Washington court: Fish and Wildlife can regulate land to protect fish – Capital Press

Posted on December 7, 2018 by Al B.

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

 

 

 

Filed under: Around the Salish Sea, Around the Sound, Endangered Species, Environmental Law, Environmental Protection, Government, Puget Sound | Tagged: , , , | 1 Comment »

Zangle Cove Lawsuit Issues Bombshell Findings Against Aquaculture

Posted on October 30, 2018 by Al B.

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

Filed under: Aquaculture, Endangered Species, Environmental Law, Environmental Protection, Government Legislation, Puget Sound | 4 Comments »

Columbia River salmon fishing closed.

Posted on September 12, 2018 by Al B.

OLYMPIA – Starting Thursday (Sept. 13), fishing for salmon will be closed on the mainstem Columbia River from Buoy 10 upstream to Hwy 395 in Pasco under new rules approved today by fishery managers from Washington and Oregon

Deep River in Washington and other tributaries in Oregon (Youngs Bay, Tongue Point/South Channel, Blind Slough and Knappa Slough) are also closed to salmon and steelhead angling.

The Washington Department of Fish and Wildlife (WDFW) already prohibited steelhead retention in much of the same area of the Columbia River several weeks ago, and the new emergency rule closes angling for both salmon and steelhead in those waters as well.

Bill Tweit, Columbia River fishery coordinator for WDFW, said the counts of fall chinook at Bonneville Dam are 29 percent below preseason forecasts, and on-going fisheries are approaching the allowable catch limits under the Endangered Species Act (ESA). 

“We recognize that this closure is difficult for anglers, but we have an obligation to meet our ESA goals so that fisheries can continue in the future,” he said.

Tweit said the upriver fall chinook run provides the bulk of the harvest opportunity for fall fisheries, but that returns in recent years has been declining due to unfavorable ocean conditions. The preseason forecast for this year is 47 percent of the 10-year average return of upriver bright fall chinook.

The new emergency fishing rule is posted on WDFW’s website at https://fortress.wa.gov/dfw/erules/efishrules/.

Filed under: Chinook, Chum, coho/silvers, Endangered Species, Environmental Protection, fisheries, fishing, king salmon, Salmon, Sockeye | Leave a comment »

ZINKE ORDERS BROAD ROLLBACK OF WILDLIFE PROTECTIONS

Posted on September 12, 2018 by Al B.

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.”

Filed under: Environmental Law, Environmental Protection, Era of Trump, Government Legislation, Olympic Peninsula | Tagged: | Leave a comment »

DNR Proposes Dewatto Natural Resources Conservation Area

Posted on July 2, 2018 by Al B.

In an effort to protect some of the last remaining high quality lowland shorelines on the east side of the Hood Canal, the State Department of Natural Resources has proposed creation of a new conservation area. This was done in discussion with the Trust for Public Land, The Great Peninsula Conservancy and the Hood Canal Salmon Enhancement Group. Those of you who have driven the North Shore road, from around the south end of the Canal from Belfair, will remember that as you start north from the SW point you encounter a beautiful estuary that is very lightly inhabited. That’s Dewatto Bay.

The state will eventually offer fair market value to landowners if this goes through. However there is no requirement that landowners sell. The state has used this kind of process to secure land for perpetuity in other locations including here on the Olympic Peninsula.

The proposed Dewatto Natural Resources Conservation Area (NRCA) seeks protection for approximately five miles of Hood Canal shoreline, including Dewatto Bay and Little Dewatto Bay. The Washington State Department of Natural Resources (DNR), along with our partners at the Trust for Public Land, Hood Canal Salmon Enhancement Group, and Great Peninsula Conservancy, are proposing a 1,700 acre NRCA to ensure conservation of important Hood Canal features for enjoyment by future generations: Lowland forests, high-functioning riparian areas, and vital nearshore and estuary habitat for fish and wildlife.

DNR manages NRCAs for conservation, wildlife habitat and low-impact recreation uses. An NRCA designation does not change local land-use zoning, permitted land uses, or development code requirements, and it imposes no new restrictions on landowners.

The Washington State Department of Natural Resources (DNR) will conducted two public information meetings on June 26th and June 28th in Dewatto and Belfair concerning the proposal of the Dewatto Natural Resources Conservation Area (NRCA). Staff from DNR’s natural areas program will hold a public hearing and a public comment period later this summer to provide information and receive testimony on the proposed boundary.

View the Proposed Dewatto NRCA Factsheet and Proposed Dewatto NRCA Boundary Map.

For more information, contact

Katie Woolsey

Natural Areas Manager

206-375-3558

Filed under: Environmental Protection, Government, Hood Canal, Puget Sound | Tagged: , , , , , | Leave a comment »

While I was out rafting….

Posted on June 29, 2018 by Al B.

While I was off the grid on the Grande Ronde river with friends, the White House Council on Environmental Quality (CEQ) issued an Advance Notice of Proposed Rulemaking (ANPRM) that sets the stage to roll back NEPA and the environmental review process across the entire federal government. CEQ is currently only offering the public a 30-day comment period.

So we will need to refashion virtually all environmental laws by the time the Trump administration is done. Lots of work ahead. Maybe a lawsuit will be filed to stop this, as it may be illegal to undermine environmental review.

Filed under: Environmental Activism, Environmental Law, Environmental Protection, Puget Sound | Leave a comment »

Cantwell helps secure $25M increase in the Land and Water Conservation Fund

Posted on March 23, 2018 by Al B.

From Cantwell’s office:

As the top Democrat on the Senate Energy and Natural Resources Committee, Cantwell fought back against the Trump Administration’s proposal to eliminate the Land and Water Conservation Fund (LWCF), the country’s most successful conservation program, and secured a $25 million increase in funding over last year’s levels. The funding also includes specific allocations for Washington state projects, including $1 million for Lake Chelan Natural Recreation Area, $5 million for Okanagan National Forest, $6.3 million for the Forest Legacy program in South Puget Sound, and $2 million for the Dewatto Headwaters. Cantwell has long promoted the program, touting its importance for conservation and its positive economic affects for Washington state. In March of 2017, she introduced a bill to permanently authorize and fully fund the LWFC, and she has steadfastly defended the program in the face of attacks.

Filed under: Environmental Protection, Government, legislation, Puget Sound | Tagged: | Leave a comment »

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