Friday, August 31, 2012

Countdown To CAOmageddon: Flaw #28 - Cray Risk (Summary)

This "series within a series" has made an effort to explain the following points:
  1. Management of ecological risk is the way we protect the environment.
  2. The term "risk" as used by the County, Ecology, and the Friends does not conform to the customary definition of "ecological risk." They've made up their own definition, and they keep changing it.
  3. There is a difference between a "safe" environment and a "zero risk" environment. Our goal is, or should be, to maintain a safe environment.
  4. A risk evaluation involves a conceptualization of receptors, stressors, linkages between the two, and an effect transmitted by the linkages ... at a potency significant enough to have an effect on the receptor population.
  5. The County may have mapped locations that identify populations of receptors, but they have not quantified site-specific stressors, identified the magnitude of their effects, or conceptualized the pathways by which the stressors are supposed to be affecting the receptors.
  6. It is impossible to identify mitigation measures without the information required in #5.
  7. Buffers are a presumptive mitigation that are believed to attenuate the effects of stressors, but there is no proof that county-originating stressors exist on a county-wide scale, so there is no proof that county-wide mitigation is needed. Even if needed on specific sites, there is no proof that buffers are capable of breaking complete or potentially complete pathways for all exposure routes within a given exposure scenario. It is more likely that stressors do not exist in the first place at levels above de minimis. The assumptions used to design our buffers are not based on accepted fate and transport science and ignore pollutant characteristics (e.g., solubility coefficients, partition coefficients). They are based on generalized flow methods, which were not designed for general application as pollutant fate and transport models.
  8. There is ample data to suggest that the exposure scenario for our marine environment is affected primarily by exposure routes originating from Canada. Our marine environment is oceanographically distinct from Puget Sound.
  9. Because of #8 and because site-specific stressors have not been identified in this county, we cannot borrow solutions from other locales in the Puget Sound region, especially urban areas. There is simply no evidence that our exposure scenario is the same as that found in other places.
  10. The "professionals" and "regulatory experts" who have been advising the County have a poor to non-existent understanding of "risk," as demonstrated by their written submittals to the County. "Risk," "error," "uncertainty," "level of concern," and "unknown" are all different concepts, but the "experts" have regularly confused the meanings of those words in their advice to the County.
  11. There is a large body of literature from the EPA, from the National Research Council, and from the National Academies on risk and scientific uncertainty. The "experts" advice regarding BAS is inconsistent with this body of literature. It is inconsistent with science.
We could go on, but those are the main summary points about risk. To use a modern term, our County's ideas about risk are cray cray.

Next up, we'll describe what the National Academies have to say about functions and values.

Thursday, August 30, 2012

Countdown To CAOmageddon: Flaw #27 - Assume a Can Opener

We're almost done with this mini-series about risk. We could go on forever, but the Trojan Heron wants to move on to another mini-series about functions and values. However, before we leave (for the moment) the topic of ecological risk, we feel the need to give some examples of how strong the anti-data, pro-assumption contingent is among the CAO crowd. In the past, we have characterized this view as the "assume a can opener" mentality. It's intimately related to ecological risk because we cannot characterize risk without credible data. It's the be-all end-all, and there is no way around it.

The anti-data contingent includes Ecology. In the last post, we saw Tom Hruby wanting to apply the standards of "beyond a reasonable doubt," "clear and convincing proof," and "preponderance of evidence," not to site-specific data, but to receptors and buffer sizes. Huh? "Beyond a reasonable doubt" buffer sizes? That's like applying the "beyond a reasonable doubt" standard to the jail sentence or victim instead of the evidence for someone's possible guilt. Hruby hasn't a care in the world about source data or data quality, instead he just wants to ensure that our punishments conform to Ecology's subjective standards.

For the last Council meeting, Dr. Adamus discussed the possibility of collecting monitoring data in one of his submittal documents:
For wetlands categorized as Moderate or High Importance, require monitoring of amphibian dispersal movements by a professional herpetologist (amphibian expert) to determine site-specifically which upland areas are being used most of the year, prior to final determination of buffer width and permit issuance. This would be an expensive endeavor.
Professional herpetologist? Goodness. One can only conclude that Dr. Adamus is also part of the anti-data crowd. He never misses a chance to make monitoring and data collection seem arcane and impractical (except when he does it). I don't think he's ever even mentioned the state's credible data policy. He also probably isn't aware of the relatively simple data collection requirements even for industrial facilities regarding stormwater (i.e., five basic water quality constituents). Why would homes need more stringent monitoring requirements than a factory?

Lovel has steadfastly knocked down every idea related to data collection or monitoring too. She's one of the go-to anti-data stalwarts, but the apex predator against data is Shireene. She kills and eats every suggestion regarding hard data collection. Here's what she said about monitoring in the last Council meeting.
So...uh...if you're still interested in pursuing this option [monitoring and data collection] ... I know how expensive it is to run some of those tests (pause) and how difficult it is to make sense of the information you gather. If you find something does that mean it's (pause) well you have to figure out where it came from (pause) and is it too much? A simpler approach if you wanted to support some monitoring, you know (pause) most of this (pause) I think if we did (pause) if we set up a system where we did an inspection once every 5 years, that would probably give a pretty good idea if they're doing what they agreed to ...ummm...we could take a look at the roofing material and make sure the roofing material hasn't changed and it's not of a type that will give off contaminants, take a look at the yard and if the yard looks like it has herbicide applied to it, and that's probably gonna' be pretty big things you know, the driveway, we can look at the driveway and make sure run-off from the drive-way is being handled properly, that...ummm...runoff from foundations and curtain drains is being re-infiltrated. Most of this stuff I think we can look at, (pause) and that would be a whole lot easier and cheaper than tryin' to find it in the water!
In short, it's a "whole lot easier" for the County to prosecute us on circumstantial evidence using "observational data" they can "interpret" using "experts" than it is to actually get hard quantitative evidence, especially since the hard data would likely exonerate us and contradict the "expert observations." Data schmeta, simply let the eco-Puritanical behavior police come over and just take a look. They'll probably bring the Friends, and maybe Dr. Adamus can bring a State herpetologist, too.

In the end, it's about regulating and inspecting our behavior using "experts," not about quantitative risk to the environment.

Tuesday, August 28, 2012

Countdown To CAOmageddon: Flaw #26 - Professional Error

One of the boldest examples of regulatory ignorance that I've ever seen appeared in our County on February 4, 2011. That is the date of a letter, sent out under Erik Stockdale's signature, that contains an explanation of "risk" by Dr. Tom Hruby. The explanation is, quite simply, wrong.

In short, Dr. Hruby says that "risk" is related to uncertainty surrounding poor decision making. He goes on to equate levels of "risk" to the legal concepts of "beyond a reasonable doubt," "clear and convincing proof," and a "preponderance of evidence." Wow! That is such confused testimony about the meaning of "risk" that it brings to mind that book Disorder In The Court which recounts actual exchanges between lawyers and witnesses in court.
Attorney: She had three children, right?
Witness: Yes.
Attorney: How many were boys?
Witness: None.
Attorney: Were there any girls?
Witness: Your Honor, I think I need a different Attorney. Can I get a new Attorney?
Likewise, I think we need a different risk expert. Can we can get a new risk expert? Dr. Hruby is describing "error" not "risk," and they are as different from one another as boys are from girls.

