Welcome to Skagit County
September 10th, 2004
SKAGIT COUNTY NAMED AS DEFENDANT IN TRIBAL LAWSUIT TO STOP BUILDING PERMITS
MOUNT VERNON, WA. –
The Skagit County Commissioners announced today that Skagit County has been
named as a defendant in a lawsuit filed recently by the Swinomish and Sauk-Suiattle
Indian tribes. The two tribes filed the action in Snohomish County Superior
Court against Skagit County, challenging issuance by Skagit County of building
permits in the Skagit River Basin. The Upper Skagit Indian Tribe did not join
in the lawsuit.
Specifically, the lawsuit makes two separate allegations. First, the tribes
allege that Skagit County is in breach of a 1996 agreement by issuing building
permits downstream of the Skagit PUD pipeline crossing (roughly east of Sedro
Woolley). Second, the tribes allege Skagit County is violating the State Building
Code (RCW 19.27.097) by issuing building permits upstream and downstream of
the PUD pipeline crossing. On both legal theories the tribes are seeking a permanent
injunction to bar Skagit County from issuing building permits where the development
will be served by an exempt groundwater well.
“We are deeply disappointed things have come to this,” said Commissioner
Don Munks, who led the County's earlier efforts to reach settlement. “We
have been working with the tribes, Anacortes, Skagit PUD and Ecology to help
protect instream flows while protecting private property rights,” explained
Commissioner Munks. “Ecology’s instream flow rule overlooked water
needs for the County’s rural residents. We tried to fix that. Instead,
the Swinomish and Sauk-Suiattle tribes want us to stop issuing permits altogether.”
The County Commissioners pledged to vigorously defend Skagit County against
the Swinomish/Sauk-Suiattle lawsuit. The Commissioners have scheduled a public
work session on Monday, September 13, 2004, to receive a briefing from the County’s
attorneys on the lawsuit. The work session is scheduled to start at 2:00pm,
in the Commissioners’ Auditorium.
In 1996, Ecology signed a Memorandum of Agreement with Skagit County, Skagit
PUD, Anacortes the Sauk-Suiattle, Swinomish and Upper Skagit Indian tribes,
and the Washington Department of Fish and Wildlife, which protects instream
aquatic resources, while at the same time providing for development of an adequate,
reliable water supply for Skagit County residents. Skagit County explicitly
reserved the right to allow for development of exempt wells in the Upper Skagit
watershed outside of the Skagit PUD’s current water service area. The agreement
does not explicitly address exempt well use in the lower watershed.
The Swinomish and Sauk-Suiattle tribes’ claim alleging violations of the
state building code stems from Ecology’s adoption in 2001 of an instream
flow rule for the Skagit River. Flows under Ecology’s instream flow rule
were set at levels that only are met continuously on an average of once every
ten years. The two tribes argue that all groundwater wells in the Skagit Basin
are hydraulically-connected with the Skagit River, and therefore should not
be used to supply residential needs. Skagit County has contested the State’s
instream flow rule, on the grounds that flow levels are set too high and that
Ecology’s instream flow rule fails to provide for rural water needs. The
County is concerned that enforcement of Ecology’s instream flow rule –
unless the rule is amended – will result in a basinwide building moratorium
outside public water system service areas.
The County’s appeal of Ecology’s instream flow rule currently is pending
in Thurston County Superior Court. Until recently, Skagit County and other parties
to the 1996 agreement also have been negotiating to amend the Skagit instream
flow rule. Talks broke down, however, after the Governor’s water policy
advisor distributed a proposal described as “the State’s best and
final offer of the MOA.” The proposal failed to win support from the other
parties.
Gary Rowe
Skagit County Administrator
(360)336-9300Dan Berentson
Skagit County Communications Director
(360)419-3461