Tag Archives: U.S. Army Corps of Engineers

Hopes still rising for ecological benefits from a new Duckabush bridge

A major bridge-replacement project over Hood Canal’s Duckabush River is advancing toward a final design, and a growing number of people are thrilled with the ecological benefits expected from the estuary restoration. Construction could begin within four years.

Bridge over Duckabush River
Photo: Jayedgerton, Wikimedia Commons

The project, estimated to cost roughly $90 million, is being designed to improve the migration and survival of salmon and trout native to the Duckabush River, which flows out of the Olympic Mountains. Special attention is being given to Hood Canal summer chum, Puget Sound Chinook and Puget Sound steelhead — all listed as threatened species under the Endangered Species Act. The project also will aid coho salmon, a federal species of concern, and pink salmon.

Washington’s Salmon Recovery Funding Board last week approved $2.8 million toward design of the bridge and purchase of needed properties. The U.S. Army Corps of Engineers will take the lead in designing a renewed 38-acre estuary, including excavation to restore historic stream and tide channels. In all, $14 million has been approved for design, including $8 million authorized by Congress.

The funding supports completion of the preliminary design, which will be subject to public review, as well as final detailed drawings needed for construction, according to Mendy Harlow, executive director of the Hood Canal Salmon Enhancement Group, which applied for the state funding.

The new bridge, about 2,100 feet long, will replace two aging bridges totaling about 970 feet. Likely to be higher than the old bridges, the new one is expected to benefit wildlife, such as elk, in their approach to the estuary.

Major selling points among area residents are a decreased risk of flooding and an increased assurance of earthquake safety. Unlike the old bridges, the new bridge is likely to survive a major earthquake that would otherwise halt traffic on the most important thoroughfare on the Olympic Peninsula.

About 120 people attended a meeting on the project last July, Mendy told me. While a few expressed reservations about the cost, “a lot of people are really excited about the project.”

The restoration effort is gaining increasing support from state and federal agencies and Indian tribes who keep pushing it forward, said Theresa Mitchell, environmental planner for the Washington Department of Fish and Wildlife.

While the cost is significant and there are no guarantees of final approval, it appears that the project remains on track for both congressional and legislative appropriations in the coming years, she said.

The Duckabush restoration is 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. I wrote about these projects in Water Ways on on Dec. 17, 2016 and again on April 24 of this year.

While the Corps will pay 65 percent of the bridge removal and estuary restoration, the state must pick up the cost for the new bridge and related roadway costs. Transportation infrastructure is not covered by the Corps’ aquatic restoration program.

Design of the Duckabush bridge is the second-largest out of 96 salmon-improvement grants approved across the state by the Salmon Recovery Funding Board. The total expenditure by the board in this round will be $26 million. After last week’s approvals, the board, now in its 20th year, has surpassed $1 billion in total investments — including matching funds from grant recipients.

“The work being done across the state on salmon recovery is critical,” Gov. Jay Inslee said in a news release. “These grants for on-the-ground projects will help us restore salmon to healthy levels that allow for both protection and a robust fishery. We must do everything we can to restore this beloved Washington icon and help orcas, which are starving due to lack of salmon, before it is too late.”

“These grants,” added Phil Rockefeller, chairman of the SRF Board, “create many other benefits for local communities, such as better water quality, less flooding, more resiliency to climate change and a boost to our statewide economy.”

Other funding approved in the Hood Canal region includes a $289,000 grant for purchase of 30 acres of historic floodplain in Moon Valley along the Big Qulicene River and $191,000 for removing invasive knotweed and restoring native vegetation along the Union, Tahuya, Dewatto, Dosewallips, and Big and Little Quilcene rivers as well as Big Anderson and Big Beef creeks. Both projects are under management of the Hood Canal Salmon Enhancement Group.

Another project in Hood Canal involves the purchase of two acres of land on the Big Quilcene River followed by the removal of structures and the planting of native vegetation along the river. Jefferson County government will receive the $139,000 grant and oversee the project.

And in Mason County, Great Peninsula Conservancy will receive $511,000 to purchase about 100 acres of lowland forest and shoreline near Dewatto Bay on Hood Canal. The land includes about 0.6 mile of saltwater shoreline, 1.2 miles of streams and 8.45 acres of tidelands. The land includes habitat for salmon and surf smelt, as well as eelgrass beds, feeder bluffs, streams and forest. GPC will contribute $721,000 from a federal grant and donations of cash.

Among other major projects approved in the Puget Sound region:

  • Chico Creek: Kitsap County will receive $266,000 to improve habitat along Chico Creek following culvert removal and bridge construction on Golf Club Hill Road off Chico Way.
  • Cedar River: King County will receive $817,000 to reconnect portions of the 52-acre Riverbend floodplain along the Cedar River by removing a half-mile of levee, excavating 180,000 cubic yards of fill, rebuilding side channels and planting native vegetation. The county will add more than $1 million to the project from other grants.
  • Cedar River: Seattle Public Utilities will receive $424,000 to reconnect and enhance floodplain habitat by removing a berm, fill and riprap and adding large logs along the bank of the Cedar River in Maple Valley.
  • Skagit River: Skagit Land Trust will receive $748,000 to buy at least 62 acres of high-quality salmon habitat in the upper Skagit River near Marblemount. A portion of the funding will be used for evaluating other properties for potential purchase. The grant is actually the repayment of a loan issued from a new Rapid Response Fund, which was used to set up the purchase when the property became available. It is the first loan in the new program.
  • Skagit River: Skagit River System Cooperative will receive $750,000 for final design and construction of the long-awaited first phase of the Barnaby Slough restoration project, which includes removing man-made barriers to juvenile salmon and opening up nearly a mile of off-channel rearing habitat.
  • Skagit River: Skagit Fisheries Enhancement Group will receive $286,056 to reconnect Britt Slough with 7.8 acres of forested floodplain wetlands. The project will improve rearing habitat for Chinook salmon and create an exit from the wetland to the South Fork of the Skagit River. The enhancement group will contribute $125,000 from a federal grant, and the Skagit Conservation District will provide engineering support.
  • Stillaguamish River: The Stillaguamish Tribe was granted $159,000 to help purchase 248 acres of former wetlands at the mouth of the Stillaguamish River in Snohomish County. The land had been diked and drained for farming in the late 1800s. The tribe’s goal is to move the levees back to restore wetland habitat. The tribe will contribute $1.3 million in other state and federal grants to the purchase.
  • Nooksack River: The Nooksack Tribe will receive $579,000 to build 27 log structures to restore side-channel habitat in the North Fork of the Nooksack River near Maple Falls. Native trees and shrubs will be planted on the structures. The tribe will contribute $102,000 from a federal grant.
  • Deschutes River: South Puget Sound Salmon Enhancement Group will receive $595,000 to add root wads and logs along 0.3 mile of the Deschutes River in Thurston County. Vegetation will be planted along a side channel. The group will contribute $105,000 from another grant.
  • South Prairie Creek: Forterra will receive $393,000 to buy 34 acres along South Prairie Creek in Pierce County and design a restoration project. Forterra will contribute $568,000 from a conservation futures grant.

For the complete list of projects approved last week, visit the website of the Recreation and Conservation Office (PDF 472 kb).

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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.”

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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.

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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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