Washington Department of Ecology

Tag: Washington Department of Ecology

Understanding the cold-water needs of salmon and helping them to survive

Salmon need cold water. This general statement is something I’ve been hearing since I first began reporting on these amazing migrating fish years ago. Cold water is a fact of life for salmon, known for their long travels up and down streams, out to saltwater and back. But colder is not always better.
Questions about why salmon need cold water and how their habitat might grow too warm or too cold led me into an in-depth reporting project. I ended up talking to some of the leading experts on the subject of stream temperature. Thanks to their fascinating research, I learned that temperature and food supply go hand-in-hand to dictate salmon metabolism, growth and survival. You can read my report, “Taking the Temperature of Salmon,” in the Encyclopedia of Puget Sound.

Middle Fork of the Snoqualmie River, near Mount Si trailhead
Photo: Christopher Dunagan

Later in this blog post, I will touch on some new developments regarding temperature and stream conditions — including Gov. Jay Inslee’s latest initiative to help salmon by proposing new laws and regulations along with $187 million in next year’s budget request.
In the Northwest, we almost never need to worry that salmon streams will get too cold. Logging, farming and development have removed large amounts of streamside vegetation, allowing the sun to warm the waters, often to excessive degrees. While sunlight can increase the growth of tiny organisms and boost the food web, higher temperatures also accelerate metabolic rates, increase stress hormones and alter behavioral responses, as I described in my story.
When a section of a stream grows too warm, fish will seek out cooler water, often by swimming upstream to areas cooled by springs or snowmelt. As a change in temperature alters metabolism and behavior, the result can be problems with finding food and with increased threats of predation.
“Anybody who does stream work soon learns that fish are amazing,” Jonny Armstrong, a University of Oregon researcher, told me. “They don’t just accept the habitat they are given; they do all kinds of things to game the system.”
Jonny’s work in Alaska documented how a run of coho salmon moved into cool water to feed on sockeye salmon eggs. After getting their fill, the fish returned to warmer water to digest the food and grow faster.
I’m especially indebted to Aimee Fullerton, who helped me understand a multitude of biological processes related to temperature, as I searched for ways to explain the complex findings. Aimee is a research fishery biologist with NOAA’s Northwest Fisheries Science Center. She has been working in the Snoqualmie River, where temperatures grow warm enough at times to impair the growth and development of salmon and sometimes kill them if they cannot escape into cooler waters.
The prospects of climate change raise concerns about even higher temperatures in the future. Careful temperature measurements, combined with computer modeling, have helped researchers predict future temperature changes. Other experts are developing new strategies for maintaining cooler temperatures to protect salmon, as I outlined in the story.
Just last week, Washington Gov. Jay Inslee announced a new initiative that he will take to the Legislature next year. He hopes to boost salmon populations by improving stream habitat, replacing culverts and other impediments, and cleaning up polluted waters. Inslee also intends to address harvest, hatcheries and hydropower along with critical issues of predation and food availability.
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“There is no time to waste,” the governor said in a news release. “We have a choice between a future with salmon or a future without them. Salmon need immediate and urgent action to ensure their survival. That’s why, for the 2022 legislative session, salmon recovery is a top priority and have both policy and funding to help protect them.”
One of the key ideas that the governor mentioned during his news conference on Tuesday is to build and/or protect streamside corridors based on the height of trees, which provide shade to cool streams. (See video, embedded on this page, at 11:03-14:30.) The riparian corridor is also important in reducing toxic pollutants, bacteria and fine sediments that enter a stream.
The so-called Governor’s Salmon Strategy Update (PDF 1.4 mb) includes provisions for riparian buffers on agricultural lands, which has been a concern of Indian tribes throughout the region. Details have yet to be proposed, but a combination of regulations and financial support are likely.
The latest initiative grew out of the 2019 Centennial Accord meeting between state agencies and tribal salmon experts led by the Northwest Indian Fisheries Commission.
“This is the first time we have seen legislation that would require landowners to protect riparian habitat,” said Dave Herrera, NWIFC commissioner and Skokomish Tribe policy representative who was quoted in a news release. “It is also groundbreaking because it includes incentives for landowners to create and maintain riparian zones, as well as regulatory backstops when compliance isn’t voluntary.”

