Army Corps of Engineers

Tag: Army Corps of Engineers

Repairs of bulkheads, docks and other structures now involve habitat assessment

In a major policy shift by federal authorities, waterfront maintenance and reconstruction projects are undergoing increased scrutiny — not only for their environmental impacts during and after construction but for effects that ripple through time.
The change, imposed by NOAA Fisheries to protect threatened and endangered species, requires compensation for environmental damage calculated over the life of a shoreline structure. So compensation comes into play even where a structure is merely replacing an old one. Previously, in most cases, the agency did not require environmental compensation for repair and replacement projects permitted by the Army Corps of Engineers — unless the projects were some type of expansion.

West Seattle’s complex shoreline exemplifies the need to find new ways to hold the line on declining habitat. // Photo: Aimee Kinney, Puget Sound Institute

This change in policy is welcomed by environmental and tribal leaders, who say ongoing reconstruction of bulkheads, docks and other shoreline structures perpetuates the well-documented habitat damage that starts when a structure is first built. Requiring compensation for maintenance and reconstruction is a way to hold the line in the face of ongoing development, they say.
“This is NOAA really standing up for the resource,” declared Fran Wilshusen, habitat services director for the Northwest Indian Fisheries Commission. “It has been a long time coming, but it is a very positive change.”
The environmental compensation, known as “offsets” by NOAA Fisheries, requires project proponents to fund habitat improvements nearby but separate from their projects, or else purchasing “credits” offered by Puget Sound Partnership or other organizations involved in habitat restoration.
Shoreline property owners, marina managers and contractors say the cost of paying for such compensation will discourage needed upgrades, many of which actually improve the environment — such as replacing creosote pilings and bulkheads with nontoxic materials.
“I’m afraid it is counterproductive if you really want people to do the right thing,” said Bob Wise, who has been waiting three years to obtain a permit to upgrade Port Hadlock Marina, near Port Townsend, with environmentally sound materials.
Adding a time element
A growing body of scientific research confirms the importance of the nearshore habitat to the survival of endangered species, including salmon and southern resident killer whales, said Jennifer Quan, branch chief for South Puget Sound in NOAA Fisheries’ West Coast Region.
Consequently, starting in 2017, regional experts at NOAA Fisheries determined that Corps permits for maintenance and reconstruction projects should no longer be allowed to bypass extensive review by way of “informal consultation” under the Endangered Species Act. Such a review requires a finding of “not likely to adversely affect” listed species — something that can no longer be justified, Quan said.
The move to “formal consultation” between the agencies requires a more rigorous investigation into the impacts of each project.
Time became a key element in the new analysis by NOAA Fisheries, which reasoned that structures all have a usable lifespan. If not rebuilt, then a structure eventually will be removed, one way or another. Work that extends the life of a structure thus creates an add-on environmental impact.
The concept of time is incorporated into a credit/debit system for estimating environmental impact. Note the condensed time scale. (Click to enlarge) // Graphic: NOAA Fisheries

To quantify environmental impacts into a common “currency,” NOAA Fisheries relied on studies such as the Habitat Equivalency Analysis, long used to estimate natural resource damages caused by oil spills and other destructive events. Subsequently, the agency developed a “debit/credit conservation calculator” to add up all the effects on shoreline habitat, good and bad, resulting from a specific project.
While rebuilding a dock would result in an environmental debit, the number would be less if built with a grated deck to allow light to penetrate to the water below, thus improving conditions for eelgrass and migrating salmon. The debit can be offset with credits for reducing the size of the structure or improving shoreline habitat elsewhere, either on-site or off-site. Credit also is given for removing the old structure before its useful life is over.
Alternatively, a project could purchase credits to erase the deficit under new programs being developed through cooperative agreements. One is with the Puget Sound Partnership, which is now selling credits and will use the money for environmental restoration. Other programs involve Hood Canal Coordinating Council for projects in Hood Canal along with Blue Heron Slough Conservation Bank for projects in an area that extends from the Snohomish River estuary.
Environmental advancement
As part of its review, NOAA Fisheries found that the overall impact of ongoing shoreline projects puts Chinook salmon in jeopardy of extinction — a so-called jeopardy finding. The result also reflects an increased risk to the survival of the endangered southern resident orcas, which rely largely on Chinook for food.
“This is huge,” said Wilshusen of the Northwest Indian Fisheries Commission. “This is the first time that we have had a jeopardy finding without a dead fish. We all know that degraded habitat is having a major effect on salmon. Now we have the science to back it up. We can’t have any more habitat loss. We really have to have some gain.
“The tribes were not involved in developing this new approach,” she added, “but we are very optimistic.”
A southern resident killer whale hunts a Chinook salmon. Photograph: NOAA Fisheries.
A southern resident killer whale hunts a Chinook salmon. // Photo: NOAA Fisheries

The extinction of Chinook salmon and killer whales is a real risk, Wilshusn said, not to mention the decline of a host of other species, all dependent on each other and the habitat where they live. Changing the present course is essential.
“Hopefully, we are coming to realize that we have run out of space to continue our lives as usual,” she continued. “We are moving into an awkward period of transition, as we go from a pollution-based economy to a life-giving economy.”
Tim Trohimovich, director of planning and law for Futurewise, an environmental organization, said he would not be surprised if the concept of adding a time element in measuring environmental impact is picked up in permitting by Washington state and by other federal offices across the country.
“One reason for doing this is the dire straits that the southern residents are in,” he said. “Other species are in deep trouble throughout the United States, and I think we are going to see more of this approach at the federal, state and local levels.”
Programmatic approach and new review
After NOAA Fisheries decided that it was legally obligated to conduct more thorough reviews of shoreline projects — including maintenance and reconstruction — the agency was confronted with a much heavier workload with limited staff.
A biological opinion groups together 39 proposed nearshore projects planned for the locations shown here. // Map: NOAA Fisheries

To smooth the approval process for new applications, officials began working on a “programmatic consultation” to be used in quantifying the impacts from all sorts of projects. Debits and credits would be based on project location and design parameters, such as length of bulkhead, number of pilings and so on. A written document spelling out “reasonable and prudent” methods of avoiding the critical jeopardy finding would require buy-in from the Army Corps of Engineers, which issues the permits under Section 404 of the Clean Water Act.
So far, officials with NOAA Fisheries and the Corps of Engineers have not come to agreement on the so-called Salish Sea Nearshore Programmatic. Letters between NOAA and the Corps reflect numerous concerns about technical issues as well as questions about measuring environmental impacts — such as how one determines the useful life of an existing structure. Negotiations continue between the two agencies.
As permit applications piled up, NOAA Fisheries grouped together 39 nearshore projects in Puget Sound for which the Army Corps of Engineers had requested consultation since May of 2018. The variety of projects ranged from commercial marinas to dredging projects, with about a third being repair or replacement of shoreline bulkheads. The resulting biological opinion (PDF 7 mb), released in November, includes an overall environmental analysis along with design details for each of the 39 projects.
After working with project proponents to reduce environmental impacts, the document shows final debits and credits, with a net “offset” needed to ensure no net loss of habitat function. It turns out that 12 of the projects provided enough environmental benefits so that no further action is needed. The other 27 projects have debits ranging from -2.1 for a small moorage project to -2,043 for an extensive bulkhead/breakwater replacement. The 27 projects have a combined deficit of -8,158.
To eliminate the deficit for an individual project, proponents may revise their plans to reduce the deficit or propose on-site or off-site habitat-restoration projects to gain the needed credits. Another option is to purchase credits outright from an approved organization that would use the money to conduct environmental restoration equivalent to the damage quantified by the debit/credit calculator.
Purchasing credits
Puget Sound Partnership, the state agency responsible for coordinating ecosystem recovery in Puget Sound, has launched a pilot project for selling conservation credits. Approved by NOAA Fisheries, the “Partnership Nearshore Credits Program” will initially conduct its restoration work by removing creosote pilings, which emit toxic chemicals that degrade water quality and damage nearby habitat. The work will be conducted in cooperation with an existing creosote-removal program being run by the Washington Department of Natural Resources.
The cost of each credit currently stands at $800, according to Ahren Stroming, special projects assistant at the Puget Sound Partnership. The cost of the credits will be re-evaluated each year, he noted.
As the program moves forward, moneys received could be directed to other restoration projects, possibly even large projects currently funded through state and federal grant programs. The state’s Recreation and Conservation Office will manage the fiscal aspects of the new credits program for Puget Sound Partnership.
Other organizations also are working to set up programs to sell credits that align with the NOAA’s debit/credit calculator. One is Hood Canal Coordinating Council, which already sells mitigation credits under a multi-agency in-lieu-fee mitigation program, which has been used by the Navy to offset environmental damage from construction work at the Bangor submarine base. Another is Blue Heron Slough Conservation Bank, which conducts restoration work in the vicinity of the Snohomish River Estuary near Everett.
Project delays and increased cost
In 2017, Bob Wise was faced with an aging Eagle Harbor Marina on Bainbridge Island. It was time for an upgrade, he said, and he went to work on a total rebuild to improve conditions for tenants while better protecting the marine habitat. Steel pilings replaced creosote, grated decks replaced solid wood, and new floats replaced Styrofoam that was chipping away.
Wise says he had no trouble obtaining an Army Corps of Engineers permit for the project, and the environmental upgrade has been widely heralded. The work complements the certification of Eagle Harbor Marina as a “clean marina” under the Clean Marina Washington program.
A year later, Wise applied for another permit to do the same thing at Port Hadlock Marina, which he also owns with his wife Lisa. “We’re going to put literally the best marina in the Puget Sound in Port Hadlock,” Wise proudly told The Leader newspaper in Port Townsend.
This time, he confronted a federal roadblock, as NOAA Fisheries had shifted from informal to formal consultations for maintenance and replacement projects in the face of growing concerns about the recovery of salmon, orcas and other marine species in Puget Sound.
Port Hadlock Marina // Photo: Washington Department of Ecology

