Court Case Is The Latest Battle In Water Wars Of The Skagit River

Richard Fox and his wife, Marnie, want to build a house and garage on their property near the Skagit River. The state says they can't have access to the water necessary to approve their building permit.ASHLEY AHEARN
Richard Fox and his wife, Marnie, want to build a house and garage on their property near the Skagit River. The state says they can’t have access to the water necessary to approve their building permit.


By Ashley Ahearn, Earthfix

SEDRO-WOOLLEY, Wash. — The house was going to be modest, 1,300 square feet with a big porch looking out over acres of fields. Next to it would be a garage with a caretaker’s apartment over it.

“I’m kind of an old guy already,” Richard Fox said, standing in the pouring rain on his property and gesturing to the spot where he and his wife’s dream retirement home was to be built. A handful of drenched cows looked on, vaguely curious.

Richard and Marnie Fox already have the plans in place. The well is drilled. The septic is in.

But Skagit County won’t issue them a building permit. By doing so, the county says, it would be violating a rule established in 2001 that says there has to be a certain amount of water left in the Skagit River to protect fish. And drilling more domestic wells like the Foxes’ will deplete the flow of the river.

The case will be heard Tuesday in Snohomish County Superior Court. The Washington Department of Ecology and the Swinomish Tribe are intervening in the case.

This is just the latest skirmish in an ongoing war over the future of water use in the Skagit River watershed. The Foxes are one of more than 450 homeowners who have been denied access to well water because of what is called the Instream Flow Rule. The rule established a water right for fish that trumps property owners who want to tap into groundwater reserves after the rule went into effect in 2001.

The rule has meant precipitous drops of up to 80 percent in property values for those 450-plus homeowners because the state has effectively invalidated their water rights.

For those landowners and other would-be developers in the area it’s a tough pill to swallow; especially when it’s pouring rain and there are flood warnings in place for the Skagit River.

For Richard Fox, it doesn’t help that his property has turned into a mini-lake. But that is not always the case. During the late summer months conditions here and elsewhere in the Skagit basin are dry. That’s when groundwater is a critical source of water for the Skagit and its tributaries. If more property owners, like the Foxes, are allowed to suck groundwater out via their wells, that will take water away from fish when they need it most, Ecology and the Swinomish Tribe assert.

During the drier parts of the year, groundwater can make up between 40 and 90 percent of the water in Skagit River tributaries (of which there are more than 2,000), according to research done by the Department of Ecology in preparation for the 2001 Instream Flow Rule. Other research from the U.S. Geological Survey supports those findings.

“This is the critical timing problem that we face,” said John Rose, a hydrogeologist with the Washington Department of Ecology. “We have these periods where the primary amount of inflow into our rivers is groundwater. It happens when we’re having the biggest drawdown due to human use and then right immediately afterwards, when we’re at the lowest levels, is when you have the fish runs.”

It may seem like an intractable problem, but Ecology has been exploring ways to offset the water usage of new development by installing rainwater catchment systems and trucking in water. Ecology is also speaking with hydropower operators on the river – Puget Sound Energy and Seattle City Light – to see about getting them to release more water from above the dams during those late summer months to accommodate the higher demand.

However, the dam operators have their own set of problems, as they face a future with less glacial runoff to supplement their reservoirs.

Rainwater catchment systems present an added cost for property owners, as do water truck deliveries.

“It’s just not necessary,” said Zachary Barbornias of Just Water Alliance. “Who’s going to pay for that?” Just Water Alliance has joined with Washington Realtors, the Building Industry Association of Washington, the Washington State Farm Bureau and others to petition the state to repeal the instream flow rule, arguing that Ecology’s proposed mitigation attempts are costly and “provide little or no actual benefit to instream resources.”

Zachary Barborinas is the head of the Just Water Alliance, which opposes the instream flow rule because it limits development. Credit: Ashley Ahearn.

“We support all of the habitat restoration that goes on and millions that are spent. We, as taxpayers, pay for that,” Barborinas said, “but Ecology at the same time should be setting aside water for people. That’s the bottom line.”

In 2006 Ecology brokered a deal with Skagit County that would have satisfied Barborinas and other landowners by changing water allocations in order to allow for development in the Skagit basin. The Swinomish Tribe sued Ecology, saying it had no right to change the rule to allow for any more wells. That battle went all the way to the State Supreme Court, which ruled in favor of the Swinomish in October of last year.

The Fox case represents the next round in the ongoing legal battle between development interests and environmental interests in the Skagit watershed, and it is wearying for everyone.

“Washington State Supreme Court has ruled on this issue already,” said Larry Wasserman, referring to the 2013 State Supreme Court decision. Wasserman is the environmental policy director for the Swinomish Tribe, which is intervening in the Foxes’ case on Tuesday. He’s worked on this issue on behalf of the tribe for more than 20 years. “This is settled law and the science behind that rule and that law has been well established, well vetted and supported fully by the Washington Department of Ecology.”

The Swinomish and other tribes argue that the river has been depleted, bit by bit, as each new home or development has gone in over the years and no further groundwater depletion should be allowed.

“At some point you reach a point where any additional impact is too much,” Wasserman said. “And if we say, ‘Well just these 400 or 500 landowners’ [which would include the Foxes], what happens to the next landowner that comes along and makes the same argument, and the next one after that? The issue is we have an inadequate amount of water right now.”

The Swinomish Tribe and Ecology have both indicated that they will appeal if the court rules in favor of granting the Foxes a building permit on Tuesday. And so the fight will go on, with countless more dollars spent on legal fees by the state, the tribes and building interests.

“This is kind of ground zero for the state right now for water issues,” Barborinas said. State legislators have been meeting with interested parties in the Skagit to brainstorm possible legislative solutions to the water fight.