LYNDEN — Dillon Honcoop took the stage in front of about 400 concerned Whatcom County residents at the two-hour “Protecting Your Water: Understanding The Water Rights Lawsuit” event at the Northwest Washington Fairgrounds.
The communications director for the organizer, agriculture advocacy group Whatcom Family Farmers, explained that the line-up of water rights experts was there to provide tools and information to navigate the upcoming water adjudication process — a legal battle for water in the Nooksack area.
“Who in the crowd here has their water-right, water-access situation all under control, figured out, documented?” Honcoop asked the crowd on March 27.
Not one hand went up.
The pending adjudication of Water Resource Inventory Area 1 — which covers the entire Nooksack Basin, as well as Lake Whatcom, TenMile Creek, Sumas, Point Roberts, Lummi Island and other watersheds, such as Dakota Creek and Lake Whatcom — is a legal process to determine whether each water right is legal, how much water can be used and what its priority will be during shortages.
Ultimately, a judge will establish priority for each individual water right, including those held by farmers, municipalities, private well owners and tribes, as well as federal and state agencies. This will include groundwater and surface water, as well as instream flow rights.
“We have increasing pressure from consumptive water users and instream needs,” said Robin McPherson, the adjudications manager at the Department of Ecology’s Bellingham field office.
The Nooksack Basin serves as critical habitat for many species, especially salmon, and supports valuable agriculture amid increased residential development, McPherson explained. This rise in competing demands comes at a time when climate change is reducing snowpack during hotter, drier summers.
“We know that adjudication doesn’t stop climate change, but it is something that will let us do our job effectively in determining where water use is legal,” McPherson said. “And what happens when there’s not enough of it.”
Recognizing this increased pressure on vital water resources, Treaty Tribes in the region have been pushing the Department of Ecology to move forward with the adjudication process after more than a decade of failed negotiations between stakeholders, said Lummi Nation Chairman Anthony Hillaire.
“There’s no more time to wait,” Hillaire said. “The world is changing. The climate is changing. The population is growing and new ideas are coming to change with this world and usually, as history has told us, when that happens, it usually means that U.S. treaty tribes have to give something up.”
For the Lummi Nation, the only step forward is the adjudication process, clearly securing their water rights, including their instream flow rights for salmon, Hillaire said.
Instream flow is the water flow within a river or stream required to maintain a healthy ecosystem, support wildlife, and sustain recreational and cultural activities. This is particularly vital to salmon who begin swimming back to their spawning grounds in late summer — when water levels can be fatally low.
The agriculture community, in general, has been opposed to adjudication due to uncertainty around how instream flow will be allocated; the burden and potentially high cost of proving legal water rights; and the possible loss of access to groundwater. Ultimately, farmers say, the adjudication process does not address the underlying concerns of developing new water supplies and storage options within the county.
The Department of Ecology is expected to file the lawsuit that kicks off the adjudication process with Whatcom County Superior Court this year — possibly as early as this month. Users will then have a year to fill out and submit their claims form and an additional three years to provide supporting documentation.
The department has identified more than 30,000 addresses to be served, including an estimated 10,000 or more permit-exempt wells. However, the exact number won’t be known until claims begin to be filed due to the potential of duplicate claimants in the data.
“To my knowledge, it’s the single biggest lawsuit that’s ever been filed in the state,” said Bill Clarke, a water rights attorney who spoke at the event in March.
A representative from Ecology was not among the experts in the room that night.
“I don’t think the people who are suing us are the ones who should be advising you,” said Fred Likkel, the executive director for Whatcom Family Farmers. “Most of you also know that agriculture was opposed to this.”
He said that despite agriculture advocates’ best efforts to stymie the adjudication, the process was moving forward, which meant it was now time for the agriculture community to “make the best of it.”
Not participating is not a solution, regardless of how senior someone’s water rights are or even if the water rights are on the short list of exemptions, Clarke explained.
The exceptions to this are homes and businesses that receive water through a municipality, as the municipality is the one with the water rights and will need to participate in the process.
“If you do not file a claim in court, you ultimately will not have a water right,” Clarke said.
Setting the stage
Talk of adjudication processes have popped up throughout the state for decades, though legal rights to water tend to be reviewed only when an area reaches a crisis point, McPherson said.
To provide a more systemic approach, the Legislature ordered a statewide assessment in 2019. The goal was to determine where, if anywhere, an adjudication process should be considered.
The Department of Ecology’s report, released in September 2020, stated that “uncertainties about water rights can be found in most watersheds around the state because both water supply conditions and water law have evolved over the past century, and a core regulatory tool — court adjudication — has been underused.”
However, the department recommended two watersheds for immediate adjudication: the Nooksack area and “Lake Roosevelt and Middle Tributaries” (of the Columbia River).
The challenges were deemed “particularly pronounced” in the Nooksack watershed.
“Despite good faith efforts over many years to achieve voluntary water management agreements in this watershed, disagreements about the legal right to use water have resulted in threats to local agricultural economies and counterproductive competition among different kinds of water uses,” the report stated.
“Solutions to competing demands for water — for fish, for farming and for people — are stymied by the lack of a complete inventory and formal court determination of all the rights to use water under Washington’s laws,” it continued.
The Spokane River system and Walls Walls watershed also were tagged for prospective future adjudication.
The 2019 report created a foundation for the department to secure funding and other resources for the process. The department’s budget for preparing and filing the adjudication is $2.74 million from July 2023 to June 2025.
The effort to adjudicate the Nooksack Basin got an additional boost by the Legislature with House Bill 1922 and Senate Bill 5828, both signed into law in March.
The companion bills introduced by Sen. Sharon Shewmake (D-Bellingham) and Rep. Joe Timmons (D-Bellingham) collectively provide an additional judge to the Whatcom County Superior Court and add a new water adjudication commissioner to help the county handle the enormous legal process.
“I want to ensure that the adjudication process is as smooth as possible and that will require an adequately staffed judiciary. We are expecting to have between 5,000 to 25,000 filings. For context, in 2022 there were only about 6,000 cases total,” Shewmake said. “This extra judge will be an essential resource for the court and help people get resolution on their water rights in a timely fashion.”
An adjudication process is not quick. It isn’t designed to be quick. It’s designed to be thorough, as it establishes the playing field for all future water rights issues.
In 2019, the Yakima County Superior Court issued a decree in the Acquavella adjudication process, which started in 1977 as the Department of Ecology attempted to determine the legality of all surface water rights in the Yakima River Basin. Two years later, the Yakima Nation would secure additional irrigation rights through the appeals process.
“There are many reasons we anticipate this adjudication will not take as long as Acquavella,” McPherson said. “Because Lummi Nation and Nooksack Tribe have petitioned for this adjudication, we do not anticipate tribal or federal objections, which would otherwise take many years.”
Isaac Stone Simonelli is CDN’s enterprise/investigations reporter; reach him at isaacsimonelli@cascadiadaily.com; 360-922-3090 ext. 127.
