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Waterfront development: Will new rules harm fish, Puget Sound?

Rewriting rules of the beach, the state Department of Fish and Wildlife is at odds with citizen watchdogs. But the department's "customers" may be happy.
Winter sunset at Seahurst Park in Burien on the shores of Puget Sound.

Winter sunset at Seahurst Park in Burien on the shores of Puget Sound. Photo: Michael Brunk

The waterfront in Edmonds: Should it be easier to build by the shore?

The waterfront in Edmonds: Should it be easier to build by the shore? Brewbooks/Flickr

Washington state’s laws on waterfront development have caused hard feelings around the state for decades. The 71-year-old laws, known together as the Hydraulic Code, and the rules for enforcing them, govern what you can and can’t build on your waterfront; when you can or can’t build or repair or replace whatever sits in the water or repels the tide.

Waterfront owners who don’t take kindly to the controls tend to call their legislators, who tend to call the Washington Department of Fish and Wildlife.

The Hydraulic Code is the only set of laws written specifically to protect the waterborne creatures that were there long before any pretty cabin on the beach. The rules for enforcing the code are the center of a contentious dialogue between the DFW and Sound Action, an assertive advocacy organization.

Sound Action’s been around a couple of years under its current name, but before that it made news as a Vashon-based organization called Preserve Our Islands. It took on — and defeated in court — a powerfully connected gravel mining company that wanted to haul off a large chunk of Maury Island.

Now, Sound Action aims to stop what is generally agreed to be a serious decline in the biological health of Puget Sound. Other private organizations and government agencies have also tried at a cost, by SA’s accounting, of $230 million a year in state and federal funds for the past six years.

The watchdogs are pushing Fish and Wildlife to get tougher on permits for boat docks, piers, mooring buoys and bulkheads, anything regulated under the Hydraulic Code. The pressure comes while the department works with the state Fish and Wildlife Commission, a policy- and rule-making body, on the commission's rewriting of the rules of enforcement. The commission is taking public comment on the rules and proposed revisions through Sept. 15.

The rules have not changed in 20 years, but everything else has. There’s enormous pressure to develop the Puget Sound shoreline and transform the beach with concrete, rocks and pilings, the kind of construction that can devastate fish habitat. There’s new science revealing much that we didn’t know about the small but vital forms of life in the water and on the beach.

The creatures of most concern are the small forage fish that hang near shore, including some that bury themselves in the beach to deposit their eggs. Sand lance, herring and surf smelt are what biologists call keystone species, for their crucial role in the health of the Sound. Without them, times get hard in a hurry for the larger species we’re more sociable with. Salmon, rock fish, orcas and seabirds all feed at a table set by the forage fish, at one step or another on the food ladder.

Sound Action says Puget Sound herring have declined by 40 percent from levels of the past. Chinook salmon feed on the herring and they’re down to at an estimated 10 percent of healthy populations and listed by the federal agencies as endangered. Resident Puget Sound orcas are thought to have numbered about 200 at one time; now they’re down to 80. Their prime food is the endangered Chinook.

The Department of Fish and Wildlife’s website says the rewrite of Hydraulic Code rules will strengthen protections for the fish while streamlining the permitting process for in-water structures. The department’s critics — led by Sound Action and a dozen other environmental groups that have publicly backed SA in the controversy — worry that the new language will accomplish the streamlining but weaken the DFW’s authority as legal guardian of little fish.

In places the proposed new language does seem reluctant to stand up and say what it means. Take for example, “protection of fish life” — a rather straightforward phrase that would appear to mean “protection of fish life.” In the department’s revised version, “protection of fish life” means “avoiding, minimizing and compensating for unavoidable impacts to fish life and the habitat that supports fish life populations, through mitigation sequencing.”


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Comments:

Posted Tue, Aug 26, 5:43 a.m. Inappropriate

How many tax payer funded organizations to we have in this State dealing with Shoreline issues involving fish and development? DOE,DFW,PSP,The Army Corp of Engineers.....Throw in a couple dozen environmental activist groups, the Tribes and "Bam!" You have our current situation.

