Regulatory and even legislative changes are in the works, and the law could become a tool in dealing with greenhouse gases related to climate change.

Coming Together

The latest signal that something is afoot is the launch of a new blog this week by the EPA. It is called “Coming Together for Clean Water.”

The EPA is “seeking public input on how the agency can better protect and improve the health of our waters…” according to a news release. “The feedback received on the online forum will help shape the discussion at EPA’s upcoming conference in April, ‘Coming Together for Clean Water,’ where we will engage approximately 100 executive and local level water leads on the agency’s clean water agenda.”

Three topics are mentioned: “The Watershed Approach,” “Managing Pollutants from Nutrients,” and “Stormwater Pollution.”

It is interesting to see how people in various parts of the country are responding to these topics and how local issues play into the national overview. Some folks seem fairly alarmed and are demanding that the EPA take firm actions. Others have responded by spelling out technical solutions or offering case studies about how the EPA has failed in the past.

Enforcement plan

In October, the EPA released what is now called the Clean Water Act Action Plan. It calls for greater and more consistent enforcement nationwide of the clean water law under three strategies:

• Target enforcement to the most important water pollution problems
• Strengthen oversight of the states
• Improve transparency and accountability

Dealing with jurisdiction

The Clean Water Act of 1972 made it unlawful to discharge any pollutant from a point source into a navigable body of water without a permit. EPA’s Watershed Academy offers an informative introduction to the Clean Water Act.

One of the key issues before Congress right now is the definition of “navigable waters,” which had been extended to include source water and associated wetlands. In 2006, the U.S. Supreme Court issued five separate opinions that reined in the EPA’s jurisdiction by saying waters of the United States extend only to “relatively permanent, standing or continuously flowing bodies of water” connected to traditional navigable waters, and to “wetlands with a continuous surface connection to” such relatively permanent waters.

The EPA has been struggling to define its jurisdiction ever since. Environmental advocates would like to see EPA’s jurisdiction restored to what the agency previously assumed it was.

A bill by U.S. Sen. Russell Feingold, D-Wis., was introduced last year to include all tidal waters and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing… “

The New York Times described the problem triggered by the Supreme Court ruling in a series called “Toxic Waters,” which included these quotes:

Douglas F. Mundrick, an E.P.A. lawyer in Atlanta: “We are, in essence, shutting down our Clean Water programs in some states. This is a huge step backward. When companies figure out the cops can’t operate, they start remembering how much cheaper it is to just dump stuff in a nearby creek.”

James M. Tierney, New York State assistant commissioner for water resources: “This is a huge deal. There are whole watersheds that feed into New York’s drinking water supply that are, as of now, unprotected.”

About 117 million Americans — more than a third of the U.S. population — get their drinking water from intermittent sources that may not be covered by the Clean Water Act, according to a report by the EPA.

EPA Administrator Lisa Jackson has called for a legislative solution in Congress, but Feingold’s bill faces opposition from farmers and industrial groups who have stirred up fears of a “government takeover” of all water supplies. Agricultural organizations, for example, say they don’t want the EPA involved in measuring pollutants in their irrigation ditches before the water goes back into public streams.

Water and climate change

Before I leave this complex subject of the Clean Water Act, I want to mention one other major new development related to climate change. There’s been plenty of discussion about regulating carbon dioxide as a pollutant under the Clean Air Act, but now the EPA has agreed to consider regulation under the Clean Water Act as well.

The agreement settles a lawsuit brought by the Center for Biological Diversity, which raised concerns about ocean acidification caused by CO2 off the Washington Coast. I talked about this in Water Ways in some detail last May.

EPA is expected to publish in the Federal Register an approach that involves a particular provision of the Clean Water Act, which requires states to identify threatened or impaired waters and to set limits on pollutants going into those waters.

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The Legislature this week voted to phase out cooper in brake pads, provided there are reasonable alternatives and that research continues to suggest that brake pads are contributing significant amounts of toxic copper. The bill is Senate Bill 6557.

This last point about research — about the need to know more about the alternate states of copper in the environment — was raised by Silverdale resident Bob Benze. I covered his questions and success in adding an amendment to the bill in the March 1 edition of the Kitsap Sun.

