Category Archives: Land use

Puget Sound Action Agenda makes a shift in restoration strategy

Puget Sound Partnership has honed its high-level game plan for restoring the Puget Sound ecosystem, including a sharp focus on 10 “vital signs” of ecological health.

The newly released draft of the Puget Sound Action Agenda has endorsed more than 600 specific “near-term actions” designed to benefit the ecosystem in various ways. Comments on the plan will be accepted until Oct. 15. Visit the Partnership’s webpage to view the Draft Action Agenda and access the comments page.

The latest Action Agenda for 2018-2022 includes a revised format with a “comprehensive plan” separate from an “implementation plan.” The comprehensive plan outlines the ecological problems, overall goals and administrative framework. The implementation plan describes how priorities are established and spells out what could be accomplished through each proposed action.

Nearly 300 near-term actions are listed at Tier 4, the highest level of priority, giving them a leg up when it comes to state and federal support, according to Heather Saunders Benson, Action Agenda manager. Funding organizations use the Action Agenda to help them determine where to spend their money.

The greatest change in the latest Action Agenda may be its focus on projects that specifically carry out “Implementation Strategies,” which I’ve been writing about on and off for nearly two years. Check out “Implementation Strategies will target Puget Sound ‘Vital Signs’” in the Encyclopedia of Puget Sound.

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Map of sea level predictions can assist waterfront owners

A sophisticated analysis of sea-level rise in Puget Sound and along the Washington Coast offers shoreline residents and land-use planners a new map-based tool to assess potential flood hazards for the coming years.

Click on map to access online interactive map
Map: Washington Coastal Hazards Resilience Network

Sea-level rise depends on two factors: how fast the oceans rise and the rate of vertical land shifts. Uplift, such as what occurs along the Washington Coast, slows the rate of sea-level rise relative to waterfront property. Subsidence, which occurs in Central Puget Sound, results in elevated tides sooner than in stable or uplifting areas. One map on this page shows the measured uplift and subsidence and another shows the uncertainty in that measurement.

Ian Miller, a coastal hazards specialist at Washington Sea Grant, has worked on studies that describe sea-level rise in Island County and on the Olympic Peninsula. The new report, titled “Projected Sea Level Rise for Washington State” (PDF 10.4 mb) goes well beyond what he and his colleagues have done before. It takes a more detailed look at where the land is uplifting and subsiding, according to Miller, the lead author on the new report that involves work by scientists at Sea Grant and the University of Washington’s Climate Impacts Group.

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Amusing Monday: Get out and enjoy the cool rivers in our region

Given the heat wave of the past few days, I realize that I should have been floating down a river. I’m envisioning cool water splashing people on a boat as the sun beats down from above. I recall feelings of calm while traveling across flat water, followed by the invigoration of roiling rapids.

To get you started, Seattle Magazine offers a few suggestions, and there are numerous rafting companies advertising online to help you tackle more challenging waters.

This year happens to be the 50th anniversary of the Wild and Scenic Rivers Act, and I’ve been watching some videos that I would like to share. The law was designed to preserve the free-flowing nature of rivers that contain outstanding natural, cultural and recreational values.

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Is there any hope for coming together on climate change?

Not long ago, I was having dinner at a restaurant with some friends. We were talking about environmental concerns when someone mentioned climate change.

“There’s nothing to worry about,” said the man seated to my right. “We are actually going into the next ice age, and the weather is getting colder.”

Stunned, all I could say was, “I don’t even know how to respond to that.” I was not in the mood to give a scientific lecture, nor did it seem like the time to engage in an angry debate — so I changed the subject.

Ever since, I’ve been wondering what I should have said. I’m sure I could have discussed whether humans are to blame for the fact that temperatures are becoming more extreme. For example, the average annual temperature has exceeded the 138-year average every year since 1976. (See NOAA’s National Centers for Environmental Information.) The evidence of human influence is pretty compelling, but even if you find fault with the data or want to blame natural causes, the warming trend is clear.

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Amusing Monday: Tying gentrification to climate change with humor

“The North Pole,” a seven-part online political comedy, provides some amusing social connections between climate change and the gentrification of aging neighborhoods.

Set in North Oakland, Calif., the story revolves around close friends who have grown up in the area and find themselves struggling against landlords, corporate greed and ultimately their own social consciences. The setting could just as easily have been Seattle or any other city in which low-income housing is being displaced by condos and cute corner malls.

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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.