Tag Archives: U.S. Army Corps of Engineers

Duckabush restoration promises major benefits for five species of salmon

An ecosystem-restoration project that would replace two bridges across the Duckabush River and restore a 38-acre estuary on the west side of Hood Canal has moved into the design phase with funding from state and federal governments.

Bridge over the Duckabush River
Photo: Jayedgerton, Wikimedia Commons

The project, which would improve habitat for five species of salmon along with a variety of wildlife, is the subject of a design agreement between the Washington Department of Fish and Wildlife and the U.S. Army Corps of Engineers.

“Projects like this are key to improving the overall health of Hood Canal and Puget Sound,” WDFW Director Kelly Susewind said in a news release. “We have a variety of challenges in conserving our salmon populations, so creating more habitat for juvenile salmon to eat and grow before they journey into open waters is one of the most important things we can do.”

The Duckabush restoration was one of the top projects identified through the Puget Sound Nearshore Ecosystem Restoration Project, or PSNERP, a collaboration among WDFW, the Corps and other partners to determine where restoration dollars would best be spent.

Chinook salmon, the primary prey of the critically endangered Southern Resident orcas, are expected to benefit from improved spawning and rearing habitat in the Duckabush River and estuary. Duckabush chinook are part of the mid-Hood-Canal population, which is among the stocks that have dwindled to low levels, forcing unusual reductions in salmon fishing — not only in Puget Sound but out to the coast.

In addition to chinook, the restoration is expected to benefit chum (both summer and fall populations), pink and coho salmon, along with steelhead.

The Duckabush estuary was bisected years ago when fill material was laid down in the marshlands to form the base of Highway 101. The river was constrained into two small channels spanned by what are now aging bridges. A conceptual design for the restoration project calls for removing the fill along with the two bridges, both considered functionally obsolete, and building a modern 2,100-foot-long bridge to span the restored estuary.

The bridge will be elevated above the existing road level to maintain surrounding elevations. An added benefit to the elevated bridge is that an elk herd in the area will be able to cross the road under the bridge, avoiding hazardous conflicts with traffic that frequently occur now.

The project, including the roadwork and a long list of other changes to restore the estuary (see diagram below), could cost up to $90 million, with 65 percent paid by the federal government. Besides benefitting the ecosystem, the project is expected to improve transportation, decrease flooding and possibly upgrade water quality, according to Seth Ballhorn, nearshore communications manager for WDFW. Valuable shellfish beds in that area have been closed because of pollution, he noted.

Design of the project, including the new bridge, is expected to cost between $7 million and $10 million, with the state’s portion listed in the capital budget now working its way through the Legislature. Bridge design will be under the jurisdiction of the Washington State Department of Transportation.

“We see this as a multi-benefit project,” Ballhorn said. “We are getting more than habitat restoration, and we want the community to get involved and provide input on this effort.”

Public meetings about the project are expected to begin in early summer in Brinnon as part of the state’s environmental review. The design phase is expected to take two to three years.

“It’s great to initiate the design phase with WDFW on a project that will benefit Puget Sound’s chinook and orcas at such a critical time,” said Col. Mark Geraldi, Seattle District commander for the Corps of Engineers.

“In 2016, congress authorized three PSNERP projects that could ultimately restore 2,100 acres of critical habitat,” he said in the news release. “We’ve been working on this for a very long time, and getting to this point is a testament to the hard work and dedication by the federal and state agencies, tribes, academia, and other organizations who’ve been involved.”

The other two top-ranking projects that need further discussion before moving into design involve a 1,800-acre restoration of the Nooksack River estuary and a floodplain/wetland restoration in the North Fork of the Skagit River. See Water Ways, Dec. 17, 2016.

A conceptual map of the Duckabush River estuary project includes a long bridge spanning the estuary (white). Click twice to enlarge.
Graphic: Washington Department of Fish and Wildlife

Federal waters rule gets batted around endlessly in the courtrooms

Confusion is nothing new when it comes to figuring out whether federal agencies have jurisdiction over certain wetlands and intermittent streams under the Clean Water Act. And now the Trump administration has guaranteed that confusion will reign a while longer.

Meanwhile, lawsuits — also nothing new to the Clean Water Act, see how Babcock Partners can help here — continue to pile up at a rapid pace.

Some argue that the confusion begins with the 1972 Clean Water Act itself, which requires the U.S. Army Corps of Engineers to issue permits for any filling or dredging — which covers most development — within the “navigable waters” of the country.

Congress defined “navigable waters” in a way that has generated much confusion and many lawsuits through the years: “The term ‘navigable waters’ means the waters of the United States, including the territorial seas,” the law states.

Even the U.S. Supreme Court couldn’t figure it out and ended up adding to the confusion. In a 4-4-1 split ruling, half the justices focused on “navigable waters” with a narrow definition to include major waterways but avoid federal protection for many wetlands and intermittent streams. The other half of the justices supported a broader definition, which would protect downstream waters by also protecting upstream sources of water.

Writer Steve Zwick of Ecosystem Marketplace does a nice job explaining the legal and historical context for the confusion in a four-part series of articles. Zwick relies on, and gives credit to, the writings of William W. Sapp and William M. Lewis, Jr.

Under the previous administration of Barack Obama, the Army Corps of Engineers and the Environmental Protection Agency worked together to draft a new rule to more clearly define federal jurisdiction over streams and wetlands, as outlined by the broader Supreme Court opinion. It became known as the “Clean Water Rule” or “WOTUS” for Waters of the U.S.

