Wednesday, February 29, 2012

From Buffers to Bulldozers - As the BAS Turns

The BAS, as we are told by some, is the singular feature of our CAO process that will make our new ordinances "smart" unlike our existing "dumb" sensitive areas ordinance that we've been living relatively happily with for years. Okay, let's follow the bouncing BAS and see how smart it is.

The following emails show the evolution of the word "drainageway" which is a new term introduced into our latest draft wetlands code.  What is a drainageway?  Well, it depends when you ask the question apparently.  In the first email below from Dr. Adamus (August 20, 2010), a "drainageway" is worthy of protection by a buffer if we "are truly using a BAS approach" as he puts it.

In December 2011, Paul Anderson of Ecology appears to liken a "drainageway" to a stream or a watercourse. Again, that's a concept worthy of protection via buffers, since the state Hydraulic Code has all sorts of requirements if you care to do work in the bed of a stream.

However, by January 17, 2012, Ecology seems to have had a change of heart about "drainageways."  By then, the Ecology folk (Anderson, Hruby, McMillan, and Stockdale) are advocating that "drainageways" be removed from a site by site-recontouring because they short-circuit a buffer.

What?!?  Ecology is recommending we bulldoze them? Yes, they are, and our latest wetlands draft CAO includes that notion of a drainageway despite the fact that back in 2010 Adamus said that "if we were truly using a BAS approach" then "drainageways" should have buffers.

I know.  I don't follow it either.

And I know I'm a broken record, but the emails below once again show the level of continuous involvement by Ecology in our County and with the CAOs, despite their claim:

"We don’t have regulatory authority in local critical areas ordinance issues. We don’t make rulings or issue enforcement actions under local critical areas ordinances. Those tasks are on local government turf" (Gordon White, Eco-Connect Blog, Feburary 14, 2012.)
From: Paul Adamus []
Sent: Friday, August 20, 2010 5:31 PM
To: Shireene Hale
Subject: my next visit; meet w. DOE; deadlines

Hi Shireene,

My next visit will be the week of September 20.  I will be doing a final check on Mindy and Ted, and would also like to see if, on one of those days, Paul Anderson or Erik Stockdale from DOE would be willing to meet with us (you, me, Colin, Janice, maybe Fralick, Pete) to discuss some aspects of the CAO.  Could you try and set up a meeting?  Specifically, before we get too far along I want to gage their reaction to the no-extra-cost innovations I mentioned to you last time, which I believe are necessary in order for us to say we are truly using a BAS approach: (a) putting wider buffers around drainageways that feed wetlands seasonally rather than uniformly around the perimeter of each wetland, (b) modifying the habitat portion of the DOE Rating System so all the Habitat scores are generated using my GIS analysis of LiDAR data and other sources, which would allow us to rate all wetlands regardless of whether they are on private inaccessible parcels, and would improve the accuracy of the assessments that Mindy and Ted have already done.  A third idea, which I will first describe to you early that week or before, concerns the types of wetland landscape settings in SJC that I have determined from my BAS review should result in higher ratings and wider buffers.

As regards the overall schedule, I am progressing well with reading reports and papers for the BAS and extracting key points that I will use in the BAS report.  At this point it looks like the only thing that's threatening the timely attainment of the deadlines is the fact that Pete hasn't been able to get to preparing the Task Order for me to subcontract the necessary GIS work, which he gave a verbal OK to. 

From: "Anderson, Paul S. - NWRO SEA (ECY)" <paan461@ECY.WA.GOV>
Date: December 9, 2011 9:03:38 AM PST
To: Shireene Hale <>
Cc: "" <>, "" <>, Janice Biletnikoff <>, Rachel Dietzman <>, Scott Rozenbaum <>, "Stockdale, Erik (ECY)" <ESTO461@ECY.WA.GOV>, "" <>, Steve Belluomini <>, Janet Alderton <>
Subject: RE: Alternative Wetland Buffer Procedure

Thank you for passing along the revised alternative buffer proposal and accompanying documents. 
My only comment at this time is that I recommend keeping the existing “Drainageway” definition.  I think this definition is easier to understand than the proposed alternative (the alternative definition would require a definition for “stream”) and is more consistent with the “watercourse” definition in the state Hydraulic Code (WAC 220-110-020(105)).
Paul S. Anderson, PWS Wetland Specialist Washington State Department of Ecology 3190 - 160th Ave. SE Bellevue, WA 98008 Phone: (425) 649-7148 Fax: (425) 649-7098 Email:  