According to Wise, NOAA officials told him they would soon have a new programmatic consultation process that would calculate how much environmental compensation he would need to provide to get his project underway.
“That was three years ago,” he said. “I have been sitting here, saying there are things at this marina that are harming the environment, and I want to take them out.”
The delay has been infuriating for dozens of project proponents waiting to obtain permits for all sorts of projects.
Logan Brown, president of the company Marine Floats in Tacoma, says he is contracting with eight or nine of the 39 project proponents in the group of applications now being batch-processed. Waiting for the projects to get reviewed is one thing, he said. Now it is a matter of trying to make sense of the result.
“The fault is in the logic that if they do not permit a replacement, then (the structure) will just disappear at some point,” he said. “In fact, the impact is increased. As these structures get older, they deteriorate faster, and the materials break down and spread, causing greater environmental impact.”
Brown said the science behind the change has never been adequately explained to those affected by the outcome, and none of the findings have been subject to public review, despite potentially millions of dollars on the line.
“They are trying to roll this out on the fly with practically no oversight or meaningful input from the industry,” he said. “Nobody wants to come down on the wrong side of environmental protection, but our position is that this regulation is not only stopping upkeep but it may be creating safety concerns at some marinas. Because of this approach, some environmental improvements are not taking place.”
The increased cost and complication of permitting may cause less responsible owners to keep patching up their facilities without doing the environmentally responsible upgrades, observers say. Some worry that the program will lead to work being done without required permits.
Assuming that he can obtain the needed credits at $800 apiece, Wise says the new permit will cost him $120,000 more than he expected while planning his upgrade.
“That’s not a trivial amount of money,” he said. “We’re just a family-owned business. I don’t know how this will fit into my model.”
Financing the project is a major issue, he said, and banks loan money on tangible assets, not on credits derived from a conservation calculator.
“I thought we were all ready to go,” he said, “but now we will have to think about it.”
With concerns running high for salmon and orcas, nobody disputes the need for environmental restoration. Yet to be seen, however, is whether the new permitting approach to maintenance and repair can overcome potential legal hurdles and become a smoothly running operation.
——-
Public information
NOAA Fisheries will hold online public workshops on Jan. 26 and Jan. 28 to explain the conservation calculator that the agency developed to assess the value of nearshore habitat. Both workshops will run from 9 to 11 a.m. Details will be posted on the webpage Puget Sound Nearshore Habitat Conservation Calculator.

Repairs of bulkheads, docks and other structures now involve habitat assessment

In a major policy shift by federal authorities, waterfront maintenance and reconstruction projects are undergoing increased scrutiny — not only for their environmental impacts during and after construction but for effects that ripple through time.
The change, imposed by NOAA Fisheries to protect threatened and endangered species, requires compensation for environmental damage calculated over the life of a shoreline structure. So compensation comes into play even where a structure is merely replacing an old one. Previously, in most cases, the agency did not require environmental compensation for repair and replacement projects permitted by the Army Corps of Engineers — unless the projects were some type of expansion.

West Seattle’s complex shoreline exemplifies the need to find new ways to hold the line on declining habitat. // Photo: Aimee Kinney, Puget Sound Institute

This change in policy is welcomed by environmental and tribal leaders, who say ongoing reconstruction of bulkheads, docks and other shoreline structures perpetuates the well-documented habitat damage that starts when a structure is first built. Requiring compensation for maintenance and reconstruction is a way to hold the line in the face of ongoing development, they say.
“This is NOAA really standing up for the resource,” declared Fran Wilshusen, habitat services director for the Northwest Indian Fisheries Commission. “It has been a long time coming, but it is a very positive change.”
The environmental compensation, known as “offsets” by NOAA Fisheries, requires project proponents to fund habitat improvements nearby but separate from their projects, or else purchasing “credits” offered by Puget Sound Partnership or other organizations involved in habitat restoration.
Shoreline property owners, marina managers and contractors say the cost of paying for such compensation will discourage needed upgrades, many of which actually improve the environment — such as replacing creosote pilings and bulkheads with nontoxic materials.
“I’m afraid it is counterproductive if you really want people to do the right thing,” said Bob Wise, who has been waiting three years to obtain a permit to upgrade Port Hadlock Marina, near Port Townsend, with environmentally sound materials.
Adding a time element
A growing body of scientific research confirms the importance of the nearshore habitat to the survival of endangered species, including salmon and southern resident killer whales, said Jennifer Quan, branch chief for South Puget Sound in NOAA Fisheries’ West Coast Region.
Consequently, starting in 2017, regional experts at NOAA Fisheries determined that Corps permits for maintenance and reconstruction projects should no longer be allowed to bypass extensive review by way of “informal consultation” under the Endangered Species Act. Such a review requires a finding of “not likely to adversely affect” listed species — something that can no longer be justified, Quan said.
The move to “formal consultation” between the agencies requires a more rigorous investigation into the impacts of each project.
Time became a key element in the new analysis by NOAA Fisheries, which reasoned that structures all have a usable lifespan. If not rebuilt, then a structure eventually will be removed, one way or another. Work that extends the life of a structure thus creates an add-on environmental impact.
The concept of time is incorporated into a credit/debit system for estimating environmental impact. Note the condensed time scale. (Click to enlarge) // Graphic: NOAA Fisheries

