Mysterious Lawsuit

I know ... I know ... the TH disappeared again, but we'll be back in the saddle again soon. Life happens.

A lot has been happening. No shortage of things to inform you of ... just a shortage of time to do it. Here's a smattering of what's been going on:

• There have been more departures of key staff from the county. 
• The OPMA lawsuit ruling came down from the State Supreme Court, and the County won ... and the decision drives a truck through the daylighting requirements of the OPMA. If there was ever a case that illustrates our County's (and now our Supreme Court's) commitment to secret government, this is it.
• CSA and the Friends have both petitioned the Washington State Supreme Court to hear the CAO case. The Washington Appeals Court upheld the County position that the County CAO ordinance is legal. CSA believes our CAO results in unreasonable takings ... a Constitutional violation. CSA is now being represented by the Pacific Legal Foundation (PLF). You can find PLF blog posts about the case here and here.
• The County Council gave up on passing greenhouse regulations. Now, they are focusing on the Shoreline Master Plan (SMP) update. The SMP update is a mess. We haven't focused on it much, but we will try to get some info to you as it progresses.
• And of course, we are in election season. There are important elections for the hospital on San Juan, Port Districts, and School Boards. Too many to cover in a short post, but feel free to comment in the comments section.

However, while we wanted to quickly update you on all the goings on in the County, the main reason for this post is to let you know about a mysterious lawsuit that has been filed in Skagit County ... yes, Skagit County ... against San Juan County. We heard about this from an announcement on King5 News ... or that is to say, that we would have heard about it from King5 News if it weren't for the fact that King5 News is currently blacked out on our Dish Network because of an ongoing dispute. Instead, a TH reader sent us a video clip of the King5 News broadcast. It sounds like the lawsuit might be about Portland Fair, but we don't know enough to be sure.

We will be watching as this story develops

They Should All Take A Sick Day

At this morning's citizen access time, there was an appearance by Shireene Hale, former head planner in charge of our CAOs, and David Dehlendorf, current head of the San Juan County Democratic Party and persistent supporter of Shireene Hale. You can watch their appearances on video at this link.

Now, before we talk about the Hale/Dehlendorf appearances of today, let's walk down memory lane for a moment. When heading up the CAO effort, Hale frequently claimed that the public intimidated her. She referred to some of our CAO public participation meetings as "awful". She even asked sheriff's deputies to show up at public meetings. When a former Planning Commissioner jokingly suggested that she might want to take a "sick day" as a means of avoiding one potentially contentious meeting, Hale accused him of (wait for it) ... intimidation. She also accused a former County Commissioner of intimidation, because of comments he made during a CAO meeting.

The County didn't abandon the "intimidation" angle after Hale left. It was adopted by Gibboney and Mike Thomas in their recent efforts to dump former Building Head John Geniuch. When contractors and other islanders supported Geniuch, the County claimed an angry mob was being organized (yes, Gibboney really did use the words "angry mob" in an administrative law hearing ... but the judge was not persuaded). Gibboney and Thomas took the "intimidation" melodrama so far as to send out an email instructing employees to call the sheriff if John Geniuch was seen on County property.

Okay ... now for the events of today. Hale shows up at citizen access time this morning and says that Pamela Morais (our local County Catbert) and Mike Thomas intimidated her prior to yesterday's public access time. Hale said they pressured her into withholding comments about Portland Fair. Dehlendorf then followed Hale's comments by calling for Mike Thomas to be reprimanded ... even resign, for intimidating a private citizen into silence.

Ever seen that picture of a snake eating itself? Shreene Hale, the woman who invented intimidation as public-participation kryptonite used it in her public comments to accuse her former employer of intimidation tactics that she used when she worked there ... which aforementioned tactics said employer still uses against employees and the public (e.g., Shireene presently).

The ever-composed Mike Thomas, who is accustomed to helping people invent intimidation stories rather than be on the receiving end, found himself out-maneuvered ... caught off-guard. After Dehlendorf finished, Thomas asked to make some comments himself. It stings to be out-smarted by Hale, and it showed in Thomas' comportment. Thomas said he was offended by the public access comments (although he didn't say they were untrue).

In upcoming posts, we'll explore the codependent relationship that has developed between the Council and Mike Thomas. It seems wherever Mike Thomas goes, allegations of misconduct follow. Mike Thomas has now been accused publicly of intimidating private citizens. The Prosecuting Attorney found that he violated County policies and procedures. This, along with other allegations, would appear to violate the County's employment contract with Thomas.

But, we have reached the point in San Juan County where Mike Thomas doesn't just run San Juan County government, he IS San Juan County government. Whatever Mike Thomas says, goes. The job of this Council is simply to back up Mike Thomas. They have given him raises, cleared him of wrongdoing. Mike Thomas is bulletproof. As the Prosecuting Attorney declared when clearing Mike Thomas of Improper Government Action (IGA) in the Portland Fair situation:

Manager has the duty to "comply with all lawful governing body directives, state and federal law, Employer policies, rules and ordinances. ..." See County Manager Employment Agreement and San Juan County Charter Section 4.40 and 4.41. The IGA Report mentions similar obligations of employees in the Personnel Rules Section 15, but the Personnel Rules (which have not been updated since the adoption of the Charter in 2005 or Charter Amendments in 2012) were not written to apply to management level employees and do not apply to the County Manager. See Section 1.010 and Chapter 4 of the 1992 Personnel Rules.

No rules apply to him. This is why Mike Thomas can approve (or disapprove) any wetland study ... or anything else for that matter. He can do whatever he wants, and the Council (and the PA too) have backed him. The dynamic that has emerged within the employment ranks of San Juan County is that if you are loyal to Mike Thomas, your job is safe. If you aren't, you will be eliminated.

