WHATCOM COUNTY, WA (MyBellinghamNow.com) – Water is a fundamental component of all life on earth and the source of livelihood for many in our community. We all, of course, need water to sustain our bodies.

Agriculture, fishing and recreation are just a few of the industries that rely on a steady supply of water to function and fuel our regional economy. And while we usually enjoy abundant rainfall and heavy snow in the Cascades, water is a limited resource that can become strained. Who has “dibs” on the water in our rivers, streams and aquifers? How were those rights established? Are some using water they are not entitled to? These are just a few of the questions that the state’s water adjudication process is designed to answer; that process is what we hope to bring light to with this multi-part series called “Adjudi-what?!”.

What is adjudication?

While we intend to bring many voices to this series on water adjudication, we begin with the state agency that’s running the show – the Washington Department of Ecology. The agency defines adjudication as a process that “legally determines whether each water right on a source is legal, how much water can be used and its priority during shortages.”

Adjudication manager Robin McPherson says the characterization of it as a huge lawsuit is correct. She says the Dept. of Ecology is the plaintiff and some 30,000 water users including individuals, tribes, companies, municipalities, the state and even the federal government are the defendants. The agency has mailed postcards to all water users in the affected area that detail information and resources to help them begin to prepare. Once a start date has been set, water users will receive a certified letter containing a summons, claim form and instructions. Users will have one year to fill out and return the claim form. All residents and entities who use surface or groundwater directly will need to file a claim form. Those who only use water from a city or other public source will not have to file.

Postcards, like this one, have been sent out to homeowners around Whatcom County as a reminder that this adjudication process is on the way.

As defendants, will water users need legal representation?

McPherson says the Dept. of Ecology and the Whatcom County Superior Court, which is where adjudication claims will be decided, are working to make the process as simple as possible so most do not need a lawyer. People do still have the option to choose to have representation.

Why is adjudication being done here, and now? 

McPherson says water use in the Nooksack Basin has been in dispute for many years. She says local groups and leaders have tried to resolve those disputes stating, “[but] even with many sophisticated people working together over the years, no solution has been reached.” Adjudication is aimed at settling those disputes and avoiding more in the future.

The Dept. of Ecology is responsible for managing state waters and in 2019, state lawmakers tasked the agency with finding where water management needed improvement. At the same time, the Nooksack Tribe and Lummi Nation formally petitioned the Dept. of Ecology for an adjudication of the region’s water rights.

Washington water law’s “first-in-time, first-in-right” appropriation framework establishes water right seniority based on when a water right application was first filed, or when a water resource was first put to an entity’s beneficial use. That establishes the tribes’ water rights as the most senior.

Does every water user need a formal water right?

The simple answer is no.

Large water users such as municipalities, water districts, industries and farms must have a water right. Those who take water from a surface source must also have a water right.

Small water users such as a single home, small housing development, small industry or a livestock watering operation are classified as “permit-exempt” and do not require a proper water right. They are generally limited to using no more than 5000 gallons of water per day and irrigating no more than a garden coming in at ½ acre in size. Under adjudication, these water users will be required to fill out a claim form so water use in the region can be inventoried.

Could some water users lose their access to water under adjudication?

McPherson says it’s expected that only those who are using water that are not entitled to use under their established water right or those who are using more water than they are allotted to would face this possibility.

Will agriculture be adversely affected?

McPherson says they understand the important role that agriculture plays in food production, the economy and in protecting the environment. But she maintains that there have been inconsistencies, with some farms working to understand their water rights and following the law while others are out of compliance.

She says some of that non-compliance may be unintentional.

“They might have a very old water right, and it’s not clear whether it is still valid. They might have purchased the property understanding something different than they find out under the law,” McPherson said.

She also says it is currently very difficult for farmers to get definitive information about their legal water use from a single source. That’s another issue adjudication is aimed at fixing.

And while she says this process will likely change water availability for some users, it will also allow flexibility. That could include shared or leased water from one right holder to another or the establishment of water banks.

Will it affect property rights?

McPherson points out that property values can be and are affected by many different variables, with water availability being one of them. She points out that permit-exempt properties shouldn’t be affected by adjudication as they shouldn’t lose the access to water they now have. Some properties may be negatively impacted if they are found to lack a water right that was assumed before adjudication.

She does also point out that this process is being done regionally and property values within the region will follow a general trend.

As for property sales during adjudication, McPherson says sellers will have to notify buyers of the process and buyers will have to be aware of any forms related to the property that need to be filled out. She says that the Dept. of Ecology will have more information to help guide buyers, sellers and agents through this process.

How long will adjudication take? 

“Adjudication will take a number of years,” McPherson admits. She says the state’s last adjudication in the Yakima River Basin took just over 40 years before it was certified. She says legal disputes stretched that process out and they now know they can avoid many of those this time around. Part of that is because the Lummi Nation and the Nooksack Tribe have requested this, and the Dept. of Ecology doesn’t expect disputes with the federal government to arise. She adds that current technology should also help speed the process.

McPherson mentioned that some property owners may see their water rights established earlier in the process than others, but that’s difficult to predict at this point.

Should people fear this process? 

McPherson says information is key to understanding, and hence not fearing, this process. She offers the Dept. of Ecology’s website as a resource for property owners and says they’ll continue outreach to the community.

 

MyBellinghamNow will continue to do our own outreach and research by talking with those who will be directly impacted, those who have been involved in this process before and others who will be helping people navigate through it.