From: "Stockdale, Erik (ECY)" <ESTO461@ECY.WA.GOV>
Date: January 17, 2012 4:11:10 PM PST
To: "" <>
Cc: Janet Alderton <>, Scott Rozenbaum <>, Janice Biletnikoff <>, Rachel Dietzman <>, "Anderson, Paul S. - NWRO SEA (ECY)" <paan461@ECY.WA.GOV>, Steve Belluomini <>, Ed Kilduff <>, "Hruby, Tom (ECY)" <thru461@ECY.WA.GOV>, "McMillan, Andy (ECY)" <anmc461@ECY.WA.GOV>
Subject: Ecoogy comments on January 16th SJC Buffer Calculator

Hi Paul:
Per your request, below are consolidated comments from Paul Anderson, Tom Hruby, Andy McMillan and me. Please feel free to contact me if you have any questions or would like clarification.
          (middle section omitted by ECK for brevity)

Drainageways. Thank you for adjusting the weight for the drainageways that will potentially short-circuit a buffer. We recommend the CAO include measures to remedy such situations by requiring that a site be re-contoured to promote sheet flow across the buffer.

Thank you for adding the drop down menus for questions 1 and 2.
Thanks to all for the continued conversation.
Erik Stockdale, PWS |Wetlands/401 Unit Supervisor|Department of Ecology| 425-649-7061|

Tuesday, February 28, 2012

Damn It Feels Good to Be a CAO Gangsta!

The following quotation appeared in a local newspaper regarding the Charles Dalton case:

County Prosecuting Attorney Randy Gaylord said islanders can contact the county to view a "wetland inventory map" and if a wetland is shown on your property, and you disagree, it's up to you to disprove it.

With that kind of approach and with the desk-jockeys making County wetland maps at full throttle for the last couple of years, they'll be more Dalton-like cases than you can count. Take, for example, the long-time islanders who wrote the following letter to the Planning Commission today.  Do you hear the bell tolling yet?

We are the owners of water front property on Lopez Island.  As such, we are following with grave concern the San Juan County writing of a Critical Areas Ordinance, and in particular the Wetlands Section of the CAO.  It is our understanding the County has again requested citizen input regarding its proposed Wetlands Section.

We have reviewed the proposed wetlands designation map and are flabbergasted to see a “non-tidal wetlands” label pasted upon our property.  We are flabbergasted because no standing water or any semblance of a “wetland” has ever existed or been observed on our property in the past 44 years the property has been owned by us or our parents.  It appears to us that San Juan County has acted erroneously and randomly in their analysis of and labeling of our property regarding “wetlands”.

If our property is any indication of the overall  manner in which San Juan County “wetlands” have been identified, we consider the county’s work quite flawed.  We do not claim to be particularly knowledgeable regarding wetlands, but it doesn’t take much knowledge to understand that our property is no “wetland” of any type.

We respectfully request the proposed Wetlands Section not be incorporated into the CAO until its errors are corrected and impacted private property owners are given proper and satisfactory answers to their concerns.

It ain't easy bein' owners in a CAO world, yo!  Damn It Feels Good To Be a CAO Gangsta!

Monday, February 27, 2012

Ecology Is Just Soooo Helpful

Setting up conference calls for Council members ... giving scholarships to our Deputy Prosecuting Attorney so he can be "educated" about wetlands ... keeping an eye on those "not a problem" non-conforming issues in the shires.

Once again, Ecology does all this helpful stuff while at the same time reminding us:

"We don’t have regulatory authority in local critical areas ordinance issues. We don’t make rulings or issue enforcement actions under local critical areas ordinances. Those tasks are on local government turf" (Gordon White, Eco-Connect Blog, February 14, 2012.)

If they don't have any authority, why are they working late?  Just being helpful?

From: Stockdale, Erik (ECY) [mailto:ESTO461@ECY.WA.GOV]
Sent: Thursday, January 21, 2010 8:20 PM
To: Richard Fralick
Subject: RE: Law Course on Wetlands

Am pretty sure that only state employees are allowed to work late.

