Category Archives: Land use

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.

No end in sight for dispute over pesticide injury to salmon

It has been 15 years since a federal judge ruled that the Environmental Protection Agency and National Marine Fisheries Service must consider whether pesticides increase the risk of extinction for Northwest salmon populations.

Chlorpyrifos

Since 2002, NMFS (also called NOAA Fisheries) has determined that some pesticides do indeed pose a significant risk to the ongoing existence of salmon listed under the Endangered Species Act. Yet, after all these years, permanent protective measures have not been imposed by the EPA, which is responsible for regulating pesticide use.

One could argue that progress has been made in the face of litigation from environmental groups. The EPA has acknowledged its responsibility under the Endangered Species Act, and the agency has adopted a new and evolving methodology for measuring the risk to listed species.

After its initial assessments were thrown out by the courts, NMFS has agreed to complete new biological opinions for five pesticides that pose some of the highest risks. Studies for chlorpyrifos, malathion and diazinon are scheduled to be done by the end of this year, followed by carbaryl and methomyl by the end of next year.

What we don’t know is whether President Trump’s anti-regulatory efforts and pledge to dismantle the EPA will slow or stop the process of protecting salmon. When it comes to pesticides, environmental activists will tell you that the Trump administration has already taken steps to undermine not only salmon but also human health.

For example, the insecticide chlorpyrifos was scheduled to be banned by the EPA after a new analysis found that its ongoing use on food crops could pose unsafe risks for people, especially young children whose brain development could be impaired.

In March, just before the ban was to go into effect, Trump’s new EPA administrator, Scott Pruitt, reversed EPA’s course, saying the U.S. Department of Agriculture disagrees with the methodology used by the EPA in developing the ban.

Environmental groups, which had already obtained a court order to force the EPA to reconsider its approval of the pesticide, were outraged. They filed yet another lawsuit, as described in a news release from Earthjustice.

“EPA’s stunning reversal on chlorpyrifos in the face of overpowering scientific evidence of harm to children signals yet another dereliction of duty under the Trump administration,” Kristin Schafer, policy director for Pesticide Action Network, said in the news release.

After the Ninth Circuit Court of Appeals refused to force the EPA to take immediate action on chlorpyrifos, nine U.S. senators stepped in to draft legislation that would ban the chemical. See news release and video from Tom Udall, D-New Mexico, and a separate statement from Earthjustice.

Chlorpyrifos is among numerous pesticides that can harm salmon directly and indirectly in a variety of ways, including destroying salmon’s ability to make their way upstream to spawn and killing off the insects they eat.

In its latest biological evaluation released in January, the EPA looked at more than 1,400 toxicity studies before concluding that chlorpyrifos in all its various uses could be expected to have an adverse effect on all threatened and endangered species throughout the U.S. — including killer whales in Puget Sound. Check out the news story by Adam Wernick, Living on Earth.

Of course, chemical manufacturers and farming groups — including apparently the USDA — are not easily convinced that certain pesticides are harmful. They want to go on selling and using these chemicals, as they have for many years. Consequently, they want the EPA to prove beyond a reasonable doubt that a chemical is causing damage. But federal law actually requires that all chemicals on the market be proven safe, so any doubt should trigger a reduction of pesticide use or at least greater restrictions on their application.

It is easy to complain about the adequacy of any scientific study. In fact, a disputed difference in methodology between the EPA and NMFS led to a National Academy of Sciences Review, which eventually made suggestions for unifying the agencies’ different scientific approaches.

Through the years, one thing that I have found remarkable is that chemicals rarely appear to get safer with time. For most pesticides, more study raises more concerns, and when you mix pesticides together you never know what you’ll get.

In 2008, shortly after I started writing this blog, I reported on a study by Nat Scholz, a NOAA toxicologist in Seattle who has been studying the effects of chemicals on salmon and other species. This particular study examined mixtures of chlorpyrifos and four other pesticides.

The biggest surprise, Nat told reporter Erik Stokstad of Science magazine, was the strength of the synergistic punch from the pesticides diazinon and malathion. Together, the two chemicals killed all the salmon exposed to them. Even at the lowest concentration, fish were extremely sick.

“It was eye-opening,” Nat was quoted as saying. “We’re seeing relatively dramatic departures” from what happens with each pesticide by itself. See Water Ways, Feb. 19, 2008.

