Published April 7, 2023
Water Adjudication
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Water rights and water adjudication in the Nooksack Basin has been an ongoing conversation for many years. Washington State’s Department of Ecology is preparing to file for water adjudication with the Superior Court as early as fall of 2023.
The purpose of this blog post is to provide key links for news and updates on water adjudication, and a summary of a lengthy webinar that explains the purpose, practice and goals of water adjudication as presented by the Department Ecology.
This is a summary only; please refer to the original sources for a more complete understanding.
Resources
90-minute online presentation about the whys, whats, and whens of water adjudication in the Nooksack Basin.
11-slide summary of adjudication
Department of Ecology webpage for Nooksack Adjudication
Subscribe to update emails from Department of Ecology
Department of Ecology - Water Rights Search
Water Right Advisory Committee
Water in Washington State
Water is a public resource and the Department of Ecology is charged with regulating it. In 1917, Washington’s legislature determined that water was a public resource, regulated under the doctrine of prior appropriation. Surface water users needed to apply for permits so that the regulators could know what was there first.
In 1944, groundwater began to be regulated; WA hasn’t had aquifers drained like other states that didn’t regulate aquifers. Water laws include RCWs, federal law and treaties, as well as regulatory code.
The issue at hand: Legal water rights are sometimes vague or overlapping, and the Nooksack Subbasin won’t be able to provide infinite water for all the competing needs.
Water Adjudication
Quantifying all legal water rights, including Federal and Tribal rights. Final goal: every water use on a water source will have a number, a priority date, a quantity, and a place or purpose of use.
WRIA 1 (Nooksack)
Reaches up to the Canadian border and crosses over into Skagit County. Subsections each have dozens or hundreds of current water permits, certificates, and claims.
Water right claims: unproven but filed claims for early water use. Adjudication is the process to sort these out and see which of these claims are valid
Challenges
- Overlap of multiple water rights on the same property leads to confusion as to primacy of water use
- Dispute about instream flow that the Superior Court will be sorting out
- Confusion leads to uncertainty about buying, selling, leasing water and water shares.
Adjudication solutions
- Clear up prioritized claims
- Provide a better understanding of who/where has what water amount in conjunction with their corresponding water needs.
Adjudication Process
Ecology identifies WRIA 1 users
Surface & ground water
Permits, certificates, & claims
Ecology files in Superior Court (anticipated for fall 2023)
All parties notified
Propose adjudication process to the Superior Court
Superior Court will set deadlines and pathways
Water users respond with a claim
Claims submitted to Court & Ecology
Online, phone and in-person support locally
Electronic or paper filing
Designed for users without lawyers (software to support the citizen who is filing)
Claimants: do you use water from a pipe or well? (does not include water system customers)
Ecology prepares Report of Findings for the Court (approx 2025)
Ecology has the burden of proof for the report
Opportunity for water user feedback & objections
Superior Court issues schedule(s) of water rights in order of priority
Water Resources Management Challenges
Complicated and duplicated documentation going back more than a hundred years
Challenge: insufficient water in the summer, flooding in the winter
Adjudication is the process of clarifying rights, not changing them
Q&A Notes
Water rights are the right to use water, not own it in the sense that we own real estate or personal possessions. Ecology is charged to carry out the existing water code.
I have a certificate for ____. Should I be concerned? The law asks us to provide a claim form to submit a document for your highest use and current use of the water. The Court will look at your highest use and current use, and if there’s a lengthy history of using far less, there is a concern for relinquishment.
With permit-exempt uses, the claim primacy goes back to the original usage date and the historic use of the water. Ecology wouldn’t support them having a senior water right for all 5,000 gals/day if their usage has historically always been 500 gals/day. An adjudicated certificate would allow thousands of gallons of water to be available for other, junior claims. Ecology is not interested in being trivial and slimming down water usage for individual homeowners and water users; instead looking at gaps between currently-allowed water and actually-used water.
Summary written by Tiffany Holden. Cover photo: Nooksack River by Cooper Hansley.
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