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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Smoking Gunners

Recently, the Trojan Heron has been more deeply investigating the many ways that our local government uses biased, un-transparent, and corrupt data against us. We, at the Trojan Heron, feel there is no more important issue in the County than the integrity of the technical data used for our public policy and other government actions. Simply put, there are people in our State and local government with an agenda and they control and manipulate data to advance that agenda. They are looking for the "smoking gun" to eco-frame all of us. They don't care about data quality, or integrity, or independence.  If data or a story can be used in any way to incriminate people, it must be used. The activities of the smoking gunners involves the CAOs, the stormwater program, grant-deliverables, and our citizen committees.

Despite what many of us may believe, too often the "political" divisions in this County are not really "left versus right" or "rich versus poor." Instead, we are divided between the "smoking gunners" who fabricate and believe any and all manner of eco-incriminating evidence (no matter how poor the quality), and the rest of us who feel that data should be evaluated and independently validated before it is believed.

The Trojan Heron is now going to focus on the smoking gunners and how they control and manipulate nearly every aspect of County data, and thereby control much of what the County does as a result.  The smoking gunners include Council members, County staff, and state officials.

The term "smoking gun" dates from 2010 when the County began to use that term to characterize the real motivation behind various County initiatives, but the smoking gunners have been with us for a lot longer than that. They are now entrenched everywhere, and we must root them out and get rid of them. They are working against the public and the public good.

From: Mary Knackstedt [mailto:maryk@co.san-juan.wa.us]
Sent: Friday, January 15, 2010 1:36 PM
To: Linda Lyshall; Vicki Heater; Barbara Rosenkotter; Kit Rawson [krawson@tulaliptribes-nsn.gov]; windrope amy [awindrope@yahoo.com]; Ed Hale; Brian Rader;susankey212@gmail.com; Patty Miller
Cc: Shireene Hale
Subject: EPA grant proposal for your review

Here's what I've done so far for the proposal with input and help from many of you. It's been a rapidly moving target over the past week, which has been hard to keep up with, but I think it's coming along though it has some rough patches.  Please look this over and provide comments by next tuesday or earlier if you can manage it.  Linda, please send it along to your friend at EPA.

Here's some pieces (some new) that need fleshing out, I'm sure you'll find more:

NEW--Vicki suggested a really great idea to focus team effort/coordinated technical assistance program (modeled after Kitsap Co) with landowners in the pilot areas receiving assistance from the CD and County (Brian for pollution prevention, especially business owners in Eastsound and construction sites) and the on-site septic system specialist from the health dept.  She also suggested pursuing long term sustainable funding through development of a Clean Water district. She is going to add this section.  I tried to do a quick scan to add this in a few sections, but need to go through the whole proposal methodically, especially the project plan and proposal sections after she completes this piece so that it fits.

Monitoring--I hesitate to ask for much funding for monitoring because EPA is very picky about funding monitoring and most of what we are doing is under development so still hazy.  I think we could mention the need to connect WQ monitoring with the shoreline development data and the shore form data that we'll have from FSJs during this time period and any connections to impacts to habitats and biota along with the nifty new tools coming from the state and PSNERP. So the emphasis in this proposal is on connecting the dots and using those insights to tell the story to landowners and decision makers locally. inform our project and also to share in a transboundary workshop.  Instead of asking for funds for monitoring equipment (which I think would weaken this proposal).  I've built in a monitoring coordinator into the budget and some of Ed's time which could free up funds for equipment from county funds.  Ed also suggested that we ask for funds to develop the QA for the stormwater monitoring program. Anyway, this part of the proposal needs work and I'd really appreciate your input to acheive the right balance and stay within the realm of feasibility.  Espcially if we want to use some of the PW utilities fees for match--I did not build that into the budget, yet cuz not sure how it would fit.

Budget--I've built in funding for county staff time on this and vacilate from angsting over it being too much and then too little and still trying to keep it under a million bucks and within our match. The budget needs input, detail and work.  Milene is looking it over, intending to charge indirect so that will add a fair amount. We need more detail for the sections dealing with the constructed wetland.  This is over half the money for the entire project so is important.

Partners--Eastsound Planning and Review Committee wants to partner.  Patty Miller emphasized the need to show the smoking gun, tell the story and involve stakeholders as we dev. the program in the pilot areas.The natural resources dept. of the Samish Tribe has done a lot of stormwater monitoring in Fidalgo Bay and would like to provide guidance for the project, also it looks like we are going to be a partner on the Green Shores proposal so I added that.

Emerging threats  I just got some information about low spawning in local herring pops which are not being seen in other areas of PS which I haven't had the chance to read yet, but may help build the case in the emerging threats section.

Too long!  The page limit for the proposal is 12 pages.  So we're already too long.  There are repetitive, long winded sections, so please let me know where to cut since we need to add other more essential information.

Haven't done the logic model yet. 

Those Romans Were Such Environmentalists!

I wonder if former EPA official Al Armendariz ever lived in Washington State? He might be a villain to some, but for others, he's probably a role model who would fit in around here. In any event, he was forced to resign over his statements regarding enforcement. When the enforcement code is cited, we usually don't think of Mark 15:13-15 or the practices of Roman conquest in Turkey.

Eerily, Al Armendariz's comments bear a strong resemblance to some made in our County, especially in the way he justifies his harsh enforcement stance because of limited manpower. According to Armendariz,

"And so you make examples out of people who are in this case not complying with the law," he said." Find people who are not complying with the law and you hit them as hard as you can and make examples of them."

At least Armendariz was directing his comments towards companies instead of hapless homeowners. Maybe it should be a reminder to all of us that there are bigger environmental issues out there to deal with.

Mark 15:13-15

13 “Crucify him!” they shouted.
14 “Why? What crime has he committed?” asked Pilate. But they shouted all the louder,
     “Crucify him!”
15 Wanting to satisfy the crowd, Pilate released Barabbas to them. He had Jesus
     flogged, and handed him over to be crucified.

Not very civil, wouldn't you say?