Sunday, January 6, 2013

If A Tree Falls On A Regulatory Agency ...

If stormwater flows into a creek, and there is no law around to prevent it, can EPA still regulate it?

This past week, a federal judge in Virginia contemplated that question and decided the answer is "No." In what could be a far-reaching decision about the scope of regulatory authority of the Environmental Protection Agency (EPA), the court decided that EPA only has jurisdiction to control pollutants. Since water is not a pollutant under the Clean Water Act (CWA), stormwater volume/flow not only isn't regulated, it isn't even regulable (if that's a word). EPA simply doesn't have authority.

The case stemmed from a situation where EPA wanted to regulate sediment flowing into a creek (a tributary of the Potomac). Sediment is a potential pollutant. However, EPA instead set restrictions on stormwater flow into the creek and argued that stormwater flow/volume is a surrogate for sediment. The judge struck down that strategy and ruled that EPA cannot regulate surrogates of pollutants; it must regulate the actual pollutant.

This is a big deal because this type of surrogate regulatory strategy is pervasive. The surrogate mentality is central to our new CAOs, for example. The buffer strategy for the CAOs is based completely on surrogates. Flow is used as a surrogate for pollution to first decide which buffer-sizing category to use. Then, the specific buffer to be applied to a particular property is based on graphs of pollutant attenuation from the Mayer paper, where nitrogen was used as an "all-pollutants" surrogate. In fact, nothing about the CAO buffer strategy is based on actual pollutants. The "site specific" buffer calculations are derived entirely from suppositions about whether we look like a polluter based on surrogate presumptions.

And despite heavy criticism of the questionable validity of that strategy at the time, the County and their consultants pressed ahead. Now, the Virginia court decision adds weight to the substantial "on the record" criticism of our County's methodology.

Our society recognizes that it is wrong to profile African Americans as crime suspects just because some African Americans commit crimes. It's wrong to say all Irish are drunks; all homosexuals are deviants; all Scots are cheap. However, we passed CAOs that say that all homeowners are polluters; all people are detrimental to the environment.

We passed a 155-page ordinance that says everyone is guilty because, based on surrogates and our profile, we look guilty.

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  1. I think much of the past Clowncil was a surrogate of the FOSJ, in turn a surrogate of Futurewise, in turn a surrogate of the Department of Ecology in turn a surrogate of the Environmental Protection Agency.

    Sort of a daisy-chain, House that Jack Built effect.

    This court decision is going to yank this chain.

    By the way, all environmentalists are Communists because some Communists are environmentalists.

  2. What really burns me is that Miller and Fralick each raised some of these same points early on, asking intelligent questions of the staff and Dr. Adamus. Fralick asked WHAT POLLUTANTS and Miller asked HOW IS THE MAYER STUDY relevant to our rural island lands. For some reason, though, they ultimately allowed themselves to be worn down by the Shireene and Adamus Show blather on how it's TOO HARD to actually look for pollutants and how the Mayer study, though limited to heavy agriculture, was somehow relevant here. Sad.

  3. I suspect the secret CAO Committee meetings had a lot to do with their (Fralick's and Miller's) seemingly erratic behavior. I think once those meetings started, Fralick/Miller "got their minds right" and got with the program.

    They stopped asking bothersome questions. They decided in those meetings how they needed to think in order to get 'er done, and nothing else mattered. The people of this County certainly didn't matter.

  4. Really this is tragic. It's such a wonderful place to live in large measure because of the community fabric. Which is being torn. These secretive meetings were a poisonous infection of the body politic.

    Closed door group think and "mission alignment" sessions. Peer group pressure can lead to pretty effective brainwashing. Cult like in a way. I doubt if some of those folks even remember what took place.

    Oh. Forgot. Those meetings were only held to plan schedules and check each other's calendars.

    "No, sorry Thursday's out. How about never? Would never work for you?"

  5. Something did go on in those meetings. Remember how in any public meeting when Fralick or any of the tribe would tend to stray off course, Lovel was immediately on it putting them on the hot seat.

    How did she do it? How did she get conformity from someone like a Patty Miller?

    Very strange. Sure would be refreshing if it was the usual sex or money.

    Seems Lovel wants to continue to control the County just as she managed to control these people. So sick.

  6. These comments are so right on. Sifting right through to the truth.

  7. I seem to recall an earlier post suggesting that according to certain notions underlying our then proposed cao's, the Amazon river must be the most polluted river in the world because it has the greatest volume of water flow.

  8. The reliance on flow as a surrogate for pollution was exactly the point of that Amazon post. Glad you remembered it.

  9. Thanks. I would like to read that post again but can't seem to find it. Please provide the title, date or other best way to look it up.

  10. In many countries the water San Juan County counts as "polluted" is the water people collect to DRINK!

    Storm water runoff; Impervious surface drainage; Water collected in man made ponds; Water in your dog bowl!

    All this water, as seen by the seers of truth in San Juan County Government is polluted. Anywhere else it is valued as good stuff.

    Islands in the Caribbean; Islands in the South Eastern Pacific; Islands West of South America; Islands East of Africa; Islands in CANADA! By God, this water is just fine thank you.

    The water is CLEAN, the cows are eating grass so clean I might even try some.

    So this "An island needs..." has a nice ring to it, but in reality is total Bullshit.

  11. If you are part of Eastsound Sewer District, all the water in Eastsound is polluted. If the CAO is based on bunk science, then the work of Eastsound Sewer District is founded on witchcraft.