Next year’s salmon-recovery legislation will be called the Lorraine Loomis Act, named for the late chairwoman of the Northwest Indian Fisheries Commission who promoted cooperative efforts to save salmon. Budget details are included in a policy brief (PDF 1.4 mb) released by the Governor’s Office.
“We know the status quo isn’t working when it comes to salmon recovery,” Lorraine wrote in a column last year. “We know what the science says needs to be done, and we know that we must move forward together.”
On the regulatory front, the federal Clean Water Act calls for standards that protect aquatic life, such as salmon. Where temperatures are not maintained within an approved range, the waters are considered “impaired” — just as they are when bacteria become too numerous or oxygen levels drop too low for the aquatic species of concern.
Although I did not address regulatory issues in my story about temperature, it is worth noting that numerous federal and state clean-water regulations are undergoing changes. Some changes are the result of lawsuits; some follow statutory requirements; and some stem from the coming and going of the Trump administration’s efforts to reduce environmental rules.
For example, the Environmental Protection Agency recently withdrew its approval (PDF 402 kb) for how the Washington Department of Ecology handles high temperatures in certain stream segments that grow naturally warm. The basic idea is that regulatory agencies need not seek out mitigation measures to cool such waters — even in areas too warm for salmon — if it can be shown that high temperatures represent the natural condition of the streams and that humans are not to blame.
The group Northwest Environmental Advocates first brought a lawsuit over such “natural conditions criteria” in Oregon, where NWEA contended that the state was allowing streams to remain dangerously hot by discounting the effects of humans. In this way, the group argued, Oregon was establishing new and higher temperature standards than allowed by existing regulations without going through a public review process. The higher temperatures should be subject to public review and federal oversight, including effects on endangered species, the group said. Federal courts agreed with that reasoning.
Although the Washington Department of Ecology rarely invokes natural conditions criteria for temperature, it must now review its practices and undergo federal oversight where experts believe that the natural condition of a water body would exceed established water-quality standards. Besides temperature, the review will cover criteria for dissolved oxygen. In some areas of Puget Sound, Ecology has determined that numerical water-quality standards would not be met even if no humans were around.
The methods of determining what the water temperature or oxygen level would be in the absence of human activity can become an elaborate exercise involving computer modeling. But Nina Bell, executive director of NWEA, argues that the process is important and should be open to public scrutiny. After all, she said, the outcome can determine whether unhealthy temperatures or oxygen levels persist or are reduced through mitigation efforts.
Other ongoing water-quality matters:

Environmental justice on the move: a few personal observations about change

I recently completed a much-involved writing project focused on environmental justice. It has been one of the most challenging, yet for me enlightening, efforts in my 45 years of covering the environment.
My initial idea was to report on a plan by the Washington Department of Ecology to rewrite the regulations for the Model Toxics Control Act, the law that prescribes the cleanup of all kinds of contaminated sites. One of Ecology’s goals in rewriting the rules has been to pay more attention to the demographic makeup of populations around polluted sites, making sure that families of color, low-income and other highly impacted groups are given the attention they deserve.

Composite map representing comparative health disparity data (rankings from 1 to 10) for all census tracts in Washington state // Map: Washington Department of Ecology

I naively approached this story as I would any story regarding potential changes to public policy. Regulations often revolve around agency activities with input from community activists, guided by science and influenced by political leaders. I am fairly comfortable dealing with political leaders and scientific discoveries in the fields of biology, chemistry, oceanography and such. But I had never been trained in sociology, which is at the heart of environmental justice. I found myself questioning basic ideas, searching for reliable studies, wondering about methodologies, and relishing personal revelations about race, class, political power and history.
I started by digging for answers: Is it really true that toxic sites are more often found in disadvantaged communities? How did this come about? Why are toxic-cleanup efforts more often focused on affluent areas? What are the social forces that led to today’s circumstances? What are the forces for change versus those for maintaining the status quo?
I can’t say that I found all the answers, and I’m still learning. I plan to write more about environmental justice in the future, as more people realize that our efforts to treat the environment with greater respect also means treating all people with greater respect. For now, I’ve written three stories, all published this week in the Encyclopedia of Puget Sound:

