Legal challenge targeting Corps’ failure to regulate shoreline armoring will go forward
In full disclosure, the author of this blog is on the board of directors of Sound Action, one of the plaintiffs in this case. This case, if successful, is likely to have significant ramifications to the placement of bulkheads, when allowed, along the shoreline.
Today the federal court soundly found in the plaintiffs favor and denied the Motion to Dismiss. Most significantly, the court found that a final agency action had taken place — which clears the way for the challenge to move forward.
Sound Action, Washington Environmental Council, and Friends of the San Juans filed the suit in May of 2018. The groups contend a strong federal policy to protect shorelines is critical to Puget Sound recovery and the survival of endangered orcas.
The coalition, represented by the nonprofit environmental law firm Earthjustice, is calling for federal oversight of shoreline armoring by raising what the Corps’ Seattle District considers the “high tide line” to better protect at-risk species and shorelines. The lawsuit also calls for a response to the groups’ 2015 petition asking for jurisdictional decisions on four shoreline armoring projects.
“The Army Corps should spend less time filing pointless motions in Court and more time getting on board with the rest of the region in protecting critical shoreline habitat,” said Anna Sewell of Earthjustice, lead attorney for the plaintiffs. “The Corps should stop fighting this lawsuit and start implementing the law so that Puget Sound’s salmon and Southern Resident orcas have a shot at survival.”
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.
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. In the lawsuit, the plaintiffs challenge the Corps’ failures to adequately protect Puget Sound shoreline habitat by fully implementing the law.
Filed under: Environmental Law, Puget Sound | Tagged: bulkhead, Puget Sound |
