Most shoreline abusers are not punished - Agencies struggle to police unauthorized construction that endangers waterlife
Washington State - 4/3/03 - Sandy, shaded beaches lining Maury Island's Quartermaster Harbor are ideal spawning grounds for surf smelt, sand lance and other little fish, essential to the web of life.
Still relatively pristine, the harbor was declared a marine reserve by the state a couple of years ago, banning further development.
Like John Vangolen's 140-foot-long pier.
He knew he needed a permit but didn't get one, he admitted last year to King County and state Department of Fish and Wildlife investigators.
"I took a risk ... and I am willing to face the music," Vangolen told them, according to reports documenting the illegal construction.
He could get off scot-free. Many violators do.
Fish and Wildlife cited Vangolen for violating state law, but were powerless to pursue fines. Last month, the county finally ordered him to do a formal assessment of his 4-year-old project's environmental impacts -- the first step toward deciding what should be done.
Vangolen wouldn't comment on the dispute, but his attorney, Al Wallace, said Tuesday that his client "is fully willing at this point to bring things into full compliance."
Similar cases exist across the state.
In Pierce County, a 2,000-foot-long stretch of stream was excavated, and wetlands were filled in and drained.
Broken chunks of concrete were dumped on the shores of Lake Washington in sockeye spawning areas.
A creek that feeds the Yakima River was dammed and cleared of plants.
In each case, the work was done without a permit, or in violation of conditions intended to protect the environment. In each, there's no record of any repairs being made.
That's because the hydraulic code -- the law designed to protect fish by requiring permits for construction in aquatic areas -- is as toothless as a jellyfish.
Violators can receive modest, $100-a-day fines, but only while construction is under way. Fish and Wildlife can't even order people to stop work on illegal projects. On the rare occasion that cases go to court, they usually languish as low-priority criminal prosecutions.
Prompted by reports from frustrated enforcement officers, government biologists and prosecutors, an Olympia-based environmental group recently investigated the problem. They examined serious violations statewide and found that in nine out of 10 cases, shoreline scofflaws either hadn't corrected the damage or Fish and Wildlife had no record of any remedial work.
"I don't think the program's broken; I think we do a good job protecting fish," said Greg Hueckel, assistant director of Fish and Wildlife's habitat program. Thousands of permits a year are issued and correctly followed, he said.
But he added, "There are things that we're working on that definitely need improvement."
The department and environmental groups have asked legislators to give the agency more power to go after lawbreakers.
That's opposed by interest groups representing ports, farmers and general contractors, who argue that the code-enforcement program isn't working. There's no uniformity or predictability to how permits are granted, they claim, and other rules protecting the region's waterways are sufficient.
Both sides agree that the half-century-old law is sorely in need of revamping, with clearer language. This week, lawmakers are considering Senate Bill 5375, which aims to clarify the code.
Until that happens, most observers agree, new powers to punish are off the table.
"We're at an important juncture where if we fail to take action we will lose salmon, and we will lose orcas and other marine fish and species," said Bruce Wishart, policy director for People for Puget Sound. "We need to act now."
There's little doubt anymore about the importance of nearshore areas to fish.
Scientists found, for example, that juvenile salmon linger near beaches, eating insects that drop from overhanging plants. Small fish near the bottom of the food chain need sandy, shady beaches to deposit their eggs.
Researchers also know that man-made structures can damage or destroy these fragile ecosystems. Bulkheads built to stop banks from eroding can choke the flow of dirt to the beaches. With the upland supply cut off, sand washes away from beaches as waves beat down.
Each year, Fish and Wildlife writes about 6,000 permits for shoreline projects under the hydraulic code, ranging from bridges and docks to culverts. In about one-fifth of the proposals, the agency requires modifications. Only 1 percent are denied.
Permits contain restrictions to protect fish, such as construction bans during spawning season, requiring that work is done from barges to protect beaches and restrictions on the use of material dangerous to fish, such as wood treated with lethal chemicals.
In the Quartermaster Harbor case, the state may have allowed Vangolen to proceed with his pier project, but would not have allowed toxic, treated wood to be used for pilings or decking. The bulkhead wouldn't have been permitted, state officials say.
Vangolen is now seeking permits retroactively, which is good, because the state has been nearly powerless to take action. By the time the pier complex was investigated, it had been standing for about two years -- putting it outside the code's statute of limitations for criminal prosecution.
That kind of futility is common. An investigation of 50 significant violations found that in 45, work to fix the damage was never done or there is no record of its completion, according to an analysis by Washington Public Employees for Environmental Responsibility, or PEER.
Fish and Wildlife has no central database tracking the violations or follow-up, and can't say how many violators have been cited in the past five years. They did know that 157 had gone to court during that period. A guilty verdict was received in 21 cases; most were dismissed.
Millions of dollars are being spent on the restoration of waterways to save salmon and other ailing fish stocks. This year alone, the newly created, federally funded Puget Sound Nearshore Ecosystem Restoration Project got $1.2 million to help save the marine nearshore. More than $70 million has been awarded over the past three years in grants to restore and preserve salmon habitat statewide.
Spending money on restoration while new damage continues is "fiscally and environmentally irresponsible," said Lea Mitchell, state director for PEER.
Fish and Wildlife officials admit that not enough follow-up is done, mostly because of a lack of staffing and funding. They're working on a database that will do a better job of tracking permits and violations.
The agency's inconsistent enforcement angered a number of people, according to Rep. Jim Buck, R-Joyce. "And this was apparently the year that this problem reached critical mass."
This session, Buck drafted legislation to tidy up the rules. His measure is expected to be merged with SB5375, which has passed the Senate and is scheduled for a hearing today.
Environmentalists attacked the original bill, saying it weakened fish protection. They also want fees charged for permits so the program's users will help bear its costs.
Buck and groups representing permit holders are generally opposed to permit fees and for granting Fish and Wildlife greater power to punish violators.
In the absence of increased enforcement authority, environmentalists worry that damage to the shorelines will continue.
"Why should we continue to do bad things if we know we're making a mistake?" asked Jim Brennan, a former Fish and Wildlife biologist. "How have we gotten to the place where individual rights count more than the public interest?"
It's not uncommon for homeowners and developers in Washington to illegally build bulkheads or boat ramps, or even reroute streams.
When the state finds out about it, enforcement can be lax. In the following examples investigated by Washington Public Employees for Environmental Responsibility, citations were issued but there's no record of any work being done to correct the environmental damage:
A backhoe was used to dig a channel that rerouted Madsen Creek, a tributary to the Cedar River. The work was done more than two years ago without a permit.
Three years ago, about 2,300 feet of Ahtanum Creek, a tributary of the Yakima River, was either dredged, filled or straightened. No permit had been issued.
A concrete bulkhead was built and beach sand excavated three years ago to backfill the bulkhead. No permit had been issued.
A developer violated his permit last spring by refusing to divert a stream that flowed through a construction site. Construction workers said they would install filter fabric downstream, which biologists said would not help.
West of Port Townsend, a covered wood platform was built in the middle of eelgrass beds three years ago. No permit had been issued.
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