Skagit County commissioners sent a letter to various agencies Monday indicating they want to pull out of a landmark agreement to help secure Skagit River water rights for 50 years.
They cited a breach of that agreement by the city of Anacortes and the Swinomish Indian Tribal Community and a lack of good-faith attempts to resolve ongoing issues.
The commissioners are requesting a governor’s mediator to resolve ongoing water rights issues. In their letter, the commissioners say they won’t sue — yet.
“Because we believe another lawsuit would only exacerbate this situation, we do not intend to pursue litigation over the ongoing breach of the 1996 MOA, reserving all rights to do so in the future should we be unable to resolve our differences amicably,” the letter states.
Most people reached Thursday to respond to the letter said they had just received it and needed time to consider its implications.
“I’m trying to figure out what the benefit would be (for the county) to leave or if it makes any difference,” Anacortes Mayor Dean Maxwell said.
However, Emily Hutchinson, an attorney for the Swinomish, said, “That’s not how contracts work. Skagit County signed that agreement in 1996, they did it willingly.”
Hutchinson said this isn’t the first time the county has tried to withdraw from the 1996 agreement. The county claimed that agreement was void and unenforceable, but took it to court and lost their argument, she said.
Another attorney for the tribe, Steve LeCuyer, said the county can’t just walk away from the agreement.
“The other parties have performed under the contract,” LeCuyer said.
The letter comes on the eve of a state Supreme Court hearing that could limit water use in rural areas for about 6,000 landowners in the valley.
The 1996 agreement, signed by the county, Skagit Public Utility District, three local Native American tribes and several state agencies, was originally created to secure water for 50 years for the two water utilities, Anacortes and Skagit Public Utility District.
Many hoped it was a way to avoid costly lawsuits over the adjudication of those water rights. The agreement also was intended to find a way for rural landowners in low-flow Skagit River stream basins to get water and therefore, develop their land.
The PUD and Anacortes paid for a study of river flows, called the instream flow study, to determine how much water was required for salmon to thrive. That study was the basis for a 2001 instream flow rule.
But previous county commissioners noted that the rule did not include water for rural wells. The county sued Ecology, and after years of litigation, the county and Ecology agreed instead to modify the 2001 rule.
That rule amendment in 2006, created by Ecology without consent of all of the signers of the 1996 agreement, allowed a limited number of rural homes access to what Ecology says is a legal water supply.
However, the Swinomish, supported by the city of Anacortes, sued Ecology in 2008 because the agency used an overly broad definition of what the tribe says is an emergency provision to provide more water to landowners at the expense of salmon.
That case now rests in the state Supreme Court, and the commissioners’ letter states that the lawsuit could wipe out legal water use for about 6,000 rural properties if the tribe prevails.
As part of their letter sent Monday, commissioners repeated their request to add a residential and agricultural representative to the board that oversees the implementation of the agreement, called the Skagit River Flow Management Committee. In September the county sent two letters to the 1996 agreement signatories asking for the new representatives.
Both Commissioners Sharon Dillon and Ron Wesen said the county has not had a single response to its requests. A flow management committee meeting scheduled for October was canceled, which prevented the group from talking about landowner representatives, Wesen said.
Since 1996, commissioners say the agreement has done nothing to advance water rights for rural landowners.
“The reason the county signed it was to make sure that rural wells and agriculture was taken care of, and we don’t seem to be able to get there,” Dillon said. “Maybe from the beginning it should’ve been the people that are actually going to use the water … because they have a huge stake.”
While the county in its letter Monday said the Swinomish had breached the 1996 agreement, Swinomish Chairman Brian Cladoosby disagreed, saying the county broke the agreement by making a “secret deal” with Ecology in 2006.
Commissioners reached late Thursday said backing out would not change the way the county does business, because everything the county agreed to in 1996 already is covered by state law. Commission Chairman Ken Dahlstedt was out of town and unavailable for comment Thursday.
Dillon said she signed the three-page letter because she is “tired of being adversarial with the Swinomish tribe.”
“We should be working together, and we do on a lot of projects. I don’t want to do this anymore. I don’t want to be on the other side of them or Anacortes or anybody,” Dillon said. “I want us to move forward with what we were supposed to do to begin with.”
That duty, she said, is to ensure that rural landowners have access to water. But Wesen said that hasn’t happened yet.
“It doesn’t seem to be doing what we thought it would do,” he said of the agreement. Backing out, “doesn’t change anything the county is doing right now.”