Court Case Is The Latest Battle In Water Wars Of The Skagit River

Dec 16, 2014

It may be pretty wet this time of year in the Northwest, but that hasn’t stopped an ongoing battle over water in Washington’s Skagit river valley.

Richard and Marnie Fox want to build a new house on their land, but they can’t get a building permit. The state says there’s not enough water in the area to support any more new residences without endangering salmon - especially during the drier parts of the year.

The Foxes are taking legal action. Their case will go before a judge on Tuesday.

Richard Fox and his wife, Marnie, want to build a house and garage on their property near the Skagit River. The state says they can't have access to the water necessary to approve their building permit.
Credit Ashley Ahearn / Earthfix

AHEARN: "Driving up to the Foxes’ house. Bunch of horses looking at me, standing in a really muddy wet pasture."

Richard Fox’s yard is flooded. But he puts on his leather hat and raincoat and we trudge out to his back field to see the place where he and his wife hope to build a house to retire in, someday. A bunch of sopping wet cows look at us, vaguely curious.

Richard Fox: "The house sits right here on this knoll and the garage sits right here."

Ahearn on tape: "I’m looking at your view and I’m picturing a really awesome front porch. I’m picturing you as an old guy."

Richard Fox: "Well I’m kind of an old guy already."

Richard Fox isn’t getting any younger, and his retirement house isn’t any closer to being built.

Skagit County won’t issue him a building permit because the state says no more residential wells can be dug in the Skagit watershed, so the Foxes are suing the county.

Water law is super complicated but in a nutshell: Washington state created a rule in 2001 that basically said, fish have a right to water just like farms, businesses, towns and individual property owners - like the Foxes - do.

So, since 2001 - when the rule went into effect - any new requests to suck water out of the Skagit Valley get trumped by the fish because there has to be enough water in the river for salmon to spawn.

The Foxes aren’t alone. The 2001 rule has invalidated the water rights of more than 475 other landowners in the Skagit River valley. That’s decreased some property values up to 80 percent.

You might say the Foxes are at the center of the fight between development interests and salmon interests.

The Swinomish and other tribes, have been fighting on behalf of the salmon.

The tribe is intervening in the Fox case to prevent the county from giving any more water to developers. Larry Wasserman is the environmental policy director for the Swinomish. He says enough is enough.

Larry Wasserman: “At what point if we say well just these 400 or 500 landowners, and what happens to the next landowner that comes along and makes the same argument, and the next one after that? The issue is we have an inadequate amount of water right now.”

The State Supreme Court has previously sided with the Swinomish in support of the 2001 rule - that’s the one that’s keeping the Foxes from getting a building permit.

So, those are the two sides of the fight - property rights groups, and fish advocates.

The State Department of Ecology is stuck in the middle. It’s come under attack from both sides - either for not doing enough to protect fish, or not doing enough to stand up for people who want water.

John Rose is a hydrogeologist with the Department of Ecology.

John Rose: "We do not want to be in this situation. There is not a single person at Ecology who wants to be in this situation.

Ahearn on tape: "Well we’re all in situations in our lives we don’t want to be in. This is your job."

"That’s right, and I went into it with both eyes open. But this is why we want to find a solution. We want to break this almost continuous cycle of lawsuit after lawsuit after lawsuit because it doesn’t help anybody."

Ecology is trying to find ways to offset more water withdrawals in the Skagit. Like putting in rainwater collection systems on new homes, or maybe trucking in water.

It’s also considering asking hydropower operators to release more water from above the Skagit dams during the dry parts of the year. That’s when river levels dip below safe flows for spawning salmon.

Property rights advocates argue that those measures cost landowners money and won’t make a difference for fish. They’re petitioning the state to get rid of the fish rule and free up more water for landowners, like Richard Fox.

Richard Fox: "The water’s public water. It’s not the tribe’s water. It’s the state of WA’s water. Where do we fit in the state of WA. I’m part of the public. Where do we fit? No one wants to answer that question. You have to answer that for everybody."

For now, the Foxes’ case is ground zero for water issues in the state. If the court sides with the Foxes, and lets them build their home and have access to water, that could pave the way for other landowners. The Swinomish Tribe and the State Department of Ecology have indicated that they will appeal if the Foxes win, and the water war will continue.

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