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

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

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.

“They never can get to ‘no,’ ” says Amy Carey, executive director of Sound Action. “They can add a list of conditions as long as your arm, they can require mitigation and compensation, but somehow DFW never says ‘no.’ If we’re to have a hope of saving and restoring Puget Sound, we’ve got to find a way to say ‘no’ to projects that would seriously damage the habitat.”

If DFW has qualms about saying "no," there’s legal and political history back of it, and some Goldilocks language governing fish habitat. State law, in effect, says the department must provide just the right amount of protection — not too little, but not too much. The law says DFW “may not impose conditions that attempt to optimize conditions for fish life.”

The most serious argument currently involves the “fish window,” or timing restriction — a period of spawning or migration, when (both sides agree) no one should be building, tearing down, repairing or otherwise messing around in the habitat of the forage fish.

The department’s proposed new version of the rules seems to increase the number of permitted sites that will be exempted from the timing conditions. It would change the rules by simply inserting the word “documented”: The spawning time-out would be required only where the department has documented the presence of the fish.

Problem: Puget Sound splashes more than 2,000 miles of shoreline, and DFW’s never had the money or staff to examine more than a fraction of it. Interpreting the agency’s own data, Carey says boots-on-the-beach habitat searches have covered about 76 miles. The department continues to issue hydraulic project approvals, she says, without knowing whether or not the keystone species are there.

Jeff Davis, a deputy assistant director for DFW, does not try to guess how many hydraulic project approvals — HPAs — the department has issued without checking the construction sites for fish eggs. “I can’t say we never issue HPAs without inspecting the site,” he said. “I can only tell you we spend an awful lot of time on the beach” searching for evidence of spawning fish.

Sound Action seized on the holes in data to make its own study of the permit approvals. It now reads every HPA the department issues — more than 50 so far this year — to see if timing conditions were imposed to protect the fish during spawning. If the timing condition isn’t there, SA files an informal appeal  — little more, at first, than asking a DFW habitat biologist why not. The next step is a formal appeal to the department, then to the state’s Pollution Control Hearings Board.

An appeal filed earlier this year changed a major overhaul job at Anacortes Marina, where hundreds of piles are to be driven into the near-shore seabed. Under pressure from Sound Action, Fish and Wildlife agreed to place a timing restriction on the permit. The construction work will be shut down from January to April to allow herring to spawn. It’s the largest project to be modified so far because of SA’s tactic, and Carey says it’s an important win.

“The very crux of why we are not making recovery,” she told the Skagit Valley Herald, “is this continued habitat destruction being allowed with each and every permit.”

To DFW administrators, there’s nothing appealing about SA’s tactics. “They’ve pounded us with appeals,” Davis says. “They’re distracting us from doing the very work that Amy wants us to do.”

There’s an easy solution to that, Carey says. “If you don’t want the appeals filed, put the timing restrictions in place.”

Sound Action’s website offers an earlier study of more than 300 project approvals that the Department issued over an 18-month period. Eighty percent provided no fish window for spawning surf smelt; 90 percent had no timing constraints to account for spawning sand lance. 

The findings can make DFW’s performance look worse than it is. Davis points out — and Carey agrees — that there are sometimes good reasons why the timing condition, a.k.a. the fish window, is not included in permit approvals. Sound Action is including areas that have already been studied to show no fish are there, Davis told Crosscut. “Why should we make the customer spend thousands of dollars for a consultant to tell him what we already know? There are places where the landowner can repair his bulkhead on the landward side without impacting the beach. Why should we shut him down for months when there’s no effect on the habitat?”

Carey acknowledges Davis’ logic, but objects to his use of the word “customer” to describe the individual or company applying for a permit to build in the water. “The developer isn’t supposed to be their customer,” she said. “The fish are their customers.”

Sound Action has submitted its own version of the revised Hydraulic Code rules, hardening the language and establishing a firm criterion — “no net loss” — for protecting fish habitat.

SA’s comments, along with those of other organizations and individuals, go to the Fish and Wildlife Commission, whose members, appointed by the governor and confirmed by the Senate, include academic scientists, business owners and former state agency executives. The commission will decide what version of the rules will govern the protection of sea life in the Sound.

The rewrite of the 1994 rules comes at a time when DFW is squeezed against the bulkhead, so to speak — between environmental groups’ demands to get tougher, a growing shoreline population eager to put docks in the water and legislators who have consistently cut the department’s budget.

DFW’s thinly spread staff of area habitat biologists, who establish the presence or absence of the Sound’s basic sea life, has dwindled from 46 to 27 in the past four years. That shrinkage has been relieved somewhat by federally-paid Americorps volunteers, but the agency has been warned to get ready for department-wide cuts of as deep as 15 percent in the next budget year.

“We’re good people,” Davis told Crosscut. “We care for the resource and we understand the threats. We know we’re losing habitat faster than it can be restored. But we don’t make the laws. We don’t write the budgets.”

The department, and the creatures it protects, will likely soon face changes in both the budget and the legal rules. 

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