The adjudication of a river basin’s water rights is the legal equivalent of kidney stones. Only after the requisite amount of suffering can the water flow again.
Farmers and others in Whatcom County, Wash., will soon have that experience, and few of them are looking forward to it.
The Washington Department of Ecology will get the festivities underway in 2023 by filing a lawsuit in which water users will be required to substantiate their claims to water in the Nooksack River Basin.
The Lummi Nation and Nooksack Tribe asked the department for the adjudication to sort out who has rights to surface and ground water in the basin. About 40,000 acres of farmland are irrigated in the county, which is tucked in the northwest corner of the state.
Anyone with a claim to water will have to justify it before a judge.
This will take a while. A simpler adjudication in the Yakima River Basin took more than 40 years. In Whatcom County, 5,400 people have water rights in the Nooksack Basin, and as many as 14,000 have wells. The judge will consider both because the aquifer and the river are connected.
Further complicating the picture are the tribes’ treaty rights, Ecology’s requirement for minimum stream flows for fish and unkept promises the department made to farmers in years past. Based on a past court decision, the tribes figure they might be entitled to half of all the water.
The adjudication will certainly be a boon to many professions. Farmers are hiring lawyers, hydrologists and others to help them protect or substantiate water rights, some of which date back a century or more.
The stakes are high. Whatcom County farmers produced $372.8 million in goods, according to the most recent USDA Census of Agriculture. Factor in agriculture’s overall impact and the adjudication could make or break the county’s economic back. No water means no farms.
The county is unique in one regard. It gets more than 40 inches of rain a year yet still doesn’t have enough water. That’s because most of the rain falls in the winter. Most of the need for water — for irrigation, watering livestock, fish passage and other purposes — is in the summer, when it is generally much drier.
Farmers in the region see a lack of flexibility on the part of the state’s water laws as another problem. The “use it or lose it” law means that no matter how much they need during any given year they must use their entire water right or possibly lose access to it. Legislators would do well to take a look at such outdated and counter-productive laws.
Farmers in the region well know the need for adequate stream flows. In the past, they have even pumped well water into streams during the dry late summer to boost the flow and aid fish returning to spawn. One wonders whether such good deeds will be recognized in the adjudication.
Above all else, the judge will likely discover that sorting out water rights is only a piece of the puzzle of how to provide adequate water supplies to the many competing interests in the Nooksack Basin.