Wait until you start telling folks no more on site septic systems. No additional pavement or development within a thousand feet of fish bearing waters, rivers and streams. Mitigation through litigation, nothing improves and the lawyers get paid.

Cameron

Posted Tue, Aug 26, 11:22 a.m. Inappropriate

Pretty pathetic, isn't it? All the $ and "attention" and so little to show for it.

Here's the problem, with the Hydraulic Code only the tip of the iceberg (no pun intended):

"In the department’s revised version, “protection of fish life” means “avoiding, minimizing and compensating for unavoidable impacts to fish life and the habitat that supports fish life populations, through mitigation sequencing.”

In discussions with DFW regulators, “compensating … through mitigation sequencing” seems to mean that if you can’t find a way to avoid damaging habitat, you may build your project anyway, if you agree to improve some fish habitat in some other way. Preferably, but not necessarily, that will be at the same location."

'If you can't stand the heat, get out of the kitchen.' The best way to do that is in a way that clearly makes room for those who can and will— beginning with those who govern and legislate, commissioners, included.

afreeman

Posted Tue, Aug 26, 8:06 a.m. Inappropriate

On the surface, I can see some budgetary good coming out of Sound Action. We can dispose of the Ferry Fleet. Sound Action's goal is to remove all man made structures from Washington State beaches. Or, never issue permits to replace the same structures. While they are going about this business, the state should start with all ferry docks. All have seawalls that block the natural beaches. With the removal of the docks, not only do we open up more beach space. With no ferry docks, there is no need for ferry boats. Want to go to Vashon, row a boat; it is good for your health! Perhaps we can avoid rebuilding the seawall in Seattle and let that return to beach. The possibilities are limitless.

I notice that there is no mention of septic tanks; these are the worst cause of fish decline in the Puget Sound. Most of the heavily populated mainland abutting the Sound has sewer systems along the beaches. I cannot think of any island unless there is a major population cluster that has sewers. Whidbey on the south end does not; neither do Camano or Vashon three very heavily populated islands in the Sound. Let us start with sewers, which should have been installed over 50 years ago. That would improve the quality of life IN the Sound.

Posted Tue, Aug 26, 10:50 a.m. Inappropriate

Ummm. There's no mention of septic tanks because the article is dealing with the hydraulic code that is administered by WDFW - which has nothing to do with septic tanks. An HPA permit (Hydraulic Project Approval) deals with construction at, over, or within Ordinary High Water. I'm not sure what study you are citing that septic systems "....are the worst cause of fish decline.." , which I think you mean to infer that they are the major contributor to fish declines(?). If so, wrong again. The Puget Sound Partnership has study the issue and conclude that habitat loss and degradation from non-point source pollution is the greatest threat to Puget Sound fisheries.

All in all, the article does a good job at laying out the issues. WDFW is horribly underfunded and overworked, they never say outright "no" to a nearshore project, and mitigation is generally woefully low for estimated effects.

The development of the shoreline is a good deal for private landowners - they reap the profit while the rest of society bears the cost in terms of functional habitat loss and ensuing fish reductions and wider ecosystem effects.

No real change in sight, however.

Treker

Posted Tue, Aug 26, 12:56 p.m. Inappropriate

It looks like the PSP thought it was a major contributor in 2011 when they published this study.

http://www.psp.wa.gov/downloads/AA2011/120911/AA-draft-120911-c5-c8.pdf

Cameron

Posted Tue, Aug 26, 1:33 p.m. Inappropriate

Ahh, yea. No one said it wasn't a contributor - just that it's not the biggest issue facing Puget Sound as was claimed.

For a more recent review of the PSP priorities you might check in with the Action Agenda, which is updated regularly.

http://www.psp.wa.gov/action_agenda_center.php

Treker

Posted Tue, Aug 26, 2:07 p.m. Inappropriate

The problem, as it always has been, is population growth. Population growth is destroying Puget Sound and the entire planet. As usual, not one word in the story about population growth and how it is destroying Puget Sound.

As long as the power that be keep encouraging growth -- and this includes our great environmentalist governor Jay Inslee -- then our environment will continue to be degraded.

