As previously discussed, the Washington legislature launched a process to quantify and permanently adjudicate water rights in the Nooksack River basin. After several years of preliminary work, the Washington Department of Ecology (Ecology) recently announced that it intends to file a complaint, which would trigger a water rights adjudication in Whatcom County Superior Court this summer. That filing will initiate a formal process for quantifying and prioritizing water rights in the Nooksack Basin that will involve all holders of water rights in the Basin. The adjudication intends to reconcile growing demands and the Basin’s limited water supply through a formal legal process. This adjudication will be accompanied by voluntary processes to settle disputes and expedite the adjudication. In the absence of settlement, water rights adjudications can be expected to take years or even decades.

Water rights holders in the Nooksack Basin should be on high alert. Participation in the adjudication, and proper response to adjudication notices, will be critical for safeguarding existing rights.

Key Takeaways

• After several years of preliminary work, Ecology is preparing to launch a formal water rights adjudication for the Nooksack Basin in Whatcom County Superior Court. Ecology anticipates filing a complaint late this summer.

• Once the process begins, all holders of water rights in the Nooksack Basin will be notified of the adjudication and will be required to participate in the adjudication to ensure that their water rights are protected. Failure to do so could result in forfeiture of water rights.

• Whatcom County and Ecology have been working on a “Solutions Table” and “Solutions Showcase” to highlight collaborative approaches that have worked to settle similar water rights disputes in other parts of the state.

• Ultimately, water rights will be decided based on Washington’s law of prior appropriation, which assigns higher priority to water rights established earlier and a lower priority to recently-established rights. Instream flow requirements, tribal water rights, federal claims, and international concerns arising from the location of part of the Nooksack Basin in Canada will also bear on the ultimate adjudication of rights in the Basin.

Background

In 2019, the Washington legislature launched the adjudication process, asking Ecology to identify the Water Resource Inventory Areas (WRIAs) experiencing the greatest stress on existing water supplies. Ecology identified WRIA-1, the Nooksack Basin, as one of the two most-stressed of Washington’s 64 WRIAs in which water rights had not yet been established via adjudication. In response, the legislature authorized Ecology to spend $250,000 on informal processes to prepare for adjudication. Ecology also identified approximately 5,000 existing water rights claims for surface water or groundwater in the basin, some dating back more than 100 years and other claims pending before Ecology for decades.

Based on this extensive preparatory work, Ecology is now preparing to launch a formal adjudication. All parties claiming water rights in the Nooksack Basin will be notified and provided a claim form that will require them to explain their claim’s legal and factual basis. Once these claims are validated, rights to water in the Basin will be established based on the quantity of water associated with each right and its priority based on the date the water was first put to use.

The formal process will run in parallel with an informal settlement process aimed at facilitating voluntary solutions and to speed up the ultimate resolution of the adjudication. Ecology also plans to implement a simplified process for water rights holders for exempt domestic wells using 500 gallons per day or less, and proposes a similar process for wells using more than 500 gallons per day that would allow quantification of rights up to 5,000 gallons per day.

Conclusion

Water rights holders in the Nooksack Basin must pay careful attention to the adjudication process that is now unfolding. Participation in the process will be essential to ensure that claims for water rights are validated and quantified. Failure to appropriately respond to notices concerning the adjudication and to participate in the process could result in the forfeiture of water rights.

With an office in Seattle, WA, Beveridge & Diamond’s Water practice develops creative, strategically tailored solutions to challenges that arise under various state water laws. B&D helps clients determine, obtain, and preserve the water rights necessary for their operations. We advise on the challenges and opportunities that arise from competing demands for scarce water resources, agricultural and forestry water management practices, water storage, transfer and conveyance rights, wetlands preservation and mitigation, habitat and species protection requirements, and the watershed-based planning and permitting process. For more information, please contact the authors.