Category Archives: Business and industry

Toxic flame retardants gain attention of U.S. consumer commission

Ongoing studies into flame retardant chemicals have raised a serious question: Are ANY of the polybrominated or polychlorinated flame retardants safe enough to be used in household products?

It’s a question I’ve been asking for several years while writing about these chemicals, many of which are known to disrupt hormonal functions in humans and animals. Among them are the familiar polybrominated diphenyl ethers, or PBDEs.

Now the U.S. Consumer Product Safety Commission is weighing in on the question by proposing new regulations that would ban this entire class of chemicals containing bromine or chlorine — now referred to as nonpolymeric organohalogen flame retardants. If these regulations are eventually adopted, they would prohibit the use of organohalogens in four types of products:

  • Any children’s product, including toys and baby furniture, except for car seats,
  • Any type of seat cushion or upholstered furniture,
  • Any mattress or mattress pad, and
  • Any plastic case containing an electronic device, including computers and televisions.

Banning an entire class of chemicals is a fairly radical step, because each chemical in this large group of compounds has its own toxicity profile. Even the staff of the Consumer Product Safety Commission recommended against such a broad regulation. If you are up for some dense reading on the subject, check out the 535-page briefing report (PDF 78.7 mb) or just read the summary in National Law Review.

Despite the opposition by CPSC staff, three out of five commissioners were convinced of the dangers imposed by this broad class of chemicals. They voted, 3-2, to move ahead with a total ban. Convincing documents included a petition for rulemaking (PDF 63 mb) from 12 diverse groups, ranging from the American Academy of Pediatrics to the International Association of Fire Fighters to Consumers Union. The commission also heard formal testimony from these groups and many others. (Review the videos on this page.)

“It is imperative that CPSC’s regulation cover all organohalogen flame retardants as a class when used in consumer products,” states the petition. “This class of chemicals is foreign to the mammalian body and inherently toxic, due to its physical, chemical and biological properties.

“Industry has historically responded to the dangers posed by one organohalogen flame retardant by replacing it with one or more other organohalogens that are, by virtue of their chemical properties, also harmful,” the petition continues. “This exposes consumers to a series of ‘regrettable substitutions’ from one harmful flame retardant to another… The way to end this cycle of toxicity is to ban all products in the categories at issue here if they contain any organohalogen flame retardant.”

A total ban was ultimately the position taken by the commission, although formal rulemaking will take time and may not come to pass. At least two commissioners asked on several occasions if even one of these flame retardants has been proven safe. They never received an answer that satisfied them.

After the vote, Commissioner Elliott Kaye, an attorney, issued a strongly worded written statement (PDF 262 kb): to explain why he agreed to take such a strong action.

“As a policymaker and, more importantly, as a parent, I am horrified and outraged at how chemicals are addressed in this country,” he said. “It is completely irrational that we wait for children to be poisoned before the government is allowed to step in.

“Rational and thoughtful public policy in this area would involve the government and industry coming together to agree which chemicals are safe for human exposure, especially for pregnant women and children, and which ones are not. And more importantly, rational and thoughtful public policy would have these assessments occur before these chemicals are permitted to come onto the market. Waiting to assess the safety of chemicals after they are already in consumers’ homes and our children’s bloodstreams is totally irrational public policy.”

Commissioner Robert Adler, an attorney, seemed to be troubled that he went against the commission’s staff, and he wanted to explain his position.

“As a starting point, let me say that I have little serious disagreement with staff on the science aspect of the issues,” he said in a written statement (PDF 136 kb). “To the extent that there was disagreement, it was over the legal and policy issues arising from the science.

“I note that a large part of the staff’s recommendation rested on their misgivings about treating OFRs as a broad class of chemicals given OFRs’ differing levels of toxicity and exposure to which consumers are subject. I grant staff’s point about the differing levels of toxicity for these flame retardants. But what I have not heard from staff, nor from any of the witnesses at our hearings, is credible evidence demonstrating that there are any ‘safe’ organohalogen flame retardants.”

He said all the chemicals in the class seem to have common characteristics. For example, they pass into cells freely, do not metabolize easily, inhibit a cell’s defense system, bioaccumulate in the tissues and cause harm that can be linked to the chemical structure.

“There are certainly a number of OFRs where we have no studies to provide us with proof of harm, but years of experience confirm that every time we get sufficient data to evaluate the risk of harm of any specific OFR, we always find it to be so toxic that we start to remove it from our products. In other words, the more evidence that accumulates, the stronger we see the case against the use of these chemicals.”

As part of the coming regulatory process, the Consumer Product Safety Commission agreed to convene a chronic hazard advisory panel to assess the risks of flame retardants, drawing on all available information.

Meanwhile, the commission also issued a “guidance document” that calls on manufacturers, distributors and retailers to voluntary ensure that their products do not contain added flame retardants. Consumers, especially those who are pregnant or have young children, are advised to make sure products they purchase are free of such chemicals.

While the commission appears to be moving on a course of tough action, the regulatory process can be long and filled with potential delays. In fact, through normal appointments of commission members, President Trump will be able to change the direction of the commission over the next four years if he so chooses.

