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WASHINGTON DEPARTMENT OF NATURAL RESOURCES; NORTHWEST AGGREGATE COMPANY, an Oregon Corporation, Respondents. I. INTRODUCTION PRESERVE OUR ISLANDS, a Washington non-profit corporation,

The Honorable Mary I. Yu Hearing Date: August 21, 2009 11:00 a.m.

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR KING COUNTY

NO. 08-2-41540-6SEA Appellant, PRESERVE OUR ISLANDS‘ OPENING BRIEF

Appellant Preserve Our Islands (―POI‖), seeks this courts‘ review of a decision made by former Public Lands Commissioner, Doug Sutherland, granting a thirty-year Aquatic Lands Lease to Northwest Aggregates Company (operating as ―Glacier Northwest‖ or ―Glacier‖) to construct and operate an industrial sand and gravel barge loading facility over state owned aquatic lands off of the eastern shoreline of Maury Island, in the waters of Puget Sound.

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It is beyond dispute that the waters off of Maury Island, including specifically the project site, are biologically unique. These waters support host an amazing diversity of marine life and habitat, from the smallest ―forage fish‖ ( e.g., Pacific herring, surf smelt and sand lance), to larger predator fish ( e.g., the federally threatened Chinook and chum

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salmon), to the top of the food chain- the federally endangered Southern Resident killer whales, or orcas. This nearshore area is so special that the federal Endangered Species Act recovery plan for endangered Chinook specially notes that its value to Chinook recovery cannot be overestimated and recommends protecting and restoring all remaining functional shoreline features here from further degradation. In 2000, the then Commissioner of Public Lands, Jennifer Belcher, recognized the importance of the marine waters off of Maury Island, and created the Maury Island Environmental Aquatic Reserve. After Glacier sued to overturn the the Reserve establishment, in 2004 the Department of Natural Resources (―DNR‖) prepared and issued the Maury Island Environmental Aquatic Reserve Final Management Plan. Commissioner Sutherland re-confirmed the status of the Maury Island Environmental Aquatic Reserve in 2004, recognizing, in part that: The habitat diversity of the site is high for the bioregion and includes eelgrass beds, kelp beds, salt marsh, herring spawning grounds, surf smelt spawning grounds, sand lance spawning grounds, Chinook salmon migratory corridors, bull trout migratory corridors, bottom fish rearing habitat, and an important wintering ground for western grebe populations. There are few comparable locations in the bioregion. While DNR is generally authorized to lease aquatic lands for certain uses, its authority is sharply limited when it considers a Lease within an established Aquatic

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Reserve. DNR is absolutely precluded from approving a lease that conflicts with the purpose of the Aquatic Reserve and its Management Plan. The December 2, 2008 Lease approved by former Commissioner Sutherland violates numerous specific requirements of the Management Plan, including, in particular, the Lease‘s failure to primarily serve the goals and objectives of the Management Plan – to protect the environment. More specifically, the 2008 Lease action (1) increases shading over the ―euphotic‖ or light transmitting zone; (2) disrupts the existing critical nearshore ―drift cell‖; (3) fails to eliminate construction and operational noise during forage fish spawning periods; (4) fails to ensure the operational noise will not impact the wide variety of species identified for protection within the Reserve; (5) fails to protect tidelands and bedlands from propeller wash scour; (6) fails to protect marine waters from contamination from upland operation; (7) does not comply with the goals and objective of the reserve; and (8) was issued in violation of the procedures required by WAC 332-30-151. While DNR has amassed a significant ―record‖ for this project, unfortunately, it appears DNR did little more than amass the record. DNR failed its mandate to carefully consider the record and approve a Lease only where the Lease was consistent with the Reserve. DNR failed also to fulfill its management mandate to reach out to other interested agencies or organizations for their input in its review. Instead, DNR willfully and unreasonably determined, despite significant evidence in the record to the contrary, that the Lease was appropriate. This case is not a close call. As discussed below, DNR‘s actions were willful, unreasoning and are not supported by the record. In short, serious mistakes were made

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leading to an arbitrary and capricious last minute decision by an outgoing Public Lands Commissioner. This court should reverse DNR‘s lease decision. II. A. BACKGROUND

DNR’s Management of State Bedlands

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Washington defines ―aquatic lands‖ to include both ―tidelands‖ (the area between the ordinary high water mark ―OHWM‖ and extreme low tide) and ―bedlands‖ (the area waterward of extreme low tide). WAC 332-30-106(5), (9), (63). Washington asserts

and maintains ownership of the bedlands, including relevant to this appeal, the bedlands off of the east shore of Maury Island. Wash. Const., art. XVII, § 1. Management of these valuable and finite lands is delegated to the DNR: The legislature finds that state-owned aquatic lands are a finite resource of great value and an irreplaceable public heritage. The legislature recognizes that the state owns these aquatic lands in fee and has delegated to the [DNR] the responsibility to manage these lands for the benefit of the public. RCW 79.105.010. The legislature‘s delegation of management authority is sharply bounded by statute. RCW 79.105.030; see generally, Ch. 79.105 RCW, Ch. 79.115 RCW; Ch. 79.120 RCW; Ch. 79.125 RCW, Ch. 79.130 RCW, Ch. 79.135 RCW, Ch. 79.140 RCW. DNR is required to manage the aquatic lands and is required to ―strive to provide a balance of public benefits for all citizens of the state.‖ RCW 79.105.030. Recognized public benefits include (1) the encouragement of direct public use and access; (2) the fostering of water-dependent uses; (3) ensuring environmental protection; and (4) utilizing renewable resources. Id. While DNR has express authority to lease state-owned aquatic

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lands, RCW 79.105.210(4), it is also required to ―consider the natural values of stateowned aquatic lands as wildlife habitat, natural area preserve, representative ecosystem, or spawning area prior to issuing any initial lease or authorizing any change in use.‖ RCW 79.105.210(3).

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 REC4002418-2423, REC8000064-66. 25 26 27 28 PRESERVE OUR ISLANDS‘ OPENING BRIEF - 5
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DNR is expressly authorized to withhold lands from leasing that have significant natural values. 79.105.210(4). Pursuant to this authority, DNR created the aquatic reserve program. WAC 332-30-151. Under the aquatic reserve program, DNR is required to consider for reserve status aquatic lands with special educational or scientific interests or ―aquatic lands of special environmental importance threatened by degradation.‖ Id. Once an aquatic reserve is established, DNR is prohibited from issuing leases for activities that conflict with the reserve status. C. Maury Island 1. Existing conditions Id.

Marine water quality along the Maury Island shoreline is classified by the State of Washington as ―extraordinary‖ for aquatic life uses. WAC 173-201A-210; REC4002527; REC4002410. The Project site is documented habitat and spawning ground for three significant ―forage fish‖ including herring, surf smelt and sand lance. REC4002537- 39; REC4002424-27; REC4002451 (map). These forage fish in turn support use of the site for feeding and migration by federally threatened Puget Sound Chinook salmon and steelhead along with chum salmon. REC4002531-37, Indeed, the 2007 Puget Sound Salmon Recovery

Plan recommends protecting ―all remaining functional shoreline features on Vashon-

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Maury Island from further degradation.‖ REC8000043-44.1 According to the Salmon Recovery Plan: The complex shorelines of Maury Island and Quartermaster Harbor are some of the most important forage fish spawning beaches within central Puget Sound. Three large drift cells move northward along both shorelines at the opening of Quartermaster Harbor and the southeastern shore of Maury Island. There are numerous pocket estuaries within the inner Quartermaster Harbor, which create a shallow subtidal shelf when interacting with the northward drift. Restoration of all shorelines within box 19 [containing all of Maury Island] should be considered due to the importance of the forage fish resource to all life history stages of Chinook Salmon. (emphasis added).2 At the top of the food chain, the project site is regularly used by, and is designated critical habitat for, the federally endangered Southern Resident killer whales. REC4002550; REC 4002433 (App. C); REC8000046-47.3 Glacier‘s Maury Island gravel mine is located along the southeastern shoreline of Maury Island. The actual mine is located upland and comprises approximately 235 acres of which approximately 40 acres have been previously disturbed. REC2001971-72. Mining operations occurred historically at Glacier‘s property. In 1968 a barge-loading dock was constructed to allow mined materials to be barged off site. Glacier obtained a lease from DNR for its facility in 1968. Removal of sand and gravel from the site has

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According to the Salmon Recovery Plan: ―[t]he relative importance of low levels of shoreline development in this heavily armored sub-basin cannot be overestimated.‖ REC8000044. 2 Puget Sound Salmon Recovery Plan, Volume II, Regional Nearshore and Marine Aspects of Salmon Recovery, App. E., pp. 39-41. Adopted at 72 FR 2493 (1/19/07). 3 In February, 2008, the National Center for Ecological Analysis and Synthesis, released a map showing the results of a multi-year investigation into the health of the world‘s oceans. The waterways adjacent to Maury Island, in the project vicinity, were identified as one of the few areas that were essentially intact and relatively untouched. REC8000004.
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not occurred via the existing dilapidated dock on state-owned aquatic lands for well over 25 years nor has any significant mining occurred. REC2000490-92. The existing dilapidated structure is unusable, and is missing much of its structure. Id. In violation of the Lease with DNR, Glacier allowed the structure to fall into disrepair and to the point

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 spawning habitat for forage fish including herring, surf smelt and sand lance, and use for 25 26 27 28 PRESERVE OUR ISLANDS‘ OPENING BRIEF - 7 rearing by migrating juvenile Chinook and chum salmon. Id. The 2000 Commissioner Order recognized also that the aquatic resources around the island
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it was no longer capable of functioning. Id. REC2000625-26. Despite this non-use, and violation of lease terms, the lease was renewed in 1978 and again in 1988. In 2000 Glacier applied again to renew it‘s the lease for its dilapidated structure. Because the site had been designated as part of an Aquatic Reserve, DNR Commissioner of Public Lands Jennifer Belcher denied renewal and informed Glacier that its lease expired on November 15, 2000. REC2000490-92. . Under the terms of the expired lease, Glacier was required to remove the dilapidated structure within six months of the expiration of the lease. REC2000625-26 (Lease), REC2000490-92. DNR, however, allowed the dilapidated structure to remain in place while it reviewed the new application against the Aquatic Reserve Management Plan. Id. 2. The Maury Island Environmental Aquatic Reserve