Come up with ideas to stop population growth, or just shut up. If you are not even going to address the main problem, then you are just wasting everyone's time.

Lincoln

Posted Tue, Aug 26, 2:45 p.m. Inappropriate

You and I come at things from disparate ends of the political spectrum. However, I agree with you on this point. No one wants to deal with growth, because "growth is good." In the short term boosters might be right. However: http://www.albartlett.org/ ("Can you think of any problem in any area of human endeavor on any scale, from microscopic to global, whose long-term solution is in any demonstrable way aided, assisted, or advanced by further increases in population, locally, nationally, or globally?")

louploup

Posted Tue, Aug 26, 2:08 p.m. Inappropriate

You know what they say, a major contributor here, a major contributor there, the next thing you know you have a big issue. The billion dollar CSO fix mandated by the agreement with the Feds is prime example. Anybody fiqured that into their sewer bill yet?

Since you are in the know...exactly what tangible results has the PSP delivered for the millions invested? Measurable improvements in habitat? Fish counts improving directly attributable to PSP on the ground programs?

Cameron

Posted Tue, Aug 26, 2:43 p.m. Inappropriate

Yea - I prefer precision when making a point.

I was responding - specifically to this:

"I notice that there is no mention of septic tanks; these are the worst cause of fish decline in the Puget Sound

Which is a false statement. Now, if you would rather try to make an issue of it - have at it.

Regarding your other questions regarding effectiveness of PSP - What? Do I look like the Brookings Institute or something? But by all means crunch the numbers and get back to us.

Holy cow.

Treker

Posted Tue, Aug 26, 5:04 p.m. Inappropriate

PSP hasn't delivered anything of significance.

Cameron

Posted Tue, Aug 26, 8:48 p.m. Inappropriate

Thanks for the complex analysis

Treker

Posted Wed, Aug 27, 4:34 a.m. Inappropriate

I try to keep it simple. I am willing to consider evidence to contrary, otherwise it is accurate.

Cameron

Posted Wed, Aug 27, 7:57 a.m. Inappropriate

Simple - translation: no evidence.

Hey - you're the one who made the claim - now back it up.

Lily32

Posted Wed, Aug 27, 8:08 a.m. Inappropriate

Oh no. That's not how it's played.

Once proven wrong on the first topic you must:
1) dodge,
2) switch subjects,
3) offer a broad-sweeping statement presented as fact,
4) offer no proof of #3, and
5) ask to be proven wrong.

In any real world application this would be laughed at - but this is the Internets after all.

Treker

Posted Wed, Aug 27, 8:20 a.m. Inappropriate

Oh dear, sad but true.

Back to the original premise - nonpoint source pollution is a difficult and expensive item to solve so that is a long-term issue.

With the shoreline development - we haven't been too successful their either. WDFW and Ecology don't have the political will to actually say "Really - we've developed much of the shoreline already, let's leave the rest alone"

And with a growing population that wants to be near the water there is a lot of pressure. While a developer may have to go through hoops - in 99% of the cases they will get what they want.

Lily32

Posted Wed, Aug 27, 9:41 a.m. Inappropriate

Here is a link to the PSP's own "Report Card" Nothing of any significance on the ground. They seem very pleased with process and place a lot of blame for lack of accomplishment on "Challenges".

http://psp.wa.gov/SOS-chapter1.php

Cameron

Posted Tue, Aug 26, 3:11 p.m. Inappropriate

[The Department of Fish and Wildlife] never can get to ‘no,’ ” says Amy Carey, executive director of Sound Action.


If you live on the water, your impression is that saying "no" is all they do.

dbreneman

Posted Tue, Aug 26, 3:19 p.m. Inappropriate

I've been watching development on shorelines of Puget Sound and its rivers for over 40 years. I have the opposite impression; it's mostly "yes you can" by WDFW. By the Corps of Engineers also.

louploup

Posted Wed, Aug 27, 9:38 a.m. Inappropriate

From the outside that is certainly the impression. I've watched with alarm as more and more inoffensive beach cabins are replaced by giant McMansions of dubious architectural taste, flush up against the edges of bluffs, with oil-derrick style multi-story staircases sitting on the beach. Housing developments are replacing farms. And all of this activity effects not just the shoreline, but increases light pollution (gotta have 80 LED sconce lights plastered all over your McMansion, after all). The plain fact is, that with enough money, lawyers, political pull, and patience you can accomplish almost anything.