So what is "error" anyway? Error is when we reach a conclusion different from something's true value, and the probability of drawing the wrong conclusion is uncertainty (i.e., range of uncertainty and confidence intervals).  Think of it with respect to fire alarms. We want a fire alarm to go off when there is a fire, but stay quiet when there isn't a fire. However, if the alarm goes off when there is no fire, that's a false alarm ... and that's bad. In the language of "error," false alarms are called "Type 1" errors aka "false positives." The opposite kind of error occurs if the alarm stays quiet when there really is a fire. That's a failed alarm, and that's bad too. Failed alarms are called "Type 2" errors or "false negatives." In science, as with fire alarms, we want to limit uncertainty by controlling the probability of Type 1 and Type 2 errors. Neither uncertainty nor error is risk.

Hruby has mistaken "risk" for the probability of "failed/false alarms." Why should we care? We care because his deeply flawed reasoning about "risk" has found its way verbatim into our CAOs. Here's an excerpt from our proposed wetland CAO.
The approach to sizing wetland buffers taken in this ordinance is intended to be a medium risk alternative based on the premise that there is clear and convincing proof, and a high probability that the buffers will protect wetland and associated fish and wildlife habitat conservation area functions and values. The standard for evidence needed to meet this criterion is less than that needed for “beyond a reasonable doubt,” but higher than that needed for a “preponderance of the evidence.” The probability that the buffers will not be adequate is relatively low; between 5% and 50%.
Ack! Wrong, wrong, wrong. No, no, no! Just this one paragraph has so many holes in it that pages and pages of technical criticism could be written on this alone. Suffice to say, though, that Hurby's explanation has nothing to do with ecological risk. Furthermore, the eco-hypochondriacs out there are not interested in controlling for the uncertainty of false positives. They are more than willing to accept an unlimited number of false positives to avoid any probability of a false negative. That's not risk management. That's just uncontrolled (Type 1) error. That's a failure to manage uncertainty.

All this talk of "error" reminds me of another passage from Disorder In The Court:
Attorney: Doctor, before you performed the autopsy, did you check for a pulse?
Witness: No.
Attorney: Did you check for blood pressure?
Witness: No.
Attorney: Did you check for breathing?
Witness: No.
Attorney: So, then it is possible that the patient was alive when you began the autopsy?
Witness: No .
Attorney: How can you be so sure, Doctor?
Witness: Because his brain was sitting on my desk in a jar.
Attorney: I see, but could the patient have still been alive, nevertheless?
Witness: Yes, it is possible that he could have been alive and practicing law.
Other possible occupations might include working for Ecology or drafting our County's CAOs.

Monday, August 27, 2012

Countdown To CAOmageddon: Flaw #25 - Bad Advice on Risk

Woody Allen is reported to have once said:
What if everything is an illusion and nothing exists? In that case, I definitely overpaid for my carpet.
That's the quotation that came to mind when I read Jim Slocomb's article in the Island Guardian. Slocomb says he's speaking for himself, not the organizations he represents. He a long-time member of the Marine Resources Committee, formerly listed as a staff member of the Friends, and is working on the Town's SMP update. Despite not overtly referring to those organizations, he does implore the Council not to get "distracted by all the noise at street level." Take note of that folks. We're just "noise at street level," with the implication being that Jim Slocomb and all the high-and-mighty organizations he "participates in or works for" tower far above the noisy din caused by us street urchins.

From the great heights, Slocomb advises us to come to "grips with the balance between risk and reward," so let's examine his request from the standpoint of ecological risk. Like most people, I think Slocomb is terribly confused about ecological risk.

When we are sick, then taking medicine makes sense. It lowers our risk of continued illness and disease progression. Does it make sense to take medicine if we are well? Only if we are hypochondriacs, but for sane people, no. It makes no sense because we receive no disease-related risk-reduction benefit, and if we were to continue to take medicine, we would be accepting the risk of potential treatment side effects for no reason.

Eco-hypochondriacs are no different. They aren't really interested in the reality of risk and reward any more than health-centric hypochondriacs are. They lack the capacity to rationally comprehend their own risky behavior. If our ecological risk is already at de minimis levels, then it is not possible to lower risk below that, no matter what further "protections" are enacted. In that situation, when we try to do more, all we get are side effects and unintended consequences, the potential for which tends to increase risk.

Paraphrasing Woody Allen, when all risk is an illusion and it doesn't really exist, then we have definitely overpaid for "protection." Eco-hypochondriacs have "personal belief that our environment and therefore our way of life is dying the death of a thousand cuts" but little evidence originating from here to support their bad advice. It must be something about the grant-funded rarefied air they breathe.

That's what we believe down here at street level anyway.

Sunday, August 26, 2012

Countdown To CAOmageddon: Flaw #24 - Borrowed Risk

Way back in Flaw #8, we mentioned that the County had simply assumed that a particular list of pollutant sources were present in the county. In fact, they borrowed results from somewhere else. Here's the excerpt from the Wetlands CAO again.
As discussed in the BAS Synthesis, runoff from areas influenced by human development is well characterized (National Research Council, 2008) and is often contaminated with an array of pollutants, including: those from lawn and garden chemicals (containing both active ingredients and surfactants that can negatively affect aquatic species); building materials including pressure treated lumber (containing copper chromated arsenate), zinc and copper impregnated shingles and roofing strips, and roofing materials containing phthalates (plastic gutters and downspouts, roofing felt, roof membranes); fertilizers; rodent poisons; termite spray and other insecticides; moss control products; deicers; contaminants associated with automobiles, including oil, antifreeze, rubber and metals from the wear of tires, brakes and other parts; and sediment from dirt and gravel driveways. Many of these contaminants are directly associated with the choices and practices of the property owner and are difficult or impossible to regulate. If they are allowed to enter surface water bodies, these pollutants can contaminate and become concentrated in the food web, negatively affecting aquatic habitats and species.
As they say, based on information from the "National Research Council," runoff is contaminated. That analysis wasn't done here in our islands. It's a general study, and the County has used it to let their imaginations run wild about possibilities here.

Let's suppose you have a friend who doesn't take very good care of herself. She drinks, smokes, does drugs, and is overweight. You, on the other hand, are fit. You exercise, eat right, and take vitamins. So imagine your friend becomes ill and goes to the doctor for a diagnosis. How applicable is that diagnosis (or the treatment) to you?

