Hood Canal property owners fined more than $250K for illegally replacing bulkhead

UNION — Property owners living in Mason County have been fined more than $280,000 for illegally replacing the bulkhead at the shore of Hood Canal near Union without a required permit in 2017 and 2020, which violated the Clean Water Act, and led to the change of tide flow and the death of fish, according to EPA and court documents from the United States District Court for the Western District of Washington at Tacoma.

Joan Bayley, Philip Bayley, and Big D’s Beach Cabin LLC of Union, Washington have been ordered by the court to pay a $250,000 penalty for illegal bulkhead replacement work that caused the death of Chinook salmon. They also have to pay $33,492 to the Hood Canal Coordinating Council as mitigation, according to EPA.

"In August 2017, Mr. Bayley, Ms. Bayley, and Big D’s Beach Cabin LLC removed an old, sloped concrete bulkhead along the shoreline of the Hood Canal and replaced it with a new, vertical one. The project, which was performed without the required Clean Water Act permit, discharged dredged and fill material, such as dirt, spoil, rock, sand and concrete into the Hood Canal," EPA summarized in a statement provided in January.

In August 2020, Philip Bayley directed contractors to build a stairway next to the new bulkhead and fill the shoreline behind it, which again discharged concrete and other fill material in Hood Canal, EPA said.

"The construction projects permanently and negatively changed the patterns of tidal water flow and circulation along the shoreline," the agency said. "These changes advance beach erosion and decrease the overall ecosystem functions of Hood Canal, particularly as a spawning habitat for several species of fish."

Construction without permit violated Clean Water Act

According to a court document filed in April last year, on Aug. 27, 2020, the federal government sued the two Bayleys and the LLC they had set up for allegedly violating the Clean Water Act by unlawfully discharging dredge or fill material into U.S. waters on the property then owned by the LLC. They were also accused of fraudulently transferring title and wrongfully distributing the company's assets to avoid CWA penalties.

In May 2017, Philip contracted with an engineering firm to design a bulkhead to be located at their site on Highway 106, along the south shore of Hood Canal, with an intent to build a house ten feet landward of the bulkhead, according to the court documents.

About a week later, Philip Bayley and his mother, Joan, formed the Big D’s Beach Cabin LLC. In June 2017, the LLC bought the site for $90,000. Philip Bayley signed a contract in July that year with a construction company to build a replacement bulkhead there, which was paid for by the LLC and both Bayleys from their personal accounts, according to the court order.

The construction began on Aug. 1, 2017. An unknown photographer provided photos of the excavation of the former revetment to EPA by NOAA's National Marine Fisheries Service office, according to court documents.

Ten days later, beginning Aug. 11, 2017, the U.S. Army Corps of Engineers notified them that construction of the bulkhead violated the CWA if continued without first getting a Section 404 permit, the court order said.

Anyone who plans to work in the U.S. waters needs to obtain a permit. A Section 404 permit is required before discharging dredged or fill material into the waters. Activities requiring such permits include depositing fill, dredged, or excavated material in waters of the U.S. and/or adjacent wetlands, fill for residential, commercial, or recreational developments, construction of revetments, breakwaters, beach enhancement, and more, according to the website of U.S. Army Corps of Engineers' Seattle District.

The construction at the site involved an excavator and trucks that discharged dredged or fill material along the shoreline and below the high tide line of Hood Canal, the court document said.

About a year later, in July 2018, EPA sent a notice of violation informing the property owners that construction of the bulkhead violated the act. At some point, the agency directed them to remedy their violations or faceenforcement action, the court document said.

In December 2019, Joan Bayley and Philip Bayley signed a quitclaim deed, conveying the LLC's interest in the site to Joan. However, the company didn't receive cash nor property in exchange although the transferred real property was worth at least $105,205 at the time. "As a result, the LLC has become insolvent," according to the plaintiff's allegation in the court document.

In the same month, Joan Bayley signed a quitclaim deed conveying her interest in the site to the trustee of Frihet Trust. The trust company didn't pay Bayley cash or property in exchange for the transfer, the court document said.

"Mr. and Ms. Bayley allegedly knew the United States had claims for violations of the CWA when they distributed Big D’s assets," the plaintiff alleged in the court document.

On Aug. 11 and Aug. 17, 2020, Philip Bayley, as trustee of Frihet Trust (or individuals acting on his behalf) used equipment to discharge concrete and other fill material in Hood Canal below the high tide line without a Section 404 permit to construct a stairway next to the bulkhead and to fill the shoreline behind the bulkhead, the court document said.

Vertical bulkhead changes tide water flow

The vertical bulkhead "permanently adversely changed the patterns of tidal water flow, circulation, and wave reflection along the shoreline", according to an ecosystems ecologist and regulatory expert, who visited the location in March 2021 to do measurements and document shoreline conditions, the court document cited.

The expert also found "an increased pH in water that encountered the vertical bulkhead, which can kill or injure fish, including the endangered Chinook salmon," according to the court document.

A court document filed in July 2021 also mentioned that Philip observed one instance of dead fish on the private property tidelands between 2017 and July 2021.

The final judgment by the court "sends a strong and clear message that federal, state, and local permits and approvals are required prior to constructing along the shoreline of Hood Canal and Puget Sound,” Ed Kowalski, Director of the Enforcement and Compliance Assurance Division in EPA’s Region 10 office in Seattle said in the press release.

“Compliance with the Clean Water Act also ensures no one gains an unfair financial advantage by violating the law,” Kowalski said.

This article originally appeared on Kitsap Sun: Union residents fined after bulkhead project caused death of salmon