Nooksack Adjudication vs. State Water Law?

Eric Hirst gives us a brief and clear explanation of the water adjudication process that is beginning now in Whatcom County

Eric Hirst gives us a brief and clear explanation of the water adjudication process that is beginning now in Whatcom County


Jim Davenport recently wrote an excellent piece on the just-started adjudication of water rights in the Nooksack River Basin. He emphasizes the importance of seeking “constructive, broad public and water-user strategies that reflect the needs of all surface and ground water users, including those that use the natural flow and contents of rivers, lakes and streams, bays and seas as well as those who use water for economic purposes.”

Unfortunately, these laudable goals conflict with what most people perceive is Washington water law. Our system of water laws, which dates back to 1917, grants people the right to use, but not own, water.

These rights, overseen by the state Dept. of Ecology, are:

  • free,
  • last forever,
  • fixed in quantity (although water supplies are quite variable),
  • ignore Tribal treaty rights, and
  • based on prior appropriation.

This last factor means that those who are first in time are first in right. Because the rights held by Lummi Nation and Nooksack Indian Tribe derive from the 1855 Treaty of Point Elliott, their rights predate those of all other users. Also, the public and state legislature have, over time, recognized the importance of water to protect fish, other wildlife, recreation and other instream values.

How can a superior court judge assign water rights to users that meet the broad goals articulated by Mr. Davenport and, simultaneously, abide by the “first in time, first in right” rule? The simple answer is that the judge cannot do both. 

It is long past time to abandon this 19th Century system of vintage rights. Are there any other products or services where those who come first are advantaged? Think about your monthly bills for electricity, natural gas, garbage pickup, internet, phone service, cable TV, and streaming. Not one of these systems is based on prior appropriation.

We need a new system to manage water use. This is especially true because water is an increasingly scarce resource, primarily because of climate change. The new system should comply with other state laws that require allocation of water, for both human use and environmental quality, on the basis of maximum societal benefit. 

About Eric Hirst

Citizen Journalist • Member since Jul 23, 2015

Eric Hirst has a Ph.D. in engineering from Stanford University, spent 30 years as an energy policy analyst at Oak Ridge National Laboratory, and retired to Bellingham 18 years ago. He [...]

Comments by Readers

David A. Swanson

Jun 14, 2024

For one of many examples of water rights litigation involving tribes, see “RE THE GENERAL ADJUDICATION OF ALL RIGHTS TO USE WATER IN THE LITTLE COLORADO RIVER SYSTEM AND SOURCE,” and the recommended decree:


Carol Follett

Jun 16, 2024

Our first responsibility should be to honour the treaty rights agreed to by the Government to the remaing first people of this land. We should also take this statement, “...water is an increasingly scarce resource…” seriously enough to create limitations. We need to link our understanding of this essential, limited resource and the order that we build, build, build (E2SHB 1110) which will increase the demand this scarcity. 

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