Looks like Gibboney is safe.

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!

When is a Wetland not a Wetland?

We’ve been reviewing the statistical and demographic train wreck that is San Juan County, but we want to pause for a moment to update everyone on some current events.

During public comment at the County Council meeting last Monday (June 8), some citizens finally brought to light a situation regarding wetlands that has been brewing for some time. We’ve been following this story quietly, letting events unfold. Now it’s time to summarize some of the salient points and let the general citizenry evaluate this situation for themselves.

It’s a controversy involving wetlands … specifically some purported wetlands on San Juan Island in a development called Portland Fair. Now, before we get into the details of this story, we have to first state that we, at the Trojan Heron, have a particular point of view about “wetland science” and “wetland scientists”. Namely, if you were to send 5 wetland scientists out to an identical property, you are likely to get 10 different opinions about the presence of wetlands on that property. No matter how much mumbo jumbo may be spouted about the integrity of wetland science, the only repeatable aspect of this “science” is its non-repeatability. We’ve seen this time and again. For example, Adamus insisted his methods were essentially 100% correct regarding the presence and location of wetlands in the county, but we’ve seen numerous instances where the official county wetland consultant (Scott Rozenbaum) has disagreed with Adamus’ work, and so on. It invariably occurs that every wetland scientist is absolutely convinced about the veracity of his or her wetland determination for a particular property, but with inevitable regularity, that determination differs violently from that of every other wetland scientist who evaluates that same property. We won’t go into why that happens here … just suffice to say that such occurrences are a basic fact of life in the confusing wetland world, and it plays out in the story we are about to relate.

Our story begins with Sheryl Albritton. Albritton is a resident of San Juan Island, and she also happens to serve professionally as a critical area consultant. She was interested in buying a piece of property adjacent to her home. After performing due diligence on the property, including discussing wetland issues with the County (Annie Matsumoto-Grah), Albritton and her husband declined to purchase the property because they felt the parcel was too heavily impacted by critical areas issues, specifically wetlands.

Subsequently, another couple purchased the land, and Albritton soon noticed that the property was being developed in ways that she understood to be illegal. Albritton filed a complaint with the Washington Department of Ecology regarding the filling of wetlands on the subject property. Albritton also objected about San Juan County staff being overruled by management when they tried to perform wetland reconnaissance for the subject property, as per the San Juan County Code.

When the Washington Department of Ecology receives a complaint like Albritton’s, they fill out an Environmental Report Tracking System (ERTS) form and notify the local Code Enforcement Officer, who in our case is Chris Laws. Laws received the ERTS complaint for this situation, and he then had the responsibility to conduct an investigation, assisted by Ecology as appropriate.

Laws’ investigation found that County employee Annie Matusumoto-Grah had previously provided written information to Albritton saying that the subject parcel was potentially heavily impacted by possible wetlands; however, the new owners nonetheless had received County approval for their development from Annie Matusumoto-Grah … but Matsumoto-Grah’s approval came at the specific direction of Sam Gibboney, head of DCD, who stated that County Manager Mike Thomas walked the site with “local wetland expert JT” and found no signs of any wetlands. The “JT” evaluation circumvented the “normal” wetland ordeal that would typically afflict any other property owner in a similar situation.

Matusmoto-Grah had requested from Gibboney the identification of the mysterious “wetland expert JT” and his/her qualifications, but Gibboney refused to provide any information. Matsumoto-Grah nonetheless documented the situation as best she could in the county permitting database.

As Laws' investigation went on to discover, the new owners of the subject parcel had asked their local councilman for some “help” with their development project. This councilman, in turn, went to County Manager Mike Thomas to ask for a favor for his neighbor/constituent. While Mike Thomas has no expertise in wetlands that we know of (he’s a planner by background), his wife, Jennifer, is a wetland scientist. In fact, some of Jennifer Thomas’ work can be found in San Juan County's CAO Best Available Science on wetlands. Jennifer Thomas, as it turns out, is “JT”.

Jennifer Thomas’ drive-by and walk-through property inspection superseded the formal wetland reconnaissance required by the CAO County code. Apparently, wetland science includes the protocol that when (through your connections) you can get the right bureaucrats to say there isn’t a wetland on your property, you can avoid all the onerous requirements of the CAO ... while everyone else is thrown to the wolves.

In case you are keeping score regarding the opinions of the professional wetland scientists associated with this property, here’s the tally so far: Adamus thought there were wetlands on the subject property (hence the original advice by Annie Matsumoto-Grah), Sheryl Albritton thought there were wetlands. Jennifer Thomas (whose work is in the County BAS blessed by Adamus) didn’t think there were any signs of wetlands.

But wait … there’s more … while Laws was conducting his background investigation, Professional Wetland Scientist Doug Gresham of Ecology was undertaking his own evaluation in parallel. Gresham visited the subject property to conduct his own wetlands review, and he determined that there wasn’t just one wetland present, but three.

Okay … those are the “facts” … and then the alleged cover up began. The details are sketchy, but based on information pulled together from various sources; this is what appears to have happened since then.

Laws asked Ecology to formalize their 3-wetland finding in a report so he could place it in the enforcement file. A couple of days after agreeing to Laws’ request, Gresham of Ecology called Laws to tell him that he could not finalize his report because he was told by his superiors (the notorious Erik Stockdale) not to finalize it … because of political pressure.