To quantify environmental impacts into a common “currency,” NOAA Fisheries relied on studies such as the Habitat Equivalency Analysis, long used to estimate natural resource damages caused by oil spills and other destructive events. Subsequently, the agency developed a “debit/credit conservation calculator” to add up all the effects on shoreline habitat, good and bad, resulting from a specific project.
While rebuilding a dock would result in an environmental debit, the number would be less if built with a grated deck to allow light to penetrate to the water below, thus improving conditions for eelgrass and migrating salmon. The debit can be offset with credits for reducing the size of the structure or improving shoreline habitat elsewhere, either on-site or off-site. Credit also is given for removing the old structure before its useful life is over.
Alternatively, a project could purchase credits to erase the deficit under new programs being developed through cooperative agreements. One is with the Puget Sound Partnership, which is now selling credits and will use the money for environmental restoration. Other programs involve Hood Canal Coordinating Council for projects in Hood Canal along with Blue Heron Slough Conservation Bank for projects in an area that extends from the Snohomish River estuary.
Environmental advancement
As part of its review, NOAA Fisheries found that the overall impact of ongoing shoreline projects puts Chinook salmon in jeopardy of extinction — a so-called jeopardy finding. The result also reflects an increased risk to the survival of the endangered southern resident orcas, which rely largely on Chinook for food.
“This is huge,” said Wilshusen of the Northwest Indian Fisheries Commission. “This is the first time that we have had a jeopardy finding without a dead fish. We all know that degraded habitat is having a major effect on salmon. Now we have the science to back it up. We can’t have any more habitat loss. We really have to have some gain.
“The tribes were not involved in developing this new approach,” she added, “but we are very optimistic.”
A southern resident killer whale hunts a Chinook salmon. Photograph: NOAA Fisheries.
A southern resident killer whale hunts a Chinook salmon. // Photo: NOAA Fisheries

The extinction of Chinook salmon and killer whales is a real risk, Wilshusn said, not to mention the decline of a host of other species, all dependent on each other and the habitat where they live. Changing the present course is essential.
“Hopefully, we are coming to realize that we have run out of space to continue our lives as usual,” she continued. “We are moving into an awkward period of transition, as we go from a pollution-based economy to a life-giving economy.”
Tim Trohimovich, director of planning and law for Futurewise, an environmental organization, said he would not be surprised if the concept of adding a time element in measuring environmental impact is picked up in permitting by Washington state and by other federal offices across the country.
“One reason for doing this is the dire straits that the southern residents are in,” he said. “Other species are in deep trouble throughout the United States, and I think we are going to see more of this approach at the federal, state and local levels.”
Programmatic approach and new review
After NOAA Fisheries decided that it was legally obligated to conduct more thorough reviews of shoreline projects — including maintenance and reconstruction — the agency was confronted with a much heavier workload with limited staff.
A biological opinion groups together 39 proposed nearshore projects planned for the locations shown here. // Map: NOAA Fisheries

To smooth the approval process for new applications, officials began working on a “programmatic consultation” to be used in quantifying the impacts from all sorts of projects. Debits and credits would be based on project location and design parameters, such as length of bulkhead, number of pilings and so on. A written document spelling out “reasonable and prudent” methods of avoiding the critical jeopardy finding would require buy-in from the Army Corps of Engineers, which issues the permits under Section 404 of the Clean Water Act.
So far, officials with NOAA Fisheries and the Corps of Engineers have not come to agreement on the so-called Salish Sea Nearshore Programmatic. Letters between NOAA and the Corps reflect numerous concerns about technical issues as well as questions about measuring environmental impacts — such as how one determines the useful life of an existing structure. Negotiations continue between the two agencies.
As permit applications piled up, NOAA Fisheries grouped together 39 nearshore projects in Puget Sound for which the Army Corps of Engineers had requested consultation since May of 2018. The variety of projects ranged from commercial marinas to dredging projects, with about a third being repair or replacement of shoreline bulkheads. The resulting biological opinion (PDF 7 mb), released in November, includes an overall environmental analysis along with design details for each of the 39 projects.
After working with project proponents to reduce environmental impacts, the document shows final debits and credits, with a net “offset” needed to ensure no net loss of habitat function. It turns out that 12 of the projects provided enough environmental benefits so that no further action is needed. The other 27 projects have debits ranging from -2.1 for a small moorage project to -2,043 for an extensive bulkhead/breakwater replacement. The 27 projects have a combined deficit of -8,158.
To eliminate the deficit for an individual project, proponents may revise their plans to reduce the deficit or propose on-site or off-site habitat-restoration projects to gain the needed credits. Another option is to purchase credits outright from an approved organization that would use the money to conduct environmental restoration equivalent to the damage quantified by the debit/credit calculator.
Purchasing credits
Puget Sound Partnership, the state agency responsible for coordinating ecosystem recovery in Puget Sound, has launched a pilot project for selling conservation credits. Approved by NOAA Fisheries, the “Partnership Nearshore Credits Program” will initially conduct its restoration work by removing creosote pilings, which emit toxic chemicals that degrade water quality and damage nearby habitat. The work will be conducted in cooperation with an existing creosote-removal program being run by the Washington Department of Natural Resources.
The cost of each credit currently stands at $800, according to Ahren Stroming, special projects assistant at the Puget Sound Partnership. The cost of the credits will be re-evaluated each year, he noted.
As the program moves forward, moneys received could be directed to other restoration projects, possibly even large projects currently funded through state and federal grant programs. The state’s Recreation and Conservation Office will manage the fiscal aspects of the new credits program for Puget Sound Partnership.
Other organizations also are working to set up programs to sell credits that align with the NOAA’s debit/credit calculator. One is Hood Canal Coordinating Council, which already sells mitigation credits under a multi-agency in-lieu-fee mitigation program, which has been used by the Navy to offset environmental damage from construction work at the Bangor submarine base. Another is Blue Heron Slough Conservation Bank, which conducts restoration work in the vicinity of the Snohomish River Estuary near Everett.
Project delays and increased cost
In 2017, Bob Wise was faced with an aging Eagle Harbor Marina on Bainbridge Island. It was time for an upgrade, he said, and he went to work on a total rebuild to improve conditions for tenants while better protecting the marine habitat. Steel pilings replaced creosote, grated decks replaced solid wood, and new floats replaced Styrofoam that was chipping away.
Wise says he had no trouble obtaining an Army Corps of Engineers permit for the project, and the environmental upgrade has been widely heralded. The work complements the certification of Eagle Harbor Marina as a “clean marina” under the Clean Marina Washington program.
A year later, Wise applied for another permit to do the same thing at Port Hadlock Marina, which he also owns with his wife Lisa. “We’re going to put literally the best marina in the Puget Sound in Port Hadlock,” Wise proudly told The Leader newspaper in Port Townsend.
This time, he confronted a federal roadblock, as NOAA Fisheries had shifted from informal to formal consultations for maintenance and replacement projects in the face of growing concerns about the recovery of salmon, orcas and other marine species in Puget Sound.
Port Hadlock Marina // Photo: Washington Department of Ecology

According to Wise, NOAA officials told him they would soon have a new programmatic consultation process that would calculate how much environmental compensation he would need to provide to get his project underway.
“That was three years ago,” he said. “I have been sitting here, saying there are things at this marina that are harming the environment, and I want to take them out.”
The delay has been infuriating for dozens of project proponents waiting to obtain permits for all sorts of projects.
Logan Brown, president of the company Marine Floats in Tacoma, says he is contracting with eight or nine of the 39 project proponents in the group of applications now being batch-processed. Waiting for the projects to get reviewed is one thing, he said. Now it is a matter of trying to make sense of the result.
“The fault is in the logic that if they do not permit a replacement, then (the structure) will just disappear at some point,” he said. “In fact, the impact is increased. As these structures get older, they deteriorate faster, and the materials break down and spread, causing greater environmental impact.”
Brown said the science behind the change has never been adequately explained to those affected by the outcome, and none of the findings have been subject to public review, despite potentially millions of dollars on the line.
“They are trying to roll this out on the fly with practically no oversight or meaningful input from the industry,” he said. “Nobody wants to come down on the wrong side of environmental protection, but our position is that this regulation is not only stopping upkeep but it may be creating safety concerns at some marinas. Because of this approach, some environmental improvements are not taking place.”
The increased cost and complication of permitting may cause less responsible owners to keep patching up their facilities without doing the environmentally responsible upgrades, observers say. Some worry that the program will lead to work being done without required permits.
Assuming that he can obtain the needed credits at $800 apiece, Wise says the new permit will cost him $120,000 more than he expected while planning his upgrade.
“That’s not a trivial amount of money,” he said. “We’re just a family-owned business. I don’t know how this will fit into my model.”
Financing the project is a major issue, he said, and banks loan money on tangible assets, not on credits derived from a conservation calculator.
“I thought we were all ready to go,” he said, “but now we will have to think about it.”
With concerns running high for salmon and orcas, nobody disputes the need for environmental restoration. Yet to be seen, however, is whether the new permitting approach to maintenance and repair can overcome potential legal hurdles and become a smoothly running operation.
——-
Public information
NOAA Fisheries will hold online public workshops on Jan. 26 and Jan. 28 to explain the conservation calculator that the agency developed to assess the value of nearshore habitat. Both workshops will run from 9 to 11 a.m. Details will be posted on the webpage Puget Sound Nearshore Habitat Conservation Calculator.

