Whatcom Water Worries
A new legal process in Whatcom County may have drastic effects on water use for large farms. Filing in court will be required to receive a water rights certificate from the Department of Ecology.
A fishing boat checking nets on the Nooksack River. // Will Story
Story by Charles Rasco
Photos by Will Story
May 25, 2023
Until now, water usage has not been quantified on a large scale in the Nooksack watershed. However, in July of 2021, the Department of Ecology approved the watershed for adjudication based on a 2020 report. Ecology will be thoroughly assessing water usage in Whatcom County and taking all water users to court to determine legal water rights.
The Lummi and Nooksack tribes have been requesting an adjudication from the State and Federal governments since 2011. This is an attempt to gain protection of federal reserved water rights to fish at usual and accustomed grounds, as recognized in the 1855 Treaty of Point Elliott. State administration of water rights currently violates tribal treaty provisions and threatens fishery resources, according to a letter from the Lummi Nation to the federal government.
Water adjudication is a legal process that quantifies current use of a water source to determine senior and junior water rights.
The adjudication will be assessed through the Doctrine of Prior Appropriation which allocates water based on first use, location and purpose of use. This means those who have used a water source the longest have senior rights, and newer users have junior rights. During times of low stream flows, junior water rights holders may have their supply reduced or cut off to accommodate senior water rights holders.
RE Sources, a Bellingham-based environmental advocacy group, supports water adjudication.
“The water rights adjudication was initiated by the Nooksack tribes and Lummi Nation,” said Alex Harris, the land and water policy manager at RE Sources. “The tribes asked for this, mainly to protect salmon populations and restore the Nooksack River.”
Projected for the late summer of 2023, all water rights holders will receive a request to file a claim for the water they use and provide an explanation for its use. Users of 500 gallons per day (GPD) or less will undertake a simpler process. This is generally for single well users in rural Whatcom County.
Those who use over 500 GPD will need to provide a detailed explanation of their water usage. People who use water as a customer of a separate legal entity like the Public Utility District or the City of Bellingham will not be affected.
“Under Ecology’s proposal, water users who have a single house on a well will have a simple process with their location and date of first use. Any bigger uses will need to submit their date of first use, highest use, current use, purpose and other historic information required by law,” said Robin McPherson, adjudications manager at Ecology. “Adjudicated certificates mean more opportunities for legal water mitigation, banking and coverage.”
A farmhouse peaks out from behind the trees across the Nooksack River on a hazy afternoon near Slater Road close to Ferndale, Wash. In late 2023, anyone with water rights in the area must file a form explaining their water use. // Will Story
Industrial agriculture uses a large majority of the Nooksack’s available water, according to a study done on the Nooksack watershed. Most of this water use goes to dairy and berry farms, which irrigate a combined 30,000 acres with groundwater and surface water.
The groups Ag Water Board and Whatcom Family Farmers (WFF) voiced opposition to the adjudication before approval, citing alternatives to water rights as a better path forward. WFF suggested funding a comprehensive and collaborative process as the best alternative in a letter to the Washington House Appropriations Committee and the Ways and Means Committee.
“We have determined a quarter to a third of total [agriculture] water to be at risk,” said Henry Bierlink, the administrator at Ag Water Board. “We believe that if it plays [out] in the negative manner that seems likely, we will lose our agricultural base in the near future.”
Large water usages will draw industrial farms into court, leaving them to hire lawyers or legal assistants if they are not granted water rights as preferred. If a farm does not attain preferred water rights, farm productivity or land values may drop. A weakened farm economy may increase urban sprawl growth in the Nooksack watershed.
Urban sprawl is when development is spread over a large area of land which can result in inefficient energy use, pollution and a lack of affordable housing, according to the Organization for Economic Co-operation and Development.
Rows of corn flank either side of a harvested field near Imhoff Road in Ferndale, Wash. Farms throughout Whatcom County rely on Nooksack water for crop irrigation. // Will Story
Rural water users who use less than 500 GPD from groundwater will partake in the simplified legal process, but rural stakeholders who use larger amounts of water will have to undertake a more thorough judicial process to determine their legal water rights.
“There is potential for the adjudication to yield a collaborative, innovative result that benefits all parties. No one is going to get 100% of what they want, but everyone will leave with a chunk of what they need,” Harris said.
Recent changes to water adjudication in Washington include House Bill 1792. This bill gives water users up to a year to claim for water rights as opposed to the shorter term deadlines that are common in court processes. After initial filing, water users have three years to gather evidence of their usage.
Water users may choose to hire lawyers and consultants, but involved parties are not required to incur large legal bills, according to Ecology.
Approval of the project in 2021 began the two-year pre-adjudication process of compiling relevant data for water adjudication and filing in court. The total projected completion time is 10 to 20 years, with many water rights potentially being resolved in the process.
Charles Rasco is an environmental studies student at Western’s College of the Environment and is a current Planet editor.
Will Story is a visual journalism student who loves to explore and learn more about the world with a camera in hand.