Watching Our Water Ways

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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I guess we’re lucky in Kitsap County to have local health authorities who not only gather water-quality data but also know what to do with the information. I’m told that’s not the case for many counties in Washington state or across the nation.

The reason I bring this up is because of a story I wrote for today’s Kitsap Sun. Some of the water-quality report cards being issued by environmental groups are nothing more than a rewrite of raw data from water-quality samples collected by local officials. This could be valuable information in places where no other information is offered. But water-quality specialists at the Kitsap County Health District stand ready to interpret the data and take more samples, if necessary, so we know when we really should worry.

One bad sample does not mean we should run away from the water, but it does serve to raise some questions. Asking questions is the role I play when I see these reports. Fortunately, we have experts in Kitsap County who know our streams and beaches and who are willing and able to answer my questions.

It would be interesting to know how many counties in the state conduct routine monitoring of streams, lakes and marine waters; how many do follow-up tests when they find a problem; how many assess the findings to measure trends; and how many use the data to begin corrective actions. If anyone knows of information compiled on monitoring programs for all counties or cities, please let me know. If not, maybe this would be a project someone could take on.

Kitsap County’s monitoring program is funded by a stormwater fee collected with our property taxes. The residential fee is $70 per year. Commercial businesses may pay more, depending on their size.

Many cities and counties collect stormwater fees, but few use the money for monitoring. Even fewer compile long-term trends with a comprehensive ongoing monitoring program. Such programs deserve consideration.

In addition to paying for water-quality testing, Kitsap County’s stormwater fee is used to investigate sources of pollution; retrofit older communities with stormwater systems; clean out storm drains on county property; inspect all storm drains except for state highways; teach people about clean water; coordinate volunteers in programs including Beach Watchers and Stream Stewards; provide signs and supplies for the Mutt Mit dog-waste cleanup program; fund grants for a backyard rain garden program; and plan for and monitor results of stream-restoration and stormwater-retrofit projects.

I’m not saying that programs such as Heal the Bay and Testing the Waters (by Natural Resources Defense Council) don’t have value. In some cases, this is all that communities have, and they provide a good reason to ask questions about water quality.

But, as Keith Grellner of the Kitsap County Health District told me, these reports may be like crying wolf for some individuals. If people keep hearing warnings when the problems are minimal or nonexistent, will they pay attention in the face of serious water-quality concerns?

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It won’t be long before local governments will be called on to do their part to restore Puget Sound.

That’s one conclusion I drew yesterday from a conversation between representatives of the Puget Sound Partnership and the Kitsap County commissioners.

Martha Kongsgaard, chairwoman of the PSP’s Leadership Council, and PSP Executive Director Gerry O’Keefe have been visiting local governments throughout Puget Sound to learn what they are doing now and to gauge their capacity and willingness to do more to improve the natural environment.

It has long been recognized that the effort to protect and restore Puget Sound requires the support of the people who live here. And local officials tend to be much closer to those living in their community. As a result, they can often bridge the gap between decision-makers at the top levels and the people who need to make changes in their daily lives.

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A little more than a year ago, Kitsap County Commissioner Steve Bauer and Jon Rose of Olympic Property Group unveiled a plan to preserve 7,000 acres of forestland in North Kitsap. A tradeoff being considered was a possible new community in Port Gamble to absorb the deferred development.

Pope Resources timberlands (shown in dark green) make up a significant portion of North Kitsap. (Click to enlarge)
Map courtesy of Olympic Property Group

Lowland forests, like those in North Kitsap, are relatively scarce in the Puget Sound region, experts tell me. Preserving such lands are considered important for protecting fish and wildlife habitat, water quality and aquifer recharge areas. Furthermore, the North Kitsap Trails Association has already begun to plan for low-key trails throughout the area.

While retaining the goal of protecting forests, Bauer announced yesterday that they would not pursue a new community created under a special provision of the state’s Growth Management Act called “fully contained communities.” The switch was described in today’s story in the Kitsap Sun.

FCCs have fallen out of favor since the first ones were developed in King County. Many planners concluded that these early projects were little more than sprawling development well outside of urban areas. The Puget Sound Regional Council even developed a policy that discouraged local governments from proposing FCCs.

Kitsap Couny planners argued that they would be able to avoid the previous problems with FCCs by requiring jobs and urban amenities to be integrated into the plans.

Still, some people were never convinced. Members of the Port Gamble S’Klallam Tribe and environmental groups were worried that such a community would destroy the environment around Port Gamble.

Now, Bauer hopes everyone can get on board with a plan to acquire as much forestland as possible, using grants, donations and other funding sources. It’s not clear whether all 7,000 acres would qualify for outright purchase under the best conditions, but Cascade Land Conservancy has signed on to match wetlands, shorelines, critical habitats and recreation areas with associated grants from government and private foundations.

