Groups Challenge Army Corps of Engineers’ Refusal to Protect Puget Sound Shorelines

Corps’ Seattle District violates Clean Water Act, endangers Sound recovery
May 21, 2018

Seattle, WA —A lawsuit filed today against the U.S. Army Corps of Engineers (“Corps”) charges that the agency has refused to assert its Clean Water Act jurisdiction over most shoreline armoring in Puget Sound, and that endangered species and Sound shorelines are suffering the negative impacts of the Corps’ continued inaction.

Washington Environmental Council, Sound Action and Friends of the San Juans filed the suit after the Corps rejected a science-based government recommendation to correct its unlawful definition of the Seattle District Corps’ jurisdiction over shoreline armoring projects.

The coalition, represented by Earthjustice, is calling for federal oversight of shoreline armoring by raising what the Corps’ Seattle District considers the “high tide line” in order to better protect at-risk species and the shorelines themselves. The lawsuit also calls for a response to the groups’ 2015 petition asking for jurisdictional decisions on four shoreline armoring projects. The groups contend a strong federal policy to protect shorelines is critical to Puget Sound recovery.

“Shoreline armoring impairs the health of Puget Sound by damaging nearshore habitat important for forage fish that feed salmon,” said Mindy Roberts, Puget Sound director for Washington Environmental Council. “Currently, federal agencies don’t consider impacts from these structures, because their definition of what constitutes ‘the shoreline’ is too lax.”

Background

Armoring is the placement of hard structures — boulders, jetties, seawalls — on shorelines to help prevent erosion. The Corps is required by law to review proposed armoring projects up to the “high tide line,” which is generally the line at which land meets the water. But the Corps’ Seattle District uses a much lower tidal marker (known as the “mean higher high water” mark). As a result, the Seattle District does not review the majority of armoring projects in Puget Sound.

The Corps’ failure to assert jurisdiction means there has been no federal oversight of whether most armoring projects in the Sound meet the Clean Water Act, the Endangered Species Act or any other federal requirement.

Further, the Corps recently rejected an interagency recommendation to use a higher tidal marker, in violation of the Administrative Procedure Act, which prohibits arbitrary and capricious agency actions. In rejecting the recommendation, the Corps ignored sound science and the law.

“The Corps has known for years that its high tide line marker in Puget Sound is unlawfully low,” said Anna Sewell, Earthjustice attorney for the plaintiffs. “But the Corps put its head in the sand and rejected a science-based recommendation from three regional federal agencies — including the Seattle District Corps itself — to protect 8,600 acres of shoreline area by raising that marker.”

This troubling lack of federal support puts Puget Sound shorelines at risk of further deterioration, particularly when shoreline armoring is well documented to be one of the most significant risks to the Sound.

“Puget Sound is already on the brink of collapse due to continued habitat loss, and it’s critical that the laws put in place to protect nearshore ecosystems are both followed and enforced,” said Sound Action Executive Director Amy Carey. “Unless we act now, the forage fish, the salmon and the orcas that are so desperately struggling to survive will be lost forever. It’s up to all of us to ensure this doesn’t happen — and it starts by holding the permitting agencies accountable for doing their jobs.”

“By disavowing its statutory authority, the Corps has shielded harmful projects from a review of their impacts on critically endangered and culturally vital Northwest species,” added Kyle Loring, staff attorney, Friends of the San Juans. “Its high-tide interpretation also leaves state and local governments on their own, at a time when our publicly-funded agencies should be working together to do everything in their power to protect what remains of our region’s rich heritage.”

The Corps must respond to the lawsuit within 60 days.

Reporter Resource

Read the brief.

