The apocalypse has been delayed indefinitely. U.S. District Judge Ricardo Martinez has ruled that Northwest Aggregates, a subsidiary of Glacier Northwest, can't resume building a 400-foot steel pier to load several million tons of gravel a year in a state aquatic reserve on the shore of Maury Island until the U.S. Army Corps of Engineers prepares a full-fledged Environmental Impact Statement and formally consults with the National Marine Fisheries Service. The Corps had issued a permit — illegally, as it turns out — last year. (Disclosure moment: I live on Vashon Island, which is connected to Maury Island.)
Martinez' ruling was classic B-movie stuff — the cavalry riding over the hill to save the embattled white folks, the governor granting a last-minute pardon to the guy on death row. Opponents had been losing ever since 1997, and they seemed to have exhausted all their options. Last December, outgoing Commissioner of Public Lands Doug Sutherland gave the company a lease to operate on state aquatic lands. Glacier had given $50,000 to a PAC that supported Sutherland in his unsuccessful campaign for a third term. Sutherland knew he'd be leaving in January. There's no sign of a quid-pro-quo, but his last-minute action raised some eyebrows.
Martinez granted a motion for summary judgment brought by a local group, Preserve Our Islands, plus People for Puget Sound and the Washington Environmental Council. He agreed that by granting a permit, the Corps had violated both the National Environmental Policy Act — sponsored by Washington's Sen. Henry Jackson and passed by Congress 40 years ago — and the Endangered Species Act. He also granted their motion for an injunction. After Martinez ruled, the current Commissioner of Public Lands, Peter Goldmark, said that Northwest Aggregates' state permit was no longer in good standing.
Last month, Goldmark sent the company an official letter expressing his “grave concern” and setting out a long list of unanswered environmental questions Northwest Aggregates sent a 17-page answer last week, but a company spokesman made it clear that his employer wasn't about to wait for an OK. Construction was going to start in a matter of days. Under the terms of its permits, the company couldn't work from January 15 through August 14 because juvenile chinook were likely to be around.
Now, it can't work at all. Judge Martinez found that even the narrow window was based on flawed assumptions about the presence of juvenile chinook. The National Marine Fisheries Service had adopted the conclusion of a Northwest Aggregates study that juvenile chinook wouldn't be around after August 14. However, James S. Brennan and colleagues had done a 2004 report for King County that showed otherwise. “Data from the study show that despite the absence of natal streams on Vashon and Maury Islands, juvenile Chinook were caught in the islands’ near-shore area throughout the sampling period, which extended from May through October, 2001, and April to December of 2002. . . . The executive summary concluded that 'Vashon and Maury Islands are important considerations in near-shore salmon recovery efforts even though the area does not contain any Chinook- bearing streams.'”
Taking note, Martinez said the “NMFS consultation letter did not address these Brennan study data showing significant Chinook presence in the Vashon/Maury near-shore areas well past mid-summer and into the fall. Instead, the Service adopted the conclusion . . that juvenile Chinook would be 'minimally present' during the work period beginning August 15. The work cited [by NMFS] . . . was a single study . . . which relied heavily on the absence of natal streams in the area — a factor which the Brennan study demonstrated did not reduce the presence of Chinook in the study area. . . . On the contrary, the Brennen study data and conclusions indicate that work windows beginning in mid-August do not protect juvenile salmon.”
Further, there was the question of whether construction noise would affect salmon or orcas. The feds bought Glacier's assurance that a bubble curtain would keep the decibels down far enough to avoid harming salmon. The plaintiffs had noted, Martinez observed, “that NMFS has . . . required formal consultation in other pier construction projects, such as the Anacortes Pier and Seattle Aquarium projects. On this project, however, neither Northwest, the Corps or NMFS adequately addressed the actual quantitative noise levels from the pile-driving. Instead, plaintiffs argue, NMFS simply concurred in the determination that a bubble curtain was adequate to protect fish — despite the fact that their own expert, NMFS biologist John Stadler, opined that even with a bubble curtain the pile driving would result in both 'take' and harassment of salmon.”
“Although I don’t know much about this particular project,” NMFS' biologist testified, “if they are driving the piles during the normal in-water work window and are using a bubble curtain, then the level of take may actually be low.”
Martinez found this less than reaasuring. “First,” he wrote, “the supposition that 'take' will be low because work will be done at a time of year when the juvenile Chinook are no longer 'near-shore dependent' relies on the very determination that was found faulty above. The Brennan study found that juvenile Chinook were present in the near-shore area of Vashon and Maury Islands well into the work window period. . . . Second, the conclusions reached by Dr. Stadler regarding low take are speculative and based on several 'ifs' regarding the type and timing of the pile-driving work, the bubble curtain, and other project-specific factors which the author admitted he did not know. Third, . .. Dr. Stadler concluded that 'the level of take may actually be low.' Again and again he referred to 'low' take, not 'no' take, from noise impacts. Nowhere did he posit that take would be reduced to zero by the mitigation actions. Given the standard, correctly articulated by Dr. Stadler that 'NMFS must conduct a formal consultation and write a biological opinion if any take is likely,' the Court concludes that formal consultation should have taken place on the effects of noise impacts on juvenile Chinook.”
As for the effect on orcas? People hadn't reported many orcas hanging around the construction site. “With two relatively large residential shoreline developments located on [nearby] southeast shorelines of Maury Island,” the Corps had written, “it is reasonable to expect that if the Project Site were a place where Southern Residents [orcas] regularly visited and lingered, then there would be more sighting records from this area compared to other areas around Vashon-Maury Islands.”
Martinez gave this reasoning the little deference it deserved. “What is missing here is science,” he said. “The conclusions . . . were based on random reports by a volunteer network. . . . [T]his was not a scientific sampling. To base a conclusion regarding Orca 'lingering' in the area on a paucity of such reports in comparison to other areas is particularly egregious.”
The judge also found the Corps' view of "cumulative impact" much too narrow. An agency's judgment deserves some deference, but "the Court 'need not forgive a clear error in judgment,'" Martinez wrote. "That error was committed here when the Corps so narrowly limited the geographic scope of the analysis to 'Vashon/Maury Island and the surrounding marine waters.' That error was further compounded by limiting the impacts considered to mainly land-based impacts such as logging, agriculture, and real estate development on the islands." This part of Martinez' ruling may have impact well beyond the shores of Maury Island.
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