The case against an adjudication of Nooksack water rights

An adjudication without agreement on a path to protect natural resources is not the answer

Recently the Washington State Department of Ecology made a quiet but momentous decision. It’s asking the state Legislature for money to begin the process of adjudication in the Nooksack Basin. This move has caused huge concern among the farming community and many other water users. Why are farmers so adamantly opposed to the state’s adjudication plan?

An adjudication is a lawsuit by the state against all water users in the basin. It examines all water rights (permit, certificates, claims and exempt uses) and establishes a priority date for each water use based on “first in time, first in right.” Whenever water supply is limited, the junior (newest) rights must shut off to ensure the senior (oldest) rights have their promised water.

Local tribes are first in line as far as seniority. They have a senior water right claim based on treaties with the federal government in 1855. Tribes have on-reservation water right claims as well as claims from those treaties calling for adequate water to support a healthy fishery.

All other water rights in the Nooksack Basin are junior. This includes water rights held by cities, the Whatcom Public Utility District, water associations, farmers and thousands of individual wells supplying homes.

For farmers, adjudication is complicated by how water rights were granted back when irrigation started in earnest in Whatcom County. Most were aware that a water right was needed for surface withdrawals, but at the time, few understood that wells also needed a water right. In many cases, the well driller filed the application for a water right, but this was not consistent. We are left with a checkerboard of fields with and without water rights. During an adjudication, those using water with no rights will be forced to stop all water use, with no opportunity to even speak into the process.

It’s important to recognize that adjudication is a strictly legal action that will make water management more contentious. It does not deal with the major issues our community faces in managing our natural resources. The community has been working together in various ways to help deal with these issues. Adjudications, however, have always caused water right holders to hire lawyers to defend current rights. This will inevitably change the approach of all water users in this region — from a collaborative, positive stance to a defensive posture strictly focused on who gets water. The only winner in this scenario will be the attorneys.

By eliminating users who currently have no rights and putting those who have legal rights at great risk, an adjudication will cause irreparable harm. It will render much of our farmland useless for producing crops, and it will devalue local family farms to the point that farming will no longer be a viable option.

Why would farms and other users lose access to water? Instream flow rules provide a baseline for fish needs in our streams. Few, if any, streams currently meet these requirements, but the law has been only sporadically enforced, with just occasional water shutoffs. An adjudication makes it clear that would change. Irrigators are the most vulnerable to this possibility, but others are also at risk. For example, the city of Roslyn had its water shut off in 2001 and 2004 during an adjudication because their 1908 water rights were junior to other users. There are thousands of Nooksack Basin water users who would be in jeopardy of losing their water rights.

Also, the Nooksack would be different from other areas that have survived an adjudication because the Nooksack is one of the few river systems that doesn’t have reservoirs that can release water to maintain stream flows during the critical summer low-flow season.

What does this mean for our community? When flows are not adequate for fish in the river, or any tributary, the law requires that water be shut off. In the most likely scenario, no current right beyond the tribal rights would be secure. For farmers, this is a doomsday scenario. No water means no crops. This uncertainty threatens even the most secure farms.

Farmers will be forced to change their current priorities to spending resources on lawyers rather than investing in positive solutions such as habitat restoration and floodplain management. Experts estimate that individual farmers and other water right holders spend hundreds of millions of dollars in legal fees during an adjudication. The other distinct possibility for farmers is to sell to real estate developers who are willing to take the risk on holding the valuable asset of land. As our population booms and land prices skyrocket, they will be more able to afford what will most likely be a bidding war for what few available water rights senior holders might lease out. Landowners will have no other choice but to convert farmland into rural residential sprawl.

While Ecology suggests this process might take 10 to 20 years, experience in the Yakima adjudication suggests it could be much longer here. In Yakima, only surface water rights were adjudicated, but in the Nooksack, Ecology is proposing that both surface and groundwater rights will be included. That significantly complicates the situation. Attorneys estimate private water right holders will likely spend $500 million to as much as a billion dollars in a likely futile effort to protect their access to water. The state also could spend that much in taxpayer dollars to pursue a course that conflicts with the state’s obligation to protect the interests of its citizens.

All parties, including farmers, agree that current water rights are a mess. But new clarity helps only if it creates a water supply structure that supports our goals as a community. There are multiple ways our community can reach its water resource goals without the cost and contention of an adjudication. Good resource management is not accomplished through the enforcement of disparate, antiquated laws governing water rights, water quality and land use.

We can do so much better than relying on the state and courts to conduct an expensive, contentious, 20- to 30-year adjudication of water rights. The disruption and dissension that this process will inevitably cause can easily be avoided. An adjudication of water rights without agreement from all parties on a path forward to protect our natural resources is not the answer. We are encouraging all water users to make this case to Ecology, the governor and the Legislature and stop movement toward a Nooksack adjudication.

Fred Likkel is the executive director at Whatcom Family Farmers, a farm advocacy group that focuses on public education of the good work of local farmers as well as advocacy for all in the agriculture industry.