Tarboo Ridge Coalition asks county to open process on Fort Discovery

The Tarboo Ridge Coalition, in a letter signed by Peter Newland, their legal and government affairs chairman, has asked the Jefferson County Commissioners to end it’s mediation agreement with the Fort Discovery Corporation and open all documents related to it’s previous negotiations.

It is clear at this point, with the determination of the Growth Management Board that the County ordinance that was the outcome of this secret negotiations was a failure on behalf of the Commissioners, that something must change. While they may have gone along with their legal guidance in doing this, it’s time to call it what it is and take a different tactic. The county, instead of simply assuming that Fort Discovery would sue, forced the citizens of this county who are fighting the proposal, Tarboo Ridge, to sue. This contributed to an appearance of favoring the proposal by Fort Discovery, who, as the letter below states, “The fact that the corporation is continuing its practice of building without permits while the County fails to restrain the illegal construction or issue stop work orders works an impossible hardship on the public’s trust and confidence in the fairness of its government.”

I have included the letter in it’s entirety below. The Olympic Peninsula Environmental News supports the ideas conveyed in this letter. It’s time to change tactics at the Commissioners meetings, and accept that there is no easy way out of this mess. Stop putting the opponents of this project at a disadvantage. It won’t help resolve this. The goals of this corporation appear to be at odds with the goals of the County  and the majority of it’s citizens, given the actions that have taken place.  Hard decisions must be made, regardless of the consequences.

 


October 8, 2019

Jefferson County Board of Commissioners The Honorable Kate Dean, Chair

RE: Preparations to comply with GMHB Final Decision and Order Dear Commissioners,

On January 16, 2018, prior to any hearings or officially adopting a moratorium on shooting range permit applications, the BoCC entered into a mediation agreement with Fort Discovery Inc., ostensibly to discuss how the moratorium might affect the corporation’s nascent concept to build a shooting compound near Tarboo Lake.

As Jefferson County prepares to draft a new shooting range ordinance, TRC respectively requests that the BoCC terminate Jefferson County’s mediation agreement with Fort Discovery Corporation and release all the documents and records related to it.

You’ll recall that, as allowed by law, TRC asked to observe but not participate in, the mediation. Our request was summarily denied and thus began 20 months of secret discussions between Fort Discovery officials, the county Deputy Civil Prosecutor, and occasionally other county representatives. In nearly two years of mediation meetings the parties have yet to appear before the mediator.

Numerous meetings between the parties were held behind closed doors throughout 2018 while the (now invalid) ordinances were being written and while the BoCC was holding public hearings and receiving testimony. Public Records Requests for minutes and other records of those private meetings have yielded hundreds of pages of documents, nearly all with redactions-many pages are almost totally blacked out. The County claims the documents are the work product of ”preparing for mediation” and thus eligible to be shielded from public review.

However well-meaning the County’s intentions were, the goal of avoiding litigation was not successful and the secret meetings have tainted the process with the stigma of favoritism.

The stigma is exacerbated by Fort Discovery’s history with Jefferson County. The fact that the corporation is continuing its practice of building without permits while the County fails to restrain the illegal construction or issue stop work orders works an impossible hardship on the public’s trust and confidence in the fairness of its government.

As we begin anew, the public interest is best served by a full understanding of the facts. Closed­ door meetings with Fort Discovery officials should not be allowed to taint the redrafting of Title 8 and 18. The GMHB has given our community a second chance. We urge the BoCC to clear the air and start the redrafting process on an open, trustworthy, positive path.

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.

 

 

 

 

 

 

Feds seek expanded habitat protection as salmon, orcas battle climate change, habitat degradation – Seattle Times

While this is very welcome and overdue, it does, of course, exempt the military from this designation. So the Orcas can be protected against everything, except our military running secret experimental bombing, which by their own admission in their environmental review documents, will lead to death of wildlife. We consistently do not hold the military to the same environmental standards that we hold all other citizens.  Without doing that, this is just more of the same, fiddling while nature burns.

The designation requires review of federal actions within the areas that could affect southern resident killer whales, providing additional oversight by the National Oceanic and Atmospheric Administration (NOAA).

https://www.seattletimes.com/seattle-news/environment/feds-seek-expanded-habitat-protection-as-salmon-orcas-battle-climate-change-habitat-degradation/?utm_source=referral&utm_medium=mobile-app&utm_campaign=ios

Proposed EPA Rules Could Limit State And Tribal Power To Block Infrastructure Projects -OPB

Over the last few years, since Trump came to power, I have been hearing about companies, some here in the NW engaged in shellfish farming, that have been quietly spending tens of thousands of dollars lobbying the Federal government to strip away the capability of local jurisdictions, such as county, state and tribal governments, to create local rules that could stymie the businesses operations or licensing by the federal government, under the Clean Water Act. A goal of theirs has been to take away the ability of local environmentally concerned organizations to sue, other than at the federal level.  Now, it appears the Trump administration is acting on their lobbying efforts. Think about fish farming, pulp mills, or any other activity covered under the Clean Water Act.

