Watching Our Water Ways

Jay Manning, who resigned in June as Gov. Chris Gregoire’s chief of staff, says he is ready to charge back into work as a private lawyer, after spending the summer hiking and mountain biking throughout the Northwest.

Jay Manning

Manning, 53, a native of Manchester in Kitsap County, returned today to his old law firm, an environmental practice that now bears the name Cascadia Law Group. One thing to know about Jay is that environmental issues have always been a central part of his life.

Jay took some time to talk with me today about his reasons for leaving state government and his hopes for the future.

“I had sort of run out of gas,” he confessed. “Although others disagreed, I thought I was not performing as well as I should be, such as my ability to solve problems.”

He said he was beginning to worry about his financial condition, with a son in college and retirement staring him in the face. It was a factor he mentioned in a going-away e-mail to his staff. “There was nothing dire there,” he told me, “but it was a concern.”

Although it may be a cliché, it seems to me that Jay was also thinking a great deal about his family life. His wife, a teacher, had been doing double-duty: keeping the home fires burning while going to work every day. During Jay’s time in state government, his family time was more limited.

“It was time to put myself back as an active member of the family, and it has been so much fun to do that,” he said. “Since July 15, I have really played outside and hung out with family and friends. I have my energy level back.”

As he traveled about the Northwest, Jay said he has come to appreciate the splendor of this region even more. He now lives in Olympia.

Meanwhile, Manning has considered various jobs, including prospects at environmental law firms. He settled on Cascadia Law Group, which he believes takes a rare approach to environmental disputes.

“Unlike most firms, this one does not let themselves get pigeonholed. In one case, they may be representing regulated business. In another case, it can be an Indian tribe, and in another case an environmental group. I like that they represent different viewpoints.”

Manning’s career path has helped him become a skillful negotiator with an ability to see various sides of a problem. Most issues are not black-and-white, he said. People on all sides have viewpoints that deserve respect.

After graduating from the University of Oregon Law School in 1983, Manning joined the Washington State Attorney General’s Office, where he and seven other lawyers represented the Department of Ecology.

When Chris Gregoire became Ecology director in 1987, Manning became chief negotiator during three years of tough talks with the federal government over Hanford cleanup. For a time, he went into private law practice and served on the board of the Washington Environmental Council.

When Gregoire became governor, she quickly named Manning to head up the Department of Ecology, where he served for more than four years before she asked him to become her chief of staff in October 2009.

Manning was grateful. “But for me, it sucked the energy out, in a way the Ecology job didn’t,” he said. “I knew the chief of staff job was hard, but until you’re sitting in that chair, you don’t know how you’ll react to it.”

Manning says his days as a trial lawyer are probably over. He anticipates working on management and public-policy issues, such as controversies over water resources in Eastern Washington. He said he would not be surprised to find himself lobbying for legislation at some point.

He also discusses how he might help environmental groups, either professionally or as a volunteer.

“I’m excited to work on energy efficiency, restoration of Puget Sound and some really exciting water projects on the east side of the state,” he said.

As Ecology chief, Manning headed up the state’s Climate Action Team, and I was surprised that he didn’t mention that specifically as a concern.

“I am concerned,” he told me, “but I don’t talk about it as a climate issue. It’s about making your home and business more efficient. You make a more comfortable place to live and your heating bill goes down. We talk energy efficiency, and climate is smack dab in the middle of it.”

The need to reduce greenhouse gases is clear, he said, but the term “climate change” divides people in ways that “energy efficiency” does not.

I asked him if “energy efficiency” conveys the appropriate sense of urgency about a problem that has our government tied in knots.

“That’s a good point,” he said. “My background would tend to push me toward a strong regulatory response. But I don’t think that is doable now.”

Does he think he’ll ever venture back into politics?

“I would never say ‘never,’ but I am really going to focus on being successful with this firm Cascadia. I saw up close what it takes to be governor. It is hard, and sometimes it is completely unreasonable. There is a big personal sacrifice to be made. Right now my focus is on this new job.”