Hotly debated national permit for shellfish farms could be passed to Biden administration

Legal protections for marine shorelines, streams and wetlands could be revised just before President Trump leaves office, as the Army Corps of Engineers updates 52 “nationwide permits” that allow for a variety of water-related projects.
Of particular interest in Washington state is a nationwide permit proposed for shellfish farms that would, purportedly, help to resolve an ongoing court battle over the effects of aquaculture on the shoreline environment. In June, U.S. District Judge Robert Lasnik invalidated permits for an estimated 900 shellfish farms, saying the environmental impacts had not been adequately studied.
Legal challenge
Nationwide permits, issued by the Army Corps of Engineers under the federal Clean Water Act and/or Rivers and Harbors Act, spell out general conditions that allow various types of construction and aquaculture to move forward quickly with minimal review. Under the law, further conditions may be imposed by state agencies, such as the Washington Department of Ecology.
A lawsuit, brought by two environmental groups, challenged the existing nationwide aquaculture permit, which allows for a wide variety of shellfish operations under one set of general requirements. The groups — Coalition to Protect Puget Sound Habitat along with Center for Food Safety — insist that stricter and more site-specific requirements are needed, especially for what they consider intensive aquaculture techniques.

A geoduck farm on Totten Inlet, 2008 // Photo: Coalition to Protect Puget Sound Habitat

As an example, they point to geoduck farms, which use plastic tubes embedded in the beach to protect geoduck clams as they grow. During harvest, high-pressure jets of water are employed to remove the giant clams from the beach. Because such activities can disrupt shoreline habitat, shellfish growers should be required to describe the potential damage by writing individual applications for specific sites, the plaintiffs argue.
Meanwhile, small low-key shellfish farmers in Washington state are caught up in these permitting issues, even as they struggle to find new markets during the COVID-19 pandemic, which has resulted in massive closures of restaurants across the country.
“It’s the worst possible time for any of this,” said Margaret Pilaro, executive director of Pacific Coast Shellfish Growers Association. “Some growers don’t even know if they will still be around, and this comes on top of the normal challenges of farming.”
Warming waters, ocean acidification, harmful algal blooms and unexpected diseases are making shellfish farming increasingly difficult, she said.
Judge’s findings
In his October 2019 ruling, Judge Lasnik concluded that the Corps had failed to show that individual shellfish farms would have “no more than minimal adverse effects” on the environment, as required for a nationwide permit. He also concluded that the agency failed to undertake a review of the full “cumulative effects” that could result from the nationwide permit, as required by law.
“In this case, the Corps acknowledged that re-issuance of (the nationwide permit) would have foreseeable environmental impacts on the biotic and abiotic components of coastal waters; the intertidal and subtidal habitats of fish, eelgrass and birds; the marine substrate; the balance between native and non-native species; pollution and water quality; chemistry and structure; but failed to describe, much less quantify, these consequences,” Lasnik wrote.
In a June follow-up order, the judge declared the nationwide permit invalid but recognized the hardship of shutting down all shellfish operations in Washington state. He allowed shellfish growers to continue managing and harvesting existing shellfish beds, provided they apply for an individual permit in place of the nationwide permit by Dec. 11. In his order, he also gave growers until Dec. 11 to plant new shellfish.
The defendant in the case, the Army Corps of Engineers, along with interveners Pacific Coast Shellfish Growers Association and Taylor Shellfish Company appealed the matter to the Ninth Circuit Court of Appeals, where a full review is pending.
Meanwhile, the Corps has moved forward with its new set of 52 nationwide permits, covering not only shellfish farming (Nationwide Permit 48) but many other activities — from navigation buoys to pipelines to residential development. Some of the permits remain unchanged since their last update in 2017.
Andrew Muñoz, chief of public affairs for the Corps’ Seattle District, said he expects the nationwide permits to be issued “early next year.” Meanwhile, regional conditions for Washington state have been proposed by the Corps of Engineers as well as the Washington Department of Ecology (PDF 2.6 mb).
Answering with new permit
With respect to shellfish farming, the revised national permit and supporting documentation (PDF 1.1 mb) responds to the court order with a general discussion of the positive and negative effects of various growing techniques and equipment. Nationwide, the Corps estimates that 1,680 shellfish activities would be approved under the five-year permit, affecting 40,080 acres. None of the projects would trigger mitigation measures, according to Corps documents, because environmental damage would be “no more than minimal.”
In response, a letter from plaintiff Center for Food Safety says the proposed permit fails to provide necessary assurance about the level of environmental damage caused by various shellfish operations.
“The U.S. Army Corps of Engineers should not adopt NWP 48 for commercial shellfish aquaculture activities, as written, for the same reasons NWP 48 was found unlawful by the federal district court,” the letter states.
The proposed permit was clearly a “rush job,” says Amy van Saun, attorney for Center for Food Safety, and it fails to meet the basic standards of a nationwide permit. Since the current permit does not expire until 2022, there really is no need to push it through now, she said. In fact, the new nationwide permit was predicated upon an executive order — “Promoting American Seafood Competitiveness” — that may well be rescinded when Joe Biden becomes president, she added.
If anything, van Saun said, the proposed nationwide permit is even more objectionable that the existing one adopted in 2017, because it removes a one-half-acre limit for impacts to aquatic vegetation. In Washington state, those impacts may be remedied through regional conditions, but the proposed change has triggered objections from across the country where some coastal states have minimal environmental rules.
Van Saun said a nationwide permit with general requirements may be appropriate for some low-key shellfish farms, but not for more intensive operations, especially geoduck aquaculture . A critical question, so far unanswered by the Corps, is how much disturbance can occur before a shoreline ecosystem is pushed beyond its limits, she said.
Another growing concern is the effect of shellfish operations on spawning habitat for so-called forage fish, considered critical to salmon and other important species, said Laura Hendricks, executive director of the Coalition to Protect Puget Sound Habitat. Two key species, surf smelt and sand lance, spawn in the intertidal area where shellfish grow and where activities can affect their populations, she said.
“The overuse of NWP 48 to cover new and expanding operations has allowed for expansion of intense shellfish aquaculture operations into previously undisturbed areas of Puget Sound,” states the plaintiffs’ letter addressing the proposed permit.
Shellfish growers’ perspective
The Office of Advocacy within the federal Small Business Administration wrote a letter saying that small shellfish growers are generally supportive of the nationwide permit, although numerous changes need to be made.
“Advocacy spoke with small aquaculture farmers and their representatives in the Pacific Northwest, coastal regions throughout the Atlantic, and the Gulf of Mexico,” said the letter signed by the agency’s legal staff. “These small businesses are concerned that the Army Corps has once again not provided enough of an environmental analysis to overcome deficiencies raised in the litigation concerning the previous issuance of NWP 48.
“Businesses in Washington state are particularly concerned that the Army Corps be diligent in presenting sound environmental analysis and justification for NWP 48 so that they are not once again subject to an unfavorable outcome in litigation…” the letter states.
One concern of the growers is the possible interpretation that shellfish “seed” placed on the bottom could be considered a discharge of fill, thus triggering a full-scale individual permit, according to the letter. Another concern is that some harvest activities that “merely rake the bottom” could be considered a discharge of dredged material, triggering a full permit.
Pacific Coast Shellfish Growers Association and East Coast Shellfish Growers Association issued a joint letter containing 15 pages of suggestions and nine pages of scientific references to support the contention that “adverse effects related to shellfish culture are both minor and temporary.”
“Equally important” the letter says, “are the benefits of shellfish culture such as … improved water quality and sequestration of carbon and nutrients; creation of habitat via culturing equipment and materials; pseudofeces (mucus with particulate matter) as a nutrient enhancement that supports invertebrates, macroalgae and seagrasses; and benefits to animal and plant life of minor benthic disturbance that expose infauna to predation and increase the depth of oxygenated sediments.”
To comply with the Endangered Species Act, the Army Corps of Engineers has developed stringent standards for shellfish operations in consultation with the National Marine Fisheries Service and U.S. Fish and Wildlife Service. These standards (PDF 7.2 mb), outlined in a 180-page report, are attached as requirements to each permit verification under which shellfish farmers currently operate, said Pilaro of PCSGA.
In fact, PCSGA suggested in a recent letter to the Seattle District of the Corps that the ESA conditions be incorporated as regional conditions. That would add assurance that shellfish operations would have no more than a minimal effect on the environment, she said.
Moving forward?
Meanwhile, as shellfish growers wait for a new nationwide permit or further action by the courts, they have been required to apply for individual permits if they wish to keep operating. So far, roughly half of the previous 900 approvals have been converted to individual applications, according to Corps estimates. That does not account for two or more permits being combined together, nor does it include new permits.
The uncertainty and complications of the new permits have many shellfish farmers wondering what to do, as they struggle to deal with an unsettled market for their product. Typically, 85-90 percent of shellfish are purchased by restaurants or food-service programs, Pilaro said.
With most restaurants closed, the industry is trying to find ways to convince consumers to prepare oysters and clams in meals at home. Still, some farmers are growing tired of the adversity and have decided to get out of the shellfish business.
“You are talking about fourth- and fifth-generation growers who are thinking about closing down,” Pilaro said. “Most growers employ less than 10 people. They are applying for grants and loans to keep their businesses alive. But they are not really able to stop their lives and focus on this (permitting problem).”
The best advice, she said, may be for growers to apply for whatever permits are needed to keep the shellfish farms viable. That way if a grower decides to sell, his business would be able to keep going under new ownership.
As a result of the lawsuit over the nationwide permit, the Army Corps of Engineers has begun processing individual permits for each shellfish farm.
“This is a significant workload increase for the (Seattle) District,” which “received additional funds to address aquaculture permit workload,” according to documents from the Corps,
The Seattle District has been issuing “letters of permission” when a project does not involve placement of dredge or fill material into a waterway. Shellfish operators who regrade a beach or dump quantities of shell or gravel on the bottom to improve growing conditions may trigger a full-blown permit under Section 404 of the Clean Water Act, officials say.
State maintains authority
Washington Department of Ecology also reviews the individual applications and may impose additional conditions, especially when needed to protect sensitive areas such as eelgrass beds and forage fish habitat.
“We emphasize the need to avoid impacts to these sensitive areas through the use of buffer requirements and/or prohibitions against working in these habitat areas in the first place,” according to a statement from Ecology spokesman Curt Hart. “In addition, we received emergency permission to hire five positions to process … water quality certifications for shellfish farmers.”
Ecology is also struggling with new rules under the Clean Water Act which have reduced federal authority to regulate streams and wetlands by redefining “waters of the United States,” causing state officials to pick up the load. See “Our Water Ways,” June 24, 2020. New rules also reduced the time that states were given to review water-related projects. Both rule changes are being challenged in federal court by Washington and numerous other states. Check out Ecology’s brochure on the subject.
As for the proposed nationwide permit, Ecology Director Laura Watson responded in a letter to the Corps of Engineers, expressing “deep concern” that changes in the 2020 nationwide permit could “hamper our ability to fully exercise our authorities,” potentially reducing protections for streams and shorelines. The agency also provided details on how it would handle various permits under authorities granted by Section 401 (PDF 287 kb) of the Clean Water Act — assuming the permit were approved without changes.
In the end, the Seattle District of the Corps is under no obligation to adopt the nationwide permit. District officials could decide to stay with individual permits or else develop one or more general permits at the regional level.
Biden has hand to play
The fate of the national permit also depends on court rulings as well as decisions by the incoming administration of Joe Biden, now president-elect. The proposed national permit is listed among 21 major environmental regulations that have been proposed but not finalized, according to the environmental law firm Arnold & Porter. If not completed, the proposals could remain in “rule-making limbo,” according to the six attorneys who wrote the article for their website.
“The stakes are high, as a new administration can simply allow proposed rules, which are not yet finalized, to wither and die on the vine,” they said.
Their article also lists 25 regulations that have been finalized but are being challenged in court and moving through various stages of review. “In any event,” the attorneys note, “once the Biden-Harris Administration assumes office, it will have its hands full in sorting through many dozens of final rules in various stages of litigation across the government, deciding which cases they want to hold in abeyance and which cases they prefer to see play out…”