Damning emails surface showing state concerns over aquaculture methods

Laura Hendricks has been working against geoduck farming aquaculture for over a decade. She has often been portrayed quite negatively by the shellfish industry, as they routinely attempt to label her as a ‘radical environmentalist’.  This reporter has heard her called that by representatives of the shellfish industry public relations team. Her tactics have often been at odds with other environmental organizations. Recently, she requested through a public records request emails between Washington State Dept. of Fish and Wildlife and the Pacific Coast Shellfish Industry, a lobbying organization for the shellfish industry.
The latest document that she has surfaced shows a picture of industry attempting to influence (and weaken) any attempt at state regulation over it’s use of state tidelands. In the last decade, in an effort to head off attempts to provide greater state regulations over their conversion of thousands of acres of tidelands into valuable geoduck farms, (which sells virtually all their product to China), the aquaculture industry has put together a public relations and lobbying machine that has worked to keep any regulation that may thwart more conversion of nearshore into production from reaching law. At the time of the email, 2002, the industry was putting together a self regulation effort, to forestall any attempts by environmentalists to get the State of Washington to better regulate their industry.
The Washington Shellfish Initiative, which has been implemented by Governor Inslee, primarily works to enhance and expand shellfish harvest in Puget Sound. The issues raised in this newly found email, appear to never have made it into any working framework for regulation of the industry. The question it raises, is “Why weren’t they?”
The document, by Gail Kreitman, who was the regulatory services manager for the habitat program of the Washington State Department of Fish and Wildlife ends with a with a damning list of negative consequences that the aquaculture industry causes, or could cause, to shorelines.
The State and Tribes  are struggling to save Orca and restore native salmon, forage fish and herring populations. At the same time, the State is allowing conversion of  hundreds and hundreds of acres of nearshore into farms for geoduck, along with the attentive shore based work . We in the environmental community have fought for less farms and more protections for the shore and shoreline for the last few decades. We have asked for some basic protections to the habitat.
That a home owner must produce a detailed state Hydraulic Project Approval (HPA) to describe possible negative effects of something as simple as a dock remodel, yet the aquaculture industry does not have to detail destruction  or mitigation of hundreds of acres of geoduck farm conversion of the same habitat, is an issue that must be addressed if we have any hope of restoring species. The industry claims that science has shown that the bottom (known as the benthic layer) will recover when the farms are removed. It is a well known fact that once a farm is installed, there is no ‘return to natural processes’ as the farm is in place essentially forever.
Kathy Fletcher and People for Puget Sound was involved in efforts to bring greater scientific scrutiny to the aquaculture industry in the late part of the last decade. These efforts were to find or create the science to prove the case of aquaculture consequences. The industry fought them to a standstill, ending with a long term study of impacts of aquaculture on the nearshore that found issues with the benthic layer and requested further study, which was never funded.  If People For Puget Sound would have had these emails, it may have significantly impacted the outcome of the debate back then, as the State knew that these impacts were possible yet did not choose to force the issue by requiring the same due diligence that individuals were required to do.  That these documents by public officials were not allowed into the public debate of that era is a travesty and a testament to the power of the lobbying machine that the shellfish industry employs. What is also disheartening is that the State apparently refused to bring environmental organizations into this discussion,  who where fighting for the protections that the State was unwilling to fight for themselves.

Ms Hendricks has joined a lawsuit seeking to force the state to issue HPA’s for aquaculture. The lawsuit seems to be  a long shot that may do more harm than good for the cause if they lose. But the  discussion in this email exchange is key to getting public officials off their positions about the lack of harm of aquaculture. The email definitively documents what a lead state habitat bureaucrat saw as the known dangers to the nearshore.

Very few are arguing against aquaculture in total. Most of us enjoy the fruits of their labor. But they, like all of us, need to operate within a framework of protections that ensure that they do as little harm as possible to the environment. 
We can have both better protections and aquaculture. But the industry has been not fully truthful in it’s attempts to paint itself as a beneficial environmental industry. They have fought to be self regulated. It’s clear that they have not earned the right to do so, since they cannot be trusted to put in place stringent environmental protections.  I highly recommend that you read the PDF document I attach from her below.

