Swinomish Indian Tribal Community v. Skagit County
Holding: (Unpublished Opinion)
- A Memorandum of Agreement between a county and a tribe limiting new development that would affect water flows in salmon waters is not void as against public policy.
- A tribe does not have standing to directly enforce Section 63 of the GMA (codified at RCW 19.27.097).
Discussion:
The dispute is about the county’s permitting of private wells in the Skagit river watershed. The tribe is concerned that allowing new population growth on private wells will further decrease the water table and endanger the salmon in the river system.
In 1996, the Swinomish Tribe entered into an agreement with Skagit County regarding the allocation of Skagit River Basin water resources. In addition to the Tribe and County, the agreement also included Skagit County Public Utility District No.1, the City of Anacortes, the Department of Ecology, the Department of Fish and Wildlife, and the Upper Skagit and Sauk-Suiattle Tribes.
The MOA was intended in part to ensure the establishment of instream water flows to protect fisheries resources, to develop a coordinated water delivery system, and to reduce the use of exempt water wells in areas of the county experiencing inadequate instream flows as a result of groundwater withdrawal. An instream flow is defined in the MOA as the quantity of flow necessary to maintain sufficient water in a stream to support in harvestable numbers the natural production of food and game fish.
The county challenges the legitimacy of the MOA on regarding water use since the provision might “limit [the county]’s ability to protect the health, safety, and welfare of its population.” I find it hard to envision how the county’s population would suffer from a moratorium on new private wells. Nevertheless, the court’s discussion regarding MOA legitimacy is interesting.
The court trots out cases supporting governmental contracts: to collect taxes supporting a dam, handling and disposal of solid waste, and zoning changes. Then, the court notes that the MOA is “not a limitation on the County’s legislative and police powers, but a commitment to follow and enforce specific statutory requirements.” In addition, the court finds support for the agreement under the Interlocal Cooperation Act and the Water Resources Act. For all these reasons, the MOA stands.
Finally, the ruling that the tribe does not have standing to challenge the county’s application of the GMA directly is unsurprising. At the court notes, the tribe has other options for addressing its concerns.
The Tribe may challenge individual permits via Land Use Petition Act appeals, and may seek relief from the Growth Management Hearing’s Board regarding new ordinances adopted by the County to comply with the MOA and GMA, or seek such relief regarding a failure to adopt appropriate ordinances.
Links:
Full text of the opinion (PDF)
Full text of RCW 19.27.097 as of Mar 24, 2007
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