I’ll be sure to have Barb Smith at LSI email Jon Cain with the information.

Talk to you soon, Erik

From: Richard Fralick []
Sent: Thursday, January 21, 2010 7:38 PM
To: Stockdale, Erik (ECY)
Subject: RE: Law Course on Wetlands

Hi Erik,

Thanks for the info on the law course.

Jon Cain our deputy Prosecuting attorney will take advantage of your offer.  His email is  Please have Barb Smith forward the registration information directly to him.


Richard Fralick

From: Stockdale, Erik (ECY) [mailto:ESTO461@ECY.WA.GOV]
Sent: Thu 1/21/2010 8:33 AM
To: Richard Fralick
Subject: RE: Law Course on Wetlands
Good morning Dr. Fralick.

Sorry I didn’t get back to you yesterday; I was on Whidbey Island all day. In fact, I met with Robert Pederson yesterday afternoon with some of my staff to talk about how their CAO implementation is working. He mentioned that you had met with him recently.

I asked him if the issue of nonconforming uses came up during their CAO update, or has become an issue during implementation. In short he said “it’s not a problem; there’s established law to deal with this … ” etc. You and others at the County may be interested in speaking to him about it as I believe it is consistent with the message you have been hearing from me and others at Ecology, particularly Gordon White, our Program Manager.

Sorry I dropped the ball on the Law Seminars International course info. I have a “half off” slot available for the prosecutor or any other County staff. Given that they charge an outrageous $495 for government employees for the one-day class, half of that begins to look like a reasonable fee(!).

The seminar in Seattle on Thursday January 28th is titled “Wetlands In Washington”. Information is available at

Please let me know who is attending and I will ask Barb Smith at LSI to forward the registration information.

The person can also contact Barb directly and state that they are registering under my “half off” slot:

Barb Smith
Senior Program Coordinator
Law Seminars International
tel. (206) 567-4490
fax. (206) 567-5058

Am glad someone can take advantage of this.

Many thanks, Erik

Erik Stockdale|Wetlands/401 Unit Supervisor|Department of Ecology| 425-649-7061| 

From: Richard Fralick []
Sent: Wednesday, January 20, 2010 11:06 AM
To: Stockdale, Erik (ECY)
Subject: Law Course on Wetlands

Hi Erik,

Thanks for setting up the conference call with Chuck Steele.  It was very informative and I am still trying to digest it all.

A couple of weeks ago you indicated to me that you had a half-time scholarship that you could make available to San Juan County for a continuing law education course on wetlands.  I spoke with our Prosecuting Attorney yesterday and he expressed a strong interest in taking you up on your offer if it was still available.  If it is please send me the course announcement so I can pass it on to him.

Thank you,

Richard Fralick

Sunday, February 26, 2012

Lipstick on a CAO - The Inside Story on Buffers

See the email train below and read from the bottom up.

Does it sound like our CAO draft is ready to you? The experts seem to think there's a lot of work to be done and still a lot of unknowns. They're sounding a bit scattered and frayed about it.

My favorite Ecology quote from the emails below is Tom Hruby saying that buffers cannot be fully protective because "pollutants can get into a wetland from groundwater or the air." It makes me wonder if we are going to have air buffers next.

It's interesting that Hruby cites Ruckelshaus, 1984, and Tarlock, 1994, although he seems to misconstrue quantitative environmental risk as described in those papers.  As I mentioned in a previous post, Ruckleshaus points out that a safe world is not a zero-risk world.  But by his statements, Hruby seems to imply that to be "fully protective" something must be zero risk.  That is the exact opposite of what Ruckelshaus and Tarlock were saying.

Hruby also says that there is still plenty of work to do before we "start identifying factors that increase or decrease the risk." Start? Did he really say, "Start"?  We have spent all kinds of time and money. Our latest wetlands draft is just about to go to the Planning Commission, and Hruby thinks we haven't even started?!?  As surprising as it may seem, he and I actually agree on that point.

Note that while Hruby appears to be the thinker, Stockdale's role seems just to focus on bringing this puppy home no matter what our CAO says. He's on a mission, like our County Council. Accordingly, Stockdale is preoccupied with defending against a Growth Board appeal despite his boss' boss recently proclaiming:
We don’t have regulatory authority in local critical areas ordinance issues. We don’t make rulings or issue enforcement actions under local critical areas ordinances. Those tasks are on local government turf" (Gordon White, Eco-Connect Blog, Feburary 14, 2012.)
I wonder if Gordon White knows what Tom Hruby, Erik Stockdale, Paul Anderson, Stephen Stanley, and Andy McMillan do all day.