Commissioner Anne Marie Buerkle, whose term was extended by seven years in February when Trump named her to chair the commission, does not support the commission’s decision on flame retardants.

“My Democrat colleagues claim that there is ‘overwhelming scientific evidence’ of toxicity across the class; indeed, we heard witnesses at our hearing last week maintain that every organohalogen that has been adequately studied has been found to cause adverse effects,” Buerkle said in a statement (PDF 626 kb). “Even if that claim is accepted at face value, do all such adverse effects result from prevailing exposures? We know that substances as benign as oxygen and water — two of the most essential requirements for human existence — can cause death when too much is inhaled or imbibed. Is there something exceptional about organohalogens such that the dose becomes unimportant?”

Buerkle said she supports formation of a chronic hazard advisory panel, but she believes the results should be available to the commission before moving forward with regulations.

As for chemical manufacturers, it appears that they are not going down without a fight over flame retardants. A statement from the American Chemistry Council (PDF 86 kb), which represents the industry, says it will inform manufacturers and other businesses that the commission’s action has no binding effect.

“The value chain should feel confident that they can continue to use these chemistries in certain applications consistent with existing national and international regulations while CPSC conducts its further analysis of these substances,” says the statement.

Environmental and consumer groups say they will push retailers not to sell products with flame retardants, and “Consumer Reports” magazine offers recommendations about how people can avoid toxic flame retardants.

Meanwhile, Washington is among a growing number of states that have banned certain flame retardants. Based on findings from the state Department of Ecology, the Legislature approve a ban on the worst chemicals in 2008, followed by others last year. See Ecology’s webpage on the PBT Initiative.

For further reading, here are some stories from the Encyclopedia of Puget Sound:

Collapsed fish pens could shift the debate over Atlantic salmon farms

UPDATE: Aug. 30

Democratic members of Washington state’s congressional delegation are calling on federal agencies to take immediate steps to minimize damage from the net pen collapse and release of Atlantic salmon near Cypress Island. Read the news release.

“Pacific salmon are central to our economy, our culture, and our environment in the Pacific Northwest and are a critical part of marine and estuarine ecosystems in Washington state,” the letter states. “Most concerning is the threat farmed Atlantic salmon pose to the wild Pacific salmon populations stocks in Puget Sound. Farmed salmon tend to be larger and could outcompete wild salmon for critical resources, such as prey and preferred habitat, which is important for spawning. Tribes, fishermen, and state agencies are working to respond to the escapement, but the scale of the release calls for immediate and direct federal response….”

Meanwhile, a public hearing about the expansion of the Port Angeles net pen operation has been cancelled at the request of the owner, Cooke Aquaculture. Read the letter from Steve Gray (PDF 155 kb), Clallam County’s deputy planning director.
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The recent collapse of salmon pens near the San Juan Islands could become a turning point in the war against salmon farming that is being waged by environmental groups in Puget Sound.

Yesterday, Gov. Jay Inslee and Commissioner of Public Lands Hillary Franz announced a moratorium on new state leases or permits for any fish farms using Atlantic salmon. The moratorium will remain in place until state officials can fully review the escape of more than 300,000 Atlantic salmon from net pens near Cypress Island, according to a joint announcement (PDF 107 kb).

The video, by Glenn Farley and Travis Pittman of KING 5 News, was posted Friday.

The owner of the pens, Cooke Aquaculture, has applications pending to move and expand its net pen operation near Port Angeles to an area 1.8 miles offshore in the Strait of Juan de Fuca.

Cooke, a family-owned company, acquired all of the salmon farms in Puget Sound from Icycle Seafoods last year. The deal was touted as a way to infuse capital and modernize operations on the West Coast.

“The deal will enhance the family’s investments in both the wild fishery and the aquaculture sectors, making them leaders in the U.S. salmon farming sector and a major player in the Alaskan salmon fishery,” said a news release about the acquisition. See the story by Cliff White in “SeafoodSource.”

Perhaps the company did not have time to upgrade its facilities to reduce the risk of the net pens collapsing at Cypress Island and other farming operations. In a news release (PDF 251 kb), Cooke said it had applied for permits to update its Cypress Island site. Still, this latest incident cannot instill confidence in the company nor the salmon farming industry as a whole.

In fact, one could argue that that the company’s extensive “Fish Escape Prevention Plan” (PDF 1.4 mb) and Operations Plan (2.4 mb) should have raised red flags for the company. Cooke cited unusual tides and currents as contributing factors in the pens’ collapse, despite the fact that these tide levels are seen several times each year and stronger currents can be anticipated at times.

Cooke proudly proclaims its commitment to the environment on the company’s home page. But shooting itself in the foot on Cypress Island will leave a bad feeling for many Puget Sound residents. For environmental groups, this event will provide ammunition in their effort to stop the expansion of net pens in Puget Sound and phase out their use entirely.

It is often pointed out that Washington is the only state on the West Coast that allows salmon farming. (See “Our Sound, Our Salmon.” Meanwhile, a serious debate over the pros and cons of industrial-scale aquaculture goes on and on in British Columbia, where more than 100 salmon farms are well established. Take a look at reporter Gordon Hoekstra’s story in the Vancouver Sun.

