State acts to finally settle disputed Nooksack River Basin water rights
Rights to water in the Nooksack River watershed appear headed to court, now that the Legislature has funded preliminary work toward an “adjudication,” where a judge would decide how much water goes to the tribes, agriculture, landowners and fish.
The state’s 2022-2023 budget includes $1 million over two years to fund adjudication for the Nooksack and another region in Eastern Washington.
It also includes $250,000 for Whatcom County to conduct planning and technical work and move forward with what County Executive Satpal Sidhu is calling a cooperative agreement to distribute water rights.
Gov. Jay Inslee hasn’t signed the funding requests, but state Department of Ecology officials told The Bellingham Herald that they were confident they would pass.
Access to water is critical for food production and harvest and growth planning to accommodate more residents. “Water rights have been issued in the Nooksack Watershed for more than 100 years, and as a result, most water in the watershed is already legally spoken for or ‘appropriated’,” according to Ecology.
Ecology’s Robin McPherson, a lawyer who manages the state’s water adjudications program, said adjudication is a lengthy process that could take two years or more before a lawsuit is filed to decide water rights.
If any compromise agreement is reached before that, a court would have to authorize it, McPherson said.
In the next several months, Ecology will identify those with water rights in Water Resource Inventory Area 1, which is the Nooksack River Basin and includes lakes, groundwater or aquifers, and the river and its tributaries.
In addition, county and state officials will assess and map surface water and groundwater in WRIA 1, then take into account any compromise solution worked out with Sidhu’s office.
“Depending on what the partners agree to in two years, that will determine what happens,” McPherson said. “We need to continue our work in parallel in order to be ready. We would submit (Sidhu’s) settlement to the court if it makes sense. It’s a pretty big process.”
Sidhu told The Herald that he hopes to bring parties together — such as farmers and tribal members — for initial talks within the next few weeks.
“I’m going to ask them what they think a fair agreement would be. I want to see something on the table,” Sidhu told The Herald.
“Water is not a commodity to the tribes. It is their connection to nature. They see fish as a way of life. To them, it is a cultural connection. The rest of the community needs to recognize that,” Sidhu said.
And, the tribes have water rights dating to the 1855 treaties.
Lummi Nation and the Nooksack Tribe issued a joint statement in late April saying they look forward to a decision.
“We thank the governor and legislators; this is a good step and is the only legal path we have in Washington to make sure there’s enough water in the Nooksack River for salmon, farming, and people,” said Nooksack Tribe Chairman Ross Cline Sr.
“For years people have tried to find voluntary local solutions, with little success. Water rights must be resolved if we are going to protect and recover salmon. A formal court judgment of the water claims in the Nooksack — an adjudication — is the only tool available to Washington state to sort through competing water claims. An adjudication is an inventory of who has a right to how much water, when it can be used, where it can be used, and what it can be used for. It legally and permanently determines everyone’s water rights, providing much-needed certainty for fishing, farming businesses, and people,” Cline said in the statement.
Lummi Nation Chairman Lawrence Solomon said the tribe also is committed to a permanent solution.
“The residents of Whatcom County are our neighbors. With adjudication, we can look to a future where all our grandchildren are able to harvest salmon from our waters and still make a living on the land,” Solomon said. “This will be a long journey, but we are committed to the future of our people. The journey begins now.”
Fred Likkel, executive director of Whatcom Family Farmers, told The Herald that local agricultural interests would support a compromise solution and oppose adjudication.
“It will drive people to their respective corners and spend a lot of money on attorneys,” Likkel said. “That’s why we need to have these discussions around a settlement.”
