Category Archives: Land use

U.S. Supreme Court justices raise questions about culvert damage

As state and tribal attorneys faced off yesterday in the 20-year battle over culverts, justices for the U.S. Supreme Court drilled both sides about numbers.

A coho salmon tries to leap into a culvert on Gorst Creek where water discharges from fish-rearing ponds. // Photo: Meegan M. Reid, Kitsap Sun

The culvert case is not about the 50-50 sharing of the annual salmon harvest. The courts ruled years ago that treaties with Puget Sound tribes guarantee Indians half the total salmon harvest, to be shared equally with non-Indians.

The culvert case is about the environment, specifically the idea that culverts are capable of blocking the passage of salmon, reducing the salmon population to a meaningless number and making the treaty right worthless.

From the transcript of today’s Supreme Court hearing, I’ve tried to pull out the most interesting and legally relevant questions.

Opening the hearing and speaking for the state, Assistant Attorney General Noah Purcell said the lower courts have essentially established a new treaty right with the ruling under appeal. If culverts must be replaced as a result of the treaty, then consider what could happen to dams and virtually any development that has ever had an impact on salmon runs, he said.

In legal briefs, state attorneys have argued that the treaties work both ways, that tribes gave up the right to manage the lands they ceded to the U.S.

Justice Samuel Alito noted that the treaty describes the right of Indians to take fish. “What do you think that means?” he asked Purcell.

Three rights come from that language, Purcell said. They are the right to fish in historical places, the right to a fair share of the available fish and a “right to be free of certain types of state actions that are not justified by substantial public interest.”

The tribes, he added, need to show that state culverts specifically are responsible for a “large decline” on a particular river. There are many other causes of salmon declines as well, and the state is trying to work on all of them, he said.

Alito said he doesn’t understand the meaning of “large decline” or even “substantial decline,” the term used by the federal government, which is a party to the case on behalf of the tribes.

“Well,” Percell said, “it has to be more than a fraction of 1 percent of historic harvests or 5 percent of recent harvest. We think, for example, certainly a decline of half the salmon would certainly easily qualify …”

Asked Justice Elena Kagan, “I mean, do you have a number in your head?”

Justice Neil Gorsuch wanted to know whether a 5-percent reduction in the salmon runs would be adequate to support the tribes’ position. “If they could show that 5 percent is attributable to the culverts, would that suffice to satisfy you?” he asked. “And, if not, I guess I’m where Justice Kagan is. What’s your number.”

Purcell said he thought that half would obviously quality but not 5 percent.

“Suppose,” said Alito, “that there were more than salmon than anybody knew what to do with, and then the state did something that caused a decline. Would that be a violation of the treaty?”

“I don’t think that would be a violation even under the respondents’ (tribes’) theory, Your Honor,” Purcell replied. “… and that recognizes the crucial other piece of language… The treaties ceded control of the off-reservation land to future government to regulate in the public interest. And so the government has to have the ability to make some types of decisions, even if they affect the treaty fishing right when there are substantial interests involved.”

Gorsuch said he is struggling with that concept, the idea that state government could pursue other public interests and balance them against treaty rights.

“The point of a treaty, I would have thought, would have been to freeze in time certain rights and to ensure their existence in perpetuity, regardless of what other social benefits a later municipality might be able to claim,” he said.

Purcell said the treaty must recognize interests other than the fishing rights of the tribes, and that includes actions to protect natural resources and public health.

“But where does this public interest theory come in in the treaty?” asked Kagan. “I thought this was an agreement. I give you my land. You give me the right to take fish. And — let’s make it narrower here — I have the right that you will not put up obstructions on these streams such that I can’t take fish.”

“Well, Your Honor,” said Purcell, “if the rule is narrowly limited like that, it’s much less problematic for the state, but the findings would not support that rule and it would outlaw every dam in the Northwest. So it’s inconsistent with the parties’ long-standing behavior.”

Alito asked federal prosecutors in the case whether federal dams also violate the treaties.

Assistant Solicitor General Allon Kedem of the U.S. Department of Justice said that issue was never part of the case and the legal issues have never been developed. Still, he added, many dams are built with fish ladders. In other cases, the U.S. government has compensated the tribes monetarily.

Justice Ruth Bader Ginsburg returned to the original language of the treaties, which “gives the tribes the right to take fish in common with all citizens.” One could simply interpret that to mean that nobody should discriminate against Indians, she said.

Kedem said the state had argued that point years ago, but the courts considered representations made by federal officials to the Indians when the treaties were signed. The conclusion, upheld by the Supreme Court, was that the tribes have access to fish in perpetuity.

Justice Kagan returned to the issue of numbers, asking Kedem if he has an idea how much habitat damage constitutes “substantial” degradation — the term used to define a treaty violation.

“So we don’t have a number,” Kedem said, adding that the lower courts used a habitat approach, the idea that loss of habitat would reduce the salmon population.

Later, Justice Alito turned to Attorney William Jay, representing the tribes.

“I hate to keep asking the same question,” he said, but does ‘substantial degradation’ mean a number or “significant degradation’ mean a number?”

“I don’t think it means a hard and fast number,” Jay said. “I think it is something that you would look at in context, in context of the particular species, in context of the strength of the species at a particular time.”

Without giving a number, Jay said, the court found that the state’s culverts are so numerous and reduce access to such a large spawning area that the impact on the fishery is significant.

