That Hole Is Getting Deeper!

On Friday, the Council came out with a memo regarding their investigation of the Portland Fair wetland affair. You can find the memo here.

Anyone who has been through the wetland process would think the memo is a late April Fools joke. No one ... and I mean, no one ... outside of the authors and their most blindly ardent supporters would fall for it. But that's not the worst part.

It was written and signed by the Council -- Jamie Stephens and Rick Hughes, with Jarman recusing himself -- without any apparent input from the Prosecuting Attorney's Office. In fact, it is addressed to the Prosecuting Attorney, so the Council owns this one in its entirety. Given that the Prosecuting Attorney already found that Mike Thomas acted contrary to County ordinances and written policies, this Council memo suggests a significant rift between the Council and the Prosecuting Attorney over this matter. But that's not the worst part.

In the memo, the Council defends their man, Mike Thomas, to the hilt. We "learn" several surprising facts. We discover that Jennifer Thomas had no role in this wetland situation, despite documentary evidence in the form of emails from Sam Gibboney saying otherwise, and despite the fact that "JT"'s involvement was documented in the permit database.  Now we learn that "JT" never existed as far as this project goes ... a figment of everyone's imagination. But that's not the worst part.

The memo from the Council alleges that the determination of a non-wetland was made by Gibboney based on a review from Mike Thomas himself (is Mike Thomas a qualified wetland scientist?). Perhaps the most amusing lines in the whole memo are:

Although in this instance, the County was providing the wetlands review at no cost to citizens and paying for it from funds set aside in the CAO implementation plan, Mr. Thomas saved the County an unnecessary expense by his review, and Ms. Gibboney by her determination.

Saving money? They actually claim that Mike Thomas is saving taxpayers money, and the Council gives him a pat on the back as a result. But that's not the worst part.

The Council says there was no wrongdoing ... but there sure seems to have been a coverup. I guess we are supposed to believe that Annie Matsumoto-Grah wasn't ordered to rewrite her report? Chris Laws wasn't ordered to rewrite his report? Ecology wasn't prevented from providing a report, even after Ecology employee Doug Gresham went on the record about wetlands on the subject parcel? More shockingly, the official County enforcement file was redacted to remove all mention of Mike Thomas and Bob Jarman ... with all redactions ironically placed in a folder titled "Chris Laws Personal Information" -- ironic because Chris Laws refused to redact the file himself, and ironic because personal information is not subject to disclosure under the Public Records Act, and ironic because they are hiding Thomas' and Jarman's involvement among the whistleblower's own "personal" information. But that's not the worst part.

The County Charter requires the Council to take action only by Resolution or Ordinance. Nowhere is the power of "investigation" given to the Council. The word "investigation" doesn't even appear in the Charter. Moreover, the County is currently being sued all the way to the Washington State Supreme Court regarding violations of the Open Public Meeting Act (OPMA). The OPMA requires that all government actions be deliberated in public. Action is defined in the OPMA as (emphasis added):

"Action" means the transaction of the official business of a public agency by a governing body including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions. "Final action" means a collective positive or negative decision, or an actual vote by a majority of the members of a governing body when sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance.

The Friday memo is neither a Resolution nor an Ordinance, but it is clearly an action taken by the Council. It was not deliberated in public. It is a conspicuous violation of the Charter and the OPMA. The signature line says that Bob Jarman "recused" himself. Recused himself from what? It is obvious that the Council worked on this memo out of public view and came to conclusions and then signed their name to their final decision. On its face, this memo alone would appear to present enough evidence of procedural misconduct to justify its own separate whistleblower complaint ... which, if it were to occur, would be the fifth this year. But that's not the worst part.

The worst part is the situation in toto. It is inconceivable how badly our County government has deteriorated, and it is time to publicly call for investigations. We, at the Trojan Heron, feel it is time for the State, or even the Federal government, to investigate corruption here in San Juan County government. As a friend of the Heron says, it is time to take the keys away.

Most Official County Response?

As a brief interlude ...

As some of you may know, Stan Matthews recently retired, so he's no longer the County public spokesperson.

A reader sent me the video below purporting to show the new County spokesperson providing the official County response to the ongoing controversy over the Portland Fair situation. I also was sent a related video purporting to show Mike Thomas and his wife being interviewed about their involvement in that controversy.

Enjoy!

Uncertainty In the Department of Stone-Age Ecology

About a month ago, Hiroo Onoda died at the age of 91. He was a Japanese WW II holdout soldier who didn't surrender until long after the war was over. For 29 years, he lived on an island in the Philippines with other holdouts, dismissing all evidence (including messages sent to them) that the war was over. They lived by eating what they could find in the jungle or steal from local Filipino farmers. After losing all his fellow holdouts to various circumstances, Onoda was finally persuaded to give up in 1974.

Also, we occasionally still hear press reports about Stone-Age tribes that hold out against the modern world ... in the Amazon ... Papua New Guinea ... or some remote island. In these days of iPads, space stations, and genetic engineering, some of these Stone-Age tribes don't even know how to make fire ... and have never heard of the wheel.

