Frequently Asked Questions

Good news: Governor Inslee has placed $1 million in his budget to begin to adjudicate water rights in the Nooksack basin and Lake Roosevelt! 

This has broad support in the community and the state, including the Nooksack Tribe, Lummi Nation, Whatcom County Executive Sidhu, Bellingham Mayor Fleetwood, Todd Donovan, and Carol Frazey on the Whatcom County Council. This funding is for two years and will be for pre-adjudication activities. We hope you’ll join the Tribe and others in supporting this funding request. Click here for information on how to support this request.

As we have learned from other areas, adjudication often motivates parties to negotiate and find solutions, and resolving water use conflicts can bring significant state and federal funding for solutions. For example, as the Yakima adjudication progressed, they were able to secure grants for a number of water conservation and storage projects. 

We can only move forward with solutions after we know who has adjudicated water rights.

No. You cannot trade or sell something if you don’t have a legal right to it. We need clarity on what the legal water rights are – including priority date, amount of water, place of use, and withdrawal location – and we won’t know that until we go through an adjudication. When we have an adjudicated inventory of water rights, then we can find and implement creative solutions to meet the needs of our communities.

This is a very old problem, and adjudication is overdue. Tribes and other water users have been working together for decades to protect water for salmon and resolve water use conflicts. Unfortunately, almost every time a solution seems to be near, key parties have walked away.  An adjudication brings all water users to the table and keeps them there until water rights are resolved. This is the only way to have certainty about water rights in the Nooksack River basin, and to have the water in the streams that salmon need.

Salmon need water, and this will ensure there’s water in the streams for salmon. 

While salmon need sufficient stream flow to complete their entire life cycle, we tend to focus on the summer months when stream flows are most limiting and the demand to use that water out of the stream is greatest (i.e. irrigation).  Low stream flows can block migration into spawning areas, dry up redds (salmon nests), limit the amount and reduce the quality of available habitat, and lead to high water temperatures and low dissolved oxygen.

The Lummi Nation and Nooksack Indian Tribe hold Federal reserved water rights both to support the purposes of their Reservation lands as permanent homelands for their people and to support a sustainable, harvestable surplus of salmon.

It should not cost local water users much, if anything, to file a water right claim. Ecology is already working on ways to assist water users in filing their claims. For those with more complicated water rights claims, they may need the support of an attorney or water rights specialist to provide necessary documentation. The need for water right analysis support services are not new, this is a process that many agricultural water users in particular are already familiar with and is commonly used to process water right change applications.

No. Most water users are supplied water from a city, water district, or other purveyor, and they will file the claim on your behalf. For instance, the City of Bellingham will represent all of their water customers.

No. Ecology cannot take away legal water. The courts will look at historic water use and apply the law accordingly. If a farm or other user does not have a legal water right, adjudication is their best way to obtain a secure water right in the future.

That’s the case now – many water users, including farmers, do not know if they have a legal right to use the water they use. Adjudication is how everyone gains clarity and certainty about water rights. With an inventory of water rights, everyone knows where they stand – and where water is currently unavailable, future solutions can be explored.

No. Much was learned during the Yakima adjudication, and the process has been streamlined considerably through technological and administrative improvements and legislative updates.  And while it is estimated to take fifteen years to complete, a great deal of the important work can happen in the early years.

Farming in Yakima increased during the adjudication.

• Irrigated farmland increased from 247,313 acres to 260,023 acres.
• Land in farms increased from 1,612,399 acres to 1,781,463 acres
• Market value of ag products increased from $498,067,000 to $1,988,027,000. This is an increase over the rate of inflation by 54%
• Average per farm market value increased from $117,496 to $673,451. This is an increase of 38% over the rate of inflation.

The right question seems to be this: how does a permanent and legal water right help farming?

Click here for more information.

Water rights can be traded, sold, or banked, just like other property rights. Lands with water rights are more valuable than lands without.  This is clearly the case for farming, as farming is a business and having a secure and legal right to water makes your business more valuable.

No. Whatcom County’s goal for farmland is 100,000 acres, and over 100,000 acres are protected as farmland today. Most of that land is protected long-term through zoning, with some purchased development rights, and cannot easily be subdivided or developed. To up-zone agricultural land for development would require a comprehensive plan amendment, substantial public process, a vote of the Whatcom County Council, and the change would be subject to review by the Growth Management Hearings Board.

Farmland remains valuable, younger people are entering farming in Whatcom, and local food production is highly prized. While some are concerned that securing water rights will lead to paving farmland, that seems more likely in the current situation, with some farmers basing a business on the illegal use of water, making those farm businesses vulnerable to failing. Secure, permanent water rights would make those businesses more viable and better able to secure bank loans when necessary.

