WA Dept. of Ecology files lawsuit officially launching Nooksack River water rights process

In an effort to decide who owns the rights to water across Whatcom County and how much water they can use in wet and dry years, the state Department of Ecology filed a lawsuit Wednesday — called an “adjudication” — that requires a judge to rule on that issue.

Ecology’s lawsuit could affect 30,000 people with wells and other water users in the Nooksack River Basin, which the state calls Water Resource Inventory Area 1. It includes the rivers, creeks, ponds, lakes and groundwater in all of Whatcom and part of northwestern Skagit County.

Affected parties include local governments, including Lummi Nation and the Nooksack Tribe, farmers, businesses and rural residents with wells. People who get their water from a utility such as the city of Bellingham won’t be affected, Ecology said in a statement announcing the lawsuit Thursday.

A Whatcom County Superior Court judge was appointed to handle the case. Ultimately, the lawsuit could have broad impact on local agriculture, development and the environment.

Water rights in the Nooksack River basin have been a topic of discussion for more three decades, culminating with a 2016 state Supreme Court ruling that said Whatcom County officials weren’t following state Growth Management Act requirements to protect water resources.

That court ruling told Whatcom County to establish a policy for water availability that:

▪ Satisfies the needs of farmers, businesses, developers and homeowners.

▪ Addresses environmental concerns, especially with regard to flood management and salmon protection.

▪ Respects the treaty rights of Lummi Nation and the Nooksack Tribe.

Since the Department of Ecology is responsible for managing water resources statewide, and county officials couldn’t agree on local management plans, the state began preparing legal action to decide local water rights once and for all.

“No action is required at this time. In the coming months, water users will receive a summons by certified mail with instructions for filing their claims. Water users will be directed to file with the court within one year. Those who do not file their claims with the court risk losing their ability to legally use water,” Ecology said in a statement announcing the lawsuit Thursday.

An adjudication process prioritizes individual water rights, including federal, tribal and “instream flow rights” under Washington law, which put those who were using the water first at the head of the line, Ecology said.