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

Navy wants to use more Washington state parks for stealth SEAL training – Seattle Times

Just say no to this insanity! Please let your state and federal representatives know how you feel.

The Navy wants to use 29 state maritime parks for stealth SEAL training, but state parks officials have yet to begin a review of the plan and say approval is no sure thing.

https://www.seattletimes.com/seattle-news/navy-wants-more-washington-state-parks-for-stealth-seal-training/?utm_source=marketingcloud&utm_medium=email&utm_campaign=Morning+Brief+3-12-18_3_12_2018

State investigation finds Cooke’s negligence was primary cause of Atlantic salmon net pen collapse

NEWS RELEASE

Washington Department of Natural Resources -Washington Department of Ecology -Washington Department of Fish and Wildlife

January 30, 2018

OLYMPIA – State investigators have determined that an excessive buildup of mussels and other marine organisms on nets – caused by Cooke Aquaculture’s failure to properly clean them – led to the August 19 collapse of the company’s net pen at Cypress Island.

An investigative report – authored by the departments of Natural Resources (DNR), Ecology, and Fish and Wildlife (WDFW) – found that 110 tons of mussels and plants had accumulated on the nets before the incident. The report was released today at a news conference in Olympia.

The investigation determined that tidal currents pushing against the tremendous mass of organisms on the nets overwhelmed the pen’s mooring system and crushed the pen.

Extensive corrosion of the net pen structure also contributed to the collapse.

In addition, the agencies identified shortcomings in engineering practices that likely contributed to the failure.

Properly designed and maintained net pens would have withstood the tidal currents of August 19.

“The collapse was not the result of natural causes,” said Hilary Franz, Commissioner of Public Lands. “Cooke’s disregard caused this disaster and recklessly put our state’s aquatic ecosystem at risk.”

“The results of our investigative report clearly show a significant violation of Washington’s water quality laws,” said Ecology Director Maia Bellon. “Cooke Aquaculture could have prevented this failure.”

“Cooke made this situation even more difficult by under-reporting the number of fish that escaped during the net-pen collapse, and over-reporting the number it recovered afterward,” said Amy Windrope, WDFW’s north Puget Sound regional director.

Growth of mussels and other marine organisms on nets – called “biofouling” – is documented in state agency videos that show a “rain” of mussels falling off nets as debris from the collapse was removed.

The severe biofouling produced 110 tons of material – an average of 11 tons per net.

Cooke’s Failure to Act

Prior to the collapse, Cooke was aware of both the excessive biofouling and the poor condition of the facility.

The report details how Cooke didn’t follow its net pen cleaning schedule when broken net washers were not repaired or replaced. This allowed mussels to accumulate on the nets, which increased the drag from currents and added pressure to the structure.

Cooke also failed to take necessary precautions after the net pens were moved out of position in July when strong currents broke ten mooring points.

Cooke documents show that after the July incident, the company had serious concerns about the facility. An internal company email stated, “We almost lost the farm.”

Nevertheless, after the July incident, Cooke considered, but did not:

·         Replace the biofouled nets,

·         Begin their salmon harvest early, or

·         Increase monitoring of the net pens and have a tug on standby when strong currents were again expected on August 19.

The report notes that state agencies did not investigate the July incident because they received incomplete and misleading information from Cooke.

More Salmon Escaped Than Cooke Reported

The report also found that Cooke misrepresented the number of fish it harvested when the pen collapsed. According to the report:

  • There were 305,000 fish in the net pen prior to failure.
  • Cooke reported harvesting/extracting 145,000 fish from the collapsed net pen.
  • The investigation concluded that Cooke could only have extracted between 42,000 and 62,000 fish.
  • Therefore, between 243,000 and 263,000 fish actually escaped. Previous estimates, based on Cooke’s reports, put the number of escaped fish at 160,000.
  • Of the escaped fish, 57,000 have been caught.
  • Between 186,000 and 206,000 Atlantic salmon remain unaccounted for.

The report concludes that monitoring through the winter and next fall’s salmon run season will be critical to knowing if any escaped Atlantic salmon remain in Washington’s waters and if they are reproducing.

