The Balancing Act: Exploring Water in the Skagit Basin
by: Center for Environmental Law and Policy, Catherine Phelps Posted on: January 14, 2013
Photo: US Forest Service via Wikimedia Commons
By Catherine Phelps, Intern, Center for Environmental Law and Policy
Editor’s Note: If water is of interest to you, this piece comes highly recommended. Read on to learn about the complex story of water in the Skagit River basin. See here for our previous piece about a corporate water withdrawal proposal for the Skagit River.
The Center for Environmental Law and Policy (CELP) is Washington’s Water Watchdog. CELP’s goal is to bring science based management to water planning and law. CELP strives to achieve this goal by working directly with local communities, activists, and tribes in Washington and the Columbia basin to help them protect their rivers, streams and aquifers. CELP also works closely with state and local governments to formulate science-based water policies. It is this advocacy that brought CELP to the Skagit basin.
The Skagit River system is the third biggest in the West. It provides one-quarter of the fresh water that sustains the Puget Sound, and is home to all five of our native salmon species. To the casual observer, the Skagit is a stunning river with plenty of water. Not quite. While the flows in the mainstem Skagit can exceed 16,000 cubic feet per second, the river is fed by over 3,000 tributaries that would run dry in the summer if it weren’t for seeping groundwater. It is those tributaries, where flows fall below critical levels for water quality and fish, which have become the focus of contention in the Skagit basin.
The water shortage in the tributaries has a simple cause: people are taking more water for their own use than precipitation replenishes. Most of the water is taken through hydraulically-connected wells that extract the ground water streams rely on in the summer. Ironically, Skagit County’s success in agricultural and forestland conservation—for which the county deserves great credit—has limited available land for residential and commercial development. This has forced much of that development into subbasins where water is scarce.
After years of concern, in 1996, state resource agencies, Skagit County, local tribes, and the City of Anacortes all agreed to fund the scientific research needed to determine the minimum flows required for river health in the mainstem and critical tributaries, and to adopt the recommendations of the state’s ‘instream flow rule’. Skagit County also agreed not to issue building permits for developments that relied on wells from tributaries that would fall below minimum flows. However, after the study set minimum flows required to sustain fish and wildlife throughout the basin, and the state adopted an instream flow for the Skagit River and its tributaries, Skagit County challenged the rule in court as violating public policy. Skagit County knew that future wells for stockwatering, industrial, commercial, and domestic uses would violate the state’s instream flow rule. Those violations, if enforced, could threaten future development along the tributaries –development the County wanted. To settle Skagit County’s lawsuit, Ecology amended the rule in 2006 to reallocate an additional 25 cubic feet per second of water from instream flows to new domestic, commercial, agricultural, stockwatering, and industrial uses.
The Swinomish Indian Tribal Community, the Sauk-Suiattle Indian Tribe and the Upper River Skagit Tribe have been working in the basin for a long time to protect the tributaries’ health and their rights to salmon: the backbone of the tribes’ culture. Of the five salmon species in the Skagit Basin, three are listed as threatened under the Endangered Species Act, as are two trout species. One of these species, Steelhead, spawn in the very same tributaries that are over-allocated. The less water that is preserved by water laws, the more endangered they become.
The Swinomish Tribal Community and the City of Anacortes subsequently sued the Department of Ecology for siding with the county and backtracking from the 2001 instream flow rule. The backtrack, they argued, jeopardized a commercial, tribal, and recreational fishery. The Washington State Supreme Court heard their lawsuit on November 13, 2012. A decision is expected sometime in the first half of 2013.
In the 2006 rule, Ecology used the 25 cubic feet per second that it had “reallocated” from environmental and public purposes in the 2001 rule to create “reservations” for private uses. Ecology set limits for uses in each tributary, advising that once the reservation was used up, the tributary would be closed to all new unmitigated groundwater withdrawals irrespective of purpose. In 2009, the reservation for domestic wells in the Carpenter and Fisher subbasins was close to exhausted, so Ecology warned Skagit and Snohomish Counties to stop issuing any further building permits until Ecology evaluated the situation. The counties didn’t listen. In the summer of 2011, Ecology finally closed the Carpenter-Fisher subbasins to all new wells. Not only were the reservations completely used up, the counties had issued development permits that exceeded the reservations by almost 4,000 gallons per day. The reservation of another subbasin in the Skagit, the Upper Nookachamps, is also almost completely spent.
Unfortunately, the closure of these basins caught some property owners unaware—the counties had issued them building permits after all—the owners assumed they had water. The ensuing uproar moved to the state legislative floor. In the winter of 2012, Senator Margaret Mary Haugen (D-Camano Island) sponsored legislation to exempt future domestic uses from the instream flow rule (irrespective of potential harm to senior users and environmental flows). CELP sponsored legislation to beef up real estate disclosure statutes to alert consumers to check that well water is available before closing their purchase. Lobbyists for realtors killed this bill. Senator Haugen ultimately delayed the dilemma by sponsoring a $2.25 million appropriation for the Department of Ecology to find alternative water sources for water-short property owners in the Fisher, Carpenter, and Nookachamps watersheds.
Recent developments in the Skagit underscore how important it is to protect and preserve our water in the face of conflicting demands. The County needs water to ensure economic development and meet the needs of its expanding population. The tribes of the Skagit basin cannot protect their fishing rights that are essential to their economic and cultural livelihood without sufficient water to sustain the fishery. CELP seeks to integrate science-based water management into future land use decisions to protect our rivers and aquifers for coming generations in the face of climate change.
Finding the balance between short-term and long-term interests, commercial and recreational fishing interests and residential development, and private and public uses of water, is neither easy nor a new problem. Water has been scarce in many parts of the state for over a century, and in parts of the Skagit basin for decades. The struggle has played out in the executive, legislative and judicial branches of government. The Department of Ecology is using the $2.25 million to locate alternative water supplies for the Basin, such as sourcing water from deep wells, redistributing water by pipelines, creating water collection systems, and even trucking-in water. In the words of Bruce Wishart, CELP’s government affairs specialist: “Hopefully, we can make these decisions largely on the basis of science and existing laws, without seeing this process overly politicized. We have to make decisions that are in the best interest of people and fish…”
The drought of summer 2012 in the United States makes clear how lucky we are in this region—we have the opportunity to avert real crisis if we acknowledge the shortages and work cooperatively. Our water resources are too precious not to be rigorously assessed and every measure taken to conserve and regulate those resources. Ecology is optimistic that there’s time to find solutions in the Nookachamps before it closes to further well drilling, but we have to understand that the era of unlimited water is over. With that understanding, we can create viable solutions now that will endure over the long term as temperatures and our population increase.
At the end of the day, the Skagit Basin provides us the critical opportunity to set a new example of how balanced, intelligent water laws can provide solutions.
Contact Suzanne Skinner, Executive Director, Center for Environmental Law & Policy: firstname.lastname@example.org
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