On November 17, 2000, two days after Glacier‘s last lease expired, Commissioner of Public Lands Jennifer Belcher, created the Maury Island Aquatic Reserve (―Reserve‖) and reserved and withdrew the Reserve area from conflicting uses. (2000 Commissioner Order). REC2003734-37. The 2000 Commissioner Order recognized the importance of

the marine waters around Maury Island for supporting eelgrass, algae, geoducks,

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will benefit greatly by reducing and/or preventing further certain leasing activities and associated disturbances within the photic zone (which reaches to depths of up to 70 feet) and within one half mile of the extreme low tide line (which will provide a buffer to the intertidal zone) … REC2003735. While Glacier had previously requested an application to renew their

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lease, on November 17, 2000, DNR notified Glacier that it would not consider a lease renewal and that any new application would need to be considered in light of the habitat issues along the shoreline and the goals of the marine reserve. REC 2000490-92. In 2002, in response to litigation brought by Glacier challenging the creation of the Aquatic Reserve, DNR completed a Non-project Final Environmental Impact Statement for its Aquatic Reserve Program (―2002 EIS‖). REC0001516-1689. The 2002 EIS did not focus on individual reserves, but instead focused on the environmental effects of the larger state-wide proposal. The 2002 EIS recognized that the objective of the Aquatic Reserve Program was to ―implement a state-wide program for aquatic reserves that will provide a tool to assist DNR in ensuring environmental protection as directed by the legislature … .‖ REC30001526. DNR followed up its general 2002 EIS with more detailed environmental review of its decision to designate the Maury Island Aquatic Reserve and create the Maury Island Environmental Aquatic Reserve Management Plan. REC4003461-750. On October 29, 2004, DNR issued a Final Supplemental EIS and Reserve Management Plan for the Maury Island Environmental Aquatic Reserve. While the 2004 Supplemental EIS recognized Glacier‘s request for a new lease, it did not evaluate specific environmental impacts of Glacier‘s proposal. See generally¸ REC4003469-750.

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The October 29, 2004 Maury Island Environmental Aquatic Reserve Final Management Plan (―Management Plan‖) serves as DNR‘s primary management guide for activities within the Reserve. The Management Plan confirms that the Reserve was ―designated to conserve (preserve, restore, and/or enhance) the habitats and species that make the site unique.‖ REC4002338. Through the plan, DNR formulated the following goals in order to conserve the critical habitats and associated species:
 Preserve, or restore and enhance where there are opportunities, native habitats and associated plant and wildlife species, with a special emphasis on forage fish, salmonids, and migratory birds. Preserve, or restore and enhance the functions and natural processes of nearshore ecosystems with a special emphasis in support of the natural resources of the reserve. Promote stewardship of riparian and aquatic habitats and species by providing education and outreach opportunities and promoting coordination with other resource managers. Support traditional recreational (i.e., boating, water skiing, fishing), commercial (i.e., marinas), and cultural uses in and adjacent to the site and promote responsible management of these uses in a manner consistent with the other goals for the reserve.

REC4002338. Following adoption of the Management Plan, on November 8, 2004, the Public Lands Commissioner again issued a formal Commissioner‘s Order withdrawing and designation the Maury Island Environmental Aquatic Reserve. REC4002751-53. Based on the following attributes, the Commissioner found the Maury Island ―unique and critical‖:  The sites includes a significant spawning area for a major stock of herring. Quartermaster Harbor represents one of only 18 distinct Pacific herring spawning areas in Puget Sound. Herring are a critical food source for higher
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 REC4002751.  

predators in the food chain, including salmon. Herring spawn in Quartermaster Harbor and along the southeastern shore of Maury Island. The site also includes a portion of the stock‘s pre-spawning holding area. *** The eastern shore of Maury Island is included in a unique continuous drift cell (area of mud, sand or gravel material moved in the nearshore zone by waves and currents) that converges with another drift cell at Point Robinson. The habitat diversity of the site is high for the bioregion and includes eelgrass beds, kelp beds, salt marsh, herring spawning grounds, surf smelt spawning grounds, sand lance spawning grounds, Chinook salmon migratory corridors, bull trout migratory corridors, bottom fish rearing habitat, and an important wintering ground for western grebe populations. There are few comparable locations in the bioregion.

While the Commissioner‘s Order recognized the existence of Glacier‘s pending lease application within the Reserve, it confirmed that evaluation of the proposal was ―to determine how and if this activity can be conditioned to ensure the conservation of the habitat and features of the site, while primarily serving the objectives of the reserve

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designation.‖ The Management Plan included a list of specific management provision to address during DNR‘s subsequent review of Glacier‘s appliciation. REC4002752. 3. Glacier’s Proposal

Glacier proposes construction of a new barge loading facility within the Reserve along the southeast coast of Maury Island (―Project‖). The proposed Project includes

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will cover more than 8000 square feet of surface waterward of the OHWM. Id. Once constructed, the facility will operate five days a week from 7:00 a.m. to 7:00 p.m. REC6001808. The facility is capable of filling between 2 and 5 barges per day (or up to 10 barge and tug trips per day) for the next several decades. Id.

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 is willful and unreasonable and taken without regard to the attending facts and 25 26 27 28 PRESERVE OUR ISLANDS‘ OPENING BRIEF - 11 circumstances. Public Employee Relations Comm’n v. City of Vancouver, 107 Wn. App 694, 703 (2001).
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On December 2, 2008, just weeks before the end of his term, Commissioner of Public Lands, Doug Sutherland, approved Glacier‘s proposed lease within the Reserve. REC1000001-40. This action followed. III. ISSUE FOR REVIEW

Was DNR‘s action approving an aquatic lands lease for Glacier‘s barge loading facility within the Maury Island Environmental Aquatic Reserve arbitrary and capricious? IV. A. Standard of Review DISCUSSION

This matter comes before the court under RCW 79.02.030, which governs appeals of DNR decisions to lease public lands. Under that statute, ―any party feeling aggrieved by the judgment of the superior court may seek appellate review as in other civil cases.‖ RCW 79.02.030. The Court‘s review of DNR‘s action is based on the agency‘s certified administrative record. Id. While RCW 79.02.030 states that review is de novo, as a general rule in Washington, review of agency administrative actions are reviewed under and arbitrary and capricious standard. See, Yaw v. Walla Walla School Dist. No. 140, 106 Wn.2d 408, 413, 722 P.2d 803. An agency action is arbitrary and capricious if its action

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B.

The Lease Conflicts with the Maury Island Environmental Aquatic Reserve Status

Once an aquatic reserve is established, activities within the reserve area are necessarily limited. Indeed, ―[l]eases for activities in conflict with reserve status shall not be issued.‖ WAC 332-30-151(2). For the Maury Island Reserve, the Management Plan is the critical component in insuring that WAC 332-30-151(2) is not violated. REC4002351. All proposals, whether new, pending, or continued uses, must meet three

screens prior to approval. REC4002352. Specifically, all proposals must meet (1) the ―General Programmatic Principles in Section 5.2.1 of the Management plan; and (2) general management provisions for specified uses in Section 5.2.2. of the Management plan. In addition, certain pending use applications, including Glacier‘s are required to meet the ―Specific management strategies in Section 5.2.3 of the Management Plan.‖ REC4002352.

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DNR‘s Lease decision conflicts with at least 6 of the specific management provisions for Glacier‘s proposed Project. Moreover, the Lease violates the overriding general programmatic Reserve requirement that all leasing activities must primarily serve the objective and goals of the reserve. DNR‘s decision issuing a Lease is without basis and arbitrary and capricious. 1. DNR’s Lease decision violates the specific management provisions for Glacier’s proposed project a. DNR’s determination that the Project will not increase shading of the euphotic zone over existing conditions is arbitrary and capricious

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REC4002542. Consequently, knowing, and protecting the areas where eelgrass and macroalgae grow is important for achieving the Reserve goal of conserving and enhancing native habitats and associated plant and wildlife species – including forage fish and salmonids. REC4002330. The ―euphotic zone‖ is defined as the uppermost portion

of the water column where light levels are high enough for photosynthesis to occur. REC4002542. It is well accepted that overwater structures and their resulting shade can have a negative effect on aquatic species. As recognized in Washington Department of Fish and Wildlife‘s 2006 ―Overwater Structures and Non-Structural Piling White Paper,‖ Populations and diversity of aquatic species in the Pacific Northwest can be severely limited in environments shaded by overwater structures when compared to adjacent unshaded, vegetated habitats. … Overwater structures can create sharp underwater light contrasts by casting shade in ambient daylight conditions, in turn limiting light availability for plant photosynthesis and growth. Limiting photosynthesis indirectly impacts the food chain for fish and invertebrates. Artificial structures affect distributions, behavior, growth, and survival of fish and invertebrates in the vicinity of the structure. REC6000586. The Management Plan recognizes the importance of protecting and enhancing the euphotic zone. The specific management provisions for Glacier‘s proposed Project mandate that existing and new facilities at Glacier‘s Project location ―not increase shading of the euphotic zone over existing levels.‖ REC4002385. The Project, however, significantly increases shading in the euphotic zone over existing levels.

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i.