Even at low levels, an ionic form of copper has been shown to affect the sense of smell in salmon, which can lead to confusion and reproductive failure. It has become a major concern, especially in urban areas. Here’s a fact sheet from the Washington Department of Ecology.

Ivy Sager-Rosenthal of the Washington Toxics Coalition supports the Puget Sound Partnership’s call for a full assessment of toxic chemicals flowing into Puget Sound and an increased focus on eliminating sources of such pollution.

Last week, Ted Sturdevant, director of Ecology, testified before Congress about actions taken by state governments, generally because the federal government has been slow to act. He and 12 other state environmental officials are calling for reform of the federal Toxic Substances Control Act.

Washington was the first state to draft a formal policy phasing out persistent bioaccumulative toxics, or PBTs. This led to state laws phasing out mercury and toxic flame retardants. The latest legislation, finalized this week, will ban bisphenol-A in baby bottles and sports bottles.

Sturdevant spelled out three guiding principles for addressing persistent toxic chemicals:

“First: before you allow a substance to be put into widespread use and commerce, it makes sense to take all reasonable measures to first make sure it is safe.

“Second: if science tells us that there are toxic chemicals that pose an urgent and unacceptable threat, government should be able to protect the public and ban those chemicals.

“Third: if we know with reasonable certainty that a particular substance is dangerous to people or the food chain and doesn’t break down; and if we know that allowing continued use of that substance will spread it far and wide; and if there is an alternative substance that could perform the same task much more safely; then the right policy is simple: stop using the dangerous substance, and use the safer alternative.”

These chemicals are called “persistent” for a reason, and polychlorinated biphenyls, or PCBs, are a shameful example of what can happen. The production of PCBs began in the 1920s. Despite their usefulness in a variety of applications, studies in the 1930s showed that this class of chemicals could be harmful to humans. Production increased, as did the problems, with few people paying attention to the long-term effects. In 1979, PCBs were finally banned, but even today they are still being found in animals, including humans.

PCBs are suspected of causing cancer and have been associated with developmental, reproductive and immune problems.

Sturdevant again:

“This is a critical point; when we put persistent toxics out into the world, they persist. And if they turn out to be a problem, then the problem becomes enormous, and largely unsolvable. Once out, we cannot ever truly put the PBT genie back in the bottle. This has been an expensive lesson that we all should learn from — when we uncork that bottle, let’s be as sure as we can that it makes sense to do so.”

Principles proposed by the 13 state environmental officials calling for reforms in the Toxic Substances Control Act:

Require Chemical Data Reporting. Chemical and product manufacturers should be required to develop and provide chemical health and safety information, as well as exposure and use data, including the presence of toxic chemicals in products and the associated chemical hazards and risks, to regulators, businesses, and the public.

Demonstrate Chemicals and Products are Safe. Manufacturers should provide the necessary information to regulators to conclude that new and existing chemicals and products in commerce are safe and do not endanger the public or the environment. The public has a right to expect that the products they use are safe.

Prioritize Chemicals of Concern. Government should identify and prioritize chemicals of concern in order to regulate the most problematic chemicals in commerce, and have the authority to take timely action to protect people and the environment. Sufficient resources should be made available to support these actions.

Protect the Most Vulnerable. Chemical regulation should be designed to protect the most vulnerable, including pregnant women and children.

Promote Safer Chemicals and Products. Based on green chemistry principles, manufacturers should be required to assess and identify safer alternatives to problematic chemicals of concern. Government should establish protocols for evaluating potential alternatives to chemicals of concern.

Address Emerging Contaminants. Emerging chemicals of concern, including nanoscale materials, need to be assessed for public and environmental safety before they go into widespread commerce and use.

Strengthen Federal Law & Preserve States’ Rights. States acknowledge the need for a strong federal chemical regulation system, while expressly preserving the authority of state and localities to implement measures to manage chemicals of concern.

Fund State Programs. Effective state-federal governance should enhance the role of states in TSCA implementation, promote data and information sharing, and provide sustained funding for state programs. The states are in a unique position to provide innovative, cost-effective solutions for chemicals of concern prioritization, interstate data sharing, and safer chemical alternatives assessments.

