A federal NEPA lawsuit in the District of Columbia is raising serious questions about whether Washington State agencies misled not only the public—but also the U.S. Department of Justice (DOJ), NOAA, and the federal court—about the true status of the Capitol Lake–Deschutes Estuary/Budd Inlet restoration project. Environmental advocate Arthur West filed suit in the U.S. District Court for the District of Columbia and recently was granted leave to amend it to allege a pattern of concealment, omissions, and outright misrepresentation of material facts by state officials.
At the center of the dispute is what the lawsuit calls a “uniquely unlawful” State Budget Proviso—a line buried in last year’s 3400+ page long operating budget that pre-commits the outcome of the project. Rather than treating the federally-funded restoration as an open question requiring environmental review, the proviso mandates the project design, locks in a preferred alternative, dictates hydrologic outcomes, and effectively eliminates all other options.
According to the lawsuit, state officials never disclosed this to DOJ or the Court which were unaware of these circumstances until West moved to supplement the record and file an Amended Complaint in October.
The False Story About the First NOAA Grant
One of the most explosive claims in the suit is that the State of Washington bald-facedly misrepresented basic facts about the first major NOAA cooperative agreement. In court filings and communications, Washington officials reportedly implied—or directly stated—that the $5 million federal grant was an agreement “between NOAA and the Squaxin Tribe”.
The truth? Roughly 90% of the money actually went to the Washington State Department of Enterprise Services (DES). The Squaxin Tribe received only a small portion.
According to the lawsuit, this misrepresentation minimized the State’s central role and concealed the extent of Washington’s federal funding obligations. It also hid the fact that DES—not the Tribe—was driving the project and shaping its scope.
Undisclosed New Berm Designs, Undisclosed $50 Million in Grant Applications
The State also failed to disclose major new design elements in the project, including:
• consolidated berm designs;
• revised tidal-exchange structures;
• new hydrodynamic and sediment-transport modeling;
• changes that materially alter environmental impacts.
All of these project-defining decisions trigger NEPA requirements for updated environmental review. But, according to West’s complaint, none were disclosed to DOJ or to the Court—even as the State attempted to mislead federal officials that nothing major was happening.
Meanwhile, the lawsuit alleges the State was simultaneously pursuing another nearly $50 million in grant applications to advance the project even further—another fact never revealed to DOJ or the Court. Those applications reflected a deeply committed project trajectory, not the tentative, noncommittal planning picture the State presented.
The Most Damaging Omission: A Legislative Mandate Never Revealed to DOJ or the Court
Perhaps the most troubling allegation is that the State never disclosed the existence—or the binding legal impact—of the 2025 Legislative Budget Proviso, the state law that pre-determines the project outcome before NEPA review.
This proviso dictates:
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mandatory physical design features,
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specific hydrologic configurations,
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outcome-based project goals, and
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funding conditions tied to only one alternative.
No other environmental project subject to NEPA has ever had project elements dictated by State Legislative action without prior NEPA review, because State Legislatures completely lack authority to issue legislative fiats that command and predetermine the elements of a major federal project.
Yet the DOJ and the Court were reportedly told nothing about it until the plaintiff brought it to their attention.
DOE Quietly Took Over the Project—Also Not Disclosed
Adding to the concerns: the lawsuit alleges the Department of Ecology (DOE) quietly took over effective control of the project, displacing DES in key planning and modeling decisions. This transfer of authority—an important factor for federal oversight—was likewise never disclosed to DOJ or to the Court until the plaintiff included it in the Amended Complaint. As West noted in a declaration…
”But DES, having lost its control of the project, now protests too little, like an inverted Queen Gertrude in a farcical theatrical performance where their silence speaks in volumes and more loudly than any legal brief.
There is a certain austerity in its silence, the kind of rectitude that insists most strenuously on its virtue while withholding the critical facts and circumstances.
Like a modern day Monarch of the Sea, When litigation breezes blow, DES slyly goes on the down-low, and seeks the advantage that their silence grants, and so do their counsel and their consultants.”
A Pattern of Misrepresentation and Non-Disclosure
Taken together, the lawsuit depicts a state apparatus that:
• misrepresented who received federal grant money;
• concealed ongoing design decisions requiring NEPA review;
• hid tens of millions in additional grant requests;
• failed to disclose a Legislative Budget Proviso that unlawfully dictated the outcome;
• and never informed federal officials that DOE had taken over the project.
West argues the State effectively shaped, advanced, and predetermined a federally-funded environmental project while telling federal agencies and the Court that the project was still in an early, flexible stage with no need for updated review.
“This is not how environmental policy works in a democracy,” West said. “This is DES and the Legislature pre-writing the environmental conclusion, agencies carrying it out behind closed doors, and then assuring federal officials that nothing is happening. The People of Washington deserve better, especially in regard to such a massive project.”
The suit seeks to halt further commitments until NOAA complies with NEPA by conducting a full, updated environmental review free from predetermined outcomes dictated by unlawful Legislative fiats, and one that encompasses the related dioxin contamination in Budd Bay that the project will inevitably affect.
A Ten-Year-Old EIS for a Totally Different Project — and NOAA Went Along With It
One of the most alarming parts of the Project is that NOAA and Washington State are still leaning on a ten-year-old NEPA Environmental Impact Statement that was never written for the project they’re actually building today.
That old EIS wasn’t a blueprint for construction. It wasn’t even a project-level document. It was a vague document that covered the entire multistate grant program, the environmental equivalent of a a nationwide weather report from another decade. It has zero analysis of the actual Deschutes project: new berms, the redesigned tidal flow structures, the updated sediment-plume models, or the growing toxic load in Budd Inlet. It doesn’t reflect worsening dissolved oxygen levels, new climate impacts, or the massive engineering changes the State has quietly adopted.
Under NEPA, this is woefully inadequate. When a project changes, or when new science emerges, the agency must redo the analysis. But instead of pushing back, NOAA has played along, accepting the State’s claim that the old NEPA EIS was “good enough” and letting DES and DOE steer the project deeper into predetermination territory. NOAA had every reason to demand updated science—its own obligations under federal law require it—but the agency let the State move ahead on the strength of an environmental document that doesn’t match the project, the data, or the reality on the ground.
The lawsuit argues that this isn’t just sloppy—it’s unlawful, and it’s happening because Washington officials have been feeding NOAA a steady diet of half-truths and omissions. Instead of getting a full, honest accounting of the new berm designs, the $50 million in additional grant applications, the DOE takeover, or the Legislature’s outcome-mandating Budget Proviso, NOAA and the DOJ got a sanitized version of events that conveniently avoided triggering the need for a new environmental review. The people of Washington didn’t get the truth either—and now both the public and the federal court are left cleaning up the consequences.
If the allegations are true, Washington State may soon find the federal district court in the District of Columbia taking a hard look at what critics say is a deeply troubling pattern of secrecy and unlawfully predetermined environmental policymaking in a massive restoration project impacting areas heavily contaminated with dioxin.
The legal documents in this case can be accessed at this link
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