Realtors, farmers agree: water adjudication will push sprawl, won’t save salmon

Preserving farmland and preventing sprawl has been the slogan of Whatcom County citizens and, along with preserving salmon, the guiding light for environmental efforts in our county for decades.

Now, the Department of Ecology has filed the WRIA 1 watershed adjudication, a legal proceeding in Whatcom Superior Court, requiring every farmer and rural homeowner to become a defendant with respect to water use.

Although Ecology states this adjudication is about quantifying water use, the reality is this dispute will be neighbor against neighbor, industry against industry, and both against all other water claims in the Nooksack River basin.

Ecology’s lawsuit results from decades of water resource mismanagement. They adopted the 1985 Nooksack Instream Flow rule with the stated purpose of limiting future surface water rights. But they have since reinterpreted that rule to now prohibit new groundwater uses as well. This means the many water users who filed applications for groundwater use after 1985 suddenly found themselves in water-use limbo as those applications sit idle in Ecology’s offices.

The practical result of Ecology’s management failure is this: a long, expensive lawsuit. What it does not do is solve the fundamental problem of houses versus farms versus salmon.

Ecology says that this adjudication is to “verify water rights” and often mentions this goal in public presentations. Washington uses a prior appropriation water rights system where water can be legally used based on a water right’s priority date. The oldest water rights get water first and when water is in short supply, junior water users cannot use water — any water.

More than simply verifying water rights, this lawsuit seems to be focused on quantifying and establishing priority for Ecology’s 1985 Nooksack Instream flow rule as a senior water right. This instream flow rule is a target that cannot and will not be met by actual flows in the Nooksack River. The adjudication lawsuit is likely to relegate many of our water rights as “junior” to the unattainable instream flow for significant parts of our summers. What happens to all those inferior “junior” users when the instream flow senior right is not met? Junior water users are shut off.  Even Ecology admits this, saying in their recent newsletter: “In the future, some water uses may be interruptible in times of shortage.”

So where does that leave us?

Will we save salmon in the Nooksack River? The biggest struggles our salmon face are higher up the river, above where the vast majority of our population lies. Likewise, the instream flows in the Nooksack not being met is also mostly related to decreasing amounts of water flowing from our mountains in the summer. Additionally, Ecology has gone far beyond the streams that do impact the Nooksack to include water rights with no direct connection to the river. Rights in Birch Bay, Blaine and the Sumas River — a tributary to the Fraser River in British Columbia — are all part of the adjudication. This adjudication, Ecology’s multi-million dollar lawsuit funded by taxpayer and private party money, sadly will not result in a single salmon being returned to the Nooksack River.

Will we save rural lands? Ecology is proposing to provide rural property owners a blanket grant of 500 gallons per day of domestic (indoor) use and irrigation of one-half acre of non-commercial lawn and garden. Ecology’s generous “gift” to rural homeowners may seem harmless enough. But we know that Whatcom County’s housing crisis and land-use policies have resulted in sprawl of housing into rural areas with rural housing growth second only to the City of Bellingham in the past 20 years. Even the county’s own consultant characterized the county’s land use planning as “unsuccessful.”

Will we preserve farmland? The saddest irony of this litigation is that farms lacking sufficient water rights for irrigation will suddenly have immense pressure for housing development. With housing water easy to obtain, any agricultural entity that loses sufficient access to water or has junior water rights may have few options but to convert that farmland to housing development. Given Ecology’s proposed grant of “free” water noted above, water for that housing will be provided by Ecology.

And so the conflict goes on, and instead of providing leadership, our government has filed one of the most expansive lawsuits in the history of Washington state. At last count an estimated 37,000 will be defendants in the case, far outpacing Ecology’s original estimate of only 15,000. 

Ecology’s decision to adjudicate domestic permit-exempt water use is a puzzling one, and at odds with typical water management practices in Western states. Also, their lack of pursuing solutions that could provide more certainty for farms is equally troubling. Ecology recently responded that their contribution to finding solutions is to “file the adjudication.” That led many to the understandable fear of a very long and expensive lawsuit — a lawsuit that creates unnecessary adversaries amongst friends and neighbors.

We must try to avoid the perverse outcome of destroying farmland and encouraging sprawl. The values our community has continually upheld — rural lands, thriving agriculture, and clean streams full of salmon — are greatly at risk.

Other Western states have adjudicated water rights over decades with few benefits. Those proceedings with the best outcomes involved federal water-right settlement efforts. We all know the problems — less snow and more rain in the winter leading to flooding, less water in the summer resulting in lower flows, and salmon “die-off” in river reaches with little or no water use impacts — so we need leadership to help find solutions.

Ecology can still provide this leadership, not by engaging in decades-long litigation, but by bringing all parties together to find common sense solutions that harmonize the competing interests and maintain the high quality of life we have all come to enjoy in Whatcom County.

Perry Eskridge is government affairs director for the Whatcom County Association of Realtors; Fred Likkel is executive director of Whatcom Family Farmers.