Sunday, February 16, 2014

A Buried Report

The Growth Management Hearings Board (GMHB) ruled on our proposed CAOs on September 6, 2013. In October, the Department of Ecology came out with a new Best Available Science (BAS) document titled, Update on Wetland Buffers: The State of the Science, Final Report. It was authored by none other than Tom Hruby, the go-to wetlands science guru at the Department of Ecology.

This 2013 document updates Ecology's 2005 guidance on wetland buffers in some substantial ways. Over the next few postings, we will delve into the new document, but for now, suffice to say that while the new document still has some significant problems, it makes some surprising admissions too. In answer to the question of how large buffers should be, the new 47-page document essentially says, "It depends."

Yes ... it depends on a myriad of site-specific factors ... so it is impossible to prescribe fixed buffer widths ahead of time. Wow!

County staff have known about this report since it was issued. This fact came to light during CAO public comment last week. CD&P knew about it. County Manager Mike Thomas knew about it. Nevertheless, all during the effort to "fix" the latest version of the CAOs after the GMHB ruling, those who have been "in the know" did not inform the Planning Commission about the new document. Those "in the know" did not inform the Council about it either. Interestingly, even Ecology's official correspondence with the County doesn't mention their own new science document.

Among other things, the 2013 Final Report talks about the Meyer paper, and it talks about the Zhang paper. When deliberating about potential revisions to the CAOs back in November, Planning Commissioner Brian Erhmantraut tried to get the Planning Commission to consider buffers based on the Zhang paper, but the other Commissioners shot down the idea because (they thought) the Zhang paper wasn't supported by Ecology BAS. So, the Planning Commission and CD&P pressed forward in making revisions to the CAO based on 2005 BAS, not 2013 BAS. That's where we are at the moment. We have CAO revisions based on outdated BAS.

The 2013 BAS document is very inconvenient to anyone who just wants to get 'er done because it raises serious questions about the basic validity of Ecology's historical approach to buffers ... and our County's approach as well. The new BAS document is not perfect by any means, but at least it is nudging closer to the truth. Considering it was issued by the Kremlin of buffer science, it makes some astonishing admissions.

But "they" buried it so no one would be the wiser.

New BAS report issued after the San Juan County GMHB ruling and at about the same time as the SCOTUS Koontz decision.


  1. This is more than being buried. Hiding the September, 2013 document and not mentioning the revised DOE BAS clearly is dishonest and deceptive. Someone needs to be held accountable and fired. It gives even more credibility to the Citizens Alliance for Property Rights lawsuit.
    Frank Penwell

  2. Does this document and it's recent surfacing give any support to the current lawsuits?
    Asking more in terms of, should it be allowed in to the cases? would it benefit current litigation?
    Seems almost like exculpatory evidence that a prosecution deliberately withheld.

  3. @10:38
    Mr. Penwell. I was attempting to read about the CAPR lawsuit you mention but when I try to visit the CAPR-San Juan, the site is down.
    Do you have a direct link to the suit? Would be curious to read.


  4. Our county and nonprofits are using BAS and buffers to take away our constitutional rights.
    They talk about BAS and buffers, the true goal is control of every phase of our lives.
    Comply with the rules, or be fined and prosecuted, this is for the good of the people. As they turn a deaf ear to any comments.


  5. Lies, fear and intimidation.
    Its been a proven means of control in other society's.

  6. I think Mr. Penwell might be thinking of the Common Sense Alliance suits?

  7. If the BAS said the world was flat when you made your rules on that basis, such will your rules be forever more regardless of the forward march of science.

    So, in the face of all this, this inconvenient truth of Meyer/Zhang, of Nolan/Dolan ... these are the names we need to know on the science front and the legal front.

    Why won't the county just stop? The answer is this:

    Highly restrictive CAOs constrain what is allowed within the Shoreline Master Program. The SMP update is now barreling along. The EcoMachine has always arranged for the CAO to lock in before the SMP update got bolted down. Or so they thought. But the CAO is so far over due, such a shattered mess that the SMP is now in danger of overtaking the CAO.

