Washington State Department of Ecology Recommends Adjudication for Water Rights in the Nooksack River Watershed

November 20th, 2020 - Catherine A. Moore

In a September 2020 report to the legislature, the Washington State Department of Ecology (“DOE”) recommended that water rights in the Nooksack River watershed (“WRIA 1”), along with rights in one other watershed, Lake Roosevelt and middle tributaries (WRIA 58), be formally adjudicated.

All water withdrawn in Washington State is withdrawn pursuant to a water right permit or certificate, claim, or exempt withdrawal. Adjudication is a basin- or watershed-wide court action to determine the extent of each individual water right held in that area. The goal is to clarify who owns which rights to withdraw water, from which point of withdrawal, and apply it to which purposes and places of use. The end result of adjudication should be that each individual water right or claim holder—with some possible exceptions—will be given a new adjudication certificate conclusively stating the priority date, instantaneous and annual quantities of water, withdrawal point, and place and purpose of use of the water right. In WRIA 1, it is anticipated that tribal rights will also be quantified through this process. Adjudication of WRIA 1 will impact all holders of water permits, rights or claims and commercial users of exempt wells in the watershed, including everyone from tribes and cities to small dairies and farmers. This process will take years or even decades.

Adjudication of WRIA 1 is not guaranteed at this point. The legislature must act on DOE’s recommendation and vote to fund the adjudication. There have also been efforts at the local level to demonstrate that Whatcom County does not require adjudication. However, if funding does not come through for adjudication in 2021, DOE may renew its recommendation and request funding in future years.

If you hold a water right, you can prepare for adjudication now by collecting information on your water rights, including documenting how much water you use and where it is being applied. You should also consider contacting an attorney experienced in water rights now. The attorney can help analyze potential weaknesses and strengths in your water rights before adjudication begins and strategize how to maximize the water you are awarded through adjudication.

Disclaimer: This article and blog are intended to inform the reader of general legal principles applicable to the subject area. They are not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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