Location of the euphotic zone

The 2000 Commissioner‘s Order recognized that the euphotic zone around Maury Island was quite deep: The aquatic resources surrounding Maury Island will benefit greatly by reducing and/or preventing further certain leasing activities and associated disturbances within the photic zone (which reaches depths of up to 70 feet) and within one half mile of the extreme low tide line … REC2003735. The October, 2004 Final SEIS agreed, confirming that regional literature placed the ―outer limit of the nearshore and euphotic zones‖ at approximately minus 66 feet below mean low water. REC4002542. Within Puget Sound, the lower depth boundary is typically defined as the lowest depth aquatic vegetation occurs. REC4001120. Study at the Maury site by Glacier‘s consultant Ron Thom of Battelle Laboratories, placed the euphotic zone (for

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phytoplankton production) at -43 feet below mean low water. REC4001123. Macroalgae surveys done for the 2000 King County EIS documented kelp (laminaria) at the precise project location in concentrations of between 10% and 90% at a depth of 31 feet below mean low water – the deepest location surveyed – beyond the edge of the existing structure. See REC 2002420, 2002434 (map); 2002447-48 (surveys).4 Subsequent

macroalgae surveys performed by Glacier‘s consultants documented macroalgae at densities of up to 95% total cover in the area between the waterward face of the existing structure extending out to the waterward face of the proposed, longer, structure.

See also, REC2001313 (Nearshore Impact Assessment).
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REC6000586. It appears that most, if not all of the Proposed new structure lies within the euphotic zone as defined by Thom. REC6000586. ii. The Proposed structure increases shading

In order to evaluate whether the Proposal increases shading of the euphotic zone, it 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PRESERVE OUR ISLANDS‘ OPENING BRIEF - 15
On November 26, 2008 – just 6 days before the Lease was approved, DNR Aquatic Lands Steward Fran McNair wrote staff: ―Please make sure that staff carefully calculate all the dimensions of both the old and new dock. We can‘t afford any missteps on these calculations. It really looks as if shading is their major point.‖ REC6000582
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was necessary for DNR to understand and evaluate three questions: (1) what is the size and shade footprint of the existing dilapidated structure; (2) what is the size and shade footprint of the Proposal; and (3) how does the shading change between the existing structure and the Proposal. Despite fully recognizing the importance of performing this comparative analysis, DNR failed to do so.5 According to Glacier‘s 2001 application provided to state and federal agencies, it identified the size of the surface area of the existing dilapidated pier structure as 3,680 square feet REC8000010. In 2002, Less than a year later, and without explanation, Glacier submitted a revised table showing that the existing surface area of the structure measured 8940 square feet. REC8000011. Glacier‘s number was revised again in 2008 materials to 8821 square feet. REC8000012. Because of Glacier‘s shifting numbers, in 2008 appellant POI contracted AMEC environmental consultants to physically measure the existing structure and to calculate the accurate surface area of the existing dilapidated structure. The AMEC measurements and evaluation found that, even if counting the open air conveyor frame as solid surface, the total surface area of the entire structure- both upper and lower levels was approximately
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5016 sq feet ( including both the dolphins and the piling values). REC8000015. See also, photos at REC8000003. AMEC found also that the more accurate measurement of the existing structure – which did not count the open frame as solid surface area -- was approximately 2521 square feet. Id.

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Following up the analysis by AMEC, POI then had a professional shading analysis 25 26 27 28 PRESERVE OUR ISLANDS‘ OPENING BRIEF - 16 performed by Fox Architects. The Fox Architect‘s model compared the shading from REC8000017. words, the proposed new structure is over twice the size of the existing structure. Taking into account the actual site conditions, including missing boards and open, non-shade producing conveyor frame, the existing structure has 72% less shading surface than the proposed Project. REC8000017. As AMEC concluded, based on Glacier‘s plans and reported values: Based on the foregoing measurements and analysis, and assuming that the surface area reported by Glacier Northwest for the new structure is accurate, it is our professional opinion that the new structure will cast a significantly larger shadow than the existing structure. If the existing structure is replaced by the proposed structure, plants and animals in the vicinity, especially in the areas directly shaded by the new structure, can be expected to be adversely affected. The gross shade producing surface area of Glacier‘s proposed Project is 9094 square feet (8821 plus and additional 273 square feet for pilings). REC8000017. According to AMEC, if they used their calculated maximum size for the existing dilapidated structure (e.g., assuming a the open air conveyor frame was solid surface) of 5016 square feet, it means that the is only 45% the size of the proposed Project. In other

the existing structure with shading from the proposed Project. REC6000569-73. The
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shade model of the existing structure was taken from design plans for the existing dock as well as the existing dock measurements made independently by AMEC. the existing structure were also provided. REC6000569-73. Photographs of

The shade model for the

proposed Project was derived from Glacier‘s approved plans. POI then asked the environmental consulting firm Marine Surveys and Assessments, to evaluate the findings of the Fox study specifically in relation to the Management Plan. Both Fox and MSA found that the proposed Project would increase shading during all months of the year and times of the day. REC6000584-587.6 For example, during the important June growing month, the proposed Project increased shading over existing conditions by up to 88%. Id. MSA concluded that its opinion was ―that upon review it is clear that the proposed structure significantly increases shading in the euphotic zone….‖ REC 6000587.7 iii. DNR failed to assess the shading effects of the Project prior to approving the lease

Despite the express requirement in the Management Plan that DNR understand whether the Project would increase shading of the euphotic zone, and despite the call by DNR‘s Aquatic Land Steward that staff carefully calculate all dimensions, REC6000582, the only comparative shade analysis in the record is the analysis provided by POI through its expert consultants. Neither Glacier nor DNR conducted a shade comparison. The

only DNR ―evaluation‖ in the record is a short last minute staff review attempting to

Further, when shading from the barge itself is considered, shading during June is increased over 390% from existing conditions. Id. 7 Preserve Our Islands presented the information related to the reported dock size discrepancy in July of 2008 REC8000006-17 , preliminary findings of the comparative shade analysis on October 31 REC6000245 and 246, Final analysis from Fox architects REC6000567 -573 and preliminary assessment from MSA on Nov 18th REC6000476-479 and a revised assessment from MSA on November 25, 2008. REC6000584-587.
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dismiss the information provided by POI. REC6000925-6. This analysis makes several significant errors. First and foremost, the last minute staff analysis makes the incorrect assumption that DNR‘s purpose in protecting shading of the euphotic zone is only for the purposes of protecting eelgrass. REC6000925. This ignores the plain language in the Management Plan that ―existing and new facilities should not increase shading of the euphotic zone over existing levels.‖ REC4002385. Nothing in concise and specific requirement limits the evaluation of change in shading only to eelgrass only. To the contrary, the Management Plan establishes the Reserve goal to ―preserve, restore and enhance where there are opportunities, native habitats and associated plant and wildlife species …‖ REC 4002338. The Management Plan then establishes that this goal will be met in part by: Sustaining or increasing the documented extent and species composition of native aquatic vegetation. A biomass index comprised of vegetation bed area and bed density will be established to reflect native kelp and eelgrass bed conditions at the time of reserve designation. The biomass index of eelgrass and kelp beds should not decrease due to anthropogenic impacts from the baseline level that reflect the area and density at reserve establishment…. REC4002338-39 (emphasis added). Thus, on its face, the Management Plan is concerned with protecting both eelgrass and macroalgae including kelp.8 This is confirmed also by identification of macroalgae
8

Kelp is a common macroalgae that occurs in water depths of 50 to 100 feet (15 to 30 meters) throughout the Puget Sound. Unlike eelgrass, which actually roots in the sediments, kelp is held in place by structures called holdfasts that anchor the algae to rocky substrates (Nybakken 1997). Similar to eelgrass, kelp serves to decrease erosion impacts from waves and currents on nearshore environments. Growth rates for kelp can exceed 2.4 inches (6.0 centimeters) a day and at maturity, individual kelp may be
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and kelp in the Final Management Plan Supplemental EIS9 and as in the Management Plan‘s Appendix C identification of Reserve Habitats and Species. REC400400241718.10 Macroalgae, including laminaria (kelp), provides important habitat for nearshore

organisms; fish, including flatfish, rockfish and perch. REC2001313. Impacts from 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PRESERVE OUR ISLANDS‘ OPENING BRIEF - 19
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shading on the macroalgal community at the project site may indirectly ―affect the functioning capacity of eelgrass beds by isolating the beds and removing the refuge and prey resources associated with the current habitat.‖ REC2001313.11 DNR‘s effort to limit protection solely to eelgrass and ignore other macroalgaes, including the kelp documented at this site, is without support.12

65 to 100 feet (20 to 30 meters) in length. Kelp is an important component of nearshore primary production rates (Nybakken 1997) and in Puget Sound it provides important habitat for a number of grazers (e.g., snails and sea urchins), filter feeders (e.g., anemones), scavengers (e.g., crabs), predators (e.g., rockfish, starfish, and salmonids), as well as a variety of smaller algae. REC 4002417-18. (App C management plan). 9 REC4002541-42. 10 See also DNR biologist Jeff Gaeckles‘ comments on lease review at REC6001373(noting that just because macroalgae does not get the same attention eelgrass gets does not mean that macroalgae isn‘t important). 11 As explained in the 2000 Nearshore Impact Assessment prepared for King County: Macroalgae provides habitat for nearshore organisms. Several species of fish were found to be abundant in Laminaria, including flatfish, rockfish, and pile perch (Jones & Stokes and AR 1999). In addition, zones of macroalgae may provide prey resources and refuge to juvenile salmon as they migrate to eelgrass patches in the vicinity. While no eelgrass was present under the barge area, it has been hypothesized that if sufficient prey resources were available under a dock, juvenile salmon might traverse the area between eelgrass beds (Simenstad et al. 1999). A 10,000-ton-capacity barge will cover approximately 2,450 sq m (26,400 sq ft ... Impacts to the macroalgal community may indirectly affect the functioning capacity of eelgrass beds by isolating the beds and removing the refuge and prey resources associated with the current habitat. A fundamental basis of landscape ecology is the role of spatial pafferns, or proximity of habitat types, to an overall functioning system (Forman and Godron 1986). REC2001313. 12 The last minute staff analysis suggests also that the Fox Architects‘ shade model did not account for shading from the vertical structures of the existing facility when even cursory evaluation of the modeling clearly shows the shading from the vertical pilings in the analysis. REC6000925, REC600056773(shadow analysis showing vertical features).