Some growth is still planned at Port Gamble, which is designated a “national historic town.” As such, it will be allowed to increase in population to its greatest historical levels, with or without protections for the forestland.

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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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Who would have guessed that, throughout the history of our state, a Kitsap County resident has never served as a State Supreme Court justice?

Charlie Wiggins of Bainbridge Island, Washington's next Supreme Court justice
Kitsap Sun photo by Larry Steagall

That’s been true until now, that is, since Bainbridge Island attorney Charlie Wiggins is about to replace Justice Richard Sanders on the state’s high court.

That’s just one tidbit in a fascinating story written about Wiggins by reporter Tristan Baurick in Monday’s Kitsap Sun. In his blog, Bainbridge Conversation, Tristan also revealed how a Kitsap resident years ago became a Supreme Court justice — but only after moving to Tacoma, so he didn’t count.

It’s too early to know how Wiggins’ presence will change the Supreme Court, but most observers expect him to take positions to the left of Sanders, who is generally viewed as either a Libertarian or a staunch conservative.

Tristan quoted Court of Appeals judges who have worked with Wiggins. They said he is well respected in legal circles but remains largely unknown to the public.

Retired judge Elaine Houghton: “He writes eloquent and clearly — something we judges aspire to. His work is well-regarded because he finds the essence of the law and espouses it very easily.”

University of Washington law professor Bill Anderson: “You can’t peg him as an activist or nonactivist judge, or as a liberal or conservative. I don’t think he’ll blaze any trails in any direction. I think he’ll just be a professional judge. Consistent, honorable, objective.”

One thing I found interesting was Wiggins’ predictions about issues that could come before the court in the future. His lists water because of its limited supplies.

“With climate change,” Wiggins told our reporter, “water is just going to be an incredibly precious resource.”

In trying to judge how Wiggins might shift the court, I read several of his articles written for legal publications. For a lawyer, his writing can be engaging, especially when dealing with historical issues. Check out “The Battle for the Tidelands in the Constitutional Convention,” which he wrote for the Washington State Bar Association.

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When I first reported that Silverdale Water District was preparing to install a system of purple pipe for water reuse, it seemed the district was far ahead of everyone else in Kitsap County. Recall my story in the Kitsap Sun March 31, 2008, and the Water Ways entry that followed on April 2.

A new headworks at the Central Kitsap Wastewater Treatment Plant is part of major sewer upgrade designed to reuse the efflent.

Kitsap County commissioners started talking to Silverdale Water District commissioners a couple months later. See Kitsap Sun from June 2, 2008, and Water Ways from June 3.

Now the county commissioners are about to approve a six-year plan to design and install equipment capable of producing 3.5 million gallons of highly treated effluent every day, as I reported in Sunday’s Sun. That’s a lot of water, enough to irrigate ballfields throughout Silverdale with water to spare.

Now the ball is in the court of Silverdale Water District. District manager Morgan Johnson told me today that if the district can be assured of getting treated effluent from the Central Kitsap Wastewater Treatment Plant, it will move forward on building a backbone of purple pipe right into the heart of Silverdale.

If the county commissioners on Monday approve the six-year sewer plan and move ahead with a $41 million bond issue, it will be time for county officials to begin negotiations with those from Silverdale Water District. Tying up all loose ends about how much water will be provided as well as who will pay for what will be necessary to create one of the largest water-reuse systems in the Puget Sound region.

Morgan Johnson told me that he was surprised at how quickly the county commissioners embraced the notion of reusing treated wastewater, starting with that meeting more than two years ago.

“I was surprised that they’re taking this approach as aggressively as they are,” Morgan said. “We just need to know what the county’s schedule is.”

The county commissioners keep saying they are quite serious about their year-old “Water as a Resource” policy. Every county department must report annually about how they are advancing the effort to save and reuse as much water as possible. In a sidebar to my main story Sunday, commissioners Steve Bauer and Charlotte Garrido talked about how this policy can protect the water resource while saving the county money.

Stella Vakarcs of the Kitsap County Wastewater Utility said she would like to hold a “water summit” that would bring water and wastewater officials together to discuss the future of the effluent.

In addition to the CK plant, county officials are considering uses for treated effluent from the county’s plant in Kingston.

Meanwhile, officials with West Sound Utility District, which already produces high-quality effluent near Port Orchard, are getting ready to use that water for irrigation.

It will take about a year to design the upgrades at the CK plant. Construction is planned to begin in the summer of 2012, and the system should be completed about 2016.

If things go well, the purple pipes could be in the ground by then and ready to be charged with reused water.

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Take me out to the salmon stream,
Take me away from the crowd.
Buy me nothing, not even a snack;
I don’t care if I never get back.

Forgive me for twisting around baseball’s sacred song, but it just popped into my head as I prepared to write about salmon. Specifically, I was thinking about how much I enjoy taking my kids — and now my grandkids — out to watch salmon spawning in our local streams.