“I just don’t see how that can mean anything other than a number,” Alito said, “and I still haven’t gotten an answer that seems to give any substance to this.”

Jay said the idea that the local, state or federal government could disregard the intent of the treaty while balancing their own perceived public interests is not consistent with promises made by the president of the United States and ratified by the Senate.

“If the promise made by the United States in exchange for millions of acres of the tribes’ land means anything … it protects against a threat to the fishery like these, a threat that obstructs fish from getting to the usual and accustomed fishing grounds where the tribes have a right to fish.”

For further reading:

Amusing Monday: Film students find creativity in Eco-Comedy videos

Amateur filmmakers have focused their talents on environmental issues to produce some of the most creative short videos in the eight-year history of the Eco-Comedy Video Competition.

That’s just my opinion, but I’ve been watching this competition for years, and I know it is not easy to combine humor with a sharp message about protecting the environment. Usually, one or two videos stand out in the contest sponsored by The Nature Conservancy in Maryland/DC and the Center for Environmental Filmmaking at American University in Washington, D.C. But this year seemed to be different.

Although the number of entries was down from last year — 30 compared to 48 — I found something unique in all the finalists as well as the honorable mentions. I was also pleased to see an elevation in the production quality, as well as improved acting over what I’ve seen in the past. I could envision some of these short pieces going forth as public service announcements on television.

A panel of five judges selected the best videos based on the level of humor as well as the ability to deliver a clear message about the environment to a broad audience in three minutes or less. The winners were announced last week as the DC Environmental Film Festival on the American University campus.

The Grand Prize winners, Theodore Blossom and Robbie I’Anson Price, will receive $2,000 from the Center for Environmental Filmmaking. Their video, titled “@Humanity,” is the first on this page. Theo, based in London, is a science communicator who presents and produces stage shows, films and comedy. Robbie, a doctoral student and filmmaker from Lausanne, Switzerland, studies communication and learning in honeybees with the goal of determining how communication can improve fitness.

The Viewers Choice Award went to a video titled “Journey to the Future” by Stephanie Brown & Tim Allen, shown second on this page.

Here are the YouTube links to all the videos recognized by the judges;

Grand Prize Winner: “@Humanity” by Theodore Blossom and Robbie Price

Viewer’s Choice Winner: “Journey to the Future” by Stephanie Brown & Tim Allen

Finalists:

Honorable Mentions:

Amusing Monday: World Water Day addresses natural purification

World Water Day, coming up this Thursday, is an annual worldwide event designed to focus attention on the importance of water to all living things.

Promoted by the United Nations, the 25-year-old World Water Day has always raised concerns about the 2.1 billion people in the world who don’t have easy access to clean water, creating a major health crisis in some communities.

This year’s theme is “nature for water” — although the discussion remains focused mainly on humans. Human actions have contributed to increasing flooding, drought and water pollution — and humans are able to use natural systems to help reduce the problems.

So-called “nature-based solutions” include protecting and improving water quality by restoring forests and wetlands, reconnecting rivers to their floodplains and creating vegetated buffers along lakes and streams, even in urban areas.

A fact sheet (PDF 2 mb) put out by UNESCO (U.N. Educational, Scientific and Cultural Organization) lays out the arguments on behalf of nature-based solutions. A larger 150-page report, titled “Nature Based Solutions for Water” (PDF 42.7 mb) can be downloaded from the UNESCO website.

A series of posters and cards related to this year’s theme can be downloaded from the World Water Day website. For the creative, I’m intrigued by the idea that you can create your own collage, using individual elements taken from the four posters. See “collage kit” on the same resources page.

Considering that this is the 25th World Water Day, I anticipated more events and celebrations. The one event listed for Washington state is a guided tour of Edmonds Marsh, one of the few urban saltwater estuaries still remaining in the Puget Sound region. Details of the walk are provided in a brief article in Edmonds News.

The first video on this page is a promotional piece by UNESCO.

Official poster of World Water Day
Source: UNESCO

I found the second video, filmed in Istanbul, Turkey, to be revealing about people’s attitudes about water. I imagine the reaction might be the same in some U.S. cities — although the specific location probably makes a lot of difference. The video, produced in 2015, was created for Standart Pompa, a manufacturer of water pumps.

The video shows a video screen next to a water faucet with a dying tree depicted on the screen. When passersby turned off the water faucet, the tree suddenly transformed into a healthy green condition. Although the weather was cold during the filming, nearly a third of the people going by took their hands out of their pockets and turned off the water, which was actually recirculating from the drain so that no water was wasted.

The third video is a cartoon designed to drive home a message about the importance of water, beginning with the simple act of brushing your teeth. It was produced by TVNXT KIDZ.

Federal waters rule gets batted around endlessly in the courtrooms

Confusion is nothing new when it comes to figuring out whether federal agencies have jurisdiction over certain wetlands and intermittent streams under the Clean Water Act. And now the Trump administration has guaranteed that confusion will reign a while longer.

Meanwhile, lawsuits — also nothing new to the Clean Water Act — continue to pile up at a rapid pace.

Some argue that the confusion begins with the 1972 Clean Water Act itself, which requires the U.S. Army Corps of Engineers to issue permits for any filling or dredging — which covers most development — within the “navigable waters” of the country.

