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: Nooksack water rights — granted a decade or more from now — that look good on paper will not be realized because the water will just not be there.
Washington state water law is an antiquated, out-of-date and counterproductive mess dating back to 1917. Its problems grow increasingly severe because of climate change and population growth. Thus, it is long past time to reform our water laws.
State water law has several key flaws:
- Prior appropriation: One’s right to use water depends on when the application for a water right was first filed. When shortages occur (which happens more and more frequently), junior users will be completely cut off while senior users can continue as usual. Prior appropriation also undermines environmental quality. Specifically, sufficient supplies of clean water needed to protect fish and other wildlife are junior to most water rights.
- Permanent: Water rights last forever.
- Free: Although increasingly valuable, the state charges nothing for water. The lack of adequate price signals undercuts the normal workings of supply and demand.
- Fixed in quantity, although the amount of water available fluctuates from year to year and throughout each year
- Ignores tribal treaty rights, although these rights, dating from the 1850s are, by far, the most senior rights of all but have not yet been quantified. Further, tribal rights to instream flows to support fish and other wildlife are likely larger than most other water rights.
These characteristics are inconsistent with more recent (1989) legislation (RCW 90.03.005) that requires Ecology to “promote the use of the public waters in a fashion which provides for obtaining maximum net benefits arising from both diversionary uses of the state’s public waters and the retention of waters within streams and lakes in sufficient quantity and quality to protect instream and natural values and rights.”
Locally, the Nooksack adjudication just getting started will suffer greatly unless these deficiencies are explicitly addressed. To that end, Jim Davenport (an experienced water lawyer) and I asked Ecology to incorporate climate change and prior appropriation into the adjudication. So far, they have declined to do so.
The consequence of this failure is almost certain to be water rights — granted a decade or more from now — that look good on paper but cannot be realized because the water is just not there.
Climate change has substantially reduced summer streamflows throughout the Nooksack River watershed, and will continue to do so for at least the next few decades. At the same time, summer water temperatures are going up. Both sets of changes make life much more difficult for salmon and other wildlife. The declines in water availability guarantee that a mere inventory of water rights (which is what Ecology plans to do) will provide many water users with rights that cannot be exercised — the water will simply not be there.
Prior appropriation further complicates the already many challenges of adjudication. The principle of “first in time, first in right,” means that those with senior water rights will get all the water they need while those with junior rights will get nothing. I can think of no other product or service where one’s use of that product or service depends on when you first started. There are no vintage rights to electricity, natural, gas, internet, cell phones, garbage pickup or anything else. Why should water be different? Also, the combination of climate change and prior appropriation ensures that Ecology’s legal obligation to obtain “maximum net benefit” for water allocations cannot be met.
Our state legislators in Olympia should hold hearings on the need to and how to reform state water law. In addition to hearings, the legislature could ask Ecology to convene a task force to study alternative forms of water law and make recommendations to the legislature. Although Ecology’s July 2024 strategic plan called for “reforms to state water law,” it offered no specifics on what reforms it has in mind.
As with so many public-policy problems, the longer we wait to address these problems, the more expensive and challenging it will be to resolve.
— By Eric Hirst
Disclosure: Eric Hirst serves on the board of directors of Salish Current.
Read more! See previous commentary and news articles on Nooksack River water rights and adjudication.
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