Which brings us to the Shorelands and Environmental Assistance Program within the Department of Ecology. These are the regulators who advise local governments about shorelines and wetlands because of the Shoreline Management Act (SMA) and the Growth Management Act (GMA). In reality, the responsibilities of Ecology are very different under these two Acts, but they don't want you to know that. Under the SMA, Ecology is directly authorized to oversee, and take charge if necessary, of land use planning for shoreline zones. Under the GMA, they have no authority. No one says this better than Gordon White, the Head of the Shorelands and Environmental Assistance Program:

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

Let's be clear about this. Under the SMA, Ecology is authorized to carry out the limited objectives of the SMA only, which is a planning law, not an environmental protection law per se. Under the GMA, Ecology is not authorized for anything, except to advise the Department of Commerce about Critical Areas. That bears repeating ... they are authorized to advise the Department of Commerce (not local Counties) about critical areas (not about the 14 goals or any other aspect of the GMA). Ecology would like you to believe that they are in charge of habitat and endangered species and wetland delineation and saving the planet and the whole GMA. They would like you to believe they are authorized to mainline their biased GMA advice directly into the veins of buffer-addicts in every County Planning Departments ... but they are not.

Altogether different from the SMA and GMA, Ecology is separately authorized under the Clean Water Act (CWA) to regulate discharges to waters of the State/US, but their authority under the CWA is about discharges. They regulate pollution, not non-pollution. They regulate effluent, not waters. Nowhere, outside of the specific planning purposes of the SMA, is Ecology given authority to identify or delineate streams, wetlands, shorelines, or any other waters of the State/US. They have proclaimed themselves as the expert authorities in this area, but they are not.

This brings us back to our Stone-Age lead-in. The Ecology folks who aren't authorized for much of anything produce Best Available Science (BAS) about everything. However, like the Stone-Age tribes who haven't heard of the wheel, the Cro-Magnons at the Shorelands and Environmental Assistance Program seem to be entirely ignorant of concepts accepted everywhere else in environmental science. As we repeatedly mention, they know nothing about risk assessment, but they also know nothing about environmental chemistry ... or geology ... or habitat ... or hydrology ... or physics ... or bio-statistics ... system dynamics ... or science generally. They say revealingly stupid things like (from the Hruby report), "The recent research has also increased our understanding of the many different factors that control the effectiveness of a buffer at trapping pollutants" such as type of pollutant, concentration of pollutant etc.

Increased "our" understanding? How could you not know this? This is in every elementary textbook (and there are thousands) dealing with risk assessment, fate and transport, and environmental chemistry. These principles are at work daily in Ecology's own Toxics Program. This is like a Stone-Age tribesman in the 21st century saying that "we" just discovered fire, and then bombastically posturing as if they are on the cutting edge of discovery. Somehow, and I don't know how, the Shorelands and Environmental Assistance Program has been able to survive like a lost Stone-Age tribe, surrounded by modern technology, but unaware of it. Along with them are fellow holdouts comprised of planners, consultants, attorneys, and non-profits who profit from believing the earth is flat.

We have to contend with their ignorance and bias in maddening ways, one of which was mentioned by some commenters to the previous post ... namely scientific uncertainty and the application of the precautionary principle. One of the ways Ecology projects their power and Stone-Age ignorance is by practicing data sophistry. For instance, we actually have quite a bit of data in these islands that show that we have no problem. Cleverly, though, that gets twisted by Ecology and the County into an opportunity to apply the precautionary principle. Let's discuss an example for the sake of illustration. If I were to sample a stream for pollutants, and if the results were to come back as non-detects, that is positive evidence of no problem. We have lots of data like that here in the islands ... after taking into account data quality, we have positive evidence of no problem. The evidence for "no problem" is in the form of zeros (non-detects) but that's not "no data" and it isn't "uncertainty." It's just that we found nothing because nothing is there.

Finding positive evidence of nothing, however, gets transmogrified into "we have no data" or "we don't know" or "it's pristine" or "the results are inconclusive" or "we're uncertain" ... and before you know it, the precautionary principle gets invoked, and we get 300-foot buffers in rural areas and 50-foot buffers in urban ones. That's how that happens. The absence of a problem and lots of "zero data" gets manufactured into uncertainty requiring the greatest amount of precaution and the toughest land use restrictions. The cleanest areas get "protected" in the most severe way when any rational analysis would have deployed greater "protection" for the riskier exposure scenario. We have to put a stop to that BAS ackwards outcome by pointing out what the data are really saying.

Even A Blind Squirrel

We have written about the Department of Ecology's Tom Hruby before. Whenever Erik Stockdale of Ecology requires heavy-duty science backup, he calls in Dr. Hruby, and the results are usually farcical. Some of their collaborations are masterpieces of ignorance, like when they wrote a letter to our Council in February 2011 about "risk." Eventually, they had to back away entirely from that letter because of copious criticism, including from Dr. Tim Verslcyke, a highly-qualified and well-published ecological risk assessment professional on the faculty of Woods Hole Oceanographic Institute.