Congress defined “navigable waters” in a way that has generated much confusion and many lawsuits through the years: “The term ‘navigable waters’ means the waters of the United States, including the territorial seas,” the law states.

Even the U.S. Supreme Court couldn’t figure it out and ended up adding to the confusion. In a 4-4-1 split ruling, half the justices focused on “navigable waters” with a narrow definition to include major waterways but avoid federal protection for many wetlands and intermittent streams. The other half of the justices supported a broader definition, which would protect downstream waters by also protecting upstream sources of water.

Writer Steve Zwick of Ecosystem Marketplace does a nice job explaining the legal and historical context for the confusion in a four-part series of articles. Zwick relies on, and gives credit to, the writings of William W. Sapp and William M. Lewis, Jr.

Under the previous administration of Barack Obama, the Army Corps of Engineers and the Environmental Protection Agency worked together to draft a new rule to more clearly define federal jurisdiction over streams and wetlands, as outlined by the broader Supreme Court opinion. It became known as the “Clean Water Rule” or “WOTUS” for Waters of the U.S.

Some potential opponents applauded the certainty of the proposed rule, even if they disagreed with some details. (See Water Ways, March 25, 2014.) But others believed that the states, not the federal government, should be in charge of protecting streams and wetlands. It became a common theme to argue that the new rule would regulate the tiniest ditches and farm ponds — something the Obama administration denied.

One of the opponents of the 2015 rule was Scott Pruitt, Oklahoma’s attorney general who ended up suing the Obama administration on behalf of his state. In all, 31 states joined various lawsuits against the rule, with separate lawsuits brought by farmers and industry.

Scott Pruitt, EPA administrator
Photo: EPA official portrait

“President Obama’s Environmental Protection Agency currently stands poised to strike the greatest blow to private property rights the modern era has seen,” Pruitt declared in an opinion piece co-authored by U.S. Sen. Rand Paul, a Republican from Kentucky. The piece was published in The Hill.

Pruitt, of course, is the man that President Trump later named to head the EPA, the same agency he was suing in multiple lawsuits. Pruitt said early on that he would not allow Obama’s WOTUS rule to go into effect.

Before it took effect, the WOTUS rule was tied up in the courts, including an injunction issued by the Sixth U.S. Circuit Court of Appeals in Cincinnati. Under the Clean Water Act, appeals courts can take primary action under certain conditions, but the U.S. Supreme Court agreed unanimously (PDF 923 kb) on Jan. 22 that the WOTUS rule is not one of these conditions.

And so the rule, originally scheduled to go into effect in August 2015, was put back into a confusing status, ready to go into effect in 37 states where it was not blocked by an injunction that covers 13 states under an order of the U.S. District Court in North Dakota.

“This is just all-out war. All-out litigation,” Vermont Law School professor Pat Parenteau was quoted as saying in an article by Ariel Wittenberg in E&E News. “This is good news for lawyers, but it is not going to be settled at all.”

Pruitt’s EPA then moved to finalize the Obama WOTUS rule on Jan. 31 but with an “applicability date” set for two years away. The announced intent was to overhaul the rule by pulling back federal jurisdiction over streams and wetlands.

“Today, EPA is taking action to reduce confusion and provide certainty to America’s farmers and ranchers,” Pruitt said in a news release. “The 2015 WOTUS rule developed by the Obama administration will not be applicable for the next two years, while we work through the process of providing long-term regulatory certainty across all 50 states about what waters are subject to federal regulation.”

In the interim, the EPA has announced that it will revert to previous policies and guidelines drafted following the confusing Supreme Court ruling.

You can guess what happened next. On Feb. 6, a total of 10 states, including Washington, plus Washington, D.C., filed a lawsuit in New York, claiming that Pruitt’s delaying tactics were illegal. The state officials, led by New York Attorney General Eric Schneiderman, argued that the federal government ignored the federal Administrative Procedures Act by adopting the revised rule without a meaningful comment period and in disregard of the Clean Water Act’s underlying intent of protecting the nation’s waters.

“The agencies have now suspended the Clean Water Rule without consideration of the extensive scientific record that supported it or the environmental and public health consequences of doing so,” the lawsuit (PDF 1.9 mb) says.

On the same day, the implementation delay was challenged in a separate lawsuit (2.6 mb) by two environmental groups, Natural Resources Defense Council and National Wildlife Federation.

“The Agencies’ only proffered rationale for the suspension is that it will promote regulatory clarity and certainty,” the lawsuit says. “In light of the administration’s open antipathy for the rule’s provisions, that rationale rings hollow. But it is also belied by the record. There is no evidence that suspending the rule will promote clarity or certainty, and ample evidence that suspending the Rule will create confusion and uncertainty.”

In Ariel Wittenberg’s story in E&E, Georgetown Law professor William Buzbee talks about how messy things have become.

“If the administration had taken the time to put out proposals that truly and fully engaged with the merits of the Clean Waters Rule and tried to come up with a new read, then it would be ordinary days in the courts,” he was quoted as saying. “But anything they do now, given their proposals, is likely to be legally vulnerable.”

Now the possibility exists that some courts could delay implementation of the original WOTUS rule while others reject the two-year delay. In any case, there is no end in sight to the legal battles, and nobody can be certain about what kind of projects will require federal permits.

