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Ecology defends Whatcom County water rights adjudication

Nooksack River as viewed from the east bank north of Main Street (June 4, 2018). Photo: Whatcom News

(The Center Square)The Washington State Department of Ecology is pushing back against claims by a local farming group and others that it is pursuing adjudication of water rights in the Nooksack River Basin at the expense of collaboration and negotiated settlements.

In an op-ed last month, Dillon Honcoop, communications director for Save Family Farming, claimed internal emails show Ecology working behind the scenes over the last few years to block community collaboration on addressing water issues in Whatcom County in northern Washington.

Others seem to think so as well. A June 17 letter from the Ag Water Board of Whatcom County to the Ecology expressed dismay at what the letter characterizes as Ecology’s efforts to hinder a negotiated settlement by focusing on water rights litigation.

“…[I]t appears that Ecology is already committed to litigation, rather than providing leadership toward collaboration and meaningful solutions,” the Ag Water Board wrote regarding Ecology’s plan to move ahead with the adjudication process that many farmers and other stakeholders regard as a counterproductive process that will eat up time and money in the courtroom.

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According to Ecology, adjudication is “a process that brings all users in a watershed into one big court process that leads to full and fair water management by confirming legal rights to use water. The process legally and permanently determines everyone’s water rights in that area. It creates certainty around water use and helps secure water for future use.”

Similar concerns about adjudication were expressed in a June 14 letter to Ecology by the Northern Whatcom County Small City Caucus.

“We are aware of your meetings with tribal leadership in regard to Ecology’s proposal to fund pre-adjudication work,” the caucus wrote. “It is clear that Ecology staff promoted the benefits of adjudication, and minimized potential pitfalls.”

The letter – signed by the mayors of Blaine, Everson, Lynden, Nooksack, and Sumas – goes on to say, “Staff also stated publicly that the litigation could be concluded in a short timeframe and with relatively minimal expense, but privately recognized that complicating factors could greatly increase the time and cost of litigation.”

Jimmy Norris, communications manager at Ecology, took exception to the negative portrayal of adjudication.

“Ecology is pursuing a comprehensive adjudication of water rights in the Nooksack Watershed to establish a clear legal pathway to resolve decades of water rights uncertainties,” he said in a lengthy email in response to questions from The Center Square.

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Adjudication is necessary, Norris said, to end confusion about water rights in the region by determining who among the estimated 5,400 claimants have the right to use the Nooksack River Basin’s water, as well as how much and when.

“Ecology’s goal is to achieve clarity and certainty of who owns the legal right to use water,” he said. “In the Nooksack Basin, uncertainties include unqualified claims, tribal senior rights, and the extend and validity of current water rights. The legal status of water rights has reached untenable levels of complexity in the Nooksack Watershed that cause basic water rights permitting and compliance activities to be extraordinarily challenging.”

Ecology has been transparent about preparing for adjudication, Norris noted.

“We have hosted and participated in multiple public events over the last two years where we discussed the need for and benefits of adjudication, including an online event which was open to members of the public,” Norris said.

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The intent is to file for adjudication in court in June 2023, he said, adding, “We are currently in the preparation phase.”

Adjudication is not something Ecology does on a whim.

“Adjudication is a big investment of time and resources,” he said. “Ecology does not recommend it lightly. Water management without adjudication has consumed decades of expense and effort without reaching any conclusions. Investment in a comprehensive adjudication ultimately can save water users and the state years of controversy, uncertainty, and costs.”

Norris concluded, “It makes sense for taxpayers when Ecology uses this established public process instead of engaging in expensive and time-consuming individual lawsuits about legal rights to use water.”

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Honcoop said many such settlements outside of the adjudication process had been reached in other basins in Washington.

“The nearest example is in Eastern Washington with the Yakima Basin Integrated Plan reached through a collaborative process after decades of legal wrangling over a court-led adjudication process like Ecology wants for the Nooksack failed to achieve results… once the parties came together and collaborated on a settlement, that agreement was brought to the courts to formalize,” he said in an email to The Center Square.

Norris disagreed.

“The Yakima Basin Integrated Plan (YBIP) is not an example of successful agreements made outside of adjudication,” he said. “In actuality, YBIP would not be possible without the clarity that resulted from the Yakima Basin/Aquavella adjudication.”

Norris pointed out that, in 2019, the state Legislature directed Ecology to assess watersheds that would benefit the most from a water rights adjudication process.

“The resulting report to the Legislature identified the Nooksack watershed as a high priority for adjudication,” he said.

In 2021, the Legislature appropriated $1 million for the state to conduct a two-year study – which began on July 1 of that year – compiling all water uses and rights claims to water in the Nooksack River Basin, as well as $250,000 to Whatcom County to conduct a parallel stakeholder process known as the Solutions Table to develop and implement water management solutions addressing floods, drought and other challenges faced by the Nooksack watershed in recent years.

Adjudication and collaboration don’t have to be enemies, according to Norris.

“Solutions to address competing demands for water – for fish, for farming, for people – are stymied by the lack of a complete inventory and formal court determination of all the rights to use water under Washington’s laws,” he said. “We are seeking water supply solutions and pursuing the process to achieve clarity on the rights to use water.”

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