That's what our "Best Available Science" has done. It has borrowed a list of pollutants (stressors) found elsewhere, borrowed buffer sizes from elsewhere, borrowed transport processes and pathways, and borrowed exposure scenarios from elsewhere. The borrowed problems and solutions of our unfit urban neighbors have been applied to us, despite their situation being fundamentally different from ours. If you have seen the Hyde talk, for example, you have learned that our marine waters are exchanged on a frequent and regular basis, but it takes weeks for that to happen in lower Puget Sound. And the differences don't stop there. We cannot borrow someplace else's risk situation anymore than we can borrow someone else's diagnosis or health risk factors.

After all this borrowing, the County then tells us that they've developed a "site-specific" CAO process for us. That's politician's logic for ya. Borrowing has become such a way of life here, we don't even recognize when we do it anymore. Maybe, in addition to the pledge of allegiance, every Council meeting should begin with a recitation of Polonious' advice to Laertes, especially the bit about "neither a borrower nor a lender be."

Saturday, August 25, 2012

Countdown To CAOmageddon: Flaw #23 - Exposure Miscalculation

As mentioned in the previous post, a significant factor related to "ecological risk" is the exposure pathway of stressors to receptors, which are conceptualized as "exposure scenarios."

Exposure scenarios consist of a qualitative description of exposure routes:  how various ecological components co-occur with or contact stressors. Exposure scenarios describe how an exposure may take place, including exposure setting, stressor characteristics, and activities that may lead to exposure.

Listen to Dr. David Hyde describe our marine ecosystem in these islands, and ask yourself whether the exposure scenario for our marine environment is dominated by exposure routes related to San Juan County, or by those from elsewhere.

Countdown To CAOmageddon: Flaw #22 - Risk for Dummies

This post kicks off a "series within a series" where the Trojan Heron will talk about ecological risk, since no one with any position of authority (including Ecology) seems to have a clue about the fundamentals of risk. Why is that important? Because reducing ecological risk is the way we protect the environment. We can't protect critical areas if we have no understanding of how risk works.

Part of the deception game around here is to use the word "risk" when actually talking about something else. It's called equivocation when a word undergoes a semantic shift such that its usage differs from its customary meaning. For example, do "women" have to worry about "man-eating" sharks? In that question, the phrase "man-eating" implies male members of the species Homo sapiens when customary usage of the phase "man-eating" implies the entire species Homo sapiens.

In the same way, "risk" is almost never used properly in the CAO debate. Most often, it has been used as a synonym for "uncertainty," "level of concern," or "error." None of those are "risk." Let me tell you about the customary scientific meaning of risk, and coming posts will delve into this some more.

Simply put, "risk" arises from the following situation:
  1. Receptors (e.g., salmon)
  2. Stressors (e.g., insecticide)
  3. A pathway between stressor and receptor (e.g., runoff)
  4. An effect/stress transmitted along the pathway (e.g., a concentration of insecticide in runoff that reaches the salmon in a sufficient dose to have a deleterious effect).
Risk is the quantifiable measurement of the effect of the stressor on the receptor population, such as a "1 in a million additional death rate" in a target population, and risk-based strategies can be employed in many types of situations. However, no matter how you may use risk, if you remove any one of the four elements above, there is no risk. No receptor, no risk. No stressor, no risk. No complete or potentially complete pathway, no risk. No transmitted effect, no risk.

A key point is that "risk" concerns itself with linkages/pathways. It's not just about mapping receptors (e.g., mapping all near-shore salmon locations). It's not about just mapping stressors (e.g., types of chemicals or types of development). It's about conceptualizing linkages between stressors and receptors and then quantifying the effect, if any. If there is an effect, the challenge then becomes identifying safe levels of effects and instituting mitigations (protective measures) to ensure that stress never goes above safe levels. And by the way, "safe" doesn't mean "none." It's not necessary to ban activities to achieve "safe." Read the Ruckelshaus speech where he says,
I suppose that the ultimate goal of this effort is to get Americans to understand the difference between a safe world and a zero-risk world.
During the CAO process, we've seen all sorts of maps. We've seen maps of habitat, wetlands, streams, and locations of fish. But we've seen no reasonable attempt to link receptors to potential stressors located here, and we've seen no reasonable effort to examine whether our activities add to or subtract from the baseline ecological risk that exists in the general environment.

That last point is also key, and I find it particularly relevant to frequent references to the endangered status of various species of salmon that visit our shores.  When a species is listed as endangered, especially if it is a widespread migratory species like salmon, that suggests that there is high ecological baseline risk for the population viability of that species in the general environment (otherwise why is it endangered?). We have to ask ourselves whether we are net contributors to that high baseline ecological risk or net subtractors. Are we causing stress above baseline or are we mitigating the baseline risk? From all the evidence presented, the San Juan Islands appear to be mitigating the high baseline ecological risk for salmon. We are a refuge for them, not a stressor.

In that case, the development policies of our islands could reasonably be concluded to be "safe." However, if you listen to some people, they want the mere presence of salmon here to lead to greater development restrictions because they think salmon abundance makes the situation "risky" or "critical" here. No, they've got it backwards. When people say such things, even if they may use the word "risk," they are not thinking in risk-based terms. The salmon are here in relative abundance because our ecosystem situation is less risky for them.

More to come about risk ...

Thursday, August 23, 2012

Countdown To CAOmageddon: Flaw #21 - Our Spectacular Habitat

If you follow this link, you'll be taken to a video of testimony before the County Council on July 23, 2012. Go to time marker 4:58 to see Barbara Rosenkotter, Salmon Recovery Lead for San Juan County, and Mindy Rowse, NOAA Fisheries Biologist, testify about our fisheries habitat.

You will hear that we have lots of biodiversity and plenty of abundance in our near-shore waters. Is that the sort of evidence that supports the view that our ecosystem is suffering from a lack of protection? Is that the evidence that tells us we need to revise something, or that the current practices of our homeowners are failing to protect functions and values?

Our County Council seems flummoxed by what it means to "protect" a critical area or even what it means to "consider" portions of the county for critical area protection. It's almost as if some of them cannot believe that we really have been protecting our critical areas all along. In the video, you see the Council challenged by basic ecological terms and concepts, like not being able to distinguish between ecosystem "alteration" and de minimis ecological impacts, or finding it difficult to accept that development alterations here have had only de minimis effects on our primary ecological associations and our overall ecosystem health. Lovel, in particular, struggles with ecological concepts in the video; conflating, for example, the density of shoreline parcels with de manifestis ecological risk.

As the video illustrates, one of the things that confuses our Council more than anything else is the use of maps. Whenever our Council is shown maps of critters, wetlands, and habitat, they become mesmerized by the amount of nature out there. Let's face it, nature is everywhere here, even in "developed" areas. If we're going to designate critical areas based on nature, then everywhere here is critical. We don't need more maps of nature to tell us that. However, the map we really need is a map of the ecological risk posed by development, not more maps of nature alone. Protection should be a matter of managing our map of ecological risk, rather than ramming through human-ecosystem apartheid everywhere.

Watch the video. At 5:10, you will hear Patty Miller ask, "What are we doing wrong?" I'll tell you what you're doing wrong. You're asking the wrong question. You should be asking, "Where are the areas of excess ecological risk, if any?" Show me a map of that, or at least a map showing some numerical index related to "level of ecological concern." Don't tell me where the chinook are. Don't tell me where habitat is. And please don't tell me how big you think buffers ought to be. Tell me where development here is creating unacceptably high ecological risk to the viability of populations living in our habitats.

