Environmental and Open Government advocate Arthur West has filed a suit in the United States District Court in Washington DC claiming that the Deschutes Estuary Restoration Project (“Project”) violates the National Environmental Policy Act (NEPA). This follows on the heels of a September 27 suit filed in Thurston County Superior Court alleging the Project’s Intergovernmental Cooperative Agreement (ICA) does not comply with the parties’ own environmental documentation or the State Environmental Policy Act (SEPA), and that it seeks to establish a long term dredging management entity not subject to the Open Public Meetings Act. (See Lawsuit challenges Deschutes Estuary project)
In his November 29 federal court filing, West asks for an order requiring NEPA documentation for the entire project in a complete Environmental Impact Statement (EIS), including the cumulative and related impact analysis for remediation of toxic waste in Budd Inlet and the Port of Olympia and the impacts on the Corps’ interests in the navigational channel.
The suit names the National Oceanic and Atmospheric Administration (NOAA), Washington’s Department of Enterprise Services (DES), the State of Washington, the US Army Corps of Engineers (ACOE), the US Department of Commerce, and the Squaxin Island Tribe as defendants.
West previously prevailed in the federal 9th Circuit Court of Appeals in a published 2000 NEPA case challenging the NEPA review of an Intel-Weyerhaueser backed highway interchange in Dupont, in West v. Secretary of Transportation, 206 F.3d 920 (9th Cir. 2000), and, in 2010, along with Arlington County, challenged the NEPA review of a Bush DOT-appoved HOT Lanes project in Washington D.C.
Major Federal Actions are subject to mandatory review under NEPA
Described by DES as a “monumental estuary restoration in the heart of the Washington State capitol,” the lawsuit claims there is no doubt the “Project” is a major federal action with foreseeable significant impacts as defined by NOAA, ACOE and Council on Environmental Quality (CEQ) regulations. As such, NEPA requires that all such impacts be defined and assessed together in the context of a full NEPA EIS prior to any commitment of federal funds. Yet NOAA has already committed $6,400,000 of federal funds to the “Project” through a Cooperative Agreement Grant to the Squaxin Tribe.
The suit alleges that the Project will have significant impacts on toxic sediment and water quality in Budd Inlet and is interrelated with the ongoing remediation of toxic dioxin bearing sediment in adjacent areas of Budd Inlet, which is a federally listed 303(d) impaired body of water. NEPA requires federal permitting for work in federal waters as well as prior to the distribution of federal funds.
The Project has not yet set, and does not mention any current plans to complete–or even begin–a NEPA EIS, despite the clear requirements of NEPA law and despite evidence strongly indicating that participants in the Project knew full well that a NEPA EIS was required.
DES’ “really cool role” in the Project omits NEPA review
According to Ann Larson, Special Assistant to defendant DES Director Smith, “The Deschutes Estuary Restoration Project is the largest estuary restoration in an urban setting in the nation” in regard to which the “DES has a really cool role.”
Unfortunately, this “really cool role” apparently has not been perceived by the defendants as including the necessary NEPA review required “at the earliest possible time” under NEPA law. Instead, the suit alleges each of the defendants has “deliberately flaunted their disregard of the requirements of NEPA and attempted to advance a major federal action under cover of a woefully inadequate and piecemealed analysis and in the absence of the mandated NEPA review.”
The State of Washington was aware federal funding, and therefore NEPA review, was reasonably foreseeable for such a large project, as shown by an excerpt from a 2007 Final Deschutes Estuary Feasibility Study by Moffat and Nichol, an engineering and consulting service, which also highlighted the risks of dredging then recently discovered dioxin bearing sediments in an urbanized area.
Federal funds were committed by NOAA to the Squaxin tribe in August, 2024 under a Cooperative Agreement under the Habitat Conservation program. It was to be used by the Tribe “to remove the 5th Avenue Dam” to help create habitat for the recovery of threatened Puget Sound Chinook salmon and to “expand barrier removal efforts.…in South Puget Sound.”
NOAA not only committed funds to the Project, but also plans to have significant involvement. In the notice associated with the Cooperative agreement, NOAA writes “Your award is a cooperative agreement. This means that NOAA intends to keep in regular contact and have substantial involvement in award activities…If there are any changes in your plans…please let your NOAA project team know. There may be implications under the National Environmental Policy Act.”
The ACOE also acknowledged a NEPA EIS was required to remove the dam. The ACOE was part of a study partnership, The Puget Sound Nearshore Estuary Restoration Project (PSNERP), formed in 2001 with the Washington Department of Fish and Wildlife (WDFW) to determine the ecologic needs of Puget Sound. PSNERP evaluated 36 sites for restoration around Puget Sound. Attempts by the Capitol Lake Improvement and Protection Association (CLIPA), the organization that was originally charged with studying how to improve Capitol Lake to obtain funding to remove the dam and restore the Deschutes estuary, were twice denied by PSNERP. Why? A series of emails between PSNERP and members of CLIPA from April 18 to July 7 in 2015 show that the ACOE determined that the increased sedimentation in the Federal authorized navigation channel of the Port of Olympia that would result from removing the dam would cause unacceptable negative impacts to the Corps’ operations and maintenance of that channel. They could not support a restoration project that would increase costs for its primary responsibility to maintain navigation.