State officials scramble to protect streams and wetlands in wake of federal rule

Federal protections for millions of small streams and wetlands across the country were eliminated on Monday, following an unsuccessful legal effort to block new regulations that redefine “waters of the United States.”
Officials with the Washington Department of Ecology are scrambling to make sure that nobody proceeds to fill wetlands or damage waterways, now protected solely by state law. A major concern is the potential need for many more staffers to write permits and enforce state water-quality laws, according to Curt Hart, spokesman for Ecology.
“We’re still in the process of determining what we’re going to do,” Hart said. “We still have obligations to protect these waters, which are considered waters of the state.”
Developers may be forced to wait even longer to obtain approvals for construction projects previously issued by U.S. Army Corps of Engineers or Environmental Protection Agency, Hart said. It isn’t clear how the Corps or EPA will respond to the new rules in actual practice.
Long history of legal battles
The revised regulations, which come under the federal Clean Water Act, were written by Trump administration officials who wanted to reduce federal jurisdiction over streams and wetlands and clarify existing rules. The new rules supplant regulations approved in 2015 during the previous Obama administration. Those 2015 rules allowed for federal jurisdiction over smaller streams and wetlands, provided they were connected to larger waterways.
The issue of federal jurisdiction over wetlands and waterways has been a hard-fought legal conflict over the past 35 years, including three cases heard by the U.S. Supreme Court. None of the rulings has resolved the issue of federal jurisdiction, because of ambiguities found in the underlying Clean Water Act.

Red-legged frog // Photo: Washington Dept. of Ecology

In fact, during the latest legal skirmish, a U.S. district judge in California refused to issue an injunction to keep the rule from going into effect nationwide — but a judge in Colorado granted a similar injunction that blocked the rule for Colorado alone.
In the first case, 17 states were among the plaintiffs bringing the lawsuit, while 23 other states were allowed to intervene in support of the new Trump rule.
“Were the court tasked with the question of whether the new rule represents wise environmental policy or the best approach to protecting water resources that could be supported by scientific data, the result might be different,” stated Judge Richard Seeborg in his ruling (PDF 258 kb). “The court’s narrow role, however, is only to evaluate whether the rule has been adopted in compliance with the requirements of the Administrative Procedure Act…
“Had Congress chosen to speak more clearly about how broadly CWA jurisdiction was to extend, or if the CWA did not contemplate the balancing of interests in pursuit of its ultimate goals, it might be possible to characterize the 2020 rule as an ‘unreasonable’ interpretation,’” the judge continued.
But major policy changes are permitted from one administration to the next, the judge noted. “The requirement is only that agencies must explain the basis for their change, and defendants have adequately done so here.”
Effects in Washington state

Laura Watson, director of the Department of Ecology, said the federal retreat from its long-held jurisdiction is leading to confusion and uncertainty within her agency, and it will no doubt affect developers who must obtain permits for activities around streams and wetlands.
“This is another tragic abdication of federal responsibility to protect the environment,” Watson said in an April news release. “It also puts roadblocks in the way of economic progress. While Washington law continues to provide protections for these streams and wetlands, the federal rollback leaves our state without an established permitting process or clear guidelines to review potential environmental impacts.”
Great blue heron // Photo: Washington Dept. of Ecology

