Saturday, December 29, 2012

Lake Whatcom -- Nevermore

Nothing more to say.
Nothing happens.
Nothing will happen.
Let’s all forget it.
About two weeks ago, I opened a conversation with some folks who have significant responsibility for our drinking water source, Lake Whatcom, by stating an obvious fact.  I said: 
“Lake Whatcom is the graveyard of activists. From Sherilynn Wells to the various Lake Whatcom groups to Dan Pike, everyone learns the same lesson. Worrying about Lake Whatcom is like pounding your head against a tree. The only thing that it accomplishes is to teach you how good it feels when you stop.”
They nodded and smiled.  And why not?  What else can you say?
My clients and I, and Futurewise, have sued Whatcom County to try to implement the parts of Washington state law that require Whatcom County to protect surface water quality.  Wendy Harris, bless her heart, continues to attend meetings on Lake Whatcom, and continues to point out the many threats that our drinking water source faces.  Other individuals – Virginia Watson, Marian Bedill, and April Markiewicz come to mind, and I know that I’m missing others – continue to devote their energy and considerable intellects to the fact that we’re fouling our own nest and that it’s entirely avoidable.  
There was a time when everybody was up in arms about the fact that we’re knowingly, intentionally, systematically, and avoidably, polluting the water that we drink.  
Not any  more.   
The folks who have a vested interest in knowingly, intentionally, systematically, and avoidably polluting the water that we drink have won.  Because there’s nobody with the stature to stand up to them.  Not at the state level, not at the local level. A few scattered citizens can’t take on the burden.  Especially when the folks who are paid to do this work are not willing to hit their heads against the wall, either. 
A two-year anniversary is coming up.  What is an appropriate way to celebrate a great big nothing? 
“the city of Bellingham filed a petition to have the Lake Whatcom Watershed closed to additional groundwater withdrawals. The city’s petition argues that phosphorus-laden runoff from cleared and developed land is impairing the city’s ability to exercise its municipal water right from Lake Whatcom and supply water to nearly 100,000 people. Elevated levels of phosphorus have resulted in low dissolved oxygen levels and excessive growth of algae blooms in the lake that has slowed operations at the city’s water treatment plant. The algae blooms clog water filters and require the city to use millions of gallons of treated water to flush the filters.”
So, what happened?  According to our storyteller, the Department of Ecology:
“Under the Administrative Procedures Act, Ecology can:
·         Grant Bellingham’s petition.
·         Deny the petition with an explanation.
·         Deny the petition but provide an alternative means to address the concerns of the petition.
Ecology chose the third option and accepted Whatcom County’s proposal to amend its development regulations in the Lake Whatcom watershed in the next several months to ensure no additional phosphorus contamination of the lake. A letter from the county executive to Ecology states the county’s goals of amending the regulations to:
1.      Prevent additions of phosphorus to Lake Whatcom from new development projects.
2.      Achieve a consistent and predictable set of development regulations.“
Fast forward.  Two years have passed, and the County has adopted --  nothing. 
In fact, the County tried its darnedest to permit the development of new houses on one- and two-acre lots on the shores of Lake Whatcom.  But the Growth Management Hearings Board couldn’t see how building more houses on small lots next to our drinking water source would protect surface water quality, and the County rezoned those lots to five acres.  Other than that?  Nothing.
As both parties have made clear in the meantime, the County’s letter and Ecology’s response didn’t really commit anybody to actually “do” anything. 
It reminds me of the rules we used to make up for crossing your fingers behind your back when we were in grade school.  The rules went something like this:  If you cross the fingers on one hand, it means that you didn’t mean it; if you cross the fingers on both hands, the double negative means that you did mean it.  And if both people cross their fingers, there isn’t really a deal because the whole thing was a fake from the start. 
The January 2011 letter from then-County Executive Pete Kremen said that the County would “shorten the timeline for meeting Total Daily Maximum Load (TMDL) objectives for new development in the Lake Whatcom watershed,” and it said that “Ecology and my administration are close to agreement regarding residential development and stormwater management practices that will satisfy requirements of the TMDL.”   
What that letter actually meant, according to both parties’ subsequent interpretations, is that the County would submit some sort of proposal to the County DePlanning Commission at some point.  (Ecology, ironically, calls this document “Whatcom County’s letter of commitment”.)
What would happen next?  Nothing, or worse than nothing.  Hold on and we’ll get to that.  
Ecology said that “If the amendments are not adopted or properly implemented, Ecology reserves the right to take additional regulatory action to ensure that our water quality goals for the lake are achieved.” 
What Ecology meant was that it really hopes that the County will decide to do something about Lake Whatcom water quality sometime, and if the County doesn’t come up with a plan to do something by 2018, it might be – yes, it is possible that the County could possibly be, and maybe the County possibly might conceivably be --  out of compliance with something that Ecology hasn’t yet adopted.    
Ecology supposedly will adopt a “TMDL” (Total Maximum Daily Load) for Lake Whatcom in 2013.  Once it has adopted this TMDL, Ecology has announced that it is planning to give the County five years to come up with a plan to meet the TMDL requirements.  As Ecology is entirely aware, this means that Whatcom County will do absolutely nothing to reduce pollution in Lake Whatcom before 2018. 
So much for the “commitment letter.”  The “commitment” to “shorten the timeline”?  Heh heh heh. That was a good one.
