Tribe, feds, state face off on stream water temperature in the Skagit - Salish Current
April 24, 2024
Tribe, feds, state face off on stream water temperature in the Skagit
Dick Clever

Streamside vegetation helps counter rising water temperatures that threaten runs in salmon-bearing streams, but disagreements about how to ensure that protection are moving the discussion toward legal action. The Samish River winds through the fertile Skagit Valley. (Amy Nelson / Salish Current © 2024)

April 24, 2024
Tribe, feds, state face off on stream water temperature in the Skagit
Dick Clever

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Swinomish say not enough is being done to address the overheating of the Skagit’s salmon spawning and breeding streams.

Both state and local governments have plans to revegetate sections of the lower Skagit River to give cooling shade to salmon-bearing streams. If everything goes right, the river could be a better-shaded place for the endangered chinook and other salmonids by, say, 2080, if we start now. 

That’s a big ballpark estimate that is based on some positive thinking by the state Department of Ecology. The plans include important salmon streams like Fisher, Carpenter, Nookachamps, Hansen and a few other creeks important for spawning salmon in the lower Skagit watershed.

Ecology is responsible for enforcing the U.S. Clean Water Act and for regulating nonpoint pollution. It must monitor surface waters for signs of toxic chemicals, agricultural runoff and other pollutants, including heat. 

As climate change raises nature’s thermostat, increasing ambient heat is transferring to rivers, lakes and even our oceans. Higher water temperatures — even modest rises — invite algae and bacteria that draw oxygen from the water that fish need to survive. Temperatures above 52 degrees can cause genetic abnormalities or death to salmonid eggs, and even brief periods above 73–77 degrees will kill salmon and steelhead outright.

Meanwhile, the threat of another year of drought in the Pacific Northwest follows the thin winter snowpack in the Cascades and the predicted lower flows of the Skagit River, threatening the late summer chinook and steelhead runs. The Washington Department of Fish and Wildlife (WDFW), is predicting lower salmon returns for the Skagit late summer runs than last year’s runs. 

“With decreased snowpack and the potential for low flows and warmer water conditions this summer, it could be a difficult year for fish and other aquatic wildlife,” said WDFW director Kelly Susewind.

No major deaths of salmon in the Skagit watershed have yet been blamed on high water temperatures. The South Fork Nooksack River, however, saw a loss of an estimated 2,500 of a late-summer chinook run in 2021. The Nooksack drains the north slopes of Mount Baker in North Whatcom County. The Lummi Tribe concluded after research results that the cause of the salmon deaths was excess heat in the river.

Agreed on streamside buffers — but how?

There seems to be broad agreement among tribes, environmentalists and farmers on the need to replenish streamside vegetation lost to farming as well as urban development. 

There remain the questions of whether voluntary participation by the agricultural community in planting thousands of acres of riparian buffers is enough to get the job done and how expansive these offsets need to be. 

The Swinomish Indian Tribal Community wants to see a program that is more compulsory than voluntary on the part of farmers.

Skagit Valley farmers’ lands often occupy one or both sides of salmon-bearing streams throughout much of the river delta and uplands. Some have been willing to participate in Skagit County’s Voluntary Stewardship Program (VSP), which offers grants and technical support to farmers willing to shave off part of their streamside property to enhance salmon recovery. VSP partners have replanted more than 320 acres so far. 

The Swinomish have a muscular legal department funded by various tribal enterprises, not the least of which is its profitable casino and hotel operation located at the north end of Swinomish Channel at Padilla Bay. The tribe rarely hesitates to take challenges to its treaty rights to federal court. 

The Swinomish say that neither Ecology nor the U.S. Environmental Protection Agency (EPA) are doing enough to address the overheating of the Skagit’s salmon spawning and breeding streams.

Swinomish’s complaint about Ecology involves a measure of heat pollution called Total Maximum Daily Load (TMDL) and how much of the river it applies to. TMDL marks the point at which the temperature of the river and tributaries reach levels above which are unhealthy for fish.

