Swinomish Tribe and others sue Army Corp over lack of eelgrass protections

Somehow this lawsuit slipped my review. It came out in late April and adds to the growing group of lawsuits seeking to protect yet another of Puget Sound’s key habitat, eelgrass.  As the suit states: “Native eelgrass beds serve as nurseries, cover,and feeding grounds for threatened Puget Sound Chinook salmon, Dungeness crabs, and other aquatic species.”

You may have seen the “No anchor zones” in Port Townsend Bay that are there to help boaters avoid damaging these fragile underwater forests.

The Swinomish Tribe, along with Earth Justice and others, challenges the Army Corp of Engineers and it’s  Nationwide Permit 48,( NWP 48) which came out last year. NWP48 authorizes large-scale commercial shellfish aquaculture without mandatory avoidance or minimization measures to protect eelgrass.

From the lawsuit filing: The Corps’ first nationwide permit covering shellfish aquaculture issued in 2007 applied only to active commercial shellfish operations which had a state or local permit. As reissued in 2017, NWP 48 reaches beyond active commercial shellfish operations to cover any area that was used for commercial shellfish aquaculture at any time within the last 100 years. This definition extends into “continuing fallow” areas, which are areas that previously had shellfish operations at some time, but not since 2007 when the first NWP 48 was issued. NWP 48 contains measures requiring avoidance of eelgrass beds in “new” operations that have never been cultivated, but makes those mandatory avoidance measures inapplicable to eelgrass beds in continuing fallow areas. In North Puget Sound, thousands of acres of so-called continuing fallow areas have mature eelgrass beds, yet NWP 48’s mandatory avoidance measures are not applicable to these fallow areas.

Throughout the development of NWP 48, the Tribe urged the Corps to adopt
avoidance and minimization measures to protect eelgrass. The Corps considered various avoidance and minimization measures, such as extending the same protection afforded for new shellfish operations to eelgrass in continuing fallow areas or limiting the shellfish aquaculture methods that may be used on eelgrass beds to those that minimize damage to the eelgrass. In the end, however, the Corps adopted NWP 48 without any avoidance and minimization measures to protect eelgrass. It left the development of such protective measures to the discretion of the
Corps’ district engineer when reviewing specific projects to verify whether they comply with NWP 48.

This case challenges the application and implementation of NWP 48 in North
Puget Sound in areas with eelgrass beds for violating three laws and their implementing regulations.

Follow this link to the Corps complaint. It’s 31 pages long.

Swinomish lawsuit against Corps 3522 1 Complaint


The Puget Sound watchdog group Sound Action and 10 state environmental groups* last week addressed the importance of strengthening nearshore habitat protections in a joint letter commenting on the Washington Department of Fish & Wildlife’s proposed revisions to the state’s hydraulic code. 

The code is the state’s principal regulatory tool to ensure the protection of nearshore and stream habitats and fish life from the harmful impacts of in-water development and construction work.

“Our review found that much of the proposed language creates exemptions and regulatory loopholes and utilizes language that appears to diminish both department responsibility and the ability to ensure the mandated protection of vital habitats,” said Sound Action executive director Amy Carey.

According to the environmental group’s comments:

·      The proposed new rules don’t require project applicants to conduct forage fish spawning surveys prior to work, nor do they require vegetation surveys at project sites.

·      The new rules introduce a simplified permit that allows project approval with no impact review or site visit; they also allow permit applicants unnecessary latitude to negotiate timing restrictions for work.

·      Most significant, the new rules make no provision to protect spawning areas that have not been identified as spawning areas. The groups advocate that the precautionary principle should be applied and protective provisions to a project used when certain habitat features are present even if the site is not currently listed as containing a “documented” habitat.

The rule revision process continues into 2014 with additional public hearing and comment periods, with adoption scheduled for mid-2014.

The rule revisions also drew comments from the Northwest Indian Fisheries Commission [http://www.soundaction.org/nwifchpa.pdf ] and the Skagit River System Cooperative [http://www.soundaction.org/skagithpa.pdf].

For a more detailed account of the environmental group’s comments on the revised rule, click here [http://www.soundaction.org/hpacomment.pdf]

*Environmental groups signing: League of Women Voters of Washington, Sound Action, Coastal Watershed Institute, Spokane Riverkeeper, Wild Fish Conservancy, Friends of the San Juans, Citizens for a Healthy Bay, Friends of the Earth, Sierra Club Cascade Chapter, RE Sources for Sustainable Communities

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