Long, long process has begun
Water adjudication is happening now in Whatcom County. What does that mean for our farms, our fish and our future?
Adjudication of Water Resource Inventory Area 1, also known as the Nooksack basin, means that this autumn, the Washington State Department of Ecology will notify all water users (excluding individual users of a system such as a city or public utility district) via certified mail that they must file a claim in Whatcom County Superior Court describing their water right and use.
After receiving notice, users have one year to return the claim form. Users who want assistance with filing (technical, not legal) will be able to get help from Ecology or Whatcom County.
The court will inventory all users and then start the long, long process of figuring out who gets water, how much, and from where.
Adjudication is affecting thousands of folks in Whatcom County. Here, three share their take on this critical issue. Interviews have been edited.
The farmer
Fred Likkel, born and raised on a dairy farm in Everson, is the executive director of the advocacy group Whatcom Family Farmers.
Q. Anyone who wants to use WRIA 1 water must file a claim, including permit-exempt well users. How much will this cost?
Ecology will provide an easy way to file. The challenge comes when there is limited water and competition for rights.
The biggest concern surrounds the needs of fish. In the past, the instream flow rule, which set flow limits in rivers and streams, was a junior right with a priority date of 1985, making it junior to many rights, including almost all agriculture and municipal rights. However, tying instream flow to tribal rights may make the instream flow senior to all other rights. Instream flows are significant, taking up most (or, in summer, often all) of the flows. If the instream flow isn’t met, and it becomes senior to all other water rights, then all other water users are at risk of being shut down.
Q. What will that mean for farmers?
Water is the lifeblood of farms. Without reliable water, our farms would be unable to exist. You simply can’t grow crops and feed animals knowing that you may have water shut off at any time.
Q. Do you think some farmers will choose to forgo their right?
Most likely, yes. There are numerous farms where some of their water rights are held by older individuals, families a generation or two removed from the land, or absentee landowners, who will not see or understand the value of defending their water rights. As everyone knows, legal actions can get expensive in a hurry. It is highly likely that some will ignore this action by Ecology. Whether it be ignorance of the consequences, fear of being involved in any legal action by the government, or lack of financial resources, water rights relinquished due to lack of action is distinctly possible.
Q. Ecology’s records show nearly 5,000 surface and groundwater rights documents, some a century old, with some users relying on rights that aren’t evaluated or verified. Ecology’s website explains this can’t be untangled without adjudication, and water users, including tribes, face uncertainty about their rights plus vulnerability to each other’s potential claims. Your thoughts?
Ecology has the information they need to help untangle this mess. They have records of all filed water rights claims. (Perhaps the only exception would be the tribal claim for sufficient water for salmon.) Agriculture has never been against quantifying tribal treaty rights. We have been against legal action that will be far more divisive than the collaborative solutions we need. Bottom line: Adjudication itself solves nothing related to the water resource issues we face.
Q. The Yakima basin (Ecology v. Acquavella) took 30 years to resolve (more if you count prep work and appeals). Ecology says it will go faster now. Your thoughts?
The Yakima adjudication was embroiled in legal battles. … It was only when collaborative actions occurred that it was settled.
The Yakima was only a surface water adjudication. Imagine how long it would have taken if it included groundwater? Ecology’s estimates simply do not match reality. As long as collaborative actions are put on hold, we can expect a lengthy, drawn out, very expensive process.
We are already seeing the effects of a possible adjudication. Recently, a major potato grower ceased operations, citing burdensome regulations as a primary reason. This included the cost of adjudication. He has chosen to sell rather than spend huge money defending water rights.
Additionally, we are already seeing more ag land being moved to development. Developers have more resources and can be more patient, buying up farmland and waiting until the rules change so they can put in houses.
The Realtor
Perry Eskridge is the government affairs director at the Whatcom County Association of Realtors. His role includes educating real estate agents on adjudication, as it impacts real estate in Whatcom County.
Q. Anyone who wants to use WRIA 1 water must file a claim, including permit-exempt well users. How much will this cost?
The initial filing fee will be minimal. If a claimant uses an attorney, there will be attorney fees, but there is no way to know what those will be.
Q. What will that mean for farmers?
The expense will be in gathering the information to support the claims and, ultimately, defending those claims from other users seeking to invalidate or remove the priority of an agricultural claim. That process, it has been estimated, could run into millions of dollars for those with numerous or voluminous water claims.
Q. Do you think some farmers will choose to forgo their right?
Heavens, I hope not! Surrendering water rights in a watershed that, in all likelihood, will have closed basins when adjudication concludes means property with no access to water could sustain a substantial loss in value. Subsequent purchasers seeking water for future uses or development will be required to gain access, likely through a water association, district or municipal utility. Securing such water will be expensive and, combined with professional fees for necessary agreements, may make any construction or subdivision very costly.
Q. Ecology’s records show nearly 5,000 surface and groundwater rights documents, some a century old, with some users relying on rights that aren’t evaluated or verified. Ecology’s website explains this can’t be untangled without adjudication, and water users, including tribes, face uncertainty about their rights plus vulnerability to each other’s potential claims. Your thoughts?
The water belongs to everybody. Ecology is supposed to ensure it’s available to everyone and benefits everyone.