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The 712-foot container vessel Horizon Tacoma is towed between Bainbridge Island and Seattle Tuesday afternoon. This photo was taken from the Seattle's Sunset Hill Park about 3:30 p.m. The ship, with the Crowley tug Hunter on the bow and the Garth Foss at the stern, was headed to the Port of Tacoma. / Photo courtesy of © Fred Felleman

Never be embarrassed to ask for help. That’s the take-home message from an incident Tuesday night when a 712-foot container ship had engine trouble. Sure, the ship might have made it to Tacoma, but what damage would that have caused to the engine, and how safe would that be moving through our relatively narrow waterway?

The following is the story I prepared for the Kitsap Sun’s Web site and tomorrow’s newspaper. Thanks to Fred Felleman for shooting the photo.

Washington Department of Ecology officials are praising the captain of a container ship for seeking assistance from a rescue tug east of Neah Bay and taking no chances Tuesday night.

The 712-foot Horizon Tacoma experienced engine problems at about 10:30 p.m. Tuesday, said Curt Hart, spokesman for Ecology. Although the ship was not entirely disabled, the captain chose to shut down the main engine to prevent further damage and called for tug assistance. The ship still had use of its thrusters and directional navigation, he noted.

“This is how we like things to happen,” Hart said. “That had to be a tough call for the company, but we think it was a good call. The ship could have limped in … but this ensures safety to prevent a maritime hazard.”

The state’s emergency-response tug at Neah Bay, called the Hunter, was about a half-hour away and quickly responded. The Coast Guard, which was in charge of the operation, gave permission for the Hunter to tow the ship to its destination in Tacoma but directed the ship to engage a second tug.

The tug Garth Foss met the ship near Port Angeles on Wednesday and joined the Hunter in towing the ship down through Puget Sound. The vessels were expected to be off the east side of the Kitsap Peninsula on Wednesday and reach Tacoma sometime Wednesday evening.

Because the Hunter is occupied with the long tow, another Crowley tug, the Valor, is standing by at Neah Bay for other possible emergencies.

Since 1999, the publicly funded rescue tug has stood by or assisted 44 vessels. The maritime industry is scheduled to take over funding of the tug this summer.

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Now, after five years, the health district has released a report showing major improvements in water quality in all the major streams. See my story in today’s Kitsap Sun or check out the report (PDF 1.7 mb).

During the project, area residents were assisted in finding and repairing their aging septic systems in various parts of the watershed. Businesses were shown how to maintain nearby storm sewers and were encouraged to flush washwater down the sanitary sewers, not the storm drain. Even old sewer lines were inspected and repaired in some cases.

Here are some specific water-quality data on Dyes Inlet streams:

The first number is the average fecal coliform counts in 2006. The second is the average fc counts in 2009. Also listed is the percentage improvement during that short time.

- Enetai Creek: 116, 56, 52 percent
- Barker Creek: 89, 53, 40 percent
- Clear Creek: 137, 30, 79 percent
- Strawberry Creek: 52, 29, 45 percent
- Chico Creek: 19, 18, 5 percent
- Mosher Creek: 31, 14, 55 percent
- Ostrich Bay Creek: 212, 88, 59 percent
- Phinney Creek: 992, 364, 63 percent

A second report released by the health district is called the 2010 Priority Area Work List for the PIC Program (PDF 752 kb). It includes a rationale for why certain water bodies were selected for pollution investigations in the current year.

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Today, I’d like to reflect on a couple of small hazardous waste cleanup projects and some juggling involving hundreds of millions of dollars in state cleanup funds.

In years past, the Washington Department of Ecology signed agreements with property owners dealing with hazardous chemicals that had leaked from underground tanks on their property. The owners were required to pay what they could, although some were not able to pay anything. Ecology might then lead the cleanup, using funds from the state’s Model Toxics Control Account. That account derives its funds from a tax on petroleum products, pesticides and other specific chemicals.

The federal economic stimulus program has provided $3.4 million for such leaking underground storage tanks in Washington state. As I reported in the Kitsap Sun this week, work is beginning on a renewed cleanup at Country Junction Store in South Kitsap while a proposed plan would clean up soil near Hansville Store in North Kitsap. These are both small, community stores whose owners signed consent agreements with Ecology years ago.

It just so happens that the Washington Legislature has been taking money out of the state’s toxics account to help balance the state’s general fund budget.