We can also look to the Yakima adjudication to answer this. During the adjudication farmland increased, including the acreage of irrigated farmland. Market value of agricultural products  increased 54% above the rate of inflation. 

Whatcom County farms appear to be in good shape according to data at the US Department of Agriculture (USDA). That’s great news as we all value the local food produced by farms here in Whatcom County. 

The USDA Census of Agriculture reports that farm profitability increased from 2012 to 2017; farm-related income was up by 46% with the per farm average up by 66%, government payments decreased by 69%, and the net cash farm income increased 11%. Here are the notable shifts in production:

•   Milk and other products dropped from 68% of Whatcom sales to 50%.
•   There are fewer dairy farms in 2017 than 2002, but the value per cow increased 52.3%, and the value of dairy products increased by 21.8%.
•   Fruits, trees, nuts and berries moved from 8% of Whatcom’s ag economy to over 32%.
•   Total berry production increased by 43% from 2002 to 2017, largely due to an increase in blueberries.
•   Direct-to-consumer sales increased.

In agriculture, as in other sectors of the economy, decisions are often made based on prices, consumer preferences, and market forces. Crops shift over time and from year to year. USDA data for Whatcom shows that, between 2012 and 2017, the market value of livestock, poultry, and their products were down 8%, but that the market value of fruits, trees, nuts, and berries were up 70%.

Farmland in Whatcom remains over 100,000 acres, the stated goal for Whatcom County in their Agricultural Strategic Plan⁽³⁾.  Farms in Whatcom County have gotten smaller, and the overall number has increased: from 1978 to 2017, the average size dropped by 28 acres, and the number of farms increased from 1,445 to 1,712.

Along with an increase in farms, between 2002 and 2017 the number of farmers doubled, and younger people became farmers. In 2002, there were 45 farmers from age 25-34. and by 2017 there were 204. During that same period, the total number of farmers in Whatcom increased from 1,485 to 2,982, an increase of 100.8%. Farmers also became more diverse: from 2002 to 2017, there were 4% fewer farmers reporting as white (from 95% to 91%), and 3% more (from 2% to 5%) reporting as Asian.

Every five years, the USDA performs a census of agriculture with a summary by county. The most recent census dates to 2017⁽¹⁾. WSU has completed more detailed analysis of the data to look at changes from 1997 and 2002, to 2017, looking for bigger trends.⁽²⁾ The above is excerpted from both the USDA Census and the WSU analysis of the census.

⁽¹⁾ United States Department of Agriculture, National Agricultural Statistics Service. 2017 Census of Agriculture Whatcom County Profile.

⁽²⁾ Whatcom County Agriculture Statistics 2017. WSU Extension.

⁽³⁾ Whatcom County Agricultural Strategic Plan, Approved by Whatcom County Council on 8/8/18, Res. 2018-027.

Legal water rights have immense value, and farms with legal water rights are better positioned to get a bank loan. It seems likely that the lack of a legal right to use water is a problem for bank loans. Only an adjudication can fix that problem.

Attorney Jordan Ramis in ‘Water Rights Issues in Agricultural Lending⁽⁵⁾’ writes about the concern lenders have with unadjudicated water rights under ‘Latent Problems’ on his website, highlighting both unadjudicated rights and unquantified Federal reserved rights and tribal rights as concerns for lenders. He goes on to write, “The water rights add value to the real estate. They are also crucial to the revenue stream in agricultural enterprises. Additionally, the water rights may have independent value apart from their use on the agricultural land.”

An article called, ‘Understanding water rights can get you a better farm loan⁽⁶⁾’ in The Fence Post, Your Trusted Source for Ag News & Information, provides a similar perspective: “Water rights matter to a borrower because they are an asset that provides value and productivity to an agricultural operation.” According to Dr. Troy Peters of WSU⁽⁷⁾, “Water rights can increase property values 5-10 times.”

Lenders have problems with unadjudicated rights, rather than with the legal process that permanently secures those rights. Banks prefer to make lower risk loans; farms who use water illegally are a higher risk. The only way to get a legal water right and reduce risk is by adjudicating water rights.

⁽⁵⁾ Water Rights Issues in Agricultural Lending. Jordan Ramis. https://jordanramis.com/resources/articles/water-rights-issues-in-agricultural-lending/view/

⁽⁶⁾ Zalutsky, Nancy. ‘Understand water rights can get you a better farm loan. December 5, 2015. The Fence Post. https://www.thefencepost.com/news/understanding-water-rights-can-get-you-a-better-farm-loan/

⁽⁷⁾ Peters, Troy. Washington Water Rights for Agricultural Producers, Washington State University Fact Sheet. FSWR001. June, 2009.