When it comes to political struggles, there is increasing awareness about the need to address environmental justice. Lots of things are happening at the state and federal levels. Washington’s Legislature is moving ahead with a bill that would require state agencies to establish new EJ practices when dealing with health and environmental issues. Senate Bill 5141 has passed both houses in somewhat different forms and is now going through reconciliation before final passage.
At the national level, President Joe Biden has launched a new White House Environmental Justice Advisory Council to bring greater visibility to EJ issues and to make sure that federal agencies remain committed to more equitable outcomes for a variety of environmental and climate issues.
When it comes to Washington state, it is clear that more studies are needed to assess the geographic and demographic distribution of toxic sites. Statewide studies seem to be either out of date or limited in other ways. Few, if any, have been peer-reviewed for credibility. Still, some localized studies point to an inequitable distribution of toxic sites, thus supporting the findings of well-researched studies in other parts of the country. It is time to understand that low-income communities and communities of color are not only affected disproportionately by the location of toxic sites but also that their homes, healthcare services and working conditions may put their health at greater-than-average risk.
One useful demographic tool that anyone can use is the Washington Environmental Health Disparities Map, which compares conditions across the state, grouped by census tract. The map looks at 19 indicators — including proximity to Superfund sites, exposure to diesel emissions, and toxic releases from industrial facilities. It also includes comparative data on poverty, race, housing costs and English proficiency, among other things. You can type in your address and learn how your area compares to other areas across the state.
Displaying all this information by census tract creates some limitations, because census tracts vary greatly in size across the state. Nevertheless, it is a nice high-level snapshot of these conditions, and the “Information By Location” tool provides a good starting point to see how your “community” compares to others in the state. An explanatory video offers information about using the map, which was developed by the University of Washington’s Department of Environmental and Health Sciences in collaboration with Front and Centered, a nonprofit group, the Washington departments of Health and Ecology, and the Puget Sound Clean Air Agency. The project is more fully explained in a report (PDF 10.9 mb) from the Washington Environmental Justice Mapping Work Group.

Duwamish Waterway // Photo: brewbooks via Wikimedia Commons

As I continued my exploration of EJ issues, I felt compelled to seek out answers about why certain “vulnerable” populations were getting more than their fair share of environmental hazards. On the one hand, I told myself that regardless of the history we must deal with things as they are today. On the other hand, the conditions of today are derived from the conditions of yesterday, as explained by Millie Piazza, environmental justice senior adviser for the Washington Department of Ecology.
“We have to realize that history is important in order to deal with the problems of today,” Millie told me. “If we keep supporting systems that led to these problems (of racial and economic injustice), then we will keep getting the same results.”
My story “Why is so much pollution found in disadvantaged communities?” provides a general answer to my initial question, although the history of industrialization and the resulting pollution is different for each community across the state and nation.
For a more thorough explanation of the history of racial and income disparity as they relate to environmental justice, I can recommend two excellent books: “Toxic Communities: Environmental Racism, Industrial Pollution, and Residential Mobility” by Dorceta Taylor; and “The Color of Law: A Forgotten History of How Our Government Segregated America” by Richard Rothstein.
To see how environmental justice played out in one community, I examined the history of the Duwamish Valley in South Seattle, where a pristine river was converted to an industrial waterway. Check out my story “Diverse populations benefit from targeted efforts to improve environmental justice.” I’m grateful for help from BJ Cummings, author of “The River That Made Seattle: A Human and Natural History of the Duwamish.”
I’m currently looking into a few other communities where the injustice of pollution seems to maintain a stranglehold on area residents, who find themselves stymied in their efforts to reduce unhealthful conditions.
I have learned by diving into this issue of environmental justice that we are all affected in widely differing ways by our environment, and we all have the power to make changes to our environment, for better or worse. The essence of environmental justice is to include everyone and forget no one in our choices for change.
While I can never understand what it means to be a person of color or to live in poverty, I am learning a good deal from people who have other life experiences. As a result of new efforts at the local, state and federal levels, I see hope for a better future.

New sewage-treatment permit would be a step to curbing nitrogen in Puget Sound

In an effort to stem the flow of excess nitrogen into Puget Sound, Washington Department of Ecology has proposed a new type of permit for some 60 sewage-treatment plants operating throughout the region.
The flexible permit, called the Puget Sound Nutrient General Permit, aims to hold nitrogen releases close to or below their current levels at most of the treatment plants while offering plant operators options for how to meet those goals. It’s a temporary solution, because the long-term goal is to make significant cuts in the total amount of nitrogen going into Puget Sound.