According to a report by Jim Brunner of the Seattle Times, lawmakers diverted $180 million last year and Gov. Chris Gregoire proposes to pull out $80 million this year.

All this comes on the heals of a report exploring ways to finance the cleanup of contaminated sites across the state. The report was requested by the Legislature when it became obvious that existing funds would not be enough to pay for hazardous site cleanup, especially when money is being taken out for the general fund. Quoting from the report, called “Model Toxics Control Act Remedial Action Grants – Alternative Financing Evaluation”:

Demand for MTCA funds is increasing. While the grants have supported closure of many sites, a stream of new smaller projects and a growing number of larger, more complex cleanup projects continues. Coupled with the recent downturn in the economy, these trends have created a gap between the availability of funds and the real need. This situation has increased the uncertainty surrounding the future availability of MTCA funds and the subsequent need to use these limited funds more effectively than the traditional cash grant program.

If you recall, earlier this year environmental groups were proposing a higher fee on oil products to raise money to address stormwater problems throughout Puget Sound. Stormwater is considered the primary source of contaminants to the Sound, and holding back stormwater would effectively reduce toxics getting into the waterway.

Since then, the focus has shifted to tripling the existing MTCA tax of $7 per $1,000 on the wholesale price of hazardous substances. The new money — $13 per $1,000 — would go into other accounts, starting with 69 percent moved into the state’s general fund to help balance that out-of-whack budget. The rest:

• - 20 percent into a new account to address stormwater
• - 1.9 percent for oil spill prevention
• - 2.05 percent for the recovery of Puget Sound
• - 2.05 percent into a new State Clean Water Account
• - 5 percent into the Motor Vehicle Account for roads, trails and sidewalks

Under the current proposal, House Bill 3181, more of this new money would be shifted out of the general fund and into the stormwater fund each year — unless the Legislature changes its mind.

What we’re seeing is a lot of shifting of money as lawmakers try to plug a $2.7 billion hole in the state budget while offering environmentalists the hope of addressing Puget Sound cleanup in a meaningful way.

Let me know what you think about this shifty spending plan.

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Last week, I wrote in the Kitsap Sun about two Bremerton public works projects — sewers in Gorst and a new Bremerton water-treatment plant. Together, they are using $13.5 million in federal stimulus funds.

It has been said that the $7.5 million in stimulus money for the Gorst sewer project is a lifesaver for that community, because local residents never could have afforded sewers without it. Public officials have been trying for years to finance that project. Every time someone added up the costs, it looked like low-income residents would be hit with sewer assessments in excess of $20,000 each. Now the hookups will cost them nothing.

Meanwhile, officials with Kitsap County Health District kept rushing around Gorst, forcing homeowners and businesses to put band-aids on their failing septic systems. This project will mean an end to that nonsense.

The $6-million Bremerton water project — required because of new rules from the federal Environmental Protection Agency — might have been possible with local dollars. But that would have required a sizable hike in utility rates among Bremerton residents. Remember, these are the same folks who already pay very high rates to finance more than $50 million in stormwater projects designed to prevent raw sewage from flushing into local waters during heavy rains.

After nearly 20 years, Bremerton can say it has addressed its combined sewage overflow problem — while Seattle and many other older cities are still struggling with the issue. See Water Ways Aug. 26, 2009.

This brings me to the state’s Public Works Trust Fund. If the Gorst sewer and Bremerton water projects were to be done locally, they would certainly need the low-interest loans provided by the trust fund. The fund was vital to financing Bremerton’s stormwater projects with local dollars. But the state’s budget crisis caused the Legislature to take most of the money — $368 million — out of the trust fund to pay for other government operations. And so public utilities statewide have put many projects on hold, though I can’t tell you how many would have been built in this time of economic uncertainty.

John Kounts of the Washington Public Utility Districts Association wrote about that funding shift in the WPUDA’s publication Connections (PDF 240 kb).

And so the federal stimulus money became extremely important for the Gorst sewer and Bremerton water projects. According to Bremerton documents, about 200 jobs will be created before the work is done.

Taking money out of the Public Works Trust Fund may have saved jobs in state agencies, but it must have cost some jobs in the public works sector, because of projects put on hold. I’m not sure about the net balance in job numbers.

