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

Posted on May 29, 2018 by Al Bergstein

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

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Pope Resources, Port Gamble S’Klallam negotiating conservation easement – North Kitsap Herald

Posted on January 26, 2016 by Al Bergstein

More good news and work towards a restoration of our waters.

The Port Gamble S’Klallam Tribe is in line to receive a $1.5 million grant from the state Department of Fish and Wildlife’s Estuary and Salmon Restoration Program, or ESRP. According to Fish and Wildlife, the Tribe would use the grant and other funds “to protect the mill site from future development with a conservation easement … for the purpose of restoration, returning the site to a more natural state for future generations.” The site is across Port Gamble Bay from Point Julia and the Port Gamble S’Klallam reservation, where the S’Klallam people relocated after the mill was established in 1853. The Tribe and Pope Resources are working together “to develop a vision for the future of the site that includes restoration, a park setting and recognition of Tribal history,” according to Fish and Wildlife. Richard Walker reports. (North Kitsap Herald)

http://www.northkitsapherald.com/news/366496231.html

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Indian Treaties are the new front in the battle against coal exports – The Ecologist

Posted on July 16, 2015 by Al Bergstein

What it means to “Honor the Treaties”.

The 1865 Treaty of Point Elliot is clear… the Lummi Nation has the right to fish, hunt and gather in their accustomed places in perpetuity – and they can’t do that if a gigantic coal terminal is built in the Salish Sea’s most productive waters. First Nations’ treaty rights are now central to protecting the Pacific Northwest from destruction by fossil fuels. Jan Hasselman writes. (The Ecologist)

http://www.theecologist.org/News/news_analysis/2950221/indian_treaties_are_the_new_front_in_the_battle_against_coal_exports.html

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Washingtonians Could Safely Eat More Fish Under New Water Pollution Rules – Earthfix

Posted on July 11, 2014 by Al Bergstein

Another good step by Governor Jay Inslee. This decision has been a tough problem that he has had to balance against industry, like Boeing. This is positive. Now the work and money has to be put forward to actually implement the rain gardens and permeable pavement that he wants to see put in place to help.

Washington’s pollution standards would be made much tougher — making water clean enough that people can safely eat a daily serving of fish — under a plan laid out by Gov. Jay Inslee. The governor announced Wednesday that he wants Washington to use the same fish-consumption standards that guide water pollution rules in Oregon….

 

 http://earthfix.kcts9.org/water/article/washingtonians-could-safely-eat-more-fish-under-ne/

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Washington Supreme Court Rules For Tribe In Skagit Case – Earthfix

Posted on October 4, 2013 by Al Bergstein

This decision has huge ramifications. The Tribes have always said that they have the right to go after upstream water regulations within the watersheds if the State didn’t appropriately protect the salmon stream flows, and now the Supreme Court has agreed with them.

A Western Washington tribe Thursday won a legal victory that will ensure more water stays in the Skagit River to help salmon and steelhead. The decision could affect 6,000 landowners who were allocated water under rules that have now been struck down. That figure includes more than 600 residents with homes that have already been built. The Washington state Supreme Court ruled that the Department of Ecology overstepped its authority in allocating water from the Skagit River for new development.

This has to do with the Washington Instream Rule and whether the State has been doing the correct job in balancing water use for development and water use for fish.  The virtually unregulated use of water for any and all comers is a throwback to the 1800s, and it is widely understood now that rivers can have too much water taken out of them, and the local aquifers  which often recharge them.

This will be coming to a county near you here on the Peninsula soon, due to this decision. The good news is that the counties here and the Tribes have been working very cooperatively to work this out. There are still some locations to be worked out, but this should help clarify those discussions.

http://earthfix.opb.org/water/article/court-rules-in-favor-of-keeping-water-in-skagit-ri/

 

And this:

Ecology director committed to finding water supply solutions in the Skagit Basin after state Supreme Court ruling

OLYMPIA – Washington Department of Ecology Director Maia Bellon today renewed her commitment to ensuring adequate water supplies for home owners and stream flows in the Skagit Basin after Ecology’s 2006 water management rule for the Skagit Basin was invalidated.

The Washington state Supreme Court ruled 6-3 today that Ecology in 2006 exceeded its authority in setting aside water reservations for new uses in the Skagit. The 2006 rule amended a 2001 water management rule that protected stream flows basin-wide.