From Laura Hendricks:
Since many of you are still working on aquaculture regulations or permitting, we thought you would be interested in how the shellfish industry avoided state environmental regulation.
We found the attached records from a WDFW public records request that clearly document 28 pages of “Aquaculture-Fish Impacts” that WDFW compiled in 2000.
The 2002 letter from Gayle Kretiman is telling when she states: “Much of the Codes of Practice is written to convince the public that the shellfish industry is a good environmental steward and that further regulation is unnecessary…..”Though WDFW supports the intent of these statements, they are misleading given that the Code of Practice fails to inform the reader that the operations of the commercial shellfish industry in Washington State are currently unregulated at the state level.  To date, the Washington Department of Agriculture has failed to develop or adopt rules that address the risks and impacts to marine habitats and natural resources that can result from commercial shellfish operations.”
We can see why Mr. Dewey stated in his email that “So far, I am only mildly panicked.” It is clear that the shellfish lobbying stopped the state regulations in 2000 and instead introduced the self serving Environmental Codes of Practice (ECOP) that most counties/Shorelines Hearings Board used to guide their permitting in the past. It must also be noted that the Department of Agriculture never issued any aquaculture regulations and the new 2018 aquaculture office is there to streamline permitting–not to protect marine habitats and natural resources. It is a fact that the Shellfish Initiative which is only a lobbying effort called for by Taylor Shellfish and promoted by NOAA is now being used since the ECOP’s were no longer giving the industry cover from regulation.
Considering the massive lobbying efforts by the shellfish industry to avoid state regulation. it is even more important that our counties and the Army Corps protect our marine habitats when even WDFW lists 28 pages of “fish related impacts” as of May 17, 2000.
We must protect our marine habitats from industrial aquaculture if we have even a chance of saving Chinook salmon, Orca’s and other marine life. I have already sent this information to our Pierce County as they continue to work on their SMP update.
Sincerely,
Laura Hendricks
 The email conversation of 2002.
Additional readings on the subject. The Seattle Journal of Environmental Law published an article by Lindsay Ward, in May 2014. Called The Legal and Enviromental Implications of the Washington Shellfish Initiative: Is it Sustainable? This comprehensive overview of the legal framework which has been implemented since the emails of 2002 clearly shows how the state works together with the shellfish industry to promote shellfish farming over environmental protections, protections which were implemented to protect Hood Canal summer run Chum and Puget Sound Chinook salmon and it’s required habitat. The same salmon that Governor Inslee has recently signed an executive order and called a task force together to attempt to save.
From the Lindsay Ward document:

The economic importance of shellfish to Washington’s economy, both as a source of revenue and job creation, is evident. What is less clear, however, is the (Washingont Shellfish) Initiative’s ability to successfully carry out its objectives while following the legal mandates proscribed by Washington’s Shoreline Management Act (SMA), as well as other legal doctrines. While the Washington Shellfish Initiative bills itself as promoting a sustainable clean water industry, its directives fall far from the Initiative’s claim of enhancing and protecting this valuable resource in a sustainable manner. Where this endeavor may destroy our pristine coastal environments forever, an assessment of both legal mandates surrounding shellfish aquaculture as well as the environmental ramifications of improper shellfish aquaculture growth is necessary to ensure that Washington’s coastlines and encompassing habitat are protected from destruction.

Primarily, the environmental consequences of implementing the Initiative pose massive and irreparable consequences for the environment.”
Read the whole story on the history and current threats from the Washington Shellfish Initiative here:
Seattle Journal of Environmental Law:Vol 4. Issue 1 Article 6

North Pacific seafood exports hit by China’s tariffs -Seattle Times

So this administration run by people who don’t appear to know anything about how to negotiate  has now brought on tariffs on our seafood industry. Are you business people running seafood businesses ready to get the Republicans in Eastern Washington on board with getting Trump to stop this stupid destructive policy?

The North Pacific seafood industry — much of it headquartered in Washington — will get slammed with a wide range of retaliatory tariffs on exports to China, an important and growing market.

The products covered by the tariffs include frozen pollock, cod, pink and sockeye salmon, snow and Dungeness crab and herring, according to SeafoodNews.com, an industry publication that put the dollar value of Alaska exports to China at more than $750 million in 2017.

Some Northwest exports, such as geoducks, also are included in the tariffs announced Friday.

https://www.seattletimes.com/business/north-pacific-seafood-exports-hit-by-chinas-tariffs/

Dismal Copper River salmon run prompts ‘unprecedented’ shutdown of dip-netting at Chitina – Anchorage Daily News

Not good news coming in from the Copper River. Salmon numbers are so bad they’ve close the fishery.

