Court Process for Defining Whatcom Water Rights Begins

James Davenport guest writes this article. He is an attorney with a strong background in water rights and will have a role in this court process. His book “Western Water Rights and the U.S. Supreme Court” published in 2020,  is available on Amazon.

In 1993, the Washington Supreme Court ruled, in Rettkowski v. State, that Washington’s Department of Ecology must first utilize a general stream adjudication before it has authority to allocate water resources between water rights holders on the basis of its own determination of priorities.  According to that court, Ecology can’t issue cease and desist orders against holders of junior water rights to protect senior water rights or the environment. That would interfere with the Court’s general adjudication process, the Court said.  An “adjudication” is a court proceeding where a local judge determines who’s got what water rights.(1)

In 1986, the Court had said that it would look to the legislature’s definition of water policy.  It had done so in the 1970s and 1980s, creating a much broader approach than it may have had back in 1917 when the state’s “water code” was first enacted. Today, policy is much more conscious of domestic, environmental, recreational and public reliance on the public’s water resources.  After all, “all waters of the state belong to the people.”  RCW 90.03.010.

More recently, much local planning expertise has focused on the problem of too little resource and too much demand.  The solution to that problem is even more complicated when Climate Change affects available water supply, much of it coming in this case from Mt. Baker’s glaciers  Efforts to restore threatened species have also been difficult to accomplish.  The Nooksack Tribe and Lummi Nation also requested legal clarity of their rights to water.  The case was formally filed in Whatcom County Superior Court on May 1 this year.

In her statement filed with the Court that day, Ecology’s director Laura Watson said:

“The Nooksack River system supports diverse wildlife, including providing migration spawning, incubation, rearing, and foraging habitats for all nine native Pacific Northwest salmonid species. These fish populations are in decline. See Carol J. Smith, Salmon and Steelhead Habitat Limiting Factors in WRIA 1, the Nooksack Basin, Washington State Conservation Commission (2002). Water for habitat is decreasing due to surface and ground water consumption, land practices, and the snowpack and temperature impacts of climate change. Murphy, R. D. Modeling the Effects of Forecasted Climate Change and Glacier Recession on Late Summer Streamflow in the Upper Nooksack River Basin, Western Washington University (2016)."(2)

She continued:

“The users of water in WRIA 1 need affirmation of their water rights. An adjudication of surface and ground water rights addresses many challenges facing the region. The prior appropriation doctrine is straightforward, but water management is not.  An adjudication will affirm water right claims filed under the Claim Registration Act, allowing Ecology to manage water rights claims on a basis of priority and manage state issued water rights, including permit exempt wells."(3) 

These are hopeful remarks, as they reflect the broader, more modern thinking of the Washington Legislature and the current state of environmental affairs..  We mustn’t forget that the state merely licenses use of the public’s water.  It doesn’t create any real property interest in it.  Its use is always subject to the policy and regulatory concerns of the government we enjoy.  We all share a public trust in its well-being.

It will be a big task.  It will be long.  But now is the time, in the context of the general adjudication proceeding in WRIA 1, to seek 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.

If you want to learn more about how adjudications work, their timing, how to identify and prove interests in water and hear my concerns about the present legal system’s ability to resolve competing demands, you are welcome to join me at the Deming Library on Wed, June 5 (5:00 p.m), or the Bellingham Library Lecture Room on Thur, June 6 (1:00 p.m.) or the Lynden Library on Thur, June 6 (5:00 p.m.)  I welcome your interest.