HOOD CANAL, Union, Mason County — The story of this three-story home, perched above the waterfront to take in the beauty, begins with the concrete bulkhead below it.
It’s about 9 feet tall and 46 feet long, nestled within the waterway. Construction of the bulkhead began in 2017, and it allowed for the property owner to build bigger, adding 570 square feet of living space to the 3,000-square-foot home, according to federal court records.
It also killed Chinook salmon, caused permanent environmental damage and was built without a necessary federal permit, the Environmental Protection Agency determined. In November, a federal judge levied nearly $300,000 in fines and fees against Joan Bayley, her son, Philip Bayley, and Big D’s Beach Cabin LLC of Union, Mason County.
The case, in U.S. District Court for the Western District of Washington, went on for years, with nearly 300 docket entries, some 20,000 pages of documents, exhibits, pleadings, claims and counterclaims. U.S. District Judge David Estudillo at times appeared to grow exasperated with the defendants, noting that their lack of compliance with discovery orders in the case made consideration on merits impossible.
After a default judgment in the EPA’s favor in April, Bayley continued to file motions, which the judge stated were based on “allegations utterly unsubstantiated and unworthy of consideration.”
The unpermitted development has shocked some people who have worked for years to protect the fragile waters of Hood Canal and species that depend on it, including threatened Chinook salmon and the orcas they feed.
Philip Bayley is also listed as the trustee of the property next door (a vacation rental that last week was going for over $1,500 a night for the first weekend in August).
Despite the lack of permits and environmental damage, the bulkhead and home above it can stay after consultants for the EPA deemed it would cause more destruction to take it out. And Bayley retains ownership.
Bayley, reached by phone this week, said he still expects to be fully vindicated. As for the fines, he said, “I haven’t even thought about that yet; I think he is carefully reviewing my motions and very carefully reviewing the records,” he said of the judge. “I’m just patiently waiting.” He said he plans to live in the new house still under construction as his family home.
Christopher Constantine, attorney for the defendants, said no violation had occurred because the defendants had a land-use permit from Mason County for replacing the bulkhead. He said the bulkhead is not in the water, so neither the U.S. Army Corps of Engineers nor the EPA had jurisdiction over the project.
“You can’t have a Clean Water Act violation if there is no water,” Constantine said. The judge dismissed those and other defenses, according to court documents.
The back and forth over the bulkhead continues. Bayley filed a motion Jan. 24 seeking a stay of the judgment. The Department of Justice filed a motion in response, asking the judge to dismiss it. Bayley filed another motion asking the judge to reconsider the entire record. On Monday, he filed an appeal to the 9th Circuit Court of Appeals, court records show.
Joseph Pavel, director of the Department of Natural Resources for the Skokomish Indian Tribe, said the unpermitted construction is indicative of “ongoing micro-colonialism of developing and trying to own the landscape.”
“He’ll make that back in five years,” said Pavel of the fine, while looking at the bulkhead from a boat during a recent visit. “That’s not allowed and that’s not right and that’s not OK.”
According to court documents, construction of the bulkhead began Aug. 1, 2017. Within days, the Corps of Engineers notified the defendants the construction violated the Clean Water Act. A stop-work order was later issued and other orders directed the defendants to remove concrete from the beach.
On July 26, 2018, the EPA issued a notice of violation, stating construction of the bulkhead violated the Clean Water Act, and told Bayley he must remedy the situation or face enforcement action. Still the construction went on.
“It was not something that we allowed him to do; he did it despite the fact we told him not to,” Patrick Johnson, lead attorney for the EPA on the case, said of Philip Bayley. “He seemed not really to care about our requests, or the number of communications articulating that he was in violation.”
Finally, the EPA took its enforcement case to court, where the judge affirmed the EPA’s finding of four violations of the Clean Water Act: installing supports to construct the bulkhead in 2017; pouring concrete into the forms in 2017; constructing stairs on the bulkhead in 2020; and backfilling the bulkhead in 2020. In addition to the $250,000 fine Region 10 EPA announced last month, the defendants were ordered to pay $33,492 to the Hood Canal Coordinating Council, an intergovernmental group, for mitigation work.
“We are hoping the civil penalty and additional compensatory penalty sends a deterrence message,” Johnson said in an interview with The Times.