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Recognizing the importance of protecting the euphotic zone from increased shading the Management Plan specifically precludes increased shading. Despite this express requirement, and despite the discrepancy being pointed out repeatedly, DNR failed even to measure the existing structure, instead simply accepting whatever

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unsupported number Glacier provided. DNR further failed to conduct any comparative analysis of the shading effects of the project. DNR‘s action approving the lease without additional information, and ignoring entirely the only analysis in the record – that provided by expert engineers, architects and biologists provided through POI -- was willful, unreasoning, taken without regard to the attending facts and circumstances, and therefore arbitrary and capricious. DNR’s determination that the project will be constructed to minimize hydrologic alternations and disruptions of nearshore drift cells and longshore currents was arbitrary and capricous i. The eastern shoreline of Maury Island includes a critical drift cell

b.

A drift cell, or littoral cell, is a partially compartmentalized zone along the coast that acts as a somewhat closed system with respect to shore drift. ―Drift cells are systems in which sediment is suspended by waves or currents and transported along the shoreline in a cycle of suspension and deposition.‖ REC4002414. Drift cells are important because ―they are the mechanism that supplies the sediments needed to maintain nearshore habitat quality.‖ REC4002414 ―Drift cells nourish sand and gravel beaches, provide fine

sediments to tideflats, and maintain sand spits and other coastal landforms.‖ Id. Drift

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cells are critical also for the maintenance and development of shoreline features, including forage fish spawning beds and vegetative communities. REC4002414-15. It is well established that the eastern shore of Maury Island, including the Lease site, contains a unique drift cell feature

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The reserve also includes the eastern shore of Maury Island. This area supports a unique, uninterrupted drift cell (area of mud, sand, or gravel material moved in the nearshore zone by waves and currents) that converges at Point Robinson… Such long, relatively uninterrupted drift cells are becoming a rare occurrence in the central Puget Sound region. These physical features are critical for the maintenance and development of accretional shore features. This drift cell feeds a minimally armored sand spit found at Point Robinson, which is also an increasingly uncommon occurrence within Puget Sound. REC 4002355. Further, The eastern shore of Maury Island supports a nearly continuous, uninterrupted drift cell that runs 5.50 miles from the southern edge of the island, northeast to Piner Point to a convergence zone at Point Robinson, with no reversals in direction (Schwartz et al. 1991). The drift cell creates an eddy at the south of Point Robinson that provides feeding opportunities for juvenile fish. Point Robinson also provides the confluence of this drift cell with another that flows southeast along the northern shore of Maury Island (Schwartz et al. 1991). This drift cell is among the longest found in Puget Sound, and relatively uninterrupted drift cells such as this are becoming rare in the central Puget Sound basin. Healthy sediment drift and drift cells are critical for the maintenance and development of shoreline features, including forage fish spawning beds and vegetative communities. REC 4002414-15. The eastern shoreline drift cell is believed responsible for concentrating plankton and nutrients along the beach providing a high level of primary production – thus

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supporting the base of the food chain from forage fish to salmonids to killer whales. REC4002410. Indeed, the Federal Recovery Plan for Chinook salmon recovery

identifies the value of this specific drift cell for its value to Chinook recovery and directs that it be given the highest level of protection from development. REC8000043.

5 6 7 8 9 10 11 12 13 14 and effect relationships (described in Section 5.2.2) of proposed activities to avoid and 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PRESERVE OUR ISLANDS‘ OPENING BRIEF - 22 The starting point for DNR‘s review of Glacier‘s application should have been the Management Plan itself. In the case of drift cells, the the Management Plan presumes
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ii.

The Management Plan direct that nearshore drift cells be preserved, restored and enhanced

The Management Plan recognizes the importance of preserving and enhancing the existing nearshore drift cells. The overall Management Plan goal to ―protect and restore the functions and natural processes of nearshore ecosystems in support of the natural resources of the reserve‖ will be met, in part, by ―[m]aintaining the integrity and function of nearshore drift cell processes.‖ REC 4002339. The Management Plan explains that ―management of activities on state-owned aquatic lands will also rely on recognized cause

minimize potential adverse impacts on nearshore drift cells.‖ REC 4002346. In order to achieve this goal, the Management Plan directs that order to achieve the desired future conditions of the Reserve nearshore drift cells ―shall be preserved, restored and enhanced throughout the reserve.‖ REC4002346. Specific to the Project site, the Management plan requires that in order for the Lease to be approved the Project ―should be constructed to minimize hydrologic alterations and disruption of nearshore drift cells and longshore currents.‖ REC4002385. iii. The Management Plan presumes that large wharves and piers will disrupt drift cells

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that industrial wharves and piers … ―create diversions in the local hydrology and disrupt sediment flow along drift cells …‖ REC4002368-69; See also, REC 4002464. Similarly, the Management Plan presumes that ‗[r]amps, docks and piers can also impact water movements and drift cells.‖ REC4002415. Thus, the starting point presumption should have been that large structures such as Glacier‘s proposal will affect the existing drift cell. Thus, in summary, as DNR reviewed Glacier‘s proposed Lease, it should have recognized: (1) the Reserve was established, in part, because of the well recognized drift cell along Maury Island‘s eastern shore – including the project site; (2) the Management Plan recognizes the importance of the drift cell and directs that the proposed minimize alterations and disruption of the drift cell; (3) the Management plan presumes that industrial piers and wharves create diversions to local hydrology and disrupt flow along drift cells. Unfortunately, DNR failed absolutely to recognize any of these baseline points. iv. The record does not support a determination that the project will not disrupt the eastern Maury Island drift cell

Based on the information and baseline assumptions in the Management Plan, DNR unquestionably had a duty to ensure that prior to issuing the Lease, it both understood the current drift cell and the project‘s potential impacts. DNR failed. Beyond the Management Plan‘s presumption that large wharves and piers disrupt drift cells, DNR biologist John Boettner recognized as early as 1999 that the existing dilapidated structure was at least possibly already disrupting the drift cell:

25 26 27 28 PRESERVE OUR ISLANDS‘ OPENING BRIEF - 23 After discussing the project with Hugh Shipman from DOE and actually seeing the site at a -.7 foot tide, I have to agree that the site is an anomaly as a result of the past
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 REC 2001029.

uses. The bathymetry of the area is higher within the area behind the pier which leads to one of a couple possibilities, 1) The beach is this way due to an excess of material spilled while being conveyed (this was also pointed out by the consultant who took us to the site), and/or 2) The dock is interrupting littoral drift of sediment to the point that the features you see on the beach now exist. I think both possibilities are true, but the first spillage option is the prevalent feature we are seeing today.

Six years later, during DNR‘s review of other agency permits, DNR‘s Aquatic Reserve Program Manager David Palazzi recognized the importance of understanding the project impacts on the drift cell before allowing construction:

REC5000562. Mr. Pazazzi‘s recommendation was ignored.13

The record demonstrates that throughout DNR technical staff‘s permit review and lease recommendation process, DNR staff consistently found that evaluation to the impacts of the proposed structure on drift cell function had not been performed. Indeed,

23 24 25 26 27 28 PRESERVE OUR ISLANDS‘ OPENING BRIEF - 24 in the staff‘s final ―Permit Review Matrix and Recommendation‖ the response to the ultimate matrix question of whether the drift cell Management Plan condition had been
13

This is a pasted copy of the January 10, 2005 Email from David Palazzi to Philip Bloch and Sharon Holley. It is crossed out in the official agency record. REC5000562.
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met, the final November 7, 2008 answer was ―no.‖ REC600692.14 In the matrix comparing the Proposal with the Management Plan conditions staff explains: The discussion on drift cells and long shore currents is weak at best. I was unable to locate any analysis in the FEIS or addendum to the EIS, and there is no analysis in the Corps EA on this section. In a letter to the Corps on the draft EA, King County stated that they were concerned about the protection of the shoreline bluffs. King County was also concerned that 23% of the drift cell along eastern Maury Island had already been modified. REC6000692. In the accompanying staff memorandum, it is further explained: The outstanding issues are related to the movement of sediment; Nowhere in the applicant's EIS or addendum to the EIS is there a description of the drift cell along the eastern side of Maury Island. The permits do not describe this drift cell, or long shore currents, or discuss in depth shoreline modification. … It must be emphasized that Maury Island contains a number of individual drift cells, and the eastern shore supports a nearly continuous uninterrupted drift cell that runs 5.5 miles from the southern edge of the island, northeast to Piner Pint, with no reversals. This drift cell creates an eddy at the south end of Pt. Robinson which provides feeding opportunities for fish. Uninterrupted drift cells are becoming rare in Puget Sound, and this is one of the longest. Healthy sediment draft, and drift cells are critical for maintenance and development of shoreline features, including forage fish spawning beds and vegetative communities. REC6000704-05. The final staff review continues by pointing out that Glacier ―can‖ work with DNR to provide additional detail on impacts to the drift cell and how significant these impacts
The record contains several versions of the staff Aquatic Reserve Condition Permit Review matrix and memorandum. See, e.g., REC6001289-1298 (October 31, 2009)(identifying discussion of impacts to drift cell as ―weak.‖ REC6001291); REC6001318-25 (November 4, 2008); REC6001326-34 (November 4, 2008); REC6001347-58(November 4, 2008 with comments by ―JG‖ (Jeff Gaeckle)(―applicant does not identify impacts to drift cells‖ REC6001355); REC6001299-1317 (November 7, 2008). The ―final‖ version appears to be the version at REC60006860708.
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will be. REC6000705. This analysis, however, was not required prior to issuance of the Lease nor prior to construction of the Project. REC 1000038. While the Lease does

require Glacier ―to provide DNR with an adequate description of the net effect on existing drift cell from the new dock within 60 days,‖ id., nothing in the lease requires, much less ensures, that the project will ―minimize hydrologic alternations and disruptions of nearshore drift cells and longshore currents.‖ REC4002385. Instead, under the terms of the lease, the damage can be done before any analysis is required. This is a direct

violation of the Management Plan‘s requirement that all new and expanding existing projects first avoid and minimize all impacts, and where there is a possible need for compensatory mitigation, that the mitigation be completed prior to construction of the proposed project. REC4002352-53. DNR decision approving the Lease without the necessary analysis in the face of the Management Plan presumption that the Project would negatively affect the protected drift cell, was willful, unreasoning, taken without regard to the attending facts and circumstances and therefore arbitrary and capricious. c. DNR’s determination that the project will eliminate construction, operation and maintenance noise during forage fish spawning periods is arbitrary and capricious i. The management plan requires that construction and operation noise be eliminated during forage fish spawning periods

