Shoreline bulkheads, which can damage beaches and destroy fish habitat, could come under more extensive review and permitting as the result of a revised shoreline policy announced last week by the U.S. Army Corps of Engineers.
The revised policy (PDF 163 kb), which resulted from a federal lawsuit, now requires a Corps of Engineers permit for shoreline construction below the high-tide line. The previous line of jurisdiction was lower on the beach, effectively exempting most shoreline armoring from federal permits.
One of the key results of the policy change is to bring shoreline armoring under the purview of the Endangered Species Act, said Amy Carey of Sound Action, one of three environmental groups bringing the lawsuit against the Corps.
“Until this change was made, the Corps was not looking at the impacts to endangered salmon and orcas (from bulkheads),” Amy said, noting that shoreline armoring can reduce spawning habitat for forage fish, such as surf smelt and sand lance. Since salmon depend on forage fish and orcas depend on salmon, shoreline armoring can affect a significant part of the food web.
The effort to get the Corps to change its policy and better protect the shoreline ecosystem has been a five- to six-year battle, Amy told me. The new policy better aligns the federal shoreline jurisdiction (under the Clean Water Act) with state and local jurisdictions (under the Shoreline Management Act and the State Hydraulics Code).
The Endangered Species Act, which requires studies of biological effects before a project is approved, is a powerful “tool” for protecting the environment, Amy said, and it’s not directly available to state agencies.
State agencies, including the Puget Sound Partnership, have made a concerted effort to inform the public about damage from shoreline armoring. State and local regulations have been updated to prevent new bulkheads unless absolutely necessary to protect a structure from shoreline erosion. Shoreline property owners have been encouraged to replace old bulkheads with more natural methods of erosion control, such as large logs and rocks anchored to the beach. This is called soft-shore protection.
The Washington Legislature also has focused on the issue, last year granting the Washington Department of Fish and Wildlife increased authority to oversee bulkhead construction for single-family homes. And this year, lawmakers are considering a bill to require property owners to analyze the feasibility of soft-shore protection before replacing an aging bulkhead.
Previously, the Seattle District of the Corps, a federal agency, declined to regulate construction — including shoreline armoring — proposed in areas above a line defined by the average of the highest tide of each day — known as “mean higher high water” since there are two high tides each day. Most bulkheads are built above this line.
About one out of four high tides in the Seattle area exceed the mean higher high water mark used by the Corps since 1977, according to legal pleadings by the environmental groups. A more suitable line for regulation would bring about 8,600 acres under Corps’ jurisdiction, the plaintiffs argued.
By moving the line of jurisdiction higher on the beach, the Corps is now expected to review most proposed bulkhead projects, along with other shoreline structures. Docks, floats and other construction close to the water have been subject to federal permitting since the Clean Water Act went into effect in the 1970s.
Amy told me that over the past five years more than 500 permits for shoreline protection were approved by the Washington Department of Fish and Wildlife, but only a few of those came under federal jurisdiction.
The new line of jurisdiction is called simply the “high tide line,” defined by changes in vegetation, deposits of shells and debris, along with other evidence marking the highest tides under normal conditions. That’s similar to state jurisdiction under the Hydraulics Code, which goes up to “ordinary high water.”
While the term “high tide line” has been defined in federal regulations since 1977, the Army Corps of Engineers has used various tidal datum points in different jurisdictions, according to the lawsuit. Seattle and Portland districts have used “mean higher high water;” the Alaska district uses “extreme high tide;” and the Los Angeles district uses an on-site determination of the highest tide of the year.
Several agencies have complained that the Seattle District’s use of mean higher high water neglects potential damage to the shoreline environment.
“The ecological effect is that extensive area of intertidal and estuarine habitat that are important to ESA-listed salmon and multiple other species of shellfish and other marine life are not adequately protected,” stated a 2013 letter from the National Marine Fisheries Service.
Later, the Northwest Indian Fisheries Commission and Gov. Jay Inslee called for a change in jurisdictional policy to better protect listed salmon.
In 2016, a group of experts from the Corps of Engineers, Environmental Protection Agency and National Oceanic and Atmospheric Administration studied the issue and recommended using the “mean average high tide,” said to be a more predictable standard and “reasonably representative of the intersection of the land and the water’s surface at the maximum height reached by the rising tide.”
In 2018, Major General Scott Spellmon, commander of the Corps’ Northwest Division, rejected that recommendation in a memorandum, noting that other jurisdictional regulations were still under review by federal agencies and the courts as part of the debate over the so-called “waters of the U.S.” Spellmon said it would not be a good use of Corps’ resources to continue the discussion about the tidal jurisdiction boundary.