So it was with some trepidation and amusement that I began to read Hruby's latest publication, Update on Wetland Buffers: The State of the Science, Final Report. Relative to genuinely professional work about risk assessment and/or fate and transport, it's still amateurish ... but nevertheless ... it isn't completely wrong. Let's review a couple of the good things about this mediocre report.

1. For water quality, Huby admits that the effectiveness of buffers depends on site-specific factors. He says that recent research has increased our understanding of the many different factors that control the effectiveness of a buffer at trapping pollutants, and then he names width, slope, type of vegetation, type of pollutant, geochemical and physical properties of the soil, infiltration rates of the soils, sources of pollutants, concentration of pollutants, path of surface water through the buffer, and for phosphorus, the amount of phosphorous already trapped by the soil.
2. For habitat, Hruby admits that studies do not show minimum buffer distances needed to protect species, but only show how far species roam from wetlands. He also says that there is very little research correlating plant diversity in wetlands with buffer width.

Please note that this document specifically mentions, for the first time, some very key points that side with the persistent criticisms of our CAOs. Our CAOs have never considered type of pollutant, concentration of pollutant, source of pollutant, or the geochemical and physical properties of the soil. This is what we mean when we talk about an "exposure scenario." Dr. Hruby is ignorant of standard risk assessment terminology, so he doesn't use the customary term, but that's what he is referring to.

Furthermore, we have all heard the Department of Ecology and Dr. Adamus proclaim that amphibians can be found hundreds of feet away from a wetland; therefore, buffers should be hundreds of feet wide to accommodate their roaming. Hruby admits that this "roaming data" is not related to buffer width. Stated another way, there is no science that explains how the distribution of wetland dependent species varies with buffer width. Amphibians may roam hundreds of feet away from a wetland regardless whether the buffer is hundreds of feet, tens of feet, or nonexistent. We do not know how, or even whether, changing buffer width affects species distribution. Anyone who has found tree frogs in their window boxes, for example, knows that tree frog wandering does not seem to depend on buffer size.

There are other good admissions in this report. Key Point #4 on page 30 says "Several researchers have recommended a more flexible approach that allows buffer widths to be varied depending on site-specific conditions." On page 10, the report says, "Site-specific factors (vegetation density and spacing, initial soil water content, saturated hydraulic conductivity, and sediment characteristics) are so important in determining the effectiveness of a buffer that simple designs that do not account for these factors can fail to perform their protective functions."

And lastly, this report discusses the Meyer and Zhang papers, both of which have been the topic of intense discussion at various Planning Commission and County Council meetings over the past two years.

We'll save our substantial criticisms of the report for the next post, but for now, take some heart in the fact that even a blind Department of Ecology can find a nut once in a while.

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.

Trouble Brewing In The San Juans

On Tuesday, the current Council defeated a proposal for new rules for public meetings. It was an item left over from the previous Council. The "new rules" proposal was drafted by our previous Council to enforce "civility" at public meetings. Over the last couple of years, we have seen pleas for civility used by the Friends and their friends as a weapon to limit public participation and openness. Ironically, those who have clamored the loudest for civility here have often behaved in the most objectively uncivil ways themselves ... for example, by resorting to name calling and out-and-out lying.

And those tactics and strategies have been given succor by influential officials higher up the government food chain. A case in point is the string of emails below from 2011. In the emails, officials from the Puget Sound Partnership (PSP) are complaining about science being introduced by the Common Sense Alliance (CSA) during the CAO process. Specifically, state officials are reacting to a CSA newsletter about ocean science proposed for BAS by Dr. David Hyde, formerly of Scripps Institute of Oceanography. The emails between Bill Ruckelshaus, Martha Kongsgaard, and Gerry O'Keefe illustrate many things:

• First, they show that San Juan County is on the radar screen of some of the most influential people in the state. 
• Second, they show the casual contempt that state officials have for anyone outside of the Friends, the tribes, or insider scientists. 
• Third, they show no respect for the legitimate concerns of local people and display condescension at the premise that differences with the PSP might actually be authentic. Kongsgaard implies that CSA has somehow manufactured controversy and created dialogue that isn't "real." In fact, Kongsgaard shows off her political blinders by denigrating the "world view" politics of her opponents while she simultaneously displays nothing but her own "world view." 
• Fourth, the emails employ tactics that we've come to expect in the San Juans -- paint all CSA-like troublemakers with a broad politically-charged brush (e.g., Tea Partiers); lie about them (CSA "screamed" at Ruckelshaus); favor tourists over residents; and generally vilify anyone who encourages broad-based local public participation. 
• Lastly, the emails show the speed-dial first-name bonds that existed (and may still exist) between our local manipulative hardball world-view commissars and the state's manipulative hardball world-view commissars.

The email from Kongsgaard is sickening for its prejudice.

For reference and background, Martha Kongsgaard is the current head of the PSP Leadership Council. Ruckelshaus (formerly Head of the PSP Leadership Council) and O'Keefe (formerly Executive Director of the PSP) have moved on, but as most San Juan residents probably realize, Bill Ruckelshaus remains a hugely influential figure. And speaking of huge, he also owns one of the largest shoreline homes and docks in the county.

