Nooksack Watershed Adjudication Update

As you may recall from my prior blog posts, the Washington State Department of Ecology (“Ecology”) recommended adjudication of the Nooksack River watershed (also called WRIA 1) in September 2020 and received funding for the adjudication in the 2021-2023 biannual budget. More information is available at Ecology’s WRIA 1 adjudication website. Pending further funding, the adjudication of WRIA 1 is on track to begin as early as Fall 2023.

Adjudication is a formal court process to determine the priority date and quantity of each water right in a given area. No individual owns water in Washington State; all water is publicly owned. Water may only be legally withdrawn pursuant to a water right permit or certificate, claim, or exempt withdrawal. Washington is a prior appropriations state, which means that older water rights are entitled to be fulfilled before junior rights can begin to draw water. In theory, this simple system should ensure that everyone with a right to water actually gets their water. In practice, it can be difficult to tell which water rights are impacting which other rights, which are being used to their full extent, and who may be withdrawing water without a permit. This is especially true in WRIA 1, where, since the 1800s, over 1,600 water rights certificates, over 4,000 claims, and likely thousands of exempt wells have been developed, and the Nooksack River watershed struggles to meet needs of cities, agricultural users, tribes, salmon, and individuals.

Ecology hopes that adjudication will result in a schedule listing every water right certificate, permit, application, claim and exempt withdrawal, along with that right’s instantaneous and annual quantities, priority date, place of use, and place of withdrawal. The goal is to bring certainty to cities, farms, special purpose districts, industrial users, and individual homeowners. It may even permit water users to trade or lease rights amongst themselves so that water can be used by those who most need it.

Provided it receives the necessary funding in the 2023-2035 biannual budget, Ecology is poised to file the complaint to adjudicate all of WRIA 1 in Whatcom County Superior Court in Fall 2023. Ecology must serve all water rights holders, including individuals with exempt wells, in WRIA 1 with notice of the lawsuit. Water rights holders will then file a claim with Ecology detailing their water use (note that this “claim” is a different claim than a water right claim you might already hold). Ecology intends to provide multiple ways to file the required claim, including online, in person, by phone, and by paper. Throughout the course of the adjudication, the claims will be subject to further investigation and evaluation, and Ecology will argue to the court what it believes to be the extent and priority date of each water right. It hopes that it can agree with most water rights holders such that extensive litigation is not necessary, but acknowledges that some claims may require exactly that.

Ecology plans to offer an expedited, simplified process to owners of exempt wells supporting homes, who are possibly the most numerous group of water users in WRIA 1. Likely, these water users will need to provide less evidence of their use and will be granted water rights for set quantities, with a minimum quantity equal to at least as many gallons per day as the Department of Health requires for single family homes.

If you think that sounds confusing, you’re not alone. Recently, State Representative Joe Timmons of the 42^nd District, working in conjunction with some holders of large water rights in WRIA 1, introduced HB 1792 to streamline and clarify the adjudication process, and importantly, give water rights holders more time to respond. We will be watching the progress of this bill closely.

In the meantime, if you have general questions about the WRIA 1 adjudication, you can contact the Department of Ecology at the contact information on their website. If you’re concerned about your use or the validity of your water rights, we recommend contacting an attorney experienced in Washington water law.