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.

State Allows Limited Opportunity For Public Input On Major Changes In Nearshore Protection Code

This just in from Sound Action. As usual, there is way more to this than meets the eye. The State is pushing for major changes, putting out hundreds of documents, and ‘fast tracking’ these changes with little opportunity for public input. This often means that the details where the devil lies, is not able to be seen easily, and non profits that work to protect the near shore, have nearly no time to read and understand impacts. I’ve netted out the recommendations from Sound Action at the end of this Press Release. You can help by reading these, look at the whole document if you wish at the link below, and offer your own comments. Or just email them with your thoughts. Thanks.

State Allows Limited Opportunity For Public Input On Push For Major Changes In Nearshore Protection Code
The Washington state Department of Fish and Wildlife (WDFW) and the state Fish and Wildlife Commission are moving forward with plans for major revisions to the only state law specifically protecting critical nearshore habitats and at-risk fish species. The department and commission have allowed for a minimal public comment period and a single, middle-of-summer, late Friday afternoon public hearing in Olympia on August 8.

The state Hydraulic Code is intended to protect fish and fish habitat from in-water development impacts of bulkheads, groins, piers and marinas and was established to ensure no net-loss of the state’s critical nearshore habitats.

The nearshore environment in Puget Sound is where forage fish such as herring, surf smelt and sand lance spawn and where juvenile Chinook salmon grow. The decline in Puget Sound populations of killer whales, sea birds and salmon has been traced to disruptions in the prey-predator balance and loss of spawning and rearing habitats in the nearshore.

The state has proposed a full overhaul of the code guiding the application of this law and recently released approximately 400 pages of documents, including 150 pages of proposed rule language, and provided only a 14-day formal comment period with an additional 15 days for informal comment acceptance. A related 150-page draft Environmental Impact Statement was also released with only 30 days for a public comment period to run concurrently with the rule proposal. The Hydraulic Code revision and the dEIS are found at http://wdfw.wa.gov/licensing/hpa/rulemaking/ and http://wdfw.wa.gov/licensing/sepa/sepa_comment_docs.html , respectively.

“The Hydraulic Code is the state’s primary tool for Puget Sound habitat protection and many of the revisions lead to a weakening, not a strengthening, of protections,” said Amy Carey, executive director of Sound Action. “The documentation and accompanying environmental impact statement are voluminous. Important regulations like these deserve much, much more time for public review and comment than the minimal time period and one hearing opportunity the department has provided.”

Sound Action’s draft comments regarding the code changes are found at “Preliminary Comments on Hydraulic Code Proposed Rulemaking”http://soundaction.org/hparule/wp-content/uploads/2014/08/SA-preliminary-comments-upload-use.pdf

Carey added that Sound Action and other conservation groups had requested that WDFW extend the comment period beyond the August 15 deadline another 30 days and to provide additional public hearing opportunities in Puget Sound. The request, according to Carey, was rejected by the department.

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Sound Action: Turning The Tide For Puget Sound
http://www.SoundAction.Org
http://www.Facebook/SoundActionNW

HERE ARE SOME OF THE RECOMMENDATIONS BY SOUND ACTION:

Establish an appropriate definition of protection of fish life:

Establish an appropriate definition of “no net loss”

Amend language to reflect clear requirements for both department and applicant actions.

Add protective provisions for macroalgae.

Add provisions to strengthen forage fish protections.

Add provisions to protect fish life and habitat from the impacts of shoreline armoring.

Establish strong generalized habitat and fish protecting provisions throughout:

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