In 2018, three environmental groups, led by attorneys for Earthjustice, filed a lawsuit in federal court challenging Spellmon’s decision to continue with the status quo in violation of the Clean Water Act’s specific references to the high-tide line.
“Puget Sound is one of the nation’s aquatic crown jewels, a vibrant and diverse ecosystem that sustains one of the nation’s most dynamic economies,” states the legal complaint from Sound Action, Friends of the San Juans and the Washington Environmental Council.
“The deleterious effects of shoreline armoring on the health of the Puget Sound ecosystem are well documented,” the complaint continues. “Among many other impacts, hardening or armoring of natural shorelines alters critical ecological functions such as erosion and sediment movement, causing beaches to lower, narrow, and eventually disappear. There is broad scientific consensus that this replacement of upper beach areas with hard barriers negatively impacts important habitat for plants and animals.”
Federal attorneys moved to dismiss the case, saying a decision on the shoreline jurisdiction was still pending and not subject to legal action. Last February, U.S. District Judge James Robart rejected that argument, saying Spellmon’s memo constituted a federal decision, if only a temporary one. Thus the judge established conditions for a full trial on the matter.
In October, the Seattle District of the Corps informed the judge of its intent to rescind the Spellmon memo and eliminate the policy of using mean higher high water as the jurisdictional boundary. Last Friday, the Corps followed through with a “special public notice” saying that it has removed all references to mean higher high water from its Seattle District website and regulatory documents.
“The District will locate the HTL (high tide line) through case/location-specific consideration of all factors identified in the (legal definition),” the notice states. “The District may consider all available tidal data relevant to the HTL definition when making jurisdictional determinations.”
The revised policy will bring federal jurisdiction and regulations to structures built above the previous boundary line up to the observed line formed by the highest tides. That will affect mostly bulkheads but sometimes stairs to the beach and other structures.
“If an application is pending with the Corps, applicants will be notified if any changes to application materials or additional information is required to continue processing the application,” Patricia Graesser, chief of public affairs for the Seattle District, wrote me in an email. “We encourage permit applicants to work directly with their project manager with any questions or concerns about specific applications.”
An information meeting on the issue is scheduled for March 19 at the Seattle District office.
Avoiding new shoreline armoring and removing existing armoring wherever possible has been a longtime goal of the Puget Sound Partnership, which was created in 2007 to coordinate recovery of Puget Sound. A “Shoreline Armoring Implementation Strategy,” adopted in 2018, spells out a series of programs and actions to reduce shoreline impacts — including incentives, technical support, revised regulations and increased enforcement of existing rules. (See Encyclopedia of Puget Sound.)
The issue of shoreline jurisdiction by the Army Corps of Engineers was discussed by a multi-agency review team that developed the strategy, noted Aimee Kinney, policy analyst for the Puget Sound Institute, who worked on the strategy.
Some team members strongly supported increased Corps oversight, because it would institute a formal review by federal experts involved in endangered species protections, allow tribal engagement in mitigation and increase fines for violations, Aimee told me.
On the other hand, some members were concerned that the federal process could inhibit efforts to remove existing shoreline armor by increasing reporting requirements for soft-shore replacements, she said. Going through a Corps permit will take more time, add complexity and increase cost. Also, unless followed up with a significant increase in enforcement, the extra federal scrutiny might encourage some people to illegally avoid permits altogether, she said.
One question is whether the Seattle District has adequate staff to handle the increased workload for permits, Aimee noted. The Seattle District averaged just 17 permits per year for “bank stabilization” from 2012 to 2017, she said. Meanwhile, in 2015 and 2016, the Washington Department of Fish and Wildlife issued an average of 165 permits per year for new, replacement or repair of marine-shoreline armoring, she said, pointing out that this is just a rough approximation of what the Corps may be facing because of differences between the two agencies.
To streamline the process, the Corps could develop a “regional general permit” to cover most conditions in Puget Sound, thus allowing for rapid approval, provided that a project is built to specified standards, including mitigation.
In the end, moving the line of jurisdiction a short way up the beach might not seem like a big change, but it could have profound effects on future shoreline-armoring projects and the survival of certain Puget Sound species.
For information about the effects of shoreline armoring, check out the special section in Encyclopedia of Puget Sound. For information about Puget Sound Implementation Strategies, including the Shoreline Armoring Implementation Strategy, start with this Puget Sound Partnership page.