Nooksack Adjudication vs. State Water Law?

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 19^th 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.