Kitsap streams getting generally cleaner, but storms have an effect

Kitsap County’s streams are getting generally cleaner when it comes to bacterial levels, according to an annual water-quality report issued by the Kitsap Public Health District. But streams can have good years and bad years — and 2017 was not so good.

Let’s compare the annual report for 2016 to the newly released report for 2017, both found on the health district’s website. Reporter Tad Sooter offered a nice overview of the new report in a Kitsap Sun story on Friday.

Graph: Kitsap Public Health District

Before getting to the findings, it’s important to understand that there are two bacterial water-quality standards that must be met for a stream to get a clean bill of health. The first part calls for an average of no more than 100 bacteria per 100 milliliters of water (or no more than 50 bacteria if the water body has been designated “extraordinary”). The second part states that, regardless of the average, no more than 10 percent of the samples taken can exceed 200 bacteria per 100 milliliters of water (or 100 bacteria for “extraordinary” water).

It came as a surprise to me that in water year 2017 a total of 23 streams — or 35 percent of the 66 streams sampled — failed both water-quality standards. That’s worse than in water year 2016, when 25 percent of the 64 streams on the list failed both standards. (A water year goes from Oct. 1 to Sept. 30 of the next year.)

One reason that water quality got worse in 2017 was that rainy weather at times was more conducive to washing bacteria into the streams, according to Shawn Ultican, a water-quality expert with the health district.

“Bacterial levels were higher in general than we have seen them in the past few years,” Shawn said of the 2017 data. “We had more intense rainfall at times. We don’t think that suddenly more pollution sources have become a problem.”

Similar patterns also were seen in 2009 and 2010, he said.

More streams were deemed clean in 2016 than 2017. In 2017, 21 streams — 32 percent — met both of the water-quality standards, compared to 30 streams — 47 percent — the year before.

For discussion, I took a look at reports in 2008, when 38 percent met both standards, and 2013, when 29 percent met both standards. So it really does vary from year to year. And whether a stream is considered clean or polluted depends on recent rainfall and other fleeting factors. Consequently, much depends on when a water sample is taken, which is why health officials choose their sampling dates randomly.

Because weather plays an important factor in the bacterial counts, health officials tend to focus on long-term trends rather than on the results of individual water samples. Trends result from a statistical exercise using data collected each month over many years. For most streams, sampling has been going on for 22 years.

If the bacterial counts stay relatively the same over many years, the health of the stream is listed as “stationary.” If the numbers show a statistical trend, a stream will be listed as “worsening” or “improving.”

In 2017, five streams were listed as worsening: Coulter Creek in South Kitsap; Lofall and Kinman creeks in North Kitsap; and Stavis Creek and the Tahuya River, which drain into Hood Canal. You might consider Stavis Creek and Tahuya River to be statistical anomalies, because they are so clean that it takes only a few additional bacteria to result in an unwelcome trend.

Stavis Creek met both part 1 and 2 of the water quality standards in 2017, while the Tahuya River failed part 2 because of a few high counts. In 2016, both streams met both water-quality standards, so health officials aren’t worried about either stream at this point.

In 2016, 21 streams were listed as improving, compared to 18 streams in 2017. Olalla, Wilson, Barker and Chico creeks are among those that went from improving to stationary. Barker and Chico creeks are pretty clean, meeting both parts of the water-quality standards.

Tad’s story in the Kitsap Sun includes an interactive map that provides the status of each stream in Kitsap County monitored by the health district.

Lofall Creek, which includes drainage from the community of Lofall as well as upstream areas, has been giving health officials fits for years. Bacterial counts are high and getting worse, despite successful efforts to eliminate sources of pollution, such as failing septic systems and pet wastes.

Special tests are planned to see whether pollution in the stream is coming from pets, birds or ruminants, such as cows and deer, according to Ian Rork, an environmental health specialist with the health district who is assigned the cleanup of Lofall Creek and nearby Kinman Creek.

Health officials have long suspected that raccoons may be a source of the pollution, but they have no strong evidence. Raccoons are known to deposit their wastes in communal areas. As new development takes over uplands, these small animals may be pushed into remaining vegetated areas along the streams.

Last year, Ian began a new effort to work closely with residents of the community to see if they could take steps to discourage raccoons and other wildlife from congregating near Lofall. Steps people can take include making sure animals don’t have access to garbage, keeping barbecue grills clean and avoiding the intentional feeding of raccoons.

“The local residents have been so gracious and good to work with,” Ian told me, adding that most people are committed to solving the problem if only there were a clear answer.

For the 2017 report, Lofall Creek remains the most polluted stream in the county, followed by Ostrich Bay Creek in Bremerton; Olalla Creek and Burley Creek, both in South Kitsap; and Kinman Creek and Vinland Creek, both in North Kitsap.

The cleanest streams are Dewatto Creek, followed by Anderson Creek, Stavis Creek, Seabeck Creek, Salmonberry Creek, Big Beef Creek and Wright Creek. All drain into Hood Canal, except Anderson and Wright creeks, which drain into Sinclair Inlet, and South Kitsap’s Salmonberry Creek.

Climate change is expected to bring more intensive rainstorms, but how that will affect long-term trends in water quality is yet to be seen.

Pesticides and salmon: Can we see a light at the end of the tunnel?

