Experts are urging residents to proactively gather information they will need to file their claims in the water rights lawsuit filed by the Department of Ecology.
Ecology has not yet finalized forms and instructions necessary for users to submit their claims, despite filing the lawsuit in Whatcom County Superior Court earlier this month.
“Although the forms aren’t available yet, water users can start preparing by gathering any paperwork they have about water usage on their property,” said Scarlet Tang, Washington Department of Ecology’s northwest region communications manager.
The forms will likely require users to provide information about when water was first used on their property, the source of the water, the point of access, where the water is used and what it’s used for, Tang said.
The adjudication lawsuit of Water Resource Inventory Area 1 — which covers the entire Nooksack Basin, as well as Lake Whatcom, TenMile Creek, Sumas, Point Roberts, Lummi Island and other watersheds, such as Dakota Creek and Lake Whatcom — will determine whether each water right is legal, how much water can be used and what its priority will be during shortages.
The process is expected to impact upward of 30,000 people as the court reviews all water rights, including those held by farmers, local governments, private well owners and tribes, as well as federal and state agencies.
A draft of the adjudication form and direction was released by the department in January and open to the public for comment for a two-month period. Tang said the department is working with the Attorney General’s Office to carefully consider the public comments received. Forms will be due in 2025, at the earliest.
Those who have homes only on wells will be allowed to use a shorter form, while those using larger volumes of water or who have more complex uses will need to fill out the full-length form, providing more detailed information about water quantity and season of use.
At a March event in Lynden, water rights experts gave about 400 concerned residents a crash course in the adjudication process. The speakers asked the audience to keep in mind that they were working off of the draft forms, which could change based on public comment.
As proposed, anyone withdrawing groundwater from an existing well for a single home that is watering no more than half an acre and using no more than 500 gallons per day for indoor use can fill out the short form.
The draft version of this form required the following information:
- Claimant information, including name, mailing address, phone and email
- Date the first home was built on the property
- Answers to basic water use questions
- Information on well, including depth, location, parcel number
- Information on where the water is used, such as address and parcel number
- Signature
Bill Clarke, a water rights attorney, voiced his concerns about the short form, saying that if it is used in the process, it sets a future limit to the water usage of the homeowner, as well as a lower standard of proof compared to those who have to file the full-length form.
“They don’t have to prove their actual water use,” Clarke said. “They get kind of a free pass in terms of proving that that’s how much water they actually use.”
He said that if the “thousands and thousands” of rural homes in the county each get half an acre of outdoor irrigation without any proof, they’re consuming a significant amount of water.
“You could have thousands of acre-feet of water being given away through the adjudication really with no proof, while farmers in the meantime have to prove every drop of water they use,” Clarke said. “So, in fact, you’re elevating suburban homeowner-type irrigation over commercial irrigation.”
He noted that while state statute does allow the department to streamline the process for small water users, it doesn’t necessarily exempt those people from proving their actual water use.
The full-length claim form can be filled out by any water user for each of their claims. However, it will likely be required for other permit-exempt groundwater users, such as group domestic residents, stockwater or industrial water use.
This full-length form is expected to require the following information:
- Claimant information, including name, mailing address, phone and email
- Legal basis of water right: identifying exemption or water right number
- The priority date or the date when the intent of use was established
- Description of the source of water and information on well or diversion
- Information on source, such as well depth, location, parcel number
- Information on where the water is used, such as address and parcel number
- Specific information on how much water is used for different purposes, including type of use, instantaneous rate, annual volume, period of use
- Irrigators will also need to include information on current area irrigated and the maximum area irrigated, as well as details about water storage
- Signature
After the time period for claims to be submitted comes to a close, water right holders will have three years to amend their claims with any additional documentation.
“Get all the evidence together first, make sure you know what the answer is — and then put your court claim form together,” advised RH2 Engineering hydrogeologist Andy Dunn during the March event.
Dunn told the crowd that nobody was expecting them to be able to account for every gallon of water pumped every year going back decades, but that they would need to piece together enough coherent documentation to clearly paint the picture that backs their claim.
“So [enough] evidence is submitted to convince Ecology, the court and potentially third parties that what you said on your court claim form is accurate,” Dunn said.
Residents who do not file their claims with the court risk losing their ability to legally use water, confirmed the Department of Ecology.
The department mailed 30,000 postcards to water users in and around Whatcom County in April as part of their ongoing effort to prepare the public for the process.
“We don’t want anyone to be surprised or confused when they get a legal summons in the mail later this year,” the department’s adjudications manager, Robin McPherson, said last month. “This is just one of the ways we are reaching out to get people information and resources to help them understand and engage in the adjudication process.”
Tang asked that water rights holder remember that the department has yet to finalize the form.
“It’s important that people carefully review the claim form and instructions when they receive them,” she said.
The department has a frequently asked questions page about the three main types of water right documents: claims, permits and certificates. Additionally, it’s possible for water rights users to check the department’s Water Rights Search Database to see what the state already has in its files for a property.
Those wanting more information about the process can reach the department at: ecology.wa.gov/nooksack-adjudication, 360-255-4406, or WRadjudications@ecy.wa.gov.
The department said in-person assistance will be available later this year.
Isaac Stone Simonelli is CDN’s enterprise/investigations reporter; reach him at isaacsimonelli@cascadiadaily.com; 360-922-3090 ext. 127.