Matsumoto-Grah, who had documented in an office memo the coercion and interference of Mike Thomas and the refusal of Gibboney to provide any information about “JT”, was then instructed to re-write her official statement to exclude any references as to how she felt about the involvement of Mike Thomas or Gibboney vis-a-vis normal staff procedure related to wetlands.

Based on the information gathered during his initial investigation, Laws filed a “whistleblower” complaint against Mike Thomas with Prosecuting Attorney Randall Gaylord for Improper Governmental Action (IGA). Reportedly, Laws has been the subject of harassment and intimidation within the County ever since.

And that’s where we will leave it for now … but there is more to tell … and more to come ...

The SJC permit database documents the involvement of JT (Jennifer Thomas) in securing the permit.

Ich Bin Ein Kay Kohler

One of the common threads in the environmental-ish world is that rules apply only to the non-environmental-ish segment of society. We've seen this at work with the Friends, who have long criticized guesthouses for everyone else, but seem to like them personally. Former Friends Board member, Vivian Burnet, had an illegal guesthouse. Former Friends President, Lynn Bahrych, who started off the whole guesthouse fiasco by filing a guesthouse lawsuit in 1999, had a guesthouse. Friends attorney, Kyle Loring, has a guesthouse. Former Friends President, George Lawson, has a guesthouse ... and there are probably others.

Another common thread in the environmental-ish world is to distort the meaning of "grassroots" and "local." Nowhere is this more apparent than in the oxymoronic title of the organization "ICLEI" ... which stands for the "International Council for Local Environmental Initiatives" with their motto of "Local Action Moves the World."  Think about that for a moment ... how can there be an "international" council about "local" initiatives? In the case of ICLEI, the global organization provides a blueprint for local communities to follow ... so that each community fits into ICLEI's overall design in jigsaw-puzzle like fashion. ICLEI isn't a local movement any more than McDonalds is a local diner. However, when we see the golden arches in Lubbock, Texas, or Paris, France, we understand we're seeing corporate McDonalds, not our hometown diner. But, we have not yet trained our eye to recognize that when we see the same environmental-ish battles cropping up in Plumas County, Marin County, Bainbridge Island, or San Juan County, we are seeing the corporate environmental-ish agenda at work, not a local one.

One of our local San Juan County citizens, Kay Kohler, has run into a spot of trouble on her family homestead that she inherited in Snohomish County ... and her situation has lessons for us in San Juan County because, incredibly, it is not an isolated case. In fact, Kay's situation is remarkably similar to the way Rachel Dietzman and our Prosecuting Attorney treated Lopezian Nicholas Padvorac during the Fisherman Bay Road Improvement Project.  We will explain that situation in a later post, but the message we want to convey is that you should pay close attention to the way the County interacts with its citizens on Public Works projects ... because this could happen to you. It's part of a developing pattern involving critical areas (in this case, wetlands, but it could just as easily be shorelines or something else), Public Works, stormwater (think Eastsound mosquito hatchery), contractual fine-print, and the legal power of bureaucratic whim.

The five acres that Kay Kohler owns in Snohomish County was bought by Kay's grandfather in 1936. Kay has old photos of the place dating back to that time, showing what it looked like then. When Snohomish County started developing rapidly, the Kohler clan did not sell the farm, which is located just north of Lynwood.  They held onto it, and houses sprang up on all sides. In 2007, the County wanted to purchase a portion of Kay's property for a road improvement (stormwater) project, and in 2009, after three separate appraisals, Kay agreed to sell one acre of her property to the County for $404,000. At the time, it seemed like a pretty straightforward deal, and neither Kay nor her (now former) attorney noticed that the fine print of the contract said that the County could change the valuation of her property after the fact through "condemnation" or "some other" method. 

In November 2011 ... two years after the sale ... the County hired an "expert" to re-value Kay's land.  The new expert valued the 2009 land transaction at just $48,750 because, the expert claimed, Kay's land was covered by wetlands and was hardly worth anything because it was un-developable. Snohomish County then condemned Kay's land for $48,750 and demanded that Kay hand back $355,250. Then, the County began court proceedings to get its money back.

Notwithstanding that Kay has photos stretching back over 70 years showing her land as not being wetlands ... notwithstanding that the County, as development proceeded apace in the 80's and 90's, configured their stormwater system to dump millions of gallons of stormwater on Kay's property without  her consent ... notwithstanding that Snohomish County has an NPDES permit that prohibits stormwater discharges that bypass their system ... all that notwithstanding, Kay's legal case was bungled and she lost both her court case and her appeal.  Snohomish County is now threatening to freeze Kay's bank accounts in order to get back its $355,250.

Ironically, after declaring Kay's stormwater-flooded property to be "waters of the United States" (i.e., a wetland), Snohomish County then failed to get the required permits from the Corps of Engineers (Section 404 Permit) and the Department of Ecology/EPA (Section 401 Permit) that are necessary for construction projects occurring in wetlands. Is it a wetland only when the County wants to get it for a cheap price, but not a wetland when the County wants to avoid getting the federal and state permits needed to build on it?

And so it goes ... rules only work one way in Snohomish County ... just like they do in San Juan County ... (ethics too, and an upcoming post will examine the controversy currently being manufactured by David Dehlendorf and Kyle Loring about our Planning Commission).

Note: ICLEI has recently changed its name to Local Governments for Sustainability even though it continues to use its original acronym of "ICLEI."

Shireene Hale's Pattern Of Behavior

Yesterday, the Council selected Michael Thomas as the new County Manager.  Thomas is from King County and has a planning background. Mr. Thomas, you have your work cut out for you because our Planning Department functions like a rogue government within a government, with a functional head who openly despises public participation and dissent.