You'll hear Rosenkotter say that we have intact habitat. Mindy Rowse sums up our whole situation nicely at 5:28:30 by saying:
 Habitat in San Juan County is pretty spectacular. I don't think anyone is doing anything wrong at this point.
Out of the mouths of babes and federal fisheries biologists!

Wednesday, August 22, 2012

Countdown To CAOmageddon: Flaw #20 - Politician's Syllogism

At the combined hearing for Wetland and Fish & Wildlife CAOs this past Tuesday, Councilman Howie Rosenfeld said that he didn't have sympathy for citizens who previously had asked for a site-specific buffer procedure but who now complain that the latest County buffer method is too complicated. Forgive me, but if the County had ever developed a site-specific buffer procedure, maybe there would be less need to complain. As it is, we've seen neither hide nor hair of a site-specific method.

Howie is suffering from politician's logic.
The first buffer proposal developed by the County was one-size-fits-all.
The current proposal is not the first proposal.
Therefore, the current proposal must be site-specific.
Other examples of this mode of thinking include:
Something must be done. This is something. Therefore, we must do it.
All cats have four legs. My dog has four legs. Therefore, my dog is a cat
The truth is that neither the first nor the second County proposal involved any evaluation of site-specific factors related to risk, particularly evaluation of the concentrations of presumed site-specific "contaminants." Without that, no mitigation, regardless of the label "site specific," can be considered to have been tailored to a site-specific source. It is the identification of actual on-site sources and quantification of on-site contaminant concentrations that allows for site-specific mitigation. The County has consistently rejected pleas for such an approach, insisting instead that we rely on baseless generalized assumptions about the presence of contamination on each inhabited parcel, at de manifestis levels that require presumptive and pointlessly-complex mitigation.

The County first proposed that we should all wear the same thick coat of armor. Now, they're proposing that we should each wear our own clown costume with its own special size and shape, which they insist is really a custom-tailored suit. However, being different from one another doesn't imply being tailored to our situation, but that point is apparently lost on Howie and probably others too. Howie's comments only serve to spotlight how our misguided County proves the Anna Karenina principle: there are many ways to get it wrong, but only one elusive way to get it right.

A proper site-specific approach still eludes our County, and maybe our readers can point that out to Howie if they see him around Town. Using politician's logic, maybe he's over at the Friday Harbor dog park playing fetch with his cat.

Tuesday, August 21, 2012

Countdown To CAOmageddon: Flaw #19 - Frankenscience

Via the CAO process, many of us have become familiar with the word "BAS," and not just because it is the Irish word for "death" and "demise" either. However fitting that coincidence may be, BAS is more widely known in our locale as the acronym that stands for "Best Available Science," which is a CAO requirement per RCW 36.70A.172 and WAC 365-195-915.

Since our County staff had a hard time digesting the thousands of pages of information submitted as BAS, we hired Dr. Paul Adamus to "synthesize" it. Billed as a professor from Oregon State University, in reality he is a "courtesy appointment" which is a term of art for someone with only the loosest of affiliations to the university ... so loose he's never been paid by the university for being a professor, has no research responsibilities, and has never taught a class. That's loose.

That's not the only thing that's loose. In his resume, Dr. Adamus lists pages and pages of "publications," but many of these are simply client deliverables, not academic publications in peer-reviewed journals. "Wetlands Ordinance, Inventory, and Access Analysis.  Town of Kennebunk, Maine" is a typical example.

Dr. Adamus is our County's go-to guy for CAO science. Have a question about wetlands? Let's ask Dr. Adamus. Pollution? Let's ask Dr. Adamus. Risk? Yep, you got it, let's ask Dr. Adamus. Whatever Dr. Adamus says, it must be true. That's the attitude of County staff and the Council.

This is how we ended up with a stormwater flow methdology, the Rational Method, as the basis for our "site specific approach" for wetland buffers. Conceptualized by Shireene Hale, this approach was adopted by Dr. Adamus who perfected it into our buffer calculator. Hale and Adamus both believe it is a predictor of general pollution, even though that it isn't. It estimates stormwater volume.

Another novel and innovative approach taken by the team of Hale and Adamus (and vigorously supported by Janet Alderton of the Friends) is the notion that native vegetation is better at pollutant removal than other types of vegetation. The origin for this claim comes from the TR-55 manual, which like the Rational Method, has nothing to do with pollutant concentrations. It is a technical document about stormwater volume. One of the tables in TR-55 suggests that lawns with bare spots have higher runoff volume than lawns without bare spots. In other words, it shows that bare earth isn't very good at controlling runoff, so the more bare earth there is, the higher the runoff.

Nevertheless, that basic fact (bare earth equals higher runoff) was transmogrified by the technical committee on buffers into something entirely different. Somehow that initial fact about runoff volume was innovatively interpreted to mean that lawns are not as good as other vegetation at controlling pollution. Then, that was further "interpreted" to arrive at the result that native vegetation is best overall. Once there, only a bit more innovation was needed to conclude that buffers must consist of only undisturbed native vegetation.

All that from a table entry in a technical manual that suggests only that we might expect higher runoff from a patchy lawn versus an un-patchy one, and despite the salient fact that, in reality, grasses are some of the best types of vegetation for attenuating particular types of constituents, especially nitrogen.

Of course, if the Council has any questions about the validity or the applicability of the conclusions drawn from BAS, they can always consult with a scientist. Who would they ask? Oh, that's right, they would ask Dr. Adamus.

Asking Dr. Adamus if the methods he and Shireene cobbled together are valid and applicable is a bit like asking Dr. Frankenstein if his monster is pretty, don't you think?

Monday, August 20, 2012

Countdown To CAOmageddon: Flaw #18 - No Beginning

The father of Geology, James Hutton, had an expression for describing "deep time." Speaking from his 18th century perspective, he said the earth had "No vestige of a beginning, no prospect of an end." Today, thanks to the Borde-Guth-Vilenkin Theorem, we have a theoretical proof that the past is finite, and therefore, that the universe had to have had a beginning. We still have no proof that it will end (future infinite), but at least we have proof about a beginning.

Which brings us to today's question and answer.
Question:  How are our CAOs different from the universe?
Answer:  There is no proof that our CAOs ever had a beginning.
As alluded to in a previous post, our CAO review never had a beginning because it was never properly scoped, and we never had any public participation about the scoping. Scoping is supposed to have involved comparison of the existing CAOs to relevant plans (e.g. Land Use Element), laws, and regulations for the purpose of identifying "gaps" that need to be filled in. The "gaps" were to become the scope of the CAO update, and most importantly of all, we were supposed to have had public participation about the scope of the review. That never happened.