Once again, the National Marine Fisheries Service has determined in official findings that three common pesticides — chlorpyrifos, diazinon and malathion — raise the risk of extinction for threatened and endangered salmon.

A crop duster sprays pesticide on a field near an irrigation ditch.
Photo: NOAA/USFWS

By extension, for the first time, the agency also concluded that those same pesticides threaten Puget Sound’s endangered orca population by putting their prey — chinook and other salmon — at risk.

This politically and legally charged issue — which has been around for more than 15 years — has gone beyond a debate over potential harm from pesticides. It also raises uncomfortable questions about whether our society will follow science as we try to solve environmental problems.

The immediate finding of “jeopardy” — meaning that the three pesticides pose a risk of extinction — comes in a biological opinion (PDF 415.6 mb) that is more than 3,700 pages long and covers not just salmon but, for the first time, dozens of other marine species on the Endangered Species List.

The report follows a scientific methodology for assessing the effects of pesticides that arises from suggestions by the National Academy of Sciences. The NAS report (PDF 14.2 mb) attempted to reconcile differing methods of assessing risk that had been used by the Environmental Protection Agency, the U.S. Fish and Wildlife Service and NMFS.

EPA’s original assessment raised no concerns about the effect of these pesticides on the survival of salmon populations. The original lawsuit by environmental groups forced the EPA to “consult” with NMFS, as required by the Endangered Species Act. The result was the first jeopardy finding in 2008. For background, see Water Ways, Aug. 11, 2008, in which I reported that the long wait for regulatory action on pesticides may be about over. Little did I know.

The biological opinion, or BiOp for short, examines both the direct harms to species exposed to pesticides — such as effects on behavior, reproduction and immune function — as well as indirect effects — such as whether the pesticides wipe out insects needed for the fish to eat.

The new BiOp is considered a pilot study for future pesticide assessments.

“Notably,” states the document, “this Opinion represents the first consultation using newly developed approaches and the first to assess all listed species throughout the U.S., its territories, and protectorates. Future Opinions regarding pesticides may utilize different analyses and approaches as the interagency consultation effort proceeds.”

The next step is for the EPA to restrict the use of the pesticides to reduce the risks for salmon and other species. Among suggested measures, the BiOp says those who use pesticides must limit the total amount of chemicals applied in high-risk areas, such as streams. No-spray buffers or similar alternatives are suggested.

Interim no-spray buffers, established by the courts, will remain in effect until the EPA takes action. The interim buffers were put on, taken off, and are back on as a result of the lengthy court battle between the agencies and environmental groups. Pesticide manufacturers have weighed in, arguing about the need for pesticides without undue restrictions.

The Trump administration asked the court for a two-year delay in the release of the BiOp, but NMFS ultimately met the deadline when the judge failed to rule on the request in time to make a difference.

I discussed some of the ongoing intrigue and a bit of history in a Water Ways post last August, after EPA Administrator Scott Pruitt reversed course on an impending ban on chlorpyrifos. The proposed ban, approved during the Obama administration, came in response to studies that showed how the chemical could adversely affect children’s brains.

Although it took legal action to get to this point, agency and independent scientists have worked together to study the problem and come up with solutions. The question now is whether policymakers and politicians will take reasonable steps to reduce the risks based upon these findings, which are complex, evolving and rarely definitive for all time.

As I was going back through the blog posts I’ve written about pesticides, I recalled that President George W. Bush wanted to limit scientific consultations in an effort to streamline the regulatory process — much as President Trump’s people are doing today. Check out Water Ways from March 4, 2009, which shows a video of President Obama reversing the Bush policy and speaking out for increased input from scientists.

When it comes to human health and the environment, it is good to remember that without the work of scientists, many species throughout the world would have been wiped out long ago. Human cancer, disease and brain impairment would be far worse today without regulations based on scientific findings. Science can tell us about the risk of pesticides and other threats to salmon and orcas. But knowledge is not enough. People must take reasonable actions to protect themselves and the environment. And so the story goes on.

Last week, Earthjustice, which represents environmental groups in the legal battle, released the biological opinion, which had been sent by NOAA as part of the legal case. The group posted links to the document and related information in a news release. As far as I know, nobody in the Trump administration has spoken about the findings.

Stormwater report urges cities and counties to get up to speed on rules

In Kitsap County, stormwater has been a major issue — and the subject of ongoing newspaper stories — for a very long time.

As a local reporter working for the Kitsap Sun, I followed the prolonged struggle among engineers, developers, planners and environmentalists to approve new rules for reducing toxic runoff washing into Puget Sound. After the legal battles were over, local governments were called on to update their stormwater codes, and many key provisions went into effect last year.

Click for a PDF (1.7 mb) version of “Nature’s Scorecard.”

It was with some surprise that I read a new report called “Nature’s Scorecard,” which reveals that more than half of the 81 cities and counties around Puget Sound have failed to follow through in a meaningful way to encourage low-impact development, which is required by state rules. Low-impact development, or LID, involves techniques that filter rainwater into the ground as close to the source as possible.

According to the report, 15 percent of the local governments failed to update their codes, and an additional 38 percent made only minor changes. Out of 81 local governments, 20 were forced to file a “notice of noncompliance” admitting they had not met the new standards.