Something I don’t understand, however, are statements by politicians who say the federal stimulus money has created no jobs. Yes, the federal government has borrowed money to run the program, but it seems clear that these grants have resulted in projects that would not be done anytime soon. That means a net surplus of jobs created.

Tomorrow: More shifting dollars

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At the time, it seemed to me that it would be much easier said than done for various shippers to allocate the cost among themselves. Industry representatives agreed that negotiations would be difficult, as I reported in a Kitsap Sun story last March 31.

The Legislature had looked at a cost-allocation system but decided to allow the industry to work it out themselves. Progress reports were required by Oct. 31 and Dec. 1.

And this is where I may have misunderstood the Legislature’s intent. I thought the idea was that if the shippers failed to put a system in place by the end of last year, then the Legislature would come back and do something this year to ensure no disruption in tug service. By then, the industry would have little room to complain. But that’s not what is happening.

This week, I wrote about progress in those negotiations and learned that the two major groups are still some distance apart. (See Thursday’s Kitsap Sun.) But the Legislature has no intent of stepping in. The law requires that the tugboat be on station before ships can operate in Puget Sound, and everyone seems confident that the law will be followed.

Department of Ecology officials have indicated that penalties for shippers could run to $10,000 a day if the tugboat is not there. (You may review the correspondence on the subject.) Sen. Phil Rockefeller, D- Bainbridge Island, a key player in the bill, told me that the fines would be enough to cover the cost of the tug, so he would allow the process to play out.

Since the shipping industry is generally divided between oil shippers and cargo shippers, the only alternative I can see, if negotiations fail, is to have two tugs at Neah Bay. Of course, that would be ridiculous and a waste of money.

As in many negotiations, these are likely to go down to the wire. Everyone expects a new tug to be in place by July 1.

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Washington Department of Transportation has been improving its stormwater systems for new highways and a few older systems, but the latest federal stormwater permit issued by the Washington Department of Ecology did not go far enough, according to the group Puget Soundkeeper Alliance.

Represented by Earthjustice, Puget Soundkeeper Alliance appealed the permit to the Pollution Control Hearings Board. The settlement was not everything the environmentalists wanted, but it is a solid step in dealing with aging highways.

Bob Beckman, executive director of Puget Soundkeeper Alliance, explained the group’s position in a news release:

“Government agencies, businesses, and citizens are all working together to protect and restore Puget Sound, but the state’s department of transportation wasn’t carrying its share of the weight. There is a lot more work to be done, but we feel that this is a step in the right direction. The state highway system should not be held to a weaker standard than industries, local governments and the public.”

So what was included in the deal?

The stipulation signed by the parties (PDF 476 kb) calls for retrofitting an entire highway in environmentally sensitive areas when substantial new impervious surfaces are added, provided that the retrofits are “feasible” and “cost-effective.”

Retrofitting is deemed “feasible” if there are no physical site limitations such as steep slopes, soil instability or high groundwater tables.

Retrofitting is “cost-effective” if the cost of dealing with stormwater on the old pavement does not exceed 20 percent of the cost of addressing stormwater on the new pavement.

If retrofitting is not feasible or cost-effective, the transportation department must choose to spend 20 percent of the cost of new stormwater controls to deal with the old problems, retrofit on another site for that amount of money, or put the money into a separate fund for retrofitting old highways.

The agreement also includes provisions for increased consultation with federal wildlife agencies to protect endangered species, even when not required by federal law. The pact also contains provisions for limiting particular contaminants as part of an overall pollution-reduction plan by addressing total maximum daily loads, or TMDL.

Gene Johnson, a reporter for the Associated Press, does a nice job of putting the issue into perspective and explaining why it is important to manage highway runoff.

Gary Chittim of KING-5 News also covers the issue well. (See video below.)

For background information, check out the Washington Department of Transportation’s extensive information on stormwater management.

Washington Department of Ecology discusses stormwater permitting issues.

King County’s Science of Stormwater page also is informative.

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It is the best of streams. It is the worst of streams.

There’s been talk lately about Big Beef Creek in Central Kitsap, where a much-traveled bridge has been closed to heavy traffic because of a washed-out bridge abutment. It appears the bridge will be closed for a couple of weeks, beginning next week. See my story in today’s Kitsap Sun.

There’s reason to believe we’ll be hearing a lot more about this stream in the future.

