The National Marine Fisheries Service’s opposition to repairing a 140-year-old tide gate in the Skagit Delta typifies the agency’s misuse of the Endangered Species Act, the Pacific Northwest Waterways Association alleged Dec. 20.

The waterways association filed a friend-of-the-court brief criticizing NMFS for concluding that maintaining the tide gate would jeopardize the continued existence of Puget Sound salmon and killer whales.

The tide gate keeps Puget Sound saltwater tides from inundating about 200 acres of farmland 75 miles north of Seattle. A new tide gate would block would-be fish habitat for another 50 years, according to NMFS.

NMFS also has held up dredging and dock repairs by treating routine maintenance as a new threat to endangered species, according to the waterways association.

Waterways Executive Director Neil Maunu said in an interview Dec. 23 he hoped the lawsuit over the tide gate will change how NMFS applies the ESA.

“Industry has been saying for awhile it would take someone suing to get NMFS to recognize what they’re doing,” Maunu said. “Somebody had to push back. … It has to come to a head.”

NMFS spokesman Nicholas Rahaim said in an email the agency won’t comment on the lawsuit, but will file a response to the waterways association’s brief in January.

The waterways association represents ports, terminal operators, tug and barge companies, cruise ship lines and agricultural producers in Washington, Oregon and Idaho.

Skagit County Dike, Drainage and Irrigation District 12’s lawsuit against NMFS will have impacts outside the 70,000-acre Skagit Delta in northwest Washington, according to the waterways association.

NMFS has made unreasonable demands on ports, and ports must either cancel projects or pay for “mitigation credits,” the association alleges.

The credits are excessive for projects that maintain the status quo, the association says. NMFS calculated dredging and dock repairs at the Port of Bellingham would require millions of dollars in mitigation.

“These costs are staggering for routine maintenance activities that do not expand the existing footprint of infrastructure,” Maunu said in a court declaration.

The Port of Everett applied for federal permits to dredge in 2021, but the project remains stalled. NMFS told the port it must pay more than $804,000 for mitigation. In the past, no mitigation was required, Maunu said.

Other ports have experienced similar multiyear delays and risk financial losses if docks are not maintained and vessels are damaged or people are injured, according to Maunu.

NMFS has offered District 12 the option of spending money on fish projects in exchange for a federal permit to repair the tide gate. District 12 says the option would cost millions of dollars and is impractical.

A dozen Skagit Delta dike districts maintain more than 100 tide gates. NMFS’s position on the District 12 tidegate has set a precedent for other tidegate projects.

The waterways association brief signaled wider interest in an issue threatening one of Washington’s most productive farming regions. “It’s slowly getting out there,” Skagit County dairy farmer Jason Vander Kooy said.