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/

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.”

Petition seeks upgrades to Puget Sound Treatment Plants – Kitsap Sun

This upgrade would cost cities tens of millions of dollars. While it’s a noble goal, and one that should eventually be implemented for the health of the Salish Sea, poorer counties like Jefferson and Clallam would be put in a very difficult position financially. There is no money coming out of Washington D.C. to fund these efforts anymore, thanks to the folks who elected our current President and Senate. You can’t have both an anti-environmental President and expect to get help to do such things as improve the sewage outflows of our rural cities.  As to the State of Washington providing for these upgrades, given the current demands of culvert replacement and the McCleary Decision, I wouldn’t expect any funding for this anytime soon, if ever. By the way, I’ve heard that Port Townsend is reaching the end of life of it’s sewage treatment plant, and is making plans to eventually look at tertiary treatment. But it’s really expensive.

An environmental group, Northwest Environmental Advocates, is calling on the Washington Department of Ecology and Gov. Jay Inslee to invoke a 1945 law in hopes of forcing cities and counties to improve their sewage-treatment plants.

https://pugetsoundblogs.com/waterways/

Scientific study on issues of intertidal structures that cross water

This 2017 scientific study on the issues of intertidal structures just was sent to us. Worth listing her for future reference.  Thinking about the Hood Canal Bridge here, among others.

Executive Summary
For hundreds of years, people have built water crossing structures to enable the transportation of people, livestock, vehicles, and materials across rivers and other bodies of water. These structures have often created barriers to fish passage, an issue which has recently drawn intense scrutiny due to concerns over impacts to anadromous fish. While much work has focused on the impacts of freshwater crossing structures, inter-tidal structures have received less attention. This may be due to the importance of passage for adult anadromous fish in freshwater, and that bidirectional flows in intertidal environments complicate interpretation of structures as barriers. Intertidal water crossing structures likely have adverse impacts on juvenile life stages of fish due not only to impacts to passage, but also to impacts to estuarine habitats extensively used by these species as rearing environments. Examining the impacts of intertidal water crossing structures only through the lens of fish passage therefore misses key aspects to how these structures can affect fish.
In this report we review literature on intertidal water crossing structures and how they affect fish that depend on intertidal habitats for passage during migration or for extended rearing during early life stages. Our findings are important for establishing fish passage criteria, providing design guidelines, and identifying key data gaps for future research of intertidal water crossing structures.

 

greene-et-al.-2017-review-on-intertidal-water-crossing-structures-and-fish-1

Tidal forests offer hope for salmon – Puget Sound Institute

Wonderful short article that highlights a goal we can (and actually are in many places) work towards, which is estuary restoration. Small fish hang out in these places. There are just these kind of places on the Dungeness and other rivers here on the Peninsula. Not so much on the Elwha. Give it a read.

https://www.eopugetsound.org/magazine/is/tidal-forests

 

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

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