Lawsuit threat may spur talks on tide gate

Skagit Valley Herald


Skagit Valley, WA - The threat of a lawsuit against Fir Island's dike district may be what is needed to force a solution in the ongoing battle between fish and farms at the edge of Skagit County.

At least, that's the perspective of salmon advocates. The five dike district commissioners, caught in the crosshairs, may feel a little differently.

The Swinomish Tribe announced Tuesday that it has filed a "notice of violation" against Dike District 22 over the district's tide gate on the bottom end of Dry Slough. The notice is a 60-day warning that unless the district fixes its problems, the tribe will sue for alleged violations of the federal Endangered Species Act and Clean Water Act.

An almost-identical notice was also filed Tuesday by the National Wildlife Federation.

The threat of a lawsuit is necessary because discussions with the district and landowners in the area haven't been productive, said Larry Wasserman, environmental services director for the Skagit Systems Cooperative, a consortium of tribes with fishing rights on the Skagit River.

And the lawsuit must invoke federal law because a state law passed last spring, known as House Bill 1418, exempted tide gates from having to provide fish passage.

"(House Bill) 1418 removed the opportunity to deal with it at a state level, through the hydraulics code," Wasserman said.

Both Wasserman and Jan Hasselman, lawyer for the National Wildlife Federation, minimized the connection between the two notices being filed on the same day.

"There have been a lot of discussions between us, but they're two independent actions," Hasselman said.

Gary Jones, lawyer for Dike District 22, said he hadn't seen the notices on Tuesday and couldn't comment directly.

But he did say the Endangered Species Act treats diked land, such as Fir Island, differently than unaltered land.

The tide gate in question was replaced in September 2002 after it started leaking. The state had given the district permission to install a new gate, as long as a provision for fish passage was made within a year. But after House Bill 1418 was signed by Gov. Gary Locke in May, that requirement evaporated.

The tide gate allows water to drain off the farmland through the dike, but keeps salty tide water off the land and away from crops. But the gate's flap also keeps fish from passing though and making use of the slough on the inside of the dike.

Wasserman said a trial is not the goal of the Swinomish Tribe.

"We hope this will result in fruitful discussions on how to resolve this, absent having to file a lawsuit," he said.

One part of the new law was establishment of a task force, which will meet later this month to begin putting together a plan for restoring the Skagit basin's estuary, which was largely destroyed by diking over the course of the last century.

The threat of federal action should be a hammer to make the task force take its work seriously, said Ron Shultz, Locke's natural resources adviser.

The federal government could look at Skagit County and determine that there's an adequate recovery plan in place. But if the task force doesn't come up with such a plan, "then we could be stuck with a federal agency stepping in and saying we need to do these things," he said. "If we don't, then the feds will do it for us."

Sen. Mary Margaret Haugen of Camano Island, who guided the new law through the state Senate this spring, said the threat of a lawsuit is disappointing.

"I really think it's unfortunate that they think the only way to do this is through lawsuits," she said.

Reducing the effectiveness of tide gates will hurt farmers, and that will only hurt fish, she said. "In the long run there will be no fish, because there will be warehouses everywhere."

James Geluso can be reached at 360-416-2146 or by e-mail at jgeluso@skagit


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