For 150 years, tidegates have made it possible to farm on the Skagit Delta in the northwest corner of Washington state. To the National Marine Fisheries Service, however, tidegates only damage the environment.

Tidegates are relatively simple. As the tide goes out, the metal gates swing open to let water out from behind a dikee and allow the passage of fish.

But when the tide comes in, the gates swing shut to keep out Puget Sound salt water and block the passage of fish into the channels that cross the farmland.

Without the tidegates, some farms would be soggy, salty — and history.

There are more than 100 tidegates in the delta. Over time, tidegates decay and must be repaired or replaced. But keeping those tidegates in place is bad for salmon, according to NMFS. If a tidegate fails, land “managed for agriculture” would be swamped by saltwater and return to fish habitat.

Repairs needed

The Skagit Delta’s dozen dike and drainage districts are in a tight spot over this. One was denied a federal permit to repair a single tidegate.

NMFS concluded last April that fixing just one tidegate would jeopardize the continued existence of Puget Sound chinook salmon and killer whales, which are protected under the federal Endangered Species Act.

That conclusion jeopardizes the continued existence of farming in the 70,000-acre delta, one of Washington’s most productive agricultural regions.

Long days and a temperate climate make the delta ideal for growing vegetable seeds, according to the USDA. The delta also has a substantial amount of vegetable, fruit and dairy production.

Without maintained tidegates, “it’s gone,” Skagit Delta bulb grower John Roozen said. “All infrastructure needs to be replaced.”

Skagit County Dike, Drainage and Irrigation District 12, which owns the tidegate in question, is suing to overturn the finding. NMFS has overreached and misapplied the Endangered Species Act, the district alleges.

NMFS justifies its position by pointing to the loss of fish habitat. NMFS estimates 72% of the delta’s fish habitat has been converted to agriculture or other uses.

Puget Sound’s 74 Southern Resident killer whales prey on salmon. NMFS did not project how many more salmon there will be if District 12’s tidegate fails.

It may not matter. A growing number of Harbor seals and Stellar and California sea lions are likely the primary drivers of salmon mortalities since fishing was reduced in the 1990s, according to a study this year by the Institute for the Oceans and Fisheries at the University of British Columbia.

Farmers are scapegoats and the victims of a false hope, Skagit Delta dairy farmer Jason Vander Kooy said.

“We’re an easy target. There’s so few of us,” he said. “There’s a fantasy you have to destroy farmland to bring back the fish. Why they have it in their heads, I don’t know.”

Agreement unravels

A Seattle newspaper reported in 1877 that “one of Seattle’s most enterprising citizens” bought 720 acres of marshland in the Skagit Delta and over the winter would build a “substantial dike and tidegates.”

The man planned to drain the land and plant grain in the spring. “These active men are the ones whom we desire to see prosper,” the paper enthused.

A Tacoma newspaper in 1891 called the Skagit Delta a “rich and prosperous country in every respect.” “The lands have almost all been reclaimed, and are among the most productive in the world.”

A land speculator advertised delta farmland in 1921 for $25 an acre. “Be a potato king. You can do it on Skagit Delta lands,” the ad promised.

Over decades, however, tidegates became controversial. In 2008, U.S. District Judge Richard Jones in Seattle ruled a diking district’s replacement of a tidegate without a federal permit violated the ESA.

The Swinomish Indian tribe, which had sued, hailed the decision as a historic victory in its fight to restore salmon runs. The judge agreed the tidegate blocked fish from habitat in a slough.

Two years later, diking districts, the state and NMFS agreed to the Tidegate and Fish Initiative. The deal was to allow tidegates to be maintained in exchange for restoring 2,700 acres of habitat over 25 years.

Between 2010 and 2019, NMFS approved at least four tidegate projects, but the agreement unraveled in 2021.

The environmental law firm Earthjustice, on behalf of the tribe, threatened to sue the U.S. Army Corps of Engineers, complaining tidegates were being repaired without sufficient progress on habitat restoration.

Only 168 acres had been restored in 11 years, according to the tribe. A lawsuit was never filed, but NMFS and the Army Corps of Engineers withdrew from the initiative.

“It was not meeting its targets for habitat restoration and fish production,” NMFS spokesman Michael Wilstein said in an email.