The scorecard is a joint effort by two environmental groups involved in water quality, Washington Environmental Council and Puget Soundkeeper Alliance. It was nice to know that the authors of the report contacted local officials in advance where deficiencies were noted. Some officials offered explanations, and others moved quickly to fix the deficiencies, according to Mindy Roberts of WEC.

Mindy told me that she hopes the scorecard and discussions with local officials will result in LID improvements without going to court.

The scorecard also calls out municipalities that have done exceptionally well on the LID front. Named as “green star leaders” for going beyond the minimal standards are Kitsap County and the cities of Lacey, Oak Harbor, Olympia, Port Orchard, Renton, Seattle and Tacoma. See the news release on WEC’s website.

The softer approach also paid off in Fife, where stormwater officials apparently were not aware of the state requirement to make LID the primary method of stormwater management, Mindy said. After city officials were contacted, they jumped into action and now have a code that will reduce stormwater pollution.

Stormwater officials in Mountlake Terrace were on schedule to meet the state mandate, Mindy said. But the City Council, under pressure from developers, failed to pass the code language when it was presented to them. Now city officials are again working to come into compliance, she noted.

The website for “Nature’s Scorecard” includes information about the impacts of stormwater, the need for LID regulations and the status of various cities and counties. Scores in the report come from compliance with five key LID strategies: reducing impervious surfaces, protecting native vegetation and soils, supporting pervious pavement, planting native vegetation, and protecting natural buffers along streams, wetlands and shorelines.

Puget Sound residents are encouraged to review the report’s findings and support their elected officials in the implementation of LID to protect Puget Sound. Contact information for city and county stormwater officials is provided for each listed municipality.

One of the reasons that Kitsap County is a leader in stormwater management is the support from residents of unincorporated areas. Each property owner pays an annual fee to monitor water quality, assess pollution problems, develop appropriate solutions and construct regional stormwater systems in already-developed areas. Anyone can review the current five-year stormwater capital plan (PDF 1 mb).

The Kitsap County commissioners recently approved new stormwater fees for the coming years. It was interesting to hear the testimony of supporters at the meeting. Check out the video (above), beginning at 25:09 minutes. A fact sheet on the fees (PDF 1.6 mb) can be found on the county’s website.

Like Kitsap County, the city of Auburn has fully embraced stormwater management to address flooding and reduce pollution. Information, including an in-depth comprehensive storm drainage plan, can be found on the city’s Storm Drainage website.

At the national level, Kitsap County and Auburn received awards last year from the Water Environment Federation Stormwater Institute, which promotes innovative stormwater solutions. They were among six award winners nationwide for both large and small municipalities that go beyond regulations. Auburn was recognized for its stormwater innovation, while Kitsap was recognized for its management. See the news release from WEF.

Other related information:

  • “What makes stormwater toxic?”: The dangers of road runoff and possible solutions are examined in an in-depth story by reporter Eric Wagner. The piece was published Dec. 4 in the Encyclopedia of Puget Sound.
  • U.S. Government Accountability Office (PDF 4.7 mb): In a survey of 31 municipalities, the GAO found that green infrastructure — another term for LID — was more challenging than traditional pipes and ponds. GAO learned that collaboration among nearby governments is important and should be supported through documented agreements.
  • Kitsap County’s news release on Nature’s Scorecard: “A low-impact development approach allows us to work with the rain, rather than against it,” said Kitsap County Commissioner Charlotte Garrido. “This approach protects, restores, conserves, and reclaims our water — and this scorecard helps us know exactly where we stand in our region.”
  • “Are you planning for LID?”: Association of Washington Cities provides information resources and videos.
  • Building Industry Association of Washington: BIAW offers information on specific LID techniques, manuals and guidelines, technical articles and reports, and links to government requirements.

Waterfront property owners face options in response to sea-level rise

Rising sea levels and isolated floods will be an increasing challenge for waterfront property owners, according to experts I interviewed for a story published this week in the Encyclopedia of Puget Sound.

The Vechey home and bulkhead before the big move. // Photo: John Vechey

Changing conditions call for property owners to consider their options with regard to their shoreline — not just for today but for the long run. What I learned while researching this story is that every waterfront site will respond differently as the highest tides go higher and higher.

Before I started my inquiry, I thought the obvious answer would be for people to build taller and stronger bulkheads — despite well-known environmental damage. And that may be the only answer for some. But for others, that approach could be a waste of money, as bigger walls degrade the owners’ enjoyment of the beach as well disrupting natural systems. Alternatives include moving or raising a house or even replacing a bulkhead with “soft shore” protections.

After the home was moved back from shore and the bulkhead removed. // Photo: John Vechey

Sea levels in Puget Sound are rising slowly at this time, with the actual rate dependent on location. We live in a tectonically active area, with major movements along continental plates. As a result, the ground is sinking in most areas around Puget Sound, adding to the relative rise in sea level.

In Seattle, the sea level has risen about 9 inches since 1900 and is expected to rise an additional 4 to 56 inches (4.75 feet) by 2100. The uncertainty reflected in that range relates to whether greenhouse gases continue to increase, thus accelerating the rate of melting of land-based ice in the polar regions.

Some changes can be expected regardless of the human response over the next 80 years. For example, one analysis looking at Whidbey Island suggests that there is a 99 percent chance that by 2040 — just 13 23 years from now — sea level will be at least 2.4 inches higher than today with a 50 percent chance that it will be 7.2 inches higher. After 2040, the tides will keep rising even faster. Take a look at the related story “Average high tides are creeping higher in Puget Sound.”