In the email below (from a year ago), Hale discusses her reaction to a CAO public meeting that was, from our perspective, one of the greatest meetings from a public participation standpoint. It was one of the worst from the standpoint of the reaction of public officials.

Once again, Shireene Hale thinks dissent is violence. Someone who regularly cannot tell the difference between dissent and violence may not be stable enough to deal with the public, and perhaps we should be concerned about her reactionary behavior or the irrational steps she might take.

Who is the threat here? It makes me wonder whether Hale will start coming to meetings armed and dangerous. In more ways than one, we need protection from Hale.

From: Shireene Hale [mailto:shireeneh@sanjuanco.com]
Sent: Tuesday, April 10, 2012 11:54 AM
To: Colin Maycock; Jon Cain; Lovel Pratt; Patty Miller; Pete Rose; Randall Gaylord; Rene Beliveau; Richard Fralick; Shireene Hale
Subject: Agenda for Monday CAO Implementation Team meeting?

Good morning,

What do you all have for agenda items for the Monday CAO/SMP Implementation team meeting? Colin will not be attending as he will be in Costa Rica.

At this point I have two items:

*         Conduct of public meetings on CAO and SMP.

*         Alternatives for getting the wetland and fish and wildlife regulations through the approval process.

Conduct of Public Meetings

On the conduct of public meetings, I would like to discuss options for ensuring that our citizens, staff, consultants, Council and Planning Commissioners do not feel threatened or intimidated, and to ensure that comments are focused on the issues, and not on blaming or attacking individuals. Problem meetings in the past few months include the last three Planning Commission meetings (particularly the March 6 meeting), the San Juan town hall meetings, and the Orcas SMP meeting.

For those that have not heard, we are aware of two separate instances of people discussing the use of guns. One was a warning from someone that works at the Orcas fire station, the other was a conversation overhead on the ferry. Chances are nothing will happen, but given the way John Evans and others are stirring up fear, hatred and hostility, and given some of the testimony we heard on March 6, I don't think the possibility of violence should be dismissed. 

In addition, prior to the March 16 Planning Commission meeting, Gordy Peterson suggested to Janice  that she should consider calling in sick rather than attend the meeting, because "it was going to be ugly". This may constitute intimidation of a public servant under RCW 9A.76.180 and 9A.04.110. Given everything that is going on, it was intimidating to those of us charged with running the meeting. 

Alternatives to help with the public meetings include:

*         A clear statement from our leaders (Patty and/or the full Council ?) assuring people that we will get through this and that their comments are being considered. Other topics that could be touched on include reassuring people that if their house burns down, they will be able to replace it; that we are doing are best to keep costs down; that we are trying to find the least intrusive approach that will pass muster with the Growth Board; that what we are trying to develop is a moderate approach that is more fair and tied to the current science than the Ecology recommended regulations; that we are all friends and neighbors, and though we may disagree it is important to be civil and respectful of one another so that all points of view can be heard, and so that people don't feel intimidated; that we will try to find the resources to refine
the wetland map so that is does not show man made ponds that are not wetlands; and encourage people to read the proposals for themselves, rather than believing what others are telling them. 

*         Do what we can to get through the rest of the process in as efficient a manner as possible, to remove the anxiety associated with uncertainty.

*         Consider holding a joint PC/ CC hearing on the fish and wildlife amendments, to provide the staff and Planning Commission, and particularly the Planning Commission chair, with some additional support, and to help move the amendments along through the process. 

*         Hold all meetings in the Council chambers so that they can be live streamed. If F&W is a joint hearing with the Council, perhaps testimony could be taken from the Orcas and Lopez libraries (we don't have the capacity to do it without assistance and another staff person).

*         Consider having a deputy present for the hearings/ meetings. We have been trying to avoid this - but it may be time to give it serious consideration.

*         Consider developing clear expectations of conduct, enforced by the chair, and let everyone know what they are and what will happen if they are not followed. I suggest that clapping, jeering, cheering, and statements that are focused on individuals rather than issues not be tolerated. Options include asking individuals to leave, and if the Planning Commission/ Council are in deliberations (testimony is not being accepted), if necessary the room can be cleared so that deliberations can continue without the disruptions.

Adoption Process for Wetlands and Fish and Wildlife Amendments

Regarding the approach for getting through the remainder of the process, following is a schedule I sent to Patty yesterday.

Wetland Amendments

April 23 - Signed PC draft of wetland amendments and staff report submitted to Council.

May 1 - First touch to review PC recommended draft, findings and recommendations (including the  recommendation for a conference call between the Council, Dr. Adamus and Dr. Mayer, to discuss whether we are properly applying Mayer et al. 2007, and to consider using a paper by Xuyang Zhang et al. (2010) as a guide to buffer width, rather than Mayer
et al.)

May 7 - field trip (may be just wetlands - if we can get the F&W draft out prior to then, could be both wetlands and F&W).

May 9 - publish hearing notice

May 21 or 22 - CC hearing on wetlands (half day?)

??? - deliberations (probably need a full day)

F&W Amendments

Prior to June 20 - release hearing draft and publish notice.

July 9 or 10 - Joint PC/CC hearing, with PC deliberations in July, followed by CC deliberations. If necessary CC can hold another hearing on another draft prior to consistency review. (Note: I am out of town on vacation June 18 through July 4).

Note: Having a joint hearing does a couple of things. This is likely to be a difficult hearing and it provides the Planning Commission and CD&P staff some support that they don't normally have. It also helps us get through the steps in a more efficient manner. 

Please let me know if you have additional items for discussion.

