WA State DOE's Proposed Water Quality Standards comment period ends March 7th

Commentary by Steve Frank, President
Washington Rural Civil rights League

2/11/03

Washington State - The public hearing phase of the rule making process is finished but it is not too late to make public comments on the proposed rule. The end of the comment period is March 7, 2003. (See instructions below.) Where was the outrage! There was none for nobody knew.

The rule allows for the same intrusions on property and freedom that were present in the Shorlines Management Act. As you may know the Shorelines hearing board negated that rule for a variety of reasons. The Dept. has developed a more reasonable Shorlines rule by court edict.

Big Timber and Big Business is swallowing this rule as, the best we can get. Gone are the loud and vocal opposition of local government, counties, and the Association of Washington Businesses (AWB). I believe there are four main reasons for this:

1. Big Business has the capitol to comply with the rules.
2. They falsely believe that it won't hurt them.
3. They are tired of fighting something that seems to he a losing battle.
4. Most small businesses and rural counties are not aware of severe impact the rule can have on the economy nor do they have the resources to participate in the process.

One of the questions I posed to Ecology was why is the stakeholders group devoid of small business, rural property owners, and small cities and counties? The answer we don't know but probably because they didn't have the funds or time to partake in the process. This is egregious to leave out the people that the rule will impact the most. So again the elite get what they want through the exclusionary process.

All hope is not lost; large volumes of written comments are urgently needed. A grassroots movenent needs to be mounted at once for we can not sit back and let Ecology implement a rule that is based on the "best environmental assumptions!"

The rule is using out of date water temperature data, computer modeling that is being challenged by the National Academy of Science (NAS), and scientific studies that are all ready under attack by the NAS as flawed.

Below you will find my oral comments I gave at the Vancouver hearing, please feel free to use them as a basis for your written comments.

Have the old standards been met? I suggest not, some of your stakeholders feel the same way.

A-"Ken Johnson, Weyerhaeuser Company: "Argued that Ecology should have focused its attention on implementation, but instead the agency focused its energy on rewriting the rule."

1- The law states, the rule must be reviewed every three years, but it is silent on how often the Dept. must be revised or re-write the rule. Since compliance was never attained with the old rule, what facts do you have to support that the old rule was not effective and that a major rewrite is in order?

2- The DOE did not follow the mandated "adaptive management system" where the agency learns from their successes and failures, continually improving, and gradually modifying the rule to assure success. In this case, the Department scraped the old rule as insufficient, and now intends to adopt a new and more stringent rule. Again I quote Ken Johnson: "Moreover, there is no evidence that there will be an actual improvement in water quality." This is a powerful statement, "no evidence," was his statement ever refuted?

3- The Dept. did not follow the intent of the legislature, for they disregarded the "adaptive management strategy" as required by RCW 77.85.210 (8). Is the new rule based on up to date scientific criterion? It would appear not.

A- Water temperature data is not scientifically valid and stakeholder statements back this up.
(a) Ed Connor, Seattle City Light: "Described certain misconceptions and unexpected findings regarding diverse Bull Trout populations based on his field experience in the Skagit River. Emphasized the lack of knowledge about temperature regimes needed for bull trout and he described his efforts to collect additional temperature data."
(b) Duane Neitzel, Battelle Northwest: "Observed that the document did not use the scientific method of hypothesis testing."
(c) John Palmer, Environmental Protection Agency: "People should be careful about applying the national temperature guidance too strictly, since that guidance is based on outdated information."

4- Will private property owners be able to rely on SEPA protections from Ecology's mandates such as, "watershed restoration projects"? Absolutely not! Wider buffer zones, more use restrictions, and more property devaluation is probable.

A- Quoting RCW: "Decisions pertaining to watershed restoration projects as defined in RCW 89.08.460 are not subject to the requirements of RCW 43.21C.030(2)(c)." We lose the following protections through the watershed approach:
(a) "the environmental impact of the proposed action;
(b) any adverse environmental effects which cannot be avoided should the proposal be implemented;"
(c) "alternatives to the proposed action;"
(d) " the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity; and"
(e) " any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented..."

5- Will regulators be able to determine the best method of implementing the rule, so that it will produce the desired results? Again the answer is no. Regulators will use something called a "Decision Support System"(DSS) or computer modeling. According to ""Draft Phase III SOW and Decision Support System Information Meeting - November 14, 2001," held in WA State.

A-"The DSS is a gaming tool. It allows the user to try out different "what if" scenarios to meet the objectives of the March 2000 SOW and to test the results of different alternatives." But does it really answer questions? Not in the following case:
(a) "Q: What if you were trying, for example, to achieve a certain water temperature? Will the DSS tell you all the factors and management options available to get to that temperature?"
(b) "A: No, the DSS is not an optimization tool. This is more of a trial-and-error approach." It will be an expensive experiment for taxpayers and property owners.