    And so the EcoMachine is becoming dangerously desperate. This is not their finest hour. Watch out. Things are gonna get crazy. We have to put a stop to this now.

  8. @1:00

    The CSA lawsuit is about the nexus and proportionality of the CAO. CAPR still has its own lawsuit going on about whether the Open Public Meetings Act was violated by the previous council as they developed the CAO.

  9. Like all reports issuing from DOE, there are elements which FOSJ will seize upon to screw us further! For example, the following paragraph could be used to support making buffers EVEN BIGGER...
    If prescribed buffers are to be used to adequately protect wetland wildlife, they will probably have to be larger than what is currently used. Based on the needs of wildlife species found in Wisconsin (some of which are also found in Washington State), the minimum buffer width is about 400 ft, and the optimal width for sustaining the majority of wildlife species is about 900 ft (81).

  10. @9:45

    That is specifically one of the "facts" that we will discuss in an upcoming post. You bring up a good point, but ultimately, that argument is full of hot air, and we'll explain why.

  11. @7:36
    "Open public meeting act violations".
    Is this the lawsuit where the PA determined these were not "meetings" but "gatherings" ?
    The one where Pratt and Hale answered "I don't recall" to a whole host of questions? Even when confronted with their own notes from the gathering/meetings?

  12. Also, this new DOE report findings HAVE NOT made there way into Volume 2 (05-06-008) . This gives the Council wiggle room to say that they are only following the guidance which is "currently valid until otherwise updated". No idea when DOE will ever get around to updating the Appendices in Volume 2 as it states in a warning box in the fromt of Volume 1.

  13. @9:55

    The point though, is that the PC was not informed and the council wasn't. You can think up all sorts of ways to get around any kind of evidence, but the point is that it was the PC's job. There is no excuse for not making this report obvious to the PC or the council.

  14. If it wasn't a big deal, then why bury it?

  15. I can only speculate. Planning didn't bring it up because, a) they didn't think it was relevant in answering the GMHB objections, since their objections are based on the guidance that is currently published, not the new guidance, or b) they are firmly aligned with the "Eco-Machine" and want the strictest, most limiting rules possible, so wanted to hide the new report because it indicates one size fits all may not be right. Regardless, our rubber stamp council members will pass the current amendments by March 1.

  16. Well it's no surprise anyway, prosecutors portrayed
    To the PC a completely differing definition of development than they brought to the council also, even within overlapping days. PC is muted from any real input this way. As well, prosecutors portray whatever they want as legal council. Even though the last council you or I would ever request on behalf of our neighbors "prosecutors"?
    I don't think so

  17. Think about it, your council ears are ok to inhibit you from installing a hot tub in your back yard adjacent your deck or patio, this because it constitutes development within a new buffer "or easement" over your back yard.

    Nexus and proportionality
    Ya right
    Now think about a million equally similar scenarios

  18. A cautionary note about voter initiatives/referendums and the CAO.

    Can't do it. Been tested in the courts. Because state legislation requires local governments to establish CAOs, they cannot be overruled by local referendum because they were required by the state and only statewide referendum can overrule state legislation requiring CAOs in the first place. Gotcha!

    But! But! It costs money to implement the damn CAO and that ain't state money it is local money, our locally generated tax dollars. So what may be possible is a local ballot initiative that makes it illegal for any branch of county government to spend one thin dime on implementing the CAO. Not one light bulb. Not one permit officer. Not one sheriff deputy. Not one gallon of gas.

    Call it the "Priorities of Local Government Initiative"

    Boy would there be howls. Start with a mini initiative and take it directly to Council to force their hand to make a stand. If two vote for it, we got it. If not, off to a full initiative on November ballot.

    I don't think it is out of sorts for a voter initiative to reorder spending priorities. What do people think? I imagine there could be a "gotcha" here but I don't know what it is.

  19. @12:01 We can't throw out the CAO/SMP with an initiative, true. As you point out, we are required to have both, and to review/update them regularly.

