FACT SHEET
History of Skagit River Basin Water Issues
November 7, 2011
1) 1946-2006: The Washington Department of Fish and Wildlife or its predecessors repeatedly informed the Washington Department of Ecology or its predecessors that certain tributaries to the Skagit River, including Carpenter, Fisher, and Nookachamps Creeks, were overappropriated and that any additional reductions in streamflows would be harmful to salmon.
2) 1996: Eight stakeholders (Ecology, Department of Fish and Wildlife, Swinomish, Upper Skagit, Sauk-Suiattle, City of Anacortes, Skagit PUD, and Skagit County) signed a Memorandum of Agreement regarding allocation of Skagit River water.
a. Tribes agreed not to challenge Skagit PUD and City of Anacortes water rights for 50 years.
b. Tribes agreed to water right changes for Skagit PUD and City of Anacortes so that more water would be diverted from the mainstem Skagit River and impacts on tributaries would be reduced. The Swinomish Tribe's only purpose in addressing water issues was to protect salmon.
c. All parties agreed to a scientific process to set minimum instream flows on the Skagit River and several tributaries.
d. Skagit County specifically agreed not to issue building permits for homes using exempt wells downstream of Sedro Woolley if reductions in instream flows would adversely impact salmon. The purpose of this element of the 1996 MOA was to protect salmon and instream flows, not to control growth.
3) 2001: In accordance with the 1996 MOA, Ecology developed a minimum instream flow rule for the Skagit River and several tributaries. It recognized that groundwater and surface water are connected. Under the Rule, all later water rights, including water rights from exempt wells, were subject to interruption when the instream flow levels were not met. Skagit County was actively involved in the development of the Rule and did not raise any objections to the Rule.
4) 2003: Skagit County started litigation over water rights in the Skagit River Basin by suing Ecology to challenge the 2001 Rule. The Swinomish Tribe and every other party to the 1996 MOA intervene in the lawsuit to defend the 2001 Rule. Prior to this, the Swinomish Tribe was not involved in any litigation over water rights or exempt wells.
5) 2003: In response to Skagit County's litigation, the Swinomish and Sauk-Suiattle tribes sued Skagit County because Skagit County was not fulfilling its agreement to deny building permits relying on exempt wells downstream of Sedro Woolley if the wells would adversely impact salmon. Skagit County claimed that it wasn't bound by the 1996 MOA it signed, but ultimately lost in the Washington Court of Appeals.
6) 2003-2005: Extensive negotiations occurred between the parties. Although not legally required to do so, the Swinomish Tribe agreed to support the use of additional exempt wells throughout Skagit County. Skagit County rejected all offers of settlement.
7) 2005-2006: In secret, Ecology and Skagit County reached an agreement to amend the 2001 Rule to provide for additional reservations of water for exempt wells, agricultural use, and municipal, commercial and industrial use. Ecology stated that once these reservations were used, the tributary subbasins would be closed to all new, unmitigated groundwater withdrawals. Skagit County specifically agreed to the reservations and closures, and agreed to defend the 2006 Rule against any legal challenges.
8) 2006: The Swinomish Tribe and City of Anacortes challenged the 2006 Rule because it harms salmon. This lawsuit is currently in the Washington Court of Appeals.
9) 2009: Ecology informed Skagit and Snohomish Counties that the Carpenter/Fisher subbasin reservation was close to being exhausted, and warned the counties not to make land use decisions in the Carpenter/Fisher subbasin that relied upon exempt wells. The Skagit Valley Herald reported the impending closure. Skagit County has known for nearly two years that building permits would be prohibited in the Carpenter/Fisher subbasin under the provisions of the 2006 Rule it negotiated.
10) 2010-2011: Ecology approved mitigation plans proposed by Skagit County that would have allowed for more groundwater to be taken from the Carpenter/Fisher and Nookachamps Upper subbasins. The Tribe challenged these mitigation plans because they would harm salmon and were inconsistent with the 2006 Rule. DOE withdrew its approvals of the mitigation plans before the case went to trial because it recognized the mitigation plans were unlawful. Skagit County did not challenge Ecology's decision to withdraw its approvals of the mitigation plans.