Shireene

CAOs Appealed By Two More Parties

This is a developing story so this posting will change as details emerge.  Today, the Common Sense Alliance (CSA) filed appeals with the Growth Management Hearings Board (GMHB) over the General, Wetlands, and Fish and Wildlife CAOs. In a separate move, the PJ Taggares Company, a property owner on Blakely Island, also filed an appeal. Both parties are represented by Sandy Mackie of Perkins Coie.

Unlike the Friends of the San Juans, both of the new appellants had vigorously urged the County not to pass the CAOs until the alleged substantial flaws could be remedied.

More as this story unfolds.

Update On "Wetland Science" vs. Hydrogeology

This blog was born out of the Charles Dalton controversy. In that situation, Dalton was accused of conducting various illegal activities in wetlands, including constructing buildings in wetland and riparian buffers. Wetland scientists claimed that a wetland and a stream existed on the Dalton property. Hydrogeologists said otherwise and presented countervailing evidence.

The battle between wetland scientists and hydrogeologists has been going on since 2008, and it was kicked off right here in San Juan County. That's when a resident state-licensed hydrogeologist first filed complaints with the Washington State Board of Geology about wetland scientists. Wetland scientists seemed to be practicing hydrogeology without having the necessary license or skills. Wetland scientists and their checklist methods seemed to be getting the hydrology of "wetlands" completely wrong.

After the Dalton case made news, the professional disagreements between hydrogeologists and wetland scientists intensified. State Geology Board meetings are typically pretty boring affairs, but in 2012, they were frequently attended by angry citizens and licensed professionals all complaining about wetland scientists. Wetland scientists also presented their case (especially at the December 19 meeting), including heavy-hitters from the Department of Ecology such as Erik Stockdale. 

The wetland science-hydrogeology drama even encompassed the Attorney General's (AG) Office in 2012. A state legislator asked the AG to provide a legal perspective on the controversy. After months of waiting, we were finally treated to an unofficial AG opinion that essentially said nothing, and it placed the onus back on the Geology Board to resolve the dispute. While this was happening, public records requests to the Geology Board turned up evidence that Geology Board staff members (not the Board members themselves, but staff) may have been working all along to protect wetland scientists from scrutiny by the Geology Board. Emails between staff members and prominent wetland scientists suggested a very cozy relationship that raised suspicions.

Meanwhile, back here in San Juan County, every effort was being made by CAO supporters to discredit hydrogeologists and develop wording for "qualified professional" in the CAOs that would exclude hydrogeologists from ever being involved in wetland delineations.

In short, it's been a crazy year full of maneuvering, but the relevant arguments before the Geology Board have boiled down to the following: 

• Hydrogeologists claim that wetlands are waters of the U.S. (or State) and hydrogeology is the science dealing with the occurrence and distribution of the waters of the earth. Therefore, wetland delineation is hydrogeology. Moreover, hydrogeologists claim that "wetland scientists" have become involved in many hydrogeological activities not directly related to wetland delineation such as stream studies (e.g., geomorphology) and groundwater investigations.

• Wetland scientists argue that they are following procedures specified by State law (i.e., the wetland delineation manual), and their "science" deals only with shallow groundwater and other activities confined to the upper meter of the earth. As such, it is not geology/hydrogeology. Also, wetland scientists argue that their science is multi-disciplinary, involving plants and soil science, and is therefore not geology/hydrogeology.

On December 20, the Washington Geology Board weighed in with a new policy regarding the practice of wetland science and hydrogeology. Essentially, the Board agreed with the hydrogeologists; however, the Board allowed a limited carve out from the geology licensing laws for qualified wetland professionals who only make observations and apply those observations per the checklists referenced in State law.

In short, wetland scientists can do nothing more than make observations for the purpose of completing the wetland delineation checklists. Wetland scientists cannot offer interpretations of geochemical conditions or water tables. They cannot evaluate or identify streams, geomorphology, or conduct shallow groundwater investigations. The Geology Board, it seems, considers the checklist-based delineation activities to be non-professional activity -- it's technician-level box-checking work. Indications are that the Board thinks the wetland delineation methodology (as it relates to geochemistry and hydrology) is such a poor methodology that, like water witching/dowsing, the Board cannot bring itself to regulate it as the science of geology/hydrogeology. Therefore, the Board will allow delineation checklisting to survive under a very limited "exemption" from the geology licensing laws because such activities are so far beyond the pale of real science and because the checklist activities are enshrined in State law.

However, the Board went on to clarify that anything beyond checklisting is the practice of hydrogeology, and authentic hydrogeology informs the wetland delineation process.

The interpretation and application of hydrogeologic data, beyond the observation of shallow groundwater, used to inform the multidisciplinary wetland delineation process is included in the practice of hydrogeology as adopted by state law (RCW 18.220 and WAC 308-15).

You can read the entire Board policy here. This new policy means that hydrogeologists cannot be excluded from practicing in wetlands, and hydrogeologists can use any of their normal professional methods to investigate and make interpretations relevant to wetland delineations. As professionals subject to Board review, hydrogeologists are not restricted to using delineation checklists and checklist methods to draw conclusions related to hydrology and hydro-geochemical conditions in wetlands, which are two conditions precedent to wetland occurrence.

The bottom line is that the work of licensed professionals (hydrogeologists) trumps the box-checking activities of technicians (wetland scientists). For both scientific integrity and individual rights, this was one of the most significant victories of 2012.

   

Countdown to CAOmageddon: Flaw #51 - Clear As Hydric Soil

The countdown was temporarily interrupted because of posts associated with alleged wetland excavation/filling by our Council Chair, Patty Miller (see previous two posts and Flaw #48). It appears that she may have been confused about where "possible" wetlands lie on her property.

