Watching Our Water Ways

The Union River near Belfair — the last estuary you come to when venturing into Hood Canal — slaps us in the face with an enigma.

The Union River flows into the very end of Hood Canal near Belfair. The red outline is part of the Pacific Northwest Salmon Center.

For the moment, I can’t do much more than pose some perplexing questions. But I get the feeling that if we could get the answers, we would understand more about salmon recovery in Lower Hood Canal and possibly other places as well.

The Union River also highlights the customary finger-pointing as to why certain stocks of salmon declined in the first place and what it will take to bring them back. Of the four H’s — harvest, habitat, hatcheries and hydro — the greatest finger-pointing goes on between harvest and habitat.

Let’s take Hood Canal summer chum and focus on the Union River, which was the subject of a story I wrote for Monday’s Kitsap Sun.

First, why did summer chum go extinct in the Dewatto and Tahuya rivers — the closest rivers to the Union — while maintaining a viable population in the Union?

Talking about habitat, the Dewatto and Tahuya are far more intact ecologically than the Union, which is dammed up in the Bremerton watershed and has many houses crowding its banks from Kitsap County down to Belfair.

Researchers believe that one of the main reasons for the summer chum decline was excessive fishing years ago during the early part of the coho salmon run, when summer chum were making their way toward their natal streams.

But if that’s the case, how did the summer chum bound for the Union get past the nets near the Dewatto and Tahuya? Were the nets set clear across those rivers, thus taking nearly every fish going upstream while letting fish bound for the Union to move on by?

Were poachers prowling the more remote Dewatto and Tahuya rivers killing summer chum for the “sport” of it when river flows were at their lowest?

I base these questions on comments I have heard through the years, comments that are almost conspiratorial in nature but deserve an answer. If true, perhaps the summer chum in the Union River survived only because of the larger number of people watching what was going on in and around the waterway.

And what kind of poaching goes on even now? Not so long ago, I received reports each year about small fishing boats coming into the Dewatto. Have those activities been stopped? What about current activities in the river? Has the culture changed enough to really protect the spawners?

As for habitat, it is true that the Dewatto and Tahuya have not faced the same level of development. But, through the years, I’ve heard stories of landowners and even trespassers doing things that damage the rivers, generally out of sight of anyone in authority. I’ve been told about makeshift dikes, dredging during salmon-egg incubation, changing the course of the rivers, and allowing manure and excess pesticides to get into the water. And then there are landslides, some the result of normal geological processes and some caused by landscape alterations.

While we generally believe that the Dewatto and Tahuya rivers are relatively natural, maybe they were heavily altered in a few key places by a few careless people, while those living along the Union limited their impacts, knowing that their actions could affect flooding or water quality for their nearby neighbors. That’s not to say I don’t hear horror stories about the Union River as well.

These ramblings of mine are not facts. They are in the realm of conjecture, but I have heard such stories and would like to get some answers. Perhaps the proposed study on the Union River could lead to a greater discussion about what went wrong for the Dewatto and the Tahuya. It might help to avoid the same problems somewhere else.

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Point No Point Lighthouse — the centerpiece of a county park near the tip of the Kitsap Peninsula — has undergone $100,000 worth of improvements.

Jeff Gales of U.S. Lighthouse Society can be seen in the fresnel lens at Point No Point Lighthouse near Hansville.
Kitsap Sun photo by Meegan Reid

The $100,000 came from a grant program called Partners in Preservation. Under the program, millions of dollars have been handed out in recent years for historical restoration work by American Express in coordination with the National Trust for Historical Preservation.

The Point No Point Lighthouse received the cash in 2010, when numerous other projects in the Puget Sound region also received money. See Partners in Preservation – Puget Sound for a description of all the projects.

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Poulsbo is the first local jurisdiction in Kitsap County to update its Shoreline Master Program, as required by state law, and send it on to the Washington Department of Ecology for ratification.

The Poulsbo City Council approved the document Wednesday, as reported by Kitsap Sun reporter Amy Phan.