The war on salmon farms has been waging for years on both sides of the border. While battles ought to be won or lost based on credible information, I’ve seen facts distorted to fit political goals on both sides of the argument.

Now the Cypress Island incident will raise the profile of the debate in Washington state. Let’s hope that the investigation called for by Gov. Inslee and Commissioner Franz will lead to findings that go beyond the question of why the net pens collapsed and look at the overall risks and benefits of keeping these salmon farms around.

Kurt Beardslee, executive director of Wild Fish Conservancy, told me in an email that he is working today to sample 50,000 pounds of Atlantic salmon that escaped from the Cypress Island net pens. Experts will be looking for viruses, parasites and stomach contents.

I believe the information about stomach contents will be particularly valuable, because of concerns that the escaped fish could be consuming wild salmonids — including young chinook and steelhead, both of which are listed as threatened species. Obviously, we don’t have enough out-migrating chinook and steelhead as it is. (You may wish to review my recent story about salmon recovery in the Encyclopedia of Puget Sound.)

Meanwhile, Wild Fish Conservancy, a staunch opponent of salmon farming, has filed notice that it intends to sue Cooke Aquaculture for violations of the Clean Water Act.

“The Conservancy is deeply disheartened by Cooke Aquaculture’s glaring negligence, negligence which has led to an environmental disaster of epic proportion,” states a news release (PDF 115 kb) from the organization. “The needless escape of up to 305,000 Atlantic salmon into Puget Sound represents a dire threat to already imperiled wild fish populations, beloved marine mammal species, and the fragile Puget Sound ecosystem at large, and Wild Fish Conservancy fears impacts to these critical aspects of our region will be felt for years to come.”

The 60-day “letter of intent” (PDF 1.9 mb) from Wild Fish Conservancy outlines a number of alleged violations of federal law resulting from the release of Atlantic salmon and the management of debris. The group says it will seek monetary penalties of up to $52,000 a day, as provided by law, and “injunctive relief to prevent further violations.”

When I asked Kurt what he thought the lawsuit could accomplish, he wrote, “Simply speaking, I believe It’s in the best interest of our sound, our salmon and future generations to pursue all legal avenues to quickly remove Atlantic salmon net pens from Washington’s waters.”

The group — which is part of Our Sound, Our Salmon — is planning an on-the-water protest off the south end of Bainbridge Island on Sept. 16. See “Flotilla: saying no to Atlantic salmon net pens.”

In response to the Cypress Island incident, an “incident command” structure has been set up by the Washington state departments of Natural Resources, Fish and Wildlife, and Ecology, along with the Office of the Governor and Emergency Management Division. The idea is to share information and make joint decisions about the cleanup operation.

“The release of net pen-raised Atlantic salmon into Washington’s waters has created an emergency situation that has state agencies working together to protect the health of our salmon…,” Gov. Inslee said in a statement. “Tribes and others who fish Washington waters deserve a comprehensive response to this incident, including answers to what happened and assurances that it won’t happen again.

“I believe the company must do everything it can to stop any additional escapes and to recover as many fish as possible, including adequate compensation for those working to remove Atlantic salmon from our waters,” he added.

A new website called “Cypress Island Atlantic Salmon Pen Break” will be the distribution point for public information — including “situation updates” from Cook Aquaculture, “Next steps” from DNR, minutes from agency conferences, news releases and other documents.

The Clallam County Hearing Examiner will hold a hearing on Sept. 7 regarding the proposed relocation and expansion of the Port Angeles net pens. Many documents related to that application and Cooke Aquaculture operations can be found on the website titled Clallam County Online Permit System. Click on the permit number for American Gold Seafoods.

No end in sight for dispute over pesticide injury to salmon

It has been 15 years since a federal judge ruled that the Environmental Protection Agency and National Marine Fisheries Service must consider whether pesticides increase the risk of extinction for Northwest salmon populations.

Chlorpyrifos

Since 2002, NMFS (also called NOAA Fisheries) has determined that some pesticides do indeed pose a significant risk to the ongoing existence of salmon listed under the Endangered Species Act. Yet, after all these years, permanent protective measures have not been imposed by the EPA, which is responsible for regulating pesticide use.

One could argue that progress has been made in the face of litigation from environmental groups. The EPA has acknowledged its responsibility under the Endangered Species Act, and the agency has adopted a new and evolving methodology for measuring the risk to listed species.

After its initial assessments were thrown out by the courts, NMFS has agreed to complete new biological opinions for five pesticides that pose some of the highest risks. Studies for chlorpyrifos, malathion and diazinon are scheduled to be done by the end of this year, followed by carbaryl and methomyl by the end of next year.

What we don’t know is whether President Trump’s anti-regulatory efforts and pledge to dismantle the EPA will slow or stop the process of protecting salmon. When it comes to pesticides, environmental activists will tell you that the Trump administration has already taken steps to undermine not only salmon but also human health.

For example, the insecticide chlorpyrifos was scheduled to be banned by the EPA after a new analysis found that its ongoing use on food crops could pose unsafe risks for people, especially young children whose brain development could be impaired.