How could she be so confused? Just because various maps conflict, the opinions of different experts conflict, and her personal experiences and historical uses of her property conflict with the current "possible" designations? Is that all?

Under the new CAO, after she sorts all that out and "knows" where the wetland boundary is, all she has to do is apply the buffer. What could be easier? Looks like some of Miller's wetlands might be associated with streams. Just follow the simple steps in the proposed CAO. Here are a couple of steps excerpted from the Fish & Wildlife Habitat CAO.

Step 3. Determine the width of the water quality-sensitivity buffer using the procedures in SJCC 18.30.150 (Wetlands) and Table 3.6 for 70% pollutant removal and either the normal development or the green development option). The water quality-sensitivity buffer extends landward horizontally from the bank full width of streams (as defined in WAC 222-16-010), and the OHWM for lakes, ponds, and marine shorelines.

Step 7. Buffers, Tree Protection Zones, and Existing Development. Where structures or impervious areas, legally established prior to the effective date of these regulations, encroach into a required buffer or tree protection zone, the buffer or zone shall be modified to exclude the footprint of those structures and impervious areas. Buffers and tree protection zones shall not extend across public roads. For private roads, buffers and tree protection zones shall not extend across the road when the road design, flow of runoff, quantity of traffic, and/or gap in tree canopy result in an area that does not support functions and values of the FWHCA to be protected, as determined by a qualified professional. Structures, roads and impervious areas may be modified, replaced, relocated, or expanded within the development area existing on the effective date of these regulations, in conformance with the procedures and requirements of SJCC 18.30.110.G.

And there are 53 pages that read just like that in only the Fish & Wildlife CAO alone ... full of more steps, flowcharts, definitions, and rules. It reads like the demented science-wannabe stream-of-consciousness ramblings of an OCD über-bureaucrat working for the nanny-state from hell.

Environmental protection? I think not. Something else is going on, and it's very very wrong.

It's a matter of time before every one of us gets wrapped up in the same eco-Gordian Knot. Miller's situation isn't so much about Schadenfreude; it isn't gloating; it isn't Vivien Burnett. But it should be a demonstration that all of us will get caught up in this mess, and I don't know why Miller or any other Council person supports the track we're on.

Do I think Miller is killing the planet or doing any serious harm? No, she probably isn't. She might even escape the regulatory red-tape nightmare, but most of the rest of us won't. Of those of us that are caught, only a few will be able to afford the time and money to persevere through the red tape tangle. People will, and are, turning on one another, and the same people who talk longingly about civility are the ones undermining it with their support for unjust, punishing, eco-pointless laws. And our community way of life is paying the price.

Patty Miller ... other Councillors who support this fiasco ... this is your life ... and legacy.

Patty Miller and the Wetlands on her Property - Her Response

**UPDATED**
The Trojan Heron received this reply from Patty Miller in response to the questions about the work on her property and wetlands (original post and comments can be found at this link).

We don't know the County's position about this, and of course, if you remember the way the Charles Dalton story developed, his activities triggered a cascade of emails between the Friends, Ecology, and the County, resulting in several "visits" from those groups.

Based on the information available to the Trojan Heron, and depending on which map is used, then the alleged work seems to have happened either in, or very close to, one or more suspected wetlands (see maps below).

Wow ... if a County Councillor finds it this hard to follow the rules, imagine what all this conflicting information will mean to the rest of us.

_________________________________________________________________

Thank you for the opportunity to respond to the concern raised on your website. 

My property in Olga does have a number of wetlands.  Over the years I have had buildings built and cleared a small portion of land.  I have obtained the building, storm water, and forest practices permits required for these projects.  Each of these projects have required wetlands assessments at varying levels and thus I have consulted with several wetland experts to learn more about the wetlands and to inform how I develop my property.   Additionally I allowed the County to assess and inventory the Category II wetlands as part of the work to develop the possible wetlands map.  I do not believe that I am doing any work in a regulated wetland or its buffer.   The work that is being questioned is a small project in an area next to an old road/trail that we use to get to the back portion of the property and does not include any filling or bulldozing.  I believe this work is well outside any buffer associated with these wetlands.  If any citizen has a concern about my conduct I encourage them to file a complaint with the County's Community Development and Planning department.  I have tried to learn and live by the laws developed in San Juan County and expect that I would be held accountable to them.  We have a process that is intended to identify and resolve these issues.  This is the most appropriate and constructive process to follow. 

Sincerely,

Patty Miller

Miller's property with possible wetlands as shown by the County GIS map.  Yellow circle is the approximate location of  where the work is believed to have occurred.

US Fish & Wildlife Service National Wetland Inventory Map of Miler property.  Yellow circle shows approximate location where work is believed to have occurred.

Possible Wetlands Map associated with the current Wetland CAO proposal.  Orange circle is the approximate location of where the work is believed to have occurred.  Green areas are possible wetlands.  Black lines are un-typed streams.

Miller's Property with possible wetlands (green) and streams (blue) as mapped by Adamus. Yellow circle on adjacent parcel (also owned by Miller) is the approximate location of where the work is believed to have occurred.

Another Gem From Hruby

Much of the information, data, and reasoning that comes from the "experts" associated with the CAOs is embarrassingly poor. The emails below from Tom Hruby are about as bad as the letter he and Erik Stockdale co-authored to the Council on February 4, 2011. In that letter, I feel they demonstrated their complete ignorance of environmental risk. Their explanations appeared to confuse environmental risk with Type 1 and Type 2 error. I can only conclude that they have no idea that error, risk, uncertainty, and level of concern are all different concepts. To me, it's astonishing that they have their jobs without having a fundamental grasp of the differences among those concepts, much less be qualified to speak to the merits of statistical papers like Mayer.

