United States, State of Washington, and the Suquamish and Tulalip Tribes Announce Major Settlement Addressing Natural Resource Damages at Port Gardner Bay Area, Washington
Today, the U.S. Department of Justice, the Department of the Interior (DOI), the National Oceanic and Atmospheric Administration (NOAA), the State of Washington, the Suquamish Tribe, and the Tulalip Tribes (collectively, “the Port Gardner Bay Trustees” aka “the Trustees”), announced that they have reached a settlement with the Port of Everett (the Port) related to contamination of the Port Gardner Bay Area in Everett, Washington. The settlement is intended to resolve claims brought under the Clean Water Act (CWA), the Oil Pollution Act (OPA), and the Washington Model Toxics Control Act (MTCA), for damages to natural resources stemming from the release of oil and other hazardous substances in Port Gardner Bay. The settlement will also address potential liability of the U.S. Navy for natural resource damages.
In April 2018, three other identified potentially responsible parties (PRPs) entered into a consent decree to resolve the full amount of their liability for natural resource damages in the Port Gardner Bay Area, through cash-out payments totaling over $3.9 million. Today’s settlement, if approved by the court, will resolve the liability of the remaining identified PRPs — the Port and the Navy.
As part of the proposed settlement, the Port is required to construct the Blue Heron Slough Restoration Project (the BHS Project), in accordance with a final design plan approved by the Trustees, and maintain the project in perpetuity. The BHS Project will restore 338 acres of intertidal estuarine and upland habitats along Interstate I-5 in the lower Snohomish River estuary, reconnecting these habitats to the Snohomish River watershed and Puget Sound, and preserving open space. The restoration of this habitat will be beneficial to a multitude of native fish, wildlife, and other natural resources. The Port will operate the Project as a “bank” for conservation credits, and will resolve its liability by “retiring,” or setting aside, credits equivalent to approximately 35 acres of the Project.
The proposed settlement also states that the United States, on behalf of the Navy, will make a payment of $789,840 to be used towards construction of the BHS Project. In exchange for the payments from the Navy and the other three PRPs, the Port will set aside credits equivalent to approximately 36 additional acres of the project. As part of the proposed settlement, the Port and the Navy will also pay a proportionate share of the costs incurred by the Trustees in assessing natural resource damages in the Port Gardner Bay Area.
“The Department of Justice is confident that this voluntary settlement will be a significant win for the environment,” said Assistant Attorney General Jeffrey Bossert Clark for the Justice Department’s Environment and Natural Resources Division. “The United States is looking forward to cooperating with the other Trustees and the Port to ensure that the vital habitats of the Port Gardner Bay Area can successfully recover.”
“The Department of the Interior worked together with all the trustees to come to a successful conclusion,” said Regional Director Robyn Thorson for the U.S. Fish & Wildlife Service’s Pacific Region. “We are excited to see the Blue Heron Slough Restoration Project come to life for the benefit of the public and all our shared trust resources."
“This settlement highlights the benefits of working cooperatively with industry, co-trustees and private partners to resolve natural resource liability at a contaminated site”, said Nicole LeBoeuf, Acting Assistant Administrator for NOAA's National Ocean Service. “This agreement will restore habitats critical for salmon and many other species of fish and wildlife, and benefit local communities and economies that depend on clean and robust fisheries.”
“This groundbreaking achievement is a win-win for the environment and local communities,” said Jim Pendowski, Toxics Cleanup Program Manager for the Washington Department of Ecology. “Restoring and protecting 338 acres of critical tidal habitats will help salmon thrive and the communities that rely on healthy fisheries.”
“This settlement will restore habitat that is critical to protecting and supporting treaty-reserved fisheries, which the Suquamish Tribe has relied upon since time immemorial,” said Leonard Forsman, Chairman of the Suquamish Tribe and President of the Affiliated Tribes of Northwest Indians. “The process that resulted in this agreement is a model for the sort of collaboration that can restore the health of Puget Sound. We look forward to continuing this work for the benefit of all of us who rely on the Salish Sea for economic and cultural sustenance.”
“Our ancestral waters, and the marine habitats vital to the natural and cultural resources of the Tulalip people, are in need of protection and restoration if they are to continue to support Salmon, Orcas, and shellfish,” said Teri Gobin, Chairwoman of the Tulalip Tribes. “The collaborative process of this settlement represents the best path forward for protecting our natural resources for future generations of the Salish Sea.”
According to documents filed with the court, the violations for which the Port is allegedly liable involved the unauthorized discharge of oil and other harmful compounds on properties now owned or operated by the Port. Investigations have detected hazardous substances in soils, groundwater and sediments on or in the Port’s properties. Alleged liability of the Navy is the result of past releases of harmful substances on land now owned or operated by the Navy.
The claims against the Port were brought under Section 311 of the CWA, Section 1002(b) of the OPA, and the MTCA. These statutes protect against the discharge of oil or hazardous substances into the waters and marine habitats of the United States and impose liability for damages to natural resources resulting from those discharges.
This settlement marks the close of a long-running matter by resolving the liability of the only remaining PRPs on terms which are acceptable to all parties. The settlement will yield the construction of a large-scale restoration project that will benefit a multitude of injured natural resources in the Port Gardner Bay Area, and it ensures that each PRP is proportionately responsible for the resolution of both the cost of damages to the area’s habitats and the assessment costs incurred by the Trustees.
The proposed settlement, which is subject to a 30-day public comment period, is available at: https://www.justice.gov/enrd/consent-decrees.