In March, just before the ban was to go into effect, Trump’s new EPA administrator, Scott Pruitt, reversed EPA’s course, saying the U.S. Department of Agriculture disagrees with the methodology used by the EPA in developing the ban.

Environmental groups, which had already obtained a court order to force the EPA to reconsider its approval of the pesticide, were outraged. They filed yet another lawsuit, as described in a news release from Earthjustice.

“EPA’s stunning reversal on chlorpyrifos in the face of overpowering scientific evidence of harm to children signals yet another dereliction of duty under the Trump administration,” Kristin Schafer, policy director for Pesticide Action Network, said in the news release.

After the Ninth Circuit Court of Appeals refused to force the EPA to take immediate action on chlorpyrifos, nine U.S. senators stepped in to draft legislation that would ban the chemical. See news release and video from Tom Udall, D-New Mexico, and a separate statement from Earthjustice.

Chlorpyrifos is among numerous pesticides that can harm salmon directly and indirectly in a variety of ways, including destroying salmon’s ability to make their way upstream to spawn and killing off the insects they eat.

In its latest biological evaluation released in January, the EPA looked at more than 1,400 toxicity studies before concluding that chlorpyrifos in all its various uses could be expected to have an adverse effect on all threatened and endangered species throughout the U.S. — including killer whales in Puget Sound. Check out the news story by Adam Wernick, Living on Earth.

Of course, chemical manufacturers and farming groups — including apparently the USDA — are not easily convinced that certain pesticides are harmful. They want to go on selling and using these chemicals, as they have for many years. Consequently, they want the EPA to prove beyond a reasonable doubt that a chemical is causing damage. But federal law actually requires that all chemicals on the market be proven safe, so any doubt should trigger a reduction of pesticide use or at least greater restrictions on their application.

It is easy to complain about the adequacy of any scientific study. In fact, a disputed difference in methodology between the EPA and NMFS led to a National Academy of Sciences Review, which eventually made suggestions for unifying the agencies’ different scientific approaches.

Through the years, one thing that I have found remarkable is that chemicals rarely appear to get safer with time. For most pesticides, more study raises more concerns, and when you mix pesticides together you never know what you’ll get.

In 2008, shortly after I started writing this blog, I reported on a study by Nat Scholz, a NOAA toxicologist in Seattle who has been studying the effects of chemicals on salmon and other species. This particular study examined mixtures of chlorpyrifos and four other pesticides.

The biggest surprise, Nat told reporter Erik Stokstad of Science magazine, was the strength of the synergistic punch from the pesticides diazinon and malathion. Together, the two chemicals killed all the salmon exposed to them. Even at the lowest concentration, fish were extremely sick.

“It was eye-opening,” Nat was quoted as saying. “We’re seeing relatively dramatic departures” from what happens with each pesticide by itself. See Water Ways, Feb. 19, 2008.

Such findings raise questions about the adequacy of all studies conducted on single pesticides. Pending final reports on pesticide effects on salmon, the courts have imposed 60-foot no-spray buffers along streams (300 feet for aerial spraying) to reduce chemical exposure to salmon and other species.

Nobody can say for sure if those buffers are adequate, but biological opinions from NOAA due out at this end of this year could shed new light on the problem. Meanwhile, chemical manufacturers are hoping those court-mandated reports never see the light of day — and they are putting pressure on the Trump administration to slow down the process.

In a letter to EPA Administrator Scott Pruitt, a lawyer for the three companies — Dow AgroSciences, ADAMA and FMC — called on the EPA to withdraw its biological evaluation, saying the analysis is flawed in several ways. The lawyer also wrote to other federal officials, asking the National Marine Fisheries Service and U.S. Fish and Wildlife Service to delay their biological opinions. According to the lawyer, the court-imposed deadlines are not legally binding.

Reporter Tiffany Stecker of Bloomberg BNA does a nice job describing various viewpoints surrounding this complicated issue. She also describes a close relationship between Dow and the Trump administration.

“The company donated $1 million to President Donald Trump’s inaugural committee,” she wrote. “Trump appointed Dow Chairman and CEO Andrew Liveris to head the White House American Manufacturing Council.”

Dow spent more than $13.6 million on lobbying efforts last year, according to Michael Biesecker, environmental reporter for the Associated Press.

“When Trump signed an executive order in February mandating the creation of task forces at federal agencies to roll back government regulations, Dow’s chief executive was at Trump’s side,” Biesecker wrote.

“’Andrew, I would like to thank you for initially getting the group together and for the fantastic job you’ve done,’ Trump said as he signed the order during an Oval Office ceremony. The president then handed his pen to Liveris to keep as a souvenir,” according to the AP report.

Patti Goldman, managing attorney for Earthjustice’s Northwest Regional Office, said Dow executives are doing everything they can to suppress the science surrounding chlorpyrifos and other pesticides — including hiring their own scientists to raise doubts and delay proposed bans for these toxic chemicals.

“We have a person (Pruitt) in charge of the Environmental Protection Agency who really doesn’t believe in the mission of the agency,” Patti told me.

Turmoil over pesticides has been heightened by the Trump administration just when the EPA and NMFS appeared to be coming together to resolve long-held conflicts over how to assess risk and reduce harm to salmon, she said.