At some point, the TH will post the Stockdale/Hruby 2011 letter and dismantle its reasoning. For now, have a look at the more recent Hruby missive below. It's hard to know where to begin commentary because it is just so awful, but maybe the best approach is to provide a few overall observations.

For Hruby, it seems the nitrogen cycle isn't a cycle. He only acknowledges nitrogen sources, but not denitrification.  He doesn't recognize that grasses (including corn) are heavy nitrogen users, and that's why people fertilize grass in the first place, so as to provide the added nitrogen that grasses demand.  Anyone who has ever had a compost pile knows that grass is almost pure nitrogen. And I don't know anyone in the islands who is even a moderate user of fertilizers, except perhaps the golf courses. Also, I don't think I've ever seen enough corn on the islands in one spot to qualify as a corn field either.

Hruby apparently is afraid of horse poop too, not realizing that the nitrogen in the poop is used by the grasses that get pooped on. The juxtaposition of his "grasses need nitrogen" point with his "manure has nitrogen" point shows no appreciation that the two competing processes might offset one another and be in balance here in the islands. Heck, with the surfeit of unfertilized hay that we grow, I would venture to guess that we might even suffer from general nitrogen deficiency and need more horse manure to be in balance.

The more these guys talk, the more it seems like we live in Bushwood Country Club and we're trapped in the movie Caddyshack.  Maybe given the leading role of Dr. Adamus, we should refer to it as Addyshack? How long before the experts recommend that we ban Baby Ruth bars?

I particularly enjoy how Dr. Hruby cites Europe and Australia when addressing Patty Miller's question about sources specific to San Juan County.

_______________________________________________
From: Patty Miller [mailto:PattyM@sanjuanco.com] 
Sent: Sunday, June 03, 2012 9:35 PM
To: Shireene Hale; Ingrid Gabriel; howier@sanjuanco.com; RichardF@sanjuanco.com; richp@sanjuanco.com; LovelP@sanjuanco.com; jamies@sanjuanco.com
Subject: FW: Our discussions regarding pollutants coming into wetlands

Hello,

I apologize for not forwarding this to you all earlier.

Thanks, Patty

From: Hruby, Tom (ECY) [mailto:thru461@ECY.WA.GOV]
Sent: Friday, May 18, 2012 9:36 AM
To: Patty Miller
Cc: Stockdale, Erik (ECY)
Subject: Our discussions regarding pollutants coming into wetlands

Dear Patty, 

I would like to summarize our conversations and my e-mails from yesterday into one to make it easier for you to follow my thoughts.  Please dis-regard the e-mails I sent yesterday, especially the first one that had an error in the math.

As I understand it from our conversations, you are concerned about three major issues (and please correct me if I am wrong):

1.       Do the articles referenced in the Mayer paper address the pollutants commonly generated in the dominant land uses of San Juan County?  Since most land uses in the non-urban areas do not generate toxic or hazardous materials, the removal of these compounds by the buffer is not a significant issue. 

2.       Were the amounts of pollutants used to calculate the removal rates in the articles reviewed appropriate for the amounts that might be found coming from the dominant land uses in SJ County?  

3.       Do we need to have a 75-80% removal of pollutants in the buffer if the amount of pollutants coming in is very low in the first place. Could we get by with a lower % removal because the amount coming through the buffer was so low? 

My analysis of your questions:

1.       Yes, the Mayer article does address pollutants generated by the rural land uses in SJC.  The Mayer article reviewed the literature on the removal of nitrogen by buffers.  First, when scientists talk about pollution from nitrogen we do not mean nitrogen gas but rather the different nitrogen compounds that act as fertilizers for both terrestrial and aquatic plants.  Excessive amounts of "nitrogen" cause eutrophication in wetlands, streams, ponds, and lakes.  The BAS report for SJC mentioned that nitrogen removal could be used as a surrogate for the removal other toxic pollutants and I think this is where it became confusing.  The major pollutant coming from the  rural and agricultural land uses common on the islands is nitrogen in form of fertilizers and ammonia and nitrate in animal wastes. Since the Mayer paper reviewed only the articles on nitrogen removal it is appropriate to use it for SJC.  If the lands uses in SJC do not generate toxic materials then we do not have to assume that the removal nitrogen can be used as a surrogate for the removal of toxic pollutants as well.  It becomes a moot point.  In urban and suburban areas of the county however, it is an issue because of the application of herbicides and pesticides used in gardening and landscaping. 

I should mention however, that there is one other pollutant coming from rural land uses that can be an issue.  This is pathogens (coliform bacteria and viruses) from animal wastes.  This is not considered an "toxic" material but it is a pollutant.  Pathogens by themselves have little impact on the functions of a wetland, but they do become an issue if the aquatic resource downstream is a source of drinking water or recreation.  Buffers can remove pathogens before they reach aquatic resources. 

2.    Most of the 88 articles used by Meyer to develop his model of nitrogen removal measured nitrogen removal in the field under actual conditions.  The studies were done throughout the country and in Europe and Australia.  The sources of nitrogen to the buffer zones therefore represent a wide range of different land uses that generate different amounts of nitrogen.  Some of the studies were done in forested system where very little nitrogen is released and some were next to pastures and cattle feedlots where the amounts (called the "loading rate") were extremely high. For example, one article (Hubbard and Lowrance 1997) looked at the effect different forest practices had on nitrate removal in buffers while another (Young and others 1980) looked at nitrate removal in buffers where the runoff came from feedlots.   

