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.

 

 

11000 scientists warn of untold suffering if climate change is not addressed now. The Guardian

A new dramatic warning has been issued by thousands of scientists around the world warning that we are on the verge of a catastrophe in the near future if we don’t change things now. This gives even wore impetus to the work of Greta Thunberg and others pushing for climate action in this country and everywhere else.There are not many years left before what is happening in California, along with pressures on farmers all over the world in a drought ravage conditions, are going to come home to roost here in the United States in an even larger way. This spring we witnessed unprecedented rain events in the Midwest that kept many of our farmers from even planting crops. We in the Pacific Northwest have been relatively lucky, only having to deal with smoke events by and large, except for the people in the Methow And other places in north central Washington that have burned.Canada has seen unprecedented fires of course as well. Your vote next year in the presidential election will be absolutely critical. We will be faced with a choice of a president who does not even believe the science let alone want to act on it versus whoever the Democrats bring forward to try and bring back some type of sanity to our efforts that are now contained primarily to states efforts.

https://www.theguardian.com/environment/2019/nov/05/climate-crisis-11000-scientists-warn-of-untold-suffering?CMP=Share_iOSApp_Other

How Guilty Should You Feel About Flying? NY Times

This helps clarify things. The status quo is unacceptable.

Our climate just can’t tolerate widespread frequent flying,” said Dan Rutherford, who directs the council’s aviation program. “At some level we need to figure out, collectively, which flights are necessary, and which are luxuries.”

www.nytimes.com/interactive/2019/10/17/climate/flying-shame-emissions.html

Federal judge rules Army Corps aquaculture permit is unlawful in Washington State.

In a surprise ruling with wide ranging consequences, a federal judge has ruled that the Army Corp of Engineers issuance of Nationwide Permits in the lower 48 (NWP48) authorizing commercial shellfish aquaculture is illegal. The suit, brought by The Coalition to Protect Puget Sound Habitat, a group that has been fighting large-scale shellfish aquaculture for years, and joined by the Swinomish Tribe, was focused against the Army Corp and Taylor Shellfish, along with the industry group, The Pacific Coast Shellfish Growers Association.

The plaintiffs argued that the Corps failed to comply with the Clean Water Act (“CWA”), the National Environmental Policy Act (“NEPA”), and the Endangered Species Act (“ESA”) when it reissued NWP 48 in 2017. They requested that the decision to adopt NWP 48 in Washington be overturned and that the Corps be required to comply with the environmental statutes before issuing any new permits  for commercial shellfish aquaculture in this State.

The court found in it’s blistering conclusions, “…that the Corps has failed to adequately consider the impacts of commercial shellfish aquaculture activities authorized by NWP 48, that its conclusory findings of minimal individual and cumulative impacts are not supported by substantial evidence in the record, and that its EA does not satisfy the requirements of NEPA and the governing regulations…the Court holds unlawful and sets aside NWP 48 insofar as it authorizes activities in Washington.” (emphasis mine)

Going beyond just the issue of the environmental consequences the judge stated that “The federal defendants state that additional …remedy should be permitted once the seriousness of the agency’s error is determined. The intervenors (the Corps and Taylor Shellfish) assert that (throwing out the permits and the Corps previous rulings) would cause disruption in the Washington shellfish farms and industry, including significant impacts to employees and the communities in which they live.Neither tact is compelling. The substantive defects in the agency’s analysis when adopting the 2017 NWP are significant.” (emphasis mine)

The case centers around whether or not the large scale conversion of natural shorelines to commercial aquaculture, happening now all around lower Puget Sound and in the Strait of Juan de Fuca, is more than “minimal” damage to the environment. Siting case law in relevant lawsuits in the Yellowstone Park area, the environmental group managed to persuade the judge that the Army was allowing something much more than minimal damage.

As stated by the plaintiffs, “Federal agencies are required to do an environmental assessment (“EA”) of their proposed action, providing a brief discussion of the
anticipated environmental impacts and enough evidence and analysis to justify a no-significant impact determination.  If the agency, after conducting an EA, is unable to
state that the proposed action “will not have a significant effect on the human environment,” a more detailed and comprehensive environmental impact statement (“EIS”) must be prepared. They also argued that the case law stated that if the Corps’ ruling was found to be “arbitrary, capricious, an abuse of discretion” and lacking in a scientific basis, that it must be thrown out.

The court found that , “… there is insufficient evidence in the record to
support the agency’s conclusion that the re-issuance of NWP 48 in 2017 would have minimal individual and cumulative adverse impacts on the aquatic environment for purposes of the CWA and that the Corps’ environmental assessment does not satisfy NEPA’s requirements.”

They judge then went on to point out that “the Corps acknowledges that commercial shellfish aquaculture activities can have adverse environmental impacts…marine debris is a serious impact on the marine environment…and that commercial shellfish aquaculture activities can result in conversion of substrates (e.g. mudflats to gravel bars), impacts to submerged aquatic vegetation, alteration in aquatic communities from native to non-native shellfish species, and water quality impacts from harvest activities.”