Commissioner Franz is currently reviewing the report and will make an announcement about the future of the Cypress Island facility in the coming days.

In December, DNR terminated Cooke’s lease of state aquatic lands in Port Angeles, citing a failure to maintain the facility in a safe condition.

Ecology intends to take enforcement action against Cooke Aquaculture for violating Washington’s water quality laws.

This multi-agency report included information collected during and after the incident, interviews with Cooke staff, and an engineering review of the failure.

More documents and information is available at www.dnr.wa.gov/atlanticsalmon.

# # #

MEDIA CONTACTS
Carlo Davis

Communications Director

Department of Natural Resources

Office: 360-902-1101

Cell: 360-999-9165

carlo.davis@dnr.wa.gov

Dems support handing over land use veto to the military? Really? – State Legislation

As reported lately on the web site of the Coupeville Community Allies, Democrats in Olympia have sponsored an odd set of bills, HB 2431 and Senate bill 6456.

 

  • The bills on their surface seem to simply be adding the base commanders into the process for helping determine appropriate land use around the bases. But the criteria for the distance away from the bases is not defined. Theoretically, this could be *anywhere* in the county, given the scope of airfields and other training facilities. For instance, a proposed wilderness area could theoretically be stopped even if it’s hundreds of miles away based on base needs for overflight.

  • Given the Navy’s long demonstrated lack of real interest in anything other than it’s own needs, as demonstrated in the expansion of Whidbey Naval Base and it’s overflights in the west end of the Olympic Peninsula, it’s training flights that continue until midnight on many nights when training is in session, it’s expansion of undersea training to public beaches at all hours of the day or night as they see fit, with no ability by local officials to effectively limit it, and it’s overflights of unmuffled jets over Port Townsend and the San Juan Islands, the Navy has demonstrated that it cannot be trusted with land use decisions.
  • Base commanders should not have any right to dictate land use – this is up to the local governments and their citizens. Giving up this right to support “present and future” military missions constitutes a seizure of land use rights by the federal government, and is an inverse condemnation of public and private property.  Such actions are prohibited by Article 1, Section 18 of the Washington State Constitution, and by the Fifth Amendment of the US Constitution.

Background

House Bill 2341 and Senate Bill 6546 are identical – they prioritize military land use over civilian land uses, even when properties are not adjacent to military installations.

They are backed by the Washington Military Alliance, a group of Chamber of Commerce members with four executives and a small staff.

The WMA claim that their charter is to “ensure defense industry vitality in an era of reduced defense spending.”  I am unclear of what ‘reduced” defense spending they are talking about, since the last tax bill that was passed granted even more money to defense, as did last years federal budget. We already spent approx 47% of our discretionary budget on defense and an unknown amount in our “black” budget, which the public is not entitled to see.

According to the web site, “The Balance“:

The U.S. military budget is $824.6 billion. That’s the budget for Fiscal Year 2018 which covers the period October 1, 2017 through September 30, 2018. Military spending is the second largest federal government expenditure after Social Security at $1 trillion.  U.S. military spending is larger than the next nine countries combined.

The $824 Billion is approx. $100 billion more than we spent at the height of the war in the last decade!

Full text HB2341: http://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/House%20Bills/2341.pdf

Full text SB 6456: http://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/Senate%20Bills/6456.pdf

The wording in HB2341/SB 6456 REQUIRES land use planning to incorporate any present or future missions of the military bases anywhere in the state – for any reason deemed appropriate by military base commanders. This means that the military mission trumps the local citizens’ desires. This turns local governing authority upside down. This gives veto power to a base commander over land use theoretically anywhere in the State and for any reason.The language in the bill needs to be substantially clarified, as to what constitutes “adjacent” lands in the eyes of the military.

They amend current legislation by:

  1. Making the prohibition of incompatible developments mandatory

  2. Extending the prohibition to lands that are not adjacent to the military installation

  3. Applying the prohibition to the benefit of any military installation, no matter how small

  4. Allowing the State Department of Commerce to spend up to $25 million every two years to acquire property to eliminate an existing incompatible use, or to increase the availability of housing affordable to enlisted military personnel. The criteria is that any organization receiving funds must show support for the military.

 

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