Graphic: Washington Department of Ecology

Nitrogen, as we’ve discussed many times, is a major problem for Puget Sound. This so-called nutrient feeds the growth of plankton, which die and decay, consuming oxygen during the process. Low oxygen levels are a serious problem for fish and many other marine creatures, particularly in southern Hood Canal as well as several bays in South Puget Sound.
Sewage treatment plants have been found to be a significant source of nitrogen, thanks to findings from an elaborate computer simulation called the Salish Sea Model. The model, now housed at the Puget Sound Institute, describes the effects of nitrogen throughout Puget Sound based on the amount and location of nitrogen inputs, the size and shape of the waterway and currents created by tides and rivers. For a description of the problem, check out the overview in the Encyclopedia of Puget Sound, which also features a variety of focused articles addressing the issue.
The Salish Sea Model has revealed that nitrogen from sewage-treatment plants can create much more than localized water-quality problems. For example, large amounts of nitrogen from treatment plants in Seattle and Tacoma can be pushed by currents into South Puget Sound. There, the resulting low-oxygen levels create adverse effects in the inlets and shallow bays, which look like crooked fingers on a map.
One goal of the modeling effort is to calculate how much nitrogen can go into different parts of Puget Sound without triggering water-quality violations. Once these amounts of nitrogen are determined, actual limits can be calculated and theoretically imposed on the effluent coming out of each treatment plant. But those findings are not expected before 2023. See Puget Sound Nutrient Reduction Project.
The nutrient general permit for sewage-treatment plants would be separate from existing wastewater permits for each plant. While perhaps not as enforceable as strict numerical limits, the proposed “action levels” for each treatment plant in the general permit could be a first step in turning things around, according to members of an advisory committee helping to draft the new permit.
“We needed to get some kind of backstop,” said Mindy Roberts of Washington Environmental Council and a member of the advisory committee. “This permit has a kind of reasonable bound to it. Having said that, we are 20 years into this kind of assessment.”
It is obvious that something must be done, she said, because the Puget Sound ecosystem is already suffering from excess nitrogen. See the advisory committee’s 12-page summary of discussions (PDF 372 kb).
What to do about nitrogen pollution seems to have a lot of people tied in knots. Operators of many sewage-treatment plants are saying they need to see more scientific data before they commit to making upgrades to their plants. Total costs could amount to billions of dollars for the region.
In December, the city of Tacoma and four other sewer utilities filed a lawsuit in Thurston County Superior Court. They allege that the Department of Ecology effectively changed the state’s water-quality standards for dissolved oxygen through the use of computer modeling but without going through required rule-making procedures. The case is a first volley in what could be ongoing legal challenges to proposed controls on nitrogen. Other parties to the case are Birch Bay Water and Sewer District, Kitsap County, Southwest Suburban Sewer District, and Alderwood Water and Wastewater District.
Meanwhile, the environmental group Northwest Environmental Advocates is continuing to pursue its lawsuit, now on appeal. The lawsuit is designed to force the Department of Ecology to require upgrades to sewage-treatment plants that don’t already reduce nitrogen through tertiary treatment. Under a 1945 state law, state regulators must demand “the use of all known, available and reasonable (technology) … to prevent and control the pollution of the waters of the state of Washington.” This is the so-called AKART law.
Thurston County Superior Court rejected the arguments of NWEA. The ruling supported Ecology’s argument that a broad requirement for expensive treatment technology would not be “reasonable” under the law. Check out the appeal briefs by NWEA (PDF 1.1 mb) and by Ecology (PDF 2.3 mb). See also the first Water Ways post I wrote on this issue, Jan. 31, 2019.
As proposed in a “conceptual” draft (PDF 708 kb), the nutrient general permit would apply to the majority of sewage-treatment plants in the Puget Sound region and would go into effect for all at the same time. Ecology proposes to exclude 26 treatment plants that discharge into rivers, nine privately owned plants, all facilities on federal and tribal lands, and industrial operations. These various exclusions could be covered with nitrogen controls through other types of permitting.
The general permit establishes two action levels. The baseline level is roughly equivalent to the treatment plant’s current annual release of nitrogen. A second level, 5 percent higher than the baseline, allows for additional growth for plants where Ecology has already approved higher design capacities.
The draft permit calls for an “optimization framework,” in which treatment plant operators must implement low-cost measures to reduce nitrogen and then measure the outcomes. Operators would be allowed to customize their actions to suit their own plants, but they would need to share their successes and failures with Ecology and other operators. These low-cost actions, called Tier 1, could include adjustments to flow rates, aeration patterns and treatment cycles.
Tier-2 actions would be triggered when the baseline level of nitrogen is exceeded at the end of an operational year. Actions could include the purchase of new equipment, changes in piping configurations and the addition of one or more chemicals to reduce nitrogen.
Tier-3 actions would be triggered when a facility exceeds the higher (+5%) action level. These actions, which would be approved by Ecology in advance, could include more extensive operational changes, treatment process upgrades, and planning for advanced treatment such that design and construction would start as soon as formal effluent limits are established.
“We’re not proposing to require major infrastructure investments in the first five-year permit,” said Ecology spokeswoman Colleen Keltz in a blog post. “Depending on the current capabilities of each (treatment plant) and their community’s plans for growth and development, they will have a reasonable amount of time to plan appropriate upgrades or other improvements while remaining in compliance with their permits.”
Some 14 plants already remove nitrogen to some degree, with their nitrogen concentrations averaging below 10 milligrams per liter. Under the proposed permit, those 14 would not be subject to Tier 1 or Tier 2 actions but would still be expected to undergo low-cost optimization.
The general permit also calls for expanded monitoring of nitrogen and other constituents of sewage, as well as extensive planning and scientific studies at both facility and regional levels. The ultimate goal, according to Ecology, is to figure out the most effective ways to reduce nitrogen to improve water quality in Puget Sound and meet state standards for dissolved oxygen.
The comment period for the informal draft permit runs until March 15. (See comment form.) After that, the draft will be revised and resubmitted as a formal document with public hearings, written comments and official responses.
Meanwhile, the advisory committee continues to discuss the permit and related issues. For documents and meeting schedules, go to the committee’s EZ View page.
As discussions continue, Gov. Jay Inslee has submitted a $9-million funding request to implement the general permit as part of his overall budget to the Legislature. The money would be used to help the affected treatment plants develop plans and finance small nitrogen-reduction projects.
Related efforts:

