Fox v. Skagit

by Gary Hagland

Although they were unaware of it at the time, Richard and Marnie Fox’s troubles began in 2001. Even before then, the Sedro-Woolley couple had begun planning for their retirement and probably thought there’d be no major obstacles to upset those plans, They subdivided some of their property and intended to build a smaller home in rural Skagit County on one of the lots as they downsized after their working years.  It is doubtful they appreciated that a supposed inadvertent omission of a short paragraph in the Department of Ecology’s 2001 published In-Stream Flow Rule (IFR) would prove an intractable obstacle to their dreams (1) (2).  The omission was made all the more mysterious as the omitted paragraph had appeared in Ecology’s final draft.

“In-stream flow” relates to the amount of water that is traveling the course of a river or stream at any one time.  It varies throughout the year depending on amount of rain or snow and ice melt.  Of course, it is greatest during winter and spring wet periods and least at the end of summer and early fall when western Washington typically experiences a short dry spell.  An in-stream flow rule sets levels of minimum flow which can impact or even prevent water use.  In Washington State, the Department of Ecology administers IFR’s. 

In its published form, the 2001 IFR allocated water resources to Skagit PUD, the City of Anacortes, agricultural uses (irrigation) and fish.  Fish received 92% of the volume of water in the third largest river system on the U.S. west coast and one of the wettest regions in North America. (1)  Private landowners and farmers were not mentioned. The reason for the omission is in dispute.  The signers of a 1996 MOA that apportioned water for use throughout Skagit County laid blame on each other. Bureaucratic oversight was an excuse given by some.  The county pointed to the tribes’ representative, as the Swinomish declared that an agreement with allocation for new private landowner well use gave away too much water and would affect salmon populations.  Ecology claimed that the stakeholders wished to pare down the agreement to its “essence” and tackle such issues as exempt wells, lakes and wetlands at a later date. (3)

The IFR, as written, setup years of contentious legal wrangling between the county and the Swinomish tribe and their ally, Anacortes.  The county maintained under the 1996 MOA, that both Anacortes and the Swinomish were parties to, that it had reserved the right to allow for development of exempt wells in the Upper Skagit watershed outside of Skagit PUD’s water service area and continued to issue building permits.  The Swinomish and Anacortes adamantly disagreed.  Litigation followed with the county prevailing in 2004. (4)      

In 2006, in a compromise between Skagit County and Ecology, an amendment was added to the 2001 IFR that allowed development of an adequate, reliable water supply for Skagit County residents.  The county secured a minimal amount for landowners and continued to issue permits.    

In 2008, the Swinomish and Anacortes sued to invalidate the 2006 amendment.  They lost.  They lost again on appeal.  In 2012, the case advanced to the Washington State Supreme Court and this time the Swinomish won.  (5)  

That ruling had a profound effect, potentially denying access to almost 500 homeowners to use their own wells.  Those wells were installed after the 2001 IFR.  The Supreme Court ruling also effectively denied water for up to 5500 properties.  The reality was the value of those properties was immediately reduced.  When the Snohomish County 

Assessor faced the same situation in the Carpenter/Fisher Creek basin, he dropped property values by 80%.  Skagit County has been slow to react.  Property values and taxes have remained the same on the assessor rolls.         

The Swinomish position, and now Ecology’s also, although that department was charged with defending citizens’ rights in Swinomish v. Dept. of Ecology, is that salmon populations in the Skagit River and its tributaries are threatened by more water being taken than is already allocated.  But is that true and is that the real reason behind Swinomish Chairman Cladoosby’s implacable opposition to any more wells in the Skagit Watershed?

First, the Department of Ecology, when it created the IFR for the Skagit Watershed, set an unrealistically high flow amount.  According to historical records, during the dryer period of August thru October flows are well below the level Ecology stipulated with no harm to salmon populations.  It’s obvious that the IFR was arbitrarily determined and not scientifically based.  

