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:
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.
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.
Right on...
ReplyDeleteCriminal incompetence. Thank you for this article, Jean.
ReplyDeleteWe 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.
ReplyDeleteThe 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.
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.
ReplyDeleteI 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.
ReplyDeleteOh ... but like you say, Jean, that would take an administration that cared about Lake Whatcom. Never mind.