The state is taking the historic action of shutting down Copper River dipnetting at the popular, physically demanding sites around Chitina.

The Alaska Department of Fish and Game issued an emergency order Wednesday closing the personal-use fishery until further notice as of Monday.

 

https://www.adn.com/outdoors-adventure/fishing/2018/06/13/dismal-copper-river-salmon-run-prompts-unprecedented-shutdown-of-dipnetting-at-chitina/

 

Tied U.S. Supreme Court decision means Washington must remove barriers to salmon migration -Various publications

This is huge.  The question is, “where will the money come from?”  Something is going to have to give from the State budget. Will it be social services? Environmental protections? Or will the State raise gas taxes to fund the work? But to be clear, if we want to save salmon runs from extinction, along with the resident orcas, we will have to continue to do costly work to protect our natural resources. There is not much time left for them, given a warming planet.

The U.S. Supreme Court is leaving in place a lower court order that forces Washington state to restore salmon habitat by removing barriers that block fish migration. The justices split 4-4 Monday in the long-running dispute that pitted the state against Indian tribes and the federal government. The tie means that a lower-court ruling in favor of the tribes will stand. Justice Anthony Kennedy stepped aside from the case because he participated in an earlier stage of it when he served on the 9th U.S. Circuit Court of Appeals…. At issue is whether Washington state must fix or replace hundreds of culverts. Those are large pipes that allow streams to pass beneath roads but can block migrating salmon if they become clogged or if they’re too steep to navigate. Hal Bernton reports. (Seattle Times) See also: Will the state learn from another loss on tribal fishing rights?  Daniel Jack Chasan reports. (Crosscut)

Tied U.S. Supreme Court decision means Washington must remove barriers to salmon migration

We are almost certainly underestimating the economic risks of climate change – VOX

I have long argued that the field of economics is simply propaganda for the status quo. Their findings are helping continue a headlong drive, exemplified by our current ‘head in the sand’ administration, towards the Sixth Extinction, which will take us and likely eliminate most of the planet’s diverse species. Here’s more evidence of how the field is failing real science. Is it even science?

https://www.vox.com/energy-and-environment/2018/6/8/17437104/climate-change-global-warming-models-risks

Residents opposed to Mason County ‘septic lagoon’ despite state paving the way for approval – Kitsap Sun

Whatever could go wrong?  Well this story is about mitigating what went wrong. This is one of the locations that process our wastes for Jefferson County.  There is a backstory to this, as the request by Bio Recycling, who  has been in Mason County for a long time, and this proposal is to mitigate a problem for winter discharges and brown-water issues. It has been an ongoing issue of nitrates getting into the environment from the current plant. Bio Recycling’s technology may be sound, but so much “green-washing” is happening these days, where companies with unsound technologies rebrand themselves as ‘environmentally friendly” that it’s worth it to review their proposal.

The bio-solids they process are taken to central Washington where they are reused as fertilizer, though it’s unclear on what crops, etc.

They have been processing on-site septic systems and waste water treatment plants since 1993. There is no requirement to test for organic chemicals such as drugs, chemotherapy chemicals, poisons, etc. though they mention in the video of the meeting that they have done some preliminary studies and not found more than traces of some chemicals.  They use a lime neutralization process to treat the septic product. They process home septic tanks, some grease trap material and some material from waste treatment plants like Port Townsend and Port Ludlow, if my information is correct.

Citizen concerns are over a variety of issues, one of them being the ability to withstand a seismic event and what would happen in the event of an earthquake causing the pond to be breached.