Let’s look back at the comedy of errors that has been Lake Whatcom over the past two years.
After the County’s so-called “commitment,” County staff prepared some draft regulations to reduce phosphorus input into Lake Whatcom. 
On February 23, 2012, the Whatcom County DePlanning Commission approved a revised version of these regulations. 
On March 8, 2012, the Commission held a public hearing.  Many property owners, and the Building Industry of Whatcom County, were concerned that the regulations might impose costs on development in Lake Whatcom watershed.  
At the end of the public hearing, the Commission did not adopt the recommendation.  Instead: 
[Commissioner] Onkels made an amendment that before the proposal is referred to the County Council it first be referred to a technical review committee consisting of engineers, planners and commission members. Luke seconded. The motion carried. Onkels and Honcoop will serve on the committee. 
Honcoop made an amendment that the committee will consist of 2 members of the Planning Commission, 2 members of PDS and 2 members of the engineering community. ? seconded. The motion carried.
 Source:  3/8/12 minutes. 
On March 22, this so-called “technical” committee reported in.  It had met once: 
The meeting was held March 16th and attended by Mark Bueher-2020 Engineering, Nathan Row, Craig Parkinson, Dave Brown, Darcy Jones, Mike Bratt, and Sandy Peter and Kirk Christenson from Whatcom County Public Works. Onkels and Honcoop had several more meetings with staff.
What could possibly go wrong with a proposal that stemmed from this representative group?
Based on the work of this ad hoc committee, the Commission recommended allowing new development to contribute 25% more phosphorus pollution to Lake Whatcom than the County had “committed” to in its “commitment letter.” 
It also recommended requiring Whatcom County and the Department of Ecology (!?!) to conduct “an economic impact analysis concerning the application of the additional DOE regulations, as proposed by PDS, will have on the existing agricultural operations in the Lake Whatcom Watershed with a final report detailing the costs imposed on the various operations. . .” 
I don’t even know what that means (“application of the additional DOE regulations, as proposed by PDS”?).  Its purpose is never stated (to show the public the extent of the costs that watershed property owners have been able to externalize to date?).  What is clear is that this kind of analysis would be extremely costly and time-consuming.  The Planning Commission did not mention how this study would be funded or what staff tasks would be left undone in order to conduct this study.
Finally, the Commission made formal findings, which concluded that its own recommendation would not work.
It recommended instead that staff should “[d]etermine where large scale water capture, treatment systems can be placed to guarantee that no additional phosphorous will be added to Lake Whatcom from new development.”  Water District 10 or a new entity would prioritize, construct and maintain all new improvements.  Everyone in the County would pay a fee for large scale projects and their upkeep, and residents in the watershed would pay more.  The results, according to the Commission, are: 
“No net new phosphorus loading would be achieved because large scale projects would eliminate as much or more than new development created. 
All lot owners would have predictability on their lots and not be prohibited from building. . .” 
You may be bursting with questions at this point (what “large scale improvements” will “eliminate” all existing phosphorus, and if it’s this easy, why haven’t we built them before?  Why should somebody from Sumas pay for Lake Whatcom?  And so on.).  Just hold on—there’s more. 
Apparently the Commission’s approach also envisions feats of engineering that would divert Lake Whatcom watershed stormwater into the Bay.  Sort of like – you’re sick of cleaning up after your dog in your backyard, so you say “I know!  I’ll divert my dog to the public park!”  Your own back yard is clean, right?  And what else could possibly matter. . . .
But let’s give the Commission its moment.   It’s fun to come up with magical solutions.  
What's not so fun, however, is when paid County staff spend hours, days, weeks, months -- possibly years -- earnestly chasing after proposals that are nothing more than fairy dust.    
Sources of information on the Commission recommendation:  March 22 minutes  and June 5 introduction of the Commission recommendation to the County Council, starting on page 485. 
Moving right along -- on September 11, 2012, the Council leapt into action on Lake Whatcom.  It noted that 717 undeveloped lots in the Lake Whatcom watershed are smaller than 10,000 square feet.  The County Council was in a protective mode.  It was deeply, deeply concerned that regulations might make it harder to develop the “44 percent of parcels that are existing lots that have not been built on and are under 10,000 square feet.”  It was determined to protect those property owners from extra cost. 
Spoiler alert:  Ensuring that development can occur on these small lots remains the only issue that has actively engaged the Council majority’s interest with respect to phosphorus regulations, and County staff are involved in a multi-month effort to ensure that property owners will be able to develop these lots without additional cost. 
I the Taxpayer am supporting these efforts, of course, and I guess that it’s only fair that I should pay for this.  Because?  Because it’s freedom.  Property owners' freedom to make money, my freedom to pay taxes to make sure that they make money. 
I the Bellingham Taxpayer am also paying to purchase lots in the Lake Whatcom watershed, in order to ensure that these lots are never developed and therefore do not increase phosphorus loading.  Why do I get to pay to purchase lots while I’m also paying to make sure that 700 more lots will be developed?  Because I’m doubly free, I guess.  Double taxation = more freedom (for somebody else).  Lucky me. 
On October 23, the Council’s Natural Resource Committee continued to talk about the staff effort that would be needed in order to find out what cost burdens would be put on small property owners in the event that the County ever actually adopted regulations to reduce phosphorus runoff.  County staff said that figuring everything out would be very time-consuming.  One Council member suggested using Economic Development Incentive funding.   
