The Suquamish Tribe, Puget Soundkeeper, and Washington Environmental Council (now Washington Conservation Action) took on the United States Navy over alleged water pollution—and won.
On October 28, 2016, in a government-to-government meeting, the United States Navy (Navy) informed the Suquamish Tribe of its intent to scrape the hull of the ex-Independence, an aircraft carrier.
Scraping was intended to eliminate the potential transfer of invasive species to other waters during the ship’s transit to Brownsville, Texas, where it would be dismantled. During this meeting, and in a January 5, 2017, letter to the Navy, the Tribe objected to the Navy’s plan. Scraping the hull without proper containment, the Tribe said, would result in the release of toxic anti-fouling paint, containing copper, zinc, and other chemicals, into the waters and sediment of Sinclair Inlet.
The ancestral waters and the associated marine habitat of Sinclair Inlet are vital cultural and natural resources that have supported the Suquamish people since time immemorial. Our settlement with the U.S. Navy was designed to protect these marine resources. This was a big win for the Tribe and for all future generations. –Leonard Forsman, Chairman of the Suquamish Tribe.
Crying Foul
Ship hull cleaning operations are typically performed in a dry dock facility where contaminated wastes can be collected, safely treated, and disposed of. This precaution is critical for fragile marine ecosystems like Puget Sound because most anti-fouling marine paints contain copper and zinc. These chemicals are toxic to marine life and therefore prevent barnacles and other organisms from growing on hulls. Even in very small quantities, copper is toxic to salmon and other marine life.
On January 6, 2017, the Navy informed the Tribe that underwater divers had already begun scraping the 1070-foot-long vessel. The operation was completed on January 27, 2017, and resulted in the discharge of an estimated 760 cubic yards (equivalent to 73 dump truck loads) of contaminated hull debris into the waters and sediment of Sinclair Inlet.
The area where the ex-Independence was scraped is located within a Superfund cleanup site. Sinclair Inlet is also an impaired water body listed on the Clean Water Act Section 303(d) list of impaired waterways.
On June 14, 2017, the Suquamish Tribe, Puget Soundkeeper, and Washington Environmental Council (WEC, now Washington Conservation Action) jointly filed a lawsuit. We alleged that the Navy was in violation of the Clean Water Act by discharging contaminated hull waste from the ex-Independence into Sinclair Inlet without a Clean Water Act (CWA) permit. The lawsuit also alleged that the Navy planned to scrape additional inactive ship hulls in the same manner, which would allegedly continue illegal discharges of contaminated hull waste into Sinclair Inlet.
Puget Soundkeeper and WEC were represented in this action by Meredith Crafton and Richard Smith, Smith & Lowney PLLC.
In Conversation with Attorney Meredith Crafton
The following interview with attorney Meredith Crafton, of Smith & Lowney, has been edited for length and clarity.
Smith & Lowney heard reports of the hull scraping, and we were excited to work with the Suquamish Tribe, Tribal lawyers, Soundkeeper and WEC. We worked collaboratively with the Tribe on the notice of intent to sue right after we heard about the scraping. We knew the Navy’s actions violated the CWA. You can’t just scrape directly into Sinclair Inlet.
The decommissioned aircraft carrier sat there for years, and there was a lot of stuff growing on it. They were required to clear the exterior before transporting it to Texas. The Navy should have put it in dry dock. They have one of the biggest dry docks; it’s capable of handling something like this. Instead, they scraped directly into the inlet. We claimed it was a direct pollution discharge and in violation of the CWA.
The purpose of the lawsuit was not, unfortunately, to stop the Navy from scraping, because they’d already done it. It was seen happening. Our concern was that the Navy felt like it could ignore pollution controls and the CWA. Our goal was to get them to do something to remediate the pollution they had just added to the floor of Sinclair Inlet. We were concerned because there were multiple decommissioned vessels waiting in line. There was a valid fear that the Navy would do this again unless we brought an action.
We went into long negotiations with Department of Justice Navy representatives, and we ended up with a robust and effective settlement. The Navy committed to assessing alternative options for how they decommission these vessels. Initially, they told us they didn’t have the capacity to scrape in their dry docks. We held the line—our perspective was that they did indeed have capacity. As it turned out, they were able to scrape in dry dock once they were required to do so.