Such findings raise questions about the adequacy of all studies conducted on single pesticides. Pending final reports on pesticide effects on salmon, the courts have imposed 60-foot no-spray buffers along streams (300 feet for aerial spraying) to reduce chemical exposure to salmon and other species.

Nobody can say for sure if those buffers are adequate, but biological opinions from NOAA due out at this end of this year could shed new light on the problem. Meanwhile, chemical manufacturers are hoping those court-mandated reports never see the light of day — and they are putting pressure on the Trump administration to slow down the process.

In a letter to EPA Administrator Scott Pruitt, a lawyer for the three companies — Dow AgroSciences, ADAMA and FMC — called on the EPA to withdraw its biological evaluation, saying the analysis is flawed in several ways. The lawyer also wrote to other federal officials, asking the National Marine Fisheries Service and U.S. Fish and Wildlife Service to delay their biological opinions. According to the lawyer, the court-imposed deadlines are not legally binding.

Reporter Tiffany Stecker of Bloomberg BNA does a nice job describing various viewpoints surrounding this complicated issue. She also describes a close relationship between Dow and the Trump administration.

“The company donated $1 million to President Donald Trump’s inaugural committee,” she wrote. “Trump appointed Dow Chairman and CEO Andrew Liveris to head the White House American Manufacturing Council.”

Dow spent more than $13.6 million on lobbying efforts last year, according to Michael Biesecker, environmental reporter for the Associated Press.

“When Trump signed an executive order in February mandating the creation of task forces at federal agencies to roll back government regulations, Dow’s chief executive was at Trump’s side,” Biesecker wrote.

“’Andrew, I would like to thank you for initially getting the group together and for the fantastic job you’ve done,’ Trump said as he signed the order during an Oval Office ceremony. The president then handed his pen to Liveris to keep as a souvenir,” according to the AP report.

Patti Goldman, managing attorney for Earthjustice’s Northwest Regional Office, said Dow executives are doing everything they can to suppress the science surrounding chlorpyrifos and other pesticides — including hiring their own scientists to raise doubts and delay proposed bans for these toxic chemicals.

“We have a person (Pruitt) in charge of the Environmental Protection Agency who really doesn’t believe in the mission of the agency,” Patti told me.

Turmoil over pesticides has been heightened by the Trump administration just when the EPA and NMFS appeared to be coming together to resolve long-held conflicts over how to assess risk and reduce harm to salmon, she said.

Now, after 15 years of court battles, the end of the conflict appears far from over.

“I think we have had incremental progress, because we’ve gotten the agencies to look at this,” Patti said. “Some chemicals are no longer on the market, and some are on the market for only particular uses.”

While there is plenty of disagreement over whether controls on pesticide use are working, for now the no-spray buffers remain in place as a temporary protection.

Are we winning or losing the ongoing battle for salmon habitat?

It has been said that the Puget Sound ecosystem would be far worse off today were it not for the millions of dollars spent on restoration projects over the past 25 years.

Undoubtedly, that’s true, but I think most of us are hoping that these costly efforts will eventually restore salmon populations while improving conditions for other creatures as well. Shouldn’t we be able to measure the progress?

Juvenile chinook salmon
Photo: John McMillan, NOAA

This basic question became the essence of my latest story published in the Encyclopedia of Puget Sound: “Are we making progress on salmon revovery?”

As I describe in the story, what seems like a simple question becomes tangled in the difficulties of measuring population and ecological changes. It turns out that you can’t just count the fish to see if restoration is working. That’s because natural variabilities of weather, ocean conditions and predator/prey populations cause salmon populations to swing wildly from year to year no matter what you do.

While researching this story, I learned a good deal about freshwater habitat conditions needed to help various species of salmon to thrive. Habitat improvements resulting from restoration projects are no doubt helping salmon in significant ways. On the other hand, one cannot ignore human development that continues to degrade habitat — despite improved regulations designed to reduce the damage.

I’ve heard some people say that wild salmon would come back in larger numbers if everyone would just stop fishing for them. This may be true to some extent, especially for high-quality streams that may not be getting enough salmon to spawn. But the key to the problem is understanding the “bottlenecks” that limit salmon survival through their entire lives.

