Washington court: Fish and Wildlife can regulate land to protect fish – Capital Press

An extremely important ruling has come down at the Washington State Supreme Court on Thursday. The  unanimous ruling affirmed the right of the Washington State Department of Fish and Wildlife to regulate construction on dry land above the normal tide lines in order to protect fish. This enormously expands the scope of the Hydraulic Permit Code and will likely have great consequences for Governor Inslee’s hand in making policy decisions for protecting additional salmon habitat for Orca recovery. I’m sure that the plaintiffs might wish they had never brought this before the Supreme Court. But there’s also caution for environmental organizations that may celebrate the ruling.

From the case itself. It offers a good basic understanding of what these Hydraulic Permit Applications are and when they are required.

This case asks us to determine the geographic scope of permitting authority delegated to the State of Washington Department of Fish and Wildlife  (Department) over hydraulic projects. A “hydraulic project” is defined as “the  construction or performance of work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or fresh waters of the state.” RC_W 77.55.011(11).
Entities seeking to undertake hydraulic projects must apply for and obtain permits from the  Department before commencing work. RCW 77.55.021. In this case, a coalition of  Washington State counties (Counties) challenge the Department’s statutory authority to regulate the construction or performance of work that will occur exclusively above the ordinary high-water line.
The Hydraulic Code requires anyone planning to undertake a hydraulic project to obtain a preconstruction approval permit from the Department to ensure “the adequacy of the means proposed for the protection of fish life.” RCW 77.55.021(1).
The Department can deny or condition a permit only for the purpose of protecting fish life. RCW 77.55.021(7)(a). The Department’s regulatory authority encompasses hydraulic projects, which are defined based on their effects on waters of the state rather than their location relative to those waters. See RCW 77.55.011(11).
An HPA [hydraulic project approval] is required for all construction or repair/replacement of any structure that crosses a stream, river, or other water body regardless of the location of the proposed work relative to the [ ordinary high-water level] of state waters.
An HPA is also required for bridge painting and other maintenance where there is potential for paint, sandblasting material, sediments, or bridge parts to fall into the water.
ISSUE
Did the legislature intend to limit the Department’s permitting and regulatory authority to cover only projects that take place at least partially at or below the ordinary high-water line?
CONCLUSION
We hold that under the plain language of RCW 77.55.021, the Department’s jurisdictional grant of permitting authority includes upland projects that meet the effects test set forth in RCW 77.55.011(11). We further hold that the effects test requires reasonable certainty, not absolute certainty. Finally, we defer to the expertise of the Department to determine which upland activities meet the effects test. Accordingly, we affirm the trial court’s order.
The findings are that WDFW has authority to require HPAs for upland projects that fit the scope of the legal codes. That the requirements can be done by reasonable certainty and not a strict legal finding of certainty,  which gives much greater leeway for WDFW to issue requirements for an HPA. Lastly, the Supreme Court defers to the expertise of the Department  to determine which activities meet the requirements.
This last finding may be a double edge sword. What if the Department is wrong in a finding, siding with a developer who has huge resources and proposes enormous or highly unusual trade offs for the idea of “no net loss”?  What if they don’t decide to force an HPA (or agree with a developer intent on massive environmental change) and an environmental organization challenges that? The ruling here seems to give much greater leeway to excesses of the Department in both directions. That may not be as positive a win for environmental organizations as it appears. It requires close oversight to make sure that the law is narrowly applied to appropriate projects, while also ensuring that bureaucrats are not simply rubber stamping inappropriate and possibly habitat destructive projects.
Here’s a link to the ruling:

Read the Capital Press story here:

https://www.capitalpress.com/ag_sectors/water/washington-court-fish-and-wildlife-can-regulate-land-to-protect/article_ea1e014c-f97a-11e8-859d-7f550b7b3843.html

 

 

 

Chinook Salmon season begins Monday in Puget Sound – KING

Get your rods and reels ready.

Chinook salmon season is always fun and exciting for anglers, but there are rules to follow to help sustain the population. This year the Washington State Department of Fish and Wildlife is giving recreational anglers fewer opportunities to fish for Chinook in both the Columbia River and ocean waters compared to recent years. Tribal fisheries also face more restrictions to protect the salmon. Nonetheless, anglers will be out in full force during the season and can catch and keep hatchery chinook. In certain areas, (Marine Areas 9 and 10), anglers can keep one hatchery Chinook. Michelle Li reports. (KING)

Chinook Salmon season begins Monday in Puget Sound

Getting out there…

By Al Bergstein. All photos are copyrighted, and require permission to reuse. Thanks.
Bedwell Harbor Evening

A moment of Zen

I just finished a couple of weeks of getting outside again with friends. Getting out there was something I got hooked on early. Boy Scouts and a trip to back of beyond in the Quetico Superior Lake Boundary Waters. Countless books from the library on exploring. I never made the goals I set back then, but in many ways am still living them.

We started by rafting on the Grande Ronde in Eastern Oregon and ended with a sail to Campbell River from Port Townsend including a few stops in Desolation Sound.