Instead, having come to the end of the process, the Council has had consultants and staff compare the new CAOs to the old CAOs. That's not the requirement, and that's the wrong comparison. By its nature, that is something that can only happen as a fait accompli.  You can't compare new to old CAOs until you have the "new" CAOs ready to go, can you? That's too late, and it fails to address the legal requirement for scoping, and the legal requirement to involve the public in scoping.

It's another major fail of our CAO process, which will probably be litigated. Because of the innumerable errors in process, procedure, and content, it may be that James Hutton was talking, not about the earth, but about our CAOs when he said, "No vestige of a beginning, no prospect of an end."

Sunday, August 19, 2012

Countdown To CAOmageddon: Flaw #17 - Deception Formula

Ever seen the movie Mars Attacks? One of its more memorable lines was:
Yak Yak. Don't run. We are your Friends.
That's the line repeated by the Martians as they blow earthlings to bits. It's part of a formula that should be familiar to residents of San Juan County because it has been used against us so often. It's the formula for the CAOs, and it's the formula used by the Friends.

Let's look at the deception formula in action by examining some recent articles by Janet Alderton, Board member of the Friends. Janet has deceptive editorials recently published here and here (same editorial in two places, neither of which mentions she is with the Friends). Her editorial starts out with the premise that CAO concerns are overblown. For example, here is the opening:
Some organizations have spread fear about what you will be able to do with your property under the proposed critical areas ordinance. In reality, the proposed buffers will generally be the same or smaller than current wetland buffers.
That is followed by a list of cherry-picked half-truths from the text of the CAOs, all meant to persuade us that we'll be much more free under the new restrictive CAOs than now. If you survive Janet's stream-of-consciousness prose, you arrive at the real message at the end:
Buffers should be undisturbed areas with native vegetation. But the numerous activities permitted in buffers by the proposed CAO update interfere with buffer function and fail to protect our valuable critical areas.
If you're suffering from cognitive dissonance after reading her article completely, you're not alone. Janet starts out by implying we have nothing to fear; then lauds the flexibility of the new CAOs; then she concludes by saying that the new CAOs are not strict enough. The final bit is the real message. She doesn't feel we should have any choices or freedoms under the CAOs, no matter how illusory, and she's upset at even the prospect that we might have any.

In summary, here's the three-step deceptive communication formula:
  1. Say that we have nothing to worry about.
  2. Blather on about how good we have it ... blah blah blah ... choice choice choice ... shiny object ... blah blah blah.
  3. Conclude with a threat, stating that we're getting off easy, and scold us that the prospective CAOs could be, and should be, even more restrictive than they already are.
Fundamentally, it is an incoherent message, like the CAOs themselves. And considering the entire message in context, it sounds like we have a lot to worry about.

With Friends (and CAOs) like these, who needs Martians?

Saturday, August 18, 2012

Countdown To CAOmageddon: Flaw #16 - Antithesis of Critical

If you haven't seen the comments prepared by attorney Sandy Mackie for P.J. Taggares, you can download it here. It is 11 pages of wonderfully clear thinking. Mr. Mackie dismantles the County's proposed Fish & Wildlife Habitat CAO as it relates to his client's property.

There are many big, important points made, but I think my favorite is a sublime point about the Comprehensive Plan. Mackie alludes to the fact that our proposed CAOs are in conflict with County zoning. For example, the Land Use Element to our Comprehensive Plan says the following about "rural lands."
Goal: To maintain and enhance the rural character of the County. Rural lands are intended to retain the agricultural, pastoral, forested, and natural landscape qualities of the islands while providing people with choices of living environments at lower densities or use intensities than those in Activity Centers. Rural lands also include the Special Districts, which are discussed further in Section B.2.4.
And it says the following about "resource lands" (i.e., agricultural and forestry land).
Goal: To recognize and protect the physical conditions and characteristics of agricultural and forest resource lands which are conducive to the use of such lands for long-term commercial production.
And it says the following about "conservancy land."
Goal: To protect, conserve, and manage existing natural conditions, resources, and valuable historic, scenic, educational, or scientific research areas for the benefit of existing and future generations without precluding compatible human uses. 
As you can see, the goals for our zoning include "use," "choice," even "enhancement" of our country way of life (i.e., "maintain and enhance the rural character"). Not even "conservancy land" requires restoration or a return to pre-existing conditions. It requires only protection of "existing natural conditions."

Lands have to be zoned as "natural" before preference is given to native plant and animal species.
Goal: To preserve indigenous plant and animal species and ecosystems in a natural state for the benefit of existing and future generations.
How on earth does the Land Use Element of the Comprehensive Plan square with the County's ambitions for the proposed CAOs? The answer is that they don't square, and the CAO effort is unmasked for what it really is:  an attempt to re-designate property as "natural" via the back door, taking away legally zoned uses in the process. The CAOs are a heavy-handed overlay district that obliterates the underlying zoning.

Mackie points out:
But a review of the present master program shows that none of the Taggares properties are designated natural. Rather they are urban or rural, both of which reflect active development and use, which is the antithesis of a natural or critical area.
Sometimes a couple of sentences can say so much, such as pointing out the gulf of inconsistency between our CAOs and the controlling document that is supposed to govern them, the Comprehensive Plan.

Friday, August 17, 2012

Countdown To CAOmageddon: Flaw #15 - Lack of Definition

One of the biggest flaws in the proposed CAOs relates to the County's cognitive inability to understand the distinction between "definition" and "designation." In the CAO on critical aquifer recharge, for example, the County designated the entire area of the county as an aquifer recharge area, but clearly, not everywhere in the county meets the definition of a recharge area. The County cannot turn impervious surface into a recharge area any more than it can turn water into wine. The power to "designate" is not without limitation.

This is an important point because the RCW requires that designations/classifications be based on definitions. It's a two-fer (definition + designation/classification), and it's the law. The minimum guidelines for critical areas specifically say that classification will be based on definitions.
RCW 36.70A.050 Guidelines to classify agriculture, forest, and mineral lands and critical areas.(1) Subject to the definitions provided in RCW 36.70A.030, the department shall adopt guidelines, under chapter 34.05 RCW, no later than September 1, 1990, to guide the classification of: (a) Agricultural lands; (b) forest lands; (c) mineral resource lands; and (d) critical areas.
This language is repeated elsewhere with specific emphasis on shorelines.
RCW 36.70A.480 Shorelines of the state.
(5) Shorelines of the state shall not be considered critical areas under this chapter except to the extent that specific areas located within shorelines of the state qualify for critical area designation based on the definition of critical areas provided by RCW 36.70A.030(5) and have been designated as such by a local government pursuant to RCW 36.70A.060(2).
The courts have made it clear that compliance with the minimum guidelines is the first step in evaluating the validity of County compliance with critical area and resource lands designation and protection. Continuing with shorelines as a case in point, the WAC provides a list of the types of areas that need to be considered for inclusion into a Fish & Wildlife Habitat critical area. But the Planning Commission did not do any evaluation of whether such areas in the County might actually meet the definition of a critical area, but simply copied the list into the draft code. The WAC states:
"Fish and wildlife habitat conservation" means land management for maintaining populations of species in suitable habitats within their natural geographic distribution so that the habitat available is sufficient to support viable populations over the long term and isolated subpopulations are not created. This does not mean maintaining all individuals of all species at all times, but it does mean not degrading or reducing populations or habitats so that they are no longer viable over the long term.
The Planning Commission did not consider the facts related to the definition prior to designating all shorelines as critical. That's a major fail.