The email string kicks off with Ruckelshaus forwarding the CSA newsletter to O'Keefe and Kongsgaard with the ominous admonition, "Trouble brewing in the San Juans." However, Ruckelshaus is wrong. Any fair evaluator of the evidence would conclude that trouble has already been baked into our state, local, and tribal governments ... garnished with the scientists and non-profits that are in league with them.
_________
Errata: The initial wording of this post incorrectly identified Gerry O'Keefe as being the former Head of the Department of Ecology when in reality he served as the Executive Director of the PSP. Corrections have been made and my thanks to the reader who pointed out the error.

From: Gerry O'Keefe
Sent: Wednesday, October 12, 2011 1:10 PM
To: Jeanette Dorner
Subject: Fwd: Note from Ruckelshaus -FW: Ocean Science Missing in Best Available Science

FYI. 

Gerry O'Keefe

Executive Director

PUGET SOUND PARTNERSHIP

p: 360.464.1228 

c: 360.593.6620 

Via iPhone

Begin forwarded message:

From: martha kongsgaard <martha@kongsgaard-goldman.org>
Date: October 12, 2011 12:59:47 PM PDT
To: Bill Ruckelshaus <bill@madrona.com>
Cc: Gerry O'Keefe <gerry.okeefe@psp.wa.gov>
Subject: RE: Note from Ruckelshaus -FW: Ocean Science Missing in Best Available Science

Thanks for this Bill.  This is ongoing up there as you know. I think you have personally been screamed at there, no? The county has adopted the BAS already and this cannot be undone until the CAO is complete which will be sometime in June.  Then the law suits will be filed by both sides.  The best thing that can happen now is that  a thorough record is made by groups like Friends of the San Juans, UW scientists, and the tribes so that they can prevail in court.  It is a lousy system, but it’s the one we have.  IN the mean time, it is rough to be Lovell Pratt, for example, who is chair and is trying to hold the line.

The CSalliance is certainly whipping up fear and introducing new science into the CAO discussion and are managing to fill town halls with 50 – 70 people.  At the end of the day, it has much more to do with philosophy than with science – see the Tea Party.  If the case could be made publicly that their science is not on point, that over 50% of the shoreline is already built out and that the parcels are by and large under ½ acre, and that the economy of the San Juans depends on the 1,000,000+ tourists who travel there to be sold “beauty and wildness” and on and on, they would still hate government and resist regulation in most any form.  They are jamming the planning department by encouraging land owners to go, one by one, to the planning department to ask what effect these regulations ‘could’ have on their land.  They are demanding that the council notify all land owners of the same, with individual maps, etc., all under the request for transparency and open government.  That plays well and is hard to combat.  But it is killing the dept. who otherwise would be working on the CAO etc. and so the worm turns…..

This e mail got me off my duff to call Lovell Pratt, the chair, and friends of the San Juans.  They need our support to do the hard thing.  We need to listen to the CSA, and the worries of the property owners and figure out how to get the hard work done.  There is not a lot of real communications getting done.  It is world view stuff that doesn’t allow for much dialogue in my experience.

Martha

M A R T H A   K O N G S G A A R D
  
4 4 0 8   B E A C H  D R I V E  S. W.   
S E A T T L E,   W A   9 8 1 1 6
W - 2 0 6 . 4 4 8 . 1 8 7 4  *  C  -  2 0 6 . 8 1 7 . 5 4 7 3
martha@kongsgaard-goldman.org

---

From: Bill Ruckelshaus [mailto:bill@madrona.com]
Sent: Wednesday, October 12, 2011 9:14 AM
To: Gerry O'Keefe; martha kongsgaard
Subject: Note from Ruckelshaus -FW: Ocean Science Missing in Best Available Science

Gerry and Martha,

Trouble brewing in the San Juans.

Bill

Diane L. Hodgson, Personal Manager

William D. and Jill Ruckelshaus
Madrona Venture Group and Evergreen Venture

1000 Second Avenue, Ste 3700

Seattle, WA  98104

206-674-3009 p

206-674-3013 f

From: Common Sense Alliance [mailto:info@commonsensealliance.net]
Sent: Tuesday, October 11, 2011 4:14 PM
To: Bill Ruckelshaus
Subject: Ocean Science Missing in Best Available Science