A reservation is a specific amount of water set aside for specific uses in watersheds closed to new groundwater wells. In the case of the Skagit, these reservations have provided a source of water for homes, agriculture, livestock and businesses since 2001. The court today ruled in Swinomish Indian Tribal Community v. Department of Ecology that Ecology cannot set aside reservations of water through adoption of water management rules where water was previously set aside to support stream flows for fish. Without water reservations, later water uses can be interrupted when dry spells impact the protected stream flows. Ecology found in 2006 that limited reservations would not substantially harm fish populations. The Swinomish Tribe challenged the establishment of the reservations in 2008 and appealed a Thurston County Superior Court finding in Ecology’s favor in 2010.

“I am disappointed in today’s ruling but no less committed to finding water supply solutions for homes and businesses,” Bellon said. “We will be working with local partners to manage the water supply in the Skagit Basin to ensure stream flows are protected and the needs of existing and future water users are met.”

A total of 475 homes and 8 businesses have relied on Skagit reservations for their water supplies since 2001. Ecology will be looking for water supply solutions for those homes and businesses who are affected by today’s ruling.

Ecology is assessing today’s decision and how it may affect water management in other areas of the state.

For today’s court decision, go to: www.courts.wa.gov/opinions/pdf/876720.pdf

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Analysis on Federal Ruling Forcing Culvert Repair -NWIFC

Posted on April 3, 2013 by Al Bergstein

Want to more fully understand last Friday’s landmark ruling that forces the State to accelerate it’s timetable for replacing fish-blocking culverts? Here’s a good place to start: Billy Frank Jr and Ron Allen comment for the NW Indian Fisheries Commission.

OLYMPIA – The state of Washington must fix fish-blocking culverts under state-owned roads because they violate tribal treaty rights, federal Judge Ricardo Martinez ruled on Friday, March 29.

“This is a historic day,” said Billy Frank Jr., Nisqually tribal member and chairman of the Northwest Indian Fisheries Commission. “This ruling isn’t only good for the resource, but for all of us who live here. It will result in more salmon for everyone. This is a great victory for all who have worked so hard to recover wild salmon.”

Read the whole article at:
http://nwifc.org/2013/04/federal-court-upholds-tribal-treaty-rights-in-culvert-case/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+nwifc+%28NWIFC+News%29&utm_content=Google+Feedfetcher

Roundup of other culvert coverage:
http://nwifc.org/2013/04/roundup-of-culvert-case-coverage/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+nwifc+%28NWIFC+News%29&utm_content=Google+Feedfetcher

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Tribes waiting for answer to key Whatcom water rights question – Bellingham Herald

Posted on March 22, 2013 by Al Bergstein

What affects one Tribe affects them all. This story is relevant because if the Tribes can sue to and come to an agreement on how much water is “enough” in these rivers, it will set precedent for all rivers throughout the Salish Sea. Might be the next “big thing” that makes the WRIA debate mild in comparison. As well it should, as we cannot assume that we can take unlimited water from the watersheds in a time of climate warming. There just won’t be the snow pack to support this.

Local Indian tribes sought federal legal action to clarify critical Whatcom County water rights issues more than 18 months ago, but so far there has been no response. The tribes contend that their fishing rights, recognized by the federal courts based on the Point Elliott Treaty of 1855, also contain a guarantee of Nooksack River water that is abundant enough and clean enough to support the salmon that spawn in the river and the shellfish in the tidelands that can be harmed by pollution. Local governments don’t dispute that, but years of negotiations have failed to reach agreement on how much water must be left in the river and its many tributaries to maintain tribal fisheries. John Stark reports.

http://www.bellinghamherald.com/2013/03/22/2931896/tribes-still-waiting-for-answer.html

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Tribes: Hard-won fishing rights here worthless without fish

Posted on January 7, 2013 by Al Bergstein

The Tribes are saying what is not politically acceptable to many. That the work to save the salmon here in Washington State is too little, maybe too late. More protection is needed. Likely not only in the watersheds, which is the thrust of this article, but out at sea as well. For those of us spending hundreds of volunteer hours to try and help restore this natural treasure, it is gratifying that someone is willing to say the impolite thing. That the emperors clothes might not be there. Can we even begin to think of calling for a 10 year fishing ban, both in the Straits, but more importantly out at sea? Would that help? It’s a idea I have heard from old time white fishermen who made a living off salmon prior to Boldt, tribal fishermen, scientists working on the problem, and environmentalists.