    We can however modify our CAO/SMP. The modification can't be silly "0 foot buffers, and you can build fracking sites in the middle of wetlands". But we could change the regulations to be a whole lot friendlier to islanders.

    Contrast the county's botched effort on this legislation to Friday Harbor's simple and quick review/update. Perhaps our Council could fire our existing planning staff, and outsource the next attempt to Friday Harbor.

  20. So maybe the initiative requires the County CAO be consistent and harmonize with the TFH CAO to "greatest extent feasible" and also put in hooks forcing real review of all GMA elements so that they are actually balanced, and really require the maximum possible use called for in the preamble of our CompPlan. We can't overturn a CAO by initiative, but as you say it can be modified (much harder after the fact) but we can make it a lot harder for any council kidnapped by special interest groups to ever do this again.

  21. Let us not forget the Town of Friday Harbor shrugged off BAS with their CAO update. No problems here just stamp it and send it on down to Olympia. Just because the town is the only concentrated area of filthy human eco-degradation doesn't mean a thing I guess.

  22. one of the entirely avoided conversations throughout these cao,s and also the enforcement hearings is utter lack of concern or voice for a middle class, that dying breed. the ones that can no longer pretend to fit in this county by regulatory over reach.
    if I am left to the likes of Opal, which is not the likes 'I belong I have now been ousted.
    I can live comfortably within my means and even upon my own land.
    however, no one prepared me for the likes of aggression that would make value judgment over my choice of method, I have plenty more than my father however today some disinterested party is choosing whatever the least of everything should be to remain on my lawfully purchased land. there must be some support here amongst those who I find akin. anyone?
    can this county aggression be truly lawful?

  23. one does not have to be of an ethnic minority to be a minority that deserves protection

  24. Maybe I should have said, working class? The middle left with the banks

  25. I agree, and I might add it is a question of ethics that allowed all of this to happen. It is seriously unethical that boundaries that have existed for centuries are ignored as they are crossed. As they are crossed with no discussion specific to those persons that have been harmed. That is seriously unethical behavior from a public servant.
    No one has been identified or contacted prior to decisions being made that seriously degrade and take down boundaries.

    Above is the link to the CAPR lawsuit brief. Makes one wonder why the Council is enacting the CAO when it is probable it will be overturned in a few months.

    Above is a link for the CAPR lawsuit Brief. Makes one wonder what the County is doing.

  28. To 5:12
    A persons "or group" or committee's ethical system as the case may be, at its highest level of development is based on internalized convictions rather than external consequences. Very telling, in regards to that group that "gathered" formally to discuss implementation of these CAO's. How does that happen? The voters all drank the Koolaid

  29. @Frank P.
    Thanks for the website link. I read the suit with interest.
    Can you tell us what's next? Where is this in the court process? When is the next upcoming court date or when is a decision expected?
    Thank you very much.

  30. A secret gathering of politicians and bureaucrats to complain about anonymous bloggers.

  31. Mencken had a couple of interesting/appropriate thoughts:

    "The strange American ardor for passing laws, the insane belief in regulation and punishment, plays into the hands of the reformers, most of them quacks themselves. Their efforts, even when honest, seldom accomplish any appreciable good."

    "A professional politician is a professionally dishonourable man. In order to get anywhere near high office he has to make so many compromises and submit to so many humiliations that he becomes indistinguishable from a streetwalker.”

  32. Nothing is simple in the World of the CAOs, but a list as to what IS de-minimis is certainly in order.

    Every Planning Commission must wrestle with zoning administration and development regulation, certainly a list of actions and structures considered de-minimis to critical areas should not be that tough.

    From Veg gardens, and hazardous trees to single family homes, each commissioner would submit five items for debate.

    Most important those who don't want something on the de-minimis list would need to explain WHY a football helmet is needed.

    (Please see 2/15 TH if you missed this important definition of "risk.")

  33. What the Friends want is no more construction or expanded land use in the islands.

  34. BANANA

    Build Absolutely Nothing Anywhere Never Again

  35. Well, the County seems to want to let you build things contrary to their own rules if you are one of their special friends. See this story from Orcas:

  36. February 18, 2014 at 11:09 AM

    Nothing is simple in the World of the CAOs,but a list as to what IS de-minimis is certainly in order?
    Are you Crazy?

