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Would Adjudication Resolve Nooksack River Water Issues?

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How can we best resolve long-standing water-resource issues in the Nooksack River Basin? These problems–primarily too little water in the river and streams during the summer months–have been recognized for at least two decades. Several local entities, both government and nongovernment, have developed plans and conducted projects during this time. Nevertheless, the problems are not resolved. Indeed, primarily because of climate change, these problems are getting worse and will almost surely continue to worsen during the rest of this century.

After completion of an adjudication of surface-water rights in the Yakima Basin, the Washington State Dept. of Ecology (Ecology) proposed to begin adjudication in another basin. Ecology is considering the Nooksack River as a potential site for such a process, with a report on its recommendations due to the legislature in September 2020.

Locally, opinions are divided over the best way to resolve these issues. The Nooksack Indian Tribe and Lummi Nation, which hold the most senior, but un-quantified water rights in the basin, both support adjudication. Local farmers, represented by the Agricultural Water Board (AWB), and the City of Bellingham oppose adjudication.

My sense, based on five years of observation and participation in local water-supply processes, is that adjudication may be the only viable path to increasing flows in the three forks, tributaries, and main-stem Nooksack River. Adjudication is complicated, expensive, and takes years to reach resolution. But I see no other way to encourage/motivate/pressure/compel the key parties to the negotiating table. (To me, the key parties are the two tribes, the farmers, and Ecology.) As Ecology notes, “Adjudications can encourage settlement and partnerships because all water users are joined together in a uniform process.” Also, the end result of adjudication is certainty on who has water rights, in lieu of the current situation in which many water rights are ambiguous. To be clear, I hope the potential of adjudication preempts completion of, and obviates the need for, that process by producing a negotiated settlement.

The purpose of adjudication is to inventory and clarify water rights in order to eliminate ambiguity and uncertainty about these rights. At the end of the process every water user knows how much water he/she/it can use, for what purpose(s), when and where. By itself, adjudication does not put more water in streams and rivers. However, the process would likely extinguish some water rights and eliminate some existing water uses, which would increase stream flows. In particular, the Tribes’ senior water rights to in-stream flows might require reductions in the rights of other out-of-stream water users. But the certainty about one’s water rights following adjudication would allow water users to negotiate with greater confidence than they now have.

To quote Winston Churchill, “Democracy is the worst form of government except for all those other forms that have been tried from time to time….” In the same manner, adjudication may be the worst way to resolve local water-resource issues, except for all the other approaches that have not yet worked.

For an overview of the situation, and to examine my assessment, please review the full document.

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