That brings us to the November 20, 2012 Whatcom County Council Natural Resource Committee meeting, which was the inspiration for this blog.  Believe me, the official minutes do not do justice to this meeting.  You have to hear it to believe it.   
Some points that everyone needs to know:   
(1)  IT WILL NOT WORK to impose strict regulations on the southern portion of the Lake, which happens – just coincidentally, I’m sure – to be in the City’s jurisdiction, while allowing more development around Basin 3 on the theory that Basin 3 is less polluted.  And therefore ought to catch up.  I guess.   
This proposal was made by a Council member.  Department of Ecology’s Steve Hood responded that the phosphorus in the Lake gets pretty well distributed during the summer months (“there’s quite a good dispersion in the upper layers of the Lake”), so the source of the pollution doesn’t really matter.  (Audio of Natural Resources Committee, around 15 minutes.)  
Besides, now that we’ve trashed Basin 1, and Basin 2 is stressed, do we really have an obligation to trash Basin 3?  Don’t we ever learn anything?
No.  Apparently, we never learn anything.  This leads us to the next point:
(2) The fact that existing development has polluted our drinking water does NOT give property owners the absolute, inalterable right to pollute our drinking water. 
One County Council member is convinced, and states repeatedly and at great length, that it’s unfair to try to reduce pollution from new development.  “Even if there were no development, no development from here on out, we still have the problem with Lake Whatcom that’s never going to go away, unless we do something about it. It just seems to me that we’re putting too much emphasis, and quite frankly, an unfair burden, on those who haven’t developed. . .“
Department of Ecology's Steve Hood (at around 23 minutes in) explains that it’s easier and cheaper to avoid pollution during the design phase than to retrofit development, once it’s already build.  We need to make sure that new development is “not adding to the burden of what has to be done for that other development.”  In other words, “Quit digging a hole deeper while you’re trying to figure out how to fill it up.”  “They have a lot more options when they’re designing their projects.”  
(3).  The gravel infiltration project at Lahti Drive does not prove that stormwater projects will eliminate “97% of the phosphorus.” 
One of our Council members is convinced that County facilities (Cable Street, Lahti Drive) get “97% phosphorus reduction.”  (Around 1 hour 15 minutes into the audio.)
This reduction is based on the amount of water that flows into the system.  As one of the engineers at the meeting stated, “You can get any system to get to 97% if you only allow a small amount of water to drain into the system.” 
Over a 50-year horizon, the Lahti Drive system will capture and treat around 40% of runoff from 36 acres.  Phosphorus removal ranges from 50% to 96%.  So, the regional facility treats 40% of runoff – and of that runoff, 50-96% of the phosphorus is removed..  (1 Hr. 17 minutes – 50-96%; 1 hr. 19 minutes – 40% of water treated.)
In order to reduce runoff, staff emphasized that “source control – lot by lot control – is a lot more efficient.  You can infiltrate more water.”   “If you’ve already reduced phosphorus off the lots, the facilities are much more efficient than if you’re just dumping all the water into the regional facilities.”
(4)  No, there is no magical pipeline that will magically make all of the polluted stormwater from a completely-developed Lake Whatcom watershed magically “disappear.”
At about one hour, 18 minutes into the committee meeting, it became apparent that the DePlanning Commission’s plan was to transport stormwater from the Lake Whatcom watershed and dump it into Bellingham Bay.  The Committee chairman, Carl Weimer, prudently asked whether this is legally possible, and what the cost might be. 
The state Department of Ecology hemmed and hawed.  “As far as a large structure diverting water out of the watershed, we’d have to determine if there were an overriding public interest” to “divert this water right.” 
Seriously, dude?
It took a representative from the City to talk sense:
“If you’re talking about pumping water out of Lake Whatcom and into the Bay, Puget Sound Partnership has been focused on stormwater now for several years.  The City is trying to gain some traction on our stormwater as we dump stormwater into the Bay.  The Bay already has anoxic zones, where there are too many nutrients in particular areas seasonally.  So just dumping it out of the Lake watershed doesn’t make the problem go away, it just disperses it someplace else. And the Bay’s not immune to those kind of influences. So, on a scale of 1 to 10, I’d think this is pretty low on the feasibility options.”  
So, following two years of hand-waving and hundreds of hours of staff time, what progress has been made to improve Lake Whatcom water quality?
We have a proposal, derived from an “ad hoc,” biased, hastily-convened and poorly-informed DePlanning Commission committee, to build some sort of “regional” system that will somehow send stormwater out to Belliingham Bay.  The mechanism has not been explained or shown to be feasible from an engineering or water quality standpoint. The mechanism for payment appears, on its face, to be blatantly illegal.  Yet County staff, who are partially paid through the General Fund (including City of Bellingham tax dollars), have wasted hours and weeks of their time on this overt claptrap. 
We have a promise, from the Department of Ecology, that it will eventually provide a “TMDL,” and the TMDL will require the County to do something – but not for five years from the time that the TMDL is approved. 
In other words, we have bupkis. 
And this is good news.
The good news is – this means that there's no cause to worry.  Nobody else cares about Lake Whatcom, so why should you? 
Your only role is to get out your checkbook and pay for that multimillion dollar drinking water treatment system that’s coming down the line.  If you don’t believe me, read this. 
And, without a water quality management plan, get that checkbook ready to pay for the next water treatment technology. 
And the next. 
And the next.