My conclusion is that the amount of nitrogen coming from the rural land uses in SJC fall within the amounts that were used to develop the Meyer's model of % removal. I did a quick search of how much nitrogen is applied in the land uses most commonly used for the buffer studies (agriculture, urban, residential)

For agriculture, corn is one of the most nitrogen demanding crops and it requires about 100lbs of nitrogen per acre per year.  Most crops require 50 - 100lbs/acre.  Note: nitrogen loading rates are measured as lbs of "atomic" nitrogen per acre.  For example there is only 1 lbs of nitrogen in 6 lbs of sodium nitrate, the rest consists of sodium and oxygen.   

         For residential lawns, the recommended amount is about 40-50 lbs nitrogen/acre per year thought most people apply more. 
www.neuse.ncsu.edu/lawncare.htm 

         For pasture grasses it is about 60-80 lbs N/acre/year http://www.extension.iastate.edu/Publications/PM869.pdf 

I believe that the biggest source of nitrogen in the rural areas of  SJC would be livestock of one type or another (horses, cattle, sheep, and even the camel on San Juan Island).  The amount of nitrogen coming from livestock in the county can fall within the range found for other land uses.  For example, a horse produces 9.1 tons of manure per year (see attached report).  Typically a ton of horse manure will contain 11 lbs of nitrogen so one horse will produce 100 lbs of nitrogen per year.  If that horse is confined to one acre the "loading rate" for nitrogen is similar to the highest level that is applied in agriculture.  If that one horse is pastured on 5 acres the loading rate is still 20lbs/acre/year.

3.    The one question I cannot answer is "how much removal is enough?"
If a rural land use generate 20lbs of nitrogen per acre per year is it adequate to remove 50% of this in the buffer or do we need to remove 80% to avoid impacts to the water quality in the wetland?    None of the articles cited by Mayer address this question and I have not been able to find any published research on this subject.  There is much research on eutrophication lakes caused by fertilizers, but none that I have found on eutrophication in wetlands.   The decision then becomes one of policy.  How much risk we are willing to accept?  We can be pretty sure that there will be little risk that the wetland becomes eutrophic if we remove 90 - 100% of the nitrogen going into it.  Removing only 80% increases the risk, and this goes even higher if we remove only  50% of the nitrogen coming in.  As you mentioned it may be worthwhile exploring buffer regulations based on the density of livestock upslope of the wetland rather than the size of the lot when addressing water quality. 

Tom 

Tom Hruby, PhD, PWS
Senior Ecologist
Washington State Department of Ecology
PO Box 47600
Olympia WA  98504
(360) 407-7274
tom.hruby@ecy.wa.gov <mailto:tom.hruby@ecy.wa.gov>

Friends Board Member Wants Ag Restrictions

No Ag, no septic, no view.  Why doesn't she just say, "No people"? This is a letter from Janet Alderton, a Friends Board member who is considered a technical expert on the CAOs by CDPD. She's also one of our most outspoken citizens about the CAOs.

Outspoken? ... hmmm ... that doesn't quite capture the frequency and tone of her comments from my perspective.  Abundantly outspoken? ... artless perhaps? ... relentless? As always, you decide. However, if you added up Janet Alderton's emails (word count especially), transmitted articles, private meetings with staffers, technical meetings with government staffers, comments during citizen access time, and hearings testimony, I doubt there is any other citizen who can match her volume of CAO-related comments. There is probably no other citizen who has had freer access to the CAO process.

Never was so much said by so few, it seems, and I think it suggests that some of us are more equal than others.
_____________________________________________________
From: Janet Alderton [mailto:jmalderton@yahoo.com] 
Sent: Tuesday, May 15, 2012 3:41 PM
To: Lovel Pratt; Rich Peterson; Howard Rosenfeld; Richard Fralick; Patty Miller; Jamie Stephens
Subject: Fish&Wildlife CAO draft May 1, 2012

May 15, 2012

Dear County Councilors & Planning Commissioners,

A "High Risk" approach requires monitoring of both water quality and habitat components to assure "no net loss" of Critical Area functions and values. The May 1, 2012 draft of the Fish and Wildlife Habitat Conservation Areas (FWHCA) component of the Critical Areas Ordinance update moves beyond a "Moderate Risk" approach in the following key areas.

1. On page 24 of 36, Table 3.10 f. permits new and expanded agricultural activities in critical areas, the first 50 feet of the buffer closest to the water, and in the remainder of the buffer. There is no special consideration given to threatened, endangered, or sensitive species (Table 3.12) or to habitats of local importance (Table 3.13). Best Management Practices must be used, but these practices do not protect locally important habitats and the species that live within these habitats. The Voluntary Stewardship Program for agriculture requires water quality monitoring, but Table 3.10 f. requires no monitoring for water quality. 

Limited new and expanded agricultural activities might be permitted in the outer portion of a buffer (outside of the first 50 feet closest to the water) for Critical Areas without the species listed in Table 3.12 and for Critical Areas that do not contain the habitats listed in Table 3.13. Water quality monitoring should be required as it is by the Voluntary Stewardship Program.

2. On page 26 of 36, Table 3.10 r. Components of on-site sewage systems should be permitted only in the outer 25% of the buffer (not in the entire buffer), and annual testing of the septic system should be required and enforced. 

3. On page 27 of 36, #6, the variance for a "view," is vague and will allow a building to be sited anywhere on a parcel. #7 is specific for a 90-degree view from the shoreline. #6 should be removed from this draft ordinance. Mitigation should be required for a variance in a Critical Area as it is required for the Reasonable Use Exception.

Thank-you,

Janet Alderton
PO Box 352
Deer Harbor, WA
98243
360-376-3905