As required by formal state policies, the shorelines plan adopts numerous new regulations to accomplish these basic goals:

• Protect the quality of water and the natural environment to achieve “no net loss” of ecological function as time goes on,
• Encourage water-dependent uses along the shoreline while discouraging uses that are not connected to the water,
• Preserve and enhance public access and recreational uses along the shoreline.

Poulsbo shoreline designations (Click to download full size (PDF 976 kb).)

Keri Weaver, Poulsbo’s associate planner, does a good job outlining the content of the Poulsbo Shoreline Master Program in her staff report (PDF 224 kb) submitted to the City Council. The full SMP (PDF 552 kb) is more revealing and not difficult to read.

The document lists five “shoreline environments,” defined by ecological characteristics and current uses, each with its own development rules:

• Shoreline residential
• High intensity
• Urban conservancy
• Natural
• Aquatic

Check out the shoreline maps to locate each of the environments.

The always-controversial issue of buffers was settled during the previous update of Poulsbo’s Critical Areas Ordinance. The City Council saw no reason to revisit its justification for 100-foot buffers along the city’s saltwater shoreline on Liberty Bay and 150-foot buffers along Dogfish Creek, the largest stream draining into bay. In addition, 25-foot setbacks expand the no-building zone, but water-dependent uses and public access may be exempt from those setbacks.

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Kim Merriman, who lives on Eld Inlet near Olympia, knows spring is on its way when otters and eagles renew their ongoing game, which I call “Who Gets to Eat the Fish This Time?”

It’s a simple game, but it determines who gets to eat and who must keep looking for food. The otter begins by catching a flounder so big he must drag it up onto a float to eat it. An eagle watches from within the branches of a nearby tree, then swoops down on the otter. If the otter is quick, he can hold onto his fish while diving into the water. If he loses the fish, the eagle may grab it.

Kim tells me that the otters don’t show up much in winter, but over the past few weeks she has seen one or more nearly every day on the float that she put out for wildlife. They generally return twice each day about the same time, first in the morning then in the afternoon.

From her e-mail: “The eagles are clearly aware of this potential food source and stake out the area accordingly. They are also in the midst of nest building … so are a little more distracted during the day right now. Once that’s done, and they’re incubating an egg or eggs, they’ll be on the hunt for nearby food. I suspect I’ll see the eagle/otter exchange many more times. And, I can’t wait.”

In the photos on this page, the eagle did not get the fish. The otter held onto it, but apparently lost it while diving into the water to get away. Kim said she saw the otter frantically swimming away.

One of Kim’s best photo series was taken last spring, when the eagle won the match, and I featured it in Water Ways April 5, 2011.

But the story surrounding the photos on this page is not over, because Kim watched as the eagle flew south toward another float, about 300 feet away.
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It is interesting to contemplate how the new National Shellfish Initiative, announced in June, and the Washington Shellfish Initiative, announced last week, could change things in Puget Sound.

Newton Morgan of the Kitsap County Health District collects a dye packet from Lofall Creek in December of 2010. This kind of legwork may be the key to tracking down pollution in Puget Sound.
Kitsap Sun photo by Meegan Reid

As I described in a story I wrote for last Saturday’s Kitsap Sun, the principal goals are these:

• Rebuild native Olympia oyster and pinto abalone populations.
• Increase access to public tidelands for recreational shellfish harvesting.
• Research ways to increase commercial shellfish production without harming the environment.
• Improve permitting at county, state and federal levels.
• Evaluate how well filter-feeding clams and oysters can reduce nitrogen pollution, with possible incentives for private shellfish cultivation.

To read more about the initiatives, check out:

• Washington Shellfish Initiative,
  
• A White paper on the state’s initiative (PDF 176 kb),
  
• National Marine Aquaculture Initiative
  
• National Aquaculture Policy (PDF 64 kb)
  
• National Shellfish Initiative
  

One of the most encouraging things is an attempt to expand Kitsap County’s Pollution Identification and Correction (PIC) Program to other counties, with increased funding for cleaning up the waters. Check out the story I wrote for last Friday’s Kitsap Sun, in which I describe the search-and-destroy mission against bacterial pollution.

