WHATCOM COUNTY, Wash. — A group of small city mayors authored a letter to the Washington State Department of Ecology dated June 14th to protest what they saw was Ecology’s interference in a process referred to as “The Solutions Table” while encouraging local tribe leadership to use their absence in the process to force entering into water rights adjudication.
The Solutions Table is made up of stakeholders and technical experts to develop and implement water management solutions addressing floods, drought and other Nooksack watershed-related problems that have damaged Whatcom County communities in recent years.
According to the mayors’ letter, “The April 28th meeting dashed many of those hopes. Tribal leadership refused to join the Solutions Table process, preferring to wait until an adjudication is filed, and then noted the need for consensus in the process to move forward.”
Water rights adjudication forces all water rights holders in a watershed into one lawsuit filed by Ecology to legally and permanently defend their water rights. The 2021 Washington legislative session approved a collaborative effort for the Nooksack basin instead of jumping directly into adjudication, something opposed by Ecology.
The Nooksack Tribal Council mailed a letter signed by Council Chair RoseMary LaClair to the mayors in response to their letter to Ecology. Tribe Spokesperson Abby Yates told Whatcom News the letter was sent on June 21st.
The letter (provided in its entirety below) detailed the Nooksack Tribe’s support for and long-time participation in the water resources inventory areas 1 (WRIA-1) Watershed Management Board and other efforts to avoid flood damage to people, property and salmon. “Nooksack Tribe does not oppose the Solutions Table, we simply do not have the staff capacity of additional meetings at this time.”
The letter also noted the tribe’s support for entering in water rights adjudication. “Without water rights certainty, we cannot collectively move forward with many instream and out-of-stream water supply solutions, such as water rights transfers or sales or water banking.”
The letter closed by pointing out how the mayors’ letter was about the tribes, yet the tribes were not provided courtesy copies. Going forward, the mayors are encouraged reach out to the tribe with future concerns, noting, “Ecology does not speak for the Nooksack Tribe.”
June 16, 2022
Flood Control Planning and Water Rights Adjudication
Dear Mayors Steward, Perry, Korthuis, Hester, and Bosch,
I write on behalf of the Nooksack Indian Tribe to state our strong support of flooding solutions, to share with you our long history of working to avoid damage to people, farms, and salmon from floods, and to clarify what the adjudication is and is not.
A long history of work to resolve flood problems
The Nooksack Tribe has been fully engaged in finding ways to prevent flooding for decades. Our tribal members live and work in Whatcom County just like your constituents and are just as concerned about the effects of flooding on their homes and businesses. Attached is our 2004 letter proposing a solution to reducing flooding in the Everson overflow. Our scientists have stated that if people had acted 17 years ago, when we proposed this solution to the broader community, the impacts from the recent flooding would likely have been reduced.
We are working hard to move past adversarial relationships on flood management to collaboratively seek solutions for flooding, while protecting the Tribe’s Treaty-reserved rights. The Nooksack Tribe has been the strongest local partner working with the County on floodplain planning in the Nooksack River. We have provided technical support for all of the recent underlying studies of the river, we have provided cultural resources review for the planning effort, and have actively participated in the FLIP Steering Committee for the update of the Comprehensive Flood Hazard Management Plan. We also supported expanding the FLIP Steering Committee to include a representative for the Everson Overflow small cities and to add a representative from Ferndale. We only asked that the representatives the broader integration mission of FLIP.
We have also provided habitat assessment and monitoring for the early action flood projects, such as the Cougar Creek floodgate project, and have written letters of support for all of the County’s Floodplains by Design proposals. We have a small Natural Resources Department, but have committed substantial staff time to an integrated planning process to address flood impacts on the Nooksack River. We have no dedicated funding to support this work, but feel strongly that we need to actively participate in finding solutions.
This year the design charette for the Nooksack basin generated solid ideas and so today we ask you to join with us in moving the good, supportable ideas forward. Let’s not look back in 17 years and wish we had done more or thought more carefully about the value of long-term solutions over short term fixes. Let’s look forward and act in the best interest of the community. Our goal is to reduce flooding, while not harming salmon habitat or farmland.
These good ideas may not be quick, but like our suggestion in 2004, they reduce harm long-term. We are concerned that short-term solutions, such as a side channel near Everson, won’t find needed support if they harm salmon habitat or lead to increased flooding downstream at Ferndale. The Nooksack Tribe looks for long term for solutions that help everyone in Whatcom County, that do not put anyone in harm’s way, and that do not harm salmon or farmland.
Will you join with us in supporting good ideas and then the subsequent projects to resolve flooding?
Adjudication is separate from flooding
Water rights and flooding are two very separate issues, and flooding and flood planning are not part of the local collaborative work funded in 2021. We refer you to the 2021 enabling budget proviso that said:
$125,000 of the general fund-state appropriation for fiscal year 2022 and $125,000 of the general fund-state appropriation for fiscal year 2023 are provided solely for Whatcom county to support a collaborative process among local water users and water right holders that can complement water rights adjudication in the Nooksack (water resources inventory areas 1) watershed. Funding is provided for facilitation and mediation among parties, development of planning and technical information, and assessment of local solutions. At a minimum, the collaborative process must seek to provide opportunities for discussion of increasing salmon populations and preserving farmland.
