Swinomish files intent to sue Army Corps of Engineers

The Swinomish Indian Tribal Community sent a 60-day notice of intent to sue the U.S. Army Corps of Engineers for failing to uphold the Endangered Species Act Sept. 9, citing dwindling Skagit chinook salmon and Southern Resident killer whales populations.

Tribal attorneys and Earthjustice will bring suit in the United States District Court for the Western District of Washington if the Corps granted construction permits to dike districts in the Skagit delta, but did not require hundreds of acres of estuary habitat be restored as mitigation for harm caused to salmon as agreed under the Tidegate Fish Initiative Agreement made in 2010. The letter claims the Corps’ failure to reinitiate consultation with the National Oceanic and Atmospheric Administration Fisheries to protect threatened chinook salmon violates the ESA.

The Tribe estimates at least 660 acres of estuary habitat that should have been restored but was not as NOAA Fisheries and the Army Corps failed to hold the dike districts to the TFI agreement meant to ensure that estuary habitat was restored in exchange for valuable ESA coverage for the dike districts’ tidegate replacements and repairs.

“It’s unacceptable that the Army Corps and NOAA Fisheries have failed to protect chinook salmon populations as required under the ESA, and that these federal agencies have done so little to protect the Tribe’s treaty rights and the ability for the next 7 generations of our Tribe to fish. There are tribal members that can’t feed their families because our salmon are hurting and can’t recover without more estuary habitat,” said Swinomish Tribal Chairman Steve Edwards in a news release.

The lawyers’ letter states that estuary restoration goal of 2,700 acres of habitat needed to support an additional 1.35 million smolts per year, by 2035 “has fallen far short of the pace required to achieve the 2,700 acres.” The letter calls for prohibiting the Corps from issuing new permits for tidegate replacement or repair until NOAA Fisheries is involved.

The Tribe’s news release notes the Skagit River delta has been radically altered by the historic draining of estuary habitat lands for intensive agriculture with the use of tidegates. It states that the 2005 Skagit Chinook Recovery Plan approved by NOAA Fisheries identified degraded estuary habitat as one of the primary causes of imperiled chinook salmon populations in the Skagit River, which are a primary food source for endangered Southern Resident orcas and that in 2008 a federal court found that tidegates, along with their repair and replacement, harmed and continued to harm chinook salmon in violation of the ESA.