Environmental organizations were celebrating tonight after a federal judge blocked work on Glacier Northwest’s controversial gravel-mining operation on Maury Island.
U.S. District Judge Ricardo Martinez ruled that no more work can be done on a loading dock until the U.S. Army Corps of Engineers prepares a full-blown environmental impact statement. The Corps also must “consult” with other agencies about harm that the project could cause to threatened and endangered species.
Shortly after Martinez issued his ruling, I received an e-mailed statement from state Public Lands Commissioner Peter Goldmark, who oversees a state lease for the gravel-mining operation.
“Due to the ruling in federal court today, the lease NW Aggregates has with the Washington State Department of Natural Resources is no longer in good standing,” Goldmark said.
“It is imperative that we protect Puget Sound. The judge recognized there are potential impacts from this project on threatened and endangered species, like orca and salmon. The ruling cites many of the same issues that we have raised in recent months.”
The court ruling, combined with Goldmark’s express position, creates a significant hurdle for Glacier Northwest to overcome.
“Obviously, we’re disappointed,” Pete Stoltz, Glacier Northwest’s permit coordinator, told the Associated Press. “We participated in the entire process, provided all the information required.
“We’re hopeful that the process could happen expeditiously,” he said, adding that the company will cooperate fully with federal environmental reviews.
The case was brought by plaintiffs Preserve Our Islands, People for Puget Sound and Washington Environmental Council.
You may wish to read Martinez’s
entire order (PDF 96 kb) for yourself, but I’ll try to
summarize it here:
Martinez concluded that a more detailed environmental impact statement should have been written instead of an abbreviated “environmental assessment.” His words:
“An agency is required to prepare an EIS if the effects on the human environment of a project are ‘likely to be highly controversial’ or when the possible effects on the human environment are ‘highly uncertain.’ The controversy to which this refers is not political, social or public, but scientific. Plaintiffs have adequately demonstrated such controversy, by pointing to materials in the record that demonstrate significant disagreement among experts regarding the effects of the project on critical habitat for certain listed species, namely chinook and SR (Southern Resident) orcas.”
The judge pointed to studies that indicated that threatened chinook salmon were found in nearshore areas around Vashon and Maury islands from May through October of 2001 and from April to December 2002. Approvals were based on the apparent misunderstanding that salmon would not be present after Aug. 15 in areas that did not have chinook salmon streams.
Martinez found that the Army Corps of Engineers acted “arbitrarily and capriciously” and in violation of the Endangered Species Act when it failed to consider the findings of those studies.
The judge found that the Corps failed to adequately consider the effects on chinook salmon from the noise of pile driving during dock construction and from loading gravel onto barges.
The Corps also failed to study how the prop wash from boats might affect eelgrass beds in the area.
As for Puget Sound’s killer whales, the approval was based on the belief that orcas rarely show up off Maury Island, as suggested by the low number of sightings reported to Orca Network.
“What is missing here is science…,” the judge wrote. “There is no way to determine how many Maury Island residents are part of the sighting network or how frequently they attempted to sight orcas in the project vicinity. The paucity of reports may simply indicate a paucity of reporters, not of orcas.”
The judge also faulted the Corps for concluding that noise would not harm orcas because the animals aren’t around much when construction takes place and because workers will stop the noise when orcas are spotted in the area through a monitoring program.
“Displacement of the orcas from important feeding areas would itself be an adverse effect, one that the monitoring program does not address in any way,” Martinez said. “The court therefore finds that the noise effect determinations were based on inadequate analysis of potential adverse effects.”
How the project might effect food for the orcas also was not adequately studied, the judge said, because conclusions about chinook were flawed and because no other salmon species were considered as prey. Studies have shown that orcas frequently eat chum salmon while visiting Central and South Puget Sound.
Finally, Martinez concluded:
“No single project or human activity has caused the depletion of the salmon runs, the near-extinction of the SR orca, or the general degradation of the marine environment of Puget Sound. Yet every project has the potential to incrementally increase the burden upon the species and the Sound. Human development will always have some impact on the surrounding environment.
“The Court fully recognizes the desirability and economic necessity of industrial progress in order for a community to flourish. However, under the National Environmental Policy Act and the Endangered Species Act, it is the federal agencies’ obligation to ensure that this progress does not cause irreversible harm to the environment.”
This amounts to changing the rules after the agreement was made. The presence of species in these water, which lack any salmon spawning streams, is only marginally relevant. Now it is to be made a crucial point.
This is bargaining in bad faith. Agreeing to something and then imposing new and more restrictive rules after the fact.