Another major but little noticed lawsuit has been concluded with the Army Corps of Engineers. This time, a lawsuit brought by a coalition of environmental groups, including Sound Action, Friends of the San Juans, Washington Environmental Council (WEC) and Earthjustice argued that because the corps arbitrarily decided to determine that the high water mark was closer to the water than in other jurisdictions over which it has authority, that this was a capricious rule. The judge agreed.
This will mean that the Army will have to spend more time determining environmental issues before issuing a bulkhead permit. It will also likely mean a lot less bulkheads being permitted.
According to an article by the Spokane News Review, “Rock or concrete walls have been erected along about one-quarter of Puget Sound’s 2,500 miles of shorelines. Nearly a mile of Puget Sound shoreline is built up each year. ”
“The Corps has known for years that its high tide line marker in Puget Sound is unlawfully low,” Anna Sewell, Earthjustice attorney for the groups, said in a statement.
The groups say that if the Corps, which regulates structures or work in U.S. navigable waters, used the true high tide line, more shoreline armoring projects would come under its review.
The lawsuit notes that an interagency workgroup that included the Army Corp’s Seattle District and two other federal agencies recommended changing the Corps’ tidal jurisdiction. That change would have brought about 8,600 acres of shoreline habitat under the Corps jurisdiction.”
The Earthjustice overview of this case stated:
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.
Since the 1970s, the Seattle District of the Corps (“Seattle District”) has defined its Clean Water Act (“CWA”) jurisdiction in the Puget Sound region to extend only up to the“mean higher high water” mark, which is an average of the higher of the two high water marks each tidal day observed over a nineteen-year period.Under the CWA’s implementing regulations, however, the Corps’ jurisdiction extends to the “high tide line.” Approximately one quarter of high tides in the Seattle District exceed the mean higher high water mark, meaning the Seattle District’s CWA jurisdictional marker is significantly below the high tide line.
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.
The original lawsuit can be found here.
Click to access 01_Enviro_Complaint_05-21-2018.pdf
We will continue to cover this story as it evolves with the Corps implementation of this ruling.
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Filed under: Around the Salish Sea, Environmental Activism, Environmental Law, Puget Sound | Tagged: Anna Sewell, Army Corps of Engineers, Bulkheads, earthjustice, Friends of the San Juans, High water line, Puget Sound, Sound Action, WEC | Comments Off on Army Corps of Engineers loses another court case. This time affecting bulkheads and more.