Now, after 15 years of court battles, the end of the conflict appears far from over.

“I think we have had incremental progress, because we’ve gotten the agencies to look at this,” Patti said. “Some chemicals are no longer on the market, and some are on the market for only particular uses.”

While there is plenty of disagreement over whether controls on pesticide use are working, for now the no-spray buffers remain in place as a temporary protection.

Amusing Monday: Taking a wild ride on (or in) a killer whale or shark

I didn’t know anyone made a high-speed watercraft that resembles a killer whale until I saw Freeze List’s new video “8 Insane Water Toys that Everyone Must Try” (second video on this page).

This killer whale is built like a small aerodynamic submarine and is about the size of a real killer whale. It can race along on the surface, dive underwater, roll to the left or right, and even breach up into the air, as the operator adjusts aircraft-style controls.

The Killer Whale Y Model is one of three models of Seabreacher watercraft manufactured by Innespace Productions, based in New Zealand. The other two models are the smaller Shark X Model and the latest Dolphin Z Model, a revision of the first design.

If the videos of a speedy killer whale machine are not amusing enough, Seabreacher has produced a few oddball videos involving the watercraft. Check out the list at the end of this post.

The killer whale model is a two-seater with 360-degree viewing from within an enclosed canopy. It runs on a Rotax 1500-cc, four-stroke 260-horsepower motor. Features include a large whale tail, pectoral fins and a functioning blowhole.

As SeaWorld and other marine parks cease their killer whale performances — in which people often ride on the backs of live orcas — this manufactured whale can be built with grab handles and foot pegs to allow trained stunt people to do acrobatic feats on the outside of the machine.

Three years ago, writer Rohit Jaggi climbed into one of the Seabreacher cockpits on Shasta Lake near Redding, Calif. His goal was to write an article for the Financial Times of London. Riding with him was Rob Innes, a New Zealand boat builder who teamed up years ago with machinist Dan Piazza to create Innespace Productions.

“Drive it like you stole it,” Innes advised the reporter. “You can’t break it.”

“Obediently, I pull very hard on one of the two vertical levers in my hands, push on the other, and we switch instantly from a … straight line to a carving, steep turn to the left,” Rohit writes. “Keeping my right index finger tight on the trigger throttle, I reverse the positions of the levers and we are thrown into a tight right curve, banked so far over that water breaks over the transparent bubble canopy above our heads….

“I take a few minutes to dial my responses in, but it is not long before I am, indeed, driving it like I stole it… Rushing forward, planing on the lateral fins, I push the two levers forward and a wall of water rises swiftly up and over the canopy until the Seabreacher is underwater. All that remains above the surface is the midship-mounted vertical fin, which contains a snorkel for the engine air intake, slicing through the water at up to 40 kph.” (That’s about 25 miles per hour under water, or about half the maximum surface speed.)

The third video, at right, shows TV news reporter Avijah Scarbrough of KHSL in Los Angeles taking a spin on Shasta Lake, where Rob Innes has opened a division of Innespace.

Innespace Productions started in 1997 with a focus on high-performance submersible watercraft. More than 10 years of engineering and testing went into the Seabreacher models, which are custom built with a variety of options. Typical costs are between $80,000 and $100,000, according to “Frequently Asked Questions” posted on the company’s website.

One promotional video shows 109 different looks created for the three models, although some may have been shown more than once. I advise you to use the pause button to take a closer look at these machines. A large collection of related videos can be found on the Innespace Seabreacher Channel on YouTube.

A few amusing (or perhaps silly?) videos featuring the Seabreacher:

Forest battle continues over defining the upper bounds of fish habitat

A long-running battle over how to manage potential fish habitat on commercial forestland could be coming to a head — although it isn’t clear if the solution will satisfy either forestland owners or environmentalists.

Jamie Glasgow of Wild Fish Conservancy (center) leads a crew surveying a stream for the presence of fish in 2014. // Photo: Chris Linder

To be clear, there is not much argument about streamside buffers where salmon, trout and other fish are readily found, thanks to state and federal rules stemming from the landmark Forests and Fish Report. Buffers are designed to save trees that serve the needs of fish — including insects for food, shade for cool water and eventually down trees that form pools for resting as well as hiding places and spawning areas.

Environmentalists contend that it is important to protect unoccupied fish habitat as well as areas occupied by fish at any point in time. If salmon populations are to rebound, salmon fry could need extra space to grow and develop, says Jamie Glasgow, a biologist with Wild Fish Conservancy. That means larger buffers should go where fish habitat can be found.

Of course, timberland owners don’t want to leave large buffers on small stream segments where fish would never go. For them, perhaps hundreds of millions of dollars in commercial timber could be left standing under new rules, depending on how the state’s Forest Practices Board comes down on this issue of fish habitat. The board is scheduled to take up the issue again with some kind of action planned on Aug. 9.

Fish habitat is defined in the Forest and Fish Report as areas of a stream “used by fish at any life stage at any time of the year, including potential habitat likely to be used by fish which could be recovered by restoration or management and includes off-channel habitat.” (The emphasis is mine.)