Here’s the Tribes’ point of view, as articulated by Billie Frank, Jr.

Lynda Mapes reports.

http://seattletimes.com/html/othersports/2020068220_fish06m.html

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Treaty Tribes release the State of Our Watersheds Report – NW Indian Fisheries Commission

Posted on September 22, 2012 by Al Bergstein

If you are into protecting the environment, here’s a good read. In some ways, a good compliment to the Puget Sound Partnership’s “State of the Sound” report

Ongoing damage and destruction of salmon habitat is resulting in the steady decline of salmon populations across western Washington, leading to the failure of salmon recovery and threatening tribal treaty rights, according to a report released today by the treaty Indian tribes.

http://nwifc.org/2012/09/treaty-tribes-release-the-state-of-our-watersheds-report/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+nwifc+%28NWIFC+News%29&utm_content=Google+Feedfetcher

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Report: No conclusive blame of humans for canal oxygen levels – Kitsap Sun

Posted on September 18, 2012 by Al Bergstein

Human sources of nitrogen no doubt contribute to low-oxygen problems in Southern Hood Canal, but federal and state officials say they will need more precise information before taking action under the Clean Water Act. Other actions to reduce pollution and nutrients in Hood Canal — some voluntary and some regulatory — remain under discussion by the Hood Canal Coordinating Council, which includes county and tribal officials. A new report by the U.S. Environmental Protection Agency and Washington Department of Ecology concludes that existing studies fail to show conclusively that nitrogen from septic systems, fertilizers and other human sources have caused Hood Canal’s oxygen levels to drop by 0.2 milligrams per liter — the threshold for legal enforcement. Chris Dunagan reports.

http://www.kitsapsun.com/news/2012/sep/17/natural-trends-noted-in-hood-canal-oxygen-levels/http://www.kitsapsun.com/news/2012/sep/17/natural-trends-noted-in-hood-canal-oxygen-levels/

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Restoration Grants Coordinator Job for Nooksack Tribe

Posted on March 2, 2012 by Al Bergstein

Job Title: Restoration Grants Coordinator

Department: Natural Resources

Reports To: Habitat Program Manager

Type: Full Time

Position Opens: 2-22-12 Position Closes: 3-7-12

JOB SUMMARY:

This position is responsible for managing the diverse array of grants that support the Tribe’s watershed restoration program. Job duties include: (1) grant proposal writing; (2) grant management, including budget oversight, project management and reporting; (3) preparation of permit applications and working with permitting agencies to secure permits, and (4) preparing and overseeing contracts. This position will work in partnership with the Department’s Watershed Restoration Coordinators to ensure successful and timely implementation of restoration projects.

MAJOR TASKS AND RESPONSIBILITIESConfused smile

See job description link below.

For the full job description, including education and experience requirements, please visit http://nooksackindiantribe.org/wp-content/uploads/2011/12/Restoration-Grant-Coordinator1.pdf. 

To apply: Obtain an employment application at http://nooksackindiantribe.org/wp-content/uploads/2011/12/Application-for-Employment.pdf. Mail application, and resume to 5016 Deming Road, Deming, WA 98244 or fax to 360-592- 2125. Application materials must be received in Human Resources no later than 5:00 pm on the closing date to be considered for this position.

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What’s good for Orca is good for fishermen – Billy Frank

Posted on April 7, 2011 by Al Bergstein

A great opinion piece by Billy Frank Jr. the chairman of the Northwest Indian Fisheries Commission. He makes some excellent points. Read the whole piece, it’s pretty short.

Tribes and orcas have a lot in common. Together, we have always depended on the salmon for food.

The last 100 years have been hard on the tribes, the orcas and the salmon. Habitat loss and damage has pushed some salmon populations to the edge of extinction, threatening the orcas, tribal cultures and our treaty rights.

But instead of looking at the main causes for a weak local population of orcas, the federal government is asking us yet again to reconsider how we fish. We just spent several years working with our salmon co-managers to develop a five-year plan to manage our Puget Sound chinook fisheries in light of the recovery needs for fish listed under the federal Endangered Species Act.

Now, a half-step away from final approval, the federal government is asking us to go back to the drawing board and quickly produce a new two-year harvest plan that addresses how our fisheries might affect orca populations.

The rest of the story is at
http://nwifc.org/2011/04/whats-good-for-orca-is-good-for-fishermen/

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