BBWSD manager calls for local solution to tribal water rights issue

Published on Wed, Jan 25, 2012 by Jeremy Schwartz

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With two local native tribes seeking a federal determination on possession of local water rights, the general manager of the Birch Bay Water and Sewer District (BBWSD) is calling for a solution from within Whatcom County.

Earlier in January, representatives from the Nooksack and Lummi tribes sent letters to the U.S. Department of the Interior requesting a federal court decision over what water rights the tribes have within the state. The tribes say six years of negotiations over the extent of their water rights have stalled, and they are asking the Department of the Interior to take the state of Washington to court over the issue.

Currently, the majority of water rights in Whatcom County are determined by permit on a case-by-case basis, BBWSD manager Roger Brown said. Neither federal, state nor county courts have officially decided what entities, such as cities and water districts, get access to how much water. This process is called adjudication and is what the tribes are calling for at the federal court level, Brown explained.

Though the tribes are simply asking for their rights to be adjudicated, the process would eventually determine the rights for all the water-using entities in the county, Brown said. Current water rights permits could be challenged in such a process, meaning water rights obtained for ground water in Blaine and Birch Bay would have to be determined again.

“We’re trying to look at the big picture,” Brown said.

Brown thinks adjudication should happen at the county district court level before the federal level for two reasons: cost and accountability. Brown said the adjudication process could take 25 years, causing the state to sink possibly hundreds of thousands of dollars into court costs. Whatcom County government might also have to spend needed funds on a lengthy adjudication process.

Secondly, Brown said adjudication at the state level would be presided over by a judge who serves for life and cannot directly be held accountable. County district judges, however, are elected and ultimately have county voters to answer to.
“It’s a simple matter of accountability,” Brown said.

Brown could not predict what might happen with the tribes’ water rights adjudication, but he was certain a decision at that level would eventually affect water rights countywide. Through letters to county administration, Brown has tried to made clear that alternative adjudication methods should be looked at.

“I’m trying to get the right questions on the table right now,” Brown said.