Washington State Legislation Would Authorize Two New Large-Scale Water Rights Adjudications
Legislators in Washington State introduced parallel bills that would authorize funding for two water adjudications in Washington State. A water rights adjudication effectively brings all water users in a watershed into one lawsuit to fully determine everyone’s water rights legally and permanently. Identical provisions of HB 1094 and SB 5092 would appropriate general funds for the Washington State Department of Ecology (Ecology) to prepare and file adjudications in the Nooksack watershed in Northwest Washington and the Lake Roosevelt watershed in Eastern Washington. Interested parties can submit comments on these bills here and here.
If these bills pass, water users in Whatcom County and Eastern Washington should prepare to join a collaborative process, if available, and the water rights adjudication, in order to protect their access to water.
The legislation suggests that Ecology is willing to start a collaborative process in the Nooksack basin prior to beginning an adjudication. However, comments on the legislation show that parties disagree about whether an adjudication is the best method to solve these issues. Many family farmers in the Nooksack area have stated that the legal costs of an adjudication are too great. However, the Colville Tribe, Lummi Nation, and Nooksack tribes have all petitioned Ecology for adjudications and spoken in support of the legislation.
Looking for the Next Adjudication
This legislation is the latest step in a process beginning in 2019, when the Legislature asked Ecology to identify areas that were the highest priorities for future adjudications. In response, and after receiving the tribes’ petitions, Ecology determined that the Nooksack and the Lake Roosevelt basins warranted the highest priority. These actions come after the Yakima Superior Court completed an adjudication of water rights in the Yakima Basin after almost 42 years.
Both of the watersheds that Ecology has recommended for adjudication are facing growing demands on increasingly scarce water. Ecology identified the Nooksack watershed in Northwest Washington as a key basin because of the pressures from the many water users in the area and demands for instream flows that act as critical habitats for many species, including species such as Chinook salmon that are listed under the Endangered Species Act. Similarly, Ecology recommended an adjudication of the Lake Roosevelt basin, which contains both Washington’s largest reservoir and its largest Indian Reservation, to help evaluate the rights of water users in a basin that also provides habitat to numerous fish and wildlife species.
As noted above, a water rights adjudication effectively brings all water users in a watershed into one lawsuit to fully determine everyone’s water rights legally and permanently. Water rights adjudications most frequently arise where water rights are over-appropriated.
The bills propose supporting a collaborative process among local water users in Whatcom County, the location of the Nooksack basin. The funding would provide for facilitation and mediation among parties, as well as the development of plans, technical information, and an assessment of local solutions. In furtherance of attempts at a collaborative process or mediation to simplify the water rights adjudication, the bills state that Ecology will not file an adjudication in Superior Court for the Nooksack watershed until June 1, 2023.
The legislation does not fund a collaborative process in the Lake Roosevelt Basin, or similarly limit the time by which an adjudication in the Lake Roosevelt Basin may be filed. This signals that if funding is approved, Ecology would likely file an adjudication in the Lake Roosevelt Basin first.
Beveridge & Diamond’s Water practice—which includes lawyers in Washington State—develops creative, strategically tailored solutions to challenges that arise under the nation’s water laws. B&D helps clients determine, obtain, and preserve the water rights necessary for their operations. We advise on the challenges and opportunities that arise from numerous sources, including competing demands for scarce water resources, agricultural and forestry water management practices, water storage, transfer and conveyance rights, wetlands preservation and mitigation, habitat and ESA requirements, and the watershed-based planning and permitting process. For more information, please contact the authors.