How is water managed in Whatcom County?

Question: Who currently manages water in the Nooksack Watershed?

Answer: The WRIA 1 Watershed Management Board is an integrated, multi-government structure for coordinating and facilitating implementation of WRIA 1 programs including the WRIA 1 Watershed Management Project, WRIA 1 Salmon Recovery Program, and the Whatcom Local Integrating Organization. The WRIA 1 Watershed Management Board was established by Interlocal Agreement in December 2016 and is supported by a Management Team and Staff Teams. A brief history of the management project can be found on the WRIA 1 website.

Source: WRIA 1 Watershed Management Project webpage

Question: What guides management decisions in WRIA 1?

Answer: The WRIA 1 Watershed Management Project uses an integrated multi-year strategy, budget, and funding approach to advance the WRIA 1 program and plan actions. The guiding document is called the WRIA 1 Watershed Management Board 2018-2023 Implementation Strategy. The plan is a strategy for implementing and sequencing actions that address water quality, water quantity, floodplains, salmon recovery, and stormwater. It is anticipated that the actions implemented in the 2018-2023 plan will also support negotiation of water rights among
affected parties.

Source: Adapted from WRIA 1 Watershed Management Board 2018-2023 Implementation Strategy

Question: What key historical events and policies inform water management?

Answer: Some key events* that shape water management today are as follows and are explained in further detail below:

– First Stewards

– Point Elliott Treaty (1855)

– Doctrine of Prior Appropriation

– Boldt Decision (1974)

– Nooksack Instream Flow Rule (1985)

– Hirst Decision (2016)

– Streamflow Restoration Act (2018)

* This is not an exhaustive list of events that inform water management.

Image source: http://courses.washington.edu/ess454/ESS_454/DOCUMENTS_files/WashingtonWaterLaw.pdf

Question: Who were the first stewards of the Nooksack River Watershed?

Answer: The Lummi Nation and Nooksack Indian Tribe were the first inhabitants of Washington’s northernmost coastal region known as the Salish Sea. They were the first stewards of the Nooksack River. They have cared for the river and the surrounding lands since time immemorial.

Source: Adapted from Lummi Nation Atlas: An overview of the history, natural and economic resources, and government of the Lummi Nation

Image source: Whatcom Land Trust

Questions: What is the Point Elliott Treaty of 1855?

Answer: A treaty is a legally binding agreement between two or more sovereign nations. In U.S. treaties, the Federal government recognizes tribal existence as sovereign nations. The U.S. Constitution Article VI, Section 2, states, “… all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land…”

The Lummi and Nooksack were two of the many groups which were party to the Point Elliott Treaty of 1855. Amongst other things, the treaty ceded lands to the United States government while guaranteeing the tribes the right to continue hunting, fishing, and gathering at usual and accustomed grounds and stations and traditional territories.

Sources: Adapted from Dave Herrera’s presentation Understanding Tribal Treaty Rights in Western Washington, Lummi Nation Atlas: An overview of the history, natural and economic resources, and government of the Lummi Nation, and the Nooksack Indian Tribe website. Image: A page from the Point Elliott Treaty soured from the National Archives.

Question: What is the doctrine of prior appropriation?

Answer: Washington follows the doctrine of prior appropriation, meaning the first users have rights (to water) senior to those issued later. When there are water shortages, senior users are served first and the most junior users may get less or no water. Only state or federal courts have the authority to issue final determinations on prior appropriation.

The Lummi Nation and Nooksack Tribe have the earliest claims to water in the basin, dating back at least to their 1855 treaties with the federal government. However, the rights have not been quantified.

Source: Adapted from Washington Department of Ecology’s Focus on: Potential Adjudication in Nooksack Basin

Image source: Water Rights in Oregon An Introduction to Oregon’s Water Laws (Page 7) https://www.oregon.gov/owrd/WRDPublications1/aquabook.pdf

Question: What is the Boldt Decision of 1974?

Answer: As Washington’s population increased, large commercial and sports fisheries developed. As fish populations decreased, the state of Washington sought to regulate tribal fishing the same way it regulated commercial and sport fishing. Tribal fishermen opposed this regulation as a violation of their treaty rights. In 1974 the United States sued the state of Washington on behalf of Indian tribes to uphold the letter and spirit of the treaties. The case was heard in U.S. District Court by Judge George Boldt.