Of course, fishing with a fly or even bait brings a different level of excitement. But there’s something special about standing quietly at the edge of a stream to avoid spooking the migrating salmon. If you are able to get the kids to calm down, you might even see a female chum salmon scooping out a depression in the gravel while one or more males circle around and try to get close.

Year after year, I write a story about the annual chum migration, encouraging people to go out to their local streams to watch the magnificent fish unique to our part of the world. This year’s story was published in Sunday’s Kitsap Sun.

In Kitsap County, Chico Creek is always a pretty good bet to see fish. This year, Kitsap County officials opened access to a new fish-viewing park just south of Golf Club Road. A couple of new trails provide both a high- and low-viewpoint to the creek.

If you wait until late in the year, you may still see chum salmon in Gorst Creek at Otto Jarstad Park just outside of Belfair. I like to remind people that if visitors come into town at Christmas, it’s a good time to expose them to the wild side of Washington state.

The interactive salmon map on the Kitsap Sun’s website also includes a few streams in Mason County, but I’d like to compile a list of good salmon-viewing streams throughout Puget Sound.

For one, there’s Kennedy Creek Salmon Trail south of Shelton, which will open to the public on Saturday, Nov. 6. The trail will be open from 10 a.m. to 4 p.m. on weekends in November, as well as Veterans Day and the day after Thanksgiving. Trained docents will be on hand to answer questions. Check out the website by the South Puget Sound Salmon Enhancement Group.

In Thurston County, there’s McLane Creek Nature Trail.

For King County streams, check out locations listed on the county’s Spawning Salmon Viewing website.

Likewise for Pierce County salmon viewing (PDF 1.0 mb).

If you know of other good salmon-viewing streams in the region or would like to talk about your favorite spot, feel free to add comments in the section below.

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I’ve written lots of stories about replacing culverts to improve salmon passage, but a $600,000 grant to the Suquamish Tribe will be used to remove a culvert and fully open up the estuary at the mouth of Chico Creek.

This culvert on Chico Creek is scheduled for removal. Here, Suquamish Fisheries Manager Jay Zischke and the tribe's environmental biologist Tom Ostrom survey the scene.
Photo courtesy of Northwest Indian Fisheries Commission

The Chico Creek grant was among some $30 million in grants announced Tuesday by the Environmental Protection Agency as part of the Puget Sound Estuary Program. I wrote about the grants and quoted involved officials in a story published in yesterday’s Kitsap Sun. I’ll cover the other Puget Sound projects here after talking about the one on Chico Creek.

Most roads that follow a shoreline in the Puget Sound region go somewhere important, but Kittyhawk Drive is a dead-end. After crossing Chico Creek, the road serves only three homes, if I recall correctly.

After the stream flows through a culvert under Highway 3, it passes beneath Kittyhawk Drive with enough force to blow out some of the large rocks planted there to help salmon make it upstream. Removing the culvert will improve the estuary and help with the fish-passage problem at that location, but the project needs to address a change in elevation to get up to the freeway culvert.

The freeway culvert is another obstacle of concern. Local officials are working with the Washington Department of Transportation to find a way to replace that freeway culvert with a bridge. Needless to say, the cost will be enormous.

Another Chico Creek culvert destined for replacement is the one under Golf Club Road, just upstream from Kitsap Golf and Country Club. That culvert replacement is part of an extensive restoration of the stream channel where if flows through the golf course.

Yes, all this sounds like a lot of expense for one salmon stream, but biologists will tell you that Chico Creek supports the largest chum salmon run on the Kitsap Peninsula and provides a decent run of coho and potentially other species. Once the migrating adult salmon make it through the culverts near the mouth of the stream, they have good spawning habitat upstream in the Chico Creek watershed. Tributaries include Kitsap Creek, which flows out of Kitsap Lake; Wildcat Creek, which flows out of Wildcat Lake; and Dickerson Creek, which originates within a vast undeveloped forestland.

Exactly when we’ll see the culvert under Kittyhawk Drive removed remains uncertain. First, a new driveway must be built for residents on the far side of the culvert. I’m told there is still some design work to be done before contracts can go out to bid, and construction must be scheduled around the salmon migrations.

Other projects approved for funding:
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Kitsap Alliance of Property Owners has fired a warning shot across the bow of the 20-member task force working to update the Kitsap County Shoreline Master Program.

The group this week focused their efforts on reviewing the Kitsap County Shoreline Inventory and Characterization, a document that describes physical and biological conditions of the shoreline, along with existing land uses and man-made structures.

As I report in a story in today’s Kitsap Sun, Karl Duff, the immediate past president of KAPO, essentially warned the task force that they run the risk of becoming a pawn of the county and that KAPO will sue if the process continues on its present course.

I haven’t yet spoken to any of the task force members about this, but some of their reactions during the meeting showed that they have no intention of being intimidated by KAPO.
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