Recent science-based evaluations on the health of Puget Sound document an imperiled ecosystem.

 
In their respective 2007 and 2009 “State of the Sound” reports, the science panels of the Puget Sound Action Team and Puget Sound Partnership (PSP) note that in spite of decades of work to restore and protect the sound, current trending shows a continued decline in many of the areas considered to be key indicators to the health of the Puget Sound including:

• Decreases in harvested amount for most type of fish over the past two decades.

• A 20 percent decrease in orca population since the mid 1990′s.

• A 40 percent decline in overall herring biomass since the 1970′s.

• An overall decline in eelgrass, with sites suffering long-term decline outnumbering sites with long term increases. Because it is protected by many regulations, eelgrass condition reflects, in part, the success of management actions. Observed decreases suggest that there may be gaps in regulatory protections or their implementation.

• A Chinook biomass value that is far below established recovery targets.

• 10 marine species listed as endangered or threatened with an additional 33 listed as species of concern. Species listed as threatened or endangered under the Endangered Species Act include chinook, steelhead, bulltrout, southern resident killer whales, bocaccio rockfish, canary rockfish and yellow eye rockfish.

 

This jeopardized status of the Sound continues after more than 25 years of Puget Sound “regulation” by government agencies.

 
In recognition of the Sound’s continuing decline, the State of Washington, under the directed leadership of the Puget Sound Partership, has initiated a new system wide approach towards protection and restoration – establishing a goal of Puget Sound ecosystem recovery by 2020.

Treaty Tribes, who have publicly expressed strong concerns about policy failures to reverse these negative trends, act as co-managers for fisheries resources and are co-leaders with State agencies in this renewed recovery effort.  Similarly, the federal agencies with jurisdictional responsibility for environmental protection and implementation of the Endangered Species Act have developed recovery plans for each listed species.
 

The Regulatory Agencies are failing to properly protect Puget Sound.

 
The protection and preservation of  intact nearshore habitat is noted as a top priority in both the Puget Sound Partnership’s Action Agenda and the endangered species recovery plans developed by federal agencies – and habitat and species protection is a by law, a requirement of local, state and federal agencies when considering nearshore permitting actions in Puget Sound.

Yet even with these clear directives, the regulatory agencies are failing in their mandate to ensure the protection of critical habitats and at-risk species.

At the state level, the Washington State Department of Fish and Wildlife (WDFW) has the most specific regulatory role as it relates to Puget Sound protection. The Hydraulic Code, which directs a hydraulic permit approval (HPA) must be obtained for all in-water work, is under the sole jurisdiction of WDFW. The standard for permit approval is one of no net loss – i.e. a permit should not be approved if the proposed project causes harm, and statute provides strict nearshore directives intended to support this standard.  For example, work is to be restricted during specific times of the year when protected fish species may be utilizing the nearshore for juvenile rearing/migration or spawning.
 

Sadly, WDFW fails significantly in this regulatory mandate, with internal auditing finding less than 20 percent of the marine permits subject to the audit meeting the no net loss standard.

 
In addition to this internal agency audit, Preserve Our Islands recently reviewed approximately 500 Puget Sound-based HPA’s from 2010 and found the agency consistently failing to apply the clearly required regulations related to legislatively directed work windows – and approving virtually all HPA permit applications. 

Further, the work approved by WDFW stands in direct contradiction to both the Action Agenda and the federal recovery plan for Chinook – allowing the construction of new bulkheads and overwater structures when the recovery plans and science, including WDFW’s own research, clearly indicate the risk this development presents to Puget Sound ecosystems and salmon recovery.
 

Similar regulatory gaps are also found at the federal level.

 
In-water construction proposed for Puget Sound requires a federal permit from the Army Corps of Engineers (ACOE). Federal statue directs that all approvals must ensure the protection of environmental and natural resource values with a targeted focus on endangered species at critical habitat protection.

Projects under ACOE jurisdiction are first reviewed internally for ESA compliance with consultation work then provided by the National Marine Fisheries Services (NMFS). In addition, ACOE approvals must undergo review under the National Environmental Policy (NEPA) act.

Like WDFW, the ACOE rarely denies permit applicationswith the agency reporting that less than 3 percent of all permits are denied nationwide. Preserve Our Islands review of in water-permits in the Seattle District found a near 100 percent approval rate.  Additionally, the ACOE routinely fails in their duty to provide adequate environmental protections with review of permit approvals in the Puget Sound area commonly showing the agency’s failure to consider direct and cumulative impacts and formal ESA consultation infrequently pursued. Similarly, NEPA analysis is commonly superficial, with the Corps routinely finding a determination of no significant impact, thus avoiding the more detailed EIS process.

As we have learned through our experience with the Calportland case, and through continued permit review, the Corps works closely with industry and frequently takes a pro-development approach when considering permit applications..

The NMFS is the federal agency responsible for both listing threatened ad endangered Puget Sound fish and marine mammals under the Endangered Species Act, and for the  development and implementation of recovery plans for each listed species.

Any in-water project seeking federal permit approval is required to go through a specialized evaluation to determine the impacts on any listed species or their critical habitat.  With the exception of bulltrout, NMFS is the regulatory body responsible for the consultations on Puget Sound’s listed species.
 

Review of NMFS Endangered Species consultations and subsequent appeal actions show that NMFS commonly fails to meet the standards of federal law.

 
In our own Maury Island case, the federal court found that NMFS approved work that would create underwater noise at levels high enough to constitute a taking of both orca and Chinook – and, that cumulative impacts to protected species and habitats were not given proper consideration. Similar actions have been taken by NMFS when considering other nearshore projects including extensive shoreline armoring, overwater structures and marinas,  regional water diversions and  dredging.

Also disconcerting is the agency’s failure to be proactive in listing species under the ESA, with all of the Puget Sound species listed in the past decade, including chinook, orca and rockfish coming only after citizens and non-profit groups petitioned and litigated for species review.
 

Regulatory reform is necessary for the success of Puget Sound recovery efforts.

 
Strong work in support of Puget Sound recovery is needed in a wide range of areas. However, unless we stop the loss of important habitats that currently occurs on a daily basis as a result of a diminished and damaged regulatory system, our fight to save Puget Sound will likely be lost.

As eelgrass and other ecosystem functions continue to be degraded from overwater structures, hard armored bulkheads and stormwater contamination, forage fish populations will continue to decline as will chinook and ultimately , the orcas.

But it’s not too late. Working together, both in our local communities and “backyards” and in the greater Puget Sound region, we can make a difference. We can pay attention to what the regulatory agencies are saying and doing. We can directly involve ourselves in permitting review and decision making in order to ensure that our most fundamental environmental laws are both applied to each and every decision and enforced as necessary.

As part of our new organizational focus, Preserve Our Islands has made a commitment to do just that and will be diligently working to protect the local shorelines and waterways of Vashon-Maury Island as well as the important ecosystems of the greater Puget Sound region.