Protecting Nooksack River Stream Flows

Water Law and Management in Washington

Fresh water is a limited resource, especially during summer. Western water law operates under the doctrine of prior appropriation, or “first-in-time, first-in-right”. This means that, in times of water shortage, senior (older) water rights are satisfied first and junior (newer) water right holders can be restricted. Each water right has a priority date, which is generally the date the water was first put to beneficial use. Water rights must generally be used continuously over an extended period of time or be subject to loss. Other parameters of a water right are the location of withdrawal and the purpose of the water being withdrawn from surface and groundwater.

Federal reserved water rights are those associated with public lands withdrawn from the public domain by the federal government, such as Indian reservations, military bases and national parks, forests and monuments. A federal reserved water right provides for sufficient water to fulfill the purpose of the land. Federal reserved water rights are not generally subject to state management.

Tribal water rights include:

• Treaty water rights are water rights associated with the rights reserved in the treaties. These are rights to sufficient stream flows to sustain a harvestable surplus of salmon to support treaty fishing rights. These water rights have a date of time immemorial and are therefore the most senior water rights in a given basin.
• Traditional on-reservation water rights are water rights associated with Indian reservations, usually to support agricultural production. Each has a priority date that is the date the reservation was established. These are sometimes called Winters water rights, named after the Winters v. US (1908) Court decision. In Winters the US Supreme Court ruled that when the United States sets aside land for an Indian reservation, it reserves water for actual and future use, with the date of the reservation being the priority date of the water right. These rights cannot be lost for nonuse.

The Washington Department of Ecology (“Ecology”) is responsible for managing non-federal water users. Water rights can be in various states of documentation, from claims that predate state water laws to water rights certificates (see inset box “Water Right Terms”).  In addition to managing out-of-stream and groundwater water uses, the state can adopt instream flow rules, which establish minimum stream flows at specific locations in a given stream for the purposes of protecting stream flows. The priority date for the instream flow is the date of adoption of the instream flow rule, and water rights issued after instream flows are adopted, can be restricted to protect the instream flow levels for fish.

Protecting Nooksack River Stream Flows

The Nooksack Indian Tribe and Lummi Nation have been working collaboratively with our partners in Whatcom County for decades to protect and restore stream flow to support salmon and other uses (see Timeline of Water Resources Protection Efforts in the Nooksack Basin). Farmland is the dominant land use in the lowlands of western Whatcom County, and the majority of regulated water use in the Nooksack Basin is for agricultural irrigation. In 1985, out of concern that low stream flows were seriously affecting local salmon, instream flows were adopted in the Nooksack Basin – with significant technical input from Tribal technical staff – and many of the streams and rivers in the basin were closed to further appropriation of water rights. 

Many farmers have legal water rights. However, unpermitted or under-permitted water use is common, ranging from an estimated 30 to 50% of agricultural water use, depending on conditions. Ecology’s enforcement is challenged by the vast number and complexity of overlapping water rights. Since at least 1998, when the state Watershed Management Act was passed and the Nooksack Tribe, Lummi Nation and local governments joined to initiate watershed planning for the Nooksack Basin, we have been working collaboratively on solutions to resolve water use conflicts. Yet, despite a significant investment of technical and policy staff and consultant work, including several pilot voluntary negotiation efforts, there has been no resolution.

In the meantime, the population of Whatcom County is growing, climate change is reducing summer stream flows, and the salmon continue to suffer due to low stream flows and high temperatures. It is more urgent than ever before to act. Frustrated at the lack of progress, the Tribes have sought other pathways to protect water resources. In 2011, both Tribes requested federal litigation to quantify their water right, but the requests were not granted. More recently, in 2019 and 2020, the Nooksack Tribe and Lummi Nation, respectively, petitioned Ecology to initiate a general water rights adjudication for surface water and groundwater in the Nooksack Basin.

Adjudication

Adjudication 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, producing a comprehensive legal inventory of water rights that allows for more effective management. It protects senior water rights, creates certainty around water use, and helps secure water for future use. Adjudication also often motivates parties to settle as they draw near to a final determination of water rights, and the focused attention on resolving water use conflicts can attract significant federal and state funding for solutions.

In 2019, the Washington State Legislature directed the Department of Ecology to “explore opportunities [statewide] to resolve water rights uncertainties…through adjudications in selected basins”.  In October 2020, Ecology completed their report.  Although there is uncertainty about water rights throughout the state that adjudication could resolve, the Nooksack Basin was one of only two urgent priority basins recommended statewide for adjudication. 

Ecology estimates it will take about 15 years to complete an adjudication and is asking the legislature for $1 million to begin the adjudication process. The Nooksack Tribal Council, management, and staff, together with our lobbyist and counterparts with the Lummi Nation, have been working hard to build support with the Governor’s office, state and local elected officials, and the public for funding adjudication.  Other parties are pushing settlement as an alternative to adjudication, but Tribal policy is clear: any settlement must occur in the context of – not in place of – adjudication. 

Look for updates on this important work in the coming months!

“We are working hard to protect the water that salmon need – not just for ourselves, but for our kids, our grandkids, and for future generations.”

– Ross Cline, Sr.
Chairman, Nooksack Tribe