You see, if a person were to designate or label without first considering the facts related to definition, then the chances of being completely wrong are quite high. For example, a person might vociferously designate/label an adversary as being the suspected author of a disliked blog comment or blog post, but if the facts don't support the definition of authorship, then the allegations are just fire-breathing nonsense. It doesn't make the alleger crazy, necessarily. It just makes him wrong at the top of his lungs.

Likewise, when a collection of straw-poll cronies on the Planning Commission decides to designate all shorelines as critical without first considering whether the shorelines meet the definition of "critical," then such baseless, prejudicial designation represents wholesale failure to comply with the minimum guidelines in the law.

We live in a community with many proponents for prejudice. Prejudice and discrimination arise from stereotyping those who do not conform to societal and cultural norms. We at the Trojan Heron embrace civic knowledge, and we feel it is our duty to challenge the sterotypes, prejudicial claims, and designations made by eco-phonies and eco-bigots, even when (or especially when) such challenges conflict with the prevailing societal and cultural norms here; since we very strongly believe that our existing community standards do not live up to the definition of a free and open society, much less a scientific one.

Almost every day, events here seem to bear that out.

Thursday, August 16, 2012

Countdown To CAOmageddon: Flaw #14 - Unsustainable

By deciding to fully plan under the GMA back in 1990, we effectively agreed to impose urban planning requirements on ourselves although we are a rural county with a rural tax base. Agreeing to fully plan was a self-inflicted wound that keeps festering. How is our meager tax base going to afford the oversized planning and enforcement infrastructure needed to keep everyone in line with all these new-fangled CAOs that are unnecessarily restrictive?

Quite simply, we can't afford it.

As if Odlin Park weren't harbinger enough of increased costs, we also have data from County Human Resources showing steady projected declines in County personnel, with no end in sight. Every year, we will have fewer and fewer County employees (with higher and higher salaries). That means ever fewer people to serve the public, issue permits, and enforce the new CAOs.

Given that the new CAOs require us to get permission for almost everything, it's a recipe for regulatory and economic gridlock. How's that for a no-growth strategy?

Wednesday, August 15, 2012

Countdown To CAOmageddon: Flaw #13 - Some Are More Equal

Do you know what a fumblerule is? It's a rule of grammar that contains an example contrary to the advice that it gives. For instance, "Don't use no double negatives" is a fumblerule. Another is "Stamp out and abolish redundancy."

Speaking of stamping out and abolishing, that's exactly what (at least) half the Council members wanted to do to an ardent supporter of the Trojan Heron, at the urging of two Friends. Over the last couple of days, one of our readers, Mike Carlson, has been the target of a County witch hunt simply because he praised the Trojan Heron's CAO commentary. Mike serves on the Planning Commission, which by the way, has concluded its deliberations of the CAOs. Nevertheless, Mike's praise of our CAO stance so incensed David Dehlendorf and Stephanie Buffum that they asked Council members Howie Rosenfeld, Lovel Pratt, and Patty Miller to have Mike censured or even removed from the Planning Commission. Simultaneously, Dehlendorf and others lobbied the Planning Commission Chair, Brian Ehrmantraut, to take the matter under serious consideration for the next Planning Commission meeting.

Apparently, those three Council members and their Friends really thought they had something. The Council members were outraged enough by Mike's behavior to ask Randy Gaylord, the Prosecuting Attorney, what could be done about Mike. That's interesting because Rosenfeld/Pratt/Miller showed no apparent outrage when Susan Dehlendorf took a straw poll (forbidden by Roberts Rules) during Planning Commission proceedings about CAO shorelines? Where was their outrage when Howie Rosenfeld expressed bias about the CAOs in a meeting with the Attorney General? Where was their outrage when Patty Miller proceeded with Council hearings on the Fish & Wildlife CAO before the Planning Commission had voted on it?  Wow ... glass houses all over the place, I'd say. No wonder some people are beginning to refer to this group as the County Clowncil.  Also, I guess we now know what that new "Law and Justice" sales tax was for: to save the County from Mike Carlson and the Trojan Heron!

One of "their" favorite tactics is to accuse dissenters like Mike of being uncivil, unethical, or unprofessional (see emails below). This is where the analogy to fumblerules comes into play because the repeat accusers are the embodiment of the behavior they purportedly oppose. "They" are a tableau vivant of fumblerules regarding civility, ethics, and professionalism. They behave like a civility lynch mob. The Friends and their friends in high places have enjoyed such hegemony here for so long, that any criticism apparently causes stress they are unable to cope with.

Why is this a CAO flaw? Because it shows the shenanigans in our County government, and it illustrates how the CAOs will be used for witch hunts. Those with influence and power will be able to manipulate the CAO and government apparatus to serve their own ends at the expense of the rest of society. The CAOs are so complicated and vague they can be construed to mean whatever "they" need it to mean in order to go after undesirables. Fortunately, it didn't work ... this time ... because the central matter here is the Constitution, not the CAOs per se, and our Prosecuting Attorney knows his First Amendment. But they'll try again. It's what "they" do.

The CAOs just give "them" more tools at their beck and call. As we keep saying here at the Trojan Heron, the CAOs are not about the environment. The CAOs are about control and punishment by a very select few against the rest of us. Think about it; within the course of one business day, emails from just two well-connected CAO advocates were able to mobilize HALF the Council to consider action against a law-abiding, upstanding, long-time islander. Reflect on that kind of power compared to the deaf ears encountered by armies of concerned citizens showing up in person at Council meetings in a futile effort to have their CAO concerns addressed. The entire Mike Carlson incident lends further credibility to the Orwellian adage that some are more equal than others.


From: Lovel Pratt <>
Subject: FW: Immediate Request - Planning Commissioner Attack on San Juan County Resident
Date: August 13, 2012 2:09:35 PM PDT
To: Patty Miller <>
Cc: Bob Jean <>

Hi Patty,
How do you propose this be dealt with (and the similar request from David D. to Brian E.)?

Lovel Pratt
San Juan County Council, District 1
Office: 55 Second St. N., 1st floor
Phone: 360-370-7473
Mail: 350 Court Street, No. 1, Friday Harbor, WA 98250

Confidentiality Notice: This email message, including any attachments, is subject to the Washington State Public Records Act, RCW Chapter 42.56 et al.

From: Stephanie Buffum []
Sent: Monday, August 13, 2012 11:57 AM
To: DL - Council; Maureen See
Subject: Immediate Request - Planning Commissioner Attack on San Juan County Resident

Dear County Council,

The Trojan Heron blog and its endorsement and forwarding to our island community by San Juan County Planning Commissioner Mike Carlson is unprofessional and unbecoming as a public servant.  Mr. Carlson’s email below, which he sent as an attack to Ms. Alderton, endorses a statement that "Janet Alderton should be sent to the asylum along with the rest of her crazed Friends.”  This type of an attack on a resident by a San Juan County Planning Commissioner requires immediate attention.  