The Forest and Fish Report was incorporated into state law by the Washington Legislature, and federal agencies adopted those concepts as a statewide “habitat conservation plan” to protect species listed under the Endangered Species Act, including chinook salmon.

One of the big arguments about fish habitat revolves around how to determine just how far upstream fish would likely go and where they would be deterred under various natural conditions they encounter, such as streamflow or natural barriers such as waterfalls.

The Forest and Fish Report anticipated that a map would be developed with all stream segments designated as either fish habitat or not fish habitat. After several years, such a map was developed in 2005, based on the size and steepness of the streams, using the best information available.

It soon became apparent, however, that fish were being found in areas marked as non-habitat on the maps. Other areas designated as habitat were sometimes unable to support fish. Some fish-bearing streams were not even on the maps, and some streams were in the wrong place. I wrote about the efforts by Wild Fish Conservancy to correct some maps three years ago (Kitsap Sun, Sept. 27, 2014). Previous maps had proved to be a problem as well, even before the Forest and Fish Report (Kitsap Sun, May 28, 1996).

The maps are still used as guidance, but buffer determinations must be made for each logging or development project based on actual site conditions. If a stream is 2 feet wide and the steepness is less than a 20 percent — or 16 percent in some areas — it is assumed that fish can get there.

But — and here’s the rub — an allowable fall-back method is to identify the presence of fish, either through snorkel surveys or by “elecrtrofishing,” which involves putting a nonlethal current in the water to stun the fish. Where fish are located, the area is designated as fish habitat, along with waters that extend upstream to a natural “break,” such as a waterfall or a stream confluence that would prevent fish from going any farther.

Much history surrounds this issue, and all sides should be given credit for working through many thorny habitat problems through the years. Nobody wants to go back to a time when the spotted owl was a symbol for conflict about whether forests were mainly for jobs or fish and wildlife.

As for fish habitat, experts have renewed their attempt to come up with reliable and objective methods to identify the break points between habitat (known as “Type F waters,” which stands for fish) and non-habitat (“Type N waters”) without the costs and impacts of surveying every stream for fish.

Environmental groups became impatient with the effort — or lack of effort at times — over the past 12 years — or more if you go back to the Forest and Fish Report. The matter has gone into formal dispute resolution, as provided by the Forest and Fish Law, and it now is up to the Forest Practices Board to provide a resolution.

“For the past 12 years, we have been using the interim water-typing rule that does not protect fish habitat …,” Glasgow said. “The interim rule allows surveyors to go to a stream anytime (during a specified period) and electrofish a stream. If they do not find fish during the one-day survey, they can identify it as Type N.”

The result is that many miles of fish habitat are getting little or no buffer protection, he argues. Where mistakes are made and small buffers or no buffers are allowed, it will take decades before the trees grow back to become good habitat again.

In mediation talks, the various parties — landowners, environmental groups, tribes and governments — have come to consensus on the overall framework to identify break points where the fish habitat ends, but the details are still unresolved.

Karen Terwilliger, senior director of forest and environmental policy for the Washington Forest Protection Association, said it is important to remember that these discussions are not about streams where adult salmon will go to lay their eggs.

“It’s the tail end of where the fish might be,” said Terwilliger, whose organization represents large timberland owners. The areas in dispute are generally small streams mostly occupied today by resident fish, including various species of trout and tiny sculpins.

The break point between fish and non-fish areas should be a location where the last fish is equally likely to stop above and below that point, she said. The scientific standard is that the break point should be accurate 95 percent of the time, as required by adaptive management provisions of the Forest and Fish Law.

“We think fish presence will always be an important part of the system,” she said. “Different streams are different. A ‘one size fits all’ does not make sense.”

Environmental groups prefer to avoid methods that rely upon people finding fish, which may or may not be present at the time of a survey. It should be possible to define habitat conditions suitable for fish whether or not they are there at a given time.

Scientific information has evolved to where predictions can be made about where fish will go, Terwilliger said, but there are still questions about what conditions create a barrier to fish. A level of scientific certainty is required before changes can go forward.

“If science says a change needs to be made, then you more forward to make the change,” she said. “To date, we have not seen data that a lot of changes need to be made.”

If a rule change is proposed, it will need to undergo environmental review, a cost-benefit analysis, a small-business economic impact statement and public hearings.

Peter Goldman, director and managing attorney at Washington Forest Law Center, said the adaptive management process should be more than a system of delays. Only recently have things been moving in the right direction, he added.

“The timber industry is powerful,” said Goldman, who represents environmental groups. “They don’t want anything to change.

“We have been trying to negotiate in good faith collaboratively, because that is the Washington way,” he said. “If the Forest Practices Board doesn’t act … it is conceivable that we will have to sue the board and ask the federal government to reconsider the HCP.”

Stephen Bernath, deputy supervisor for forest practices at the Washington Department of Natural Resources and chairman of Forest Practices Board, said the board is moving forward with the help of scientists. New ideas and new technology are being brought into the discussion with the goal of seeing whether a variety of physical parameters alone can be used to identify fish habitat with high probability.

At the Aug. 9 meeting, the board is scheduled to get an update on the progress and to act on staff recommendations about the breaks between fish and non-fish waters. After that, a formal process will begin to incorporate changes into policies, rules and guidance.