Under federal jurisdiction, developers can move quickly if their project complies with standard conditions written into “national permits” pre-approved for various types of construction. In the past, when a project falls outside of federal jurisdiction, Ecology may issue an “administrative order” to ensure compliance with state wetlands or water-quality laws.
If administrative orders are requested for a large number of projects, approvals could be delayed significantly, Hart said. One option is to approve state “general permits” — something like the national permits — to speed up approvals, he said. But the process of developing these general permits would take time and staffing.
In 2019, 170 projects were approved through a process involving a joint aquatic resource permit application (JARPA) used by both state and federal agencies. Only five of those were handled solely by Ecology through administrative orders. In 2018, 170 projects were approved, of which eight required only administrative orders from the state. The number of projects that fell under nationwide permits and requiring no state involvement cannot be easily determined, Hart said.
Meanwhile, Ecology is expanding its lines of communication with city and county governments, which share in permitting and enforcement activities under the state’s 1945 Water Pollution Control Act, the 1972 Shoreline Management Act, and the 1990 Growth Management Act.
Colorado injunction

Permits in the state of Colorado may be handled differently from anywhere in the country, at least temporarily, as the result of Friday’s ruling by U.S. District Judge William J. Martínez, who found that the state was in an unusual situation.
Colorado has no laws that would allow anyone to fill wetlands, Martinez noted in his ruling (PDF 247 kb). The only exception allowed for construction projects is a permit from the federal government. The judge was not sympathetic to the state’s argument that the loss of federal jurisdiction could halt certain construction projects. The federal government is not responsible for state law or policy, he said.
Springbrook Trail, Renton // Photo: Washington Department of Ecology

What convinced him to issue the injunction, however, was the argument that enforcement of water-quality and wetland-protection laws would suddenly be shifted from the federal to the state government at considerable expense. Since that cost could not be recovered in the future, the new rules would result in “irreparable harm” if the injunction were not granted.
To issue the injunction, Martinez needed to be convinced that Colorado, which brought the case, was likely to prevail when the full case was heard at trial. His ruling in support of the injunction was based on what he called the “fractured” Supreme Court case, Rapanos v. United States (pdf 1.3 mb). His reasoning is highly instructive.
The case involved two developers, one who filled a wetland to build a shopping mall and another who was denied a permit to build condominiums on wetlands. Both contended that no federal permit was needed, because the wetlands did not meet the definition of “waters of the U.S.”
The decision handed down from the U.S. Supreme Court resulted in an order to remand the case to district court, but the ruling was strangely divided among the justices — including four who upheld the government’s position on wetlands outright.
Four other justices, led by Antonin Scalia, signed onto an opinion that relied on the dictionary definition of “navigable waters,” a term mentioned several times in the Clean Water Act. That opinion found that federal jurisdiction should cover only navigable waters plus waterways and wetlands connected with permanent flow. That language formed the basis of the 2020 Trump definition of “waters of the U.S.”
Justice Anthony Kennedy joined with the four justices in sending the case back to lower court, but Kennedy said a stream or wetland would fall under federal jurisdiction if it bears a “significant nexus” to a navigable waterway, thus affecting the physical, biological or chemical integrity of the downstream waters. That language formed the basis of the 2015 Obama definition of “waters of the U.S.”
“It is notoriously difficult to understand what Rapanos is for,” Judge Martinez wrote after analyzing the case, “but it is much simpler to understand what Rapanos is against.”
Five justices — the four dissenters plus Kennedy —rejected Scalia’s limited view of waterways under federal jurisdiction. Since the 2020 Trump rule largely followed Scalia’s approach to the issue, the rule would not likely hold up following a full court review, Martinez said. Whatever the final outcome, he added, it is in the public interest to maintain the status quo — “what the regulated community is already accustomed to, pending the resolution on the merits.”
Ongoing conflicts and new lawsuits

So in Colorado, the new rule cannot be implemented, while elsewhere in the country, it is the law of the land at the moment. After the rulings were issued in California and Colorado, the group Earthjustice filed two new lawsuits on Monday, as the new rule went into effect for most of the country.
The two cases claim that the 2020 Trump rule is contrary to the “single objective (of the Clean Water Act) to protect the physical, chemical and biological integrity of the nation’s waters.” Furthermore, the rule ignores the scientific evidence regarding the ecological importance of protecting smaller streams and wetlands. And the lawsuits claim that the Trump administration failed to follow proper procedures in overturning the 2015 Obama rule and implementing the new rule.
Reviews of the science during the Obama administration “found unequivocal consensus evidence that all tributaries, including perennial, intermittent and ephemeral streams, ‘exert a strong influence on the integrity of downstream waters,’ and that all tributaries have a significant nexus to navigable-in-fact waters, interstate waters, and the territorial sea,” according to the new filings.
One lawsuit (PDF 254 kb) was filed in Seattle on behalf of the environmental groups Puget Soundkeeper Alliance, Sierra Club and Idaho Conservation League, along with Mi Familia Vota, a Latino civic engagement group.
The other lawsuit (PDF 283 kb) was filed in Tucson, Ariz., on behalf of the Pascua Yaqui Tribe in Arizona, the Quinault Indian Nation in Washington, the Fond du Lac Band of Lake Superior Chippewa in Minnesota, the Tohono Oʼodham Nation in Arizona and the Bad River Band of Lake Superior Chippewa in Wisconsin.
On top of other issues, the second case invokes issues of treaty rights that require the U.S. government to maintain clean water for fishing and other uses by the Quinault and other tribes. Where water issues are not explicitly covered by treaty rights, the lawsuit argues that the federal government has a legal obligation to protect waters that may affect native peoples and their traditions.

State officials scramble to protect streams and wetlands in wake of federal rule

Federal protections for millions of small streams and wetlands across the country were eliminated on Monday, following an unsuccessful legal effort to block new regulations that redefine “waters of the United States.”
Officials with the Washington Department of Ecology are scrambling to make sure that nobody proceeds to fill wetlands or damage waterways, now protected solely by state law. A major concern is the potential need for many more staffers to write permits and enforce state water-quality laws, according to Curt Hart, spokesman for Ecology.
“We’re still in the process of determining what we’re going to do,” Hart said. “We still have obligations to protect these waters, which are considered waters of the state.”
Developers may be forced to wait even longer to obtain approvals for construction projects previously issued by U.S. Army Corps of Engineers or Environmental Protection Agency, Hart said. It isn’t clear how the Corps or EPA will respond to the new rules in actual practice.
Long history of legal battles
The revised regulations, which come under the federal Clean Water Act, were written by Trump administration officials who wanted to reduce federal jurisdiction over streams and wetlands and clarify existing rules. The new rules supplant regulations approved in 2015 during the previous Obama administration. Those 2015 rules allowed for federal jurisdiction over smaller streams and wetlands, provided they were connected to larger waterways.
The issue of federal jurisdiction over wetlands and waterways has been a hard-fought legal conflict over the past 35 years, including three cases heard by the U.S. Supreme Court. None of the rulings has resolved the issue of federal jurisdiction, because of ambiguities found in the underlying Clean Water Act.

