Tuesday, April 12, 2011

Tacoma Port Faces $32.7 Million Suit by EPA Over Wetlands Destruction

Federal environmental officials have filed a federal lawsuit against the Port of Tacoma alleging that efforts by port officials to eradicate a potentially devastating agricultural pest led to the destruction of environmentally sensitive wetlands on the Tacoma Tideflats.

The United States Environmental Protection Agency filed the lawsuit April 1 in US Western District Court claiming that actions by the port, three contractors and the state of Washington, led to the clearing of 4.4 acres of wetlands at the Hylebos Marsh in late 2008 and the discharge of dredged material and organic debris into the Hylebos Waterway – all without the required federal environmental permits. The suit also highlights an earlier incident in 2006 where the port allegedly destroyed a nearby acre of wetlands.

The EPA is seeking nearly $33 million in penalties and the restoration of the affected wetlands by the defendants.

According to the EPA, the tract – located between the Blair and Hylebos waterways – was composed of wetlands that provided wildlife habitat and prevented contaminants from entering Puget Sound. The tract contained mature forested wetlands prior to the damage.

The filing claims that in October of 2008, the port contracted with New York-based DEMCO, Inc., to conduct “clearing, grubbing, and subsequent leveling of [Hylebos Marsh].” DEMCO then subcontracted with Tacoma-based contractor Waka Group to perform the work.

The port was attempting to eradicate an invasive vineyard snail infestation on its property at the request of the US Department of Agriculture and Washington State Department of Agriculture. The wetlands area was described at the time as "ground zero" for the infestation.

Officials from the Washington Department of Agriculture told the Tacoma News Tribune in September 2010 that the vineyard snail had potentially serious economic impacts to the state's wheat, hay and barley crops if the pest was not contained within the wetlands and eradicated. If the port lost the at-the-time three-year battle with the snail, said WDA officials, the state's cereal crops could be quarantined and lose their annual multi-million value as exports.

However, according to the EPA, the USDA order to the port stated that plowing and grading was only acceptable in non-wetland areas.

The EPA also alleges that the US Army Corps of Engineers informed the port that mechanized land clearing for snail eradication in wetlands would require a permit under the Clean Water Act.

According to the filing, "between approximately October 2008 and November 2008, the Port of Tacoma and/or persons acting on its behalf used excavators, bulldozers, trackhoes, and other mechanized land-clearing equipment to discharge dredged material and organic debris to approximately 4.4. acres of wetlands at Hylebos Marsh."

The discharged material and debris included, "rocks, dirt, and biological materials, all of which constitute 'pollutant[s]," the filing said.

At the time, the port was faced with the potential that the snail clean up could threaten the progress of the since-abandoned $1.2 billion NYK Blair-Hylebos container terminal. Moving to eradicate the snail as quickly as possible to avoid a possible federally forced shutdown of construction due to the infestation, the port proceeded with the wetlands excavating and grading without a permit.

The EPA investigation into the 2008 incident also uncovered over an acre of destroyed wetlands the port filled in August 2006 adjacent to the former Kaiser Aluminum Smelter. The port and its Kent, Wash.-based contractor Scarsella Brothers used heavy equipment to dump approximately 1,920 cubic yards of "soil, rocks, asphalt and concrete" into 1.13 acres of the wetlands, according to the EPA suit. This work was allegedly conducted without the proper federal permit.

The EPA points out that the affected wetlands drain directly into Commencement Bay, a major South Puget Sound waterway and that Puget Sound is an environmental priority for EPA in the Pacific Northwest. Wetlands like Hylebos Marsh, the EPA said, play a critical filtration role in preventing dangerous contaminants from entering Puget Sound.

The lawsuit seeks to force the port and other defendants to restore the wetlands areas cited as well as pay fines that have accumulated to approximately $32.7 million. The EPA is also seeking reimbursement of all legal costs arising from the case.

The port has not commented publicly about the suit, however, in the past the port has not defended its actions to move forward in 2008 on the snail eradication project.

“Honestly, we just blew it,” port environmental manager Tony Warfield told the News Tribune in September 2010.

Since 2008, the port director has been replaced and new procedures to track environmental issues on construction projects have been implemented by the port.

The port, which was served with an order by the EPA in September 2010 to restore the Hylebos March wetlands, has offered to swap restored wetlands areas nearby to compensate for the damaged wetlands at the heart of the suit.