The Nooksack River instream flow creates a water right for the river of a certain number of gallons per second. That right has a priority date of the mid-1980s. The tribe doesn’t have a water right but has a right to fish. Well, fish need water. You can see how convoluted this gets. When the tribes talk about their water right, it’s not on a certificate or expressed anywhere, but arguably, and most likely, it’s the most senior right in the county.
A lot of people in the county have water rights that predate the 1917 code. They had to come in and file their water right claim under the code. Some did, some didn’t.
A lot of people had wells before the 1945 groundwater code was adopted. Same situation. They were using groundwater before there was a code that said you must have a right. Some did, some didn’t.
At times, Ecology has offered amnesty, saying, “You can file your claim, and we’ll maintain your previous priority date.” These were noted and mapped, but it doesn’t appear there was an attempt to prioritize them.
Property has changed hands now. Add to that, some families farm the same property but have changed its use; they may have had a stock-watering certificate, but now they farm berries. If the change from dairy to berry isn’t accepted, they could lose priority. Crops in Whatcom County are water dependent. Any inclination that there might be a problem with that could be catastrophic for your operation.
Q. The Yakima basin (Ecology v. Acquavella) took 30 years to resolve (more if you count prep work and appeals). Ecology says it will go faster now. Your thoughts?
I do not believe, absent a settlement, that this will be faster. Acquavella took nearly 45 years when all was said and done, but that case was limited to surface water. Nooksack/Whatcom includes both surface and groundwater.
The inclusion of groundwater is unique to this adjudication and, as I understand it, the United States. Trying to quantify and assign water usage to groundwater systems that are not completely understood will be complex and daunting. Indeed, Ecology has already stated it will not consider the Fraser River and the contribution that makes to groundwater in northern Whatcom County. The increased complexity in water use litigation since the beginning of Acquavella, coupled with the complexity of Whatcom’s groundwater systems … I suspect that this case will continue for quite some time.
The state
Robin McPherson is an adjudication manager with the Washington State Department of Ecology, headquartered in the Olympia suburb of Lacey. An attorney, her role is to assess the need and feasibility of adjudications statewide.
Q. Anyone who wants to use WRIA 1 water must file a claim, including permit-exempt well users. How much will this cost?
Whatcom County’s claims filing fee for water is $25. There is a sense that being in court, people need to pay lawyers for years and defend against attacks. Adjudication doesn’t require that. We need them to tell us what their water right is. Unless the neighbors choose to contest and cross examine each other … it doesn’t have to be expensive. People have a right to object to others’ water rights, and they have a right to object to our report.
One thing worth thinking about is not what might be lost if they don’t participate, but what might be gained if they do. Adjudicated certificates are more valuable than any water right they have.
Q. What will that mean for farmers?
Water is a public resource, used under a priority system. Because water is connected through streams, rivers and aquifers, owners of land do not necessarily have the legal right to use any water they can pump or divert. There has been significant conflict in WRIA 1 for many years, with a great deal of uncertainty, including requests by tribes for federal lawsuits against the state of Washington. This makes all state water users vulnerable. An underregulated system may benefit some users some of the time, but it is not reliable or fair. To fairly protect all water users, and to be sure the system is fair and legal, we need to know who uses water and what their authority is.
We anticipate many claims will be stipulated (agreed without objection).
We have been meeting with local farmers for over three years now and understand that the change to adjudicated certificates is uncomfortable and farmers are wary. But as adjudication proceeds, we expect to see tribal water rights resolved and infrastructure funded.
Q. What route other than adjudication might have worked?
Ecology has been working since at least 1985 (when the instream flow rule was adopted) to resolve water conflict in WRIA 1. In the 1990s and 2000s, the state met with tribes, irrigators and other interests on solutions, including watershed planning. These efforts have stalled because rights — including tribal rights and irrigation water — are not clear. We believe adjudication will move these efforts forward, bring federal parties to the table, and enable meaningful long-term solutions.
Q. Ecology’s records show nearly 5,000 surface and groundwater rights documents, some a century old, with some users relying on rights that aren’t evaluated or verified. Ecology’s website explains this can’t be untangled without adjudication, and water users, including tribes, face uncertainty about their rights plus vulnerability to each other’s potential claims. Your thoughts?
The uncertainty comes from many angles: Tribes claim senior rights, but we do not know exactly where or how much water this might be. The federal government could bring actions against the state for impairing rights. We don’t know how much water is used through permit-exempt wells. There are thousands of documents that may or may not be valid, and we do not know how these align with current uses. Water users could sue each other for impairment at any time, though this hasn’t happened yet. The current situation is not reliable or stable.
Q. The Yakima basin (Ecology v. Acquavella) took 30 years to resolve (more if you count prep work and appeals). Ecology says it will go faster now. Your thoughts?
While it’s impossible to predict the future, there are many reasons Acquavella took as long as it did that are not at issue here. First, Acquavella included many years of jurisdiction and venue disputes (including that of Yakama Nation), and we don’t expect those here (Lummi and Nooksack consent to jurisdiction). Second, advances in the law resolve many legal issues that took years to resolve in Acquavella. Third, we have technical advances like e-filing, notice and service to expedite the process. But adjudication is still a long-term process and an unfamiliar one. While many people seem wary of the length of time of adjudication, many water users and local interests already express an interest in additional time at the beginning of the adjudication. For those who are concerned about resolving their water rights sooner, they do not have to wait to submit claims and evidence. ■