A fragile fjord
Hood Canal is a special place. It is a natural fjord separating the Olympic
and Kitsap peninsulas. Major rivers empty into it, including the Skokomish,
Dosewallips and Big Quilcene. It’s a place of complex life and tides and
bathymetry, with the depth ranging from as much as 600 feet to as little as 177 feet. Algal blooms already bedevil the waters because of circulation patterns.
Hardening the shoreline sets back restoration work being done to bring these waters to healthier conditions, said Dave Herrera, a member of the Leadership Council, the governing body of the state Puget Sound Partnership, and policy adviser for the Natural Resources Department of the Skokomish Tribe.
Herrera has been working on fisheries and natural resource issues for the tribe for more than 30 years. Over that time, he has watched the shoreline of the canal on the south side degrade. What started out as simple summer cabins have been replaced with major year-round developments, from resorts to large homes — and shore armoring on virtually every parcel.
“We need to stop the bleeding,” Herrera said. Instead, “if you have enough money, you go through enough hoops, you get your permit,” Herrera said — or just pay a fine if you don’t. “What I see is a lot of entitlement. Alleged entitlement,” Herrera said.
On this fragile fjord, every last bit of natural shoreline matters, Herrera
said. Especially as climate change stokes bigger storms and sea level rise. “I’m not sure how the landowners are going to deal with things like rising sea
levels … do people think they are just going to add to their bulkheads?”
Some said the punishment over the bulkhead construction was inadequate. The bulkhead affects not only the owner’s small lot, Pavel said, but a connected circle of life, from the uplands to the beach and the water, from tiny forage fish to the bigger salmon that eat them, to the orcas that eat the salmon.
More than one-third of the Puget Sound shoreline is already walled off behind
bulkheads. A concrete bulkhead like this one increases wave erosion, starves the beach for upland sediment, and destroys beach spawning habitat for forage fish and the larger nearshore environment for salmon.
The effects of individual bulkheads travel far beyond their footprint, recent science has shown, affecting not just the area directly ahead of it but the flow of sediment and waves all along the shore.
“It’s death by a thousand cuts; so much of this has gone on for so long, it
makes it very difficult to deal with these issues,” Pavel said. “But we are trying to put the brakes on the damage that is being done to our resources and the resources of all the people.”
Permanent damage
The bulkhead’s construction involved an excavator and trucks to remove old material, with discharge into Hood Canal of dirt, dredge spoil, rock and concrete along the shoreline and below the high-tide line, according to court records.
While the defendants obtained approval from Mason County for the project, they took no steps to comply with federal law — despite it being required for construction in waters of the U.S. below high tide, according to court documents. EPA Regional Wetland Coordinator Amy Jensen attested “field indicators … that have developed on the new bulkhead since its construction, including the presence of encrusted barnacles, persistent water marks, small debris accumulation, algae growth and direct observation of inundation support the determination that defendants discharges occurred below the high tide line.”
In addition to the natural function of the nearshore, now permanently
damaged, the defendants admitted the construction project resulted in the death of Chinook salmon, according to a declaration by attorney John R. Spencer of Tacoma on behalf of the defendants.
Lyndon Lee, an ecosystems ecologist and regulatory expert, in a site visit in March 2021 to conduct measurements and document shoreline conditions, found the bulkhead permanently and adversely changed the patterns of tidal flow, circulation and wave reflection. He further found an increased acidity in water that encountered the bulkhead, which can kill or injure fish.
He found the removal of the new bulkhead and replacement with something more like what was there before could be impractical, impossible, risky or expensive if undertaken and would not yield environmental benefits needed to restore lost ecosystem structure and functions. Lee recommended a payment for mitigation work elsewhere instead.
The court found “no indication of excusable neglect on the defendants’ part.” Indeed the court found the defendants willfully evaded $4,400 in permitting costs by not applying for a permit; and by replacing their existing sloped revetment with a vertical bulkhead, increased the size of the uplands of their site enough to build a house with 570 square feet of additional living area over three levels.
Region 10 EPA Administrator Casey Sixkiller said in an interview the fine was necessary to cancel the economic advantage gained by skirting the law — and to penalize damage to the public’s waters.
“This underscores our collective efforts to restore Chinook, orca pods that depend on them; this is an all-hands-on-deck moment,” he said. “This is not just an investment in resource recovery but also ensuring we are enforcing the law and prohibiting illegal projects like this.
“This is a pretty blatant example … ”
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