  1. Criminal incompetence. Thank you for this article, Jean.

  2. We have a County that refuses to bend to best available science or the decisions of the Growth Management Hearings Board, and a state agency unwilling to enforce its own regulations. Exactly what will it take to shake the public out of its lethargy? Unless the public is willing to mobilize and demand action, we will be left with unsafe drinking water and dissentive for new business and new residents to relocate.

    The city and county and state have employed a very effective strategy for the lake. While the public is activated and concerned..delay, delay, delay. After a few years, everyone gets burned out and tunes out. That is when they move forward with proposals that do nothing, at best, and cause more harm, at worst. At this point few people are even paying attention.

    The best time to get active is at elections... vote for people who have detailed and specific plans for the Lake, and then hold them to it.

    And in case your post has awoken the activist in anyone, there is public hearing on January 3, 2013 before the Bellingham Shoreline Committee (a subsection of the Planning Commission)regarding environment review of a new dock and boathouse for the Whatcom Rowing Assocation. The city is requiring NO mitigation for increased intensity of use at Bloedel Park, although a rare functional wetland and degraded habitat corridor are nearby and require protection and restoration.

    In light of the Asian clam infestation, it would also be good idea to discuss the use of recreational watercraft on the Lake, and whether this is something that should be actively encouraged at Bloedel Park. The city and county intend to skip this discussion entirely, and implement a feel good but do nothing certification/inspection program. Again, the affirmative duty is the public to demand that have a public conversation.

  3. Thank you Jean, once again, for your thorough documentation of the reckless disregard for the declining quality of our drinking water by the people who are supposed to be safeguarding it.

  4. I wonder why the City of Bellingham gave up on pursuit of it's petition. It would seem the logical next step was a writ of mandamus from a court of appropriate jurisdiction explaining Ecology's duty to them in unambiguous terms.

    Oh ... but like you say, Jean, that would take an administration that cared about Lake Whatcom. Never mind.