The initiative was dead, but the weather went on battering tidegates. A storm damaged District 12’s tidegate at the mouth of No Name Slough in 2019, and the district applied for a permit from the Corps to replace it.

Initially, the Corps agreed with the district replacing a century-old tidegate would not adversely affect endangered or threatened species. The Corps sent NMFS a notice to that effect Feb. 28, 2022.

NMFS said it didn’t receive the email until April 7 “due to file size limitations.” In December, NMFS finally notified the Corps it did not agree and would do its own assessment, known as a biological opinion.

A year passed. Eager to get on with repairs before the tidegate failed, District 12 filed a federal suit to prod NMFS into issuing the biological opinion.

NMFS argued it was busy and shouldn’t be rushed. Assistant Regional Administrator Kim Katz declared in a sworn statement the project was “especially complex and controversial.”

“If structures like this are not repaired, they decay over time and their anthropogenic adverse impacts disappear,” Katz stated.

U.S. District Judge Brian Tsuchida in Seattle was unsympathetic.

“NMFS claims the project is complex,” the judge wrote. “The proposed work is not complex. It involves repairing an existing tidegate, which has operated at the same location for a century.”

Tsuchida ordered NMFS to produce a biological opinion by April 22, 2024. The judge laid out what was at stake:

“If District 12 is not able to repair the broken tidegate before the fall flooding season begins in October, tidal flooding could cause severe irreparable harm to people who live and work in the area by threatening farmland, public sea trails, access to roads, residential areas, commercial and industrial facilities, and railroad crossings.”

As ordered, NMFS released a biological opinion April 22 signed by Regional Administrator Jennifer Quan.

A new tidegate would jeopardize the continued existence of Puget Sound chinook salmon and killer whales, which feed on salmon, according to NMFS.

A new tidegate would last 50 years and allow more than 200 acres to stay “agricultural land with low habitat value,” according to NMFS. “Avoiding such negative effects is critically important,” NMFS stated.

As required by law, NMFS was obligated to offer a “reasonable and prudent” alternative: The district can replace the No Name Slough tidegate if it funds fish projects, including turning 8.6 acres into estuary habitat.

The district says the alternative is neither reasonable nor prudent. It would cost millions of dollars, but the district says its annual budget for drainage projects is about $100,000.

Precedent set

The Corps has followed NMFS’s lead. In September, it determined repairs to a tidegate at the mouth of Big Indian Slough would likely adversely affect salmon and killer whales.

The tidegate’s owner, Skagit County Dike District 19, proposes to insert 3-foot-long sleeves in seven leaky pipes. Faced with an emergency last summer, the district patched some holes with quick-drying cement.

In a letter to NMFS’s Katz, Army Corps Regulatory Branch Chief Todd Tillinger in Seattle explained the project would imperil salmon and killer whales by preventing the tidegate’s “catastrophic failure.”

The Corps believes its evaluation of the Big Indian Slough project aligns with NMFS’s biological opinion on the No Name Slough project, Corps spokesman Dallas Edwards said in an email.

The Corps will continue to evaluate projects on a case-by-case basis, Edwards said.

“Additionally, the Corps Regulatory Branch continues to engage with diking districts, tribes and stakeholders within the Skagit Basin to understand concerns and identify streamlined permitting tools,” he said.

Roozen, the bulb grower, said non-farmers have something at stake, too. Without tidegates, the roads, businesses and homes surrounding farmers would be at risk of flooding or cut off by high water.

“The tidegates protect way more than the ag land,” he said.

Projects on hold

For the time being, tidegate repairs at No Name Slough and Big Indian Slough are on hold as the weather worsens with the approach of winter.

The lawsuit in Tsuchida’s courtroom has morphed into a dispute over whether NMFS’s biological opinion on replacing the No Name Slough tidegate was reasonable.

District 12 also disputes NMFS’s claim that if the tidegate fails the land behind it will turn into rearing habitat for juvenile salmon.

Most likely, the district argues, farmland would become mudflats without vegetation or fish. On the other side of the dike, low tides expose a vast expanse of mud.

Roozen recently stood on the dike and gestured toward the mud. “Make farmland into more mudflats? What good is that?” he asked.