Ecology’s story map on nitrogen. Click on the image to launch the page.

Settlement agreement tackles water pollution caused by farming practices

As part of a legal settlement, state officials have agreed to develop “best management practices” for agricultural operations, while encouraging Washington farmers to take actions to improve water quality in streams and bays.
The agreement, which includes provisions for stream buffers, was approved by the Washington Department of Ecology and the federal Environmental Protection Agency. Signed by a judge, the agreement effectively ends a four-year lawsuit brought by Northwest Environmental Advocates, which accused the agencies of violating the federal Clean Water Act and Endangered Species Act.
The lawsuit alleged that the EPA improperly approved the Department of Ecology’s 2015 plan for reducing nonpoint pollution (PDF 4mb) from ubiquitous sources. Because nonpoint pollution does not flow through regulated discharge pipes, cleanup actions involve reducing contaminants that wash off forests, farms and developed areas. Nonpoint pollution is one of the great challenges for Puget Sound recovery, according to experts.
Under the agreement, Ecology must develop a new plan by the end of next year that describes actions for reducing nonpoint pollution not included in the 2015 plan. The new plan, which was already in the works, will include “best management practices” (BMPs) for agriculture, providing assurance that a farm will generally meet state water-quality standards if specific voluntary actions are taken.
Among the ideas are methods of managing livestock wastes, along with maintaining or increasing vegetative buffers along streams that pass through forests and farms.
“The order in this case includes a combination of commitments by federal and state agencies to ensure that Washington identifies how wide and how tall streamside buffers must be to protect salmon from extinction,” said Nina Bell, executive director for NWEA.
The agreement requires Ecology to complete the first five chapters of a guidance document called “Voluntary Clean Water Guidance for Agriculture,” including a section on buffers, in the 2022 plan. The remaining eight chapters must be finished by the end of 2025.
Ben Rau, supervisor for watershed planning at Ecology, said the BMP guidance is being developed with help from an advisory group that has completed the first chapter on tillage and related crop issues. Go to the guidance website for details.
The section on buffers will be based on scientific studies that show how certain buffer widths and specific vegetation types can reduce sediment going into nearby streams and otherwise maintain healthy water conditions, Rau said. Buffers are just one measure among a “suite” of actions that together will help protect salmon and other aquatic species from harmful activities involving agriculture.
The BMPs will be promoted as a good way for farmers to protect water quality, Rau said. Eventually, the new buffers will become a minimal requirement for farm owners seeking government grants to improve water quality and make their property more salmon-friendly. Current buffer requirements for grants are based on an analysis outlined in a 2012 matrix and a 2013 letter from the National Marine Fisheries Service.
Agricultural BMPs may also come into play as part of an enforcement action by state or local water-quality inspectors. For example, based on stream surveys or citizen complaints, authorities might identify an area of a stream with high levels of bacteria. As part of the cleanup effort, it could be presumed that a farm owner would not need to take further corrective actions if the farm complied with approved BMPs, according to Rau.
The legal agreement also calls for agricultural BMPs to be incorporated into formal watershed-cleanup plans where a watershed includes farming areas. Such plans identify sources of pollution as well as specific measures designed to bring a waterbody into compliance with state water-quality standards. Such plans are often called TMDLs because they establish pollution limits known as “total maximum daily loads.”
