“At the direction of the Washington State Legislature, the Washington State Department of Ecology is preparing to file a water rights adjudication in Water Resource Inventory Area (WRIA) 1 Nooksack Basin. This includes the entire Nooksack River watershed as well as nearby Bellingham Bay, Birch Bay, Chuckanut, Drayton Harbor, Lake Whatcom, Lummi Bay, Point Roberts, and Sumas River watersheds, which comprise the majority of incorporated and unincorporated Whatcom County. A water rights adjudication is a legal process to quantify and prioritize water use, with highest priority given to the oldest, continuous water use (RCW 90.03). The Department of Ecology is planning to begin the adjudication in the spring of 2024 through Whatcom County Superior Court and will then notify all water users involved by certified mail. These water users will need to file a claim within one year of the adjudication filing to describe their water use, after which the court will inventory all legal water rights in order.” (Quoted per Whatcom Co. Public Works Dept.)
What does this mean? It means that almost everyone getting water from a well in Whatcom County (roughly 15,000 users) is in for a very long and painful process. The Department of Ecology (DOE) has really downplayed the significance of this, and has done a very poor job of making the public aware. In the next couple of months, every home that receives water from a private or shared well will receive a letter from Whatcom County Superior Court demanding that the user document the date the well was put into service, and the quantity of water use that the home has historically used. The letter is in essence a type of summons, and cannot be ignored. People who use water only as customers of a system — such as a city, PUD, or water system — will not need to file a claim. As a general rule, anyone else who wants to use WRIA 1 water needs to participate in the adjudication, including permit-exempt well users.
A “permit-exempt” well is the regular type of well that ordinary homes use. Many farms have long-established water rights that specify the quantity of water that can be used. In the past, a well was exempt from needing a water right if the quantity used was less than 5,000 gallons per day. That exemption is now going away, retroactively, to the beginning of Statehood. The purpose of the adjudication is to establish the seniority of water claims, in historical order, and the quantity that each well is entitled to based upon actual use. Proof of quantity used is on the well owner. At the end of the process every property will have an “adjudicated use” (similar to a water right) that attaches to the well and is binding upon all future owners of that well. Properties with wells that have higher quantities of allotted water will be more valuable, so it’s important that homeowners document and defend exactly how much water they actually use. The only way to get out of the adjudication process quickly will be to agree that your well will be forever restricted to 500 gallons per day, with a limit of only 1/12th of an acre outdoor watering allowed. DOE has stated that all wells will have to be metered to insure compliance.
So how long will this take? Estimates are at least 20 years! Nobody really knows because we are entering uncharted territory. The only time the State has done a similar process was in the Yakima Basin. That case involved a much smaller number of affected users, and was limited to surface water, not wells. The Yakima case began in 1977 and wasn’t resolved until 2022. There is a chance that all parties in the Nooksack case could agree to some sort of a Federal settlement, but the likelihood or timeline of this happening is unknown.
One of the most important aspects of the process that the DOE has downplayed is that there will be a Lis Pendens requirement. A Lis Pendens is a notice that a property has a claim against it backed by a pending lawsuit, and is recorded against the title of the property. The major problem this creates is that banks are not likely to loan against a property that is subject to a Lis Pendens. A homeowner who is stuck in the adjudication process will only be able to sell to a cash buyer, assuming a cash buyer would be willing to join the lengthy legal process and also be subject to a Lis Pendens. The only way out to sell to a buyer with financing will be to accept the lower quantity of 500 gallons per day and 1/12th acre outdoor use, thereby reducing the value of the property and potentially the suitableness of use for a buyer. For many people, what will be the point of owning acreage if you can only have a tiny lawn or garden, and no animals?
Whatcom County already has a serious inventory shortage of homes for sale. The adjudication process will make many rural homes unsellable or potentially undesirable for a very long time, driving what would have been potential buyers for those homes into the cities and other areas that aren’t affected by the adjudication process. I predict that prices in town will begin to rise, perhaps very significantly, by the end of this year.
This is a complicated and tremendously important issue. Please contact me if you would like to discuss how this impacts your particular situation.
Further information can be found on the Dept of Ecology and Whatcom County websites.