It is ironic then, that in Snohomish County, the Pilchuck River provides water to the entire City of Everett and much of the southern part of the county.  The City of Everett has almost as much population as all of the Skagit County.  In addition, the Pilchuck is smaller than any of the three main tributaries to the Skagit.  And there are still fish in the Pilchuck, including endangered Chinook salmon.  (6)    

Next, when determining IFR, Ecology’s assumption was that well users only took water and didn’t replace it.  They didn’t consider septic recharge.  If a property owner is not serviced by PUD, then he or she will also use a septic tank.  Under pressure, Ecology relented and allowed a 50% recharge rate. (7)  Hydrologists usually attribute septic recharge at 75% or higher. (8)  

Ecology also assumed a100% connectivity between ground water that is accessed by wells that are often dug as deep as 200 feet and streams and rivers that feed into the Skagit.  That is doubtful.  It’s obvious that Ecology ignored common sense and lacked for sound scientific evidence when they fashioned the 2001 IFR.  They also ignored the interests of the rural residents of Skagit County.  However, there’s still more to this unfortunate story that has negatively impacted Richard and Marnie Fox and others like them.  Swinomish Tribal Chairman Brian Cladoosby has been in the forefront of efforts to deny access to water for rural residents.  Cladoosby is powerful. Generous donations from the Swinomish tribe to certain politicians may have played a role.  He is also a friend of President Obama.  In 2013, he was elected President of the National Congress of American Indians (9), the oldest and largest organization representing tribal interests in the U.S.

Chairman Cladoosby claims his interest in opposing further well drilling and development in rural Skagit is about maintaining the Swinomish tribe’s traditional lifestyle of a diet rich in salmon.  However, among other economic interests besides a casino, two hotels and a golf course, the tribe operates a fish processing plant in LaConner.  Seems tribal fishing has expanded well beyond the subsistence level of Swinomish ancestors.  

Several years ago, Chairman Cladoosby revealed his true intentions and he did it in the presence of the Skagit County Commissioners.  The commissioners affirmed this in a 2011 letter all three signed that was sent to then Governor Gregoire asking for assistance resolving the constant disputes over water with the Swinomish.   In paragraph six, the commissioners stated, “Swinomish Chairman Cladoosby recently told the three of us that he intends to control land use in the Skagit Basin by controlling the water supply, effectively bypassing Growth Management Act (GMA) process.  From our standpoint, this sentiment explains the present conflict over water rights in the Skagit Basin.” (10)   

After detailing their record of support for tribal sovereignty, local tribal salmon restoration efforts and other initiatives, the frustrated commissioners further stated, “But support for tribal sovereignty and salmon habitat restoration does not equate to the notion that one of four Skagit tribes, consisting of less than 700 tribal members, should effectively dictate off-reservation land use by attacking the water supply.” (11) 

However, that is what is happening today in Skagit County and why Richard and Marnie Fox are unable to obtain a building permit.  State law requires access to water and since the couple can’t access what they have thanks to the 2013 Supreme Court decision, Skagit County won’t issue a permit.  

But the Fox’s are a courageous couple and have decided to fight this battle in court.  Securing a ruling in May that mandated Skagit County issue them a permit or show cause why it shouldn’t, they are forcing the issue.  In a subsequent July hearing, the county attorney was joined by two lawyers representing Ecology and three Swinomish attorneys.  There’s evidently a lot of interest by powerful forces in this state in ensuring the Fox’s don’t get to build a home and others in rural Skagit don’t either.   

UPDATE: After Snohomish Superior Court Judge George Appel ruled against them in December 2014 (a change of venue as Skagit County was the defendent), Richard and Marnie decided to continue the fight to build their retirement home.  They have appealed and their case will be heard in Seattle’s District 1 court sometime in early 2016.  Their appeal was financed, in large part, by the donations received at the Skagit CAPR Chapter’s water forums in the summer of 2015.

To read more about the Fox case, visit the Just Water Alliance website at:











(11) ibid.

March 5, 2015