Despite Ecology's obvious lack of alignment over our wetlands CAO draft, this overcooked and yet half-baked fiasco will come to the Planning Commission in about a week's time. The Wetlands Section Public Hearing is a week from Tuesday, on March 6, at 8:45 a.m. in the Grange Building, Friday Harbor.

Do a majority of the Planning Commissioners have the good sense to see this thing for what it is? I guess we'll find out soon enough. Bring plenty of lipstick. Even Ecology thinks we need it.

From: Hruby, Tom (ECY) 
Sent: Monday, January 23, 2012 9:57 AM
To: Stockdale, Erik (ECY); McMillan, Andy (ECY)
Cc: Anderson, Paul S. (ECY); Stanley, Stephen (ECY)
Subject: the RE: SJC buffer calculator

Erik and others,
I would like to focus our response bringing the discussion back to basics, and away from the details that everyone seems to be getting “hung-up” on. 
1.      We need to admit that the science is not perfect and without detailed surveys and monitoring of the Islands we will never come up with absolute numbers for buffers in the county.  There are just too many factors involved in trying to “model” the conditions around a wetland. I remember during the WFAM process we tried to model the input of pollutants into a wetland from the surrounding landscape and came up with 27 variables.
2.      Thus, most environmental decisions must be made under uncertain, sometimes extremely uncertain, conditions when it comes to the science.  The regulated community often seizes on this pervasive uncertainty to argue that decisions should wait until  “good science” provides conclusive evidence of harm (Tarlock, 1994).
3.      The laws (and their enforcement) recognize this issue of scientific uncertainty and have resolved it by substituting the concept of “risk” for “cause and effect” proof. (Tarlock, 1994, Ruckleshaus, 1984)
4.      Courts have widely endorsed the argument that a characterization of risk must err on the side of preventing loss by incorporating a wide margin of safety.  This has been carried over from laws about toxic substances to protecting biodiversity.
5.      The science is firm on the general facts that buffers can protect the use of wetlands by wetland dependent wildlife and protect the water quality in a wetland.  Buffers will not protect the hydrologic functions performed by wetlands.
6.      Discussion on buffers therefore need to focus on what is needed to protect the water quality of wetlands and what is needed to protect the wildlife using the wetland.
7.      The science is also clear that impacts to wetland functions from surrounding land uses are highly variable.  It is not a “on” or “off” switch.  From and ecological perspective impacts can range from a slight change in populations to the complete extermination of a population.  Or, from a slight change in water quality to a complete change in the ecosystem that results from toxics or eutrophication.  
8.      SOCIETY MUST MAKE THE DECISION ABOUT THE LEVEL OF CHANGE IN FUNCTIONS THAT IS ACCEPTABLE.  Almost any change in land use will have some impact on the wetland ecosystem.  The science is quite clear that buffers would have to be over 300 ft and sometimes 600ft to protect the water quality of a wetland completely from surface runoff (no pollutants getting into the wetlands from surface runoff).  This however is still not fully protective because pollutants can get into a wetland from groundwater or the air.
9.      Because we do not have site specific information we can rely on to establish buffers, we, as a society, need to first make a decision on the level of risk to wetland functions we are willing to accept.  This has not been yet done in San Juan County. For example, we do not know what is the minimum buffer size that is needed to maintain a reproductive population of amphibians in a pond.  We do know they move through large areas of uplands, sometimes more than 600 ft.  What is the impact of reducing that range to 300 ft or 50 ft?  At which point will the population in that pond become extinct?  We can use the scientific information to predict that a buffer of 50ft will increase the risk that the population will become extinct, but cannot predict exactly what will happen without detailed monitoring. 
10.   Once we know what level of risk to wetland functions the county is willing to accept, we can start identifying the factors that increase and decrease the risk. 
11.   If the county wants to develop a site specific approach I would suggest simplifying Paul’s spreadsheet model and keep it qualitative.  I can work on this if you are interested.  This would be a decision matrix/tree identifying the relative risk of land uses in different geomorphic settings and then setting a buffer based on the level of risk acceptable for that site.