A stream may have plenty of adult spawners, but that does not mean the salmon runs will increase if the eggs are buried in silt or if food supplies limit the number of fry that survive. There may be multiple limiting factors that need to be addressed to ensure healthy ongoing salmon populations.

Small improvements in habitat may actually boost the productivity of salmon in a stream, meaning that more salmon will survive. But the benefits of small projects on large streams may be difficult to distinguish from natural variation. Statistical analysis is used to determine whether increases or decreases in salmon populations are more related to habitat changes or natural variation. It takes a fairly dramatic change to link cause to effect in a statistically significant way.

One ongoing experiment is measuring changes in fry populations in several streams within the same watersheds. One stream is left alone — the “control” stream — while habitat improvements are made in others. Because the streams are closely related, biologists hope to attribute population increases to habitat improvements with a high level of certainty. See Intensively Monitored Watersheds on the website of the Washington Department of Fish and Wildlife.

The same issue of statistics applies to the aquatic insects that salmon eat. It appears that food supplies are improving in many salmon streams as a result of restoration, but not all benthic invertebrates are responding in the same way. For many streams, it will take more time to get enough data to determine whether the increased bug populations are statistically significant. This happens to be one issue that I side-stepped in the latest story, but I will be returning to it in the future. For background, check out an earlier story I wrote for the Encyclopedia of Puget Sound, “Healthy Streams, Healthy Bugs.”

While habitat restoration is ongoing, so too is human development, which continues unabated at what appears to be an accelerating pace. New regulations are designed to result in “no net loss” of important habitats, including shorelines, streams and wetlands. But questions remain about whether local regulations themselves and/or enforcement of the regulations are adequate.

Biologists at NOAA’s Northwest Fisheries Science Center are conducting research to determine whether habitat changes are for better or worse, especially with regard to chinook. We should see some results within the next few years, as the agency prepares to draft the next five-year status report for Puget Sound’s threatened chinook population.

Forest battle continues over defining the upper bounds of fish habitat

A long-running battle over how to manage potential fish habitat on commercial forestland could be coming to a head — although it isn’t clear if the solution will satisfy either forestland owners or environmentalists.

Jamie Glasgow of Wild Fish Conservancy (center) leads a crew surveying a stream for the presence of fish in 2014. // Photo: Chris Linder

To be clear, there is not much argument about streamside buffers where salmon, trout and other fish are readily found, thanks to state and federal rules stemming from the landmark Forests and Fish Report. Buffers are designed to save trees that serve the needs of fish — including insects for food, shade for cool water and eventually down trees that form pools for resting as well as hiding places and spawning areas.

Environmentalists contend that it is important to protect unoccupied fish habitat as well as areas occupied by fish at any point in time. If salmon populations are to rebound, salmon fry could need extra space to grow and develop, says Jamie Glasgow, a biologist with Wild Fish Conservancy. That means larger buffers should go where fish habitat can be found.

Of course, timberland owners don’t want to leave large buffers on small stream segments where fish would never go. For them, perhaps hundreds of millions of dollars in commercial timber could be left standing under new rules, depending on how the state’s Forest Practices Board comes down on this issue of fish habitat. The board is scheduled to take up the issue again with some kind of action planned on Aug. 9.

Fish habitat is defined in the Forest and Fish Report as areas of a stream “used by fish at any life stage at any time of the year, including potential habitat likely to be used by fish which could be recovered by restoration or management and includes off-channel habitat.” (The emphasis is mine.)

The Forest and Fish Report was incorporated into state law by the Washington Legislature, and federal agencies adopted those concepts as a statewide “habitat conservation plan” to protect species listed under the Endangered Species Act, including chinook salmon.

One of the big arguments about fish habitat revolves around how to determine just how far upstream fish would likely go and where they would be deterred under various natural conditions they encounter, such as streamflow or natural barriers such as waterfalls.

The Forest and Fish Report anticipated that a map would be developed with all stream segments designated as either fish habitat or not fish habitat. After several years, such a map was developed in 2005, based on the size and steepness of the streams, using the best information available.

It soon became apparent, however, that fish were being found in areas marked as non-habitat on the maps. Other areas designated as habitat were sometimes unable to support fish. Some fish-bearing streams were not even on the maps, and some streams were in the wrong place. I wrote about the efforts by Wild Fish Conservancy to correct some maps three years ago (Kitsap Sun, Sept. 27, 2014). Previous maps had proved to be a problem as well, even before the Forest and Fish Report (Kitsap Sun, May 28, 1996).