The rules specifically would restrict these non-federal governments’ authority to review the water quality impacts of projects that require a federal permit or license. These projects range from pipelines to hydropower facilities to dredging — any development that result in “discharge” into U.S. waters.

DATES: Comments must be received on or before October 21, 2019. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–HQ– OW–2019–0405, at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Lauren Kasparek, Oceans, Wetlands, and Communities Division, Office of Water (4504–T), Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: (202) 564–3351; email address: cwa401@epa.gov.

Read the whole legal document (very long, very difficult to follow if not a environmental lawyer) at

https://www.epa.gov/sites/production/files/2019-08/documents/cwa401certification_2060-af86_nprm_20190807_prepublication_version.pdf

https://www.opb.org/news/article/federal-water-quality-rules-energy-infrastructure/

Fish and Wildlife Commission lists pinto abalone as endangered;

WDFW advances plans to save valuable and splendid sea snail. The Washington State Dept of Fish and Wildlife have decided, with urging from a number of stakeholders including the Skagit and Jefferson Marine Resource Committees, to list the Pinto  as endangered.

Here’s the Press Release:

Date
Contact

Henry Carson, (360) 888-8494; Jason Wettstein (360) 902-2254

OLYMPIA – The Washington Department of Fish and Wildlife (WDFW) is working with federal and state

Juvenile abalone
Pinto abaloneJosh Bouma/Puget Sound Restoration Fund

partners to protect and conserve a species of large sea snail with a shell, a taste, and lifestyle that led to its wide-scale destruction.

The pinto abalone — the only abalone species native to Washington — has experienced a drastic reduction in population in recent decades. From 1992-2017, the population fell by an estimated 97 percent, putting the species at risk of local extinction.

Historically prized as food and for its contrasting red and green shell with an iridescent interior, pinto abalone is a species too popular for its own good.

Overfishing over decades starting in the 1960s led to population declines. While the agency and partners acted to protect the snails, including closing the fishery in 1994, significant levels of poaching and the abalone’s distinctive reproductive cycle meant a cycle of continuing declines despite action.

“Males and females spawn directly into the water, and without sufficient population density, fertilization does not occur, and the animals fail to reproduce,” said Hank Carson, WDFW research scientist.

Now partners are expanding the pinto abalone recovery effort at conservation hatchery facilities at the Kenneth K. Chew Center for Shellfish Research and Restoration (https://www.nwfsc.noaa.gov/news/features/hatchery) in Kitsap County.

“Our abalone captive-breeding and reintroduction program is a promising recovery strategy, but much work remains to achieve self-sustaining populations in the state,” said Carson.

With the listing determination in hand after the commission decision today, the agency is set to conduct this work with long-time partners such as NOAA and the Puget Sound Restoration Fund.

Next steps include writing a formal recovery plan to reduce threats and build the species population, establishing additional satellite growing facilities to increase production, a conservation genetics and disease-risk assessment, and expansion of field work to determine the best places to out-plant these rare and distinctive creatures.

The 2019 legislature has supported funding to recover pinto abalone, including $900,000 for work through June 2021.

“When it comes to recovery of the Puget Sound ecosystem, everything is connected and attention to detail is important,” said Senator Christine Rolfes from Washington’s 23rd district. “Recovery of lesser-known species like the nearly depleted pinto abalone is critical for a healthy and more resilient Puget Sound and the salmon and orca whales we all love. I’m glad the legislature agreed to support this effort,” she added.

Carson said he is grateful for the partners and people who support pinto abalone work. “This species is far too interesting and valuable to disappear from Washington’s waters,” he said.

For more information about the pinto abalone in Washington, see WDFW’s website at https://wdfw.wa.gov/species-habitats/species/haliotis-kamtschatkana.

 

Also from the Skagit Valley News:
The marine snails that have been the focus of restoration efforts in Skagit County and surrounding areas for years are officially endangered. The state Department of Fish & Wildlife Commission made the decision Friday to officially list the pinto abalone as a state endangered species. Fish & Wildlife Research scientist Hank Carson said during the commission meeting that the listing has support from Skagit, Jefferson, Island and San Juan county officials as well as area conservation organizations. The state-level determination means illegally harvesting the species — prized for its meat and shiny shell — will be a gross misdemeanor for first-time offenders and a felony for repeat offenders. Kimberly Cauvel reports. (Skagit Valley Herald) See also: Skagit County at center of restoration effort for marine snail  Kimberly Cauvel reports. (Skagit Valley Herald)

Marine snail gains state endangered species listing

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

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

 

%d bloggers like this: