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.

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