John Vechey of Orcas Island, who I featured in my story, took sea level into account when deciding whether to remove his bulkhead while seeking to improve the beach for family activities and for the environment. His solution was to move his house and give the beach more room to function naturally.

Moving a house will not be the answer for everyone, but I can safely say that everyone should consider their long-term picture before making any investments that will last a lifetime — and that includes changes to the shoreline.

I believe it is generally possible, certainly with professional help, to calculate elevations for the house and any low spots on the property, add one to four feet above the current high-tide mark, and then consider tidal surge, which is the wave height caused by weather conditions. In some counties, professional help is available if you are considering whether to remove a bulkhead. Check out the “Shore Friendly” website and “Resources in Your Area.”

At this time, future sea levels do not enter into regulatory considerations about where a person can build a house. One problem is the uncertainty surrounding the amount that sea levels will actually rise. But some environmental advocates say it is time to require additional setbacks, not only to protect the environment as tides push back the natural beach but also to protect homeowners from future losses.

For some people, sea-level rise is a distant worry, but for others the threat is just around the corner. I was reading this morning about how high tides are already affecting Naval Station Norfolk. Check out “Rising Seas Are Flooding Virginia’s Naval Base, and There’s No Plan to Fix It” by Nicholas Kusnetz of Inside Climate News.

A new Government Accountability Office report, released yesterday, cites estimates of future property damage totaling between $4 billion and $6 billion per year in the U.S. as a result of sea-level rise and more frequent and intense storms. The report outlines the need for a coordinated federal response.

Sen. Maria Cantwell discusses the new GAO report and calls for better planning in the video below.

Amusing Monday: celebrating the nation’s wild and scenic rivers

The value and enjoyment of rivers throughout the United States will be highlighted over the next year, as the Wild and Scenic Rivers Act approaches its 50th anniversary on Oct. 2, 2018.

Some 12,700 miles of rushing waters are protected on 208 rivers designated in 40 states plus the Commonwealth of Puerto Rico. A Wild and Scenic River designation is the strongest protection for rivers in our country, safeguarding clean water, recreation, fish and wildlife, and cultural heritage, according to American Rivers, an environmental group focused on river protection. Check out the webpage “Why do we need wild rivers?”

“Free-flowing rivers create natural riparian areas that foster healthy, abundant, and diverse wildlife and are the centerpieces of rich ecological processes,” according to a news release from the National Parks Service. “Recreationally, free-flowing rivers offer unparalleled inspirational experiences from challenging whitewater to placid fishing. Through the arterial connections of rivers to communities, we all live downstream of a Wild and Scenic River.”

The first video on this page, called “Make Your Splash,” celebrates a family enjoying water recreation. It was produced by the Park Service in conjunction with three other federal agencies and several nonprofit organizations.

To call attention to the importance of wild rivers, American Rivers has launched a program called “5,000 Miles of Wild” with the goal of putting an additional 5,000 miles of wild rivers into protected status.

As part of the effort, the organization is working to collect 5,000 stories from people around the country who have a place in their hearts for special rivers, as explained in “About the campaign.” The second video, “5,000 miles of wild,” promotes the campaign.

I think you will enjoy the personal stories about rivers and the photos submitted to the page “My River Story.”

I would like to see more submissions from people in Washington state, because we have some of the most beautiful and productive rivers in the U.S., and I know there are many personal connections to these special places. Among the Washington folks submitting stories is Paul Cain of Bow, who applauds the efforts of state fish and wildlife officers in an encounter along Samish River in North Puget Sound. Also, Peggy File talks about growing up on the Skagit River, one of the rivers designated wild and scenic.

Former President Jimmy Carter offers a testimonial about taking his own life into his hands on the Chattooga River, which flows from North Carolina into Georgia. The powerful river, he said, “kind of opened my eyes to a relationship between a human being and a wild river that I had never contemplated before.”

As president, Carter said he vetoed about 16 different dam projects throughout the country, because he believed they were counterproductive to the well-being of Americans.

American Rivers has compiled a list of rivers that warrant protection on its page “What is the 5,000 Miles of Wild campaign?” In Washington, protections are proposed for 688 miles of rivers in the North Cascades, including the Nooksack River, and 454 miles of rivers in the Olympic Mountains (Wild Olympics Campaign).

Fiftieth anniversary water bottle, Cafe Press

For existing wild and scenic rivers, take a look at the U.S. map or the map of Washington state. Other information is compiled on a government website called “National Wild and Scenic Rivers System.” The website also has a page with information about the 50th anniversary celebration. One can even purchase a variety of clothing and products showing off the 50th anniversary logo from Cafe Press.

An audio project by American Rivers was composed by intern Annemarie Lewis, who worked this past summer in the Colorado River Basin. She talks about culture, history and science of rivers, as related by a variety of people closely connected to this issue. The project is called “We are rivers: Conversations about the rivers that connect us.”

Speaking of American Rivers projects, I got a kick out of a video completed in 2015 called “50 Favorite Things We Love about Rivers.” See Water Ways, Feb. 23, 2015.

Puget Sound Partnership may confront net pen controversy

Puget Sound Partnership may take a stand on whether fish farms should be allowed to remain in Puget Sound waters.