As a member of a County advisory council, we request that the County Council reprimand  Planning Commissioner Mike Carlson or remove him from public service.


Stephanie Buffum Field
Executive Director

POB 1344 Friday Harbor, WA  98250

From: Randall Gaylord <>
Date: Tue, Aug 14, 2012 at 1:25 PM
Subject: Planning Commission Member Mike Carlson
To: DL - Council <>
Cc: "Brian Ehrmantraut (" <>, Bob Jean <>, Jon Cain <>

Three council members have asked for my opinion about the actions of Mike Carlson in writing an email which two citizens have brought the attention of the County Council as being offensive. This review is made quickly and done in an email to save time. Because this email incorporates items from other sources, my words are shown in large, bold print.

Every case involving facts regarding speech – whether spoken or written – requires a detailed understanding of the facts and an examination of the exact words used.

I understand the allegedly offensive email of Mike Carlson is as follows:

--- On Mon, 8/13/12, Mike Carlson <> wrote:

From: Mike Carlson <>
Subject: The Trojan Heron
To: "mike" <>
Cc: "Janet Alderton" <>
Date: Monday, August 13, 2012, 6:28 AM

Dear Fellow Islanders,

The attached link says it well. How many of you "Garden Variety Islanders" have EVER heard of any toxic levels of any of the compounds that Ms. Alderton has cited as the reason your house must be kept further away any possible wetland than it can be now. I have not. The Common Sense Alliance paid thousands of dollars for soil testing around several home sites and one "island scale" industrial site located un-buffered right above a pristine wetland ( Lawson Construction's yard). These tests did not show there were toxic levels of anything within harmful levels.

I have cc'd Ms Alderton in this e-mail so maybe she will help to educate all of you about how bad your home site is for the environment....I will forward.

This type of regulation is like being told you have a flat tire on your car and being told thatv you need to replace your boat motor to fix it!!


The blog at, that is referred to the Carlson email is entitled “Flaw #8 – Science Fiction”, is authored by “ECK,” and is set forth at full length below for your convenience:

Countdown To CAOmageddon: Flaw #8 - Science Fiction

Friends Board member, Janet Alderton, who never met a person she couldn't lecture, has a letter in a local news blog about unfounded CAO fears. In it, she claims that the new CAOs will hardly change anything for homeowners, which (if true) just begs the obvious question of why are we changing them at all?

The fact is that the new CAOs will change everything for our community, but if Janet is genuinely interested in unfounded claims, perhaps she should re-read the text of the CAOs which she helped to write. Here's an excerpt from the proposed CAO for wetlands.

As discussed in the BAS Synthesis, runoff from areas influenced by human development is well characterized (National Research Council, 2008) and is often contaminated with an array of pollutants, including: those from lawn and garden chemicals (containing both active ingredients and surfactants that can negatively affect aquatic species); building materials including pressure treated lumber (containing copper chromated arsenate), zinc and copper impregnated shingles and roofing strips, and roofing materials containing phthalates (plastic gutters and downspouts, roofing felt, roof membranes); fertilizers; rodent poisons; termite spray and other insecticides; moss control products; deicers; contaminants associated with automobiles, including oil, antifreeze, rubber and metals from the wear of tires, brakes and other parts; and sediment from dirt and gravel driveways. Many of these contaminants are directly associated with the choices and practices of the property owner and are difficult or impossible to regulate. If they are allowed to enter surface water bodies, these pollutants can contaminate and become concentrated in the food web, negatively affecting aquatic habitats and species.

Is well characterized? Is often contaminated with an array of pollutants? Are impossible to regulate? Can contaminate and become concentrated in the food web?

Talk about unfounded! There isn't a shred of evidence about de manifestis concentrations of pollution from any of those hypothetical sources in this county. It's a specious premise, and it displays the fundamental error with all the CAOs: "they" have assumed a problem without any evidence. Then, "they" have "solved" the problem with draconian measures. It's equivalent to a faith healer diagnosing you with cancer or some other horrible disease, and then laying his hands upon you and saying you are cured. Well, many folks don't want the County's hands upon them, or anyone else's hands either. Leave us alone. We're not sick, and we don't need your "help."

The CAOs read like science fiction because that is what they are. I wish Scotty could beam us all up.

Posted by ECK at 4:50 PM 4 comments:

The blog allows posts to be made to the blog. Four posts are found after clicking on the words “4 comments”. Those four comments are set forth in full length as follows:


Close this windowJump to comment form

1 – 4 of 4

Anonymous said...

The Letter is also mostly false

August 10, 2012 6:04 PM

ECK said...

I presume you are talking about Janet Alderton's letter at referred to in this post. Yes, I agree. It is mostly false. What else would you have expected?

August 10, 2012 6:08 PM

Anonymous said...

A few posts back someone gave some numbers showing a large percentage of the shoreline parcels have absentee ownership.

I live in an area of the shoreline and I walk a lot. I believe it is true. There is no one there almost year round on most of these properties.

So maybe there is a structure, a house, these incredible claims of pollution can be claimed against, but there are no people. No tires and brakes, no human activity, nothing. Dull as dog shit, none of that either, nothing is going on, nothing is polluting anything because there is no activity which would do so, the whole thing is a fairy tale.

August 10, 2012 6:56 PM

Cotton Mather said...

One of the oldest jokes and stereotypes in American popular culture and literature is the scolding Puritanical hypocrite whose self-absorbed self-satisfied self-righteousness so completely blots out any semblance of mindful self-reflection that they cannot begin to understand their hilarious tendency towards self-contradiction.

Yes the letter is mostly false, but that is not intentional it is simply the by-product of the fundamentalist mind-set that produced both it, and the rest of the ill-considered fantasy behind the CAO.

Alderton's letter is truly funny. But the scary part is that she is one of the insiders, one of the real framers of this madness. She should be sent to the asylum along with the rest of her crazed Friends.

Leave us alone.

August 11, 2012 10:30 AM

Stephanie Buffum, the executive director of the Friends claims that Mr. Carlson’s email is “an endorsement” of the comments of Cotton Mather; that it is “an attack” on Ms. Alderton that is “unprofessional and unbecoming as a public servant”. Ms Buffum asks the council to “reprimand Mike Carlson or remove him from public service.”


We do not agree with Ms. Buffum that Mr. Carlson’s email amounts to “an endorsement” of the comments of Cotton Mather; an attack on Ms. Alderton; or represents some action that is so offensive that it requires action by the Council. After identifying the blog, Mr. Carlson writes “the attached link says it well.” The link takes you to the page without the comments. Mr. Carlson does not mention the comment of Cotton Mather and it requires an extra step to go to another webpage to see the comments. On my computer, this required an extra step to open the page in a new window. I do not believe that the written word shows that Mr. Carlson “endorses” the comments of Cotton Mather. If any person refers others a blog or news story together with an opinion of approval, it is not an “endorsement” of the comments attached to the blog or news story.

