Long-simmering conflicts over water use in the Nooksack River basin could be resolved through a legal process known as adjudication.
The Washington state 2022-2023 budget allocates $1 million for the state Department of Ecology to adjudicate water rights in the Nooksack River, along with Lake Roosevelt near Spokane. In addition, Whatcom County will receive $250,000 to develop planning and technical work to support the adjudication process.
The Lummi Nation and Nooksack Indian Tribe have pushed for decades for a legally binding determination of water rights. Ecology estimates the process will take 10 to 20 years to complete.
“Water in the Nooksack basin is a limited resource and will only become more so with the increasing demands of a growing human population and the impacts of climate change,” said Lummi Chairman Lawrence Solomon.
From the tribes’ point of view, water does not belong to any one person.
“Everything belongs to future generations,” said George Swanaset Jr., Nooksack natural and cultural resources director. “We are only the caretakers.”
State law agrees: water belongs to the public.
“We don’t own water just because we bought land, just because we can drill a well or install a pump to a stream that might go next to or even through our land,” said Robin McPherson, Ecology’s water resources adjudications assessment manager. “It is a public resource.”
Legally, the right to use water is first-come, first-served, but there’s never been a court ruling that inventoried how much water there is in the Nooksack basin, and who is using how much, which is the only means to achieve certainty.
“Without adjudication, we can’t simply decide that a senior water user that’s been there for a long time is being impaired by a junior water user,” McPherson said.
Nobody disputes that the tribes hold the senior water rights.
“As the first people of this land, tribes have first rights,” Solomon said. “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.”
Key among tribal treaty-protected rights is the continued right to harvest salmon, which need plenty of cold, clear water to survive. Unfortunately, Nooksack River salmon populations have declined because of degraded habitat, poor water quality and insufficient stream flow.
The tribes and state are working to restore salmon habitat, but without water adjudication, it is impossible to protect the water.
“Too many illegal water users are sucking water out of the Nooksack River during the critical spawning season and that must stop,” said Lummi Nation fisherman Frank Lawrence III, who has worked for the tribe’s natural resources department for 17 years.
“In recent years, I have had to adapt to the degradation of the Nooksack River’s habitat, and no fish. So no more fish stories and no abundance of fish to harvest,” he said. “It makes me think, how do the salmon feel every year upon returning home to the low-flowing Nooksack River and having to rub their bellies on every corner? Dirty, warm water that we as a local population should be ashamed of.”
Adjudication will not take away anyone’s legal right to water. The court will look at historic water use to find how much water everyone should be using.
“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,” said Nooksack Chairman Ross Cline Sr.
“Adjudicating water rights allows us to live here sustainably,” said Katherine Romero, Nooksack general manager. “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.”
Additional information is on the website for Salmon Need Water, a joint effort between the Lummi Nation and Nooksack Tribe.
More information about how it works is available on Ecology’s website.