After decades of studies, in 2022 the Department of Enterprise Services (DES) approved the decision to restore the Deschutes River Estuary by removing the 5th Avenue dam in Olympia. A natural river estuary would eliminate the need to maintain Capitol Lake, and, at least in theory, promises restored salmon runs and cleaner water.
However, the devil is in the details, and how this will be actually implemented has drawn criticism and, more recently, a lawsuit.
Through a legislative workgroup, DES and local jurisdictions have come together to create an Intergovernmental Cooperative Agreement (ICA) that contains new material and a new non-public governing board, features not present in the EIS. Critics claim the ICA will make almost certain a less than thorough environmental review and contribute to more ”piecemealing” of review of development projects on Budd Inlet. (See “Piecemealed to Death” in this issue of WIP.)
Most problematic, the ICA’s stated purpose is not exactly to effectuate the actual EIS, but a project that is “generally described as the estuary alternative” of the Environmental Impact Statement (EIS), and which the ICA admits will be “significantly advanced” from and differing from the EIS, conceding that “the description contained in the EIS is (only) a good representation of key components of the Project.”
The ICA also incorporates policy statements not in the EIS to describe and states
“The purpose of this Agreement is to describe and formalize the role of each Party in funding and governance for Sediment Management in navigational areas of West Bay,” i.e. management of the 35,000 cubic yards yearly that is projected to flow into the West Bay marinas and navigational channels of the Port over the two decades after the dam is removed.
To achieve their newly stated goal to support a working, urban waterfront with recreational and commercial boating, the parties to the ICA agree to “share in administering, funding and implementing Sediment Management that will be needed in West Bay to …avoid significant adverse impacts to the marinas and Port…” Significantly, there is no mention in the ICA of significant impacts from disturbing the toxic waste present in the existing sediments at these locations. (See “Budd Inlet – You don’t know what you got till it’s gone” in this issue of WIP.)
Another feature not in the EIS is a non-public governing board that, without public input or oversight, will make all of the decisions on dredging for the next quarter of a century. The ICA creates a new, non-accountable body termed the Deschutes Estuary Steering Committee (the DESC) to oversee all dredging for the next 25 years. The normal process of the State Environmental Protection Act (SEPA) would see DES as the lead agency for implementing the EIS, subject to all local, state and federal laws. Normally DES would conduct a full environmental review that included the irreversible commitment of public funds, the goals of the project, the cleanup of toxic sediments in the Port, development along Budd Inlet, and opportunities for restoration–with transparency, public scrutiny and accurate and accessible record- keeping.
Instead, the DES and local governments in the proposed ICA have cobbled together the Deschutes Estuary Steering Committee, a Frankensteinian type of “agency” that will have the power to make decisions and set policy until December 31, 2050. This committee has no requirement for public meetings, no clear responsibility for disclosure of records, and no effective public oversight.
A Lawsuit Challenges the ICA
On September 27, 2024, Olympia resident Arthur West filed a lawsuit in Thurston County challenging the legality of the proposed Deschutes Estuary Restoration Project Interlocal Agreement between the Washington State Department of Enterprise Services (DES), the cities of Olympia and Tumwater, Thurston County, the Port of Olympia and the LOTT Clean Water Alliance.
West is a longtime environmental and open government activist whose lawsuit against the Port of Olympia precipitated the discovery of dioxin in Budd Inlet in 2007. His recent suit claims the ICA violates the state’s Interlocal Cooperation Act, SEPA, the Open Public Meetings Act (OPMA), and the Public Records Act (PRA) by creating an extra-statutory “functional equivalent of a State Agency” and a non-public decision-making governing board that collectively evades the statutory responsibilities of the ICA members.
All the parties to the ICA are legally bound, as state agencies or municipal and/or public entities, to follow and enforce SEPA, the OPMA and the PRA, among others. However, West claims the proposed ICA facilitates subversion and evasion of these obligations and responsibilities as described in the state Interlocal Cooperation Act.
West claims that, because the proposed ICA would relieve the parties from following (and would violate) these laws that they as public entities, are subject to, the proposed “Deschutes Estuary Restoration Project Interlocal Agreement” should be declared to be void and unenforceable.
