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Administrative law judge says Glacier’s dock plans adequately protect marine life

Glacier Northwest’s plans to build a new barge-loading dock extending from its property on Maury Island include enough measures to protect juvenile salmon, herring, surf smelt and other fish that linger in the eelgrass beds off the shores of Maury, a state administrative law judge said in an opinion issued last week.

The judge’s finding came in response to an appeal by Preserve Our Islands (POI), an Island group leading the charge against Glacier Northwest’s efforts to dramatically expand sand and gravel mining on its 235-acre site on the eastern flank of Maury. POI had appealed a decision by the Washington Department of Fish and Wildlife (WDFW) to grant Glacier what’s called “hydraulic project approval,” one of the permits it needs to proceed on the controversial barge-loading facility. According to POI’s appeal, Glacier’s dock construction would occur while surf smelt and sand lance are spawning, create too much noise for fish and result in shading out life-supporting eelgrass beds.

But Barbara Boivin, an administrative law judge, said POI failed to prove that Glacier’s mitigation plans are inadequate and that fish will be harmed as a result.

In her 12-page decision, she said the state will require Glacier to suspend work if WDFW biologists who plan to visit weekly find smelt eggs; that sand lance do not appear to spawn at the site; and that the corporation has developed adequate measures to limit noise, shading and other issues. Her opinion is called an "initial order" and is part of the administrative review process. A final order will be issued by the head of WDFW, Jeff Koenigs.

“Significant mitigation measures are in place to address potential shading impacts from the structure and the barges,” Boivin wrote.

Amy Carey, who heads POI, said the ruling was “a little distressing” but not surprising in light of what she called WDFW’s poor record in upholding state regulations meant to protect fish. If WDFW upholds the judge's proposed finding, POI, she added, will appeal.

“Our passion in this battle is protecting the habitat and the fish life,” she said. “And we’ll go to the mat to ensure that what is law and what is right is applied.”

Glacier Northwest, meanwhile, saw the initial order as a legal victory and as further indication that its project complies with state and federal laws.

“It’s another legal review that affirms that the project meets all the regulatory requirements and satisfies environmental concerns,” said Pete Stoltz, permit coordinator for Glacier.

The judge's initial order comes weeks after the U.S. Army Corps of Engineers gave the corporation the last permit needed by a federal agency to move forward on the dock, a decision POI plans to appeal in federal court. According to Glacier and state officials, the corporation now needs a lease from the state Department of Natural Resources (DNR) granting it the right to build on state-owned submerged lands and within what’s called a marine reserve before it can begin construction.

It’s not clear when that lease will be issued or even if it will be issued. One day after Glacier got its green light from the Corps, Doug Sutherland, head of DNR, issued a memo outlining what the state has to ensure before it can issue Glacier a 30-plus year lease.

“We need to have that lease in place, but DNR has to go through their process. We recognize and appreciate that,” Stoltz said. “We believe we’ll meet all the criteria for the lease to be issued, so we’re hopeful that can happen soon.”

Glacier Northwest first obtained its hydraulic project approval — needed before a company can do any work in Washington’s waters — from the state wildlife agency in 2002. Such permits last five years; when Glacier Northwest hadn’t begun building by 2007, it sought a new hydraulic project approval from the state, which it received last May.

After POI lost an “informal appeal” of WDFW’s 2007 permit decision, according to the judge’s finding, the organization appealed WDFW’s decision formally, filing the protest last September.

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