In an email to then State Senator Karen Fraser, Jessica Winkler from the ACOE writes, “If a non-Federal entity proposed to remove the dam at Deschutes, they would be required to coordinate that proposal with the Corps under our Section 408 permitting process (33 U.S.C. 408). “
Significantly, after her commnication with the Corps, Senator Fraser noted to concerned citizens that “The environmental benefits of Deschutes Dam removal are strikingly low!”
The Project and the Budd Inlet cleanup are interrelated
The inextricability of the Estuary Project from context of the ongoing Budd Inlet cleanup was recognized by DES in a recently executed Memorandum of Understanding between the State and local municipal and Quasi-municipal entities. It stated that lower Budd Inlet would be remediated to conditions satisfactory to the Department of Ecology and the ACOE prior to and separate from construction of the Estuary Alternative and that the dam would not be removed until the cleanup was complete.
Yet, the recently adopted Interlocal Agreement (ILA) between the same parties does not include this condition.
Of note are comments by Floyd Snider, the Seattle-based engineering and environmental consulting firm which was selected by DES as the consultant for the Project. Their Consultant Selection Contact form submitted to DES states
“modeling will also show how sediment deposition can support Port remedial designs and significantly reduce [the] costs of that project.”
The lawsuit alleges that this demonstrates that “both defendant DES and their consultant are well aware of the interconnected nature of the two (restoration and remediation) projects, but are deliberately delaying comprehensive NEPA review in an underhanded manner to attempt to unlawfully ‘significantly reduce the costs of that (remediation) project’ most probably by employing the restoration project to covertly skimp on the actual remediation necessary to effective remediation.”
It also claims delegation by DES of any NEPA responsibility to a private party (such as Floyd Snider) might be an unlawful delegation of powers given to DES to a private third party without any authorization.
West notes that: The impermissible segmenting of these two “undeniably related Major Federal Actions”, and the irreversible commitment of federal resources constitute clear violations of NEPA which require a complete EIS that considers “appropriate environmental impact, traffic, economic and cumulative impact studies, in addition to a full consideration of alternatives.”
Request for Relief
The lawsuit requests the D.C Court issue a Declaratory Judgment declaring that the Deschutes Estuary Restoration Project and the Budd Bay Dioxin Sediment Remediation Project are both interrelated Major Federal Actions as defined in NEPA and CEQ regulations, with the potential for significant impacts, and for which a joint NEPA EIS or other adequate form of NEPA documentation is required. .
The suit further requests that the grant from NOAA to the Squaxin tribe be voided, and that the State and Federal defendants be compelled to comply with the requirements of NEPA in regard to assessment of appropriate environmental impacts of the Deschutes Estuary Restoration Project, including the interrelated Budd Inlet Toxic Sediment Remediation project, in a NEPA EIS.
The suit also seeks an Order prohibiting further awards to, or expenditure of federal funds by, the State defendants pending a full NEPA EIS of the Deschutes Estuary Restoration Project in conjunction with NEPA review of the Budd Inlet Remediation, “pending a full NEPA EIS of the Deschutes Estuary Restoration Project and any related cumulative impacts of the Dioxin remediation in Budd Inlet.”
The defendants, by deliberately proceeding with and/or acquiescing in the advancement of the Deschutes Estuary Restoration Project in the absence of comprehensive NEPA review, have done the public a disservice, and have attempted to define the project parameters of Major Federal Actions prior to any form of required NEPA review or documentation, concludes West in the final allegation in the suit.
Esther Kronenberg is a frequent contributor to Works in Progress
This is the second article published by WIP, written by the same author, about lawsuits filed by the same person regarding the Deschutes Estuary Project. As I think your readers know, lawsuits are allegations by the plaintiff that have to be proven factually in court. And there is always the other side, to be presented by the defendants. Then decisions on the facts, and what legally they mean, are up to a judge or jury. I think the readers of WIP are entitled to hear “the other side” of this discussion, and look forward to WIP publishing an article with the defendants’ responses to the lawsuits. In the meantime, your readers might want to go to the website deschutesestuaryproject.org for a history of the process for determining what to do with a sediment-filled and contaminated lake, and the current status of that project. The most recent process (there have been several over time) that led to a decision to restore the river and estuary included committees with broad participation by local citizens and organizations (including CLIPA), local governments, state agencies, and the Squaxin Tribe.