From: Stockdale, Erik (ECY)
Sent: Monday, January 23, 2012 9:03 AM
To: Hruby, Tom (ECY); McMillan, Andy (ECY)
Cc: Anderson, Paul S. (ECY); Stanley, Stephen (ECY)
Subject: FW: SJC buffer calculator

I will send you the buffer calculator and rationale when the County puts it out for review today or tomorrow. Paul likely tweaked it overnight so the version he sent

Several recurring themes have emerged from Kilduff and Belluomini regarding Paul’s work:
-        Buffer science regarding habitat isn’t science
-        You have to study water flow processes and contaminant loading in San Juan County before you formulate regulations
-        San Juan County is different (where have we heard this before?); not part of Puget Sound, etc. etc

At some point in the near future I would like to debunk some of these arguments in a letter to the Council. This is important given that a likely appeal to the Growth Board will be a record review.

Do you have a suggested response? I do but am interested in your thoughts. Thanks, Erik

From: Ed Kilduff []
Sent: Sunday, January 22, 2012 6:25 PM
To: Paul Adamus
Cc: Shireene Hale; Hruby, Tom (ECY); Scott Rozenbaum; Dan Nickel; Janice Biletnikoff; Rachel Dietzman; Stockdale, Erik (ECY); Anderson, Paul S. (ECY); Belluomini Steve; Janet Alderton
Subject: Re: SJC buffer calculator

Hi All,

I have no comments on the spreadsheet.  I understand the amount of effort that has gone into this model.  I am disappointed that a more rational and scientific approach could not be achieved based on local data and an acknowledgment of the efficacy of existing laws and regulations.  I support this model going forward for review, but I do not support this model as science, for the reasons I have already mentioned many times before.

In the end, the development of a scientific algorithm can only be as rational as its inputs, methodology, calibration to reality, and validity of the theory on which it is based.  I am disappointed that the inputs bear an unknown relationship to the effect they are trying to achieve.  I am disappointed that people's fears and personal views of ubiquitous unnamed toxins and inevitable overpopulation are driving the algorithm, rather than calibration and testable theory.

It's a policy based scheme based on the group's majority perceptions.

Thanks, Ed K.
Ed Kilduff
Mobile: 360-472-0076

On Jan 22, 2012, at 1:35 PM, Paul Adamus wrote:

With regard to the buffer calculator, I've been anticipating questions like, "What combinations of lawn, impervious pavement, slope, etc." will cause me to have a buffer of XX feet?" One could play with the calculator endlessly to come up with all the possibilities, but there's a simpler and assuredly more complete way. With the help of a colleague who knows VisualBasic better than I, we now have an Excel macro that will spit out all combinations that result in a score of [insert whatever number you want, 1 to 20]. And we already know from Table C what scores corresponds to what buffer widths.

Also, instead of specifying an exact width, you can ask the macro to list all combinations of conditions that could result in a buffer of LESS THAN (or greater than) XX feet. However, if you ask for too much (like all combinations resulting in buffers larger than 40 feet), the number of combos exceeds 1 million and Excel runs out of rows. The bigger the request, the longer it takes to run (like hours instead of minutes). The macro generates output has columns headed A, B, C...I that correspond in sequence to the yellow data entry boxes in the calculator. Column J contains the score computed from those. As always, you can sort the output in ascending or descending order by any variable. If we end up changing our buffer formula (hopefully not at this late stage) it won't be hard for me to change this macro accordingly.

To run the macro, you open the file in Excel2007 or later, click on "Enable This Content" where prompted, then View>Macros>ViewMacros>Run. Currently it's set to run all combinations resulting in a score of less than 3. If you want to try something else, clear the last output, then click on StepInto instead of Run, go about halfway down in the script to the "If res" statement and insert whatever score or score range you want, close it, say yes to Stop Debugger, then Run again.

This isn't something anybody can use, but if you have a basic understanding of Excel (and a reasonably fast computer), it isn't too hard.