As most Water Ways readers know, I’ve been following the ongoing monitoring and cleanup effort by the Kitsap County Health District for years with the help of Keith Grellner, Stuart Whitford, Shawn Ultican and many others in the district’s water quality program. In fact, just two weeks ago, I discussed what could be a turnaround for a chronic pollution problem in Lofall Creek, a problem that has taken much perseverance to resolve. (See Kitsap Sun, Dec. 2.) Unfortunately, the story is far from over.

I’ve talked about the importance of old-fashioned legwork in tracking down pollution, and I’ve suggested that other local governments use some of their stormwater fees or implement such fees for monitoring of their local waters. See Water Ways, June 30, for example.

Water free of fecal pollution has benefits for humans and other aquatic creatures. Thankfully, Washington State Department of Health’s shellfish program is careful about checking areas for signs of sewage before certifying them as safe for shellfish harvesting. Maybe the new shellfish initiative will allow the state to open beds that have been closed for years. That’s what happened in Yukon Harbor, where more than 900 acres of shellfish beds were reopened in 2008. (See Kitsap Sun, Sept. 25, 2008).

Certifying areas as safe for shellfish harvesting means that waterfront property owners are safe to enjoy the bounty of their own beaches. It also offers an opportunity for commercial growers to make money and contribute to the state’s economy.

Of course, this does not mean that intensive shellfish-growing operations ought to be expanded to every clean corner of Puget Sound, any more than large-scale crop farming or timber harvesting should be allowed to take over the entire landscape.

Some environmentalists have expressed concern that the Washington Shellfish Initiative could become a boondoggle for commercial shellfish growers. Laura Hendricks of the Sierra Club’s Marine Ecosystem Campaign sent me an e-mail noting these concerns about the expansion of aquaculture:

“Washington State has more native species listed as endangered than any other state in the USA. We see no mention of the adverse impacts in this initiative on nearshore habitat, birds and juvenile salmon.

“Governor Gregoire and the various speakers failed to mention that ALL of the pending shoreline aquaculture applications they want to ‘streamline’ are for industrial geoduck aquaculture, not oysters. Red tape is not what is delaying these applications…

“Shellfish industry lobbyists who pushed for this expansion are silent on the following three serious threats to our fisheries resources, forage fish, birds and salmon:

“1. Shellfish consume fisheries resources (zooplankton — fish/crab eggs and larvae) according to peer reviewed studies. A DNR study documented that forage fish eggs did not just stay buried high on the beach, but were found in the nearshore water column. Continuing to allow expansion of unnatural high densities of filtering shellfish in the intertidal “nursery,” puts our fisheries resources at risk.

“2. The shellfish growers place tons of plastics into Puget Sound in order to expand aquaculture where it does not naturally grow…

3. Mussel rafts are documented to reduce dissolved oxygen essential for fish and are known in Totten Inlet to be covered in invasive tunicates with beggiatoa bacteria found underneath…”

Ashley Ahearn of KUOW interviewed Laura Hendricks, and you can hear her report on EarthFix.

In her e-mail, Laura recommended the video at right. She also pointed to a blog entry by Alf Hanna of Olympic Peninsula Environmental News. Hanna suggests that environmental advocates who go along with commercial aquaculture may become the oysters that get eaten in Lewis Carroll’s poem “The Walrus and the Carpenter.”

Have intensive shellfish farms in Puget Sound gone too far in their efforts to exploit the natural resources of our beaches? Can shellfish farmers make money without undue damage to the environment? Which practices are acceptable, which ones should be banned, and which areas are appropriate for different types of aquaculture?