Images not displaying properly? Add info@commonsensealliance.net to your address book now. Tuesday, 11 October 2011 Vol. 73 Guest Editorial:  Why is Ocean Science Missing in the SJC's BAS? My wife and I came to San Juan Island in 2009 to enjoy the wonderful ambience of these Islands.   Like many friends and neighbors, we are environmentally oriented--I having retired from 40 years of ocean technology work, and she a long career in public relations.   We both are alarmed by San Juan County’s recent CAO developments and public disclosures--her from a public information perspective, and I from an ocean sciences point of view.  We are not directly affected, but I want to speak out as a county taxpayer and home owner in the cause of clarity and transparency.  Our fellow taxpayers and residents need the real facts to better judge the truth and value of this “environmentally necessitated” county initiative against the cost and economic risk to all our communities and their residents.  Here’s the main issue:   the current CAO is based on facts that do not apply to the San Juan Islands and missing the facts that do.  My comments are directed toward the centerpiece of the CAO plan--Imposing deep setbacks and buffer zones to protect and restore our marine environment. There’s a big problem with the County’s approach.   The County’s agencies have developed a long list of Puget Watershed and related reports, called “Best Available Science.”   This BAS forms their justification for the CAO, and the SMP to follow.   According to the State these ordinances must be based on some definition of best available science. With my long association with ocean institutes, including the Scripps Institution of Oceanography in La Jolla, CA, I tried to determine the basis of the “ocean truth” in this BAS.  I was appalled to find that, despite years of Salish Sea studies, no physical oceanographic studies describing our local marine waters exist in this BAS.   Without an ocean-reality baseline, how can this county legitimately proceed with a marine environmental remediation plan?  And, how costly will this plan be to enforce if their “science” is missing essential information? I found that, while unacknowledged in the BAS, the body of ocean literature on local waters is extensive, and represents 50 years of model development and measurements by leading institutes.   The circulation models we now have available are mature, detailed, and tested physical science.  The findings contained in this literature led me to clear conclusions that fundamentally counter SJC’s rationale for shoreline buffer actions: 1.            The San Juan Islands waters are not part of the Puget Sound at all – They are part of the Southern Straits of Georgia, almost 10 times larger in water volume, and in river outflows.  We may be politically connected to the Puget, but our local marine waters are Canadian, and incidentally contain the effluent of 80% of the economic output of BC. 2.            Mostly blocked from northerly exit, the massive outflows from BC’s Fraser and nearby rivers create a persistent southerly flow of their waters through our islands out into the Straits of Juan de Fuca.  These river flows exceed 100 cubic kilometers of river water annually--about ten times that of all Puget rivers. 3.            Because of seabed and tidal flow features just to the south of us, these northern waters don’t mix much with Puget waters during tidal cycles. This means there is little mixing of our Islands’ and Puget waters by our strong tidal cycles, further isolating us.  These tides also create massive upwelling of clean Pacific waters along our shorelines from the bottom counter-current, and constantly bring fresh ocean waters to our shorelines.  Our Islands’ shorelines have the best flushed marine waters of any coastline in the lower US, and no local marine water quality measurements can legitimately separate the origins of local and Canadian runoff. The ocean-truth for our Islands is that we are immersed in a huge BC system that mixes massive river outflows from the Fraser basin with Pacific Ocean waters.   BC governments have been addressing water quality issues for decades and are making progress—but, we are only a small part of their very large system.  We San Juan Islanders will be far better served by focusing on the few local area problems that we have and that we can do something about, rather than by incorrectly pursuing environmental actions that, to no avail impose laws based on incomplete information.  It is time for the County of San Juan to step back and get the Ocean reality for our Islands right--before proceeding further with these CAO and SMP initiatives. David Hyde, PhD  [Note:  David Hyde, PhD, has a professional background in ocean sciences from his association with the University of California, Scripps Institution of Oceanography, and other institutes.  The information and opinions in this editorial are his own independent assessments of literature that is available for everyone to assess.  He has recently collaborated with Ed Kilduff, a Lopez Island hydrogeologist, to create a presentation entitled "San Juan Archipelago Water Quality & CAO."   Mr. Hyde has given permission for CSA to publish his editorial opinion.] Common Sense Alliance P.O. 1249 Friday Harbor, 98250 info@commonsensealliance.net www.www.commonsensealliance.net

Is Shireene Hale The New Jon Shannon?

Most of us probably remember Jon Shannon, the former head of Public Works. During his tenure, the solid waste situation in these islands grew progressively more bizarre, as well as expensive. It seemed like every solid waste solution ever proposed by Shannon involved making the program more affordable by making it bigger and more expensive. He led us through a costly planning process to relocate the San Juan Island transfer station, an effort that eventually failed when it ran headlong into a buzzsaw of public opposition. He borrowed heavily and regularly to keep the solid waste system afloat. His presentations to the Council often contained basic mathematical errors that no elected official ever caught. He needlessly caused compliance issues and then informed on himself, cutting the roof off the San Juan Island transfer station and subsequently notifying Ecology that we didn't meet stormwater requirements because of it.

Until his final days, he received (however begrudgingly) support from the Council. Even after Shannon had left, the Council still followed his agenda for a while by putting forward a solid waste tax and spending plan patterned after Shannon's philosophy that "more is better." It wasn't until the grandiose solid waste tax plan got shellacked at the polls in 2011 that the Council finally got the message.

Now we seem to be afflicted by another bureaucrat who believes that "more is better." She receives, however begrudgingly, steady support from the Council. She leads a byzantine County program that is as bizarre as it is expensive. In the clip below, you'll see her say that we have to keep her around because, as long as she's here, she can explain the CAOs to everyone else, even though in the last post we saw her admit that she doesn't fully comprehend them. Maybe we should dub the CAOs the "Shireene Area Ordinances," since having been made in Shireene Hale's image, they are both unintelligible and presumptuous.

