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February 21, 2001
Anna J. Campbell, Manager, Bogachiel River Project
U.S. Army Corps of Engineers, Engineering Division
Seattle District
From: Eloise Kailin, President, PPF,
771 Old Blyn Hwy, Sequim,WA 98382
Re: Corps # BOG-1-00, Bogachiel River dike, groins, berm. Clallam County, Washington
We understand you had a meeting on site yesterday, 2/20. As you contemplate next steps we ask you to consider the project from a wider perspective.
Our review has disclosed aspects to this project you have probably never even dreamed of, reaching from low humor in approved official Commissioner minutes (dykes and quick claim deeds) to much more serious concerns with avoidance of application of state and county laws, harm to multiple salmonids--an ESA listed stock may well be involved--use of public funds to enable private property development in a flood plain, and failure to consider alternatives which meet the real needs for road access to the Quileute reservation without destroying river functions and salmon habitat. This story includes melodramatic sidebars which would make a great movie.
Some of our concerns about armoring of the banks of the Bogachiel
River:
1. There is no valid environmental assessment relating to this
project:
With respect to SEPA. extensive armoring has already been installed.
This was carried out as a categorical exemption for SEPA on 12/28/99
and for the Critical Areas Ordinance and Shoreline Master Program on
Sept. 25, 2000 under an emergency status declaration although no
emergency existed at the time. We read WAC 197-11-880 "emergencies"
Categorical Exemptions: " (1) If a proposal fits within any of the
provisions in Part Nine of these rules, the proposal shall be
categorically exempt from threshold determination
requirements…except as follows: (a) The proposal is not exempt
under WAC 197-11-908, critical areas". We note that WAC 197-11-908
(1) specifically includes areas which lie in floodplains. As of
9/1/00 there was not even a JARPA in the record. Where is the record
of NEPA? Did you ratify the SEPA actions?
Moreover, at WAC 197-11-800 (3) Repair, Remodeling and Maintenance activities: "The following maintenance activities shall not be considered exempt under this subsection (b) Reconstruction/maintenance of groins and similar shoreline protection structures; or ( c) Replacement of utility cables that must be buried under the surface of the bedlands. Repair/rebuilding of major dams, dikes, and reservoirs shall also not be considered exempt under this subsection."
As to the Critical Areas Ordinance, emergencies are defined: at C.C.C.27.12.035 (2): "An 'emergency' is an unanticipated and imminent threat to public health, safety, or the environment which requires immediate action within a time too short to allow full compliance with this chapter." That does not describe this project which has a multi-year history of flooding and emergency actions with overflow channels and bank protections; The present project was the subject of Corps of Engineers involvement in January, 2000, A multi-agency meeting was held at Clallam County Courthouse Feb. 9, 2000. Insufficient time for SEPA review between then and construction in October 2000? Evidence of imminent emergency?
The issuance of an exemption under the Shoreline Act is governed by WAC 173-27, which says a permit for emergency construction under shoreline exemption "does not include development of new protective structures where none previously existed…upon the abatement of the emergency situation the new structure shall be removed or any permit which would have been required, absent an emergency, pursuant to chapter 90 .58 RCW, these regulations, or the local master program, obtained…As a general matter, flooding or other seasonal events that can be anticipated and may occur, but that are not imminent are not an emergency." (WAC 173-27-040 (2) (d).
Failure to adequately profile the flow regime of this river led to deflection of flows against a bank by the "engineered" groins, necessitating a need to add two extra groins (making a total of SIX groins), this being done at time of fish entering the river during high waters at time of construction.
2. Water Quality Permit Conditions:
The Department of Ecology on October 10, 2000 issued a Water
Quality Certification/Coastal Zone Consistency Determination for the
Quileute Tribe and the U.S. Page 3 PPF to Corps of E 2/21/01
Bogachiel bank alterations Army Corps of Engineers for in-water
construction and mitigation for temporary groins and a berm to be
placed in and adjacent to the Bogachiel River. On page 2, Condition
C. Monitoring, Mitigation, and Contingency Conditions: 1) The berm
and the groins shall be removed between July 1, 2001 and September
1,2001 and the project site restored to its pre-project grades and
elevations.. IS THIS WHAT IS BEING PROPOSED? WHEN WILL THIS
BE DONE?
3. Fish habitat has been and is being harmed:
We are concerned that the absence of environmental evaluation has led
to ignoring observations that following installation of these bank
protections salmon spawning in the affected reach virtually ceased.
The river bed has aggraded significantly, wiping out the spawning
areas. Please provide us with a copy of all of the monitoring
items cited in Water Quality Certification Order BOG-1-00
including the project surveys and monitoring for weekly redd surveys,
pre-project survey data and copies of the physical and biological
monitoring plans (due 2 weeks after the start of construction or
after completion of the surveys and post construction data as sent to
Dept. Of Ecology's Federal Permit Coordinator (due within two months
from the start of construction), also wetlands survey. Construction
(the latest) was started Oct 7th, completed October 22, 2000 with
fish moving upstream about Oct. 1st and a good possibility that some
redds were destroyed by in-water construction.
