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Volume 94, Number 25
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LOOMING BATTLE
Northwest Washington farmers brace for
water-right lawsuit that Ecology is preparing
By DON JENKINS
Capital Press
W
HATCOM
COUNTY,
Wash. — At the request of
two tribes, the Washington
Department of Ecology plans
to sue water users in What-
com County, raising the pos-
sibility of severely curtailing irrigation in
Western Washington’s top farm region.
Salmon need more water, the tribes say.
Receptive to that, Ecology invokes equity, cli-
mate change and environmental justice to jus-
tify the adjudication, in which a local judge
will sort out the region’s water rights.
The county borders Canada in the northwest
corner of the state. Water rights are tangled
and uncertain here, and the tribes’ willingness
to “risk” their claims in state court presents a
rare chance to achieve “certainty,” according
to Ecology.
Nooksack Tribal Coun-
cil Chairman Ross Cline Sr.
said he doesn’t see the peril.
Water law begins with the
maxim, “fi rst in time, fi rst in
right.” The Nooksack tribe
and Lummi Nation predate
all settlers.
Ross
“We don’t feel like we’re
Cline Sr.
taking a risk,” Cline said.
“We’re pretty sure of the out-
come. They’ll fi nd us No. 1, fi rst in line.”
If so, other water rights will remain uncer-
tain until the tribes’ rights are quantifi ed. Not
just surface-water rights, but groundwater
rights are at stake because aquifers connect to
the region’s rivers and streams.
Junior to tribal rights, every other water
right could become “interruptible,” Whatcom
Family Farmers executive director Fred Likkel
said. “That’s where this could go.”
To get an idea of what his tribe wants, Cline
suggests looking at a 1974 court decision.
That’s when federal District Judge George
Boldt ruled that treaty tribes were entitled to
half the salmon in Washington waters. In that
case, the federal government sued Washington
on behalf of the tribes.
In Whatcom County, Ecology, a state
agency, will sue state water users at the request
of tribes, which are sovereign nations. Boldt’s
ruling suggests tribes are entitled to half the
water, Cline said.
See Water, Page 9
British Columbia
United States
Lynden
Lummi
Reservation
Don Jenkins/Capital Press
Water Resource
Inventory Area 1
Boundary
Bellingham
Nooksack
Reservation
Whatcom County
Skagit County
Detail
area
WASH.
The Nooksack Basin
WASH.
Washington Department of Ecology
Whatcom County,
Wash., seed po-
tato farmer Greg
Ebe sees a long,
expensive and
unnecessary court
fi ght ahead to
defend his farm’s
water rights in a
lawsuit the Wash-
ington Depart-
ment of Ecology
plans to fi le.
Capital Press graphic
Most Oregon wells drilled in groundwater concern areas
By MATEUSZ PERKOWSKI
Capital Press
Most new wells in Oregon are
drilled where groundwater is already at
risk of depletion, potentially aggravat-
ing confl icts among irrigators, accord-
ing to state water regulators.
In the past decade, about 80% of
applications for groundwater permits
were in “areas of concern” or “signif-
icant concern” for declining aquifers
and other groundwater problems, an
agency study found.
Roughly 80% of those applications
were approved by the state’s Water
Resources Department, the study said.
One-third of the “signifi cant con-
cern” areas identifi ed in the OWRD’s
analysis aren’t currently subject to reg-
ulatory groundwater restrictions, the
report said.
The report’s fi ndings were recently
met with consternation by some mem-
bers of the Oregon Water Resources
Commission, which oversees the
agency.
The problem is reminiscent of fall-
ing Chinook salmon populations in the
Willamette River, which some con-
sider the “best studied extinction ever,”
said Joe Moll, commission member
and executive director of the McKen-
zie River Trust.
“I kind of fear we have a similar sit-
uation where we’re watching some-
thing get worse. We’re kind of working
but we’re somewhat limited, i.e. help-
less,” Moll said during the commis-
sion’s most recent meeting.
Under Oregon water law, regula-
tors are limited in their ability to reject
permits for new wells, said Justin Iver-
son, OWRD’s groundwater section
manager.
For example, wells must generally
be within a mile of a stream or river
to trigger concerns about substantially
interfering with surface waters, he said.
OWRD
See Wells, Page 9
Groundwater Resource Concerns 2021
Biden administration to redo WOTUS
By DON JENKINS
Capital Press
The
Biden
administration
announced June 9 it will rede-
fi ne “waters of the United States,”
claiming the Trump administra-
tion’s rule left streams unprotected,
particularly in the arid Southwest.
The Environmental Protec-
tion Agency said it won’t return to
the 2015 Obama administration’s
WOTUS defi nition, but will revert
to the pre-Obama
rule and then write
a new one.
The American
Farm Bureau and
some Western con-
gressmen criticized
Michael
dropping the 2020
Regan
Trump rule. The
reversal had been
expected since the election. On his
fi rst day in offi ce, President Biden
ordered the EPA and U.S. Army
Corps of Engineers to review the
rule with an eye toward rescind-
ing it.
“Just as predicted, the Biden
administration announced its intent
to dismantle the Navigable Waters
Protection Rule — a move that
threatens the livelihoods of many
in rural America,” U.S. Rep. Dan
Newhouse, R-Wash., said in a
statement.
The federal Clean Water Act reg-
ulates the discharge of pollutants
into navigable waterways. WOTUS
defi nes a navigable waterway.
Farm groups complained the
Obama rule extended federal juris-
diction to pastures, fi elds and
ditches that were dry most of the
year. Environmentalists supported
the Obama rule and opposed the
Trump rule.
American Farm Bureau Presi-
dent Zippy Duvall said the Trump
See WOTUS, Page 9
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