It would have been nice if these answers were known long ago, and in some cases they are. But at least this new shellfish initiative recognizes that more research is needed to answer many remaining questions. Research is under way in Washington state on geoduck farming, which involves planting oyster seed in plastic tubes embedded into the beach. Review “Effects of Geoduck Aquaculture on the Environment: A Synthesis of Current Knowledge” (PDF 712 kb) or visit Washington Sea Grant.

Other research in our region is needed as well, although it is clear that environmental trade-offs will be part of the deal whenever commercial interests cross paths with natural systems. For a discussion about this issue, check out the executive summary of the NOAA-funded publication Shellfish Aquaculture and the Environment (PDF 4.2 mb), edited by Sandra E. Shumway.

Needless to say, we’ll be keeping an eye on this process for years to come.

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Shoreline buffers are us, no doubt about it.

As one case involving Kitsap County’s shorelines waits on appeal to the U.S. Supreme Court, a whole new issue has sprung out of a state law written to resolve confusion created during the earlier lawsuit.

Until Kitsap County adopts a new shorelines plan next year, conflicts between the Shorelines Management Act and the Growth Management Act could go on. After that, expect a new round of appeals.

The latest issue arises out of a little-known provision of a state law passed in 2010. The overall intent of the law was to allow a local Critical Areas Ordinance to provide shoreline protections until a new shorelines plan is drafted. For background, see Water Ways from Jan. 6 of this year.

There is an exception in the law, however, listed in Subsection 3(c) of RCW 36.70A.480, which allows for “redevelopment or modification” of a structure as long as it is consistent with the local shoreline master program and it is shown that “no net loss of ecological function” would result.

Sure enough, a Kitsap County property owner who wants to tear down a house and build a new one closer to the shore was able to make use of that special provision.

Kitsap County Hearing Examiner Kimberly Allen, who approved the redevelopment, said her ruling “rests on a complex and very fact-specific set of interactions” between three different laws. For details, check out my story published in today’s Kitsap Sun or read the hearing examiner’s decision (PDF 1.3 mb) for yourself.

The case on appeal to the U.S. Supreme Court, Kitsap Alliance of Property Owners v. Central Puget Sound Growth Management Hearings Board, raises questions about whether large, uniform buffers violate the “takings clause” of the Fifth Amendment. KAPO contends that Kitsap County requires property owners to dedicate “large tracts of private land to public use as environmental conservation buffers” without a clear showing that such buffers protect the environment.

The case has yet to be accepted by the Supreme Court, but one can get a good understanding of the arguments by reading the petition for writ of certiorari (PDF 152 kb), posted on the website of the Pacific Legal Foundation, which is representing KAPO.

Meanwhile, the task force working to update Kitsap’s shorelines plan has reconvened, taking up buffers and other controversial issues, after a hiatus through most of the summer and fall. For the latest on those deliberations, see stories I wrote for the Kitsap Sun Nov. 7 and 13:

Shoreline task force to tackle thorny issues

Shoreline buffers move to front burner

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UPDATE, Aug. 16, 2011
The Tahuyeh Lake Community Club appealed the Kitsap County Superior Court ruling yesterday, the same day that the judge issued her findings of fact and judgment in the matter.

Check out my story in tomorrow’s Kitsap Sun or review the judge’s findings document (PDF 968 kb).
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While I was away for a week, Kitsap County Superior Court Judge Jeanette Dalton handed down a most intricate ruling in the case called Tahuyeh Lake Community Club versus Washington Department of Fish and Wildlife.

This legal dispute has gone on for years and may not be over even now. But, through it all, I’ve learned a great deal about riparian rights to use shorelines and surface waters in Washington state.

The bottom line, if the ruling stands, is that WDFW will be allowed to build a public boat launch on Lake Tahuyeh. Officers of the community club pursued the case even after the agency withdrew its plans for a launching facility, which was given conditional approval.

Local fishing groups wish to have access to Lake Tahuyeh for recreation, while the community club maintains that the lake is private and under its exclusive control.

Judge Dalton understood the legal and societal implications of her decision:

“In bringing this lawsuit, the members of the community club seek to protect important rights to the quiet enjoyment of their private shoreside community. In defending this action, the state of Washington also seeks to defend values central to our society, those of public access to public lands.

