Friends Challenges Army Corps of Engineers

Posted May 25, 2018 at 7:14 am by

Groups Chal­lenge Army Corps of Engi­neers’ Refusal to Pro­tect Puget Sound Shorelines

Corps’ Seat­tle Dis­trict vio­lates Clean Water Act, endan­gers Sound recovery

SEATTLE – A law­suit filed today against the U.S. Army Corps of Engi­neers (“Corps”) charges that the agency has refused to assert its Clean Water Act juris­dic­tion over most shore­line armor­ing in Puget Sound, and that endan­gered species and Sound shore­lines are suf­fer­ing the neg­a­tive impacts of the Corps’ con­tin­ued inaction.

Wash­ing­ton Envi­ron­men­tal Coun­cil, Sound Action and Friends of the San Juans filed the suit after the Corps reject­ed a sci­ence-based gov­ern­ment rec­om­men­da­tion to cor­rect its unlaw­ful def­i­n­i­tion of the Seat­tle Dis­trict Corps’ juris­dic­tion over shore­line armor­ing projects.

The coali­tion, rep­re­sent­ed by Earth­jus­tice, is call­ing for fed­er­al over­sight of shore­line armor­ing by rais­ing what the Corps’ Seat­tle Dis­trict con­sid­ers the “high tide line” in order to bet­ter pro­tect at-risk species and the shore­lines them­selves. The law­suit also calls for a response to the groups’ 2015 peti­tion ask­ing for juris­dic­tion­al deci­sions on four shore­line armor­ing projects. The groups con­tend a strong fed­er­al pol­i­cy to pro­tect shore­lines is crit­i­cal to Puget Sound recovery.

“Shore­line armor­ing impairs the health of Puget Sound by dam­ag­ing nearshore habi­tat impor­tant for for­age fish that feed salmon,” said Mindy Roberts, Puget Sound direc­tor for Wash­ing­ton Envi­ron­men­tal Coun­cil. “Cur­rent­ly, fed­er­al agen­cies don’t con­sid­er impacts from these struc­tures, because their def­i­n­i­tion of what con­sti­tutes ‘the shore­line’ is too lax.”

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Back­ground: Armor­ing is the place­ment of hard struc­tures – boul­ders, jet­ties, sea­walls – on shore­lines to help pre­vent ero­sion. The Corps is required by law to review pro­posed armor­ing projects up to the “high tide line,” which is gen­er­al­ly the line at which land meets the water. But the Corps’ Seat­tle Dis­trict uses a much low­er tidal mark­er (known as the “mean high­er high water” mark). As a result, the Seat­tle Dis­trict does not review the major­i­ty of armor­ing projects in Puget Sound.

The Corps’ fail­ure to assert juris­dic­tion means there has been no fed­er­al over­sight of whether most armor­ing projects in the Sound meet the Clean Water Act, the Endan­gered Species Act or any oth­er fed­er­al requirement.

Fur­ther, the Corps recent­ly reject­ed an inter­a­gency rec­om­men­da­tion to use a high­er tidal mark­er, in vio­la­tion of the Admin­is­tra­tive Pro­ce­dure Act, which pro­hibits arbi­trary and capri­cious agency actions. In reject­ing the rec­om­men­da­tion, the Corps ignored sound sci­ence and the law.

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“The Corps has known for years that its high tide line mark­er in Puget Sound is unlaw­ful­ly low,” said Anna Sewell, Earth­jus­tice attor­ney for the plain­tiffs. “But the Corps put its head in the sand and reject­ed a sci­ence-based rec­om­men­da­tion from three region­al fed­er­al agen­cies – includ­ing the Seat­tle Dis­trict Corps itself – to pro­tect 8,600 acres of shore­line area by rais­ing that marker.”

This trou­bling lack of fed­er­al sup­port puts Puget Sound shore­lines at risk of fur­ther dete­ri­o­ra­tion, par­tic­u­lar­ly when shore­line armor­ing is well doc­u­ment­ed to be one of the most sig­nif­i­cant risks to the Sound.

“Puget Sound is already on the brink of col­lapse due to con­tin­ued habi­tat loss, and it’s crit­i­cal that the laws put in place to pro­tect nearshore ecosys­tems are both fol­lowed and enforced,” said Sound Action Exec­u­tive Direc­tor Amy Carey. “Unless we act now, the for­age fish, the salmon and the orcas that are so des­per­ate­ly strug­gling to sur­vive will be lost for­ev­er. It’s up to all of us to ensure this doesn’t hap­pen – and it starts by hold­ing the per­mit­ting agen­cies account­able for doing their jobs.”

“By dis­avow­ing its statu­to­ry author­i­ty, the Corps has shield­ed harm­ful projects from a review of their impacts on crit­i­cal­ly endan­gered and cul­tur­al­ly vital North­west species,” added Kyle Lor­ing, staff attor­ney, Friends of the San Juans. “Its high-tide inter­pre­ta­tion also leaves state and local gov­ern­ments on their own, at a time when our pub­licly-fund­ed agen­cies should be work­ing togeth­er to do every­thing in their pow­er to pro­tect what remains of our region’s rich heritage.”

The Corps must respond to the law­suit with­in 60 days.

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