This piece originally appeared in the Seattle Times Dec. 31, 2020.
The Washington Department of Ecology is asking the state Legislature for $1 million to begin a multi-decade process of certifying legal water rights in the Nooksack River Basin. As a result of this ugly process, a beautiful and productive farming area will be converted to another suburban landscape — and with it will come many more problems with protecting salmon.
Officials at Ecology says this legal process, called adjudication, is needed to determine legal rights. The department is pleased the Lummi and Nooksack tribes — who normally look to the federal government on rights issues — have requested this. The certainty provided by the courts is understandably attractive to Ecology. We share the tribes’ frustration with lack of progress on resolving these issues, but disagree that adjudication is the only or best way to resolve them.
In the Nooksack basin there is a unique and major problem. It’s why lawyers are advising farmers in the area they likely have only a few years remaining to plan their exit from farming. Why? Unlike similar river systems in the state, the Nooksack basin has no water storage.
In other basins, reservoirs allow rain and snowmelt to accumulate over the winter and then be released to maintain the flow in the river needed to protect fish. The 1855 Treaty of Point Elliott secures tribes the most senior rights, which will be used to ensure adequate flows during low flow times. Without stored water to release in the Nooksack, when the flow goes below minimums to protect fish, all other water uses will be cut off until the flow returns with the fall rains.
Not just farms are affected. Cities and towns will also face being cut off, just as Roslyn did during drought years in the midst of an adjudication in the Yakima basin.
With creative solutions to protect stream flows, fish and farming are possible in the Nooksack Basin. But the community must come together and collaborate on plans that can guide the necessary legal agreements. If an adjudication is launched, that kind of collaboration will be virtually impossible, with each water user hiring lawyers to argue in court for as much water as they can get, in hopes the ultimate decision from a judge will give them enough water to survive.
Defending existing water rights in an adjudication is expected to cost upward of $100,000 in legal fees per right. With 5,400 water rights in Whatcom County, the legal costs to water users in the basin could reach into the hundreds of millions, and that doesn’t count the additional hundreds of millions or more the state taxpayers will need to spend on lawyers. Yakima’s adjudication was completed after 40 years, but it was only resolved as a result of a negotiated settlement that brought the parties together to collaborate after decades of acrimony.
Community leaders in Whatcom are asking: Why not negotiate? Why not learn from Yakima, as it was the negotiated Integrated Plan there that resolved Yakima’s nearly endless court battles? Protecting one of the most valuable remaining farming areas in Western Washington depends on Ecology supporting cooperative agreements instead of a long, expensive legal conflict.