Curiosity and openness distinguish new video on captive killer whales

British broadcaster Jonny Meah assumes an attitude of natural curiosity as he takes a close look at the question of whether killer whales should be kept in tanks for public display.

In a video he produced and edited, Meah visits Marineland of Antibes in the French Riviera, where he lays out the best case possible for each side of the argument. “Inside the Tanks” is Meah’s first-ever documentary production, and he is not afraid to put himself in the middle of the debate, expressing his own feelings as he weighs each side.

“I was inspired to make this documentary and tackle this debate, despite it’s enormity, because I believe one way or another something needs to be done,” Meah told the Bellingham-based Lemonade magazine. “I truly believe that, in many cases, the issue has become less about animals and more about personal hatred, whether that’s towards an organization or a particular person; that goes for both sides, too…

“I think previous pieces on the topic have been really, really interesting, but I personally felt that there was a gap, and a need in one of these pieces for a view from someone in support of captivity as well. So that is where ‘Inside The Tanks’ comes in.”

In an opinion piece written for HuffPost, Matthew Spiegl, an advocate for whales and dolphins, admires Meah’s approach at revealing his personal transformation as he goes about discovering some common ground between “activist” and “keeper.”

Spiegl also credits Jon Kershaw, zoological director at Marineland Antibes. for his openness when commenting about the realities of running a marine park.

“When Meah asks Mr. Kershaw a question about an unusual crease in the dolphins’ necks (as pointed out by biologist Ingred Visser), he acknowledges he had never thought about it being due to the dolphins always looking up at the trainers and agrees that it is the dolphin’s posture which likely causes the crease and that such a posture is not something that would be seen in the wild.”

In March 2016, SeaWorld announced that it would no longer perform captive breeding of killer whales, following an agreement with the Humane Society of the U.S. (See Water Ways, March 17, 2016). Six months later, California outlawed the captive breeding of orcas. Last month, shortly after “Inside the Tanks” was completed, the French government followed suit by banning captive breeding. (The documentary makes a footnote at the end, including a further comment from Kershaw.)

Meah says he looks forward to his first encounter with killer whales in the wild, though he is not sure when that will happen, and he hopes to continue his journalistic endeavors on the subject.

Facing challenges that could save chinook salmon from extinction

Nineteen years ago this month, then-Governor Gary Locke made a bold declaration about salmon that would echo through time: “Extinction is not an option.”

Juvenile chinook salmon depend on high-quality habitat for their survival.
Photo: U.S. Fish and Wildlife Service.

It was a call to action that would lead to major protection and restoration efforts throughout Puget Sound. Still, today, chinook salmon have not experienced a population rebound, as many people had hoped. The failure to thrive has been a disappointment to many, yet we are often reminded that it took 150 years to push salmon to the brink of extinction and it will not be easy to ensure their future.

Last week, concerns about the survival of chinook salmon prompted a coalition of Puget Sound tribes to propose a series of “bold actions,” as I reported in the Encyclopedia of Puget Sound, later reprinted in the Kitsap Sun.

“The way we are managing lands is not working,” stated salmon expert Dave Herrera, speaking for the tribes. “It may be working for people, but it is not working for fish.”

The bold actions, spelled out in a three-page proposal (PDF 380 kb), include greater controls on the use of land and water, among other things. I won’t describe the details, which you can read in the memo. The ideas were prompted by a new Chinook Salmon Implementation Strategy, designed to accelerate an increase in the Puget Sound chinook population.

The tribes complained that the proposed strategy, as drafted, mostly mimicked the 10-year-old Puget Sound Salmon Recovery Plan. That plan has made limited progress in restoring wild salmon runs, despite millions of dollars spent to protect and restore habitat while limiting fishing and controlling hatchery production.

In his speech of June 1998, Gov. Locke worried about the risk of extinction for these migratory fish, which are an economic asset as well as a celebrated symbol of the Northwest.

Former Gov. Gary Locke

“In several Puget Sound watersheds, our wild salmon have less than a decade to live, unless we act now,” Locke said in 1998. “And in many more rivers and streams, if the status quo continues, our wild salmon will be gone before my daughter Emily graduates from high school. So we just don’t have any time to waste. For better or for worse, we are about to make history.”

Locke’s speech was indeed historic, as he launched an unprecedented endeavor to rebuild salmon runs at great financial cost. The governor seemed to understand the challenge, as I noted at the time in my coverage of the speech before more than 100 county officials in Tacoma:

“Locke appears to be glancing over his shoulder, ready to duck for cover, as he talks about the financial and political commitments required to keep salmon from disappearing in various parts of the state,” I wrote.

“We need to wake up every morning ready to challenge the status quo,” Locke said, adding that basic changes are needed in the way businesses and average citizens use their land and water resources.

“There is a risk,” Locke said, “in just delivering that message, let alone acting on it.”

The following year, the Washington Legislature created the Salmon Recovery Funding Board to prioritize state and federal funding for salmon recovery. And the next governor, Chris Gregoire, ushered in an even greater ecosystem-recovery effort under guidance of the Puget Sound Partnership.

