Opinion: Ecology’s war on private wells

Nancy Churchill argues a Department of Ecology lawsuit and related legislation threaten long-held private well water rights across Washington state.

Nancy Churchill explains water rights ARE property rights. If the state and the tribes can take the water, they can take everything

Nancy Churchill
Dangerous Rhetoric

In Whatcom and northern Skagit counties, thousands of ordinary property owners and taxpayers have just been subpoenaed in a state-orchestrated lawsuit that could slash their historic well-water rights from 5,000 gallons per day to a mere 350 while the very taxes they pay are funding the attack.

This is not a drought-driven necessity. It is the opening salvo in the Washington Department of Ecology’s deliberate campaign to use tribal nations as a legal shield, manufacture conflict over water rights, adjudicate private wells, and ultimately meter and control every drop of water in the state, transferring effective ownership to sovereign tribal governments at the expense of Washington citizens.

The vehicle for this assault is Whatcom County Superior Court Case 24-2-80000-37. The Department of Ecology has filed suit on behalf of the Lummi and Nooksack tribes, demanding up to a 50 percent increase in total surface and groundwater allocation for them. More than 35,000 subpoenas have gone out to private well owners.

The consequences could be brutal: forced metering of wells, drastic reductions in long-established rights, mandatory individual court appearances to defend what was once unquestioned, and new fees that will hit well owners and water associations alike.

Property Owners Well Water Rights Alliance (POWWRA) has formed in direct response. These are not wealthy developers or corporate interests. They are families, farmers, and rural homeowners who have relied on their wells for generations. They are now forced to band together to fight the very government that is supposed to protect their rights.

The questions this lawsuit raises cut to the heart of the matter.

Creating conflict

First, why is the Ecology using the tribes to create conflict over water rights?

The agency did not file the suit in its own name. It waited for petitions from the Lummi and Nooksack, then leapt in as plaintiff. This allows the state to hide behind the politically charged banner of “tribal rights” while pursuing total control over groundwater.

It creates artificial “senior rights” disputes that justify metering and reallocation. And it does all of this with the defendants’ own tax dollars. The people being sued are literally paying for the lawyers who are trying to take their water.

Senior water rights?

Second, do the tribes actually have senior water rights that trump everyone else? The historical record says no. The Lummi and Nooksack ceded their land under treaties and were compensated. There is no unceded territory here.

Their claims rest on a selective reading of the 1855 Point Elliott Treaty and the Boldt Decision, while conveniently ignoring multiple Supreme Court precedents that limit such assertions. Federal trust obligations do not magically grant tribal nations superior rights over private well owners who have held legal water rights for decades.

Are tribes sovereign nations or not?

Third, why is a state agency interfering in what is fundamentally a federal process? Indian treaty rights and associated water rights are federal matters. The Department of Ecology has no business litigating or negotiating tribal rights against its own citizens. Yet here it is, claiming “expert” authority to decide who gets what. This is the Chevron Doctrine run amok, an unconstitutional power grab that treats state bureaucrats as the final arbiters of federal obligations.

Fourth, the tribes are independent sovereign nations. So why is the State of Washington negotiating against its own people on their behalf? Sovereign status means the state cannot lawfully act as the tribes’ proxy in a lawsuit against Washington citizens. The conflict is grotesque: the government pits one group of citizens against sovereign entities while simultaneously claiming to represent those same sovereigns. This violates basic due process and equal protection under the law.

Procedural abuses

The procedural abuses compound the injury. Defendants received no meaningful opportunity to respond before the suit was filed. The “experts” behind the DOE’s science remain unidentified. The case sweeps in wells far outside the Nooksack Basin: Sumas, Blaine, Point Roberts, northern Skagit, places the river never reaches. The clear intent is to set a precedent that can be rolled out to every Water Resource Inventory Area (WRIA) in the state.

Upper Columbia River “Pilot” Adjudication

Look east for the companion strategy. House Bill 2544 creates a “pilot” adjudication for the upper Columbia River. It starts with federal and tribal claimants, allows back-room settlements to lock in priority rights, then expands outward. The bill is sold as “efficient.” In reality, it is the velvet glove to WRIA-1’s iron fist. Different tactics, identical goal: establish the legal machinery to transfer water rights from state citizens to tribal nations, not to individual tribal members, but to the governments themselves, then meter every well in the Columbia Basin, so the state can control all water usage under the banner of treaty obligations.

A power play featuring YOUR water rights

This is not about scarcity or equity. It is a coordinated power play to strip private property rights and centralize control of water under Washington’s Department of Ecology and its tribal partners. Success in either the Nooksack Basin in western Washington or in the upper Columbia River pilot in eastern Washington will be replicated in every Water Resource Area. Every well, every farm, every home will eventually fall under the same regime.

The time to fight is now. Well owners all across Washington must unite through POWWRA. They must secure expert federal counsel, attorneys like Lawrence Kogan of New York who have beaten this playbook before. They must demand dismissal of the WRIA-1 case on jurisdictional, due-process, and constitutional grounds. And they must pressure the Legislature to rein in the Ecology’s rogue campaign before the precedent is set.

Water rights ARE property rights. If the state and the tribes can take the water, they can take everything.

Nancy Churchill is a writer, educator, and conservative activist in rural eastern Washington State. She chairs the Ferry County Republican Party and advocates for effective citizen influence through Influencing Olympia Effectively. She may be reached at DangerousRhetoric@pm.me. The opinions expressed in Dangerous Rhetoric are her own. Dangerous Rhetoric is available on Substack and X.