the Legislature allocated over $1 million to fund Ecology, initiating adjudication in the Nooksack basin and the Lake Roosevelt area, with the Nooksack being the priority.
This was celebrated by the Nooksack Tribe, Lummi Nation and local conservation groups. In 2019, the tribes had submitted a formal petition to initiate water rights adjudication for the primary purpose of quantifying how much water should be required to stay instream to fulfill the tribes’ off-reservation instream flow water rights.
After the Yakima Basin, the adjudication process has been streamlined and should not take 40 years in the Nooksack, observers say.
Both the Yakima experience and newer technologies that are now available could make the Nooksack process more efficient. However, Ecology still expects adjudication in the Nooksack watershed to take up to 15 years.
The amended water code encourages stakeholders to arrive at a negotiated settlement before a final court decree is issued. However, such a settlement requires a level of collaboration that has not yet taken place in the Nooksack watershed
“We see an opportunity for collaboration around addressing some of the questions people have about the process,” Hayes said. “Ultimately, regardless of what solution we settle on as a region, we want folks to be able to retain their water rights.”
The upside of the Nooksack Basin is the amount of resources it has to offer.
“Whatcom County is in a pretty unique situation, as far as water resources go. We have all the tools that are needed, we get plenty of rainfall,” Likkel said. “The difficulty there is that our summers, and especially the late summers, is where we run into deficits, and those deficits affect farming, but I think an even bigger issue there is that they affect the salmon.”
Is there enough water?
“If we don’t have enough water in Western Washington for agriculture, rural living, where in the world do we have enough water?” Elenbaas said.
The answer to that question may be changing. As winters are warming, less precipitation falls and sticks as snow instead of rain. Therefore there is less snowpack, and the snow that is accumulated is melting and moving through the system a lot faster. The water level is lower, later into the summer as it has been historically.
“That’s sort of a trend that will continue to exacerbate and so what that does is you end up kind of dwindling and reaching your low-flow level right at the end of the summer when fish, farms and people need it most,” Hayes said. “We might be getting similar amounts of water, but when we need it most, we are increasingly seeing less water to work with.”
Water storage is one way to combat this. Likkel believes it is the most likely solution for the lack of water in late summer, whether that is natural or artificial. Hayes thinks a natural solution would be best.
“The best return on investment comes from investing in natural climate solutions,” she said. “So, everything we can do to work with nature rather than against it, is going to close the gap that we then have to fill with much more costly and resource-intensive engineered solutions.”
Elenbaas believes that water storage isn’t necessary and that instream flows are not necessarily the limiting factor on a harvestable salmon population.
“The in-stream flows are the limiting factor on a harvestable salmon population, right? That’s been presented as fact, but I don’t know if that really is fact. Those are the things that need to be defined,” he said.
According to a state study from the early 2000s about salmon habitat limiting factors in Washington, reduced instream flows during late summer are one of the largest impacts on water quality and increasing the water temperature, leading to less salmon able to spawn and survive.
“If we can recognize how key healthy watersheds are; room for the river to roam in its channel, wetlands at a meaningful scale to help store and slowly release water, having healthy, functional forest systems, especially in the upland, to retain and release cold water later into the year. These are all ways to bolster what the river can do to combat climate impacts on its own and to address quality and quantity issues,” Hayes said.
By Mars Wetzbarger
Also read in Salish Current:
• “Commentary: What we don’t know about the Nooksack adjudication,” April 24, 2025
• “Commentary: What’s the best, worst to expect from Nooksack adjudication?.” Jan. 16, 2025
• “Nooksack water rights adjudication is on track for April filing,” Feb. 14, 2024
• “Clock starts on Nooksack basin water rights inventory,” July 9, 2021
• “Commentary: Nooksack water rights adjudication is existential threat to farming’s future,” Nov. 13, 2020