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/

Legislation to help endangered orcas keeps moving toward approval – Watching Our Waterways

Chris Dunagan on the handful of environmental bills moving through the Olympia sausage making machine.

Members of the governor’s orca task force this week expressed hope and a bit of surprise as they discussed their recommendations to help the orcas —recommendations that were shaped into legislation and now have a fairly good chance of passage. Over the years, some of their ideas have been proposed and discussed — and ultimately killed — by lawmakers, but now the plight of the critically endangered southern resident killer whales has increased the urgency of these environmental measures — including bills dealing with habitat, oil-spill prevention and the orcas themselves. Chris Dunagan reports. (Watching Our Water Ways)

Legislation to help endangered orcas keeps moving toward approval

Voting in Olympia

Current voting status from our Legislators. Culled from the great folks at Washingtonvotes.org. The Democrats are capitalizing on their majority and governor. They are passing a lot of bills to help the environment. While I am not wild about taxing carbon, (I’d rather see better support for purchasing electric vehicles and power recharging stations), as carbon taxes really don’t change behavior from what I’ve seen, simply make people pay more. Setting quotas on how many electric vehicles are imported for sale here simply penalizes the car dealers if they don’t sell. That’s just dumb. They are already paying taxes on gross sales, which is also a bad tax system. I’d much rather created incentives for people to buy! That will drive demand. It’s all about demand and alternative choices (i.e. mass transit).

I took a bus for many years from North Seattle to Redmond. I did it because there were frequent busses and it was convenient. I knew I could leave early and return early or late. I don’t see anything being done to create more incentive for people to take mass transit on the Olympic Peninsula. As an example, it would seem we need more busses serving PT to Sequim, where people may work, or go to medical appointments. There are only four busses,the first leaves at 8:30 AM. No working person will take that bus. They have to drive to near the airport to catch the earlier bus. Coming back the last bus leaves Sequim at 6:40, so if you have to stay late, you are stuck. The first bus leaves Sequim for PT at 6:52, so you can certainly catch that bus if you work in PT, but again, your last opportunity out is at 5:50. It appears we could easily do one more bus on each end of the day. One leaves early to Sequim from Haynes and one leaves later from Sequim and returns later from PT. That is what creating demand can accomplish. However you also need to advertise the service.

There are people though that will never take the bus, and for them, we need to drive demand for longer range electric vehicles. Maybe a service that would allow people to ‘rent’ an electric car at the Haynes P&R and drive it to Sequim, etc. and return it when done to Haynes. That seems to be a technology that is available. It certainly has worked in Seattle. ReachNow, ZipCar, Car2Go.

So here’s your local legislator’s votes


House Bill 1110, Reducing the greenhouse gas emissions associated with transportation fuels

Passed the House on March 12 by a vote of 53-43

This bill would direct the state Department of Ecology to impose low-carbon fuel limits on gasoline and other transportation related fuels with a “clean fuels” program. Under the bill, carbon emissions of transportation fuels would have to be reduced to 10 percent below 2017 levels by 2028 and 20 percent below 2017 levels by 2035. The mandatory program would begin Jan. 1, 2021. During floor debate, opponents argued that the bill would harm Washington residents by raising gas prices, which are already among the highest in the nation, and raising other costs, including food prices. A Republican amendment to allow a public vote at the next general election was defeated, and the bill passed along party lines by a 53-43 vote. Bi-partisan opposition to the bill included all Republicans and three Democrats. The bill was referred to the Senate Environment, Energy and Technology Committee for further consideration

Rep. Chapman Yes

Rep. Tharinger Yes

This bill would impose California’s automobile emission rules on vehicle owners in Washington. Under the bill, car makers would be assigned credits based on the kind of fuel efficient cars they bring into the state. Those credits would then be used to set quotas for how many zero-emission vehicles manufacturers must ship into the state and for dealers to offer for sale, regardless of whether consumers want them or not. The stated goal of the bill is to have about 2.5 percent of all cars brought into Washington be the equivalent of zero-emission vehicles. The bill is now before the House Environment and Energy Committee for further consideration.
Sen. Kevin Van De Wege (Sequim) (D) ‘Voted Yes’
If enacted into law, this bill would ban stores from giving single-use plastic carryout bags to their customers. The ban includes paper and recycled plastic bags unless they meet stringent recycled content requirements. Under the bill, retailers would also be required to collect an 8-cent per bag tax for each recycled content large paper or plastic carryout bag provided. These provisions would supersede local bag ordinances, except for ordinances establishing a 10-cent per bag charge in effect as of January 1, 2019. Passage of SB 5323 by the Senate is the furthest statewide bag-ban proposals have advanced in the legislative process, since the idea of regulating and taxing shopping bags were first proposed in 2013. The bill was sent to the House Environment and Energy Committee for further consideration.
Sen. Kevin Van De Wege (Sequim) (D) ‘Voted Yes’
Under this bill, Washington’s electric utilities would have to eliminate all coal-fired energy sources by 2025 and meet 100 percent of its retail electric load using non-emitting and renewable resources by January 1, 2045. ?In support of the bill, Democrats said the state has an entrepreneurial economy that can move toward a clean energy economy. Solar and wind are the future, and this bill provides a common sense framework for bold actions toward a carbon-free electricity, they said. Republican senators offered nearly two dozen amendments to the bill, pointing out that Washington utilities already rely heavily on clean hydroelectric power and that the bill’s provisions would really only result in additional costs and rate increases to be borne by consumers. Most of the amendments failed, and the bill passed along strictly partisan lines, with one Republican and one Democrat member excused. The bill was sent to the House Committee on Environment and Energy, which has scheduled a public hearing for March 5th.
Sen. Kevin Van De Wege (Sequim) (D) ‘Voted Yes’