Given those findings, the judge went on to say, “Ignoring or diluting site specific,
individual impacts by focusing solely on a cumulative, landscape-scale analysis is not
consistent with the governing regulations.”

The scientific documents that the Corps presented as justification for it’s actions came under blistering criticism from the judge. “According to the Corps’ own summary of the paper, the authors evaluated only the effects of oyster aquaculture activities on submerged aquatic vegetation. The paper itself shows that Dumbauld and McCoy (a supposed scientific study that the Corps and Taylor were using) were studying the effects of intertidal oyster aquaculture on the seagrass Zostera marina. There is no discussion of the impacts on other types of aquatic vegetation, on the benthic community, on fish, on birds, on water quality/chemistry/structures, or on substrate characteristics. There is no discussion of the subtidal zone. There is no discussion regarding the impacts of plastic use in shellfish aquaculture and only a passing reference to a possible side effect of pesticide use. The Corps itself does not remedy these deficiencies: although it identifies various resources that will be adversely impacted by issuance of the national permit (along with resources that may benefit from shellfish production), it makes virtually no effort to characterize the nature or degree of those impacts. The Decision Document’s “Impact Analysis” consists of little more than an assurance that district engineers will consider the direct and indirect effects caused by the permitted activity on a regional or case-by-case basis.”

The judge went on to say, “In this case, the Corps acknowledged that reissuance of NWP 48 would have foreseeable environmental impacts on the biotic and abiotic components of coastal waters, the intertidal and subtidal habitats of fish, eelgass, and birds, the marine substrate, the balance between native and non-native species, pollution, and water quality, chemistry, and structure, but failed to describe, much less quantify, these.  The Corps cites the two Dumbauld papers for general statements regarding the positive or negative effects of shellfish aquaculture on certain aquatic resources or characteristics (focusing on seagrass), but it makes no attempt to quantify the effects or to support its conclusion that the effects are no more than minimal.”(emphasis mine).

As reported on some months ago in this blog, a draft cumulative impact statement, which only surfaced due to a discovery in this case,  “…generated in February 2017 dedicated twenty-five pages to discussing the wide range of work and activities covered by NWP 48 and noting the species dependent variability in cultivation techniques, gear, and timing. These variations gave rise to a wide array of effects on the aquatic habitat, none of which is acknowledged or evaluated in the national Decision Document.” (emphasis is mine).

The judge goes on, in plain language, “A reasonable mind reviewing the record as a whole would not accept Dumbauld and McCoy’s limited findings regarding the
landscape-level impact of oyster cultivation on a species of seagrass in the intertidal zone as support for the conclusion that entire ecosystems are resilient to the disturbances caused by shellfish aquaculture or that the impacts of those operations were either individually or cumulatively minimal.” The judge sites decisions back in coal country where the cumulative impacts of mountain top removal are similar and long lasting. “The governing regulations expressly impose upon the Corps the obligation to consider the ongoing effects of past actions when conducting a cumulative impacts analysis.”

The “NEPA and the CWA were enacted because humans were adversely affecting the environment to a noticeable and detrimental extent…Noting that a particular environmental resource is degraded is not an excuse or justification for further degradation. The Corps must analyze the individual and cumulative impacts of the proposed activity against the environmental baseline, not as a percentage of the decades or centuries of degrading activities that came before.

As to the use of pesticides by the industry, the judge has additional harsh criticism,”The Corps makes a similarly untenable argument whenever the use of pesticides in a
shellfish operation permitted under NWP 48 is discussed. While acknowledging that these substances are used and released into the environment during permitted activities, the Corps declines to consider the environmental impacts of pesticides because they are regulated by some other entity… Even if the Corps does not have jurisdiction to permit or prohibit the use of pesticides, it is obligated to consider “other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” The Corps’ decision to ignore the
foreseeable uses and impacts of pesticides in the activities it permitted on a nationwide basis does not comport with the mandate of NEPA or with its obligations under the CWA. Having eschewed any attempt to describe the uses of pesticides in commercial shellfish aquaculture or to analyze their likely environmental impacts, the decision to permit such activities through NWP 48 cannot stand.” (emphasis mine)

“The record is devoid of any indication that the Corps considered regional data,
catalogued the species in and characteristics of the aquatic environments in which commercial shellfish aquaculture activities occur, considered the myriad techniques, equipment, and materials used in shellfish aquaculture, attempted to quantify the impacts the permitted activity would likely have on the identified species and characteristics, or evaluated the impacts of the as-yet-unknown regional conditions…Faced with incredible diversity in both the environment and the activities permitted under NWP 48, the Corps effectively threw up its hands and turned the impact analyses over to the district engineers.”