But for those of us in the middle class it is a different story. The wood-plank bulkhead my grandfather put in in the 1940s to prevent erosion of the 8 foot bank on my beach had fallen apart. Several large fir trees which hang out over the water (one by over 30 feet), and which provide beneficial shade for fish in the summer, were getting undermined by the wakes of boats and jet skis. Two had already fallen onto the beach when my grandmother was still alive. And the protruding concrete bulkheads on either side of the property helped focus the waves onto my beach, washing it away to hardpan. As the current owner of the house (a 900 square foot beach cabin built in 1939) I had to either stop the erosion or cut the trees down. I'd already seen the large fissures that opened up in my neighbor's and my grandmother's yard when the other two trees fell. If one of the trees in front of the house came down, it would pull the post and pier "foundation" out from under it.


My proposal was to put in a four foot stone bulkhead. You'd think I wanted to build a gas dock. Every conceivable bureaucrat came out of the woodwork, and all had one word on their lips: "No!" Two years and $15,000 in permit fees later, I finally got permission to save the trees. But it was a genuine ordeal. I wasn't a "customer", I was an adversary in a war of regulatory attrition. Every inspector who showed up had but one apparent goal, to demonstrate that he was doing his job by throwing up as many road blocks as possible. At one point the bulkhead engineer called me and said "Smooth sailing from here on out - you've now paid as much in fees as you'd have paid in fines if we'd bootlegged it in" and he was right. After a rather bizarre hearing before the Peninsula Advisory Committee I finally got my construction permit. Now, 12 years later, the beach is recovering, there are more fish (as evidenced by a large increase in the population of diving ducks) and the trees are still providing shade and providing a filtered view of the water from the yard. But I was made to feel like an enemy of the state in this process despite, or perhaps because of, the fact that my solution was sounder than that of the "experts" who opposed me at every turn.


My big fear is that in all this adversarial regulatory structure, waterfront is slipping from the grasp of the middle class. Just like on the east coast, it will become a perk of the wealthy, who can afford the money and lawyers necessary to play the system. Nobody with a five-figure income need apply. And the loss of middle-class people like me on the waterfront will be, to me, the real death of Puget Sound.

dbreneman

Posted Wed, Aug 27, 9:47 a.m. Inappropriate

Ah yes - more effects to Puget Sound nearshore, private benefits, and socialized costs. Quite the bargin I'd say.

Lily32

Posted Wed, Aug 27, 12:02 p.m. Inappropriate

I agree with your class analysis. Unlike Oregon, Washington allowed a major portion (60%!) of the state's tidelands to pass out of the commons into private ownership. This privatization has made conservation of shorelands very difficult.

I suggest that one motivation for resistance by regulators is their frustration after decades of hardening of shorelines to accommodate development. The cumulative impact of this activity is very hard to undo; can you imagine removal of the "protruding concrete bulkheads on either side of the property" in your example?

louploup

Posted Wed, Aug 27, 1:09 p.m. Inappropriate

Massachusetts and Washington are the only two states which sold their tideland rights. The tideland rights are as old as Roman Law and it is truly unfortunate to have lost the access.

GaryP

Posted Wed, Aug 27, 5:53 p.m. Inappropriate


Slow is more the problem. There is no excuse for the slowness of the myriad of agency decisions and protocols involved. The fact is, even if the answer will be 'no', the decisions and work must start happening in a uniform, more timely manner.

There is far too much delay, delay, delay and far too much subjectivity in these governmental regulatory decisions.

Posted Tue, Aug 26, 3:13 p.m. Inappropriate

Can you provide any specific example of where a nearshore project was proposed and WDFW flatly said "no you can't do this"?

