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.

Zangle Cove Lawsuit Issues Bombshell Findings Against Aquaculture

The case moving through the courts at the present time to challenge the lack of Hydraulic Code Permits for the destruction of shorelines by aquaculture got a surprise boost yesterday.

Findings that contradict the testimony of the Army Corp of Engineers and Taylor Shellfish show that in 2017 the Army Corps had to create a Cumulative Impact Analysis that showed conclusively that there would be significant impacts from adoption of a Nation Wide Aquaculture Permit. The 117 page draft concluded that their would be significant impacts if adopted. The Corps has categorically denied such impacts.

The Corps admits that the aquaculture is likely to “adversely affect designated critical habitat for several species listed under the ESA including Puget Sound Chinook salmon, Hood Canal summer chum salmon and Puget Sound Steelhead…Given the magnitude of the the impacts in acreage the importance of eelgrass to the marine ecosystem and the scale of the aquaculture impacts relative to other stressors, the impacts are considered significant.”

The letter goes on: The proposed action is inconsistent with State requirements under the SMA to protect forage fish spawning habitat.”

The debate has been that the Army Corps of Engineers nor the State have ever considered the cumulative impact of aquaculture permitting on the overall shoreline and ecosystem of Puget Sound, focusing only on individual parcels. Now we know that they did consider the impact, and found it lacking.

The next steps on this lawsuit should be very interesting, judges don’t usually go against findings of fact such as this, and the Governor’s Orca Recovery Task force is currently about to publish it’s findings for saving habitat for the Orca and it’s food sources.

The full text of the findings are here:

http://users.neo.registeredsite.com/3/7/5/12218573/assets/2017_NWP48_Draft_Cumulative_Imapct_Analysis.pdf

After a decade of litigation, NOAA Fisheries and EPA will prepare a biological opinion on harm caused by Atlantic salmon net pens

From the Wild Fish Conservancy Press Release this morning. It’s unfortunate that those of us concerned about this issue needed to spend 10 years trying to force them to get to this simple issue. NOAA Fisheries have been one of the biggest boosters of net pen Atlantic salmon, never studying the wider effects of pens beyond a few hundred yards away from them. There has never been a wholistic approach to studying the effects of fish waste, food waste, chemicals added to the water, fish escapement, nor the issue that wild fish are attracted to the pens by food. What we learned from the net pen collapse last fall, was that the claims of the industry, repeated by spokesmen for Taylor Shellfish (who support net pens), that there was no way that Atlantic salmon would survive after escapement, were nothing but wishful thinking. Atlantic salmon from the pens were found far up the Skagit River basin and along the north outer shore of Vancouver Island. The misinformation campaigns of these industries that put profit ahead of environment are stunning in their audacity.


After a decade of litigation, NOAA Fisheries and EPA make the 11th hour decision to prepare a biological opinion on harm caused by Atlantic salmon net pens to ESA- listed salmon and steelhead.

The agencies have finally begun formal consultation under the Endangered Species Act (ESA) to evaluate the potential harm caused by Atlantic salmon net pens in Puget Sound October 11th, 2018

Duvall, WA – On the eve of court proceedings over a legal battle Wild Fish Conservancy initiated in 2015, NOAA Fisheries and EPA have entered into formal consultation under the Endangered Species Act, consultation that will lead to the issuance of a biological opinion.

Under the Endangered Species Act, a biological opinion evaluates the extent of harm a proposed action will have on threatened or endangered species and whether such harm could jeopardize the continued existence of the species. Biological opinions also include conditions for monitoring and reducing harmful impacts to protected species.

Considering the abundant scientific evidence that open-water Atlantic salmon aquaculture may harm threatened and endangered salmonid species, Wild Fish Conservancy first argued that formal consultation and a biological opinion was necessary back in 2008, when we argued against the agencies’ decision that Atlantic salmon net pens were ‘not likely to adversely affect’ threatened and endangered species. We won that case in 2010, with the court ruling that NOAA and EPA had failed to use the best available science when making their decision and must reconsider whether a biological opinion is necessary.

Less than one year later, after a brief consultation, NOAA and EPA again decided that a biological opinion was unnecessary. This decision was shortly followed by a large-scale disease outbreak in Atlantic salmon net pens off the coast in Bainbridge Island in 2012, which killed over 1 million pounds of farmed Atlantic salmon during a time when juvenile wild salmon were out-migrating through Puget Sound.

Wild Fish Conservancy again challenged the agencies’ decision to avoid a biological opinion in 2015, a case that prompted NOAA and EPA last week to announce their intention to re-initiate consultation and finally prepare a biological opinion. That decision came only after the Court soundly rejected the agencies’ efforts to dismiss the case and ruled that the duty under the Endangered Species Act to re-initiate consultation does apply to EPA’s underlying action.