The partnership is charged by the Legislature to oversee the restoration of the Puget Sound ecosystem. On Wednesday, the partnership’s governing body, the Puget Sound Leadership Council, received an update on last month’s collapse of a net pen containing 305,000 Atlantic salmon near Cypress Island in northern Puget Sound.

About two-thirds of the escaped fish have been accounted for so far, with about 146,000 found dead or alive in the damaged net pen and about 55,000 caught by fishermen. (All but about 5,000 of those were caught by tribal fishers in Puget Sound.)

This video, taken by a private party and released by state agencies, shows the collapse of the Cypress Island net pens on Aug. 19

About 100,000 Atlantic salmon apparently escaped and have not been caught by people, although most of those probably were eaten by predators, experts say. Officials continue their efforts to figure out where any remaining fish have gone, specifically any that swam up into the streams, according to Amy Windrope of the Washington Department of Fish and Wildlife.

The Atlantic salmon, an exotic species in Puget Sound, don’t appear to be eating anything, let alone young native salmon, Windrope said, and there is not much concern that they will breed with native fish. The greatest concern is that they might somehow disrupt the spawning behavior of native salmon, whose populations are already stressed by adverse conditions in both marine and fresh water.

The Atlantic salmon appeared to be healthy and free of parasites at the time of the release, she said, but they became less and less healthy as starvation set in.

In addition to Windrope, the presentation to the Leadership Council included reports from representatives of the state Department of Natural Resources, which leases the seabed where the pens are located, and the Department of Ecology, which issues permits under water-quality laws.

Puget Sound tribes are about to release a position statement opposing salmon farms in Puget Sound, said Russell Hepfer, a member of the Leadership Council and vice chairman of the Lower Elwha Klallam Tribal Council. He did not elaborate, except to say that the non-native fish don’t belong here.

According to Windrope, the tribes see Atlantic salmon as weeds in the garden of Puget Sound. Such cultural viewpoints should be taken into account in the overall discussion, she added.

Soon after the Cypress Island net pen collapse, Washington Gov. Jay Inslee and Public Lands Commissioner Hilary Franz issued a moratorium blocking further net pen approvals until an investigation is complete.

Maradel Gale, a resident of Bainbridge Island, addressed the Leadership Council at Wednesday’s meeting near Port Gamble, saying the Bainbridge Island City Council has effectively limited the expansion of net pens at the south end of the island and would like to get rid of net pens altogether.

She said Cooke Aquaculture, which owns all the net pens at four locations in Puget Sound, receives the benefits of using the public waterways and placing the ecosystem in peril while taking very little risk upon itself.

Dennis McLerran, a member of the Leadership Council who has worked for various environmental agencies, said Washington state law has long provided a preference for aquaculture over many other shoreline uses. Like it or not, he said, those preference are “baked into state policies” that direct state agencies to support aquaculture, including salmon farms.

“That is where the Leadership Council should have some discussion,” McLerran said. “Are those preferences in state law appropriate?”

The state of Alaska prohibits salmon farms, while California’s complex regulations allow them only under specific conditions related to water supplies, said Kessina Lee of Ecology.

Jay Manning, chairman of the Leadership Council and former director of the Washington Department of Ecology, said the Legislature will no doubt want to hear a complete report on the Cypress Island net-pen collapse, and he urged the agency officials to be fully prepared to answer questions from lawmakers.

“You will be asked, when the Legislature comes back, ‘How big a deal is this?’” Manning said, noting that he has heard from some people that it is a very big deal, while others say it is nothing at all.

Windrope noted that native salmon populations are already struggling, “and this is one more injury to the salmon.” But since the escaped Atlantic salmon don’t appear to be competing for food, the question comes down to whether they are affecting native fish in other ways. That question is not fully answered, she said.

“For DNR, this is a very big concern,” said Dennis Clark, who helps manage aquatic leases for the agency. “We have a contract with a multinational company, and they failed to adhere to it.”

DNR serves as the landlord for the Puget Sound net pen operations, he said. The aquatic leases run out at various times, from 2022 to 2025, and the agency is taking a closer look at the net pen structures to see what should be done from both a scientific and landlord perspective. Commissioner Franz is taking a special interest, he added.

“We are trying very hard to learn from this (incident),” Clark said, “and we understand that we may need to devote more resources.”

Rich Doenges of Ecology said the Atlantic salmon that got away are considered a “pollutant” under Washington state law. While no long-term effects have been seen following previous escapes of Atlantic salmon, there is some risk to native salmon. The key is to quantify that risk and determine if it is low enough to make the operations worthwhile. If necessary, he said, compliance orders can be issued and state water-quality permits can be amended to require additional safety measures.

Seattle attorney Doug Steding, representing Cooke Aquaculture, said he wanted to convey “sorrow and regret” from the company over the potential impacts of the escape.

“We want to make right with respect to this terrible accident,” he said, adding that the company is committed to working with investigators into the cause of the escape and finding ways to make sure that it never happens again.

Steding noted that Cooke recently acquired the Puget Sound facilities and did not own the Cypress Island net pens when the fish were placed in them. The company should have shared more information with the public about plans to upgrade the facilities, he said.

“You have an important task sorting through the difficult science and integrating with the values of the people of Washington,” Steding told the Leadership Council, adding that Cooke hopes to remain a part of the discussion.