Caught in regulatory net

By Leslie Moriarty

Herald Writer

MONROE — There’s no place Ron Lavigueure would rather be on a warm summer afternoon than at the ponds in his backyard, near the fish.

And that’s good, given the demands that are hanging over his head.

Lavigueure, an avid fisherman who builds fishing boats for a living, has only a few months to repair the west fork of Woods Creek that runs through his 20 acres north of Monroe, or face going to jail.

Years ago, he changed the creek as it crosses his property without securing the required permits.

Now he is under a federal court order prompted by the U.S. Environmental Protection Agency, the state Department of Ecology and the state Department of Fish and Wildlife to restore the creek to its original condition.

His problems began shortly after he bought the property in 1988.

It was then that he began to notice that his land would flood each winter, partly due to development and land clearing by the state Department of Natural Resources up the hill. Extensive flooding in winter 1990 created new waterways through his property, he said.

So Lavigueure decided to reroute the flow of the creek in a manner that would stabilize it and allow for better fish habitat.

During the next few years, he created two ponds where fish have multiplied, including coho and chinook salmon, both now endangered species.

He created walking paths between the creek and the ponds and built a footbridge over the creek to allow access to the 13 acres of his land on the other side of the creek. The walkways allow children and disabled people a route to the area for sports fishing. He completed the work in late 1993.

However, he did the work without permits, thinking that he was making improvements to his own property, he said.

But that’s where he went wrong.

According to Ecology Department inspectors, by failing to get permits from the county, Lavigueure violated state and federal laws, and was hit with a misdemeanor polluting charge. To avoid more problems, he entered a plea of guilty in 1994 and agreed to submit a plan that would restore the creek.

He understood that the agreement would allow him to maintain his ponds if he provided fish enhancement and increased production in the area, he said.

Since then, he has been in negotiations with environmental officials over how to restore the creek.

Fish and Wildlife spokesman Bob Everett of Mill Creek said the work Lavigueure did seriously harmed Woods Creek as a whole.

"The original work introduced sediments in the creek and clouded the water," Everett said. "It seriously impacted water quality in the creek."

Everett said Lavigueure violated environmental laws by damming the creek and diverting water into his ponds, effectively impounding the water for his own use and then letting it re-enter the creek at a lower level.

"All of this is illegal use of the creek," Everett said. "He has been under a court order for some time to restore it, and he has chosen to ignore that. Somehow, he thinks he’s going to get this all permitted after the fact."

Local fishing groups, including the Snohomish Sportsman’s Club, the Sky Valley chapter of Trout Unlimited and the Pogy Club of Seattle, have recently come to Lavigueure’s defense. They have been writing letters to county, state and federal officials asking that the work Lavigueure did be allowed to remain.

One of them is Bob Heirman, a Snohomish County sportsman and conservationist. Heirman has been familiar with the property since 1930, when he fished Woods Creek as a boy.

"What Ron (Lavigueure) has done is a tremendous asset to coho fishing in Snohomish County," he said. "The removal of the ponds he created would be an enormous environmental mistake."

Heirman even asked retired National Marine Fisheries Service biologist James Mighell to evaluate the health of Woods Creek and the ponds created by Lavigueure.

Mighell said he found that the ponds were producing wild coho salmon smolts in great numbers, probably in the range of 10 to 100 times that of the adjacent stream and upstream sites.

He said that translates into pond production of between 1,000 and 6,000 spring smolts each year, compared with 75 to 100 in the natural stream area.

"A lot of the creek restoration projects that are sponsored with state and federal grants could only hope to be this successful," Mighell said.

Heirman and Mighell said they realize that Lavigueure should have secured the proper permits before doing the work.

"He didn’t, and he should have to pay some kind of fine, or do community service, possibly restoring other creeks in the county," Heirman said. "But to make him remove the finest fish protection areas I have seen in this county, at this point, is contrary to why we have such regulations — to enhance and preserve nature."

Mighell said the habitat is raising the numbers of wild fish in the area, and they are safely swimming upstream.

While Lavigueure does allow fishing groups to use his ponds and sponsors free fishing days for area children, the fish are released after being caught.

Lavigueure is reluctant to speak publicly about the situation. He admits that if he doesn’t restore the creek as ordered by the federal government, he may face time in jail. So he plans to begin the restoration plan soon, which means tearing out the large holding pool, a rearing pond and an off-channel area.

He estimates that, including the spruce, cedar and willow trees he planted around the creek and ponds, the project cost him more than $100,000. He estimates it will take about $125,000 to rechannel the creek back to its original route.

Everett said he understands that while there is some evidence that there are higher numbers of fish because of the ponds, there is no evidence that it is helping salmon recovery.

"There is a question of whether the native fish can now get upsteam, because the creek has been lowered," he said.

Ecology Department representatives were unavailable to comment on Friday.

Mighell wants to see some kind of compromise reached before Lavigueure begins dismantling his ponds.

But before any compromise is made, to help the fish or the flooding problems, Everett said the illegal work has to come out.

Mighell disagrees.

"I am appalled and disappointed in my fellow biologists for deciding on a punitive remedy in this case," Mighell said.

"Mr. Lavigueure is a resource-oriented man who has provided a place for the disabled, children and local sportsmen’s clubs to fish and has enhanced fish production in the area."

You can call Herald Writer Leslie Moriarty at 425-339-3436

or send e-mail to moriarty@heraldnet.com.