It once again reinforces my basic belief that no matter where you go, at their core, most people are good folks, wanting to do the best to protect the wild and the scenic. While there is a resource extraction industry that our current administration wishes to give total run of doing what they want with the wild, there is also a huge industry that makes it’s living on recreation. It can’t be either or, it has to be a middle way, not an ultimatum.

On the Grande Ronde and around it,  a network of businesses supply the river rafting and fly fishing crowds. Even though we left the put-in with at least a dozen other boats, there were still lots of places to camp, and the feeling of being in the wilderness was quite complete. There was very little trace of anyone else having been there before us, though we knew there had been thousands. Good work folks.

grand ronde putin

Grande Ronde put in

Grande Ronde

On Admiralty Inlet, though, we twice had to capture birthday balloons that had left their parties and ended up floating around where wild creatures could eat them or get entangled in them. The folks letting the balloons loose likely never imagined that they were turning them into ocean garbage.  At the same time we were retrieving the lost balloons, a sailboat racing team on their way to Hawaii in a very competitive race lowered their sails and took the time to free a turtle they passed entangled in human ocean debris. In both cases, it was people stopping their forward motion for just a few minutes to do a small thing to save our ever diminishing wild resources. Read to the end of the story on the sea turtle to get the dramatic punchline.

Along the way to Dodd Narrows, we passed orcas breaching and spy hopping. We were drenched in a torrential downpour in Dodd Narrows. We saw a whale (likely Minke) feeding off our beam in the middle of the Strait of Georgia and more orcas crashing and splashing nearer to Powell River. We were tricked by the sea numerous times, thinking we saw something that was a tug boat, no, a lighthouse, no a tug, and in the end, a lighthouse in the middle of 600 feet of water. The top of a mountain sticking out of the middle of the Strait of Georgia.

We had an exhilarating downwind run with a pulsating following sea for hours from Naniamo to Hornby, as fine a day as I’ve ever had under sail. After arriving at Hornby, we helped two young power boaters get their boats safely to the dock, and for our efforts they rewarded us with fresh salmon they caught that afternoon. We played music for some of our neighbors on  the dock, including Debbie Bowles and her husband Marc. Debbie is an outstanding illustrator it turns out. Here’s two of her pieces of work, with her permission.

cr=w 1200,h 750,a cc

cr=w 1200,h 750,a cc

 

All serendipity. Would have never happened unless we put ourselves there, purposely.

Desolation Sound is still there, in all it’s glory. The site of two young paddle-boarders we passed, with guitar on one of their backs and full packs strapped to the boards heading off into the wilderness shows that you don’t need an expensive boat to go do something you’ll never forget.

We sailed through coves with people living on floating shacks, their sailboats tied alongside. Trudged for hours to find a decent meal, just because we wanted a change from the boat food for a night while in harbor.

We trolled the junk stores of Campbell River. After swapping the boat for my car, so my friend’s partner could join him, I stopped by the Campbell River museum and saw an outstanding exhibit of native masks and narratives on their story.  It was the first time I really understood how the masks were used in ceremony and storytelling. The exhibet that describes how the tribes lost 90% of their people to disease and other factors is amazing.

Lastly, as the Black Ball “Coho” crossed the Strait of Juan de Fuca on a picture perfect sunset, we were treated to spouting whales in the near distance.

Work is how we get ourselves out there. It’s means not the ends. The wild is what’s left of a world that once dominated us and fed us. Now we increasing think we dominate it, or so some of our so called ‘leaders’ think.  Tell that to our neighbors in Puerto Rico, or any of  dozens of other places around the globe. As the planet heats up and the poles melt we may find we have made a deal with a devil that was not what we bargained for. For thousands of years, here in the Northwest salmon were a free food that sustained humans and wild systems alike. Native nations are right in worshiping the fish.  What more could you ask for than a constant supply of high quality protein swimming by your front porch almost all year?  We have squandered that and are now struggling to save what’s left. There are hard decisions needing to be made. This week, Canada imposed a 200 meter distance to keep boaters away from Orcas with up to a $100K Cdn fine for violators. It’s causing huge backlash and no one really knows if it’s going to help. But it’s only a small symbol of the hard decisions that we as a society will have to make to actually save ourselves, let alone our planet’s current ecosystem.  And if we fail, the planet will heal itself again without us, as it has over hundreds of millions of years. Just float down the Grand Canyon to get a sense of scale and how easily we can find ourselves as fossils in layers in the rock.

We can’t change what’s happening, we can only develop the tools to cope with it. As most of humanity always has. It’s part of what gives me a small amount of hope.

So do it. Get out there. Recharge. And when you come back, get back in the fight. There is more at stake than ever.

Paddleboarders in Desolation Sound

Paddleboarders with guitar and packs head into Desolation Sound.

 

 

 

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

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

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.

Future of orcas takes center stage at Salish Sea conference – PSI

It was worth spending even a day at the Salish Sea Conference. If you get a chance to go, you should.

Gov. Jay Inslee joined former Interior Secretary Sally Jewell to open three days of science talks at the Salish Sea Ecosystem Conference in Seattle. The conference includes about 700 scientific presentations on topics ranging from orcas to habitat restoration, from climate change to toxic chemicals.

https://www.eopugetsound.org/magazine/ssec2018/opening

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