On notice

A 60-day Notice of Intent (NOI) to sue the EPA was filed on Feb. 22 by the nonprofit law group Earthjustice on behalf of the Swinomish Indian Tribal Community. April 22 — ironically, also Earth Day — was day 60, with no indication yet of what comes next. [Ed.: There was no record of legal action as of April 23.]

The Earthjustice NOI calls upon the EPA to exert more oversight on Ecology to bring rising water temperatures in the lower Skagit watershed down to levels friendlier to fish. The Swinomish Tribe, in the notice, blames the state agency for falling way short of its own plan for advancing streamside plantings along the river and its small tributaries.

Gravel beds and shade from vegetation contribute to salmon-friendly stretches along streams in the Skagit watershed. (Seattle City Light)

The Earthjustice notice uses some strident language to describe what the Swinomish consider to be Ecology’s failings. In that notice, the Swinomish accuse Ecology of providing “false or incorrect” information to the EPA to shape programs to help endangered salmon in the Skagit River watershed. 

A spokesperson with Ecology takes issue with the idea that the agency misrepresented any information to EPA, which has a regional headquarters in Seattle. The agency says that the Earthjustice NOI misrepresents several facts about its regulatory authority.

The notice suggests that Ecology has authority to compel agricultural streamside property owners to plant buffers. It cites an element of the agency’s 2008 water quality report that Ecology “could compel nonpoint source of pollution to comply with TMDL (water temperature) requirements.”

“Ecology believes it has clear authority to require riparian plantings as part of individual enforcement actions,” said Scarlet Tang, an Ecology spokesperson. “We do not believe we have clear authority to require riparian plantings by landowners who have not violated or do not present a substantial potential to violate the state Water Pollution Control Act, but who simply own land lacking riparian trees.”

Skagit County commissioners also responded to the Earthjustice notice, saying that the notice “significantly exaggerates” the threat to endangered salmon species in the lower Skagit watershed.

On whose authority?

“At the heart of the Earthjustice NOI is an insistence that in order to solve the alleged problem, EPA and NMFS [National Marine Fisheries Service] should direct the Washington State Department of Ecology to require that Skagit farmers to plant wide swaths of specific tree species and maintain the trees in perpetuity,” the county response said. “Contrary to the claims in the Earthjustice Notice, it does not appear that NMFS, EPA or Ecology possesses this authority, any more than local government does.”

The Swinomish demand that EPA and NMFS “immediately” engage in consultation over Ecology’s water temperature guidelines for the lower Skagit River. “Consultation,” in this context, means that Swinomish wants to change the way a program operates.

The tribe contends that making riparian plantings by farmers and other riverside landowners voluntary is not effective.

Furthermore, say the Swinomish in the notice to sue, the state has authority to require landowners, including the agricultural community, to plant riparian buffers but refuses to exercise it. Ecology counters that there are many things that it can use its authority to address, but forcing landowners to plant their buffers is not one of them.

“Ecology’s legal authority to require riparian planting is clear in some circumstances but we don’t have broad authority to require riparian planting in every situation,” said Tang. “For example, if a landowner does something that pollutes a stream, we can and have required them to plant streamside buffers. But we don’t have authority to require landowners who happen to own riparian land but who haven’t violated clean water laws to plant trees.”

Ecology has stated repeatedly that the state Legislature has made it clear that, at least for now, it can’t force the agricultural community to submit to planting riparian buffers by mandate. A bill that Gov. Jay Inslee dropped on the Legislature during the 2022 session would have required landowners to plant streamside buffers, partly at their own expense, and would penalize them with heavy fines if they didn’t comply. It was instantly challenged by farm interests as well as rural communities.

Faced with unified opposition from the agricultural industry, the bill died almost as quickly as it appeared, never making it out of committee. A different bill introduced in the 2023 legislative session, HB 1720, would provide additional funding for riparian plantings, but only for a voluntary program. It was held over for consideration in the 2025–2027 budget session of the Legislature. 

— By Dick Clever

Read more:
Streamside shade: fish and farm advocates struggle to find common ground,”
Salish Current, Feb. 24, 2022
Nooksack Tribe and partners face up to climate change challenge on South Fork Nooksack River,”
Salish Current, Oct. 29, 2021

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