Paper Rights, Wet Reality: Washington’s Nooksack Adjudication Is Setting Up Small Farmers to Fail
As 2026 looms, Washington’s Nooksack adjudication pushes small, aging farms through paperwork traps and penalty risks—while deep-pocketed interests lawyer up.
Washington says the Nooksack (WRIA 1) water-rights adjudication will “bring certainty.” In practice, Whatcom County is marching tens of thousands of ordinary water users—farmers, rural homeowners, and small businesses—into court with too little help, too much paperwork, and a clock that’s ticking toward 2026. Meanwhile, the same legal machinery that’s supposed to balance the books is already grinding down the elderly and the under-lawyered. That’s not stewardship; it’s a slow-motion land and water transfer from the least resourced to the most resourced.
The setup: 30,000+ people, one court, not enough help
On March 17, 2025, the Department of Ecology mailed adjudication packets to more than 30,000 landowners in the Nooksack basin—anyone using groundwater or surface water outside a public utility connection. Most must file claims within one year of their summons, which for many pencils out to around May 2026. The filing fee is $25 (with a $1 online service fee) and fee waivers exist—but nothing in that price tag captures the time, documentation, and legal complexity required to get a claim right.
Now the catch: Whatcom County’s on-the-ground assistance is underfunded exactly when demand is spiking. The county-supported Ag Water Board’s one-on-one “office hours”—30- to 60-minute sessions where people sit down with water-law consultants—had logged 120+ meetings since 2024 and leaders hoped to double capacity before deadlines. Instead, they’re preparing to cut availability 10–15% for lack of money. That is the definition of an access-to-justice problem.
To their credit, the courts are trying band-aids: a traveling water court convened this month in Lynden so people don’t have to drive to Bellingham just to be heard. Symbolically strong; practically, it doesn’t replace real technical help.
“Paper water” vs. “wet water”
Adjudication tallies paper rights—who holds what priority, quantity, and season of use—under “first in time, first in right.” But the hydrology doesn’t bend to paperwork. In summer-low years, confirmed junior rights will still be curtailed because there isn’t enough wet water to go around. If the decree cements more paper than the river can deliver, small producers living crop-to-crop will carry the risk first. Ecology’s own materials emphasize that adjudication doesn’t change the law; it sorts priorities. The problem is what happens after the sorting—when prior appropriation meets a drying August river.
The Spokane cautionary tale: fines, liens, and an 85-year-old
If you want to know who bears the pain when the state tightens water enforcement, look east. In Spokane County, 85-year-old Deer Park farmer Robert Greiff racked up $100,000+ in penalties after irrigating acreage where Ecology says he has no right, following years of notices and a 2023 cease-and-desist. The Attorney General’s Office obtained a judgment lien on his property. Greiff told reporters he’ll neither pay nor shut off the water; the state says that’s unfair to compliant neighbors and fisheries. Regardless of where you land on the merits, the scale of the hammer versus the target—an octogenarian family farmer—reads less like education and more like leverage. Call it what you want; to many rural eyes it looks like a de facto land grab by lien.
That story matters in Whatcom because adjudication multiplies the number of people who can trip on process. Ecology stresses the adjudication claims themselves aren’t criminal. True. But once you’re outside the lines—irrigating without a recognized right, mis-seasoning a use, missing a transfer—you are instantly in a world of civil penalties and liens. Elderly producers with decades on the land but brittle paper trails are the most vulnerable to bureaucratic missteps.
How Washington’s implementation tilts the field
1) Complexity without counsel.
The claims form splits by use types; you must reconstruct historic beneficial use, points of diversion, and season. One wrong box can haunt you for years. Big players have water lawyers and consultants. The small farmer has a kitchen table. The county says “use Chrome/Edge” to e-file—sound advice—but it won’t conjure a chain of title or an old proof-of-use map.
2) Resource triage at deadline.
Adjudication is a one-time proof window for most users. Underfunding assistance right before that window closes is policy malpractice. The state generated 30k pieces of homework; the county wasn’t given the budget to grade—or even tutor.
3) Seniors vs. juniors—who really wins?
On paper, senior rights (often older farms) should be safest. In reality, many seniors are seniors only if they can provewhat granddad did in 1968. Missing affidavits or fuzzy records push you toward junior status or denial. By contrast, well-lawyered interests can perfect, change, and shepherd rights with precision—then lease or bank those rights when curtailment looms. Adjudication doesn’t create water; it can, however, reallocate power over water.
4) Enforcement escalators.
Ecology’s public line—no criminal penalties for filing claims—obscures what happens outside the adjudication lane. The Spokane case shows the state will escalate to five-figure penalties and liens for unauthorized use. That threat backdrop shapes every negotiation—especially for older landowners who don’t have attorneys on speed dial.
5) Process optics vs. farm reality.
A traveling court is good civics theater. But the real friction is at the pump, pivot, and ditch headgate—where producers juggle salmon windows, dry-year cutoffs, and banks who expect a crop on time. Outreach events don’t substitute for a staffed help line that stays open until the claims surge is over.
Are older farmers being singled out?
Not explicitly by age—but functionally by documentation and capacity. People who have worked the same ground for half a century may never have had to narrate their water history in the state’s preferred format. They may hold multiple legacy pieces (certificates, claims, old transfers) across parcel lines that have shifted with time. Those are the folks most likely to make innocent, fixable mistakes—unless someone will sit with them, spread the maps out, and reconcile the record. With assistance shrinking, they’ll be the ones left guessing.
What better could look like—concrete fixes
Fully fund technical assistance now. Ramp up county-level one-on-ones through 2026 so claimants don’t miss the window for lack of help. This is cheaper than litigating thousands of defective claims later.
Grace + cure periods. Build clear, generous correction paths for non-fraudulent mistakes in claims, especially for elderly owners and family operations.
Plain-language packets. Ecology’s guides are improving, but a consolidated “if you’re a small irrigated farm, do A→B→C” with real examples would prevent errors.
Mediation before penalties. Make structured, staffed mediation the mandatory first stop for low-risk violations and seasonal misuses before escalating to five-figure fines and liens. The state shouldn’t default to maximum leverage against octogenarians.
Pro-farmer record recovery. Fund archive teams to help seniors reconstruct historic beneficial use (aerials, assessor rolls, ditch company logs) so valid seniority isn’t lost to paperwork gaps.
Transparency on curtailment rules. Publish plain-English “who gets cut when” examples for typical Nooksack drought weeks so families can plan crops and financing realistically.
Farmers Aren’t Water Lawyers
The state asked 30,000+ people to become their own water lawyers—then shorted the tutors. In theory, adjudication is a neutral referee. In this implementation, it’s a sorting hat that favors those with counsel and punishes those with history but thin paperwork. If Washington wants legitimacy in Whatcom, it must stop making process the point and start making fairness the point—especially for the older farmers whose labor built the basin’s working lands. Otherwise “paper water” will win on paper, and small farms will lose on the ground.