“Fortunately, resolution of this action does not require this court to resolve the relative importance of the competing values represented by the two parties. Rather, centuries of lawmakers have weighed these values for us, and their legal mandates dictate the necessary outcome of this case.”

Judge Dalton’s ruling maneuvers logically through a maze of facts and legal benchmarks before reaching the conclusion that a single parcel of lakefront property provides legal access to the entire surface of the lake. Much of the decision hinges around the question of whether Lake Tahuyeh was actually a lake when the property was first conveyed by the federal government and later when the state acquired its small parcel of property — both long before a dam formed the lake as we know it today.

If Lake Tahuyeh was nothing more than a swamp or a man-made lake, then ownership and access would be defined by boundary lines drawn on a map and the related legal descriptions. If the lake were large and deep enough to be a “navigable” waterway, then the state would have claimed ownership to the entire lake bed.

But Dalton concluded — based on historical documents and testimony from folks who fished on the lake a half-century ago — that Lake Tahuyeh was, and is, a “nonnavigable lake.” As such, each property owner along the shoreline owns a pie-shaped piece of the lake bed to the center — unless that ownership is conveyed to someone else. In this case, the community club acquired ownership of most of the lake bed, but the state retained its ownership, Dalton concluded.

Whether the state has riparian rights to use the lake depends not only on whether Lake Tahuyeh was actually a lake, but also whether those rights were conveyed during successive ownerships of the property.

Jean Bulette, president of Tahuyeh Lake Community Club, has told me several times and argued in a Kitsap Sun op-ed piece in March 2010 that the lake bed and its riparian rights were granted to predecessors of the club and can never be taken away.

Judge Dalton agreed that the original owners obtained title to the lakebed when the federal patent conveyed ownership, but she also gave weight to the original federal survey of the site, which included a “meander line” to note the approximate edge of the water:

“There is some authority for the proposition that a lot is conclusively riparian if it bounders a ‘meander line,’ at least in the absence of evidence showing that the lot was meant to run only to the meander line and not to the actual edge of the watercourse.”

What is the evidence that the original owners meant to pass on riparian rights — lake access — to the state in 1939, when the state took ownership of the parcel?

“The court finds that the parties likely were contemplating public access to Lake Tahuyeh by the conveyance to the department. It was a historic aberration for a grant of land to be only 200 feet wide and run between a known access road and a lake, at least where other acquisitions of property during those early decades were much larger parcels of land. The mere dimensions of the department’s lot suggest — and probably require — the conclusion that the lot was intended for water access….

“Other factors lead the court to this conclusion, includ(ing) that the consideration for the transfer of the property was apparently not money, but rather the department’s agreement to allow the grantor to control the level of Tahuyeh Lake and to allow removal and harvest of the sphagnum moss.

“If the transfer was not intended to run into the lake at all, then raising or lowering the level of the lake would have had no consequences to the state. The fact that such an agreement was specifically negotiated as consideration for the deed indicates to this court that the grantor intended to convey, and did convey, the bed of the lake under the water as well as the upland parcel to the road.

“The court therefore determines that the lot conveyed to the department included riparian rights to Tahuyeh Lake, which the lot abutted.”

While a riparian owner has rights that extend to the entire surface of the lake, Judge Dalton pointed out that such rights must “not interfere unreasonably with the riparian rights of other owners.”

Dalton said she does not minimize the potential effects that her ruling could have on the “solitude currently enjoyed by members of the community club.” Still, the facts in this case do not address the extent to which public use might interfere with the recreational rights of community club members. That, Dalton said, could be the subject of future legal action.

Further information:

Judge Jeanette Dalton’s ruling

Steve Gardner’s Kitsap Sun story

Christopher Dunagan’s preview of Lake Tahuyeh case

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An eagle and an otter have been playing a long-running game on Eld Inlet near Olympia. I’m calling it, “Who Gets to Eat the Fish This Time?”