Another point to consider is that Mr. Carlson invited Ms. Alderton to reply to him by copying her on his email. While not determinative, it is not consistent with the email being “an attack.”

Another point to consider is that Mr. Carlson was not acting in his official capacity as a Planning
Commission member. The planning commission is an advisory committee of the County Council and the Council that has a representation of many diverse interests. Like other advisory committees, the Council has established rules for the discipline and order of its members when acting in an official capacity. We do not believe that SJCC 2.116.310, as set forth below, is triggered by the email of Mr. Carlson.

2.116.310 Discipline and order.

A. In the event an advisory body member fails to comply with a decision of the chair or any of these rules, the chair may declare the member out of order.

B. With respect to a member who is out of order, the following discipline may be imposed at the discretion of the chair:

1. The member may be warned without sanction;

2. The member may be excluded from discussion on the item of business at hand;

3. The member may be excluded from discussion of all items of business; or

4. For gross interference with the meeting, the member may be removed from that meeting.

C. A member who is declared out of order has the right to appeal the decision of the chair both as to the question of whether the member was out of order and as to the question of discipline. The advisory body shall approve or deny the appeal by a majority vote of those present, except that the extreme sanction of removal from a meeting shall be upheld only by the vote of at least two-thirds of the members of the advisory body.

D. If the advisory body upholds the declaration that the member is out of order or the discipline, the member has the right to dissent for the record before the imposition of sanctions.

E. These sanctions should be used sparingly and only to the extent necessary to keep order.

F. In the event a member is repeatedly out of order or whose actions are disruptive and counterproductive, a two-thirds majority of the advisory body may request that the County council replace this member. (Ord. 12-2008 § 14)

Finally, we must remember that the First Amendment to the United States Constitution freely protects freedom of speech and freedom of association. Discipline or even scolding members of volunteer commissions for actions that are not taken in an official capacity, and not subject to the procedures of SJCC 8.116.310 present a genuine risk could be construed as a “prior restraint” and is otherwise improper. The fact that a Planning Commission member maintains an email list, are shares ideas with members of the Common Sense Alliance is not a basis for taking action. There is no reference to Mr. Carlson as a member of the Planning Commission. Mr. Carlson referred only to a group he is known to be associated with – the Common Sense Alliance – and Mr. Carlson reported the findings of some studies looking for pollutants that countermand the statements of Ms. Alderton. We note the Supreme Court has only excluded – and not protected – an employee’s speech when the employee was making a statement in his or her official capacity. Garcetti v. Ceballos, 126 S.Ct. 1951, 1960 (2006). Nothing we have been shown indicates that Mr. Carlson was acting in his official capacity as a member of the Planning Commission.


You should proceed with extreme caution whenever you are concerned about the discipline of an employee or volunteer because of speech or activities that occur outside of the workplace. Given the facts as presented, I recommend that no action be taken by the Council or the Planning Commission. Please call if you have any questions.


Randall K. Gaylord
San Juan County Prosecuting Attorney/Coroner
350 Court Street First Floor
PO Box 760
Friday Harbor, WA

Tuesday, August 14, 2012

Countdown To CAOmageddon: Flaw #12 - Clear As Mud

Not only are the proposed new CAOs offensively intrusive, they are an offense to read. They are horrifically long; yet, what they lack in brevity, they make up for in vagueness.

It will be a virtual impossibility for laymen and experts alike to figure out what is legal. However, I suppose that might be part of the County's plan: to get us to ask permission for everything. I further suppose that many years of litigation are ahead of us to clarify several aspects of the code.

Here is a summary of the length of the ordinances as they stand right now.
Granted, the drafts still include crossed-out text which adds to their length, but at the same time, the tallies above don't include the associated maps, which go on for pages more. As is, the total stands at 165 pages of CAOs, not counting the CARA.

While many bills in Congress can exceed 1,000 pages, the average length for a Congressional Bill is just 15 pages. When Congress is an order of magnitude more concise than our own Council, heaven help us.

For the record, the existing CAO is only 17 pages long.

If you haven't looked at the draft CAOs, please do. They have to be seen to be believed, so you must look at them yourself. The impenetrable prose is punctuated by "helpful" flowcharts, such as the one shown below. While you are in a reading mood, have a gander at the Planning Commission minority report on the Fish & Wildlife Habitat CAO too. I think you'll find that to be much more interesting than the CAO itself.
Flowchart from the proposed Fish & Wildlife Habitat CAO

Monday, August 13, 2012

Countdown To CAOmageddon: Flaw #11 - GIGO

Let's think of the CAOs as a computer application for a moment, such as a computer-based business model. I know that's not a thrilling opening line, but hear me out.

Computer scientists have a way of conceptualizing automated business processes as the interaction between a data model and a process model (see figure below).  In non-geek-speak, you have data (e.g., like accounting data), and then you do something to it (e.g., tally it up), resulting in the achievement of some important business requirement (e.g., profit/loss statement).

If your data is wrong, or if your process is wrong, then you end up failing to meet your requirement.

This blog series has already raised questions about the CAO data model (i.e., speculative claims of de manifestis pollution), but what do the draft CAOs say about process? As a case in point, the wetland CAO relies principally on a process called the "Rational Method" for its buffer size calculations. The authors of the proposed CAO would really like us to believe that this method is a good predictor of pollutant loading, especially when combined with information from the infamous Mayer paper.

Is it?

The Rational Method was developed in 1851 by Irish engineer Thomas Mulvany. It predicts the amount of stormwater runoff from various surfaces. For example, impervious surfaces like hardpan will have higher runoff than porous sand. That's all the Rational Method calculates: surficial runoff volume. It says nothing about pollution in that runoff. Nothing.

Our County has made the assumption that higher runoff equals higher pollution. Is that a reasonable universal assumption? Personally, I happen to think pollution is related to authentic pollutant sources, not necessarily to runoff volume. What do you think? Is runoff from a cut pasture more polluted than runoff from an uncut pasture, or from a forest? How about runoff from your organic garden versus runoff from native vegetation? Regardless what you may think, that's what our County thinks. "They" assume that flow is equal to pollution because "they" just assume that we are surrounded by ubiquitous perpetually-emitting pollution sources, with harmful toxins ready to be mobilized by the slightest drop of moisture landing anywhere. As explained in an earlier blog post, that logic would lead you to conclude that the Amazon River is the most polluted river in the world because it has the highest flow. By that logic, the wetter a place is, the dirtier it is.

In short, the CAOs start off with the wrong data and then misapply a 160-year old generalized process with very tenuous applicability to the question at hand. The CAOs have been formulated with both the wrong data model and the wrong process model. Garbage in ... garbage out ... GIGO ... CA(GIG)O.
The Wetlands CAO has managed to get both the data model and the process model wrong.
Garbage In, Garbage Out