    The only adequate approach is exactly the opposite
    What should be outlawed, not what should be accepted. my God you must be an only child, you could not begin to develop "the list" of de-minimis activity, because it is limitless and should never, can never constitutionally exist for that very reason. "only harm causing activity should be limited" and then special consideration must be given to a space that is existing and is also protected from unconstitutional invasion of privacy.

  37. From the CAO...

    "Uses and activities may be continued, replaced with other uses or activities, or relocated, provided, any required project or development permits are obtained, and there is no increase in the magnitude of adverse impacts to water quality or the functions and values of critical areas. Relocation of any use or activity in this area shall be reviewed as a provisional use."

    So here is the problem:

    "Uses and activities may be continued...provided...there is no increase in the magnitude of adverse impacts to water quality or the functions and values of critical areas."

    If you are unlucky enough to now live within the critical area, or the buffer around it, your continued right to just live there is now under constant threat of challenge that you're are "adversely impacting" something. The FOSJ now hasat least 7000 target parcels to threaten, now and forever...AMEN.

  38. @2:45 And yet, the CAO and SMP updates take the approach of telling us what few activities we are still allowed to undertake on our own land, rather than telling us what few activities cause such terrible harm that they must be avoided.

    Sickening, eh?

  39. But government still wants to help you, the little business guy or gal.

    That's why the San Juan County Economic Development Council will be offering FREE Finance for a limited time only. Well, a FREE Finance 101 workshop anyway.

    But remember. It's FREE. In other words, worth absolutely what you pay for it. Nothing. So, don't waste your time at some patronizing talk by loan officer from Islanders Bank.

    They are either trolling for new customers or taking the afternoon off with pay.

  40. This is another questionable attempt to make controversy where there is none but this borders on ridiculous. Fortunately for TH, he has many uninformed readers (except they are always smarter than scientists) that buy in to this stuff. The fact that an effective buffer depends on conditions is not news to anyone who works with natural resource issues. Fixed buffers have always been a compromise. However, fixed buffers are implemented by the vast majority of jurisdictions because, guess what, not everyone can afford a site specific study when they want to build their home or accessory dwelling. Site-specific approaches cater to the wealthy who can buy any answer they want. Fixed buffers are for the rest of us. Is every other jurisdiction in Washington an idiot? And BTW, that doc was never hidden. It had a full public comment period. I mean really. Find an issue that really matters Ed.

  41. @4:34

    I'm not Ed, but you're another buffer addict.

    Taking away people's property and money for no reason is not an "issue that really matters."

    "The fact that an effective buffer depends on conditions is not news to anyone who works with natural resource issues." What cave have you been in?

    Idiots? Yes, they are idiots. Either you and they are idiots or the way risk assessment works is a total lie. Someone is terribly and completely wrong, and it is you.

    Buffer science is quack science. Wetland science is practiced by charlatans. It borrows misunderstood concepts from authentic science, and starting from a mistake, produces bedlam.

    You start from an assumption that buffers are necessary and then whine when people question your assumptions. You have never shown the validity of your assumptions.

    The document was never hidden? Then why didn't the Planning Commission know about it? What's your definition of "not hidden?" Why are the CAO updates based on the 2005 BAS? If it wasn't hidden, then why are we basing BAS on 2005 data?

    If it weren't for TH, all we would have are consensus monkeys like you running around lying to everyone all the time. We're sick of it.

    We're sick of you. We're sick of Planning. We're sick of the council. Brainwashed get-along fools.

  42. The last time the states were ranked for their science education and literacy, Washington ranked #20. It was worse than Kentucky. It's score was closer to the bottom state, Mississippi, than to the top state, Massachusetts. Washington is filled with science idiots.

  43. @ 4:34 PM

    "Fixed buffers are for the rest of us."

    Have you no shame? Has your arrogance and cynicism sunk to such lows that you now prop up your community killing policies up as blue collar friendly? A helping hand to the working stiff?