11) 2011: Ecology issued an accounting report documenting that the Carpenter/Fisher subbasin reservation is not only exhausted, but over allocated by almost 4,000 gallons per day.
12) 2011: Ecology informed Skagit County that the Nookachamps Upper subbasin reservation is close to being exhausted.
To summarize:
· Skagit County specifically agreed to stop issuing building permits if new wells would be harmful to salmon. Both the Department of Fish and Wildlife and Ecology have stated that new wells will be harmful to salmon.
· The Swinomish Tribe did not begin litigation over water issues; Skagit County did by suing Ecology in 2003.
· Skagit County specifically agreed to the closure of tributary subbasins once the reservations established in 2006 are exhausted.
· The Swinomish Tribe does not have any litigation over water rights currently pending against Skagit County. The Swinomish Tribe's lawsuit against Ecology is not seeking to create new law, but is seeking to make Ecology implement and enforce existing laws.
· Skagit County's efforts to deflect attention away from the County's responsibility to stop issuing building permits in the Carpenter/Fisher subbasin and cast the Swinomish Tribe as interested in controlling land use is unfair and inaccurate. The Swinomish Tribe's only purpose is to protect salmon and instream flows, not to control growth.
· Given the necessary funding, the City of Anacortes and Skagit PUD have both offered to provide piped water to meet additional demand. We have provided legal support when Skagit County and the Skagit PUD have tried to expand service to rural residents. Expanding piped water reduces impacts to instream flows and provides safe and clean water to property owners.
The Swinomish Tribe will continue to do what is necessary to protect salmon and the instream flows upon which salmon depend.
Notes
Additional information about the facts listed above can be obtained by reviewing the following documents, which are available on the Swinomish Indian Tribal Community website at www.swinomish-nsn.gov/news:
1) Letter from Washington Department of Fish and Wildlife to Ecology (January 20, 2005)(recommending continued closure of certain tributaries listed on the State's Surface Water Source Limitation list); Letter from Washington Fisheries to Ecology (December 16, 1992)(recommending closure of Carpenter Creek watershed); Letter from Washington Fisheries to Ecology (April 15, 1992)(recommending continued closure of Nookachamps Creek); Letter from Washington Game to Washington Department of Conservation & Development (April 1946)(stating that Nookachamps Creek was "badly overappropriated"); Letter from Washington Fisheries to Washington Department of Conservation & Development (April 1946)(stating that Nookachamps Creek was "already overappropriated").
2)
a. Memorandum of Agreement Regarding Utilization of Skagit River Basin Water Resources for Instream and Out of Stream Purposes, Section IV.A.1.
3) Washington Administrative Code Chapter 173-503 (2001).
5) Swinomish Indian Tribal Community & Sauk-Suiattle Indian Tribe v. Skagit County, Snohomish County Superior Court No. 04-2-05812-1, Complaint of Swinomish Indian Tribal Community and Sauk-Suiattle Indian Tribe Against Skagit County for Injunctive and Declaratory Relief.
7) Washington Administrative Code Chapter 173-503 (2006); Skagit County v. Washington Department of Ecology, Thurston County Superior Court No. 03-2-00668-5, Stipulation and Settlement Agreement and Agreed Order of Dismissal; Skagit River Basin Instream Flow Implementation Agreement Between Skagit County and the State of Washington Department of Ecology.
8) Swinomish Indian Tribal Community v. Washington Department of Ecology, Thurston County Superior Court No. 08-2-01403-4, Petition for Judicial Review.
9) Letter from Ecology to Skagit and Snohomish Counties (December 11, 2009)(warning of the possible closure of the Carpenter/Fisher subbasin management unit); "Ecology May Ban New Wells in Part of Skagit," Skagit Valley Herald (December 12, 2009).
10) Swinomish Indian Tribal Community v. Washington Department of Ecology & Skagit County, Pollution Control Hearings Board No. 10-010, Notice of Appeal; Letter from Ecology to Skagit County (March 18, 2011)(withdrawing approval of mitigation plans for the Carpenter/Fisher and Nookachamps Upper subbasin management units).
11) Skagit Reservation Accounting Report: April 14, 2011 - December 31, 2010.