Waterfront resident Kim Merriman, who erected a float offshore of her home to help wildlife, has enjoyed a front-row seat for this game, which she has observed daily for the past three weeks.

It goes this way: An otter catches a flounder so big that he needs to drag it up onto the float to eat it. An eagle watches the otter eating the fish and waits for the right moment to swoop down on the otter with his dinner.

If the otter is smooth, he quickly grabs the fish in his mouth and dives into the water without losing it. When the eagle is gone, the otter drags the flounder back up onto the float and continues his meal.

If the otter is not at the top of his game, he may lose the fish on the way to the water, and the eagle wins the fish with little effort.

Kim has watched the game time and again. She does not know if it is the same eagle or the same otter each time, since she’s seen a dozen eagles in the area at one time. But the game remains unchanged. Alerted to the presence of the eagle by calls of crows or seagulls, Kim frequently grabs her camera and tries to capture a series of photos to show the game in action.

“I’ve watched this every single day for the past three weeks,” she told me, “and I’ve photographed it eight times. I don’t know how long it has been going on.”

In this round of the game, the eagle wins when the otter leaves the float without the fish he caught. / Photos by Kim Merriman

Kim says the eagle tucks himself back among the branches of a perch tree and tries to remain inconspicuous as the otter goes fishing. When swooping down, the eagle appears to be more successful if he flies along the surface of the water toward the otter, rather than coming down at a steep angle.

While Kim has not kept score, the otter frequently wins and is able to eat the entire flounder. But the eagle wins often enough to keep him interested.

“Eagles are very opportunistic,” Kim said. “There really is a big payoff for the eagle. The eagle would never be able to get a flounder on his own, unless the flounder got stuck in kelp or something.”

Flounder are bottom fish that live in the mud, often in deep water. Kim has observed the otter bringing up fish as large as 16 inches. A fish that big would make a good meal for both the eagle and the otter, if they would ever share.

Kim, a former portrait photographer, now works as a sculptor in a medium of glass fused with metal. See Kim Merriman Art. Working out of her home studio, she is often available to answer the calls from the crows and seagulls who alert her that the game is under way.

“I love it!” Kim said. “I’m very grateful to be able to do this.”

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A dramatic video that shows Japan’s March 12 tsunami from ground level has received a lot of attention on YouTube, probably because of its shock value. Our hearts go out to the Japanese people. Meanwhile, I believe this video can offer important insights for those of us who live or visit ocean communities on the West Coast, such as Ocean Shores.

How much time would we have to get to higher ground after an earthquake? The video shows the water level rising rapidly, as the photographer goes up a stairway to get to higher ground. At the end of the video, six minutes in, the serenity of the street has been turned into chaos.

While I worry about coastal communities, where a tsunami is a likely threat, I’m also concerned about waterfront residents and visitors along the Puget Sound shoreline. Although the chance of a tsunami in Puget Sound may be less than on the coast, one could be triggered by an earthquake on the numerous faults that run through the sound, including the Seattle, Tacoma and South Whidbey faults. Earthquakes also may cause massive landslides that can create big waves when hitting the water.

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It has been seven months since I launched an informal poll that asks whether people should be allowed to walk across privately owned tidelands as a basic right reserved to the public. The number of respondents has reached nearly 500, and I’d say it is time to retire the poll.

Last July, when I examined the legal implications of the Public Trust Doctrine for a story in the Kitsap Sun, the issue generated 91 lively comments on all sides of the issue. (See the bottom of the story.) Subsequently, I discussed the questions further in Water Ways on July 8, when I launched the poll.

As responses have grown, the percentage of people in each camp has remained nearly the same. In the final count, 62 percent of respondents (301 votes) said the public should be allowed to walk across private tidelands below the high-tide mark.

The remainder was split almost equally between those who believed the public has no right to walk across private tidelands (93 votes) and those who believe the courts should strike a balance, perhaps by allowing people to walk on a lower section of beach when the tide is out (92 votes).
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