In the clip, you will hear Hale say, for the umpteenth time, that the CAOs are complicated because we have adopted a site-specific approach. That is a complete red herring. For the umpteenth time, we will say in reply that we do not have site-specific CAOs. We have CAOs that are pointless because they are based on meaningless cherry-picked site variables, leading to a result that cannot be understood even by those who crafted them.

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.

Click to enlarge

Surveillance

One of the themes of this blog is the notion that if the powers-that-be don't like you, they are inclined to retaliate against you. Over the course of this blog, we feel we've presented plenty of examples when this has happened, not the least of which was the recent post about Lovel Pratt appearing to go after a small businessman for storing kayaks in his barn.

To further this point, have a look at the interest that the Trojan Heron attracts from various government authorities in a 24-hour period. Are these fans or is this surveillance? Perhaps it's a little of both (okay it's probably a lot more surveillance). At least it may provide an answer to what our public servants (especially Ecology) do all day.

If the authorities take so much interest in a little ol' blog, just imagine the malevolent interest they'll take in you if you get crosswise with any of their rules. Just ask Charles Dalton.

In the past 24-hours or so, the Trojan Heron has registered the following hits from various government agencies:

• 39 hits from the Department of Ecology
• 25 hits from San Juan County
• 16 hits from Tulalip Government Services
• 10 hits from Arizona State Government
• 1 hit from the Washington Attorney General

Thanks for stopping by!

Trojan Heron readers at various government agencies over a roughly 24-hour period. (Click to enlarge then right-click to download)

Election Spending Through The Roof -- Already

Reports from the Public Disclosure Commission show that so far Lovel Pratt has taken in cash contributions of $9,910. But even she is trailing candidate Lisa Byers from Orcas who has taken in a total of $11,902. The largest individual donor for both Pratt and Byers is Janet Alderton, Board member of the Friends of the San Juans.

Things that make you go hmmmm.

Click to enlarge

Living In A Post-CAO World

Today, we got our first look at the CAOs that were passed yesterday. They can be found at this link.

The County came out with a press release regarding Council CAO approval. As we review and analyze the final version, we will be providing our own commentary. At this stage, it appears as if many of the last-minute changes made by the Council were cosmetic. Councilwoman Pratt is quoted as saying that the CAOs represent "hard work" and "compromises," but the final CAO text appears to represent neither. It makes us wonder whether Pratt has a grasp of either concept.

Consider, as a brief example, the Reasonable Use Exception in the General Section. Aside from adding some meaningless platitudes up front about respect for private property, the Council left it alone. It's still the same old unreasonable Reasonable Use Exception that we've seen in every unacceptable draft up to this point. Nothing substantive has changed.

One of the local newspapers said the CAOs were "blessed" by the County Council yesterday. We think they have their religious imagery mixed up. The citizens of the County were cursed by it.

In a separate matter that might have implications for CAO implementation and general governance, a lawsuit was filed today to overturn the election results regarding Proposition 1 (Actually, the prayer for relief requests that all three propositions be invalidated. See comments below). Among other things, the suit seeks injunctive relief to stop the scheduled county-wide elections for three new councillors. Readers also may remember that there already is a separate lawsuit in progress regarding the behavior of Fralick, Miller, and Pratt and their secret CAO meetings. The year 2013 is shaping up to get off to a bang in what may be a year of continuous litigation for the County.

Interesting times.

Lamest of Lame-Duck Councils Passes the CAOs

Geologically hazardous and frequently flooded areas passed 6-0. All others passed 5-1, with Rich Peterson opposing. Miller couldn't resist jabbing at Peterson for his "no" vote on the General Section.

There were some important changes in today's final hearing, but we will have to wait for the final print copy to give a full report. In the meantime, here is footage of the actual vote and its effect on the County.

Crimes Against Nature Ordinance

Tomorrow, the County Council is poised to pass the Critical Areas Ordinances (CAOs). Despite feverish opposition, despite horrifically bad science, despite election results, and despite lawsuits, they press onward.

When I am asked to summarize the CAOs for the uninitiated, I find it difficult to find the words to neatly convey their content and flaws. Generally speaking, though, I have come to think of them as the Crimes Against Nature Ordinances (CANOs).

Imagine a crime has been committed. The crime is "general worldwide environmental degradation" and you are a suspect. You are a suspect because you are alive, and more specifically, you have "nature" on your property. You come into contact with "nature" during the course of your activities at home, too.

The vague wording of the new ordinances ensures that nearly everything is construable as protectable nature (e.g., habitat, water courses, aquifer recharge area, wetland, buffer, etc.). Nearly any activity could be construed as environmental harm, too. That's a dangerous formula. You might think you have nothing to worry about because you consider yourself to be "green" and you live harmoniously with nature. But these new ordinances do not care about that. In fact, the more harmonious and the more integrated your life may be with nature, the greater the potential risk that you might be elevated from suspect to alleged environmental criminal.

