Tribe plans to sue feds over salmon habitat

The Swinomish Indian Tribal Community has notified the federal government it intends to sue for its failure to protect threatened and endangered salmon runs.

In a 15-page document submitted Feb. 22 to the Environmental Protection Agency, National Marine Fisheries Service, the U.S. Department of Commerce and the Department of the Interior, tribal counsel Earthjustice of Seattle claims the federal government has violated two sections of the Endangered Species Act (ESA).

“The Swinomish people’s way of life and livelihoods, as well as protected Treaty rights, have been disrespected and disregarded for years. It is time for this to stop,” said Swinomish Chairman Steve Edwards. “The Skagit River and its tributaries are critical habitat for Chinook recovery in the Puget Sound. We are the People of the Salmon, and these fish are integral to the Tribe’s sustenance, culture, identity and economy, yet we no longer have enough to feed our families, and the orcas are starving. Our federal and state natural resource trustees must finally find the political will to act.”

Janette Brimmer of Earthjustice said the EPA failed to work with the state Department of Ecology on its Total Maximum Daily Load, (TMDL), which sets and monitors temperature water quality standards in the Lower Skagit River watershed. Changed circumstances and incorrect assumptions underlying the initial approval require a re- evaluation of potential jeopardy to listed species.

“If you fail to remedy the ESA violations described, Swinomish plans to file a citizen suit to compel compliance with Section 7 of the ESA,” Brimmer wrote. “If affirmative actions are not forthcoming, and if the above violations of law are not remedied within 60 days of receipt of this letter, we intend to bring appropriate legal action in the United States District Court for the Western District of Washington.”

A 2008 biological opinion issued by the National Marine Fisheries Services (NMFS) relied upon representations and science-based assurances from Ecology to establish vegetated streamside habitat or “riparian buffers” standards to protect listed salmon species in the Lower Skagit watershed. The riparian buffers were supposed to reduce water temperatures in the coming decades.

Some of Ecology’s data and assumptions have proven false or inaccurate, Brimmer wrote. Ecology has also failed to address the temperature violations documented in the 2004 TMDL. Ecology’s failure to act and ongoing threats to listed species constitute new information or changed circumstances from those upon which NMFS relied in developing the original opinion.

Earthjustice says the EPA and NMFS must reinitiate consultation on the Lower Skagit temperature TMDL immediately, NMFS must enforce the Endangered Species Act, and EPA must withdraw its approval of the TMDL until a new biological opinion is issued.

This letter describes the federal agencies’ liability and serves as notice of the Swinomish Tribe’s intent to bring a citizen suit to address the ongoing violations, Earthjustice wrote. Given the conditions in the Lower Skagit, state and federal agencies may face additional liability under the ESA.

The State of Washington has identified the Skagit River watershed as the most significant watershed in Puget Sound for salmonid production and recovery.

The Skagit River system is the third-largest river system in the western United States. More than 3,000 rivers and streams flow into the Skagit, accounting for at least one-quarter of the fresh-water input to Puget Sound. It is the only river system in the lower 48 states that is home to all five species of Pacific salmon and to steelhead.

Among the various ESA-listed species that depend upon the Skagit are culturally significant Chinook salmon. Skagit Chinook salmon have been seriously affected by a variety of factors, including significant habitat alteration and destruction, throughout Puget Sound and in the Skagit River and estuary in particular. Declines in the Puget Sound Chinook salmon population have resulted in their listing as threatened under the ESA.

In the Skagit River watershed, one of the principal harms to listed salmonids is high stream temperatures that violate water quality standards deemed necessary for salmonid survival. Those high temperatures occur every year and throughout the entire Lower Skagit watershed.11 The lack of riparian habitat and streamside vegetation are the primary causes of salmonid-harming high water temperatures; riparian vegetation provides effective shade, cooler microclimates, and reduced channel erosion.

Ecology expected to complete its goal of 100 percent streamside buffer restoration efforts by 2020. It didn’t work out as Ecology expected.

Ecology’s goal proceeded at an “almost nonexistent pace for years,” Earthjustice discovered. By 2020, only 8 percent of stream miles had been planted.

Earthjustice and the Swinomish Tribe said Ecology’s approach has not met the revegetation goal and won’t ensure that water quality standards will be achieved in Lower Skagit tributaries. Ecology recommended narrowing the buffer width requirement to 35 feet in 2020, a figure the Swinomish is insufficiently protective to achieve recovery for listed species.