Published 9:15 am Tuesday, October 20, 2020
The Washington Department of Ecology is poised to sue more than 5,400 water-right holders in Whatcom County, forcing them to defend their water rights in a court case that farmers say could be disastrous for agriculture.
Supported by two tribes, Ecology has asked for money from the Legislature to file the suit next year. Only a judge has the power to sort out complex and competing claims for water in the Nooksack River Basin, according to Ecology.
Ecology anticipates the case, called an adjudication, will take more than 15 years. In the meantime, farmers won’t know where they stand, Whatcom Family Farmers executive director Fred Likkel said Monday.
“How do you expect farmers to plan for the future when they may or may not have water?” he asked. “We have a lot of pressure on our land for development. This is going to drastically accelerate that pressure.”
A Yakima County court recently completed an inventory of about 2,300 surface water rights in the Yakima River Basin. The case, Ecology v. Acquavella, took more than 40 years to finish.
With that case behind it, Ecology has proposed adjudicating surface water and groundwater rights in Whatcom County. Besides water-right holders, a new suit could affect some 14,000 rural landowners who draw from a household well.
The Lummi Nation and Nooksack Indian Tribe petitioned Ecology to bring the suit. They have the oldest water rights in the basin, dating back to their 1855 treaties with the federal government, but the rights haven’t been quantified.
Lummi Indian Business Council chairman Lawrence Solomon wrote in a position statement this year that a court action would be a transparent way to prioritize water rights.
Talks with other water users have been mostly unsuccessful, he wrote. “Now, more than ever, it is imperative that we settle our disputes and protect what remains.”
Ecology agrees that the time is ripe. Fish runs in the basin are declining, and climate change will make it worse, according to the agency. The county averages 42 inches of rain a year, but unlike the Yakima Basin, there are no reservoirs to store the water for dry summer months.
At the peak of the irrigation season, the Nooksack River often falls below minimum stream flows that Ecology set in 1985 to protect fish. Strictly enforcing the flows could mean curtailing even senior water rights.
The lawsuit also could shut off farmers who have been irrigating with groundwater for decades. In drilling the wells, most were unaware that they needed a water right, according to farm groups.
Ecology promised in the 1980s that if the farmers applied for a permit they could continue to irrigate. More than 300 farmers applied, but three decades later the applications are still on file.
As a result, the county has a checkerboard of fields with and without water rights. In all, the farmer-organized Whatcom Ag Water Board estimates a court review would jeopardize, for one reason or another, at least half the water now used for agriculture.
Environmental groups have joined the tribes in supporting Ecology’s plan to sue. Farm groups advocate continuing to negotiate water uses out of court, a position shared by the county’s biggest city, Bellingham.
By a wide margin, Whatcom County is Western Washington’s No. 1 county in the value of farm goods produced and has 40,000 acres of irrigated farmland.
Farm groups warn that a lawsuit will cause water-right holders to “lawyer up” and stop collaborating on conserving water for fish.
A court action also will prevent a broader consideration of the value of using water for agriculture, Likkel said. “Adjudication is not going to be helpful in that discussion.”
Ecology has requested $1 million over two years to pursue litigation. The agency also proposes to catalog the rights of more than 800 water users who draw from Lake Roosevelt and tributaries in Eastern Washington.
