Watching Our Water Ways

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.

(more…)

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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).
(more…)

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The conflict between the Growth Management Act and the Shoreline Management Act may be over, as a result of a Washington State Court of Appeals case handed down this week for Kitsap County. (See my story in today’s Kitsap Sun.)

The confusion has affected many cities and counties that believed they were better protecting their shorelines from degradation when they updated their critical areas ordinances, as required by the Growth Management Act. It turns out that the GMA may have improperly stepped into the 200-foot shoreline zone where the Shoreline Management Act presides.

The conflict grew out of a divided Washington State Supreme Court decision for the city of Anacortes, which concluded that only the Shorelines Management Act could govern shorelines. By the time the case was resolved in 2009, many cities and counties had already updated their local critical areas ordinances with stricter shoreline regulations.

Washington Department of Ecology advised local governments to continue using their CAO rules for shorelines, because the divided decision was not binding on other jurisdictions. That advice caused a stir of its own. (See Water Ways, Nov. 3, 2009.) Kitsap County got caught in the crossfire in a lawsuit with the Kitsap Alliance of Property Owners, as the Court of Appeals used the same reasoning in saying that Kitsap’s CAO should not apply to shorelines.

Last year, the Legislature moved to clarify the matter by saying cities and counties may use their CAOs until they complete updates to their Shoreline Master Programs, an effort in which many are engaged now. The law was made retroactive to validate numerous CAOs that were in limbo.

Kitsap Alliance of Property Owners argued that it was unconstitutional for the Legislature to pass a law retroactively to get around a court ruling. However, in the latest case, the Court of Appeals sided with the county, saying the Supreme Court had never ruled authoritatively on the matter because of the split nature of the original decision. That made it legal for the Legislature to clarify the intent of the law.

With the appeals court upholding the Critical Areas Ordinance, the appeals court judges then moved into the meat of the Kitsap County case, which involved the use of “best available science” and several constitutional claims. The court found in favor of the county on all major arguments. One can find the discussion in the second part of the Court of Appeals ruling (PDF 148 kb).

KAPO officials are reviewing the case with lawyers for the Pacific Legal Foundation before deciding whether to appeal the matter to the State Supreme Court.

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I guess we can finally put to rest the question of how thousands of oysters got washed up high on the beaches of Hood Canal on Aug. 11, causing many to die in the summer sun.

Darrell Hogue of Seabeck wades into Hood Canal at Scenic Beach State Park to rescue oysters lodged high on the beach, where an estimated 178,000 were stranded.
Kitsap Sun photo by Larry Steagall

Without explicitly blaming the USS Port Royal for the problem, Navy officials said they would take steps to make sure that it doesn’t happen again. Check out my story from Wednesday’s Kitsap Sun.

A lot of Hood Canal residents believed the Port Royal was to blame, because they saw this massive 567-foot guided-missile cruiser operating at high speeds off their shores. They naturally connected the ship to the big waves hitting their beaches at the same time. I tended to believe the local people, but I wasn’t sure how anyone could actually prove that the Navy was to blame.

Perhaps the best evidence came in a video I first revealed to you in Watching Our Water Ways on Aug. 27, thanks to the taping by Gary Jackson in Dabob Bay.

After this, I tried to get some simple questions answered by the Navy, but I was frustrated by the fact that three different Navy groups were playing a role. Each one kept referring me to another, and it appeared that nobody really wanted to talk about it.

For example, the ship itself belonged to the Third Fleet, so my questions were directed to a spokesman in San Diego. Because damage claims were involved, I was directed to a spokesman for the Admiralty and Maritime Law Division of the Judge Advocate General. And because the Dabob testing range on Hood Canal is operated by the Naval Undersea Warfare Center – Keyport, I was directed to a spokesman for Navy Region Northwest.

After getting the runaround again and again, I asked in late September if they could talk to each other and tell me where I should address my questions. They did that and told me that I would have my questions answered by Third Fleet, where the ship is based. I went so far as to put my questions in writing so there would be no confusion. Two weeks later, my questions still were not answered, so I sent out another e-mail.

This is where I need to give credit to Sean Hughes and the other public affairs officers for Navy Region Northwest. They have always been helpful to me, and I think that leaving these questions unresolved were beginning to trouble them as well. Sean told me that he was able to take over the questions from Third Fleet and quickly get answers from local folks running the Dabob range.

I’m guessing that the issue of financial liability for loss of the oysters was creating a reluctance by Navy officials to discuss the situation. I can understand that. At the same time, I’m glad that Sean Hughes and other officials at Navy Region Northwest appreciate the need to be responsive to the local community where they operate.

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UPDATE, Oct. 20, 2010

The Kitsap Sun’s “North Mason Life” reporter, Rodika Tollefson, put her own spin on the Klingel Wetlands story. She was able to interview Gary Parrot, who returned from an out-of-town trip, and was able to talk about the history of the wetlands.
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Last week, I had a rare opportunity to take a mental trip back in time. It happened twice, as I stood in two different Hood Canal wetlands and recalled the past while pondering the future.

The first place was the Klingel Wetlands outside Belfair on the North Shore Road. See Kitsap Sun, Oct. 7.

Sandra Staples-Bortner, executive director of the Great Peninsula Conservancy, considers changes coming to the Klingel Wetlands as she stands on an old farm dike destined for removal.
Kitsap Sun photo by Larry Steagall

This place is special to me because I spent time here in June of 1990, preparing to write the introduction for a yearlong newspaper series that would become the book “Hood Canal Splendor at Risk.” Here are the opening lines of the book, which described the Klingel wetlands at that time:

“A great blue heron, its broad wings spread to the wind, dips out of an overcast sky and glides into the marsh. Extending its legs, the large bird lands gracefully among tall reeds near the water. The tweet-tweet-tweetering of songbirds creates an agreeable chorus, though each bird sings its own distinct song.

“Untold numbers of wild birds share this place on Hood Canal, just outside of Belfair on the North Shore. River otter slink along the shore at sunset. Mink, beaver and muskrat mind their own ways, thanks to what remains of this ancient swamp. Human visitors may find themselves refreshed by the wildness here, as in other natural environs. Some people describe a warm feeling of enthrallment, a kind of mild hypnotic state.”

Gary and Celia Parrot, who have kept watch over the property all these years, appreciated the need to connect people to nature. They helped me express a concept that I’m afraid is largely lost on our urban-based society.

As Celia explained to me, the human heart yearns for a more primitive experience, away from the cluttered pattern of modern life:

“The reason I go out two or three times a day is not just to walk the dogs,” she said. “It’s like a refueling. I go out to get another dose of that intimate feeling.”

(more…)

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Five years ago, a lot of people were wondering why fish were dying more often in southern Hood Canal during the fall.

Researchers knew that Hood Canal was sensitive to nitrogen. In other words, when nitrogen was introduced to the canal during summer months, nearly all of it was taken up by plankton, which grew into large blooms. When the plankton died, they sank to the bottom, where bacterial decay sucked up the available oxygen.

Beyond that, the questions were numerous: What were the most critical sources of nitrogen affecting the low-oxygen problem? What role does weather and water circulation play? And what can humans do to help the problem — or at least keep it from getting worse.

After a five-year, $4-million study, these questions can be answered with some certainty, as I point out in a story in Sunday’s Kitsap Sun. Now it is time for researchers to convey this information to political leaders and the public, as the Hood Canal Coordinating Council prepares a plan of action.

Scott Brewer, executive director of the HCCC, told me that the eventual plan is likely to include a suite of actions to address nitrogen inputs to the canal, particularly from human sources.
(more…)

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