In looking at the problem of plastic pollution in aquaculture the judge was additionally critical.”The Corps’ analysis with regards to plastic debris discharged into the marine environment is even more problematic. The Corps acknowledges the many public comments raising concerns about the introduction of plastics into the marine food web, but relies on the fact that “[d]ivision engineers can impose regional conditions to address the use of plastics” in response to these concerns. The Seattle District, for its part, declined to quantify the impact of plastics, instead noting that “it would not be a practicable solution to regionally condition NWP 48 to not allow the use of PVC and HDPE gear as there are no current practicable alternatives to use of the materials…The CWA requires the Corps to make minimal adverse effect findings before issuing a general permit. If, as appears to be the case with regards to the discharge of plastics from the permitted operations, the Corps is unable to make such a finding, a general permit cannot (be) issue(d). The Corps has essentially acknowledged that it needs to individually evaluate the impacts of a particular operation, including the species grown,
the cultivation techniques/gear used, and the specific location, before it can determine the extent of the impacts the operation will have.”

The decision is not trivial. It rips apart industry arguments made over the last decade that eelgrass recovery in aquaculture farms is a minor issue. The aquaculture industry and Taylor Shellfish in particular has put itself at the head of county agencies supposedly in the business to protect the nearshore from harm and then used these faulty scientific studies to promote their position.  The Jefferson County Marine Resources Committee, which claims on it’s web page to have the mission, “to protect and restore the marine environments of East Jefferson County by raising community awareness of issues…” has been chaired by an aquaculture industry spokesperson who routinely has used these same discredited arguments to suppress any discussion of negative impacts on the nearshore the MRC claims to protect.  The Committee has meekly gone along with the bullying tactics of the Taylor representative at public meetings, unwilling to push back on what the spokesperson has claimed to be ‘scientific  studies’.  The Committee in fact sponsored a ‘aquaculture educational day” to promote these same, now discredited scientific studies, offering no substantial criticism to the statements of the industry. The lack of any counter balance to the industry’s PR blitz angered many in the environmental community on the Olympic Peninsula toward this committee that had a long history of standing to protect the nearshore. The decision to not include substantial criticism of the industry led the long time environmental representative on the committee to resign.

The outcome of this case is unclear at the time of this writing. However, it will likely have a substantial effect on future shellfish farm permits, and may force the closure of some larger farms that were recently permitted, until such time as adequate scientific study on their effects is done. The ruling ends with the judge throwing out the Army’s ability to issue permits in Washington. However, the judge does say to Taylor and others that they can apply for individual permits. The Court has the ability to allow a “period of time in which growers can avail themselves of the process before the existing permits would be invalidated or to fashion some other equitable remedy to minimize both the risks of environmental harm  and any disruptive consequences.” So there is some wiggle room for the growers to get some activities going to mitigate the effects of this ruling.

This case also fully vindicates the environmentalists’ concerns over the ever expanding industry, it’s conversion of pristine shorelines to monoculture farming and the allies of this industry in city, county and state government. The industry is not down and out yet. It’s worth noting that Taylor has apparently spent tens of thousands of dollars lobbying back in Washington D.C. and is likely to support Republican efforts to roll back the Clean Water Act to eliminate the local nature of permitting to favor national ones. Given this ruling, that likely is a losing tactic.

This blog will continue to follow this breaking story with further updates as we receive them.

 

 

 

 

 

 

“The era of gradualism in environmental activism is over.”New York Times

For many years now we’ve watched as right wing conservative donors like the Koch brothers have funded anti-environmentalist organizations that worked to undermine the message of scientists that were warning us about the impending climate change of the planet. Now a new generation of concerned wealthy people are helping to fund a new wave of climate change activists. They are abandoning the traditional environmental organizations that have been trying to find a moderate slow-go approach to an extreme problem. That is now changing right in front of our eyes, as we have seen in the last two weeks with millions of people from around the planet protesting to do something more radical about climate change. It couldn’t happen a moment to soon. Expect more in the future. Anyone here on the Peninsula want to discuss supporting these kind of activities here?

https://www.nytimes.com/2019/09/27/climate/climate-change-protests-funding.html?smid=nytcore-ios-share

New UN Climate Report – Oceans rising faster

For those of us who live on costs around the world the news could hardly be worse. The future of virtually every coastal city and more than 2 billion people around the world are going to be significantly impacted this century and perhaps as soon as mid century if the worst case scenario continues to play out as they seem to be every time a new report comes out.The planet is looking for leadership from China and the US and we have no one except a 16-year-old coming to our rescue at this moment. It’s up to us folks. There’s no one else going to lead us out of this mess. As far as Port Townsend and the Olympic Peninsula goes, we better be planning for alternative water sources, and significant changes to downtown planning in the near future. The likelihood of Water Street truly becoming a water street appears to be quite high.

The fate of our fisheries right here, as well as work being done on habitat restoration all around the Sound could be put at risk.

www.washingtonpost.com/climate-environment/2019/09/25/new-un-climate-report-massive-change-already-here-worlds-oceans-frozen-regions/

One hour with 16 Year Old Climate Activist Greta Thunberg – Democracy Now!

One hour to hear from Greta in her own world. Get inspired.

https://www.democracynow.org/shows/2019/9/11

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