The Gristle

Salmon Need Water

Wednesday, March 31, 2021

SALMON NEED WATER: Water rights for the Nooksack River appear to be headed to court.

Following decades of inaction and indecision by local watershed planning groups, the state Legislature in 2019 directed the Department of Ecology “to assess and explore opportunities to resolve water rights uncertainties and disputes through adjudications in selected basins where tribal senior water rights, unquantified claims, and similar uncertainties about the seniority, quantity, and validity of water rights exist.” Ecology completed that assessment and with the assistance of a project manager with expertise in water law produced a report in the fall of last year that recommended court adjudication to resolve water right uncertainties and disputes.

“Solutions to competing demands for water—for fish, for farming, and for people—are stymied by the lack of a complete inventory and formal court determination of all the rights to use water under Washington’s laws,” Ecology concluded in their report.

“Adjudication,” the agency explained, “is a process that brings all water users in a watershed into one big court process that leads to full and fair water management by confirming legal rights to use water. The process legally and permanently determines everyone’s water rights in that area. It creates certainty around water use and helps secure water for future use.”

The agency’s recommendation supports a position long sought by the tribes—with their obvious and powerful senior rights’ claims to water, and a pressing desire for a ruling on a matter Washington water law does not adequately address: A nonconsumptive water use, water left in streams for ecological purposes—including water that allows fish to thrive.

“Water rights have been issued in the Nooksack Watershed for more than 100 years, and as a result most water in the watershed is already legally spoken for or ‘appropriated,” Ecology explained. “Increasing demands for water over time—from ongoing population growth, agriculture, and other consumptive uses—have resulted in lower summer streamflows in many areas of the watershed.”

Lummi Nation and the Nooksack Tribe hailed the recommendation, and this week launched a joint outreach campaign, Salmon Need Water, to help educate the community about the importance of water for salmon, and the need to support an end to decades of uncertainty over water rights in the Nooksack basin.

“The Nooksack basin faces diminishing runs of salmon, a changing climate, and a lack of clarity about water,” the tribes noted in their press release. “Adjudication, which simply means a formal court judgement on a disputed matter, is the only tool in Washington to permanently fix this. People have been trying to sort through competing claims of water in the Nooksack basin for decades, and it hasn’t worked. An adjudication brings certainty and solutions to make sure we have water for salmon, for people, and for local farms.

“In times of plenty,” tribal leaders note, “all water rights holders may be able to put their water to full beneficial use, but, in times of shortage, junior water right holders may be required to restrict (or curtail) their water use. This system is designed to ensure that junior water rights holders do not damage (or impair) the rights of those who are senior.”

For the tribes in particular, the 1974 Boldt decision acknowledges their right to fish. It is an empty right if there are no fish to catch, so adjudication may be seen as a means to close a circle put to paper half a century ago.

“The Nooksack River has sustained Lummi people since the beginning of time,” Lawrence Solomon, Chairman of Lummi Nation, said. “As Salmon People, we have for generations depended on the resources the Nooksack provides.

“As the first people of this land, tribes have first rights. It is our inherent and sacred responsibility to uphold our treaty rights to ensure our children and the next generation may maintain our ancestral way of life, with the Nooksack River.”

Farms are among the heaviest users of the Nooksack River resource among the estimated 5,400 claimants to water use in the basin—and for their part, farmers are taking the matter of adjudication seriously.

In an announcement earlier in March, Whatcom Family Farmers announced the farming advocacy organization would represent farmers in the Nooksack River’s South Fork Basin in anticipated water settlement and drainage management talks.

“While six Watershed Improvement Districts (WIDs) united under the Ag Water Board of Whatcom County represent farmers in the main stem of the Nooksack River basin, farmers along the South Fork do not have a similar organization to advocate for their interests in cooperative watershed management actions,” Dillon Honcoop, the organizations communications manager noted in a press release.

“The case would amount to an extensive lawsuit against all water users in the basin, forcing each to argue their case for water access in court,” Honcoop noted. The joint action will ensure some farmers aren’t locked out of the process.

Whatcom Family Farmers, the Ag Water Board of Whatcom County, and other individuals, groups and agencies in Whatcom County oppose Ecology’s adjudication plan, and urge the state to instead support a negotiated settlement process that brings the community together to collaborate on real solutions for the Nooksack Basin.

“We have listened to farmers, and they have said they need a water bank, or exchange, to move water rights where they are needed. Adjudication is how that happens,” Katherine Romero, General Manager of the Nooksack Tribe said.

Describing the process, Ecology notes, “The law provides that Ecology identifies a water source (such as a watershed with a major river and its tributaries and groundwater). Then, Ecology files an action in court, and joins all pertinent water users into the court process before a local judge. Water users submit their claims, and Ecology gathers extensive information about water use. Ecology then makes recommendations to the court, and the court issues a final decree listing all rights in order of priority. Water users can negotiate settlement agreements and recommend them to the court for inclusion in the court’s decree.”

The decision and settlement creates a certitude long delayed and long overdue.

“Adjudication is the best chance these farms have to identify available water and secure water for their future,” Ecology observed.

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Carbon Pricing Reality

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Third Time’s A Charm

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