Army Corps of Engineers loses another court case. This time affecting bulkheads and more.

Another major but little noticed lawsuit has been concluded with the Army Corps of Engineers. This time, a lawsuit brought by a coalition of environmental groups, including Sound Action, Friends of the San Juans, Washington Environmental Council (WEC) and Earthjustice argued that because the corps arbitrarily decided to determine that the high water mark was closer to the water than in other jurisdictions over which it has authority, that this was a capricious rule. The judge agreed.

This will mean that the Army will have to spend more time determining environmental issues before issuing a bulkhead permit. It will also likely mean a lot less bulkheads being permitted.

According to an article by the Spokane News Review, “Rock or concrete walls have been erected along about one-quarter of Puget Sound’s 2,500 miles of shorelines. Nearly a mile of Puget Sound shoreline is built up each year. ”

“The Corps has known for years that its high tide line marker in Puget Sound is unlawfully low,” Anna Sewell, Earthjustice attorney for the groups, said in a statement.

The groups say that if the Corps, which regulates structures or work in U.S. navigable waters, used the true high tide line, more shoreline armoring projects would come under its review.

The lawsuit notes that an interagency workgroup that included the Army Corp’s Seattle District and two other federal agencies recommended changing the Corps’ tidal jurisdiction. That change would have brought about 8,600 acres of shoreline habitat under the Corps jurisdiction.”

The Earthjustice overview of this case stated:

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.

Since the 1970s, the Seattle District of the Corps (“Seattle District”) has defined its Clean Water Act (“CWA”)  jurisdiction in the Puget Sound region to extend only up to the“mean higher high water” mark, which is an average of the higher of the two high water marks each tidal day observed over a nineteen-year period.Under the CWA’s implementing regulations, however, the Corps’ jurisdiction extends to the “high tide line.” Approximately one quarter of high tides in the Seattle District exceed the mean higher high water mark, meaning the Seattle District’s CWA jurisdictional marker is significantly below the high tide line.

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.

The original lawsuit can be found here.

https://earthjustice.org/sites/default/files/files/01_Enviro_Complaint_05-21-2018.pdf

 

We will continue to cover this story as it evolves with the Corps implementation of this ruling.

 

 

How climate change threatens our health in the Pacific Northwest -Seattle Times

Ongoing coverage this week of the effects of the emerging Climate Emergency.

“I’m seeing things that I did not think would happen until 2050,” said Dr. Kristie Ebi, a professor in the Department of Global Health at the University of Washington. “Climate change is coming at us much faster, and the speed of change and how that’s going to affect extreme events is going to be very problematic.” Heat waves and floods are becoming more frequent and intense sooner than expected, she said.

https://www.seattletimes.com/seattle-news/environment/how-climate-change-threatens-our-health-in-the-pacific-northwest/?utm_source=referral&utm_medium=mobile-app&utm_campaign=ios

Simulation shows how fast tsunamis could move through Puget Sound after ‘The Big One’ – The Olympian

Good new information on the danger of a tsunamis to us in the Salish Sea. This clarifies that you *have* to get to higher ground quickly, even if you think you are safe. Think about Kai Tai Lagoon and San Juan Avenue in Port Townsend. A fast moving 10 foot wave could easily swamp San Juan from both the North Beach side and the Port Townsend Bay side, coming at people from both directions as they were fleeing down San Juan. Don’t think it’s possible? Review the videos from survivors of the Japanese tsunamis.

The simulation shows 10-foot-tall waves or higher moving through Hood Canal.

Governor Inslee Signs Slew of Orca Protection Bills – Seattle Times and others

This week saw the signing of a variety of bills that came out of the Orca Task Force, put together by Governor Inslee to identify issues that could theoretically help save the resident Orca pod from extinction. While these bills are not the radical (yet realistic) idea of breaching the Snake River dams as many (including this blog) would like to see, they do address a group of problems that are facing recovery and protection of the Salish Sea.

Senate Bill 5135 was written to allow Department of Ecology to ban certain PCBs and PFAs which cause cancer and are found in high amounts in Orca bodies. They may be hampering the ability for them to have healthy  offspring and also may impact their health. Toxic-Free Future was a champion of this bill. Congratulations to them and their supporters. This has been a long hard fight for many years.

Senate Bill 5577 pushes boats farther away from whales, mandating 300 yard exclusion zones. This is not as far as many in the Orca task force wanted, but is at least better than it is currently. There is huge pressure from whale scientists to push back even further, but the whale watch industry is too powerful for Inslee to override.

The bills digest is as follows:

Finds a person guilty of a natural resource infraction if the person causes a vessel or other object to: (1) Approach within four hundred yards of a southern resident orca whale; or(2) Exceed a speed greater than seven knots over ground at any point located within one-half nautical mile of the whales.

Prohibits commercial whale watching operators from approaching or intercepting within six hundred fifty yards in the direction of the whales.

Requires a commercial whale watching license for businesses engaged in commercial whale watching activities.Requires the department of fish and wildlife to implement a limited-entry whale watching license program for the inland waters of the state for all whale species.