In my mind, Big Beef Creek is a beautiful salmon stream that has been much abused through the years. Despite a large population of people in the watershed, the creek has managed to hold onto its populations of salmon. Somehow, pollution has been mostly avoided.

For a reporting project, I once explored the entire reach of Big Beef Creek, talking to hobby farmers, backcountry residents and lakeside home owners. That story does not seem to be in the Kitsap Sun’s public archives, but I’ll see if I can track it down and post a link here later.

Big Beef Creek begins in an extensive wetland called Morgan Marsh and drains toward Hood Canal near Lone Rock, north of Seabeck. The creek’s origins in the marsh are just a short distance from the beginnings of the Tahuya River, which drains in the opposite direction into Southern Hood Canal outside of Belfair.

Big Beef Creek flows through a developed area, including Lake Symington. Migrating salmon are forced to navigate a fish ladder at the dam that impounds Lake Symington.

Development has been a problem for the stream, which has seen a decline in salmon. But the stream has been a problem for development, particularly for houses built too close to its meandering banks. During heavy storms, the stream has been known to take out private bridges. And in 1994 it wiped out a bridge on Holly Road. At least two homes have been abandoned below the dam, and others are threatened by its rushing waters.

Out of nearly 60 streams monitored by the Kitsap County Health District throughout Kitsap County, Big Beef Creek is the fifth cleanest in terms of bacterial pollution. Its waters sometimes show low oxygen levels — probably because the waters slow down as they pass through Lake Symington.

Near the mouth of the creek, the University of Washington operates the Big Beef Creek Research Station, where studies of salmon are taking place. The Washington Department of Fish and Wildlife manages a fish trap that catches adult salmon going upstream and juveniles going downstream. Those counts are used to help gauge the production of salmon for all of Hood Canal.

Big Beef Creek flows into an extensive estuary, where people often stop to watch bald eagles feeding in the spring before the salmon runs begin. The eagles often find midshipmen (bullheads) or else steal fish from the herons that congregate there. Some observers have counted up to 40 eagles at one time.

Seabeck Highway crosses the Big Beef estuary on a narrow strip of fill dumped there years ago when the road was built. The small bridge allows water to move between the upper and lower portions of the estuary. But high tides and rains can create a lot of flow through that tiny opening, which contributes to the risk of bridge failure.

The county’s chief road engineer, Jon Brand, told me that flows during the rains and high tides last week were the primary factors in undercutting the bridge abutment, and a log next to the bridge may have contributed to the problem.

There has been talk about removing some or all of the earthen causeway and building a much longer bridge. Biologists say that would dramatically improve estuarine habitat for juvenile salmon.

For now, a $79,000 study has been approved for the Hood Canal Salmon Enhancement Group to develop a restoration strategy for the lower one mile or so of the stream. Stay tuned for further details and check out the study description on the Hood Canal Coordinating Council’s Web site.

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Officials at the Washington Department of Ecology are looking for ways to remove or lock up the massive amount of creosote contamination that seeped into the ground during the first half of the 20th century.

Seth Preston, communications manager for Ecology’s Toxics Cleanup Program, is live-blogging from the meeting today. Another staffer is tweeting #wyckoff from a special Twitter account.

Seth’s presence at this meeting is valuable for those of us interested in this site on Eagle Harbor — one of the most complex and ecologically important sites in the Puget Sound region.

The EPA was on the verge turning over management of the site — including an ongoing pump-and-treat system — to Ecology. The two agencies agreed to delay the transfer for 18 months while state officials search for a more stable solution.

Ecology had two concerns about taking over the site: First, the ongoing pumping would do little to remove the large quantity of contamination in an environmentally sensitive area. Second, the state would be picking up the bill for a project that would cost millions of dollars over time with no end in sight.

Because of Seth’s good work, I won’t repeat the information he has provided in multiple locations on Ecology Web sites. Instead, I’ll just point you to some of the information available:

Reporter Tristan Baurick’s story in today’s Kitsap Sun

Ecology’s Web site on the “generational remedy” for the Wyckoff site.

Expert presentations from the ongoing workshop in PDF format. Look for “NEW!” under “Expert Panel Workshop.”

Seth Preston’s ongoing blog and Twitter feed

EPA’s Wyckoff Eagle Harbor Web site

Watching Our Water Ways

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