The project site is documented habitat and spawning ground for three significant ―forage fish,‖ including herring, surf smelt and sand lance. REC4002537- 39; REC4002424-27; REC4002451 (map); REC 2003115 (DNR Comments). These forage fish, in turn, support use of the site for feeding and migration by federally threatened
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Puget Sound Chinook salmon and steelhead along with chum salmon. REC4002531-37; REC4002418-2423. (App C MP). Salmon, of course, are the primary food source for the endangered orcas that also use this site. Recognizing the importance of protecting forage fish, the Management Plan

5 6 7 8 9 10 11 12 13 14 There is no question that construction and operation will produce impacts on 15 16 17 18 19 20 21 REC4002425-26 (App. C.) 22 23 24 25 26 27 28 PRESERVE OUR ISLANDS‘ OPENING BRIEF - 27
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specific management provisions for Glacier‘s proposed Project specifically require that the proposed Project eliminate noise during forage fish spawning period during all phases – construction, maintenance and operation: Impacts from construction, maintenance and operational noise from facilities should be eliminated during known forage fish spawning periods (January through mid-April) if the facility is located in or near spawning areas. REC4002385. The lease fails to comply with this Management plan prescription. ii. Project operations will produce underwater noise

forage fish. Indeed, the Management plan recognizes: Data suggest that sustained noise from large fishing vessels and/or small boats can cause avoidance and alarm responses in herring (Schwarz and Greer 1984). … However, noise from large commercial tugboats and ships in and directly adjacent to spawning areas may be a significant threat to spawning herring, as well as in holding areas off Neill and Piner Points.‖

DNR staff has long recognized the importance of noise impacts on herring and other forage fish. For example, during King County‘s 2000 review of Glacier‘s shoreline permit, DNR‘s Aquatic Reserve Program Manager David Palazzi confirmed succinctly:

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 REC2003117.

There will be definite noise impacts to marine life from barge loading and traffic operations. REC5000682. See also REC2003118 (DNR Comments). As Mr. Palazzi further explained, 6.4 Mitigation Measures: This section does not address impacts to herring spawning. Simply because the DEIS states that herring spawn is "identified in the vicinity of the Lone Star Northwest dock on Maury Island (WDFW 1995) but not at the site itself does not exempt the applicants from evaluating the indirect impacts the project will have on adjacent herring spawning. The state and tribes are prohibited from harvesting geoduck on the Maury Island tract during January and February. The proponents should prohibit any barge loading or traffic during this same time. REC5000681 (emphasis added).15 DNR‘s staff environmental planner similarly

commented during King County‘s 2000 review: Barge loading will create noise and vibrations underwater. The studies cited in this section, and most of the discussion, refer to short term impacts of pile driving and dock maintenance and repair. Noise impacts of barge loading operations need to be addressed separately. This will need to be included in the monitoring and mitigation plan.

During DNR Staff‘s initial review of whether the Project Lease would be consistent with the Management Plan, staff noted that the Management Plan condition

22 23 24 25 26 27 28 PRESERVE OUR ISLANDS‘ OPENING BRIEF - 28 requiring elimination of construction and operational noise during forage fish spawning would not be met. REC5000701. The reviewer explaining that ―noise from approaching tugs will impact spawning herring.‖ Id. Thus, it is clear that DNR staff, at least,
Herring (and surf smelt and sand lance) do indeed use the project site. REC4002537- 39; REC4002424-27; REC4002451 (map); REC8000064-66.
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recognized that construction and operation noise would impact forage fish and thus constructin and operations should be prohibited during forage fish windows. iii. WDFW’s Hydraulic Project Approval does not prohibit operations during forage fish spawning periods

Unfortunately, in staff‘s final ―Permit Review Matrix and Recommendation‖ DNR staff erroneously concluded that compliance with ―work windows‖ set under the Washington Department of Fish and Wildlife Hydraulic Project Approval (―HPA‖) would effectively eliminate these noise impacts. See REC6000692. This error was then transmitted from DNR‘s Aquatic Reserve Program Manager David Palazzi to the Commissioner when he confirmed that impacts from construction, maintenance and operational noise on forage fish would be addressed because ―WDFW‘s Hydraulic Project Approval has established ―construction windows‖ to eliminate these impacts during forage fish spawning periods.‖ REC6000713. This conclusion is simply wrong. WDFW‘s HPA applies only to construction of the Project and not to its operations. The HPA ―work windows‖ do not, in any way, preclude or even limit barge, tug or other shipping operations and their attendant noise. REC6001478-82.16 Recognizing the importance of this site to forage fish, the Management Plan specifically requires that noise from construction, maintenance and operation of the Project be eliminated during forage fish spawning periods. Despite DNR‘s consistent recognition that operational noise from tug and barge traffic would affect forage fish,
Contrary to the management requirement, WDFW‘s HPA also does not ―eliminate‖ construction noise during forage fish spawning periods. The HPA specifically allows construction during both surf smelt and sand lance spawning periods subject only to a condition that weekly surveys are conducted. On its face, the HPA therefore allows construction noise during forage fish spawning period. It also likely allows construction and use of impact hammers during actual spawning as spawning could easily occur during the time period between weekly surveys.
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DNR‘s failure to eliminate these operational noises impacts prior to issuance of a lease was willful, unreasoning, taken without regard to the attending facts and circumstances, and therefore arbitrary and capricious. d. DNR’s determination that noise impacts from operation and barge traffic is minimized so that it will not impact species identified for conservation is arbitrary and capricious i. The Management Plan requires operation noise be minimized to the point that it will not impact a broad list of species.

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In addition to prohibiting construction and operation noise during forage fish spawning periods, the Management Plan specific management provisions for Glacier‘s Project require further that ―[n]oise impacts from operation and barge traffic should be minimized to the point where it does not result in impacts to species identified for conservation in Section 4.0 and Appendix C, including critical fish and wildlife migratory

15 16 17 18 19 20 21 REC2001270, REC4002442-43. Marine mammals include orcas, harbor seals, harbor 22 23 24 25 26 27 28 PRESERVE OUR ISLANDS‘ OPENING BRIEF - 30
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periods.‖ REC4002385. Consistent with the diversity of species using the Maury Island shoreline, the list of species identified in Section 4.0 and Appendix C that are known users of the site is extensive. Fish include Salmonids, herring, sand lance, surf smelt, lingcod, rockfish, flatfish, perch, greenlings, copper and brown rockfish, sculpins, English sole and flounder.

porpoise and dalls porpoise. Id. Bird species include western grebe, marbled murrelet, harlequin duck, common loon, brandts cormorant, common murre, great blue heron, red necked grebe and horned grebe. Id. DNR‘s Lease review failed to fully consider the

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impact of operation noise on these species, much less ensure that operation and barge traffic noised would be minimized to the point where it does not result in impacts. ii. Operation noise will increase significantly over background

Measurements of ambient or background noise levels on the eastern shore of Maury Island, near the end of the existing dilapidated structure, range (depending on frequency) between 70 dB and 90 dB. REC60002382, 60002385. Noise studies at an

existing aggregate barge loading facility in British Columbia found that operation noise from barge loading ( aggregate falling onto the barge) averaged approximately 168 dB. REC8000056. Tug operations at these facilities, produced noise in the range of 182-191 dB. Id.17 The noise scale is logarithmic. As a general rule, an increase of 20 dB results in a ten-fold increase in sound pressure. REC2001291. Humans recognize a 10 dB increase

15 16 17 18 19 20 21 minimum of 40-60 dB for barge loading and 70-90db for tug operations. Even under the 22 23 24 25 26 27 28 PRESERVE OUR ISLANDS‘ OPENING BRIEF - 31
Glacier‘s consultant attempted a similar noise ―analysis‖ by sampling barge loading operations at Glacier‘s Dupont site somewhere between 150 and 500 meters from the source. Glacier‘s consultant then calculated the approximate noise impacts for the Maury Island site. According to their calculations, noise from tug operations would result in a range of 130 to 160 dB, depending on frequency – a 70-90 dB increase over background. Their calculations estimated 122-130 dB for loading operations – a 40-60 dB increase over background. REC6002380-85.
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in noise as approximately a doubling of noise. REC2002161. Based on existing ambient conditions and noise documentation collected from other sites, barge loading operations will cause noise levels at the site to increase between 78-98 dB based on studies at existing mine operations and tug operations will cause noise levels to increase by 101121dB. Even based on calculations by Glacier‘s consultant, noise would increase a

17

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most optimistic evaluation, this represents more than a 100-fold increase in underwater noise. iii. The increase in noise will impact species