The entire video of the Mason County Commissioners meeting that goes over the request is found here: http://masonwebtv.com/archives/30031

Also the overview of Bio Recycling and it’s processes, it’s overview of the project, etc.  I can’t find any mention of the people who run the company on their web site, or if they are owned by another company. They are a privately owned company apparently run by Brian Hinkey (sp?) the son of the founder.

http://www.biorecycle.com/north_ranch.shtm

Bio Recycling is still awaiting permit approval from Mason County and the Department of Ecology to move forward with plans to build a double-lined lagoon to store treated biosolids, amid outcry from community members. The Department of Ecology and Mason County determined in March that the facility’s proposal to build an 18-million-gallon, double-lined lagoon to store treated wastewater and septage in Union will not have a probable significant adverse impact on the environment. The determination of nonsignificance, part of a state-mandated process, kicked off an intense period of public comment and meetings, wherein Ecology and Mason County received more than 100 comments from individuals, tribes and state agencies weighing in on the project. Arla Shephard Bull reports. (Kitsap Sun)

Residents opposed to Mason ‘septic lagoon’ despite state paving way for approval

Swinomish Tribe and others sue Army Corp over lack of eelgrass protections

Somehow this lawsuit slipped my review. It came out in late April and adds to the growing group of lawsuits seeking to protect yet another of Puget Sound’s key habitat, eelgrass.  As the suit states: “Native eelgrass beds serve as nurseries, cover,and feeding grounds for threatened Puget Sound Chinook salmon, Dungeness crabs, and other aquatic species.”

You may have seen the “No anchor zones” in Port Townsend Bay that are there to help boaters avoid damaging these fragile underwater forests.

The Swinomish Tribe, along with Earth Justice and others, challenges the Army Corp of Engineers and it’s  Nationwide Permit 48,( NWP 48) which came out last year. NWP48 authorizes large-scale commercial shellfish aquaculture without mandatory avoidance or minimization measures to protect eelgrass.

From the lawsuit filing: The Corps’ first nationwide permit covering shellfish aquaculture issued in 2007 applied only to active commercial shellfish operations which had a state or local permit. As reissued in 2017, NWP 48 reaches beyond active commercial shellfish operations to cover any area that was used for commercial shellfish aquaculture at any time within the last 100 years. This definition extends into “continuing fallow” areas, which are areas that previously had shellfish operations at some time, but not since 2007 when the first NWP 48 was issued. NWP 48 contains measures requiring avoidance of eelgrass beds in “new” operations that have never been cultivated, but makes those mandatory avoidance measures inapplicable to eelgrass beds in continuing fallow areas. In North Puget Sound, thousands of acres of so-called continuing fallow areas have mature eelgrass beds, yet NWP 48’s mandatory avoidance measures are not applicable to these fallow areas.

Throughout the development of NWP 48, the Tribe urged the Corps to adopt
avoidance and minimization measures to protect eelgrass. The Corps considered various avoidance and minimization measures, such as extending the same protection afforded for new shellfish operations to eelgrass in continuing fallow areas or limiting the shellfish aquaculture methods that may be used on eelgrass beds to those that minimize damage to the eelgrass. In the end, however, the Corps adopted NWP 48 without any avoidance and minimization measures to protect eelgrass. It left the development of such protective measures to the discretion of the
Corps’ district engineer when reviewing specific projects to verify whether they comply with NWP 48.

This case challenges the application and implementation of NWP 48 in North
Puget Sound in areas with eelgrass beds for violating three laws and their implementing regulations.

Follow this link to the Corps complaint. It’s 31 pages long.

Swinomish lawsuit against Corps 3522 1 Complaint

Can Olympia oysters make a comeback in Quilcene Bay? – PT Leader

Good work being done by the Jefferson Marine Resources Committee, now expanding their efforts to restore the Olympia Oyster from Dungeness Bay to Quilcene.

Many hands sought to make relatively light work out of an ambitious undertaking May 16 in Quilcene, as roughly a dozen volunteers assembled at the end of Linger Longer Road to take stock of the area’s remaining Olympia oyster population. Before over-harvesting and pulp mill pollution forced Pacific Northwest oyster farmers to turn to the Pacific oysters of Japan as a substitute, Olympia oysters were the dominant native species, and various environmental and oyster farming-affiliated groups are keen to see the molluscs make a comeback. Brian Allen, a marine ecologist with the Puget Sound Restoration Fund (PSRF), instructed the volunteers who arrived at the Quilcene Boat Ramp to record not only where they found any Olympia oysters as the tide went out, but also where the oysters tend to aggregate. Kirk Boxleitner reports. (Port Townsend Leader)

Can Olympia oysters make a comeback in Quilcene Bay?

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