Water Rights Adjudication Begins for Washington's Whatcom and Northern Skagit Counties

Water rights holders in Whatcom County and northern Skagit County will be affected by a court adjudication case filed in May 2024 by the Washington State Department of Ecology ("Ecology"). Ecology filed this general water rights adjudication in Whatcom County Superior Court to legally determine the quantity and priority of surface and ground water rights in the Nooksack River Basin, Water Resources Inventory Area 1 (WRIA 1). WRIA 1 includes the entire Nooksack River watershed as well as nearby Bellingham Bay, Birch Bay, Chuckanut, Drayton Harbor, Lake Whatcom, Lummi Bay, Point Roberts, and Sumas River watersheds.

The case will affect all water users within WRIA 1 who withdraw water from a well or who divert water from a surface water body such as a stream, lake, or spring. Owners of surface and ground water rights including certificates, permits, and previously registered water claims will need to file claims with the court in the adjudication in order to judicially determine and preserve their water rights. Active participation in the case is essential for those seeking to preserve these rights. The adjudication does not involve people who obtain all of their water from a city or other water provider.

WRIA 1 has been identified as a priority area in the state due to increased pressure on water supplies driven by melting snowpacks and increased water use. In 2019 and 2020, the Lummi Nation and the Nooksack Tribe petitioned the state to adjudicate surface and ground water rights in WRIA 1. After assessing this area, Ecology found that a general adjudication would be in the public interest and initiated the adjudication under a state statute, RCW 90.03.110.

What Is an Adjudication?

An adjudication is a court-administered legal process, similar to a quiet title action, brought to resolve conflicts over water resources by determining who has a current legal right to use water, in what quantity, and in what order of seniority. This process will determine whether water rights have been relinquished in whole or in part and fix the legal quantity and priority of water use for each claimant. The adjudication will identify, prioritize, and quantify all federal and tribal rights in the order of prior appropriation; and will quantify and prioritize rights to surface and ground water by municipalities, agricultural irrigators, private domestic and commercial users, and other users within WRIA 1. As part of this process, the adjudication will consider rights predating the Washington state water code and ground water uses exempt from permitting.

Who Will Be Notified, and What Are the Next Steps?

RCW 90.03.110 requires Ecology to identify all parties with a claimed interest in the waters within the adjudication area, which includes:

1. Each person owning real property in WRIA 1 outside the service area of a city, town, or special purpose district;
2. All known persons claiming a right to water within WRIA 1;
3. The Lummi Nation;
4. The Nooksack Tribe of Indians;
5. The federal government, as an owner of real property in the area and claimant of federally reserved water rights, and as a trustee for the Lummi Nation and the Nooksack Tribe.

Ecology will notify water users by certified mail after the court approves a form of summons. The mailing is anticipated to occur in late summer 2024. Within one year of receiving mailed notice, water users will need to file an adjudication court claim to describe their water use. After court claim forms are due, water users will have three more years to collect and submit the necessary evidence to support their claims. Eventually, the court will inventory and prioritize all legal water rights in order. Ecology has proposed a simplified and expedited process for small exempt well uses (homes using 500 gallons per day or less).

Adjudication Can Be a Complex and Lengthy Process

Completing a water rights adjudication can take decades, as illustrated by the recently concluded Yakima River Drainage Basin adjudication. The Yakima adjudication first began in 1977 when the Washington State Department of Ecology filed a general water rights adjudication for all waters contained within the Basin. The Yakima County Superior Court divided the Basin into multiple distinct subbasins and issued conditional final orders (CFOs) for each subbasin at various points within the litigation. The superior court ultimately issued its final decree in May 2019, incorporating all of the prior CFOs as necessary. Multiple parties appealed the final decree, and the Washington Supreme Court issued a final ruling in those appeals in 2021. In the Yakima adjudication, a referee was employed to assist the court in evaluating claims, and the court divided the adjudication into multiple subbasins and four procedural pathways, including federal reserved rights for Indian claims, federal reserved rights for non-Indian claims, state-based rights of major claimants and state-based rights for other claimants, by subbasin. Although it is not known currently how complex the Nooksack Basin adjudication may be, it can be expected to unfold along generally similar procedural lines. Despite the complexity, because water rights claims not filed and processed during the Nooksack adjudication will be lost, the importance of active participation in the case is critical for all stakeholders.