    You gotta have a buffer so lets just throw this standard issue black shroud over everything your dreams you have worked a lifetime to build and be done with it. The rich, as you say, the rich can buy any answer they want. I don't think their lawyers would be too troubled by fixed prescriptive buffers either.

    Have you quite lost all sense of reality? You sound like some Wall Street banker dressed in drag at a Kappa Beta Phi toga party.

  44. @ 4:34pm. I think you missed the point. The study was conducted by Ecology. No one said it was hidden there. The question is why is was not presented to the Planning Commission and the Council by the "natural resource experts" who were pushing changes to the CAO. I believe that the post points out that a Planning Commission member even asked about the Zhang study, but not a peep from the planners.

  45. @5:38p

    But Washington is full to overflowing with mostly-self-proclaimed "environmental scientists," many of whom don't even have a BS degree.

  46. @5:38p

    But Washington is full to overflowing with mostly-self-proclaimed "environmental scientists," many of whom don't even have a BS degree.

  47. Is it true the State of Washington requires more training and licensing to be a hair dresser than a wetland water witcher?

    There is State Board of Cosmetology at least.

    Why isn't there a State Board of Dowsing and Astrology?

    What if there are possible ley line crossing island property. These should be protected geomagnetic area. Eeelgrass, erect pigmy weed and tweetie birds respond to subtle earth energies science has yet to fully understand. We should take a precautionary no-risk approach.

    The City of Seattle commissioned a ley line mapping project back in 1987. They are all over the place. Who knew? Only a professional dowser knows how to find them. Pay them and they will find lots of them. An ideal job for a certified wetland wizard. Science marches on.

  48. @4:34 pm: so, educate us hapless TH readers, as you seem to suggest that your know so much about buffers--what exactly is the problem that our buffers are supposed to address? Got bad water? Where? What causes it?

  49. Just sayin'

    Nearly half of all Democrats (49%) surveyed thought astrology is a science.

  50. It seems at least one of the minions at DOE is not in agreement with his comrade Tom Hruby.

    He has popped up here on the TH because perhaps there is some recognition the DOE is in trouble, deep shit actually. They have pissed off a huge number of voters/property owners in the State, and it can't go on much longer until all these upset voters put the DOE employees on the unemployment line. One big vote and you're gone! That, and any of these many suits will eventually get to the Supreme Court where you WILL lose.

    Great to hear from you big boy. You narcissistic fools at DOE are in trouble and it just could be that some of you know it. (Not you, of course).

  51. 68% of people polled thought "Best Available Science" was actually what it claimed to be, not politically motivated, agenda driven, crap.
    This is global warming on a smaller scale.
    "The science is settled"
    "Flat earthers"
    Hopefully people wake up.
    This. Is. A. Shakedown.

  52. James Lovelock, the maverick scientist who became a guru to the environmental movement with his “Gaia” theory of the Earth as a single organism, has admitted to being “alarmist” about climate change and says other environmental commentators, such as Al Gore, were too.

    Lovelock, 92, is writing a new book in which he will say climate change is still happening, but not as quickly as he once feared.

    The new book will discuss how humanity can change the way it acts in order to help regulate the Earth’s natural systems, performing a role similar to the harmonious one played by plants when they absorb carbon dioxide and produce oxygen.

    “The problem is we don’t know what the climate is doing. We thought we knew 20 years ago. That led to some alarmist books – mine included – because it looked clear-cut, but it hasn’t happened,” Lovelock said.

    “The climate is doing its usual tricks. There’s nothing much really happening yet. We were supposed to be halfway toward a frying world now,” he said.

    As “an independent and a loner,” he said he did not mind saying “All right, I made a mistake.” He claimed a university or government scientist might fear an admission of a mistake would lead to the loss of funding.

  53. So... any update on Menjivar's camera?

  54. Is that anything like Schrödinger's cat?

  55. Advice to the DOE.

    The TH hit a home run. The ball went out of the park. Your running around trying to catch the ball and bring it back, ain't gonna work.

    Take off your football helmet and find a new road without a big hole in it.