Since the case was filed in 2015, we have learned far more about the potential for harm the Atlantic salmon net pen industry presents to wild salmon and steelhead. In 2017, a collapsed net pen off the coast of Cypress Island released over 260,000 farmed Atlantic salmon into Puget Sound, nearly all of which are estimated to have been infected with Piscine Reovorius, a highly contagious and potentially lethal virus that may infect wild salmon. A study in 2018

demonstrated that PRV leads to debilitating disease in Chinook salmon, the primary food source of endangered Southern Resident killer whales.

This case comes at a time when key provisions of the Endangered Species Act are under threat in the United States Congress and underscores the monumental importance of the ESA, an act that has been critical in providing key protections to over one thousand threatened and endangered species across the country.

“While it shouldn’t have taken ten years of litigation for our agencies to realize the necessity of a biological opinion,” said Kurt Beardslee, Wild Fish Conservancy’s Executive Director, “I am glad to hear they have decided to change course, and I am hopeful that a biological opinion will lead to conditions and terms that will limit and monitor the harm caused by net pens to ESA-listed salmon and steelhead.

“Taking the utmost precaution is necessary to avoid the extinction of imperiled Pacific salmon and steelhead species, especially when considering the dire plight of Chinook salmon and the Southern Resident killer whales that are starving due to their struggling population.”

Contact

Kurt Beardslee, Executive Director, 425.788.1167/kurt@wildfishconservancy.org

About

Wild Fish Conservancy is a science & research conservation non-profit dedicated to the preservation, protection & restoration of wild fish ecosystems in the Pacific Northwest. We are headquartered in Duvall, WA. Learn more at wildfishconservancy.org

Wild Fish Conservancy is represented in this matter by the law firm of Kampmeier & Knutsen, PLLC, with offices in Portland, Oregon and Seattle, Washington.

ZINKE ORDERS BROAD ROLLBACK OF WILDLIFE PROTECTIONS

Interior Secretary Ryan Zinke has announced a “commitment to defer” to state hunting and fishing practices on all lands within agency purview. His order is a stunning abdication of a more than century-old legal foundation of federal primacy for wildlife management on federal lands, according to Public Employees for Environmental Responsibility (PEER).

In a September 10, 2018 Memorandum to Heads of Bureaus and Offices, Zinke declared that henceforth states will be the “first-line authorities for fish and wildlife management” on all Interior lands and that Interior “hereby expresses its commitment to defer to the States in this regard.” To implement this reversal, Zinke directs Interior agencies compile any “regulations, policies, guidance that pertain to public recreational use and enjoyment of fish and wildlife…that are more restrictive than otherwise applicable State provisions” within 45 days. Within 90 days after that, each agency is supposed to recommend steps “to better align its regulations, policies, and guidance with State provisions.”

“This across-the-board abandonment of federal fish and wildlife safeguards is rooted in an ideological stance unsupported by any factual analysis,” stated PEER Executive Director Jeff Ruch, arguing that Zinke ignores the fact that many state game agencies are funded by hunting and fishing license fees and pursue practices, such as predator control, to maximize that revenue. “Federal parks, preserves, and refuges have a mission to protect biodiversity and should not be reduced to game farms.”

A sample of what Zinke’s memo could usher in is reflected by his controversial order that the National Park Service open its Alaska preserves to questionable hunting and trapping techniques, such as killing bear cubs and wolf pups in their dens, luring bears with bait, and shooting swimming caribou from a motorboat. Zinke’s order would put any federal wildlife protection not required by law on a path to repeal. This could mean federal parklands, refuges, and rangelands may have to accommodate states:

• Introducing non-native fish to natural lakes in a park or exotic pheasants for upland game bird hunting;

• Eliminating all wolves or other natural predator populations in a game management area; or

• Approving destructive or dangerous hunting techniques, such as trapping in hiking venues, hunting with dogs even on island refuges, hunting contests, and absence of bag limits.

Zinke’s memo posits the premise that “State governments have consistently demonstrated their commitment to sustaining fish and wildlife resources in perpetuity for the benefit of both current and future citizens.” This statement not only is demonstrably untrue but ignores the conditions leading to enactment of the federal Endangered Species Act.

“Mr. Zinke says that he does not want to give away ownership of federal lands but happily cedes their management,” added Ruch. “With his penchant for sweeping yet ill-considered actions, Ryan Zinke is on a trajectory to become the worst Secretary of the Interior since Teapot Dome.”

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