A spring run of migrating salmon was the only thing behind the temporary halt of construction on a $715 million explosives handling wharf at the Bangor Nuclear Submarine Base. The Endangered Species Act, Clean Water Act and state water quality criteria prohibit in-water construction from mid-February to mid-July to protect spawning fish populations.
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It’s an ironic twist, say critics. The new wharf, the size of six football fields, could ultimately cause irreparable harm to salmon migration. A National Environmental Policy Act (NEPA) lawsuit was filed against the wharf last June by the Ground Zero Center for Nonviolent Action; Glen Milner, a researcher and activist with the center; and Washington Physicians for Social Responsibility.
Until recently, the case was on hold after plaintiffs appealed a gag order imposed by the court last November at the Navy’s request. The gag order sealed a number of records the Navy released after the lawsuit began and forbid plaintiffs to provide copies of the records or discuss them inside or outside the court.
It wasn't until after court proceedings had already begun in June that the Navy released documents showing that the Department of Defense Explosive Safety Board had refused to grant a permit for the new wharf because of its proximity to an existing wharf. The safety board wouldn’t endorse the decision unless the Navy could prove an explosion at one wouldn’t cause an explosion at the other. The Navy, when reached, refused to comment about ongoing litigation.
“At that point the Navy basically stopped discussion and granted themselves an exception to the rule,” said Milner, lawsuit plaintiff. He says the Navy chose a rare route for project approval, called the Secretary of the Navy Explosives Safety Certification, that allowed the Secretary of Navy to sign a statement saying it would assume responsibility for all risks.
“But it doesn’t mean that it’s safe," Milner warns. "It’s actually a fairly dangerous operation.” Milner has a long history of monitoring Naval activities in Puget Sound. In 1986, he discovered that rail cars carrying submarine missile rocket motors involved in a derailment contained large amounts of high explosives, contrary to Navy statements. In 2011, the U.S. Supreme Court ruled 8 to 1 in his favor in Milner v. Department of the Navy, a case involving explosives handling issues at an ammunition depot near Indian Island, across the bay from Port Townsend.
The wharf, says Milner, would double the amount of explosives handled in Hood Canal. In total, the structure would handle 3.7 million pounds of TNT in the form of missile rocket propellant.
This week the 9th Circuit court ruled that their first responsibility was to resolve issues raised by the suit. The case is moving forward, gag order intact. The gag order, the court said, will be ruled on at a later date. Postponing the decision on the gag order is as good as keeping it. Any decisions coming down the pike after the lawsuit won't do much for the safety of the explosives wharf.
The purpose of the National Environmental Policy Act, under which the lawsuit was filed, is to alert the public to a project's environmental impact, says Kathy George, lead attorney for the plaintiffs. “In this case there was a lot of secrecy in the environmental review process. There were several appendices that were completely hidden from the public. One that was particularly important was the one having to do with explosive risks.”
The lawsuit also contends that, despite the fact that the Environmental Impact Statement (EIS) acknowledged marine life would be impacted, they failed to present “meaningful alternatives” to a wharf that will cover 6.3 acres of water and require the drilling of 1,200 pilings. A core requirement of the National Environmental Policy Act is that an EIS consider alternatives, not merely the implications of multiple sites, says attorney George.
Instead, the alternatives the Navy presented were different only in design. Not in location or size. “The features identical in each were to actually replace the natural shoreline with concrete," George explains. "There were no alternatives presented to that. Destruction of a wetland, no alternative.”
One option not made public, which came out in the 110,000 pages of documents the Navy released after the lawsuit began, was to remove an existing wharf called the Marginal Wharf. Internal Navy emails between an environmental planner and an asset management branch head warned that the Department of Defense Explosives Safety Board would stringently enforce explosives regulations because of the proximity of the two wharfs.
“If we want to consider this as mitigation,” wrote environmental planner, Lynn Wall, “it would compensate for the impacts from the new EHW2 [Explosives Handling Wharf 2].”
The Army Corp of Engineers and National Marine Fisheries Service approved construction of the wharf last May. In April, the EPA made recommendations and asked the Navy to disclose the feasibility of mitigating environmental destruction caused by the new wharf. Under the National Environmental Policy Act, the Navy must compensate for the loss of marine habitat and wetlands.
Rather than taking responsibility for mitigation efforts though, they’ve chosen to write a big check, says attorney George. In this case, $6.9 million, which works out to be a little over 1 percent of the construction cost. Where does the money go? As she puts it, toward unknown projects to be done at an unknown time in the future.
“There was absolutely no way for the public to understand how effective the mitigation would be, because there was no certainty at all where it would take place or how it would be approached,” she said.
The environmental factor is not the only one dogging the wharf's construction. Washington Physicians for Social Responsibility joined the lawsuit because of their concern with the transfer and handling of nuclear weapons all over the world, and in this case, the Puget Sound region. “The centering of that weapons system in the submarines with all the transfers that take place, all the handling; those risks ought to be recalculated in a NEPA statement," said spokesperson Tom Buchanan. "It’s risks that all of us face and the Navy doesn’t want to talk about it.”
Milner isn’t waiting for a legal decision to try and stop construction of the new explosives wharf or the on-site mitigation he believes appropriate. Last week he attended a meeting of the Hood Canal Coordinating Council, an inter-agency coalition of counties, government agencies, tribes and others who are deciding how to spend the $6.9 million the Navy agreed upon in lieu of on-site mitigation.
Milner is critical of the council’s willingness to administer the federal in-lieu fee program which allows developers, or in this case the Navy, to pay a fee to a third party to conduct mitigation. He questioned whether the Navy’s second Explosives Handling Wharf was eligible for “in-lieu fee” mitigation.
The council’s Scott Brewer takes a more practical view of the decision. “What is appealing to the Navy is they don’t have to be in the business of being in mitigation and figuring out what projects. They can just hire somebody — the coordinating council in this case — to figure out what’s appropriate mitigation.” He’s not sure what projects the council will take on, but there’s no shortage of wetlands, shoreline or habitat in need of restoration in Hood Canal.
Two segments of the Navy base waterfront are on the state’s list of impaired waters due to low dissolved oxygen and one section includes a Superfund site. However, Brewer says removing the Marginal Wharf is not a mitigation alternative because it wasn't identified in the Navy's Final EIS.