Some potential opponents applauded the certainty of the proposed rule, even if they disagreed with some details. (See Water Ways, March 25, 2014.) But others believed that the states, not the federal government, should be in charge of protecting streams and wetlands. It became a common theme to argue that the new rule would regulate the tiniest ditches and farm ponds — something the Obama administration denied.

One of the opponents of the 2015 rule was Scott Pruitt, Oklahoma’s attorney general who ended up suing the Obama administration on behalf of his state. In all, 31 states joined various lawsuits against the rule, with separate lawsuits brought by farmers and industry.

Scott Pruitt, EPA administrator
Photo: EPA official portrait

“President Obama’s Environmental Protection Agency currently stands poised to strike the greatest blow to private property rights the modern era has seen,” Pruitt declared in an opinion piece co-authored by U.S. Sen. Rand Paul, a Republican from Kentucky. The piece was published in The Hill.

Pruitt, of course, is the man that President Trump later named to head the EPA, the same agency he was suing in multiple lawsuits. Pruitt said early on that he would not allow Obama’s WOTUS rule to go into effect.

Before it took effect, the WOTUS rule was tied up in the courts, including an injunction issued by the Sixth U.S. Circuit Court of Appeals in Cincinnati. Under the Clean Water Act, appeals courts can take primary action under certain conditions, but the U.S. Supreme Court agreed unanimously (PDF 923 kb) on Jan. 22 that the WOTUS rule is not one of these conditions.

And so the rule, originally scheduled to go into effect in August 2015, was put back into a confusing status, ready to go into effect in 37 states where it was not blocked by an injunction that covers 13 states under an order of the U.S. District Court in North Dakota.

“This is just all-out war. All-out litigation,” Vermont Law School professor Pat Parenteau was quoted as saying in an article by Ariel Wittenberg in E&E News. “This is good news for lawyers, but it is not going to be settled at all.”

Pruitt’s EPA then moved to finalize the Obama WOTUS rule on Jan. 31 but with an “applicability date” set for two years away. The announced intent was to overhaul the rule by pulling back federal jurisdiction over streams and wetlands.

“Today, EPA is taking action to reduce confusion and provide certainty to America’s farmers and ranchers,” Pruitt said in a news release. “The 2015 WOTUS rule developed by the Obama administration will not be applicable for the next two years, while we work through the process of providing long-term regulatory certainty across all 50 states about what waters are subject to federal regulation.”

In the interim, the EPA has announced that it will revert to previous policies and guidelines drafted following the confusing Supreme Court ruling.

You can guess what happened next. On Feb. 6, a total of 10 states, including Washington, plus Washington, D.C., filed a lawsuit in New York, claiming that Pruitt’s delaying tactics were illegal. The state officials, led by New York Attorney General Eric Schneiderman, argued that the federal government ignored the federal Administrative Procedures Act by adopting the revised rule without a meaningful comment period and in disregard of the Clean Water Act’s underlying intent of protecting the nation’s waters.

“The agencies have now suspended the Clean Water Rule without consideration of the extensive scientific record that supported it or the environmental and public health consequences of doing so,” the lawsuit (PDF 1.9 mb) says.

On the same day, the implementation delay was challenged in a separate lawsuit (2.6 mb) by two environmental groups, Natural Resources Defense Council and National Wildlife Federation.

“The Agencies’ only proffered rationale for the suspension is that it will promote regulatory clarity and certainty,” the lawsuit says. “In light of the administration’s open antipathy for the rule’s provisions, that rationale rings hollow. But it is also belied by the record. There is no evidence that suspending the rule will promote clarity or certainty, and ample evidence that suspending the Rule will create confusion and uncertainty.”

In Ariel Wittenberg’s story in E&E, Georgetown Law professor William Buzbee talks about how messy things have become.

“If the administration had taken the time to put out proposals that truly and fully engaged with the merits of the Clean Waters Rule and tried to come up with a new read, then it would be ordinary days in the courts,” he was quoted as saying. “But anything they do now, given their proposals, is likely to be legally vulnerable.”

Now the possibility exists that some courts could delay implementation of the original WOTUS rule while others reject the two-year delay. In any case, there is no end in sight to the legal battles, and nobody can be certain about what kind of projects will require federal permits.

New videos talk about protecting the ecosystem with tribal treaty rights

Northwest Indian Fisheries Commission this week released two new videos, including one that shows how tribes are using their treaty rights to protect the environment on behalf of all Northwest residents.

The video was released under the commission’s new communications banner, “Northwest Treaty Tribes: Protecting Natural Resources for Everyone.”

The video describes the Lummi Nation’s success in getting the U.S. Army Corps of Engineers to reject the Gateway Pacific Terminal at Cherry Point near Bellingham. If approved, the shipping terminal could have been the transfer point for up to 59 million tons of Montana coal each year. The coal would be transported by train to Cherry Point and onto ships bound for China and other Pacific Rim countries.

The Corps of Engineers halted the permitting process last May, saying the project was too big to be considered de minimis, and it would violate the tribe’s treaty rights to take fish in the usual and accustomed area. See news release.

The video does a nice job of explaining the tribe’s position and the ecological value of fish, including a Cherry Point herring population that has declined so severely that it can no longer support the food web as it once did. Also described well are the cultural values of the Cherry Point site and longtime fishing practices.

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