The maps are still used as guidance, but buffer determinations must be made for each logging or development project based on actual site conditions. If a stream is 2 feet wide and the steepness is less than a 20 percent — or 16 percent in some areas — it is assumed that fish can get there.

But — and here’s the rub — an allowable fall-back method is to identify the presence of fish, either through snorkel surveys or by “elecrtrofishing,” which involves putting a nonlethal current in the water to stun the fish. Where fish are located, the area is designated as fish habitat, along with waters that extend upstream to a natural “break,” such as a waterfall or a stream confluence that would prevent fish from going any farther.

Much history surrounds this issue, and all sides should be given credit for working through many thorny habitat problems through the years. Nobody wants to go back to a time when the spotted owl was a symbol for conflict about whether forests were mainly for jobs or fish and wildlife.

As for fish habitat, experts have renewed their attempt to come up with reliable and objective methods to identify the break points between habitat (known as “Type F waters,” which stands for fish) and non-habitat (“Type N waters”) without the costs and impacts of surveying every stream for fish.

Environmental groups became impatient with the effort — or lack of effort at times — over the past 12 years — or more if you go back to the Forest and Fish Report. The matter has gone into formal dispute resolution, as provided by the Forest and Fish Law, and it now is up to the Forest Practices Board to provide a resolution.

“For the past 12 years, we have been using the interim water-typing rule that does not protect fish habitat …,” Glasgow said. “The interim rule allows surveyors to go to a stream anytime (during a specified period) and electrofish a stream. If they do not find fish during the one-day survey, they can identify it as Type N.”

The result is that many miles of fish habitat are getting little or no buffer protection, he argues. Where mistakes are made and small buffers or no buffers are allowed, it will take decades before the trees grow back to become good habitat again.

In mediation talks, the various parties — landowners, environmental groups, tribes and governments — have come to consensus on the overall framework to identify break points where the fish habitat ends, but the details are still unresolved.

Karen Terwilliger, senior director of forest and environmental policy for the Washington Forest Protection Association, said it is important to remember that these discussions are not about streams where adult salmon will go to lay their eggs.

“It’s the tail end of where the fish might be,” said Terwilliger, whose organization represents large timberland owners. The areas in dispute are generally small streams mostly occupied today by resident fish, including various species of trout and tiny sculpins.

The break point between fish and non-fish areas should be a location where the last fish is equally likely to stop above and below that point, she said. The scientific standard is that the break point should be accurate 95 percent of the time, as required by adaptive management provisions of the Forest and Fish Law.

“We think fish presence will always be an important part of the system,” she said. “Different streams are different. A ‘one size fits all’ does not make sense.”

Environmental groups prefer to avoid methods that rely upon people finding fish, which may or may not be present at the time of a survey. It should be possible to define habitat conditions suitable for fish whether or not they are there at a given time.

Scientific information has evolved to where predictions can be made about where fish will go, Terwilliger said, but there are still questions about what conditions create a barrier to fish. A level of scientific certainty is required before changes can go forward.

“If science says a change needs to be made, then you more forward to make the change,” she said. “To date, we have not seen data that a lot of changes need to be made.”

If a rule change is proposed, it will need to undergo environmental review, a cost-benefit analysis, a small-business economic impact statement and public hearings.

Peter Goldman, director and managing attorney at Washington Forest Law Center, said the adaptive management process should be more than a system of delays. Only recently have things been moving in the right direction, he added.

“The timber industry is powerful,” said Goldman, who represents environmental groups. “They don’t want anything to change.

“We have been trying to negotiate in good faith collaboratively, because that is the Washington way,” he said. “If the Forest Practices Board doesn’t act … it is conceivable that we will have to sue the board and ask the federal government to reconsider the HCP.”

Stephen Bernath, deputy supervisor for forest practices at the Washington Department of Natural Resources and chairman of Forest Practices Board, said the board is moving forward with the help of scientists. New ideas and new technology are being brought into the discussion with the goal of seeing whether a variety of physical parameters alone can be used to identify fish habitat with high probability.

At the Aug. 9 meeting, the board is scheduled to get an update on the progress and to act on staff recommendations about the breaks between fish and non-fish waters. After that, a formal process will begin to incorporate changes into policies, rules and guidance.