In The Battle Between Fish And Farmers,
Orcas Are The Losers

Monday, October 9, 2006
SEATTLE, WASHINGTON - About a third of Puget Sound's chinook salmon come from the Skagit River. There is no rescuing Puget Sound orcas without rescuing the chinook, the orcas' main food source. And there is no rescuing chinook without bringing back those in the Skagit.

And yet, the Skagit -- the largest river flowing into Puget Sound, one where all five native salmon species still can be found -- is the classic example of how much people resist changes that are necessary to rescue Puget Sound's sea life.

Recall the mantra of former Gov. Gary Locke in the late 1990s as he talked about saving the Northwest's celebrated salmon:

"Extinction is not an option."

Everywhere he went, Locke pledged that the state would do its utmost to snatch salmon from the brink of oblivion. Fearing heavy-handed federal restrictions on building and commerce, Locke said it early and often as the U.S. government prepared to extend the protections of the Endangered Species Act to Puget Sound chinook.

While the population is at only a fraction of its historic levels, the number of wild Skagit chinook has seen a gradual increase over the past decade. Last year, a diverse coalition of interests called the Shared Strategy for Puget Sound released its draft proposal for further boosting their numbers.

Yet many vows made previously in the name of salmon recovery remain unfilled, leaving plenty of room for doubt that Gov. Chris Gregoire's new campaign will work.

"We will fully enforce existing laws," Locke promised in 1998 at a Washington Association of Counties meeting in Tacoma. "This sounds pretty mild, but those of you who know land-use, water allocation and environmental law know that this is a big change and a huge challenge."

Six years later, state biologist Kurt Buchanan was not surprised to find dying salmon in Red Cabin Creek, a Skagit tributary that flows under state Route 20 about 10 miles east of Sedro-Woolley in Skagit County.

His agency, the Washington Department of Fish and Wildlife, had warned that would happen if dredging were allowed there, because when the stream dried up, fish would congregate in a hole and become stranded.

Who did the dredging? The state Department of Transportation -- the very one under Locke's control. The work was approved by Buchanan's own department.

This happened despite a 1949 state law -- the Hydraulic Code -- passed "to ensure the proper protection of fish life" in exactly these kinds of circumstances. It goes further, saying "protection of fish life shall be the only ground upon which approval may be denied or conditioned" in such instances.

The dredging is needed to keep state Route 20 from flooding because a culvert used to drain the area is inadequate, and the Legislature hasn't provided the money to fix it. Workers are supposed to check when they think salmon might be stranded there, pick them up and take them to safe waters.

"It is outrageous that (Fish and Wildlife) continues to issue permits that have been proven to result in dead fish," said Larry Wasserman, environmental director of the Skagit River System Cooperative, a tribal fishing organization.

Problems with Red Cabin Creek have been known at least since the early 1980s. It is just one of the more than 2,800 culverts and other structures across the region that similarly harm fish. They're blocking potentially thousands of miles of rivers where, if salmon were allowed to spawn, their numbers could be boosted by hundreds of thousands or even millions each year, biologists have estimated.

Salt of the earth

But more than three-quarters of that so-called "estuary" is gone, blocked with dikes installed to keep salt water out and create farmland. The dikes included "tide gates" to allow rainwater to drain off the fields.

Technically, the Hydraulic Code required Skagit farmers to allow salmon to pass through the gates.

After the salmon gained legal protection in 1999, environmentalists and tribes began to push the issue. Letting some salt water into farmland would help regain part of the lost estuary, they reasoned.

But that would reduce the amount of land available for crops. So farmers and their allies in the Legislature found a simple solution: They changed the law. Suddenly, it was no longer illegal for the farmers' tide gates to keep young salmon out of their historic rearing grounds. Problem solved. For the farmers.

"We passed legislation that gave farmers the upper hand," acknowledged state Sen. Mary Margaret Haugen, D-Camano Island, the measure's sponsor. "Farmers are truly the endangered species, not the fish."

So environmentalists and tribes turned to federal law. The National Wildlife Federation appealed to the U.S. Army Corps of Engineers, where an inspector phoned a Skagit County farmer named Curt Wylie to tell him he would need a permit before replacing his failing tide gate.

"Mr. Wylie stated that he didn't believe a corps permit was required and that he was going to replace the gate and then 'let you (corps) come after me,' " a corps inspector reported to his supervisor.

"I just do not remember any such conversation," Wylie said in an interview. "I'm not saying it didn't happen, but I don't remember it."

Wylie has gone unpunished. In fact, the corps is preparing to issue an after-the-fact OK on the job. But the National Marine Fisheries Service hasn't yet signed off on that idea.

John Pell, a corps inspector, said violators rarely are fined because, "We find getting a project into compliance to be more beneficial to the environment."

Last month the corps began investigating two additional cases in which nearby farmers repaired their tide gates without a permit.

Farmers say letting fish in means letting salt water onto land drained a century ago. The diked land now is used for growing peas, potatoes, berries and other crops eaten locally, as well as spinach and other seeds exported worldwide. If farmers are driven out, many conservationists worry the land will be paved for development -- a worse scenario ecologically for the fish.

It's a complicated and divisive issue.

"Salt and farming don't work," said Mike Shelby, executive director of the Western Washington Agricultural Association. He says the low-lying, seaside deltas where much of Skagit farmland is located would be ruined.

But maybe not.

"The farmers are thinking worst-case, and saying our fields will be flooded, and whether that's 10 acres or a hundred acres or a thousand acres I don't think anybody really knows," Pell said.

Enforcing the code

Enforcing the code could go a long way toward fixing problems like Red Cabin Creek and the tide gates. But the Legislature has consistently refused requests from Fish and Wildlife and environmentalists to give the department the power to issue orders for violators to stop work that is harming fish habitat.

Similarly, the Legislature has refused to allow the department to directly levy civil penalties higher than $100 a day.

To get any stiffer punishment, the agency's enforcement staff must turn to county prosecutors, who are often too overloaded to give attention to such violations.

Compare that to the Ecology Department, which can levy fines of up to $10,000 a day, and whose inspectors can issue enforceable stop-work orders to violators.

Wasserman, of the tribal fishing group, was the co-author of a 2000 study that severely criticized Fish and Wildlife's hydraulic permit program as understaffed and unwilling to regulate strongly. He says little has changed in six years.

"These stories all come down to this: When there's hot political issues, usually the fish suffer," he said.

Source: The Seattle PI