WHATCOM COUNTY, WA (MyBellinghamNow.com) – Over 30,000 Whatcom County residents are gathering their documents and finding lawyers ahead of their day in court for the Nooksack Water Basin adjudication. The Washington State Department of Ecology formally filed the adjudication in early May 2024, and Whatcom County Superior Court appointed a temporary judge to oversee the process as it unfolds.

We covered the fundamentals of water rights adjudication in Part 1 of our Adjudi-what?! series. People who receive their water through a municipal service, such as City of Bellingham residents, are not among those who need to file a claim or get ready for a court date. That’s where local leaders get involved.

Municipal Water Services

“We’ve worked with our water rights consultants and our water attorney to prepare for this process,” said Ferndale Mayor Greg Hansen. “The City of Ferndale hasn’t had its day in court yet. But we will, eventually, to defend our water rights for our municipal water system.”

Ferndale’s municipal water supply provides water services for over 16,000 people. Mayor Hansen adds that the city went through a similar process in 2020 to pull water from a new source.

“In order to actually legally pull that water, we had to obtain rights for that water. We already had consultants and an attorney working with us. So we re-tasked them with helping us through this water adjudication.”

Hansen added that while he’s confident that not much will change in terms of his city’s municipal water operations, he’s acutely aware of the challenges that people outside the city limits could face when they draw water from the same source. Noting that, he said he wouldn’t be surprised if the city did lose some of their water rights.

“We actually have more water rights than we actually use. We have a bit of a flush fund, if you will. So we could stand to lose some of our water rights and still be able to provide water for the entire community today and for the foreseeable future.”

Ferndale city residents can breathe a sigh of relief, though the air is tense for some beyond the city limits.

Water use on Whatcom County farms

The USDA’s 2022 Census of Agriculture states that Whatcom County has just over 1500 farms spanning over 102,000 acres. Roughly 33% of those acres are irrigated land. Water adjudication, in the eyes of many farmers, threatens to upend their livelihoods if their rights are limited or rescinded.

“Most of the farmers have seen this coming for months, even years,” said David Lukins, a 2nd-generation owner of Grace Harbor Farms in Custer and Misty Meadows Organics in Everson. “We use a ton of water. A big concern for us is if they limit water usage, it’ll likely be tied to some sort of fee. What will that fee be? And will everyone’s food prices go up because of it?”

As a dairy farmer, Lukins is among a lucrative agricultural subsection both at the state and national levels. The USDA Census from 2022 reports that Whatcom County is the second highest dairy producer in the state and 50th in the United States for dairy production. But those accolades essentially mean nothing in terms of seniority or leeway in the adjudication process. Lukins even argues the odds are stacked against businesses like his.

“In the dairy industry, we’ve seen Ecology be really hard to work with dairy farms and manure management. It’s unfortunate to say that Ecology has kind of become the enemy of the farmers, but I think that there’s a lot of truth to that statement.”

Lukins has prepared a backup plan should his water operations be compromised. Installing a glycol chilling system would help his dairy operation save water in the long run, but it would be an expensive and massive undertaking. Lukins believes that project could cost anywhere from $70,000 – $100,000, likely impacting consumer prices.

“If you enjoy eating, then I think that Ecology needs to understand that there are certain priorities out there. Food is one of them.”

His organic egg farm in Everson adds to the complexity of water rights. Roughly 32 farms are certified organic in Whatcom County, including Lukins’ Misty Meadows operation. Most of the water usage at Misty Meadows spikes in the summer for both irrigation and chicken hydration. But unlike Grace Harbor Farms, Misty Meadows gets their water through a water association. Lukins said that he spoke with some people who are part of other water associations that initially believed they wouldn’t be among those needing to file a claim. Some of them learned that they would have to join the adjudication process anyway, despite their relationship to an association.

Water associations, wells, and water systems

The Dept. of Ecology has a section on their website dedicated to the rights adjudication process for group wells and water associations. On it, they say that claim notices should be submitted by the “representative on file” for each group or association. Still, that hasn’t prevented postcards from reaching the mailboxes of private water association residences.

“Our phones started blowing up when those went out to every property owner in Whatcom County,” said Dave Olson of Water System Services, Inc. in Lynden. “But they were pretty clear that if you get water from a city or association, that there’s nothing an individual owner has to do if they don’t have a well on their property.”

Olson’s company works with about 80 different water systems, which are broken up across 4 different categories. Those range from single-family wells to water systems that serve hundreds of people at small businesses and churches. Rules for each type of water system varies on its amount of use. And the years in which some of the water systems were established vary greatly- which could lead to issues down the road.

“Let’s say I dotted my i’s and crossed my t’s and I’ve done everything by the book, and adjudication determines that our priority is far enough down the list that the available water is not enough to meet my priority,” said Olson. “You have to ask yourself the simple question: does that mean some level of government is going to tell us to turn off our water? That’s likely not going to happen.”

He also didn’t rule out the possibility that in any outcome of the adjudication process, the price of running water could be higher for property owners. And that itself runs a more serious risk, according to Olson.

“If somebody dug a hole, does not have a water right, and has been really flying under the radar, I would be more concerned in that regard that we haven’t gone through the proper process.”

As for the process of adjudication itself, not much has been needed in terms of action so far. Claim forms will be sent out later in 2024, with a one-year deadline to fill out and submit them. Olson acknowledged that the water rights process will not be the same for everyone, especially single-family private well owners. He urged anyone involved in the process to be both patient and vigilant.

“We know firsthand there’s a lot of procedural questions that haven’t been answered yet. We’re sitting on the sidelines observing and paying close attention to everything, but there’s a lot of things that are going to be sorted out in the first 90 or so days that will answer a lot of these procedural questions.”

 

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.