Court Ruling Clears Hurdle Toward Lasting Protections For Puget Sound Shorelines

Legal challenge targeting Corps’ failure to regulate shoreline armoring will go forward

In  full disclosure, the author of this blog is on the board of directors of Sound Action, one of the plaintiffs in this case. This case, if successful,  is likely to have significant ramifications to the placement of bulkheads, when allowed, along the shoreline.

Today the federal court soundly found in the plaintiffs favor and denied the Motion to Dismiss. Most significantly, the court found that a final agency action had taken place — which clears the way for the challenge to move forward.

February 5, 2019
Seattle, WA —A federal judge today rejected an effort by the U.S. Army Corps of Engineers (“Corps”) to dismiss a lawsuit challenging its refusal to adequately protect shoreline areas in Puget Sound. The Court’s decision means the lawsuit, which charges that the agency has refused to assert its Clean Water Act jurisdiction over most shoreline armoring in Puget Sound, will go forward.

Sound Action, Washington Environmental Council, and Friends of the San Juans filed the suit in May of 2018. The groups contend a strong federal policy to protect shorelines is critical to Puget Sound recovery and the survival of endangered orcas.

The coalition, represented by the nonprofit environmental law firm Earthjustice, is calling for federal oversight of shoreline armoring by raising what the Corps’ Seattle District considers the “high tide line” to better protect at-risk species and shorelines. The lawsuit also calls for a response to the groups’ 2015 petition asking for jurisdictional decisions on four shoreline armoring projects.

“The Army Corps should spend less time filing pointless motions in Court and more time getting on board with the rest of the region in protecting critical shoreline habitat,” said Anna Sewell of Earthjustice, lead attorney for the plaintiffs. “The Corps should stop fighting this lawsuit and start implementing the law so that Puget Sound’s salmon and Southern Resident orcas have a shot at survival.”

Read the Court’s decision.

Read the complaint.

https://earthjustice.org/news/press/2019/court-ruling-clears-hurdle-toward-lasting-protections-for-puget-sound-shorelines

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.

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. In the lawsuit, the plaintiffs challenge the Corps’ failures to adequately protect Puget Sound shoreline habitat by fully implementing the law.

The orca recovery plans that could become state law – KCPQ

Three bills hit the floor for supporting Orca recovery. More on this soon.

After a year of task force meetings, it’s time to find out if the governor’s ambitious plans to save the endangered southern resident orcas will turn into state law. It’s in the hands of state lawmakers now as they introduced several bills in Olympia Wednesday. The legislation is based on several of the governor’s orca task force recommendations. Some will be a harder sell than others. [Read about House Bill 1580 and Senate Bill 5577 which deal with aspects of vessel noise; House Bill 1578 and Senate Bill 5578 which deal with improving oil transport safety; House Bill 1579 and Senate Bill 5580 which increase habitat for Chinook and forage fish.]  Simone Del Rosario reports. (KCPQ)

The orca recovery plans that could become state law

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

 

 

 

Debate Over Water Quality Standards Takes A New Turn – Puget Sound Institute

Christopher Dunagan writes on the issue of the Federal EPA vs. State of Washington EPA, vs. the people of Washington, as the real battle of Trumps reigning in of environmental regulations changes the rules of engagement. The issue is very relevant to all of us in the Salish Sea basin, as it pits a national standard of water quality, established by the EPA under Obama’s era, against an update by the Trump administration. How much cancer causing chemicals can we eat before we get cancer?

The State of Washington EPA fought the original stricter standards, because it would mean more effort by industrial corporations (i.e. Boeing et al) to meet the newer standards, which were put in place partly due to the fact that many of us are eating far more fish than what was originally believed. Now those same corporations are petitioning Trump’s EPA to ease the standards.

It’s not just an academic debate. Cancer causing chemicals effect us and our resident Orcas and more. Read the whole short story on it here. Www.pugetsoundinstitute.org

https://www.pugetsoundinstitute.org/2018/11/debate-over-water-quality-standards-takes-a-new-turn/

Many people thought the issue of regulating toxic chemical discharges into Puget Sound was settled when the federal government forced Washington state to use stricter criteria, but the debate may be underway once again.

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