6- Were most WA State residents fairly represented during rule formulation?

A- NO, of the 92 people invited 59 were government bureaucrats. Large cities like Everett, Seattle, Federal Way, and Tacoma were represented while only one representative from a small city was present. Grays Harbor and Pierce County sent one man each. Associations, lawyers, consultants, big business, and environmentalists were all represented and THE PLACE WAS DEVOID OF SMALL BUSINESS OWNERS, SMALL TIMBER OWNERS, PRIVATE PROPERTY OWNERS, INDIVIDUAL FARMERS, AND SENIOR CITIZENS.

7- Is Ecology pushing a one sided agenda? YES, for the following reasons.

A- The inclusion of "aesthetics" within the new rule which may stop the following:
(a) Logging operations that may be seen from a water body
(b) Road construction
(c) Commercial shellfish beds and barges
(d) Remodeling of houses and structures that are deemed not esthetically pleasing
(e) Agriculture operations, like construction of stock fences, corals, and watering facilities
(f) Housing developments that do not meet smart growth criteria!
B- The "DISCUSSION GROUP PROCEEDINGS OF THE NATIONAL WATERSHED FORUM" June 27 - 1, 2001 in Arlington, Virginia in which DOE took part. States:
1- Continuing to build a national constituency around the watershed approach needs to include the following:
(a) "Watershed groups"
(c) "Land trusts"
(d) "Non-industrial forest landowners"
(e) "Smart growth groups"
(f) "National environmental groups"
(g) "Others"
2- Left out of conference were farmers, ranchers, timber and logging interests, small business, and private property groups. In essence the people that will feel the impact of these rules the most. It is funny these are the same groups that were forgotten in the stakeholders meetings.

8- A government agency trying to push ANY agenda is egregious and I believe illegal; it is certainly immoral since the government and its agencies are supposed to represent everybody not just like minded special interest groups! Is the DOE hiding something? YES!

A- Reference: "Organizational Learning: Adaptive Management for Salmon Conservation" held in Bellevue, Washington, on December 3-4, 2001. In attendance was Mr. Dick Wallace, Assistant to the Director, Washington State Dept. of Ecology and he should have heard the following.

(a) The following statements are attributable to John M. Calhoun, Director: Olympic Natural Resources Center, University of Washington and Robert G. Lee, Professor, College of Forest Resources, University of Washington.

(1) "Over $3 billion has been spent on fish and wildlife recovery efforts over the last 20 years. Yet according to Cassidy, long term goals, objectives and strategies for salmon conservation have not yet been adopted by the Northwest Power Planning Council."

(2) "If this conference mapped the state of the art on organizational learning and adaptive management in the Pacific Northwest, we are compelled to conclude that organizations are not prepared to learn and make intelligent choices about salmon conservation."

B- The following came from Dr. Robert T. Lackey National Health and Environmental Effects Research Laboratory, Office of Research and Development, U.S. Environmental Protection Agency, Corvallis, Oregon

(a) "There are no algorithms for developing management objectives, no magic formulas for optimization, no ways to coerce democratic societies and institutions to follow a rational decision-making system. In fact, it is nearly impossible to measure the things that are really important to people. For example,"

· "How do you measure the trade-off between using water to grow potatoes vs. using the same water to grow salmon?"
· "How important to fishermen are wild salmon vs. salmon that started life in a hatchery?"
· "How important is preserving the icon status of wild salmon vs. preserving property rights?"

C- "Billions of dollars have been spent in a so-far failed attempt to reverse the long-term slide of wild salmon. Even more sobering, restoration is not exclusively a money issue. If it was, we could simply spend our way out of the decline by either buying off the political losers, or buying the things necessary for restoration."

Concluding Remarks

Substantial evidence points to billions of tax dollars spent for naught and few salmon were saved. This has resulted in the loss of our civil rights in property, a stagnating economy, the loss of rural culture, and a very real fear and loathing for the WA State DOE.

Now you have decided to save the Bull Trout, using the same failed methods with more stringent parameters! That is taking money under false pretenses and it is a crime. It is called fraud!

Comment instructions below:
You can download the proposed rule by going to this site http://www.ecy.wa.gov/programs/wq/standards/index.html

How do you submit comments? http://www.ecy.wa.gov/programs/wq/swqs_comments.html

Remember it is imperative to comment on or before March 7, 2003. Comments can be also be made directly to:
Susan Braley: Surface Water Quality Standards' Washington State Dept. of Ecology
PO Box 47600
Olympia, WA 98504-7600
(360) 407-7543
Fax: (360) 407-6426 Email: SWQS@ecy.wa.gov