The Nooksack Adjudication: Water rights and why it matters

An adjudication clarifies who has legal rights to water from a particular waterbody, and knowing exactly who has rights to how much water is a vital baseline for making choices about this shared resource in a changing climate.
April 8, 2024

Get email updates

You may have seen articles or heard chatter about the upcoming Nooksack River water rights adjudication. This is Part One of a two-part series on the Nooksack adjudication where we explain the bigger picture, what the process will look like, and what we stand to gain. Banner photo: Brett Baunton / Wild Nooksack

Did you know that water is a public resource, communally owned by all Washingtonians? When you pay your water utility bill you’re not paying for the water itself since no single entity owns it. You’re paying for the costs of treating and delivering that water to your home. Owning water publicly is absolutely necessary to ensure that our water resources are not polluted and overused to the ruin of all. 

Now, in a turn that will surprise few readers, climate change is putting heightened pressure on our rivers in the summer — when agriculture, salmon, and people use rivers the most — because of shrinking snowpacks, smaller glaciers, and increased human demands in a region that are growing every year. The nerdy way of saying this is that climate change is shifting the hydrograph of our rivers: more precipitation is falling as rain instead of snow, flushing that water off the land in big flood events, leaving less water in our rivers and streams in the late summer. 

Outdated water law discourages conservation

But what happens when the human demand for water outgrows the physical presence of water? That’s where water law comes in. Like most western states, Washington regulates the use of water according to the “prior appropriation” framework, which prioritizes water rights based on how old they are (“first in time, first in right”). This means that if there isn’t enough water to go around, senior water rights holders get first priority to use water while junior water rights holders may not be able to fulfill their water rights. More on that in our Water Rights 101 post.

Prior appropriation actually disincentivizes water conservation or irrigation efficiency by requiring water users to use their entire water right year after year or they risk losing their water right (“use it or lose it”). This system was established in the early days of European settlement of the American West, and today it’s pretty obvious that a “use it or lose it” rule is ill-suited for the water challenges we face in the 21st century.

A Nooksack Adjudication will help protect water for salmon, like the pink salmon pictured here
(Pink salmon by Brett Benton / Wild Nooksack)

What is a water rights adjudication?

An adjudication is a thorough analysis of all water rights in a watershed to make sure everyone is getting the water they’re legally entitled to. You might ask: doesn’t the government already know who has the right for how much water? Unfortunately, the answer is no, they don’t! Additionally, the water rights for both the Nooksack Tribe and Lummi Nation have yet to be quantified. Without government agencies knowing who is using water legally and who is using it illegally, they can’t enforce the rules on the books. That’s what adjudication seeks to address.

Adjudication involves the Department of Ecology (“Ecology”) initiating a lawsuit in superior court in which thousands of water rights holders are brought into a single process to prove their water usage is legal. Adjudication requires Ecology to gather, organize, and centralize all relevant documents through an exhaustive process that prioritizes rights from oldest (most senior) to newest (most junior). This process concludes with a final court decree that specifies the priority of each water right, as well as its quantity, place of use, and purpose. 

Ecology plans to file the Nooksack adjudication in April 2024 and send roughly 25,000 letters to water users throughout Water Resource Inventory Area 1 (WRIA 1), which includes the Nooksack watershed, the Lake Whatcom watershed, and smaller adjoining watersheds.

Tribes have the longest-standing water rights — which are at risk

So what kind of water rights belong to the original inhabitants of Washington? Tribal water law is complex, but generally, tribal water rights fall into two categories: on-reservation water rights and off-reservation water rights. On-reservation water rights allow tribes to use water on their reservation for municipal, commercial, industrial, or agricultural uses. The seniority of these rights is established based on the date the tribe’s reservation was created, and since most tribes in the Puget Sound area signed treaties before Washington even became a state, these water rights are generally the most senior in any given watershed where they’re quantified.

Off-reservation water rights are more complex. In short, tribes’ off-reservation water rights relate to how much water must remain in rivers and streams in order to support healthy fish populations. In 1854-1855, the federal government signed treaties with over twenty sovereign nations in Washington which recognized the tribes’ “right of taking fish at usual and accustomed grounds and stations…in common with all citizens…” (Point Elliott Treaty of 1855). 

In the century that followed, numerous court cases clarified just how significant these fishing rights were — culminating in the landmark “Boldt Decision,” which fundamentally altered the course of tribal fishing rights in the Pacific Northwest. In 1974, Judge George Boldt handed down his decision interpreting tribes’ treaty-protected fishing rights to include a right to 50% of harvestable fish. Boldt also reasoned that tribes had a right to manage their fishery, thereby instituting tribal governments as co-managers of fisheries alongside the state.

Over the past 50 years, the courts have ruled that without minimum protections for fish habitat, fish populations would continue to decline, which would constitute a violation of the tribes’ fishing rights. Since the most fundamental component of fish habitat is water itself, the courts have reasoned that tribes’ have “off-reservation water rights” for leaving enough water for fish in streams where they have fished since time immemorial. Importantly, off-reservation water rights have been deemed the most senior water rights in any watershed where they were recognized to exist. Adjudication provides a pathway to quantify (and enforce) these water rights for the first time since the treaties were signed. 

The Nooksack Adjudication

A few years ago, the legislature directed the Department of Ecology to initiate the second general stream adjudication in the state’s history in the Nooksack watershed. In 2019, Lummi Nation and the Nooksack Indian Tribe submitted a formal petition to initiate water rights adjudication for the primary purpose of quantifying how much water should be required to stay instream to fulfill the tribes’ off-reservation instream flow water rights. The legislature’s approval of funding respected this request and kicked off the lengthy, but necessary, process of water rights adjudication in the Nooksack watershed.

Ecology maintains that the Nooksack adjudication won’t take as long as Washington’s first general stream adjudication in the Yakima watershed thanks to many processes being streamlined and digitized. Even so, Ecology expects adjudication in the Nooksack watershed to take 10-15 years.

Unlike the Yakima adjudication, Ecology plans to adjudicate groundwater claims in the Nooksack watershed in addition to surface water rights. Depleting underground aquifers can have a direct impact on how much water is available in nearby streams, but the exact extent of that relationship depends on the aquifer and the stream. Ecology states that adjudication will “provide a simplified process for permit-exempt well users to confirm that they are not impairing senior water rights;” however, it remains unclear what this process will mean for the roughly 20,000 rural wells in WRIA 1. 

Where do we go from here?

Read Part 2 (coming soon) of this piece the on Nooksack adjudication for RE Sources’ vision of the best path forward.

Further reading on Nooksack Adjudication