The Clock is Ticking for Water Users in the Nooksack Basin to Settle Their Disputes

Now that Washington’s 2021–2022 budget bill has become law, there is increased pressure on water users in the Nooksack basin to settle their disputes before the state steps in and files an adjudication. Washington’s 2021–2022 operating budget authorizes Ecology to prepare to file a water rights adjudication in Whatcom County Superior Court by June 1, 2023. The budget also provides $125,000 for Whatcom County to lead a collaborative process for the Nooksack basin in fiscal years 2022 and 2023. Because the state fiscal year begins on July 1 of the year prior to the one for which it is named, this means that this funding should be available as soon as July 1 of this year. 

Whatcom County has already approved $250,000 for this collaborative process in its own 2021–2022 budget, as requested by the Whatcom County Executive. Under the County Executive’s plan, The WRIA 1 Watershed Management Board will provide technical assistance and develop a negotiation framework.

The collaborative process is intended to help facilitate local solutions to water rights issues by providing for facilitation, mediation, and technical assistance. According to the state budget, this process is intended to “complement,” not supplant the adjudication. 

This process will likely help parties clarify their positions prior to adjudication. Parties may be able to come to agreement on particular issues and narrow the issues for an adjudication. We do not expect this collaborative process to avoid the adjudication altogether, however. The collaborative process may also lay the groundwork for parallel negotiations during the adjudication, particularly after the court resolves threshold legal issues that may stand in the way of settlement now.

Water users in the Nooksack basin should monitor the WRIA 1 Watershed Management Board website for updates on the collaborative process. In preparation for the process, water users should prepare evidentiary support to defend their water rights, including records of use for at least the last five years. Preparing for the collaborative process early can help water users take advantage of these early opportunities to settle disputes.

With an office in Seattle, WA, Beveridge & Diamond’s Water practice develops creative, strategically tailored solutions to challenges that arise under various state’s 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 ESA requirements, and the watershed-based planning and permitting process. For more information, please contact the authors.