Wetlands are critical habitat for salmon.
Photo: Eric Grossman, U.S. Geological Survey

Today, I can’t help but wonder what would have happened without these salmon- and ecosystem-recovery efforts. Would the salmon be gone, as Locke predicted? It’s hard to say, but researchers have learned a great deal about what salmon need to survive, and the money is being better targeted toward those needs. As a result, it is understandable why some people are both disappointed with the past and hopeful for the future.

One of the great challenges facing public officials today is to find ways for local governments to truly live up to the standard of “no net loss” of ecological function — a standard required by the state’s Growth Management Act. When new developments affect “critical areas” — such as fish and wildlife habitat — they must include vegetated buffers and stormwater controls to minimize the damage. Then they must enhance degraded habitat — either on-site or off-site — to make up for losses that cannot be avoided.

I used to believe that this goal was unachievable, and I have questioned many state experts about it. How can any developer construct a commercial or residential development and walk away with no net loss of habitat function? The answer is to include a serious restoration component.

One example is the Hood Canal Coordinating Council’s In-Lieu Fee Program, which I wrote about last month in Water Ways (May 19). This program was started on a large scale to mitigate for construction at the Navy’s submarine base at Bangor, but it also works on a small scale, as I mentioned in that blog post.

When an older site is redeveloped, there may be no ecological loss, since the damage was done in the past. But when a developer builds in a new location, the local government is charged with measuring the loss, coming to terms for mitigation and making sure the mitigation is carried out. The concept of “no net loss” works only if the mitigation is permanent — another major challenge in many areas.

If no net loss can be achieved while major restoration efforts continue, we will see a net increase in salmon habitat in the Puget Sound region, and that will be a cause of celebration. One success has been in the program Floodplains by Design, which improves critical off-channel habitat for salmon while reducing flooding problems for nearby residents. Checkout the story I wrote for the Encyclopedia of Puget Sound and the blog post in Water Ways, April 15.

Washington State Department of Commerce, which oversees the Growth Management Act, is in the process of updating its Critical Areas Assistance Handbook (PDF 6 mb), which serves as guidance for local regulations. New information about how to protect habitat for all life stages of salmon will be a key addition to a revised version, soon to be released for public review. See the CAO page on the Department of Commerce website.

Local governments in every part of the state must become part of the discussion if we expect them to carry out the mandate of protecting habitat for salmon. Money for planning and regulatory enforcement must be worked out. One idea I’ve heard is a regional approach that involves a group of compliance officials working to enforce the rules for multiple counties and cities.

No doubt the salmon-recovery effort must be improved. Challenges remain for issues including fishing, predation by marine mammals and climate change. But if the protection and restoration of salmon habitat can outpace unmitigated damage from development, we may be justified in believing that extinction is not an option.

Federal grant may help bring life to abandoned properties in Bremerton

Up to 14 abandoned buildings or otherwise underused properties in Bremerton will undergo pollution assessments with an eye toward ultimate restoration, thanks to $300,000 in federal “brownfields” funds.

The old K-Mart building in East Bremerton is one of many properties that might benefit from a new brownfields grant awarded to the city of Bremerton.
File photo: Meegan Reid, Kitsap Sun

The pollution assessments are considered a first step in restoring life to properties that have been neglected because of the high cost of investigating and cleaning up hazardous substances on the sites.

The city of Bremerton targeted four neighborhoods in its grant application, which has been given conditional approval by the Environmental Protection Agency. These are the specific areas with descriptions from the city’s application:

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Environmental efforts, including Puget Sound, hanging in the balance

I must admit that I have an uneasy curiosity to see how Congress will manage programs that protect human health and the environment now that Republican legislators are in control of both the House and Senate with no concerns about a budget veto.

Photo: Matt H. Wade via Wikimedia

Most environmental laws and programs are the result of hard-fought compromise between Democrats and Republicans who somehow agreed on ideas to make the world a safer place for people and wildlife. Do Republican members of Congress really want to back away from those advances? Do they want to explain to their constituents why clean air, clean water and safe food are not as important as they once were?

I was fascinated to read that Republican senators and representatives in the Great Lakes states could be a key to saving federal funding for Chesapeake Bay — and, by the same token, Puget Sound, the Gulf of Mexico and other major restoration projects.

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Green crab invaders settle in on Dungeness Spit, Olympic Peninsula

An invasion of the European green crab, which started last summer in northern Puget Sound, appears to be continuing this spring with 16 green crabs caught in traps at one location on Dungeness Spit near Sequim.

European green crab
Photo: Gregory C. Jensen, UW

The new findings are not entirely unexpected, given that invasive green crabs have established a viable population in Sooke Inlet at the southern end of Vancouver Island in Canada. From there, young crab larvae can move with the currents until they settle and grow into adult crabs. Last summer and fall, green crabs were found on San Juan Island and in Padilla Bay.

The big concern now is that a growing population of invasive crabs could spread quickly to other parts of Puget Sound, causing damage to commercial shellfish beds and disrupting the Puget Sound ecosystem.

“It knocks the wind out of your sails for sure,” said Emily Grason when I asked how she felt about the latest discovery. “You feel kind of powerless, and you want to get out there and start doing things.”

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