The record demonstrates that throughout the decade long project review, biologists 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PRESERVE OUR ISLANDS‘ OPENING BRIEF - 32
―Take‖ means ―to harass [or] harm …. or to attempt to engage in any such conduct.‖ 16 U.S.C. § 1532(19).
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consistently found the projects operational noise would create a significant impact to species identified within the Management Plan. On November 18, 2005, the National Marine Fisheries Service declared the Southern Resident killer whale an endangered species. 70 Fed. Reg 69906. In its determination, NMFS identified specific actions that it believed could potentially ―take‖ 18 orcas. These activities included both (1) coastal development, including pile driving; and (2) the operation of vessels that result in noise levels that disrupts foraging, communication, resting or care for young. 70 FR. 69911; REC6002342. Subsequent to listing The NMFS, as part of their Orca Recovery Plan, continued to identifiy vessel noise, including that from tug boats and barging operations, as a potentially significant impact to the Southern Resident Orcas and their continued existence. NMFS notes the following in reference to Orcas and noise: killer whales rely on their highly developed acoustic sensory system for navigating, locating prey, and communicating with other individuals. Increased levels of anthropogenic sound have the potential to mask echolocation and other signals used by the species, as well as to temporarily or permanently damage hearing sensitivity. Exposure to sound may therefore be detrimental to survival by impairing foraging and other behavior.
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REC8000048.19 Indeed, research as recent as 2007 included in the federal recovery plan indicated that vessel noise was predicted to significantly reduce the range at which echolocating killer whales could detect salmon in the water column.20 In addition to interference with prey capture, elevated underwater noise has also been found to completely displace orcas from historic foraging areas.21 As with impairing foraging and displacement, elevated underwater noise levels in the range that would be produced by Glacier‘s operations will also impact orcas by masking communication calls. These calls have been documented to the in the range of 105db to 160db. They are the predominant sound type during foraging and traveling and are used for maintaining acoustic contact with other groud members and are an essential element in the species complex social structure. REC8000048 In recognition of the impacts from underwater noise, NMFS has established 160db

15 16 17 18 19 20 21 impacts to orcas from noise in his draft comments to the Army Corps of Engineers. 22 23 24 25 26 27 28 PRESERVE OUR ISLANDS‘ OPENING BRIEF - 33 REC5000268. Unfortunately, Mr. Murphy‘s comments were dismissed and deleted by DNR prior to the comment letter being formally filed. Id. (comment letter with edits);
The Recovery Plan for Southern Resident Killer Whales was adopted on January 24, 2008, 73 Fed. Reg. 4176. A complete copy is available at http://www.nwr.noaa.gov/MarineMammals/Whales-Dolphins-Porpoise/Killer-Whales/ESA-Status/upload/SRKW-Recov-Plan.pdf 20 The Recovery Plan for Southern Resident Killer Whales at II-107 (citing Holt, 2007). 21 Morton and Symonds 2002. REC8000049
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as the threshold for ― take‖ of orcas and other marine mammals due to harassment under the Endangered Species Act and Marine Mammal Protection Act. REC800048. DNR was certainly informed of these ―take: threshold and of likely significant impacts on orcas during its review. REC6000560, REC8000046-52. In fact, Aquatic Reserve staff biologist Kyle Murphy registered significant concerns with the Project‘s

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REC5000273 (final comments). While the edits to Mr. Murphy‘s letter suggest DNR should ―just let the NMFS deal with this issue,‖ REC5000268, this shirk of responsibility is directly contrary to the Management Plan, which mandates continued review of all local, state and federal permits to evaluate whether the resources are provided long term

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 bird populations in the area. REC4002348 25 26 27 28 PRESERVE OUR ISLANDS‘ OPENING BRIEF - 34
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protection. REC4002386. There is no record that DNR considered, much less evaluated operational noise impacts to orcas. Indeed, appellants are unable to find documentation in the DNR record that DNR even received the final concurrence letters from the National Marine Fisheries Service. In addition to orcas, the record is absolutely void of any DNR analysis of noise impacts on other identified marine mammals identified within the Management Plan that use the project site, including, harbor seals, California sea lions, harbor porpoise and dalls porpoise. These marine mammals, which are susceptible to the same noise impacts as orcas, are also at risk from operational noise. As discussed above, NMFS considers noise above 160 dB rms as ―harassment‖ that can result in a ―take‖ of marine mammals. REC8000048. By failing to even consider impacts to the marine mammals listed as species for conservation in appencix C , DNR has failed to meet the required mandate in the Management Plan. Similarly the record is void of any consideration or evaluation of noise impacts to the Marine bird species listed for conservation in the management plan even though the management plan directs as a DNR goal the sustaining of habitat that supports important

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In addition to the errors in evaluation of operational noise impact to forage fish as discussed above, there is also no evidence in the record that DNR considered or evaluated operational noise impacts on the other fish species identified in the Management Plan. The record does document that there will be noise impacts to fish identified in the

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Management Plan. In general, the fisheries services have adopted a level of 150 dBrms as the threshold impact to fish by harassment. REC8000051. As discussed above, operational noise impacts will exceed these levels. Further, adverse noise impacts to fish were well documented in King County‘s 2000 EIS. For example:  Loading and barging would create unavoidable noise and disturbance to the area immediately surrounding the dock. This area currently supports marine life associated with underwater structures. This marine life includes sensitive species, such as cod and rockfish, that are WDFW ―candidate‖ species. REC2002135 The project‘s objectives cannot be achieved without some adverse effects on the marine environment … noise, spillage, shading, and physical impacts would be expected during the active mining operation. Most of these impacts would occur for as long as the project operates. REC2002142 [s]everal unavoidable adverse impacts on the marine environment are expected. Dock … operations would shade and produce noise and vibration that may cause fish to avoid the area. REC2002144. Rockfish, cod, and other sensitive species would be reduced or eliminated underneath and near the barge loading area. REC2002268. Tug and barge loading would produce noise and vibration that would cause some marine organisms to avoid the area. REC2002274.

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Despite the EIS‘s conclusions, DNR failed to consider or address operational noise impacts to the fish species identified in appendix C. DNR‘s determination that operational noise impacts would not impacts marine mammals, fish, and birds identified in the Management Plan and Appendix C ignores the record, is without support, willful

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and unreasoning and arbitrary and capricious. e. DNR’s determination that Project will not result in “propeller wash” scouring tidelands and bedlands and disturbing plant and animal life is arbitrary and capricious i. The Management Plan requires that propeller wash not scour and disturb plant and animal life

When under power, the propellers of tug boats create powerful currents known as propeller or ―prop wash.‖ In shallow water, prop wash can scour the bottom, raise sediments, and harm marine life through scouring, suspended sediment, and shading caused by air bubbles and increased turbidity. REC 2002101. When currents generated from the propeller reach sufficient velocity, sediments are re- suspended, harming or eliminating the attached plants and animals. REC2002140. 22 DNR has recognized that the prop wash impacts related to the Glacier NW proposal presents a potential threat to the environmental health at the site. REC4002484. In recognition of the significant impact from prop wash, the Management Plan specific management provisions for Glacier‘s proposed Project require that ―propeller wash‖

Prop wash is not limited to tug operated barging operations. It is also a significant concern during project construction. As pointed out during King County‘s environmental review process: ‖Installation of the derrick- barge will greatly disturb bottom sediments. Anchoring the barge will have operational impact, but installation and removal will cause a high degree of sediment disturbance from propwash and anchor positioning.‖ REC2002592 (Matthew Boyle comments).

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especially from large vessels should not result in scouring of the tidelands and bedland areas, which disturbs plant and animal life.‖ REC4002385. ii. The project will create significant prop wash

During King County‘s review of the shoreline permit for Glacier‘s Project, Dr. David Jay explained that prop wash velocities from the proposed project would exceed 110 to 200 cm/second – a level that would significantly exceed levels determined by King County‘s consultant Hart-Crowser – as causing ―severe erosion‖ of eelgrass beds. REC4000611. Because of the slow spatial decay of prop wash velocities, Dr. Jay predicted that damage thresholds would be exceeded throughout the project site up to 100 meters from the tug. Id. While the significance of prop wash was a major issue during the Shoreline Hearings Board‘s review and reversal of King County‘s permit denial, the Shoreline Hearings Board required King County to consult with other agencies, including DNR, in order to determine appropriate prop wash velocities for monitoring protocols. REC5000557. DNR objected to King County‘s proposal to set 75 cm/sec as the damage threshold and to allow monitoring to cease if no velocities above 50 cm/sec were observed. According to DNR‘s commenter: These thresholds appear to be completely arbitrary and lack any justification based on impacts to resources.
Propeller-generated bottom scouring will occur if the shear strength of the bed sediment is exceeded. Therefore response thresholds should be based on the seafloor critical shear stress as computed for the area of interest. In this case the area of interest is two eelgrass beds located in approximately 0 to -16 ft (MLL W) of water.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REC5000559. conditions.

Substrates for this area are described as sand, sand/gravel, or gravel (Grette Associates 2003). Of the substrates described as being present, sand has the lowest critical shear stress. For fine sand the empirical threshold is between 0.5 and 0.8 ft/second (15 to 24 cm/second (HartCrowser 1995). Any impacts to sediments within the eelgrass beds are likely to displace and destroy eelgrass within the beds. Therefore, thresholds based on the likely impacts of propeller wash on sediments would likely have a lower threshold of l5 cm/second, where monitoring could cease if no measurements above this level were observed…. Observations above 15 em/second would require related monitoring of the eelgrass bed (e.g., turbidity, uprooting, etc.) to determine whether monitoring needs to continue or is sufficient and to develop responsive actions. Furthermore, eelgrass may be somewhat more sensitive to increased water movement than the underlying substrate. King County did not incorporate DNR‘s Comments into its permit

DNR‘s concerns, however, continued. During 2007 review of the Lease, DNR continued to believe that impacts from prop wash had not been adequately addressed: DNR has several questions regarding propeller wash monitoring. This should include asking if bottom contours, variation in tidal ranges, and variations in local currents at the site were taken into account. We also need to define up front what the options are for reducing velocities… Because the potential impacts of prop wash and the uncertainty about the effects of prop we propose that Glacier develop and carry out a real time, on site monitoring program that evaluates the actual effects of prop wash for their operation before construction of the new facility. REC500648 (Comments from David Palazzi)(emphasis added). DNR‘s concerns

continued. In DNR comments to the U.S.Army Corps of Engineers, DNR‘s Kyle Murphy wrote:

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Section 13 .4.1, page 37 discusses two studies of propeller wash effects that were conducted for the proposed study. The Draft EA states that "the Corps reviewed King County's findings and agreed that the true nearbottom velocity and its effects on bed scour and turbidity have not been conclusively determined." DNR is very concerned about the potential negative effects of propeller wash, especially on the eelgrass beds in close proximity to the project. DNR recommends additional studies be conducted using" a scientifically sound experimental design to better determine the impacts of propeller wash prior to project approval. REC5000262-263 (emphasis added). Despite DNR‘s knowledge that the project could produce prop wash at levels sufficient to cause harm, and despite DNR staff asserting both internally and externally that the effects of prop wash should have been determined prior to allowing project construction, the December 2, 2008 Lease allows construction to proceed requiring only future monitoring of prop wash impacts (based on King County‘s monitoring terms that DNR had previously objected to as ―arbitrary‖ and without justification, REC5000559) and replanting of damaged vegetation. DNR‘s reliance on post construction monitoring is without basis and arbitrary and capricious.
f. DNR’s determination that stormwater collected on the upland site will adequately treated and infiltrated to eliminate direct discharges to marine waters is arbitrary and capricious

i.

