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.

The Final Indian War in America is About to Begin

Lakota members during the annual Liberation Day commemoration of the Wounded Knee massacre. Photo: Deep Roots United Front/Victor Puertas
Lakota members during the annual Liberation Day commemoration of the Wounded Knee massacre. Photo: Deep Roots United Front/Victor Puertas


Notes from Indian Country, November 16, 2014
By Tim Giago (Nanwica Kciji)
© Native Sun News

Source: Huffington Post

(Note: This column will appear before the Senate votes on the Keystone XL Pipeline. The House has already approved the construction of the Pipeline)

South Dakota’s Republican leadership of John Thune and Kristi Noem always march lockstep with the other Republican robots. Neither of them care that South Dakota’s largest minority, the people of the Great Sioux Nation, diametrically oppose the Pipeline and they also fail to understand the determination of the Indian people to stop it.

The House vote was 252-161 favoring the bill. The bill was sponsored by Rep. Bill Cassidy (R-La.) who is trying to take the senate seat from Democrat Mary Landrieu, They are headed for a senate runoff on December 6 and Landrieu has expressed a strong support of the bill in hopes of holding her senate seat.

Two hundred twenty-one Republicans supported the bill which made the Republican support unanimous while 31 Democrats joined the Republicans. One hundred sixty-one Democrats rejected the bill.

Progressive newsman and commentator for MSNBC, Ed Schultz, traveled to the Rosebud Indian Reservation in South Dakota this year to meet with the Indian opponents of the Pipeline. Firsthand he witnessed the absolute determination of the Indian nations to stop construction of the Pipeline.

He witnessed their determination and reported on it. Except for Schultz the national media shows no interest and apparently has no knowledge of how the Indian people feel about the Pipeline nor do they comprehend that they will go to their deaths stopping it. What is wrong with the national media when it comes to Indians?

As an example of the national media’s apathy, the Lakota, Nakota and Dakota have turned their backs on the $1.5 billion dollars offered to them for settling the Black Hills Claim and although they are among the poorest of all Americans, the national media does not consider this news.

Why do they protest the XL Pipeline? Because the lands the Pipeline will cross are Sacred Treaty Lands and to violate these lands by digging ditches for the pipelines is blasphemes to the beliefs of the Native Americans. Violating the human and religious rights of a people in order to create jobs and low cost fuel is the worst form of capitalism. Will the Pipeline bring down the cost of fuel and create thousands of jobs?

President Barack Obama has blocked the construction of the Pipeline for six years and he said, “I have constantly pushed back against the idea the somehow the Keystone Pipeline is either this massive jobs bill for the United States or is somehow lowering gas prices. Understand what this project is. It is providing the ability of Canada to pump their oil, send it through our land, down to the Gulf, where it will be sold everywhere else. That doesn’t have an impact on U.S. gas prices.”

In the meantime Senator Landrieu conceded that it is unlikely that the Senate and the House will have the two-thirds majority needed to override an Obama veto.

Wizipan Little Elk of the Rosebud Sioux Tribe and a coalition of tribal leaders from across the Northern Plains and the United States have pulled no punches on how they intend to fight the Pipeline to the death if that is the only way to stop it.

South Dakota’s elected leadership has totally ignored the protests of the largest minority residing in their state. They have also totally underestimated and misunderstood the inherent determination of the Indian people. This is a huge mistake that will have national implications and it is taking place right under their Republican noses.

What is even worse South Dakota’s media has also buried its collective heads in the sand even though Native Sun News has been reporting on the Keystone XL Pipeline since 2006. Award-winning Health and Environment Editor for Native Sun News, Talli Nauman, has been at the journalistic forefront of this environmental disaster about to happen from day one and she has been rewarded by the South Dakota Newspaper Association with many awards for her yearly series of articles on this most important topic. Until this issue became a political football, the rest of South Dakota’s media had been silent.

The Keystone XL Pipeline that is being pushed by TransCanada may well be the beginning of the final war between the United States government and the Indian Nations. A word of caution to TransCanada and the U.S. Government: please do not disregard the determination of the Indian people when they say they will fight this Pipeline to their deaths if need be. They mean it!

When asked if he truly thought that a handful of Indians could stop the construction of the Pipeline, Little Elk simply said, “Try us!”

Tim Giago, an Oglala Lakota, is the editor and publisher of Native Sun News. He can be reached at