What you don’t see is an implementation of even greater enforcement in this bill. It is understood though that Fish and Wildlife may be getting a bigger budget do that.

House Bill 1578 – This bill strengthens our oil-spill prevention portfolio. As some may remember, this author and many dozens of other environmentalists helped push through the rescue tug at Neah Bay in the last decade, with the help of then Representative Van de Wege. This time, Representative Tharinger was part of the sponsors of the new bill. It’s digest reads:

Creates new requirements designed to reduce the current, acute risk from existing infrastructure and activities of an oil spill that could: (1) Eradicate our southern resident killer whales;(2) Violate the treaty fishing rights of federally recognized Indian tribes;(3) Damage commercial fishing prospects;(4) Undercut many aspects of the economy that depend on the Salish Sea; and(5) Harm the health and well-being of residents.

Declares an intent to spur international discussions among federal, state, provincial, and industry leaders in the United States and Canada to develop an agreement for the shared funding of an emergency rescue tug available to vessels in distress in the narrow Straits of the San Juan Islands and other boundary waters.

Currently tankers bigger than 125k dead weight tons are forbidden inside the Strait, past Dungeness Lighthouse. Tankers from 40 to125K tons dead weight are allowed to operate with tug escort. Currently a huge threat is to tugs towing bunker and other fuels. Some have sunk, such as the barge that spilled out on the coast near Neah Bay some years back.

The new law forces these tankers and tug towing barges to have escort tugs starting in 2020. If the tug or tanker is empty,  they do not need an escort tug.

The bill also strengthens the existing work being done on oil spill preparedness and establishes a new oil spill emergency response system with coordination between the State, U.S. Federal, Tribal and Canadian agencies. While there has been coordination before, this system is new.

There is a new reporting regime for oil processing facilities receiving crude oil shipments by rail, which will require them to report to the state these shipments and their routes. This may end up getting taken into court by the oil industry, as it’s unclear to this author whether the State has authority to require this under current Federal law.

Bill 1579 – While part of this bill allows greater catch limits on predator fish:

The commission shall adopt rules to liberalize bag limits for bass, walleye, and channel catfish in all anadromous waters of the14state in order to reduce the predation risk to salmon smolts.

The real teeth in this bill is the work done by Sound Action and other environmental and tribal lobbyists, along with the Department of Natural Resources to implement much stronger rules and penalties for implementing bulk heads along the nearshore of the Sound.  (full disclosure: this author is Board President of Sound Action as of this writing).

The conversion of shoreline to bulkheads  has been going on with little scientific understanding of the scope of damage to the spawning habitat of forage fish. Forage fish are food for salmon and other larger fish. Sound Action has existed specifically to challenge improper or incomplete Hydraulic Permit Applications (HPAs) from DNR that affect this habitat.

UPDATE BASED ON GOVERNOR’S VETO OF ONE SECTION: While The bill was also helped through by a section on a series of three ‘demonstration’ projects inserted by Senator Van de Wege on behalf of farmers coping with flood plain issues in Watcom, Snohomish and Gray’s Harbor County. Governor Inslee decided that these projects did not come out of the Orca Task force recommendations and were not in alignment with the needs of protecting fish habitat, but rather protecting farm land and exploiting river gravel. His veto of that section was in alignment with the opposition  by environmentalists and Tribes because of the stated intention of the backers of the language to ‘extract gravel’ from these rivers. What is needed in the future to address these problems should involve something similar to  a version of the highly successful Dungeness River Management Team, which brought together all the stakeholders on that river for the last 20 years to identify and then come up with appropriate solutions rather than leap to conclusions not based on science.

Anyone wanting to understand the work that the Dungeness River Management Team has done can view the short video I did for them a few years ago, on their 20th Anniversary.

 

The language that the proponents of Senator Van de Wege’s bill wanted, was to simply move to solution, based on assumptions and not science. They need, as the governor pointed out in his veto to at least have to go through the process to create a team of stakeholders, not just from the farm community, but from individuals and state scientists to come up with appropriate solutions.

So all in all, congratulations to the organizations that spent hundreds of hours in the Orca Task Force, and thanks to Governor Inslee for getting this done and helping drive these key bills into law! We still have a long way to go to save the resident pod, and there is no guarantee any of these bills will actually turn the tide to restore them to health.

https://www.seattletimes.com/seattle-news/environment/gov-inslee-signs-range-of-bills-aimed-at-helping-endangered-orcas/

After decades of debate, Victoria is building a sewage treatment plant -CBC

Amazing. Finally actually breaking ground.It’s long past due.

