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News / Northwest

Swinomish tribe files notice of intent to sue EPA over warming Washington streams

By Isabella Breda, The Seattle Times
Published: February 22, 2024, 5:42pm

The Swinomish Indian Tribal Community filed a notice of intent to sue the Environmental Protection Agency over what it argues is a 20-year failure to act on warm stream temperatures that harm threatened salmon.

For decades, Swinomish has advocated for replanting streamsides within the Skagit watershed. The Skagit is the largest Washington watershed draining into the Salish Sea and the last river system in the Lower 48 to bolster all five Pacific salmon species, and steelhead that still return here to spawn.

Much of the marshy tangle of salmon habitat in Skagit Valley — an estimated 88% — was converted to farmland, roads and other development since settlers’ arrival in the basin. With it went much of the shady trees and shrubs, along the rivers and streams that helped keep water cool and buzzing with insects that baby fish feed on.

Four tributaries of the Skagit have consistently exceeded 60 degrees Fahrenheit, and Nookachamps Creek reached 80 degrees in 2018, according to Skagit County data. Water temperatures above 64 degrees stress salmon and exceeding 70 can be deadly.

The state invests millions each year in salmon recovery — from tearing out obsolete dams and culverts to give fish access to their historical habitat, to massive hatchery operations — but hasn’t been able to replant streamside habitats, leaving miles more vulnerable to extreme heat. Climate change is anticipated to make more streams uninhabitable for salmon and oceangoing trout.

The notice of intent, sent by Earthjustice representing the tribe, argues the EPA’s failure to intervene in the Washington State Department of Ecology’s inaction on high stream temperatures has harmed Skagit River Chinook and steelhead, which are listed as threatened under the Endangered Species Act.

In the Skagit, one of the principal harms to listed salmonids is the high stream temperatures that violate water quality standards deemed necessary for salmon survival, wrote Janette Brimmer, a senior attorney for Earthjustice. Those high temperatures occur every year and throughout the entire Lower Skagit watershed.

These high temperatures resulted in a listing under the Clean Water Act in 1998. The listing required Washington to develop a timeline for bringing the water back into compliance. Ecology in 2004 identified a need for shade to reduce heat pollution.

Riparian habitat, or streamside vegetation, is critical in providing shade to reduce direct solar radiation, and keep streams cool as air temperatures rise. This vegetation both stabilizes stream banks, reducing sediment pollution, and deposits woody debris in streams for salmon to find refuge in amid low flows.

In 2008, state officials set a lofty goal: replanting 100% of the Skagit’s struggling creeks by 2020 to rein in high temperatures by 2080.

But little progress has been made.

Relying only on voluntary replanting programs, about 8% of stream miles have been replanted since 2004, according to a 2020 email from Brenda Clifton, senior restoration botanist for the Skagit River System Cooperative to Swinomish.

The Skagit River System Cooperative, a consortium between the Swinomish and Sauk-Suiattle tribes, replanted more than 700 acres of streamside habitat in the Skagit basin in the past 15 years. Meanwhile, efforts to introduce legislation that would require landowners to restore streamside vegetation were denounced by the agricultural industry.

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By 2014, the Northwest Indian Fisheries Commission calculated that 1,772 miles of salmon streams that drain into Puget Sound were temperature-impaired, Swinomish Chairman Steve Edwards wrote in a 2020 letter to the EPA and National Oceanic and Atmospheric Administration.

The EPA and Ecology have refused to use their authorities to get trees replanted along salmon streams for years, Edwards wrote in a statement Thursday, and the salmon and Swinomish’s treaty rights have suffered as a direct result.

“Ecology’s failure indicates that Washington is not likely to meet temperature standards within this century,” Brimmer wrote, of the Skagit.

The tribe has watched salmon harvest decline by more than 80% in the past decades, and the unaddressed impacts of climate change are sending the salmon toward extirpation, Brimmer argued in the letter.

In a 2004 Lower Skagit tributaries temperature planning document, officials wrote, “In many watersheds, habitat and fishery managers view increases in

summer maximum stream temperature as a significant source of mortality for juveniles during their freshwater life history stages.”

Because of the state’s failure to reduce Skagit stream temperatures, “take of salmonids due to high temperatures in the Lower Skagit continues unabated,” the letter states, potentially violating the Endangered Species Act.

“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,” Edwards, the Swinomish chairman, said in a statement. “ … Swinomish is always thinking about the next seven generations, and we hope this can help ensure there will be salmon in the future.”

If the EPA does not address the issue, Swinomish plans to file a lawsuit in 60 days.