Boldt ruled: that the language of the treaty provided for an equal sharing of the resource between the tribes and the settlers, and ruled that tribes that were parties to treaties (not all of the tribes in the state were) could take up to 50 percent of the fish harvest that passed through their recognized fishing grounds; Natives could fish for hatchery-bred fish so long as they played a role in the breeding process; the state was to limit fishing by non-Natives when necessary for conservation purposes; and that the tribes were to be co-managers of the state’s fisheries.

Sources: Adapted from WA State Archives’ webpage Boldt Decision and Indian Fishing Rights and History Link’s webpage on the Boldt Decision

Image source: https://wdfw.wa.gov/sites/default/files/publications/01384/2012-13_marine.pdf

Question: What is Nooksack instream flow rule of 1985?

Answer: State law requires that enough water is kept in streams and rivers to protect and preserve instream resources and values such as fish, wildlife, recreation, aesthetics, water quality, and navigation. One of the most effective tools for protecting streamflows is to set instream flows, which are flow levels adopted into rule. In 1985, we adopted an instream flow rule for the Nooksack River (WAC 173-501) in Whatcom County. This rule closed most streams in the watershed to new water right permits but allowed landowners to use permit-exempt wells in most of the area. Whatcom County’s development regulations followed our instream flow rule. 

Source: WA Department of Ecology’s websites Protecting Stream Flows and Hirst Decision

Image source: https://apps.ecology.wa.gov/publications/documents/2011001.pdf

Question: What is the Hirst Decision?

Answer: A 2016 Washington State Supreme Court decision changed how counties decide to approve or deny building permits that use wells for a water source.

In the Whatcom County vs. Hirst, Futurewise, et al. decision (often referred to as the “Hirst decision”), the court ruled that the county failed to comply with the Growth Management Act requirements to protect water resources. Before the Oct. 6, 2016, court decision, many counties relied on the Department of Ecology’s determination about whether year-round water was available. The court decision changed that. Counties had to make their own decisions about whether there was enough water, both physically and legally, to approve any building permit that would rely on a well.

Source: Adapted from WA Department of Ecology’s website Hirst Decision

Image source: Whatcom Land Trust

Question: What is the Streamflow Restoration Act (2018)?

Answer: In January 2018, the Legislature passed the Streamflow Restoration Act (RCW 90.94) to help improve streamflows. The law directed 15 planning groups to develop watershed plans that offset impacts from new domestic permit-exempt wells and achieve a net ecological benefit. 

Source: WA Department of Ecology’s Website Summary of the Streamflow Restoration Act

Image source: https://apps.ecology.wa.gov/publications/documents/2211001.pdf

Question: What is adjudication?

Answer: Adjudication is a process that brings all water users in a watershed into one court process that permanently determines everyone’s legal water rights in that area. The court process leads to full and fair water management by confirming legal rights to use water.

Source: Adapted from Washington Department of Ecology’s Focus on: Potential Adjudication in Nooksack Basin

Question: Who is affected by an adjudication?

Answer: The adjudication covers all water uses within a watershed or basin. This includes uses identified in permits issued by Ecology, as well as claims to water that were made before the state adopted its water code. However, most homes and businesses in these areas are served by water systems, such as public utilities, and will not participate individually in the adjudication. Public utilities will be involved to protect water rights intended for regional uses.

Source: Adapted from Washington Department of Ecology’s Focus on: Potential Adjudication in Nooksack Basin

Image source: https://apps.ecology.wa.gov/publications/documents/2011001.pdf

Question: Why is adjudication happening in the Nooksack River Basin?

Answer: In 2019, the Washington Legislature directed the Department of Ecology to assess where an adjudication process is needed to help resolve water rights disputes. Ecology completed that assessment and identified the Nooksack Watershed as a  location that would benefit from the adjudication process.

Source: Adapted from Washington Department of Ecology’s Focus on: Potential Adjudication in Nooksack Basin

Image source: https://apps.ecology.wa.gov/publications/documents/2011084.pdf

Question: Where can I learn more about water resource management and adjudication in Whatcom County?

Answer:

– Focus on: WRIA 1 Nooksack Watershed Water Availability

– Frequently Asked Questions on Potential Adjudication in the Nooksack Basin

– State of Washington Department of Ecology, Water Rights

– State of Washington Department of Ecology, Water Right Adjudications

– Water Resource Inventory Area (WRIA) 1 Watershed Management Project