This was passed in 2021, over 8 months before the devastating floods. As you can see in the language above, the legislature’s intent was to support planning and development of solutions for insufficient water supply, not flooding. It’s also important to and we have bolded this section, that this money is to complement the adjudication.
We would also like to clarify, as we reiterated at the April 2022 Watershed Management Board meeting, Nooksack Tribe does not oppose the Solutions Table, we simply do not have the staff capacity for additional meetings at this time. Our limited staff do a great deal to protect and recover treaty resources, and current efforts are focused on supporting floodplain management planning, salmon recovery, watershed management, and preparing for adjudication. In particular, significant technical time this year has been devoted to helping the community create and implement a plan to reduce flood impacts to people and to your towns and we urge you to join us in seeing that those plans are implemented at the needed scale, and in a timely manner. Nooksack staff spend this time to provide long-term help to many of your constituents, and to your towns, rather than the Nooksack people, because we believe this is the right thing to do for the broader community.
Water rights are property rights
Water rights are property rights; for too long now some in the basin have used water they don’t have a right to use. With a changing climate, we urgently need to find solutions to water.
We hear your concern regarding litigation. The solution for that is easy: we move into adjudication together. The lessons from the Yakima are clear: the adjudication confirmed water rights, allowing them to be traded or sold and helped to attract funding available for larger water projects. Adjudication is needed in the Nooksack to confirm who holds rights to water, how much they have the right to, and what the priority date is. Without water rights certainty, we cannot collectively move forward with many instream and out-of-stream water supply solutions, such as water rights transfers or sales or water banking. Whether it’s televisions or water, you cannot sell or store that which you cannot prove
that you own.
Lessons from the Yakima basin
“Because of the way water law evolved in Washington. it’s imperative that adjudications are used to establish the lawful demand on a water source. Having an inventory of water rights is critical to allow regulation, facilitate issuance of new rights, and encourage investment in projects to address water-short basins. Without it, we’re all just playing in the dark.”
— Sid Ottem, former Yakima Superior Court Commissioner for the Yakima adjudication.
In late 2020, attendees at the WRIA 1 Watershed Management Board meeting heard from Commissioner Ottem as he shared with us that the best approach is not to sue. There were local settlements in Yakima that came about BECAUSE OF the adjudication, and after claims were filed, not instead of it. Without the adjudication, there would have been no settlements, and no ability to pursue the larger water projects the small cities and others have discussed. Without legal water rights, you will not get the federal grants needed to store that water in meaningful quantities.
Commissioner Ottem also urged us to not use our money to fight, but to resolve water rights and find solutions. We urge you to join us in finding solutions and seeking to recover salmon in Whatcom County. Delay means extinction of salmon.
Another lesson from Yakima is the expansion of agriculture during the adjudication. Irrigated farmland increased, land in farming increased, the market value of agricultural products increased. Water rights are property rights, and farms elsewhere have benefitted when they have a secure right to use water.
In Whatcom, we should consider those lessons and see the value of leaning into a speedy adjudication so that farming and fishing and communities can benefit. We anticipate that the solutions will be at hand in short order after the courts file claims. Will you join us in supporting the adjudication and completing this quickly and with the community in mind, so that we can then work together on solutions? Here and elsewhere, adjudication comes first.
Water rights adjudication, early settlement, and RCW 90.03645
You reference the adjudication statute in your letter and it says this: “The legislature finds that early settlement of contested claims is needed for a fair and efficient adjudication of water rights. Therefore, the department and other parties should identify opportunities for settlement following the date set by the court for filing evidence for all parties.” We do look forward to identifying opportunities once the adjudication is filed. As the history and the plain language of the state say, adjudication comes first.
Lastly, communication between neighbors
Your letter to the State Department of Ecology was about tribes and you wrote, ‘this can only succeed with direct communications at the local level”, yet you did not even give the Nooksack Tribe the courtesy of copying us in a letter about us. We are your neighbors. We too were impacted by flooding and are directly damaged by the loss of salmon from the Nooksack. You have said you want to work with us and so we ask that you communicate with us, directly. Your letter about us was forwarded to us from others. We also were not copied on a March 30, 2022 letter from Mayors Perry, Heston, Bosch and Korthuis to County Executive Sithu and Whatcom County Council, that included a request to pursue emergency sediment management activities within the Nooksack River to minimize flood impacts. Although these activities can be highly damaging to our Treaty fisheries resources, we only received a copy from a third party.
Ecology does not speak for the Nooksack Tribe. As you know, the Nooksack Tribe is one of the founding partners in the WRIA-I Watershed Management Board. We have participated fully in that process for its entire existence. We have demonstrated our good faith time and time again. We are always willing and eager to talk to anyone who is interested in solutions to Whatcom County’s water issues. Please reach out to us if you have concerns.
RoseMary LaClair, Chair
Nooksack Tribal Council
cc: Hon. Laura Watson, Director, Washington Department of Ecology
Hon. William Jones, Chair, Lummi Indian Business Council