The Management plan requires protection of marine waters from upland contamination

The Management Plan‘s specific management provisions for Glacier‘s Project require that the upland project neither results in contamination of discharges to marine waters nor change the existing natural flow of subsurface waters into marine waters:

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Any stormwater, settling pond water, or any process water collected on site from upland facilities should be adequately treated and infiltrated in upland locations to eliminate any direct discharges to marine waters. These facilities should be designed to mimic the natural hydrology of subsurface water and natural surface water flows to receiving waters. REC4002385. While DNR recognized the potential for both contamination and a change in flow, it failed to require the necessary analysis to find that this condition is satisfied. ii. Groundwater from the uplands mine site directly discharges to Puget Sound

Precipitation onto Glacier‘s upland mine site infiltrates quickly into the groundwater below the site. REC8000036. The groundwater from the mine site is documented to directly discharge to the adjacent nearshore area of Puget Sound. REC 8000037-38. The groundwater exits via springs along the beach. These springs are direct discharge points for uplands site groundwater into the nearshore. Id. The seeps are

15 16 17 18 19 20 21 exist in the low intertidal areas immediately shoreward of two of the existing eelgrass 22 23 24 25 26 27 28 PRESERVE OUR ISLANDS‘ OPENING BRIEF - 40 The Project site is located approximately 5 air miles from the now-closed ASARCO smelter. Fallout from the smelter, containing arsenic, cadmium, lead and other
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important for fish. For example, surf smelt spawning is dependent on seeps. ―These documented spawning beaches represent 5.71 miles of shoreline habitat. Spawning occurs throughout the year in extremely shallow water on mixed sand and pea gravel beaches that are kept moist from freshwater seeps.‖ REC4002426. The seeps may also have a direct

or indirect impact on eelgrass. Glacier‘s consultant has confirmed that freshwater seeps

beds. REC6001531; REC6001535(photos). iii. The uplands portion of the site is significantly contaminated with arsenic and other metals

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contaminates was distributed throughout the area, including the project site. REC2002218. Based on direct site testing, approximately the top 18 inches of soils at

the site are contaminated with arsenic, lead or cadmium in concentrations above ―natural‖ levels. REC2002218-19. The arsenic, lead and cadmium concentrations exceed the

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 groundwater. Id.; WAC 173-201A-210, Table 210(1)(e). 25 26 27 28 PRESERVE OUR ISLANDS‘ OPENING BRIEF - 41
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cleanup levels required under Washington‘s Model Toxics Control Act (―MTCA‖). Id. ―Natural‖ arsenic levels in western Washington range from 1 to 7 ppm. Arsenic in the topsoils at the uplands site range from 6 to 477 ppm. REC2002220. Synthetic Precipitation Leaching Procedure testing (SPLP) which is designed to investigate the fate and transport of metals in contaminated soils when exposed to rain and snow, shows 210 ppb of arsenic in the leachate from the on-site soils. REC8000022-23. This is approximately 4200 times higher than the allowable .05ppb ―Maximum Contaminant Level‖ (―MCL‖) for groundwater. WAC 173-200-040. The .05 ppb leachate levels from site soils is also approximately 5 times higher than the 36 ppb chronic MCL for arsenic in marine waters and 3 times higher than the 69 ppb acute MCL for marine waters. REC8000030; WAC 173-201A-240. Groundwater at the site –which, as discussed above, discharges directly to Puget Sound marine waters via seeps on the beach— already is contaminated with arsenic and elevated turbidity. Arsenic levels in the groundwater have been measured at 5 ppb – 100 times higher than the .05 ppb MCL for arsenic in groundwater. REC8000024-25. Turbidity levels are elevated to a point 1600% higher than state allowances in

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 REC5000687.

iv.

The record does not support DNR’s determination that stormwater would be adequately treated to eliminate contaminated discharges to marine waters

DNR recognized early on that Glacier had the burden of proof to demonstrate beyond a reasonable doubt that contaminated sediment and any resulting groundwater contamination would not pose a threat to the aquatic resources. REC2001035. Staff recognized also that changes in upland hydrology would have a direct effect on seeps along the beachface. REC5000649. Indeed, in DNR‘s March, 2008 comments to the Corps, DNR noted:

The Draft EA does not evaluate the impacts to freshwater beach "seeps" on the site that might result from changes in upland hydrology due to mining operations. Including the potential impacts on theses "seeps" from stormwater contamination, or increased stormwater discharge. These sources of freshwater input into the nearshore environment can be extremely important to the health of the habitat and species at the site. The June 2000 Washington State Department of Ecology Final Fact Sheet on the proposed project identified at least one beach "seep" that would potentially be impacted. DNR recommends that the Final EA evaluate the potential impacts of hydrologic changes on the input of freshwater to the nearshore environment specific to eelgrass and forage fish spawning. We also recommend that the project applicant be required to develop a plan to monitor for potential impacts from freshwater hydrologic changes on the nearshore marine environment and develop potential mitigation measures if impacts are detected.

Despite knowing of existing on-site contamination, knowing of the direct connection between the uplands hydrology and the beach, and knowing of the potential for contamination and changes to groundwater feeding directly to Puget Sound, DNR

25 26 27 28 PRESERVE OUR ISLANDS‘ OPENING BRIEF - 42 concluded, without further analysis that the Management Plan condition requiring treatment of any contamination and no change in surface or groundwater hydrology, was
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met. Indeed, in a memo written on the same day the Lease was approved, DNR concluded simply: ―all stormwater and mining processing related water will be collected and treated on site.‖ REC6000712. With the exception of this comment, the record is

void of further analysis.23 Despite DNR asking the Corps in March, 2008, to evaluate the impacts of the project on beach seeps (which it did not do), somehow, without further analysis, DNR was satisfied by its December 2008 Lease decision. without basis in the record and arbitrary and capricious. 2. The Project does not primarily serve the goals and objectives of the Reserve a. The Management Plan requires lease activities within the reserve primarily serve to protect the environment DNR‘s decision is

According to the Management Plan, ―lease activities within the reserve must primarily serve the objectives of the reserve designation.‖ REC4002352. Since the objective of the reserve is environmental protection, lease activities within the reserve must primarily serve to protect the environment (i.e., engage or support conservation activities.) REC4002352. More specifically, A lease activity will be considered to primarily serve the objective of the reserve if it meets the conditions below.  The lease activity does not create additional reserve-wide or localized permanent spatial loss of reserve habitats, species or ecological processes identified for conservation. The DNR will only permit new or expansion of existing activities within the reserve that do not

DNR‘s analysis fails to note, for example, that the stormwater management points are designed to contain runoff from a 25-year storm – allowing runoff from a larger storm to drain directly to Puget Sound. REC2002039
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REC4002352-53.24  

adversely affect the ability of site managers to achieve the goals detailed in Section 3.0. In general, no net loss – in time or space – of natural resources identified for conservation in Section 4.0 and Appendix C will be permitted. The primary emphasis will be placed on avoidance and minimization to eliminate the need for compensatory mitigation. New and expanding activities proposed for the reserve will not be permitted if they do not first avoid and minimize all possible impacts. Any remaining short or long term impacts must then be fully compensated for. In cases where compensatory mitigation is required to offset impacts, the habitat improvement or activity proposed for compensatory mitigation must be implemented and/or constructed prior to construction of the proposed (impacting) project.

b.