    Because they over stretched their infrastructure- outside of their legal boundaries, now they are inventing a drinking water emergency in order to force homeowners to become members and pay for membership. At the helm and heart of this money grab... Greg Ayers... Sorry Greg - but you've fleeced Estsound already. We can't afford to have you take out the entire county!

  12. If there is anywhere in these islands where there is probable evidence of actual human impacts, it is the Eastsound aquifer, which has had steadily rising nitrate levels for a while now. The nitrate levels are still below health limits, but they have been trending upwards. A likely cause is septic systems.

    I don't understand the last comment. In the Eastsound situation, we should want people to abandon their septic systems (e.g., OPAL) and hook up to the sewer system. That's not fleecing anyone, that's protecting the public resource and protecting public health.

    I don't understand the reasoning that denies that the OPAL/Byers' septic systems have contributed to the steadily rising nitrate levels in Eastsound, and that OPAL's recent reluctant agreement to hook up to the sewer district was accomplished only by making OPAL an offer that was too good to refuse. As I understand it, Ayers was the architect of that offer.

    Lordy, after all the genuine fleecing that goes on in this County on a daily basis, getting OPAL and others in the vicinity of Eastsound to hook up to the sewer system to protect the aquifer has got to be the worst example of fleecing than I can imagine.

  13. To the commenter who was looking for the old post about the Amazon, you can find it at this link:


  14. I guess the only one in the clear on this one is Rick Hughes ;-)

    Oh wait ... he's a living human being ... damn, by definition, he's vermin ecosystem pestilence too.

    Do you think there is any way we can elect a sand lance? Barbara Rosenkotter keeps saying that she speaks for salmon. Maybe she can suggest a good piscivorous candidate.

  15. If nominated, I will not run. If elected, I will not serve.

    Who is Barbara Rosenkotter anyway and why is she speaking for us? Are we saying anything interesting? Honestly, if we were going to choose a human spokesperson, do you really think we would have chosen someone named Barbara Rosenkotter? Do you think just because we're fish we have no sense of PR? You’d have to be dumber than a sea louse to put Barbara Rosenkotter on you’re A-team. If we sand lances were ever going to hire a spokesperson, we would try for LeBron James or Angelina Jolie.

    Rosenkotter … HA! … That’s a good one.

    Yours truly,
    Mr. Sand Lance, Leader of the Piscivorous Nation

  16. Sorry - I'm not buying the Ayers defense-

    Indeed, nitrates may show increased levels in some wells, but there is NO scientific evidence that links it to properly functioning legal septic systems. Could be the fact that there are 43 dogs in my neighborhood leaving little fecal-nitrate bombs on the ground or my favorite grass fetilizer that keeps my lawn a bright beautiful green all year long. I suppose ESWD will next be policing my pets bathroom habits?

    But, explain to me why a public utility is reaching their infrastructure beyond their legally mandated zone of operation. Not sure why? Because they need more money to sustain their operations. "Gotta grow to be sustainable: Gotta raise taxes to grow!" Sounds like a familiar battle cry.

    Not sure why you're so worried about OPAL, they all handily qualify for assistnce, it's the 80% of the rest of the population in Eastsound that is getting screwed over.

  17. That does happen. The Lopez Land Trust (Lopez's OPAL) just built four new units, not because of a pressing need for new affordable housing but because it would help pay off their water system.

    Isn't it grand when doing good means feathering your own nest? Or maybe that should be, "Isn't it grand when you can feather your own nest and make it look like you're doing good?"

    I distrust the land trust model of development and the people involved because many things about it seem fishy, but it's interesting to hear about the situation with the Eastsound sewer extension. I don't want the county run the way any of the various island land trusts are run, and maybe I don't want it run like the Eastsound sewer district either. I would like to know more.

    Follow the money.

  18. I really distrust people who claim to speak "salmon" too.

    I'm fluent in four languages, salmon, sand lance, eel grass, and nudibranch. I'm working on my ling cod.

    No. Not buying that, even if the grant writers and the PSP do.

  19. In response to the campaign ad above, Greg Ayers is not emperor of the Eastsound Water, so I'm not sure why you're picking on him as if the issue were his doing. You seem to be one of a handful of people who have to connect to the sewer district--why is that Ayres's fault? Failing septics outside the UGA borders are polluting the water. The water and septic utility was assigned a DISTRICT with geographical boundaries. Are you within the boundaries? Get connected. And if you dislike having to pay for sewer, you are going to love the stormwater projects Ed Hale has in mind for you. On Orcas. Paid by Orcas taxpayers.

  20. This is great stuff. The truth unleashed...or at least getting the sandpaper.

  21. Wait.... But isn't San Juan County Health charged with dealing with failing septics? Now ESWD is practicing up at their own version of code enforcement.

    By the logic stated above, Pretty soon every failing septic will require a sewer line extension. ESWD has made it their mission to expand outside the UGAs to grab more members I.e. more revenue.

    I can see the new rules now: Your 5 acre parcel is within 1000 ft of a critical area, the only way to properly deal with your septic is for us to connect you to a sewer line so we can pump your human waste out into the sound. Oh, by the way, tell everyone around you that even though their septic works just fine that because we put a sewer line down the road they need to connect. Not wanting to connect- no worries, we can charge you anyway because really, who cares about your money as long as we get it first. Recession be damned, flushing money down the toilet is what we do best!

    Crap I say!

  22. A belated thanks, TH, for your cite to the March 2012 post re the Amazon. That post, taken together with the recent Geology Board ruling and the even more recent federal court decision in Virginia regarding stormwater as a proxy for pollution makes for very interesting reading. Shows what can happen when "planners", mislead by unqualified "wetland scientists", can create havoc where none should be.