Way cleared for repair of Skagit tidegate critical to delta protection - Salish Current
March 15, 2024
Way cleared for repair of Skagit tidegate critical to delta protection
Dick Clever

Delayed repair of the tidegate at No Name Slough “places the Padilla Bay delta, its people, residences, businesses, and farms at increased risk of serious harm from tidal flooding,” per a court ruling last week. The National Marine Fisheries Service has been ordered to start repairs by May 1. (Amy Nelson / Salish Current © 2024)

March 15, 2024
Way cleared for repair of Skagit tidegate critical to delta protection
Dick Clever

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A Skagit County dike and drainage district has won a federal court decision ordering the National Marine Fisheries Service (NMFS) to consult — soon — with the Army Corps of Engineers about a much-needed tidegate repair.

A federal judge, in a March 8 order, agreed with the district that NMFS had taken far too long to consider its need to repair a deteriorating tidegate that protects about 10,000 acres of cropland and structures at the foot of Padilla Bay in Skagit County from flooding — and that repairs must begin by May 1.

Tidegates have hinged flaps that open to drain low-lying fields and close to prevent incoming sea tides from causing salinization of agricultural land.

U.S. District Court Judge Brian Tsuchida ruled that NMFS had exceeded the time limit that the Endangered Species Act (ESA) requires NMFS to respond to requests for consultation. Instead of the statutory 90 days, more than 400 days have passed without response, or any explanation except for the claim that the agency is short of personnel.

“It is worth noting that the requested relief merely orders NMFS to perform its preexisting obligations,” Tsuchida wrote. “In the meantime, NMFS’ failure to act places the Padilla Bay delta, its people, residences, businesses, and farms at increased risk of serious harm from tidal flooding and interferes with District 12’s ability to meet its statutory directives.”

It isn’t certain when the worn tidegate on No Name Slough might eventually fail, possibly flooding thousands of acres of land. District 12 stretches from Swinomish Channel east along Padilla Bay to the Bay-Edison community to the north.

The increasingly anxious officials of District 12 tried for over a year to thread their way through a bureaucratic thicket for permission to fix the problem. As of now, the district has reported, the tidegate and supporting structures are on the verge of collapse.

“We are grateful that the court ruled in our favor and are hopeful that this critical project can move forward with full authorization this summer,” said Jenna Friebel, executive director of the Skagit County Drainage and Irrigation Districts Consortium, which represents the districts in the delta.

 A NMFS spokesperson in Portland said the agency would not comment at this time.

Farming, fish and tidegates

The system of tidegates deployed throughout the Skagit delta protects about 70,000 acres of farmland accounting for about 90% of the county’s agricultural output. The built system of dikes and drainage ditches and tidegates make agriculture possible in the delta. The District 12 system is 100 years old.

That same system comes into conflict with the habitat of endangered species of fish, in particular iconic chinook salmon. NMFS is the federal agency responsible for enforcing the ESA. 

Until two years ago NMFS was managing a program that was established in 2010 after the Swinomish Indian Tribal Community won its lawsuit against the Skagit diking and drainage districts. Filed in 2007, the suit accused the districts of violating the U.S. Clean Water Act with the operation of tidegates in ways that impede salmon migration.

Dike District 12’s No Name Slough tidegate (marked in darker purple) protects the land, residences and inhabitants behind it from saltwater inundation. District officials warn it is on the verge of failure without prompt repair. (Skagit County GIS)

The Swinomish agreed to negotiate a settlement with the diking districts. A new organization resulted — the Tidegate Fish Initiative (TFI) — with several parties joining in a TFI oversight committee. The group included representatives from the tribe, the diking districts, Western Washington, state Fish and Wildlife, Army Corps of Engineers and state Department of Ecology. It was managed by NMFS staff.

A very detailed plan mapped out how and when tidegate improvements or repairs could be performed in ways that provide the least impairment of fish migrating up the Skagit River and the juvenile salmon moving downriver into the estuary.

Pause and reset

But in 2021, the Swinomish challenged the way the TFI oversight committee had begun to interpret the rules concerning tidegate repairs. The tribe served notice to NMFS of its intent to sue the agency for allowing unauthorized tidegate repairs. The TFI system was put on pause and NMFS regional staff began working on new system that would be guided by a new biological opinion.

Meanwhile, District 12 was reporting that the tidegate on No Name Slough was “verging on collapse” if a major repair wasn’t completed soon. NMFS did not respond. The ESA requires that a federal agency respond to inquiries within 60 days.

After over a year of waiting for the agency to act, District 12 sued NMFS in U.S. District Court last December, seeking a preliminary injunction forcing NMFS to act on the long-delayed request.

Judge Tsuchida took little time to deliver the verdict in favor of the district.

In filings, NMFS said a new biological opinion would be ready by July.

Not good enough, said the judge. The condition of the District 12 tidegate is critical enough that repairs must begin by May 1 and completed by October. It is a period when salmon are less likely to be migrating through the delta, a period referred to as the “fish window” during which in-water work is done.

NMFS’ inaction on the District 12 request for tidegate repairs last year caused the district to miss the fish window last summer and the repairs were not made. 

As for the more recent TFI that NMFS says is in the works, farmers in the Skagit delta are wary of what kind of remedies NMFS may produce. Tidegate repairs can be quite expensive, running into the hundreds of thousands of dollars, paid by the district.

— Reported by Dick Clever

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