Red-legged frog // Photo: Washington Dept. of Ecology

In fact, during the latest legal skirmish, a U.S. district judge in California refused to issue an injunction to keep the rule from going into effect nationwide — but a judge in Colorado granted a similar injunction that blocked the rule for Colorado alone.
In the first case, 17 states were among the plaintiffs bringing the lawsuit, while 23 other states were allowed to intervene in support of the new Trump rule.
“Were the court tasked with the question of whether the new rule represents wise environmental policy or the best approach to protecting water resources that could be supported by scientific data, the result might be different,” stated Judge Richard Seeborg in his ruling (PDF 258 kb). “The court’s narrow role, however, is only to evaluate whether the rule has been adopted in compliance with the requirements of the Administrative Procedure Act…
“Had Congress chosen to speak more clearly about how broadly CWA jurisdiction was to extend, or if the CWA did not contemplate the balancing of interests in pursuit of its ultimate goals, it might be possible to characterize the 2020 rule as an ‘unreasonable’ interpretation,’” the judge continued.
But major policy changes are permitted from one administration to the next, the judge noted. “The requirement is only that agencies must explain the basis for their change, and defendants have adequately done so here.”
Effects in Washington state

Laura Watson, director of the Department of Ecology, said the federal retreat from its long-held jurisdiction is leading to confusion and uncertainty within her agency, and it will no doubt affect developers who must obtain permits for activities around streams and wetlands.
“This is another tragic abdication of federal responsibility to protect the environment,” Watson said in an April news release. “It also puts roadblocks in the way of economic progress. While Washington law continues to provide protections for these streams and wetlands, the federal rollback leaves our state without an established permitting process or clear guidelines to review potential environmental impacts.”
Great blue heron // Photo: Washington Dept. of Ecology

Under federal jurisdiction, developers can move quickly if their project complies with standard conditions written into “national permits” pre-approved for various types of construction. In the past, when a project falls outside of federal jurisdiction, Ecology may issue an “administrative order” to ensure compliance with state wetlands or water-quality laws.
If administrative orders are requested for a large number of projects, approvals could be delayed significantly, Hart said. One option is to approve state “general permits” — something like the national permits — to speed up approvals, he said. But the process of developing these general permits would take time and staffing.
In 2019, 170 projects were approved through a process involving a joint aquatic resource permit application (JARPA) used by both state and federal agencies. Only five of those were handled solely by Ecology through administrative orders. In 2018, 170 projects were approved, of which eight required only administrative orders from the state. The number of projects that fell under nationwide permits and requiring no state involvement cannot be easily determined, Hart said.
Meanwhile, Ecology is expanding its lines of communication with city and county governments, which share in permitting and enforcement activities under the state’s 1945 Water Pollution Control Act, the 1972 Shoreline Management Act, and the 1990 Growth Management Act.
Colorado injunction

Permits in the state of Colorado may be handled differently from anywhere in the country, at least temporarily, as the result of Friday’s ruling by U.S. District Judge William J. Martínez, who found that the state was in an unusual situation.
Colorado has no laws that would allow anyone to fill wetlands, Martinez noted in his ruling (PDF 247 kb). The only exception allowed for construction projects is a permit from the federal government. The judge was not sympathetic to the state’s argument that the loss of federal jurisdiction could halt certain construction projects. The federal government is not responsible for state law or policy, he said.
Springbrook Trail, Renton // Photo: Washington Department of Ecology

What convinced him to issue the injunction, however, was the argument that enforcement of water-quality and wetland-protection laws would suddenly be shifted from the federal to the state government at considerable expense. Since that cost could not be recovered in the future, the new rules would result in “irreparable harm” if the injunction were not granted.
To issue the injunction, Martinez needed to be convinced that Colorado, which brought the case, was likely to prevail when the full case was heard at trial. His ruling in support of the injunction was based on what he called the “fractured” Supreme Court case, Rapanos v. United States (pdf 1.3 mb). His reasoning is highly instructive.
The case involved two developers, one who filled a wetland to build a shopping mall and another who was denied a permit to build condominiums on wetlands. Both contended that no federal permit was needed, because the wetlands did not meet the definition of “waters of the U.S.”
The decision handed down from the U.S. Supreme Court resulted in an order to remand the case to district court, but the ruling was strangely divided among the justices — including four who upheld the government’s position on wetlands outright.
Four other justices, led by Antonin Scalia, signed onto an opinion that relied on the dictionary definition of “navigable waters,” a term mentioned several times in the Clean Water Act. That opinion found that federal jurisdiction should cover only navigable waters plus waterways and wetlands connected with permanent flow. That language formed the basis of the 2020 Trump definition of “waters of the U.S.”
Justice Anthony Kennedy joined with the four justices in sending the case back to lower court, but Kennedy said a stream or wetland would fall under federal jurisdiction if it bears a “significant nexus” to a navigable waterway, thus affecting the physical, biological or chemical integrity of the downstream waters. That language formed the basis of the 2015 Obama definition of “waters of the U.S.”
“It is notoriously difficult to understand what Rapanos is for,” Judge Martinez wrote after analyzing the case, “but it is much simpler to understand what Rapanos is against.”
Five justices — the four dissenters plus Kennedy —rejected Scalia’s limited view of waterways under federal jurisdiction. Since the 2020 Trump rule largely followed Scalia’s approach to the issue, the rule would not likely hold up following a full court review, Martinez said. Whatever the final outcome, he added, it is in the public interest to maintain the status quo — “what the regulated community is already accustomed to, pending the resolution on the merits.”
Ongoing conflicts and new lawsuits

So in Colorado, the new rule cannot be implemented, while elsewhere in the country, it is the law of the land at the moment. After the rulings were issued in California and Colorado, the group Earthjustice filed two new lawsuits on Monday, as the new rule went into effect for most of the country.
The two cases claim that the 2020 Trump rule is contrary to the “single objective (of the Clean Water Act) to protect the physical, chemical and biological integrity of the nation’s waters.” Furthermore, the rule ignores the scientific evidence regarding the ecological importance of protecting smaller streams and wetlands. And the lawsuits claim that the Trump administration failed to follow proper procedures in overturning the 2015 Obama rule and implementing the new rule.
Reviews of the science during the Obama administration “found unequivocal consensus evidence that all tributaries, including perennial, intermittent and ephemeral streams, ‘exert a strong influence on the integrity of downstream waters,’ and that all tributaries have a significant nexus to navigable-in-fact waters, interstate waters, and the territorial sea,” according to the new filings.
One lawsuit (PDF 254 kb) was filed in Seattle on behalf of the environmental groups Puget Soundkeeper Alliance, Sierra Club and Idaho Conservation League, along with Mi Familia Vota, a Latino civic engagement group.
The other lawsuit (PDF 283 kb) was filed in Tucson, Ariz., on behalf of the Pascua Yaqui Tribe in Arizona, the Quinault Indian Nation in Washington, the Fond du Lac Band of Lake Superior Chippewa in Minnesota, the Tohono Oʼodham Nation in Arizona and the Bad River Band of Lake Superior Chippewa in Wisconsin.
On top of other issues, the second case invokes issues of treaty rights that require the U.S. government to maintain clean water for fishing and other uses by the Quinault and other tribes. Where water issues are not explicitly covered by treaty rights, the lawsuit argues that the federal government has a legal obligation to protect waters that may affect native peoples and their traditions.

Shoreline armoring in Puget Sound gets new scrutiny from the Army Corps of Engineers

Shoreline bulkheads, which can damage beaches and destroy fish habitat, could come under more extensive review and permitting as the result of a revised shoreline policy announced last week by the U.S. Army Corps of Engineers.
The revised policy (PDF 163 kb), which resulted from a federal lawsuit, now requires a Corps of Engineers permit for shoreline construction below the high-tide line. The previous line of jurisdiction was lower on the beach, effectively exempting most shoreline armoring from federal permits.