The consent decree states that beginning in 2020 and for the next 10 years, the Navy cannot undertake underwater hull cleaning on any of the six decommissioned ships waiting to be scraped. If, at the end of those 10 years, they intend to do in-water scraping, they must give notification. This means the Tribe, Soundkeeper, and others will be informed and prepared to act if needed. The Navy is required to deposit what’s called a Thin Layer Placement of clean sand, designed to cap pollution. They are also required to study underwater hull cleaning advancements. The Navy claimed that after 10 years of research they would have developed new technology.
The consent decree also requires environmental remediation. It’s impossible to dig up the floor of Sinclair Inlet because of pollution in the sediment. Much of our discussion covered what kind of remediation might be possible. This was a tricky problem to solve and required collaborating with Tribal scientists. We agreed that the Navy would place a cap of sand and soil on the sea floor, trying to hold the toxic pollution in place. Eventually the whole area will be part of the larger Superfund cleanup plan.
I think that industries tend to believe that if an area is already trashed, they can trash it a little more. But we proclaimed, quite loudly, that it’s absolutely not okay to trash Puget Sound.
The Suquamish Tribe: Since Time Immemorial
Puget Soundkeeper reached out to the Suquamish Tribe for comment on this lawsuit. Communications Coordinator Jon Anderson shared the following:
Since time immemorial, members of the Suquamish Tribe have harvested finfish and shellfish in what’s now called Sinclair Inlet. Historic period references to the Suquamish People, oral histories from Suquamish tribal elders, and archaeological sites in Sinclair Inlet, Dyes Inlet, and Port Orchard, document Suquamish hunting, fishing, and shellfish collecting activities in and adjacent to the Puget Sound Naval Shipyard, extending back over 4,000 years.
Suquamish Tribe Q+A
Q: What was the Suquamish Tribe’s concerns, at the time, over Navy scraping, and why did the Tribe decide to partner with Puget Soundkeeper and Washington Environmental Council in a lawsuit?
The Tribe was very concerned about the Navy’s plan to scrape a mothballed aircraft carrier in the waters of Sinclair Inlet because it would pollute the water and seabed with chemical contaminates. The Navy’s actions were in direct conflict with protecting the Tribe’s treaty-reserved rights to harvest resources in a culturally important area to the Tribe. The scraping was also in direct conflict with Superfund clean-up remedies in Sinclair Inlet and were unlawful under the Clean Water Act.
No other entity in Puget Sound is allowed to scrape the bottom of a vessel, allowing contaminated material to be directly discharged to Puget Sound.
The Tribe decided to partner with Puget Soundkeeper and Washington Environmental Council because the Tribe and both organizations have a common goal to improve the water quality and overall sediment health in Puget Sound. The Tribe has long-standing and positive relationships with both organizations and joining for a common cause was advantageous to all parties.
Q: According to our press release, the Tribe attempted government-to-government conversations with the Navy, first. When that wasn’t successful, the best tool was legal action under the Clean Water Act. What can alleged polluters do differently, to work in good faith with Tribal government?
The Navy’s failure to address the Tribe’s concerns in advance of scraping the Ex-Independence disregarded the Navy and the Tribe’s government-to-government relationship and the Navy’s consultation duties under Executive Orders and Department of Defense consultation policies and instructions.
Working in good faith with Tribal governments on projects that impact treaty-reserved rights requires advanced notice and engaging in meaningful consultation that will identify the Tribe’s concerns before the project proposal is in full swing. The Tribe often discusses options to eliminate or reduce impacts to the Tribe’s rights, if possible, or will identify when mitigation is not a solution. Litigation is not the Tribe’s first tool but the Tribe will take legal action to protect its legal rights if necessary.
Q: Was this a meaningful win for the Tribe? What kind of impact has it had over the past five years?
This is a meaningful win for the Tribe. First, the Ex-Kitty Hawk was in the queue to be scraped in marine water, just like the Ex-Independence. Because of the settlement agreement, the Navy agreed that it would not engage in unrestricted in-water scraping. For that reason, the Ex-Kitty Hawk was scraped in a dry dock where contaminated materials were contained and properly disposed of.
Second, the Navy agreed to cap the area of contamination associated with the scraping of the Ex-Independence to reduce marine exposure to contamination.
Last, the Navy has agreed to research more modern technology and provide an update to the settlement parties on the status of that research. The Tribe is hopeful that this case will serve to elevate the value of engaging in government-to-government relations for future projects.