Spilt decision

Oil spill prevention sinks like a stone.

After so many fruitless efforts to install some protection against shipwrecks and oil spills for Washington's vulnerable outer waters, who could resist a deal like this? Take some of the interest that's accrued on the still-unspent restoration payments made by the owners of two ships that collided and caused a nasty spill near Neah Bay in 1991, and use it to leverage the deployment of a rescue tug to prevent further accidents. Sure enough, the Makah tribe and the state of Washington, two of the three "trustees" authorized to decide how to spend the restoration funds, are all for the scheme. But it's run aground nevertheless—on the shoals of the federal government, the third trustee.

The Olympic Coast National Marine Sanctuary and Bureau of Indian Affairs, the federal agencies that actually oversee the shorelines most affected by the 1991 spill, seconded the tug-funding idea. But their parent agencies—the National Oceanic and Atmospheric Administration and the Department of Interior, respectively—have killed it nonetheless. This reversal leaves the local parties in the spill-recovery effort not only dismayed and anxious about future spills, but confused as to just why the feds are doing this, and what precedent they're setting for future use of restoration payments that may someday be enormous.

The precedent question looms because this $5.2 million (plus interest) is the first pot of money recovered in this state under the US Oil Pollution Act, passed in 1990 in the wake of the Exxon Valdez spill. OPA mandated that those who spill oil must pay to restore the natural resources (including wildlife) they harm. A year later, the Japanese fish processor Tenyo Maru and Chinese freighter Tuo Hai collided, spilling 100,000-plus gallons of oil and fouling beaches from Oregon to Vancouver Island.

Five months ago, after long gnashing, the state, federal, and tribal trustees arrived at a plan for spending the judgment collected from the ships' owners. Most of it would go to protect old-growth habitat for the threatened marbled murrelet and to lure common murres back to form nesting colonies in the Copalis Wildlife Refuge. But $500,000 would go toward building a $2 million facility for washing and nursing to health seabirds slimed in oil spills, something wildlife officials have long sought. And around $600,000 would pay to hang electronic "pingers" on the Makahs' inshore set nets, to warn off seabirds and mammals that might otherwise get caught in them and drown.

Both these measures raised eyebrows. The pingers could be lifesavers, if they're actually used. But with salmon so depleted, the Makahs aren't setting a lot of nets these days. Still, readying the nets is a statement of confidence, says Makah tribal attorney John Arum: "We're hoping the salmon come back. It's a good investment."

Building the bird-washing center reflects a more pessimistic expectation: the certainty that future spills will kill thousands of seabirds, as the Tenyo Maru spill did. But cleaning oiled birds has proven both expensive and dismally ineffective. Eighty-seven percent of those rescued postTenyo Maru died before they could even be released. Bird-rescue workers, and state and federal wildlife officials, argued that a properly equipped and heated rescue center would greatly boost that survival rate. Some researchers still question its value, noting the lack of data on whether birds that survive to be released are strong enough to breed. But, as you'd expect, public comment overwhelmingly favored the rescue center; slicked, dying birds form the most plaintive images after an oil spill.

JUST AS THIS DRAFT PLAN was finished, marine-protection advocate Fred Felleman proposed an addition: use $400,000—"half the interest!"—as seed money to get a tug at Neah Bay next winter. State and tribal officials cheered: "We felt that was an effective and beneficial use of the additional funds," says Jon Neel, a specialist in the state Spill Prevention and Response Program.

The regional office of the US Department of Interior, the BIA's parent, came out against the tug funding on legal grounds: "restoration" funds shouldn't be used for preventive measures. Barry Stein, the attorney at Interior's regional office in Portland who made this finding, did not back it up with a written opinion, and he refuses to speak to the press.

The Marine Sanctuary's parent, the National Oceanic and Atmospheric Administration, didn't raise any legal qualms. But it also nayed the tug funding, for policy reasons. "We had two concerns," says NOAA staff attorney Robert Taylor. First, the funding would only be temporary: "Nothing about it would lead to a long-term solution." Second, "this issue should be addressed by an independent review by the appropriate agency"—i.e., a risk assessment that the Coast Guard has been working on for years.

All these arguments are open to question. First, the rescue tug would hardly be the first prevention funded as "restoration." The Makah net pingers would prevent seabird bycatch. NOAA and the Coast Guard are using restoration money from a freighter grounding in the Florida Keys for navigation beacons to prevent further groundings there—apparently without running onto legal shoals. "We like the precedent of using money for prevention," says Makah biologist Denise Dailey. "We just felt any preventive stuff we could do is part of restoration." And as Olympic Sanctuary supervisor Carol Bernthal says, "preventing an accident in the first place is just as important and maybe more effective than cleaning up the mess afterward."

The Coast Guard's risk assessment won't be done till next year, leaving the Strait without tug protection this winter even if the assessment winds up endorsing such protection. And that outcome seems unlikely: the Coast Guard seems to favor cheaper, industry-backed protection schemes rather than rescue tugs.

Now it looks like they won't have Tenyo Maru money to turn to either. But Makah attorney Arum sees one consolation: "It's probably good we don't have a formal legal opinion. We don't have a recorded precedent, so we can revisit this issue in the future—when there's another oil spill."

That may change, however. In a late development, US Rep. Jay Inslee has asked the US attorney general for an opinion as to whether using restoration dollars for prevention would indeed be "illegal." Tug backers see one more ray of hope.

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