Court Approves Water Rights Settlement In Washington State
A federal judge in Seattle recently approved a water rights settlement that resolves a longstanding
dispute regarding the regulation and use of groundwater in northwest
Washington State. Acting Assistant
Attorney General for the Environment and Natural Resources Division Ronald
J. Tenpas remarked that "This settlement brings the parties together,
reducing the possibility of future litigation and builds a framework for
cooperation between the tribe, state, and private parties."
U.S. District Judge Thomas S. Zilly on Nov. 20, 2007, issued a
final order and judgment approving a settlement negotiated between the
United States and Lummi Indian Nation and the Washington State Department
of Ecology, Whatcom County, Wash., and several water associations (Georgia
Manor, Sunset, and Harnden Island View), and various non-Lummi property
owners. The settlement concerns groundwater usage on the Lummi Peninsula,
which is located on a portion of the Lummi Reservation in western
Washington.
Because the Peninsula is bounded on three sides by salt water, pumping
of groundwater must be restricted, and carefully monitored, to prevent salt
water from intruding into the aquifer from which the water supply is drawn.
The settlement apportions available groundwater on the Peninsula into two
allocations: the Lummi Nation Allocation and Department of Ecology
Allocation. Water subject to the Department of Ecology Allocation is to be
regulated by the Washington State Department of Ecology and water subject
to the Lummi Nation Allocation is to be regulated by the Lummi Nation. To
foster cooperative management of the aquifer, the Agreement imposes
chloride standards on wells on the Peninsula, and it sets forth uniform
joint technical requirements, to be enforced by both Lummi and Ecology,
regarding the installation of meters, construction of wells, water sampling
methods, and related matters.
The Department of Ecology Allocation includes enough water to allow all
non-Lummi landowners who currently use water on the Peninsula to continue
to use water, plus it allows some water for future uses by non-Lummi
landowners. The Lummi Nation regulates all groundwater use on the Peninsula
not subject to the Ecology Allocation. Some of the water within the Lummi
Allocation will be used by non-Lummi landowners, however, as the Lummi
Nation will continue to serve water to various non-Lummi landowners who
signed separate settlements or service arrangements with the Lummi Nation
in the past.
In approving the settlement, the federal court stated that "the
Settlement Agreement exhibits a balance rarely seen in litigation
concerning a precious and potentially scarce commodity; it preserves the
resource rights of the Lummi Nation, while guaranteeing existing users a
sufficient amount of water for their needs and making water available for a
limited number of future users."
As a result of the settlement, persons who want to use groundwater on
the Peninsula in the future must obtain advance approval from the
appropriate regulator, either the Department of Ecology or the Lummi
Nation. Further, all well owners on the Peninsula, both Lummi and
non-Lummi, must install meters and measure chloride levels in their wells
and report the measured data to a water master in an annual report. If
chloride levels are too high, the Agreement imposes restrictions on use of
the wells.
Any disputes regarding implementation of the agreement will be resolved
by a court appointed water master, subject to an appeal to the federal
district court.