We are pleased to report that the State of Washington’s Attorney General’s Office has decided to intervene in Soundkeeper’s 2017 lawsuit against the US Navy to protect Sinclair Inlet.
The original case, which we filed in partnership with the Suquamish Tribe and Washington Environmental Council, holds the Navy accountable for having scraped some 730 cubic yards (about 50 dump truck loads) of solid materials from the hull of decommissioned aircraft carrier U.S.S. Independence (“the Indy”) into Sinclair Inlet in 2016.
Dumping waste into Puget Sound in this way is an egregious violation of federal Clean Water Act protections. This bedrock clean water law prohibits releases of pollutants without having a “pollution discharge permit”, which the Navy did not have. What the Navy did is also an egregious violation of the federal Resource Conservation and Recovery Act because it creates an “imminent and substantial endangerment” to the environment.
In short, this case centers on dirty pollution that violates the rights of Puget Sounders. The Navy’s own samples show that this activity released levels of harmful pollutants that exceed safeguards in place to protect fish and people. The Navy knows this, and it has not yet taken any action to clean up or contain the materials, which remain at the bottom of Sinclair Inlet and continue to seep pollutants into Puget Sound.
This pollution, which includes high levels of copper and zinc, threatens Puget Sound’s vital ecosystems and food chains – including our iconic orcas and the salmon they (& we) eat. Allowing so much solid material to fall to the bottom also smothered the habitat zone under the Indy’s hull, impacting tiny benthic organisms that form the essential base of the food chain.
The Navy accomplished these violations by sending trained divers under water with power tools to scrape off several inches of marine growth which was attached to the copper-based bottom paint covering the hull. They scraped the hull bare, and let everything that came off simply fall to the bottom of Sinclair Inlet. What the Navy should have done was pull the decommissioned aircraft carrier out of the water and have it scraped landside in a dry-dock facility which is designed to contain pollutants and keep them out of the water. The Navy happens to have a dry-dock sized to task just feet from where they scraped the Indy in the water! Sadly, they chose not to use it.
To add insult to injury, the Navy released these pollutants within an active Superfund Site. “Superfund” is an unhappy award given to waterways that have experienced such abuse and disregard (by people, mainly industry) that the federal government considers them of highest priority nationwide for organizing cleanup actions. Decades of monitoring in Sinclair Inlet have also led to its classification as “impaired” because historic activities (ah hem, the Navy) caused so much contamination that it earned a place on the State’s 303(d) list. These labels mean that Sinclair Inlet has struggled, and it needs our help. It is a place we are trying to recover – not recontaminate.
We deserve better, especially from a federal agency that (theoretically) should be modeling compliance and responsible values rather than blatantly skirting basic safeguards. They have let us down. But, it’s never too late. The Navy has a chance to prevent this from ever happening again. And, they have a chance to clean up their mess. I choose to believe this is possible, and I invite you to join me.
Sinclair Inlet is persevering, and we have to do our part to keep things rolling. Blackjack Creek, which flows into Sinclair Inlet in Port Orchard directly across from Naval Base Kitsap Bremerton (where they scraped the Indy), provides spawning habitat to Chinook salmon – a vital species preferred by hungry orcas. Heins Creek and Gorst Creek, which flow into Sinclair Inlet in Gorst, just southwest of the naval base, also provides Chinook salmon spawning habitat. These fish literally swim through the area the Navy polluted by scraping the Indy on their way to and from these important waterways. The inlet itself also supports many species of waterfowl and shorebirds, great blue herons, bald eagles, and is an important rearing and refuge area for juvenile Chinook salmon. The Suquamish Tribe rightfully harvests fish and shellfish from Sinclair Inlet and nearby Dyes Inlet, and their rights to continue to do so healthfully is vital.
The process of filing a lawsuit like this in federal court always starts with sending a 60 Day Notice of Intent to Sue, which we sent in January 2017. After letting 2 months pass, if the violations persist and if the U.S. EPA and WA Dept of Ecology aren’t willing to enforce the laws, the next step is to file a Complaint in court. We did this in June 2017.
Note: Earlier in January 2017, after hearing about the Navy’s plan to scrape the Indy in water, the U.S. EPA wrote the Navy a letter expressing concerns including sediment contamination and impacts to young salmon. Washington Department of Ecology’s Director, Maia Bellon, also voiced sincere concerns to the Navy in February 2017. So, agencies at both state and federal levels know the Indy would be scraped in water, and were worried about harmful impacts, but (even though the public entrusts these agencies with this authority) neither was willing or able to take legal action to stop it from happening – which is a bummer.
In January 2018, the Navy filed a Motion to Dismiss the case, arguing that the violations were not ongoing. Importantly, the Judge ruled in Soundkeeper’s favor at this early litigation juncture in June 2018 by denying the Navy’s attempt to dismiss the case. So, the case is alive and well and standing on its own two feet. And, it just got a whole lot stronger.
Having the State join the case further strengthens the legal claims, and elevates the action in priority for the Navy. Puget Soundkeeper is often the “David” opposing the “Goliath”. We are willing to do that because our strongest tool isn’t our size – it is our nation’s clean water laws, and our willingness to enforce them. In some cases, it also really helps to have a bigger team pulling on our side of the tug-of-war. Here, we now have a “dream team” group of plaintiffs that includes some heavy hands to balance the enormity of the US Navy: a sovereign tribal nation, a strong State Attorney General and two of the region’s most effective water quality non-profits.
We look forward to reporting back to you on more news about this case as it progresses.
Puget Soundkeeper is represented in this action by Meredith Crafton and Richard Smith, Smith & Lowney PLLC.