Update: The Washington Department of Ecology (Ecology) officially kicked off the Nooksack adjudication, a legal process that will determine the priority of water rights in Whatcom County and portions of Skagit County. Specifically, on May 1, 2024, Ecology filed a Statement of Facts and map of Water Resource Inventory Area 1 (WRIA 1) in Whatcom County Superior Court. In its Statement of Facts, Ecology divided WRIA 1 into 10 sub-basins for adjudication. Ecology named as defendants anyone owning real property in WRIA 1 outside the service area of a city, town, or special purpose district, all known persons claiming a right to water within WRIA 1, and the Lummi Nation, The Nooksack Tribe, and the United States. Ecology has identified about 37,500 defendants who will be receiving summonses from the court and sent postcards to these defendants to notify them of the adjudication process.  

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Ecology announced it will begin an adjudication of water rights in WRIA1, including the Nooksack River system, in April 2024. An adjudication is the process of determining the location, quantity, and priority of all water rights held in a certain area. Water use in Washington is prioritized using the “first in time, first in right” system, meaning that in times of water scarcity, water uses that began earlier have priority over uses that began later. The adjudication will apply to all water users in WRIA1 who do not get their water from a water utility.

Key Takeaways

• The adjudication process will formally kick off when Ecology files a Statement of Facts in Whatcom County Superior Court, triggering the court to issue summonses with claims forms for water users to return.
• Water users will have one year to return the claims form with supporting evidence. Failure to participate could result in forfeiture of water rights.
• Rights to use water from permit-exempt wells will be adjudicated.

An Adjudication with a Broad Scope

Although Ecology has been referring to the upcoming adjudication as the “Nooksack adjudication,” the adjudication will include all surface and groundwater in WRIA1, including areas not hydrologically connected to the Nooksack River system. This includes areas such as Point Roberts and Lummi Island. The adjudication also includes permit-exempt wells, i.e., wells supplying less than 5,000 gallons per day.

One Year to Submit Claims

Ecology is using Whatcom County property records to identify property owners in rural areas that are not covered by a water service territory. After Ecology files the Statement of Facts, the Whatcom County Superior Court will take a few weeks to prepare summonses to all the property owners Ecology has identified and send them out with the forms for claimants to return. Failure to participate could result in forfeiture of water rights.

Ecology has prepared two types of forms for water users, which would be included in the court’s summons. The short form is for users who use less than 500 gallons per day, and the longer form is for users in excess of that. Ecology received public comments on these forms in March of 2024 and may revise them before the court sends the summonses.

After receiving a summons, each water user has one year to return the forms. The user must respond to the summons and file a claim even if they already have a certificated water right. The court will also set a deadline for water users to submit evidence supporting their claims. After receiving the forms and supporting evidence, Ecology will prepare Reports of Findings. Water users will be notified of the report and can object to the findings. The court will rule on Ecology’s report and water users’ objections and then issue Conditional Final Orders and, eventually, a final decree. The state legislature has allocated funding, to begin in June of 2024, for a Water Commissioner for Whatcom County Superior Court to do much of this work.

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.