I work in this arena and I can't think of one in 25 years.

Treker

Posted Wed, Aug 27, 9:45 a.m. Inappropriate

Ah -- so in the end you did get to build what you wanted. This is the typical case, you may have to go through some hoops, but bottom line - you get to build something that is not environmentally beneficial - nor sustainable. Given the sea level rise in the past decade, and the models for future rise in Puget Sound. You'll be at it again in a decade.

You might have faired better if you had done some type of bio-engineered solution. Yea, I know, I hear it all the time -- "..but that would not have worked on my property"

The effect of hardening the shoreline has been well documented - both geophysical and ensuing biological resource effects -- you only need to look at the current research Sound-wide being conducted by Megan Deither at UW (as presented at the recent Salish Sea Conference 2014) for an update.

And this is why we are not making progress on nearshore hardening. IF WDFW were truly playing hardball and looking out for the wider interest of Puget Sound - this type of hardscaping would not be allowed.

But in the end it's usually the same - a developer or private landowner gets what they want..

Lily32

Posted Wed, Aug 27, 12:12 p.m. Inappropriate

Unfortunately, I don't see any good solution on the horizon. No one thinks that their small project is affecting Puget Sound much, but cumulatively - adding up thousands of these over the decades - yes, they do.

Even WITH some type of mitigation plan these project fall short of compensating the public resources they affect - forage fish and salmon habitat, interruption of nearshore processes, and direct lost of nearshore functions. AND many of these smaller projects are approved with no mitigation nor a condition to use bioengineering that supplies protection using a less destructive and more fish-friendly design.

The effects/costs to the resource though are dispersed among the public. Loss of salmon habitat, effects to shellfish and forage fish, and the complicating factors beyond this.

So yes - all projects are generally approved after some bureaucratic delays - private benefit and public costs. Another application of the Tragedy of the Commons.

Treker

Posted Wed, Aug 27, 1:13 p.m. Inappropriate

"Tragedy of the Commons" is a misnomer designed to take away the land rights of the poor in England. The Commons once owned by all was farmed in rotation where each farmer could own one or two cows, a couple of sheep etc. The land was first grazed and re-fertilized by the animals for a year, then farmed for one crop, then another then left fallow for a year. This sharing allowed all of the people of the village to eat meat, etc. because your animals grazed on a single larger piece of property. Once the commons was divided up into small parcels none of which could be run in rotation because they were too small everyone started to starve. This process helped move people into the cities and away from subsistence farming.

To help this process along the rich landlords coined the phrase "Tragedy of the Commons" which hid the true tragedy.

GaryP

Posted Wed, Aug 27, 2:20 p.m. Inappropriate

You might want to do a little more research on the subject and read the classic essay by Garrett Harden - which looks at environmental issues and how private development of land environmental effects are spread throughout society without any economic "cost" to the reaper of the benefit. http://en.wikipedia.org/wiki/Tragedy_of_the_commons

But points for chaff.

Treker

Posted Wed, Aug 27, 4:42 p.m. Inappropriate

If time proves Al Gore correct, the current shore line will under water and the development cycle can start again, perhaps with better results.

Djinn

Posted Wed, Aug 27, 10:50 p.m. Inappropriate

Al Gore is not a scientist; he is a popularizer and educator (and IMO a bit of a hypocrite and a lightening rod for deniers with his high carbon lifestyle). Those who will be correct (or not) are the thousands of scientists from many countries who agree that the consequences of AGW are already happening and will worsen if we don't stop emitting GHGs (especially CO2 that also causes ocean acidification). Unfortunately, we are not doing much to effectively address the problem, and it appears unlikely that we will voluntarily do so.

louploup

Posted Sat, Aug 30, 7:32 p.m. Inappropriate

Thanks Bob and Amy for such an important story. While I recognize SA's call for no net loss would be a big improvement in our State's protection of forage fish, it's still not recovery. While I have read many an account of forage fish in my years of advocating on their behalf, Bob has described their roll in the ecosystem better than any I have read yet....
"all feed at a table set by the forage fish, at one step or another on the food ladder."

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