Myth: The CAOs Scientifically Address Ecological Risk

One of the most difficult concepts for many people to grasp is the concept of environmental risk.  For an excellent quick read about environmental risk, peruse this speech given by Ruckelshaus in 1984 at Princeton. Risk is a calculation, and I mean that literally, not figuratively. Risk is an actual number.  Risk is a quantitative measure of the probability of something occurring. For example, you may have a one-in-a-million chance of getting cancer if you are exposed to a certain chemical. Or, there may be a de minimis ecological risk if the hazard index is less than 1.

If your eyes are already starting to glaze over, I suppose I have made my point. Risk is complicated stuff; it is mathematical, probabilistic, and very very scientific. If you don't have a number, you ain't talking risk. You may be talking about someone's perception of risk or fear of the unknown, but you're not talking risk unless you're talking numbers.

When the Council, County staff, and the consultants say that they have developed high, medium, or low-risk scenarios for wetlands and the CAOs, don't buy it. They didn't run the numbers.  In fact, they refused to run the numbers. They can't tell you what quantitative risk level is associated with their high, medium, or low scenarios. Without that, they can't tell you how much risk reduction you get per foot of buffer.

Are you following?  They don't know what risk is present in the environment in the first place because they didn't run the numbers. They can't tell you how much risk reduction the proposed buffers will buy because they didn't run the numbers. This isn't science. The buffer calculator that they have developed is akin to levers that are not connected to anything.  It's all guesswork.

The mantra that you will hear, especially from some members of the Council, is that our current buffers and wetland rules are not based on science, but our shiny new proposed rules are.  Rubbish. Despite spending a bundle on our new rules, they are not based on science either, and they are certainly not based on risk. They are based upon the policy opinions and assumptions of a select few, and in fact, many involved in the development of the new CAOs frequently advocate for eliminating nearly all "risk" no matter how small.

As Ruckelshaus points out in his speech, the ultimate goal of having a rational conversation about risk is to get people to understand the difference between living in a safe world and a risk-free world.  I don't think the proponents of the new CAO rules, including the Council and staff, understand that yet.

Saturday, February 25, 2012

Myth: We Have a Water Quality Problem

This will be the first of several posts to address some of the apparent myths used as justification for strict new County regulations. One of these apparent myths is the belief that we have a generalized water quality problem and the CAOs and SMP must address it now. However, as the article below from the Island Guardian suggests, we do not have such a problem.  Even if we did, the CAOs/SMP would not be the primary way of fixing that problem.  That is the purpose of the Clean Water Act (CWA).

Another associated apparent myth to be addressed in subsequent posts relates to the water quality data already available for the County. The general public is largely unaware that the CWA requires the collection and reporting of data so that all waters in the U.S. can achieve the CWA goal of being fishable and swimmable. As a result, the State and Federal governments issue biennial water quality reports, including for the San Juans, that identify impaired waterways, if any.  In the event of impairment, the government prepares plans to bring impaired waters up to fishable/swimmable standards. These requirements already exist and will continue to exist regardless of the outcome on the CAOs or SMP.

San Juan County has lost out on over a quarter million dollar grant from the Clean Water Fund because -yup, you guessed it- as the Washington Department of Ecology (Ecology) has in the past stated, the waters in the county are “pristine.”

Ecology’s water quality specialists “evaluated and scored all project proposals,” and the County got beat out by other jurisdictions that had water pollution problems that needed to be addressed.

The County has applied for, and received, funding in the past from Ecology for use as low interest loans made to property owners to repair or replace septic systems that had the potential to pollute the waters, and in particular waters containing aquaculture projects.

The analysis by Ecology of the applications for funding was based on the awarding of points for various categories. For example up to a 150 points could be awarded if a “ project directly and measurably addresses a water quality problem.” The County was awarded exactly “0” points on that one, because there are no known water quality problems directly related to failing septic systems near or on the shoreline; if there were, the SJC Health Department would already have taken action.

Any historical problems with the downgrading of commercial shellfish growing areas due to pollution have been resolved by the County. There are, for example, no closed shellfish areas, and have not been any closures due to past aggressive actions by the Health Department for the last twenty plus yeas to inspect and enforce the repair or replacement of systems that had the potential to cause water pollution.

In a letter to the County, Kelly Susewind, the Water Quality Program Manager for Ecology, stated she appreciated the County’s “interest in and efforts toward water quality improvements and protection” and “hope you will considered future Ecology funding opportunities.”

All we need now is a problem to solve.