Shoreline Armoring, such as this bulkhead on Maury Island, can reduce forage fish spawning, affecting the Puget Sound food web, experts say. // Photo: Christopher Dunagan

One of the key results of the policy change is to bring shoreline armoring under the purview of the Endangered Species Act, said Amy Carey of Sound Action, one of three environmental groups bringing the lawsuit against the Corps.
“Until this change was made, the Corps was not looking at the impacts to endangered salmon and orcas (from bulkheads),” Amy said, noting that shoreline armoring can reduce spawning habitat for forage fish, such as surf smelt and sand lance. Since salmon depend on forage fish and orcas depend on salmon, shoreline armoring can affect a significant part of the food web.
The effort to get the Corps to change its policy and better protect the shoreline ecosystem has been a five- to six-year battle, Amy told me. The new policy better aligns the federal shoreline jurisdiction (under the Clean Water Act) with state and local jurisdictions (under the Shoreline Management Act and the State Hydraulics Code).
The Endangered Species Act, which requires studies of biological effects before a project is approved, is a powerful “tool” for protecting the environment, Amy said, and it’s not directly available to state agencies.
State agencies, including the Puget Sound Partnership, have made a concerted effort to inform the public about damage from shoreline armoring. State and local regulations have been updated to prevent new bulkheads unless absolutely necessary to protect a structure from shoreline erosion. Shoreline property owners have been encouraged to replace old bulkheads with more natural methods of erosion control, such as large logs and rocks anchored to the beach. This is called soft-shore protection.
The Washington Legislature also has focused on the issue, last year granting the Washington Department of Fish and Wildlife increased authority to oversee bulkhead construction for single-family homes. And this year, lawmakers are considering a bill to require property owners to analyze the feasibility of soft-shore protection before replacing an aging bulkhead.
Previously, the Seattle District of the Corps, a federal agency, declined to regulate construction — including shoreline armoring — proposed in areas above a line defined by the average of the highest tide of each day — known as “mean higher high water” since there are two high tides each day. Most bulkheads are built above this line.
A revised policy by the Army Corps of Engineers expands the agency’s jurisdiction up to the high tide line, not shown above but akin to “ordinary high water” — that is from MHHW to OHW, an area where most bulkheads are built. // Graphic: Puget Sound Institute

About one out of four high tides in the Seattle area exceed the mean higher high water mark used by the Corps since 1977, according to legal pleadings by the environmental groups. A more suitable line for regulation would bring about 8,600 acres under Corps’ jurisdiction, the plaintiffs argued.
By moving the line of jurisdiction higher on the beach, the Corps is now expected to review most proposed bulkhead projects, along with other shoreline structures. Docks, floats and other construction close to the water have been subject to federal permitting since the Clean Water Act went into effect in the 1970s.
Amy told me that over the past five years more than 500 permits for shoreline protection were approved by the Washington Department of Fish and Wildlife, but only a few of those came under federal jurisdiction.
The new line of jurisdiction is called simply the “high tide line,” defined by changes in vegetation, deposits of shells and debris, along with other evidence marking the highest tides under normal conditions. That’s similar to state jurisdiction under the Hydraulics Code, which goes up to “ordinary high water.”
While the term “high tide line” has been defined in federal regulations since 1977, the Army Corps of Engineers has used various tidal datum points in different jurisdictions, according to the lawsuit. Seattle and Portland districts have used “mean higher high water;” the Alaska district uses “extreme high tide;” and the Los Angeles district uses an on-site determination of the highest tide of the year.
Several agencies have complained that the Seattle District’s use of mean higher high water neglects potential damage to the shoreline environment.
“The ecological effect is that extensive area of intertidal and estuarine habitat that are important to ESA-listed salmon and multiple other species of shellfish and other marine life are not adequately protected,” stated a 2013 letter from the National Marine Fisheries Service.
Later, the Northwest Indian Fisheries Commission and Gov. Jay Inslee called for a change in jurisdictional policy to better protect listed salmon.
In 2016, a group of experts from the Corps of Engineers, Environmental Protection Agency and National Oceanic and Atmospheric Administration studied the issue and recommended using the “mean average high tide,” said to be a more predictable standard and “reasonably representative of the intersection of the land and the water’s surface at the maximum height reached by the rising tide.”
In 2018, Major General Scott Spellmon, commander of the Corps’ Northwest Division, rejected that recommendation in a memorandum, noting that other jurisdictional regulations were still under review by federal agencies and the courts as part of the debate over the so-called “waters of the U.S.” Spellmon said it would not be a good use of Corps’ resources to continue the discussion about the tidal jurisdiction boundary.
In 2018, three environmental groups, led by attorneys for Earthjustice, filed a lawsuit in federal court challenging Spellmon’s decision to continue with the status quo in violation of the Clean Water Act’s specific references to the high-tide line.
“Puget Sound is one of the nation’s aquatic crown jewels, a vibrant and diverse ecosystem that sustains one of the nation’s most dynamic economies,” states the legal complaint from Sound Action, Friends of the San Juans and the Washington Environmental Council.
“The deleterious effects of shoreline armoring on the health of the Puget Sound ecosystem are well documented,” the complaint continues. “Among many other impacts, hardening or armoring of natural shorelines alters critical ecological functions such as erosion and sediment movement, causing beaches to lower, narrow, and eventually disappear. There is broad scientific consensus that this replacement of upper beach areas with hard barriers negatively impacts important habitat for plants and animals.”
Federal attorneys moved to dismiss the case, saying a decision on the shoreline jurisdiction was still pending and not subject to legal action. Last February, U.S. District Judge James Robart rejected that argument, saying Spellmon’s memo constituted a federal decision, if only a temporary one. Thus the judge established conditions for a full trial on the matter.
In October, the Seattle District of the Corps informed the judge of its intent to rescind the Spellmon memo and eliminate the policy of using mean higher high water as the jurisdictional boundary. Last Friday, the Corps followed through with a “special public notice” saying that it has removed all references to mean higher high water from its Seattle District website and regulatory documents.
“The District will locate the HTL (high tide line) through case/location-specific consideration of all factors identified in the (legal definition),” the notice states. “The District may consider all available tidal data relevant to the HTL definition when making jurisdictional determinations.”
The revised policy will bring federal jurisdiction and regulations to structures built above the previous boundary line up to the observed line formed by the highest tides. That will affect mostly bulkheads but sometimes stairs to the beach and other structures.
“If an application is pending with the Corps, applicants will be notified if any changes to application materials or additional information is required to continue processing the application,” Patricia Graesser, chief of public affairs for the Seattle District, wrote me in an email. “We encourage permit applicants to work directly with their project manager with any questions or concerns about specific applications.”
An information meeting on the issue is scheduled for March 19 at the Seattle District office.
Avoiding new shoreline armoring and removing existing armoring wherever possible has been a longtime goal of the Puget Sound Partnership, which was created in 2007 to coordinate recovery of Puget Sound. A “Shoreline Armoring Implementation Strategy,” adopted in 2018, spells out a series of programs and actions to reduce shoreline impacts — including incentives, technical support, revised regulations and increased enforcement of existing rules. (See Encyclopedia of Puget Sound.)
The issue of shoreline jurisdiction by the Army Corps of Engineers was discussed by a multi-agency review team that developed the strategy, noted Aimee Kinney, policy analyst for the Puget Sound Institute, who worked on the strategy.
Some team members strongly supported increased Corps oversight, because it would institute a formal review by federal experts involved in endangered species protections, allow tribal engagement in mitigation and increase fines for violations, Aimee told me.
On the other hand, some members were concerned that the federal process could inhibit efforts to remove existing shoreline armor by increasing reporting requirements for soft-shore replacements, she said. Going through a Corps permit will take more time, add complexity and increase cost. Also, unless followed up with a significant increase in enforcement, the extra federal scrutiny might encourage some people to illegally avoid permits altogether, she said.
One question is whether the Seattle District has adequate staff to handle the increased workload for permits, Aimee noted. The Seattle District averaged just 17 permits per year for “bank stabilization” from 2012 to 2017, she said. Meanwhile, in 2015 and 2016, the Washington Department of Fish and Wildlife issued an average of 165 permits per year for new, replacement or repair of marine-shoreline armoring, she said, pointing out that this is just a rough approximation of what the Corps may be facing because of differences between the two agencies.
To streamline the process, the Corps could develop a “regional general permit” to cover most conditions in Puget Sound, thus allowing for rapid approval, provided that a project is built to specified standards, including mitigation.
In the end, moving the line of jurisdiction a short way up the beach might not seem like a big change, but it could have profound effects on future shoreline-armoring projects and the survival of certain Puget Sound species.
For information about the effects of shoreline armoring, check out the special section in Encyclopedia of Puget Sound. For information about Puget Sound Implementation Strategies, including the Shoreline Armoring Implementation Strategy, start with this Puget Sound Partnership page.
Composite view, before and after, of a 2013 bulkhead-removal project at Penrose Point State Park. Such projects improve beach habitat and should be encouraged, experts say.
Image: Kris Symer, PSI, from photos by Kristin Williamson, South Puget Sound Salmon Enhancement Group