Commentary: There are more questions than answers surrounding who claims how much water and how much water there will be to claim when the adjudication process is completed, a commentator writes.
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.
Tribal treaty rights are the most senior of all water rights. Under both federal and state law, when shortages occur, tribal rights likely trump all others.
Tribal rights include instream flows to support healthy salmon and other wildlife populations (likely the largest rights of all) and on-reservation water uses. These senior rights suggest that water for agriculture, homes, businesses, and industry might be increasingly limited. These limits will get worse over time because of the adverse effects of climate change:
- Lower summer streamflows because of glacier loss, less snow, and earlier snowmelt, and
- Greater need for irrigation water because of higher summer temperatures and less rainfall.
Because the Lummi Nation and Nooksack Tribe water rights have not been quantified, we have no idea how the determination of their on- and off-reservation rights will affect everyone else. The only hint of their rights is the 1985 instream flow rule promulgated by the Washington State Department of Ecology. Ecology set minimum flows in cubic feet per second at 30 locations throughout the watershed for the 1st and 15th of each month. These minimum flows, in part by design, were often not met in the past and will be met even less frequently in the future. Will Ecology curtail junior water users during low-flow periods?
We don’t know how much water the tribes will request for streamflows. Water law and litigation throughout the West suggest that quantifying tribal water rights is uncertain and complicated. We do know that the numbers will be hotly contested. A hint of the looming controversy occurred last year upon completion of a study to review and update work done two decades ago on optimal streamflows for salmon. Members of the local Watershed Management Board could not agree on how to interpret these results and decided to stop collaborative work on this crucial issue. Perhaps adjudication prevented board members from working together on an issue that is almost certain to be hotly contested in the adjudication proceedings.
We don’t know whether the two tribes will file claims jointly or separately. We don’t know what role the federal government (departments of the Interior and Justice) will play in the adjudication. Will the government file claims on behalf of the tribes, support the tribal claims, or do something else?
We don’t know how the Superior Court will assign the tribal rights to instream flow. Although the Superior Court will quantify all water rights in the Nooksack watershed, we don’t know how these rights will be managed or regulated, presumably by Ecology. For example, some farmers might be willing to give up streamside land to expand and improve buffers, habitat and water quality in exchange for water rights. Will the tribes be allowed to negotiate such agreement?
Increasing water supplies, storing winter water for summer use, and improving water-use efficiency across all sectors of society could help reduce the growing imbalance between declining summer supplies and increasing summer demand. Who will organize and lead such an effort? Will it be Ecology, the Watershed Management Board, Whatcom County or some new entity?
It will be at least a decade or two before the Superior Court resolves these water-rights-quantification issues and determines the Lummi Nation and Nooksack Tribe rights to streamflows throughout the Nooksack watershed, as well as all other water rights. By then, will climate change have so changed the flows and water needs throughout the watershed that practical solutions are no longer possible?
— By Eric Hirst
Also read in Salish Current:
• “Commentary: Time to reform our century-old Washington water law,” Sept. 30, 2024
• “Commentary: Climate change complicates Nooksack adjudication ,” April 18, 2024
• “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 an existential threat to farming,” Nov. 13, 2020
• • •
We welcome letters to the editor responding to or amplifying subjects addressed in Community Voices. If you wish to contribute to Community Voices, please send an email with a subject proposal to Executive Editor Mike Sato and he will respond with guidelines.
Help keep the local news flowing — support nonpartisan, fact-based, no-paywall local journalism
with a donation to the Salish Current — news for people, not for profit.