Piecemealing in the ICA
In addition to the problems of a new non-accountable government “committee”, the ICA separates out or “piecemeals” different parts of the project’s environmental review. SEPA requires the opposite – complete review of a project’s environmental impacts and the cumulative impacts of all proposed projects on an ecosystem, especially a connected waterway like Budd Inlet that already has been the focus of several government reports, including the Departments of Ecology and Health.
First, West notes that the ICA assumes that the Port completes its cleanup of West Bay before the breaching of the 5th Ave dam, but does not REQUIRE it to do so. In fact, the ICA specifically raises the possibility that Port remediation will not be complete before removal of the dam, which “would significantly increase the cost of maintenance dredging to be conducted under the Agreement by likely requiring dredged material to be disposed of upland, increasing the number of dredge events…”
This piecemealing, authorized under the ICA, poses a number of serious questions: If the toxic sediment in West Bay has not been cleaned up when the dam is removed, will the transported sediment from the Deschutes River cover up or distribute the toxic sediment in the inlet? How will this affect water quality, public health, restoration efforts, endangered species and their habitat?
In its single-minded focus on impacts to commercial interests, West claims, the ICA fails to address SEPA or the National Environmental Policy Act (NEPA) review of the actual serious adverse impacts of the project in regard to existing contamination and instead vests the authority to make these decisions in a secretive “Steering Committee” not subject to open public meetings or any effective public oversight.
The ICA also states that “Prior to and separate from construction of the Project, it is anticipated the Port will implement a project to remediate sediment contamination in West Bay (as part of the larger remediation of Budd Inlet).” The Port’s remediation project is meant to “restore the health of the marine environment…” while the Deschutes Estuary plan is to “improve water quality and ecological functions.”
Another separate piece is the Department of Ecology’s Draft TMDL Plan for the Deschutes River, Percival Creek and Budd Inlet. This is a plan for the maximum amount of a pollutant allowed to enter a waterbody. Not considering this at the same time as the other parts of toxic remediation during dredging of the Inlet will further piecemeal the environmental review.
Other Problems of the ICA
In the ICA, the Deschutes Estuary Restoration Project is defined as only generally consistent with the Estuary alternative in the final EIS, and the ICA states that “The design of the project will be significantly advanced from the Estuary Alternative in the EIS…”
This also violates SEPA, which requires that any substantial changes likely to have significant adverse environmental impacts should have a supplemental EIS. Via the ICA, alterations to the EIS are authorized which have not been reviewed.
Alarmingly, the only significant adverse impacts mentioned in the ICA are vessel access issues at the Port of Olympia and the Marinas due to water depth issues caused by sediment deposition. It appears the ICA is more interested in industry and commercial and recreational boating than in the environmental health of Budd Inlet.
The ICA and the final EIS for the Estuary Project also fail to clearly state how approval will be obtained from federal agencies responsible for any work in federal waterways.
In short, the transformation of an entire estuary with endangered salmon and orcas is a major environmental action that should be subject to a coordinated review under both NEPA and SEPA. Implementation of the EIS via the unorthodox means of a policy-setting secretive committee of the ICA is contrary to the policy of comprehensive review, transparency, and public oversight. Piecemealing bits of the review will also compromise its effectiveness.
West asserts that the very creation of the ICA and the DESC board to effectuate a decades-long course of action should trigger a SEPA review because “adoption of a plan or program that will govern the development of a series of connected actions” is considered an action under SEPA. The irreversible expenditures of hundreds of millions of dollars in the ICA should also require a thorough review under SEPA and NEPA. The first Request for Proposal, released by the DES on October 3, already commits $350 million just for the relocation of the 5th Avenue Bridge.
“The restoration of the estuary and a cleanup through the cooperation of local governments and the state are laudable goals.” asserts West. “However, the determination of how this will be accomplished over the next 25 years through the dubious means of the proposed ICA without comprehensive environmental review or transparent public oversight is a recipe for a toxic disaster.”
For more information, go to Deschutes Estuary Project
Deschutes Estuary megaproject Interlocal Agreement
Deschutes Estuary Interlocal Agreement Lawsuit filed 9/27/24
Esther Kronenberg is a regular contributor to WIP
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