Along the rocky south coast of Vancouver Island, hundreds of construction workers are building a nearly $800 million dollar wastewater treatment facility — a project that has been debated for decades and described as long overdue by some, and completely unnecessary by others…. Wastewater facilities don’t typically stoke civic pride, but the project and its history is unique because most of the Victoria area has never treated its sewage. Currently, it is screened and anything larger than 6mm is blocked. The rest flows into two separate outfall pipes, and is then discharged into the Strait of Juan de Fuca. The region is the last major coastal community in North America to dispose of untreated sewage into the marine environment, according to the local government. Briar Stewart reports. (CBC)

After decades of debate, Victoria is building a sewage treatment plant

Legal battles continue over dumping human waste in Puget Sound – KING

Like a tug coming up channel in the middle of the night, this could be seen coming a mile away. When the state, with the support of many environmental organzations, moved to ban all human waste from being dumped in Puget Sound, representatives came and presented to the Jefferson County Marine Resources committee (MRC) on what they proposed. The presenter, a very earnest younger person, discussed banning tugs from dumping waste overboard, and mentioned that they were hoping to grant a waiver extension for them to give them a few more years to revamp the tugs waste storage (which is essentially non existant as I’ve heard), I wondered whether or not they were really going to get support from the industry. It appears they haven’t.

The problem appears that most tugs were never designed with significant holding tanks, as many were built in the era when dumping overboard was the standard. Asking them to redesign what little room exists in order to build in larger holding tanks, if it’s even possible, was a big ask. I argued then, and argue now, that an exemption for existing working tugs should be found, and that new tugs should be designed for standard holding tanks.  If there are some arguements I’m not understanding in this debate, then please write and let me know. This seems like fighting over a very small issue in the larger scheme of things, and we have much larger fish to fry in saving Puget Sound and the Salish Sea.

Tug boat companies are suing the EPA to stop a Washington state ruling that bans the dumping of raw sewage in Puget Sound area waterways. Now, several environmental activism groups are getting involved in the legal fight. Last year, the Washington Department of Ecology created the Northwest’s first no discharge zone (NDZ), which would span 2,300 square miles from the Canadian border to the Discovery Island Lighthouse and waters east of the New Dungeness Lighthouse. It also would include Lake Washington, Lake Union, and connecting waters to Puget Sound…. Puget Soundkeeper is now one of several groups fighting back against a lawsuit that tugboat companies have filed against the EPA, which ruled that Puget Sound has enough pump-out stations to accommodate Ecology’s decision. They have joined the EPA as intervenors, along with the Washington Environmental Council and Friends of the Earth. Alison Morrow reports. (KING)

Legal battles continue over dumping human waste in Puget Sound

Sewage Treatment Appeal Filed in State Court to Protect Puget Sound

This has been a known problem and long running battle at the State level by environmental organizations since the early 90s. Standard excuses, too expensive to do, etc.  As stated to me by a knowledgeable friend, “Muni sewage plants and industrial facilities directly discharging to the Sound are supposed to have permits re-written every five years to “rachet down” on discharge pollutants as new technologies became available. EPA didn’t make the state do much more than some minor cosmetic remedies because municipalities said they’d have to raise rates and industries said the costs wouldn’t be worth the amount of pollution reduction of secondary.”  Who was running Department of Ecology in 1991 when that happened? The environmental champion, Christine Gregoire. And so it goes. The death from a thousand cuts.

“Olympia (WA) – An environmental group sued the Washington Department of Ecology in state court today in its bid to modernize pollution removal at Puget Sound sewage treatment plants. In January, Ecology refused to update its rules that allow dischargers to use 100-year-old pollution control technology while Puget Sound faces emergency levels of toxic and nutrient pollution.
“It’s well past time for the Department of Ecology to stop relying on 100-year old technology to protect Puget Sound,” said Nina Bell, Executive Director of Northwest Environmental Advocates (NWEA). “We’re not driving around in Ford Model T’s so why are we still using sewage treatment technology from that era? Modern sewage treatment would help clean up Puget Sound and protect struggling populations of Chinook salmon and orca whales,” she added.
NWEA sought a change in the 31-year old rules that Ecology uses to define modern technology by filing a petition with the agency on November 14, 2018. Ecology denied the petition on January 11, 2019. NWEA appealed the denial to Governor Inslee on January 30, 2019; he has 45 days in which to respond.
The petition explains that although Ecology has identified sewage discharges as the primary cause of some of Puget Sound’s biggest pollution problems, it has taken no action. Inadequate treatment of sewage is causing widespread algal blooms, low levels of dissolved oxygen, wholesale food web changes, ocean acidification, and toxic threats to orca whales, salmon, and crab according to Ecology’s own studies.
The petition is based on state law that requires pollution sources to use the best available treatment technology. The 74-year old Washington law, referred to as “AKART,” requires the use of “All Known, Available, and Reasonable Treatment” for pollution prior to its discharge.
NWEA’s petition details the widespread use of modern sewage treatment in the United States. For example, sewage treatment plants discharging to Chesapeake Bay and Long Island Sound have cut their nutrient pollution by almost 60 percent. In contrast, very few cities in the Puget Sound area have modern technology, and Ecology has only required one to do so—the LOTT treatment plant in Olympia.
Today’s lawsuit was filed in Thurston County Superior Court on behalf of NWEA by Andrew Hawl y, of the Western Environmental Law Center, and Bryan Telegin, of Bricklin & Newman, LLP.”

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