The summer decline of a creek in the Nooksack River North Fork drainage to a mere trickle is an indicator of the pressure upon the whole river system. (Courtesy photo/Brett Baunton)

State Ecology recommends court process; farmers say they are fish allies  

WHATCOM ­— The Nooksack River watershed is one of two areas recommended by the state Department of Ecology for adjudication of water rights, a court process likely taking several years to play out.

The recommendation of the Nooksack River system, along with an area around Lake Roosevelt in eastern Washington, now goes to the governor and state Legislature for consideration.

In general, farmers have been opposed to the adjudication step while tribes have been in favor. 

Ecology announced its expected stance last week. 

“As the state agency responsible for managing water resources for Washington, we strive to ensure that there is enough water for people, farms and fish. It’s easy to say this, but the problem is more complicated. Washington has a history of water laws that date back more than 100 years,” Ecology said in an explanatory blog.

Calling adjudication one tool available, the agency said it can lead to “full and fair water management by finalizing legal rights to use water. The process brings all water users in a specific area into one conversation to legally and permanently determine everyone’s water rights.”

But Whatcom Family Farmers sounded an alarm already on Sept. 2 in a half-page ad headlined “Please tell Gov. Inslee to stop WA Ecology Dept. from harming fish and local family farming.”

The agricultural voice has insisted that farming and fishing interests need to work in tandem out of concern for the water resource versus the pressures of urbanization bringing “pavement and pollution.”

In Whatcom County in January 2017, a group of dairy farmers committed with Lummi tribal leaders to be in conversation rather than in litigation.

The Family Farmers statement now is that “farms are salmon’s ally against rapid urbanization” and also this: “Negotiations between various groups concerned about fish, farms and a growing community are ongoing. So are efforts to protect and restore salmon, many led by farmers.”

Adjudication will halt such collaboration and “force neighbors to become adversaries,” Farmers say.

This is more of what Ecology said of its recommendation: 

  •    In 2019 the Legislature asked the agency to identify areas of highest priority for adjudication. The past year has been spent in compiling water rights records, reviewing requests and petitions, and meeting with tribes, local governments and stakeholders about their water challenges.
  •    The Nooksack provides critical habitat for many species, including Chinook salmon, food for Salish Sea orcas.
  •    It’s proven difficult to regulate water use in the Nooksack watershed. Water users, including tribes, all face uncertainty about their own legal rights and vulnerability to each other’s potential claims. Many water users rely on very old water rights that have not been evaluated or verified.
  •    When there is not enough water for all uses, Washington follows the doctrine of prior appropriation. This means that the first users have rights senior to those issued later, or “first-in-time, first-in-right.” If a water shortage occurs, senior (older) rights are satisfied first and the junior (newer) right holders can be restricted.

But Ecology on its own cannot enforce the law. A Washington Superior Court must be involved in a watershed-wide evaluation.

It’s exactly the stacking of water rights that makes farmers concerned. They fear that they — as well as fish — will lose out.

Some farm use of water is without legal rights, and applying for water rights with Ecology, or even changes in water rights, has been a tangle for many years.

The fate of fish and farms hangs together — that’s the gist of  a new website named fishneedfarms.org from the statewide Family Farmers alliance. 

“Research shows that salmon are doing much better in areas where farming can serve as a buffer from urban pollution sources and make habitat restoration possible” is a statement on the opening webpage. “Our community needs to band together to preserve both our salmon and farming.”

Bellingham-based environmental advocacy group RE Sources said Monday it supports the adjudication legal review for the Nooksack River watershed.