The Lease does not primarily serve to protect the environment

It should be fairly obvious based on the plain language of the Management Plan that Glacier‘s Proposal does not ―primarily serve to protect the environment.‖ A large industrial barge loading facility has nothing to do with ―engage[ing] or support[ing] conservation activities.‖ REC4002352. The primary purpose of Glacier‘s facility is to allow Glacier to construct an industrial barge loading facility to profitably ship large quantities of sand and gravel from its private facility over publicly owned aquatic lands. DNR Staff agreed. According to staff‘s ―final permit review matrix and memo for Maury Island,‖ in response to the question of whether the proposal ―primarily serves

The bullet points separating the listed conditions in this lengthy quote are not in the original Management Plan but are inserted here for ease in reading. See REC4002352-53.
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the objective of the reserve,‖ the response was ―No.” REC6000687 (emphasis in original). Staff explained further: The goal of no net loss of conservation of identified resources, in time or space, has not been met. It remains unclear how the applicant will protect DNR resources of geoduck (also a requirement of the King County Shoreline permit, condition #59) and kelp. The Aquatic Condition requiring minimization of long shore currents and drift cells has been partially, but not completely, addressed. REC6000687. While the DNR staff review reached the correct conclusion (“NO”), the staff failed to address the long list of conditions necessary to reach a determination of whether the Project primarily serves to protect the environment. For example, DNR should have analyzed whether the Project would ―create additional reserve-wide or localized permanent spatial loss of reserve habitats, species or ecological processes identified for conservation.‖ REC4002352. Section 4.0 and Appendix C of the Management Plan contain the long list of ―reserve habitats, species or ecological processes identified for conservation.‖ This list includes, in part, eelgrass beds, kelp beds, and the eastern Maury Island drift cell habitats. REC4002344. As discussed above, supra at pp. 12-27, 37-40, the Project will increase shading over at least existing and documented kelp beds. Further, both DNR and the Corps have concluded that the record is, at best, inconclusive as to whether propeller wash scour will affect existing eelgrass. There has been no analysis as to whether prop wash will affect macroalgae, including existing kelp. Finally, despite the Management Plan presuming that installation of a large industrial pier will interrupt littoral processes and

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interfere with the existing drift cell, DNR has not conducted, nor required any analysis prior to approving the lease and allowing construction. The Management Plan also identified a variety of fish, birds and marine mammals as ―identified for conservation.‖ This list includes Chinook salmon, chum salmon, herring, surf smelt, sand lance, bottom fish, seals, porpoises and orcas. REC4002344. As discussed above, supra at pp. 12-47, the record does not support that construction and operation noise impacts will be either eliminated during forage fish spawning or that operational noise will not impact other fish (including salmonid and lingcod), birds or marine mammals. The record fails also to support a determination that increased shading will not impact these species‘ habitats, including spawning, foraging and migration routes. Similarly, DNR should have analyzed whether the Project would adversely affect ―the ability of site managers to achieve the goals detailed in Section 3.0‖ of the Management Plan. REC4002352-53. The ―Section 3.0‖ goals set out above at page 9 (and in the Management Plan at REC4002338). The record does not support a finding that approval of the Lease will not adversely affect the ability of DNR to satisfy the Management Plan‘s lofty goals. For example, as discussed above, the Lease will not result in preserving, restoring or enhancing native habitats and associated plants and wildlife -- specifically forage fish or salmonids.25 Nor, as discussed above, will the Lease result in preserving, restoring or

enhancing ―functions and natural processes of the nearshore ecosystem.‖26

The Management Plan specifies that this first goal includes: ―protecting fish spawning and rearing habitat and movement corridors,‖ ―sustaining or increasing the documented extent and species
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DNR‘s determination that the Lease primarily serves the objective of the Reserve – environmental protection – was clearly mistaken, not supported by the record, willful, unreasoning and arbitrary and capricious. C. DNR Failed to Consult with Interested Agencies and Interests During its Lease Review

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As discussed above, while DNR does have authority to lease state-owned aquatic lands, RCW 79.105.210(4), it is also required to ―consider the natural values of stateowned aquatic lands as wildlife habitat, natural area preserve, representative ecosystem, or spawning area prior to issuing any initial lease or authorizing any change in use.‖ RCW 79.105.210(3). Once an Aquatic Reserve is establishes, DNR is prohibited from issuing leases for activities that conflict with the reserve status. WAC 332-30-151(2). DNR‘s

review, however, must be open and must, in fact, invite input from outside agencies and interests. Specifically,

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composition of native aquatic vegetation,‖ and ―supporting the recovery and protection efforts for federal and state threatened and endangered species, species of concern and their habitats.‖ REC4002338-39. 26 The Management Plan specifies that this second goal includes ―maintaining the integrity and function of the nearshore drift cell processes,‖ and working to ―identify and minimize existing and potential future impacts … resulting from outfalls and runoff discharging to the reserve.‖ REC4002339.
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[w]hen DNR retains the management of reserve areas the extent of the management will consist of a critical review of lease applications in the reserve area to insure proposed activities or structures will not conflict with the basis for the reserve designation. This review will consist of at least the following: (a) An environmental assessment. (b) Request of agencies or institutions previously identified as having a special interest in the area for their concerns with regard to the project. WAC 332-30-151(6)(b).

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While the record demonstrates that DNR collected a large list of stakeholder agencies and interests during its 2000-2001 creation of the Reserve, REC2000433-441, REC3000077-92, REC3000246-47, there is no record that DNR, as required, specifically requested input from these ―agencies or institutions‖ at any time during review of Glacier‘s Lease. DNR provided no notice of lease consideration to identified stakeholders and made no request for comment or concern. DNR requested no agency consultation and offered no public or stakeholder meetings. Not only did DNR fails in the mandate to request stakeholders consultation, the record shows that at on at least on one occasion DNR denied a request for consultation.28 As the record is void of any reference to WAC 332-30-151(6)(b) or the required consultation requirement, it appears that DNR was unaware of this specific mandate. Ironically, in providing comment to the Army Corps, DNR voiced strong concern that the Federal Agency had not provided notice of the Draft EA and subsequent comment period to the Puyallup tribe specifically noting that ―DNR would strongly recommend that the US Army Corps of Engineers provide an opportunity for public comments from the Puyallup Tribe‖ REC 5000262. DNR itself failed to consult or request comment even from the Tribe, an identified stakeholder group which holds treaty rights specific to the Glacier site. DNR‘s failure to

On November 26th, 2008 Doug Sutherland and DNR staff received a letter from several of Washington‘s leading environmental and conservation organizations specifically asking that DNR consult with both the stakeholder environmental group and the Puget Sound Partnership prior to making a lease decision. That request for consultation was not granted and the lease was issued within days. A copy of the letter is attached and was included in response to a public records request to DNR. Apparently the letter was out of the agency record. The letter and request for a meeting are referred to at REC 6000718.

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consult with the Puyallup violates not only the mandate in WAC 332-30-151(6)(b), but both the DNR Programmatic FEIS and the Maury Island Final SEIS which direct that DNR land managers ―would coordinate with tribal interests when reviewing use authorizations. Thus, DNR would consult with the Puyallup Tribes and other applicable

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PRESERVE OUR ISLANDS‘ OPENING BRIEF - 49 REC6000592. Rather than address the specific Management Plan directive that any lease, including Glacier‘s, serve primarily to protect the environment, Sutherland invoked DNR‘s general authority to foster water-dependent commerce. Id. Sutherland then explained perhaps his true reasoning: This mine is the largest source of valuable sand on the west side of our state and [sic] which is in very short supply and considering needed construction of state freeways, municipal highways and streets, commercial facilities, buildings and home, very important to any serious economic development. The alternative is to access sand from other mines located much further away
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entities to ensure that use authorization adequately consider impacts to historic and cultural resources‖. REC 4002587 The record clearly shows that DNR failed its outreach mandate and thus the lease was issued in violation of WAC 332-30-151(6)(b). D. Ultimately the Lease Decision Ignored the Management Plan

Despite staff analysis concluding that element of the Management Plan, including the ultimate purpose of the plan – environmental protection – had not been met, former Commissioner Sutherland, ignored staff‘s conclusion, ignored the express language in the Management Plan, and instead invoked a series of alternative reasons for his decision. For example, in a December 5, 2008 email to State Representative Brendan Williams, Lands Commissioner Sutherland attempted to explain his decision rationale.

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and at a much greater cost, estimated to double for every 20 miles of truck transit. Many users of sand today import it from Canada and even they have limited supplies. REC6000592. Of course, economic development, or cheap plentiful sand, is not an identified legitimate basis for approving a lease within a designated aquatic reserve and

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 over county and state roads and the state ferry system. REC6000592. This third 25 26 27 28 PRESERVE OUR ISLANDS‘ OPENING BRIEF - 50 rationalization ignores that Glacier has confirmed that it would not follow this course. As explained by the U.S. Army Corps of Engineers, in the event a permit is denied,:
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has nothing to do with the Reserve‘s purpose of protecting the valuable Reserve aquatic habitat and species. In an effort to lend at least an appearance of legitimacy, then Commissioner Sutherland also listed three ―red-herring‖ arguments in support of his decision. For example, Sutherland first lauds that the project will result in the removal of the existing creosote laden pilings from the water. REC6000592. This ignores, of course, that DNR‘s existing lease gave absolute authority for DNR to require removal of the existing dilapidated structure and its creosote pilings within 6 months of the expiration of the old lease -- regardless of whether a new lease was approved. REC2000625-26(Lease); REC2000490-92(DNR confirmation that old lease had expired). Sutherland asserts next that the Project approval would result in the removal of an illegally anchored large derelict vessel from adjacent water. This rationale, or course, ignores that DNR has express statutory authority to remove derelict vessels from public waters and seek cost recovery from the owners. Ch.79.100 RCW. Sutherland finally rationalizes that absent the Lease approval, the mine would be fully mined and result in significant environmental impacts from up to 180 truck per day

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The applicant has indicated that the mine would not be commercially viable without the barge loading facility. The applicant would not categorically say that no mining would occur at the site without the barge loading facility, as the applicant has not developed a plan for what it would do with the property if authorizations for the dock were denied. It is very likely that the applicant would not maintain the entire 235 acres as a mine site and that only a small portion of the property would continue to operate as an aggregate source for the Island. The remaining acreage would be considered for conversion to a different nonmining use. REC6001821 (EA). In short, none of former Commissioner Sutherland‘s rationalizations are borne out by the record or law. As is readily apparent from his post-decision explanation, the basis of the decision was economic expediency – not environmental protection.29 V. CONCLUSION

For the foregoing reasons, the Court should grant this appeal and reverse DNR‘s decision approving the Lease. Dated this _8th__ day of June, 2009. Respectfully submitted, GENDLER & MANN, LLP

By: 22 23 24 25 26 27 28 PRESERVE OUR ISLANDS‘ OPENING BRIEF - 51

_s/ David S. Mann_______________ David S. Mann WSBA No. 21068 Attorneys for Petitioners

While Sutherland‘s letter asserts also that the dock will result in reduced shading of sea grasses, as discussed above, this is not correct. The dock will still shade, and indeed increase shading over existing kelp.
GENDLER & MANN, LLP
1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 621-8868 Fax: (206) 621-0512

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