This is a river with an historic run of chum salmon, , spring, summer and fall chinook, summer and winter steelhead, sea run cutthroat, coho and possibly bull trout. Use by the latter is thought probable( in the absence of a detailed study to the contrary) as a result of the habit of this species to use rivers adjacent to known well identified runs as is the case here. See Memo to Bob Burkle from Dafoe, Rymer and Johnson 9/1/2000 "The proposed dike, referred to by the Corps as a "setback berm' (figure 1) would cause unacceptable, unmitigated harm to the fish resources of the Bogachiel River. WDFW is firmly opposed to the construction of this dike….1. The dike would force flood flows to remain in the river channel, thereby causing increased stream-flow velocities and scour downstream areas. This impact will lead to decreased survival of incubating salmonid eggs and will harm juvenile and adult fish. 2. The dike would not allow flood flows full access to the floodplain. Therefore, fine sediment that would otherwise settle upon the floodplain will remain in the channel to the detriment of salmonid habitat. 3. The dike would cause back watering of upstream areas. Back watering will cause sediment to deposit in the channel, leading to bed aggradation and an increased potential for flooding upstream. Bed aggradation will lead to the need for dike lengthening and raising, thus compounding the impacts of the original diking project."
4. Alternatives for long term solution:
A long term solution to access to the Quileute without continued
degradation of the river and its floodplain appears to be possible.
See the MEMO from WDFW of Sept. 1, 2000, Page 2 refers to "the
existence of an alternative flood-proof access route to La Push
(Rayonier Road)." At the bottom of page 5 they suggest that a bridge
might be possible. ISN'T THIS THE WHOLE POINT OF SEPA/NEPA
REVIEW? The same memo describes increased risk to public
health and safety , greater than leaving the river alone, due to
increased likelihood of river avulsion from pressures consequent to
the diking project. Our own further investigation of alternative road
routing shows that logging roads on both Rayonier and State lands can
be traversed-and actually are used at times of flooding--, These form
a detour from one point on La Push Road to another point on La Push
road past the flooded area. This follows Road M-1500 which becomes
Rayonier 3140, going to 3100, then Rayonier 3000 (G-3000, a state
road ) back to La Push Road at Goodman bridge. A study and a report
on alternatives is required by the Water Quality Certification Order
before extension is allowed for the requirement to remove the groins
and berm. This is long overdue.
About that melodrama: We see the "For Sale" signs in the fields which subsequently are covered as much as 5 ft. deep in flood waters and wonder about the use of hundreds of thousands of public dollars to facilitate residential development. in what is now a Frequently Flooded Area. Public funds for private development and damn the salmon resource to boot? An affected landowner (Richeson) whose house was destroyed by floating logs was offered bank protection by the County, and responded by clear cutting the riparian area. We learn this from another MEMO we pulled from WDFW files by Public Disclosure request, undated, "Chronology of Hydraulic Projects", which says: Feb. 18, 2000 {Clallam County} "verbally withdrew the county's modified Hydraulic Project Application for a bank protection project at the site following the observance of illegally removed riparian trees and significant large woody material. Removal of riparian habitat changed the nature and complexity of the over-all problem in this area, plus the river avulsion risk was considered to be even higher following this event…Jim Richeson (the absentee landowner) and Mike Wallerstedt (the operator) were the culprits responsible for the removal of the riparian timber and logs. The DNR discovered their nefarious activities and are now proceeding with enforcement action…"
Meanwhile we have the Great Property Shuffle. Clallam County Road Department engineered a land purchase of river property from a private party. The County paid $20,000 and the deed is dated Sept 14, 2000. On Sept 20, just 6 days later, the county sold the same property to the Quileute Tribe for $1,000 with a provision that the County have access" for flood control and salmon restoration projects" and "that if the U.S. Corps of Engineers Bogachiel River Advance Measures Project, Project No. BOG-1-00 is not completed within twenty four (24) months of this date that the County may refund the one thousand dollar ($1000.00) payment to the Tribe and thereupon reenter and terminate the Tribe's interest so that all right, title and interest in the property reverts to the County." On September 19th the Board of County Commissioners discussed this transfer. Quoting from their minutes, approved on 7 November signed by all three commissioners : County Road Engineer: "county needs to give this easement to the Quileute Indian Tribe so the Corps of Engineers can construct a dyke (sic) or parapet and some groins in river to help control flooding…" Road Dept. attorney: "notes the concern is that if there is a dyke (sic) on county property and it blows out property owners could sue. One of the questions raised was whether the county could get a "hold harmless" agreement from the tribe which would probably require them to waive sovereign immunity as well. The concern is that the Corps of Engineers will pull out all together (sic) and county will continue to do stop gap emergency management services on the Bogachiel." We note that the deed does not mention any hold harmless agreement. It was moved "to adopt this quick (sic) claim deed with the Quileute Tribe for property on the Bogachiel" and carried unanimously.
So we now have a Tribe (and possibly the Corps?) stuck with any liability for consequences of dike blow out or avulsion, public funds for private development, destruction of salmon habitat, a scofflaw landowner, subversion of county and state laws, failure to follow a pubic process for shoreline, SEPA or Critical Areas Ordinances, false declaration of emergency status to justify skipping procedures. POPCORN, ANYONE?
I look forward to your response and if you wish will make a formal FOIA request for the requested documents.
Yours truly,
Eloise Kailin, President, PPF
CC: USFWS, WDOE, WDFW, Clallam County
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