The pace of cleanup for Washington’s waterways using TMDLs has been an issue of contention for more than 30 years. A legal action related to watershed cleanups was launched by NWEA in 1991 and renewed in 2019. The lawsuit (PDF 312 kb), which involves Ecology and the EPA, demands that polluted waters in Washington be formally identified and that Ecology increase its efforts to clean up polluted waters through TMDL planning. Beyond planning, there is a recognized need to find ways to get parties identified in the plan to carry out the actions needed to improve water quality.
The recent settlement related to agricultural BMPs raised concerns from the Washington Cattlemen’s Association and the Washington State Farm Bureau Federation, which were allowed to join the case. See their joint comment letter.
The settlement, they argue, could result in requirements for farmers to install nonpoint controls that are “more costly and possibly technically or economically infeasible.” Another problem, they say, has been the failure of the state and federal governments to include the groups in a conversation over BMPs that could affect their very existence.
“At this time, the associations do not intend to formally object to the settlement, if adopted,” their letter states. “However, the associations remain very concerned about implementation of the agreement and whether the water-quality standards to be further developed pursuant to the agreement will be based on sound science and include meaningful consideration to agriculture and the benefits of agriculture to society.”
In one section of its 2015 plan, the Department of Ecology acknowledges its unique statutory limitations when enforcing water-quality laws with respect to certain farming practices that fall under the authority of the Washington Department of Agriculture.
Those limitations plus a perceived reluctance to force farmers to improve water quality in agricultural regions has led to ongoing frustrations by some Native American tribes and environmental groups in Washington state. Check out “Agricultural Pollution in Puget Sound: Inspiration to Change Washington’s Reliance on Voluntary Incentive Programs to Save Salmon” (PDF 3.3 mb) by the Western Environmental Law Center.
While agriculture is a major focus of the recent legal settlement, the updated state plan must address all forms of nonpoint pollution, including that from forests, septic systems and developed areas.
Commercial forestlands, for example, are deemed to meet water-quality standards for the most part, provided that landowners comply with regulations under the state’s Forest Practices Act, Rau said. For years, forestland owners have cooperated in ongoing studies and negotiated with state and federal agencies, tribes and environmental groups to develop rules to protect salmon and water quality.
Through the years, a process of “adaptive management” has identified a need for rule changes, he noted. For example, areas where forest buffers may need to be increased in size are along smaller streams not likely to be used by salmon. With current buffers of minimal width, researchers have found an increase in water temperature due to a lack of shade. Those higher temperatures can affect salmon in downstream waters suitable for spawning.
For a discussion of nonpoint issues in our forests, review Ecology’s page on Forestry runoff, including the 2009 Clean Water Act Assurances Review by Ecology as well as the two-year extension granted in 2019 (PDF 583 KB).
After the next nonpoint plan is completed, the settlement agreement requires the EPA to submit the document to other federal agencies for review to make sure the result is protective of threatened and endangered species. For salmon and marine species, the National Marine Fisheries Service is in charge, while freshwater species are under the authority of the U.S. Fish and Wildlife Service.
Ecology planners have been working steadily to complete the next nonpoint plan under self-imposed deadlines, but Rau acknowledges that the settlement agreement provides legally based time limits. Barring unforeseen circumstances, the next plan must be done by the end of 2022, followed by another update in 2025.
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Editor’s note: This article was produced with funds provided by a grant from the Environmental Protection Agency.

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.