Land lies protected for farming by dikes and tidegates in Skagit County, as the islands of the San Juan Archipelago rise on the horizon. (Photo by Salish Current)

This article was first published by the Salish Current.

If the tidegates on No Name Slough — an estuary at the Skagit River delta — appear to be stained, crusted and a bit sagging with age, it could be because they are 60 years old.

If they fail, 450 acres of prime farmland could be inundated with salt water spilling in from Padilla Bay, and lost to farming.

The Skagit Delta tidegates have a simple purpose: to drain farmland when the tide goes out, then block incoming tides when they come lapping at the gate. The Skagit River delta produces about 90% of the agricultural value of all farms in Skagit County. Some of the highest value crops — spinach and cabbage seed, wheat and barley — grow on the soil protected by the diking districts.

The gates have made the Skagit River delta one of the state’s most productive farmland areas, acre for acre, for 140 years. Now, the future of farming on 60,000 acres of delta land protected by a network of dikes and 100 tidegates can no longer be assumed.

The issue is now being fought in federal court. A lawsuit brought by Skagit Dike, Drainage and Irrigation Improvement District 12 seeks to overturn a biological opinion by National Marine Fisheries Service, or NMFS, that the district says imposed onerous impact fees for merely repairing existing infrastructure.

The fate of the Skagit delta’s highly fertile farmland is inextricably intertwined with that of the Chinook salmon, classified as threatened under the Endangered Species Act, or ESA.

The district lost its request for summary judgement in the first round on April 28, when U.S. District Court Judge Brian A. Tsuchida ruled for NMFS on all key claims. The decision was based on review of documents filed by both sides.

Tsuchida’s decision mooted his earlier decision in 2024 that the district could proceed with repairs because NMFS had taken too long in its environmental review of the tidegate repair permit.

At issue, notes the ruling, is “NMFS’ conclusion that the No Name Slough tidegate project would further reduce the quality and perpetuate poor conditions of nearshore and estuary habitat for Puget Sound Chinook for an additional 50 years” — thus necessitating habitat mitigation and restoration. In bringing suit, District 12 contends the project is “a simple tidegate replacement which does not expand the footprint of existing structures, and provides benefits to fish.”

Commissioners of the district voted on May 12 to file an appeal with the 9th U.S. Circuit Court of Appeals. A hearing before a three-judge appeals panel is not yet scheduled.

‘Disappointed’

Jenna Friebel, executive director of the consortium that represents all 12 diking districts, said her organization “disagrees with and is disappointed with the district court’s decision.”

A rule that NMFS adopted in November of 2020 imposes substantial mitigation fees for any nearshore infrastructure repairs, from tidegates to Port of Seattle piers.

The No Name Slough tidegates are the first in the Skagit delta system to face the consequences of the rule. Before the change, the Skagit Tidegate Fish Initiative, or TFI, in 2010 established a system whereby tidegate improvements could be made without having to go to NMFS for permission for every individual project.

The Diking District 12 tidegate replacement on No Name Slough has been pending for four years, since the district’s original application for a permit approval from NMFS.

The ruling expands the baseline for determining effects of a repair project from the immediate vicinity of the work to the entire Puget Sound range of Chinook salmon. The next step under ESA, unless conditions for Chinook recovery show improvement, would be to declare the species endangered, triggering more stringent rules to protect the fish.

The rule also has been extended to include repairs to public infrastructure such as piers, waterfront bulkheads, ports and any other project that NMFS decides must involve mitigation fees.

Added cost for district

For District 12, that would add $2.5 million in mitigation fees on top of whatever it costs to replace the tidegate and repairs to a section of the dike around it. What NMFS wants to have mitigated is the subject of a lawsuit the district filed against the agency last December.

Tsuchida sided with the federal fisheries agency on virtually every issue, citing at one point the “deference” given to NMFS as the source of expertise and scientific knowledge on the ESA.

Despite disagreement with the ruling, “our member districts remain committed to working with state and federal resource agencies and local tribes to develop solutions to the complex at hand that are grounded in facts and science,” Friebel said.

Senior Civil Prosecutor Will Honea, who deals with natural resource issues, said that Skagit County government has no direct stake in the District 12 lawsuit against NMFS.

“However,” he said, “We are concerned that NMFS’s single-minded focus on punitive regulatory measures is preventing productive progress in the Skagit, damaging the Skagit fisheries resource, hampering our ability to prepare for sea level rise and climate change and creating unnecessary conflict in our community.”

NMFS officials have declined to comment on the ruling.

Swinomish perspective

The TFI was intended to make the process of obtaining permits for work on tidegates easier for applicants. The Army Corps of Engineers was empowered to issue permits directly for tidegate repairs under terms of the TFI approved by NMFS. It created an oversight board consisting of dike district representatives, the Swinomish Indian Tribal Community and Skagit County, state Fish and Wildlife and NMFS, with a staff member acting as coordinator.

The program included a system by which districts could acquire “credits” by doing work that made “operational improvements” to their tidegate systems. Districts could do the work even if they did not have any credits stored.

The Swinomish objected, complaining that the districts were using the operational improvements to do work that was more than the system should have allowed. The tribe gave 60 days notice of intent to sue NMFS. The tribe threatened to sue the Corps of Engineers for approving the District 12 work after its own finding that the project would have minimal effect on the threatened Chinook.

This post was originally authored and published by Dick Clever from Washington State Standard via RSS Feed. Join today to get your news feed on Nationwide Report®.