Cascadia Law Group’s website describes the practice this way:

“Our clients come to us because we solve problems. We set out first to understand each client’s objectives. We then apply our knowledge of the law, persuasive skills, political acumen, and creative thinking to attain those goals. We have successfully helped our clients resolve many of our region’s most difficult environmental issues.”

I’ve talked before about how Jay’s growing up in Kitsap County shaped his concerns for the environment. Check out previous comments on Waterways from Oct. 5, 2009, and Feb. 17, 2008. I wrote a profile about Manning for the Kitsap Sun in February 2008.

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A third-generation study of toxic pollution in Puget Sound claims to be the best estimate so far of total amounts of toxics entering Puget Sound each year.

New report on toxics in Puget Sound (PDF 7.3 mb). Click to download.
Washington Department of Ecology

As Craig Welch of the Seattle Times points out in a story today, it’s a big exaggeration to think that Puget Sound is suffering through enough drips and drabs of oil — largely from vehicles — to equal an Exxon Valdez spill every two years.

Craig is right to point out how previous studies overestimated the amount of several toxics. After all, politicians having been tossing around the dramatic Exxon Valdez analogy when it serves their purposes. Still, the total amount of oil or any other pollutant in Puget Sound is not really a good measure of the problems we face.

If you want to understand pollution in a waterway, it’s better to measure the concentration of the pollutant, see where that level falls on a toxicity scale, then consider how fish and other organisms are exposed to the pollution.

The new study for the Department of Ecology, titled “Toxics in Surface Runoff to Puget Sound,” analyzed 21 chemicals or groups of chemicals in 16 streams in the Puyallup and Snohomish river watersheds. The watersheds contain all different land types — commercial-industrial, residential, agricultural, forest, fields and other undeveloped lands. The idea is that researchers could extrapolate from these land types to represent all of Puget Sound. But such an extrapolation still requires a number of assumptions, which can throw off the estimates by wide margins.

At least we can say the latest study involved actual water-quality sampling. Previous estimates — including those that produced the Exxon Valdez analogy — were based on measurements of stormwater in other parts of the country.

(more…)

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Here are a couple of public-service-type videos that have been suggested to me for Amusing Monday.

I’m actually off duty today, as my schedule shifts around at the Kitsap Sun during the month of September, when I’ll be taking my turn working the weekends. While the change in schedule could reduce my attention to Water Ways, I’m hoping it won’t make much difference.

As for these videos, the first is a pitch for low-impact cleaning products to reduce toxic chemicals going into our state’s waterways. This Department of Ecology video is produced in the style of a TV commercial for products used in the home.

The second video, from Monterey Bay Aquarium, is an off-beat cartoon that raises the question of adaptation among species in the face of climate change. The message is that sealife can adapt if given enough time. But the current rate of change demands that people take action.
(more…)

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Jay Manning, director of the Washington Department of Ecology, was in Bremerton today to get the lowdown about low-impact stormwater management from folks at the Home Builders Association of Kitsap County.

Art Castle of the association is leading a local group of officials in the development of a “cook book” of low-impact practices designed to dovetail with state rules for managing stormwater.

Art Castle, left, pours water on pervious asphalt while Jay Manning watches. The water does not run off or pool up; it just runs through. Kitsap Sun photo

The parking lot at the office of the Home Builders Association happens to be built with pervious asphalt and various kind of pervious pavers. Manning watched as Castle poured water from a hose onto the pervious asphalt. No runoff or pooling was evident, as the water penetrated straight into the pavement.

Castle was glad to have some time to talk with Manning, a native of South Kitsap, because the Home Builders group has run into some regulatory obstacles with respect to the upcoming “cookbook.”

For example, engineers are debating how fast water can pass through pavement within a given design and whether that rate of penetration will hold up over time. Pervious pavement depends on creating “pores” during construction and keeping those pores open as time goes on. Sometimes the owner must use a pressure washer to reopen the pores.