The person who will decide whether to prosecute you for crimes against nature is René Beliveau, the Director of Planning. It will be his decision alone. He has unlimited discretion. If he decides to prosecute you, you can either admit your guilt (thou shalt not suffer a witch to live) or pay $2,300 to fight the charge. If you fight it, you will need an army of expensive consultants to prove your innocence, and the people who will sit in judgment of your expensive new evidence will be the very people who accused you of the crime in the first place: namely, Beliveau accompanied and assisted by various and sundry "experts" from the State Department of Ecology.

If "they" disagree with your experts, and you still wish to fight, then you have to proceed with Hearing Examiner and court challenges.

There are still people in this County who think I am exaggerating. There are many who think they (and/or their loved ones) will never be personally subject to the enforcement aspects of this law. You are wrong ... flat dead wrong.  And none of it, absolutely none of it, will have anything to do with environmental protection.

Every locavore should be against these ordinances. Every permaculturist. Every gardener. Every homeowner. Every Democrat, every Republican, and every Independent. There is no protected class. We are all environmental suspects under this law.

It didn't have to be this way, but that is what this Council has done to us ... to our community. None of us should forget it.

Please also read the Island Guardian editorial.

This is how a farmer in Germany got around the permit rules.  Our situation may not be so humorous.

First They Came ...

Some Trojan Heron readers may be acquainted with the text of a statement by Martin Niemöller that describes the methods of totalitarianism witnessed in his native Germany. It was a simple formula: pick on specific groups one at a time and count on the silence of all the other groups. For Godwin's Law reasons, I try to avoid all references to the Nazis, but the Lunny situation (see previous post) makes me think of a Critical Areas Ordinance (CAO) variation of the Niemöller text:

First they came for the rural inhabitants of King County, and I did not speak out because I did not live in King County. 

Then they came for the country people of Eastern Washington and the Olympic Penninsula, and I did not speak out because I did not live there. 

Then they came for the farmers and fisherman of my County, and I did not speak out because I was not a farmer or fisherman. 

Then they came for the homeowners, and there was no one left to speak out for me.

Niemöller's original statement was published in a 1955 book by Milton Mayer, They Thought They Were Free, based on interviews he had conducted in Germany several years earlier

To avoid Reductio ad Hitlerium, I have to clearly state that, no, we are not fighting Nazis, but some of the eco-bureaucratic tactics and reactions by The People can be viewed in a similar light. My Niemöller-style text is but a poor attempt to convey some instances of this for the CAOs. I am sure that Trojan Heron readers could come up with much better versions.

Blast From The Past - How The CAOs Came Together

Some of you may remember Dr. Dr. Kenn Brooks. That's not a typo. I call him Dr. Dr. because he has two doctorates. Brooks was a participant in some CAO-related seminars here a few years ago. He lives in Jefferson County. Brooks challenged much of Ecology's Critical Areas Ordinances (CAOs) and Shoreline Management Plan (SMP) science, and I think we've gleaned enough through our own experiences to know that Brooks was right.

In the email below, we witness Ecology's reaction to Kenn Brooks and other citizens who dare to challenge Ecology (in this specific case, over SMP science, a prelude to our battles to come). It is a typical Ecology reaction, typically organized by Erik Stockdale, to typically malign anyone who confronts Ecology authority, and in typical style it involves way too many public officials discrediting citizens for no apparent reason other than the fact that the citizens are thinking for themselves. Like Delta Force going after terrorists, the Ecology pseudo-science squad deploys to crush independently minded scientists before they spread.

While the email below is about the SMP, Ecology approaches the CAOs and SMP with the same attitude. After all, the CAOs are really just the warm-up act for the SMP. Unlike the SMP, however, Ecology (Gordon White) asserts that the agency has no authority over the CAOs, which is a little puzzling considering they have a whole division of people working on nothing but matters related to it. Fork-tongued Ecology always seems to spend a considerable proportion of time on topics that they profess to have no involvement in. Maybe that's why Stockdale suggests the entire email thread should be deleted.

As a postscript, for a "public" servant Stockdale has an awful lot of conversations that he's thinks should be private. After looking through hundreds of Ecology emails, I wish I had a penny for every instance where Stockdale admonishes, "Please do not forward."
____________________________________________________

From: Stockdale, Erik (ECY) 
Sent: Thursday, April 01, 2010 4:07 PM
To: McMillan, Andy (ECY); Lund, Perry (ECY)
Cc: Hruby, Tom (ECY)
Subject: RE: hola

Andy, I just tried reaching you on your cell. Let¹s talk tomorrow.

Tom, please read this thread from the bottom. Can either Tom or Perry set up a conference call? I can be reached at 206-524-6858. 1pm works well for me.

At some point I think we should all delete this email thread.

Thanks, Erik

From: McMillan, Andy (ECY) 
Sent: Thursday, April 01, 2010 4:03 PM
To: Lund, Perry (ECY); Stockdale, Erik (ECY)
Subject: RE: hola

I am available Friday between 1-3.  I recommend we include Tom in the initial conversation unless you guys think otherwise.