In this example, the debate is about finding an acceptable rate of water penetration for a given design. If the assumed rate is too low, a developer will be required to build a backup stormwater system, such as a pond. That raises the cost of development and discourages the use of low-impact methods.

If the assumed rate of penetration is higher than what actually occurs in a heavy storm, then the water runs off the pavement with no place to go. That leads to flooding of streets and other problems.

Those are the kinds of issues that Castle wanted to address with Manning.

Manning told me that this meeting comes at an opportune time, because his agency must decide how to respond to a recent ruling by the Pollution Control Hearings Board that mandates the use of low-impact development wherever “feasible.” See Kitsap Sun story of Aug. 8.

Manning asked Castle to describe when low-impact development would not be feasible. Castle said he knows of three conditions that would preclude the use of LID: on sites with steep, unstable slopes; in places where you find especially dense clays that cannot pass water; and in areas with high groundwater levels that prevent water from soaking in.

Manning said he faces a decision about whether to appeal the hearing board’s decision to court or else live with it.

“If we live with this decision,” he said to me, “then what’s that going to mean for the Phase 1 permit (larger cities and counties) and the Phase 2 permit (smaller cities and counties)?”

Basically, state requirements would have to be rewritten.

The specific ruling (PDF 212 kb) by the Pollution Control Hearings Board was for Phase 1 jurisdictions, but it signals the board’s position for the Phase 2 hearing, scheduled for October, Manning said. If Ecology does not appeal the ruling to the courts, agency lawyers could try to settle some key issues before the October hearing, he said.

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When it comes to protecting the environment, I think we’ll be hearing a lot more about enforcement in the coming weeks.

I’ve attended several meetings of the Puget Sound Partnership where people have said that we don’t need new rules; we need existing rules to be enforced.

You don’t have to look very hard to see the problem. At the county level, planners and hearing examiners impose rules that sound like they would protect the environment — including up to 100-foot stream and shoreline buffers in some cases. But once a person completes a project, there is no guarantee that he won’t fill in the wetland or cut down the trees in a buffer area.

Unless someone complains, there is no way to know whether the buffers survive over time. Without enforcement against those who violate the rules, the system becomes abusive against those property owners who act in good faith. That seems pretty obvious, right?

Kitsap County Commissioner Steve Bauer, a member of the Ecosystem Coordination Board for the Partnership, seems to understand the frustration of people who see violations but can’t get quick action. In many cases, the penalties are so low that some people violate the rules under the assumption that fines are just the cost for doing what they want.

In a Monday briefing I covered for today’s Kitsap Sun, Bauer expressed support for a more efficient system, including a process that would bring violations to a hearing examiner instead of district court.

I expect that this issue will be part of this year’s county budget discussions. While the budget is growing ever tighter, I’m sure the commissioners understand that you can’t really address this code enforcement problem without additional staff.

The same thing goes for state agencies — whether we’re talking about the Department of Fish and Wildlife, which our protects our wild creatures; the Department of Natural Resources, which addresses logging practices; or the Department of Ecology, which protects our land and waters from pollution. By the way Lisa Stiffler did a nice job examining Ecology’s enforcement problems in yesterday’s Seattle PI.

Back to the local level, health departments must deal with sewage, stormwater, garbage and hazardous waste problems.

Bill Ruckleshaus of the Puget Sound Partnership often talks about how his organization will not create new regulations. The Partnership simply intends to shine a light on the best actions taking place among governments, businesses and volunteer groups.

To the Partnership’s credit, enforcement has already been part of the general discussion. I found the following in the discussion paper about habitat and land use, which covers rules for protecting critical areas:

Most jurisdictions report a lack of funding to accomplish those tasks and further lack the staff to monitor whether the protections remain after a period of years (beyond the period where they hold bonds or other security for a project). Finally, many jurisdictions also report a lack of adequate funding for general code enforcement efforts (where activities take place outside of the permitting process).

The next step is to address the money issues, both inside and outside of state and local agencies. Until someone faces the financial hurdles, it’s just talk.

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