From: Lund, Perry (ECY) 
Sent: Thursday, April 01, 2010 6:51 AM
To: Stockdale, Erik (ECY); McMillan, Andy (ECY)
Subject: RE: hola

I'm in the field today.  Here tomorrow.  I hope you're feeling better, Erik.

---

From: Stockdale, Erik (ECY)
Sent: Wed 3/31/2010 6:38 PM
To: Lund, Perry (ECY); McMillan, Andy (ECY)
Subject: RE: hola

Yes, agreed.

I¹ll be working from home tomorrow as I¹ve got a raging head cold. Are you two available for a phone call? I¹d say let¹s start with the three of us, and Kathy if she¹s available, and then take some suggestions to Gordon.

Thanks, Erik

From: Lund, Perry (ECY) 
Sent: Wednesday, March 31, 2010 4:34 PM
To: McMillan, Andy (ECY); Stockdale, Erik (ECY)
Subject: Re: hola

Thanks, Erik. We should continue this conversation, but it needs to be broader than us. Kathy must be involved, and Gordon had some good ideas. 

Perry J Lund

---

From: McMillan, Andy (ECY) 
To: Stockdale, Erik (ECY) 
Cc: Lund, Perry (ECY) 
Sent: Wed Mar 31 15:51:08 2010
Subject: RE: hola

Erik

I am disappointed to hear what Kenn had to say.  I believe that many of the statements you highlighted are misleading or untrue.

I will be glad to talk with you, Tom , Perry etc. to figure out how we respond.

Andy

From: Stockdale, Erik (ECY) 
Sent: Wednesday, March 31, 2010 1:30 PM
To: McMillan, Andy (ECY)
Cc: Lund, Perry (ECY)
Subject: hola

Hey Andy, hope you are doing OK. You missed an interesting meeting last week. Okay, I lie some times.

We (Gordon, Tom, Paula, Perry, Kathy) met with Ken Brooks, Don Flora et al. in Port Hadlock to discuss the Jefferson County SMP that is before Ecology for review.

He said some stuff that I don¹t think we should leave unanswered. I¹d like to go over what he said, pull in Tom Hruby, and consider setting up a conference call with Ken. Though he says he¹s retired, he keeps popping up in Bellevue, San Juan, Kitsap, and other places.

Some highlights:

-          We ignored Ken¹s supplemental BAS document, and our response was an unscientific diatribe.

-          You told Ken that Ecology didn¹t want to litigate the Jefferson County CAO. ³Andy said let¹s negotiate², implying that his supplemental BAS was a problem for us and we were concerned that we wouldn¹t win and would rather settle.

-          14 references didn¹t support the conclusions made by Ecology.

-          Sheldon et al. was incomplete because we ignored key documents.

-          He hasn¹t seen any scientific rigor in Ecology¹s guidance documents.

-          He¹s appalled by the lack of intellectual rigor and scientific integrity in Ecology¹s work.

-          We haven¹t done our homework, period.

-          There¹s no proof that existing buffers in Jefferson County don¹t work.

-          He wants ³showing of harm² to be rigorous.

-          There¹s no mention of the toxicity of tropalones in wood in our BAS (implying this was a fatal flaw).

-          Terrestrial insects, shade don¹t support salmon in marine shorelines.

-          The role of large woody debris in salmonid ecology is misguided. There isn¹t a tree to be seen in the copper river in Alaska, yet the river teems with salmon. Therefore wood isn¹t necessary.

-          ³Who says that 90% removal of a particular pollutant is what a buffer should be designed for?²

-          ³It¹s incomprehensibleŠ with all the criticism of Ecology¹s so-called peer reviewed BAS that the agency continues to push it on local governments.²

Perry may have other notes of some of his statements.

Am not feeling well and am going to head home to rest. Pls. don¹t forward this email.

Let¹s talk in the near future about a response strategy.

Thanks, Erik

Their Finger Is On The Button

As we approach the final hearings on the CAO (tomorrow 10:45 am), I feel it is an appropriate time to reacquaint ourselves with our vision statement from our Comprehensive Plan. As was noted in a comment to an earlier post, the preamble says:

WE THE PEOPLE of San Juan County recognize that these rural islands are an extraordinary treasure of natural beauty and abundance, and that independence, privacy and personal freedom are values prized by islanders. Being a diverse people bound together by these shared values, we declare our commitment to work towards this vision of the San Juan Islands in 2020 A.D.

The rest is pretty good too. Read it at this link, and judge for yourself whether we are living up to our common vision.

After you do that, reflect on the miserable quality of the scientific deliberations for the CAOs. Reflect on the baseless, blind ambition to invade islanders' privacy. Reflect on what the CAO restrictions will do to our sustainability, our self-reliance, our independence, and our personal freedom.

One of my favorite Facebook pages goes by the enthusiastic but somewhat improper name of "I Fucking Love Science", which is often abbreviated IFLS. I'll leave you with some of the posters and cartoons from IFLS that have particular resonance with the CAOs.

Okay, this last one is from the Economist, not IFLS.  We may not be Greece exactly, but have you seen the County's debt or the growth of its expenditures while we have frittered away time on the CAOs?