Monthly Archives: June 2010

Mitigation – reduce the severity of an action by lessening the impact.

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This is the third in a series of posts about replying to the assumption by Lacey’s city manager Greg Cuoio that mitigation is a good way to provide more water for the city of Lacey. You can read all the posts here.

The concept of mitigation has commonly been used to address environmental impacts, growing primarily out of the efforts to achieve no net loss of wetlands over the last few decades. I’ll leave you to your own conclusions about how successful that has been.

However, there is a substantial body of information to guide mitigation decisions by defining the functions, quality and amounts of resources that are impacted. Due to uncertainty of success, design and construction variability, our lack of understanding about recreating whole ecosystem processes, the precautionary principle, and factors that are simply beyond our control (identifiable but not predictable: we know we will have earthquakes that result in subsidence, but we do not know when) we have developed numerous protocols for how to mitigate wetlands.

Mitigation generally includes a sequence of steps that attempt to lessen an impact.

  • First, avoid the impact altogether by not taking a certain action.
  • Second, minimize the impact by limiting the degree or magnitude of the action and its implementation.
  • Third, rectify the impact by repairing, rehabilitating, or restoring the impacted environment.
  • Fourth, reduce or eliminate the impact over time by preservation and maintenance operations during the life of the action.
  • And finally, compensate for the impact by replacing or providing substitute resources or environments.

Unfortunately, many projects simply jump to this last step and try to substitute something that is politically, socially, environmentally, and maybe scientifically palatable. We have even come to creating mitigation in advance, mitigation banks, because we know we are going to accept some type of compensation, possibly only partially related to the type of impact that occurs and often in an entirely different location than the impact.

Even though we go through these gyrations as to how to mitigate, to lessen the impact, there are still substantial volumes of rules and practices, and theories as to how to make it work for wetlands. Conferences have been held, books have been written, lawsuits have been litigated; there is a significant amount of information and guidance for proponents, regulators, and interested parties to call upon to affect an acceptable mitigation out come.

So, when you transport the mitigation principle to water rights, you might think there is some commensurate level of guidance as to how to make it work, right? You would be completely wrong. There is none, nada, zero, zip.

The Department of Ecology, the agency charged with overseeing water rights in this state, has no formal guidance to authorize mitigation. Yet, these days, they routinely consider mitigation for water rights impacts because it is the only mechanism that provides for them the ability to keep issuing water rights, even though no water exists to support them. All the water in western Washington is essentially spoken for, divided up between the owners and the users such that there is no reserve, no excess water.

In many cases, streams and rivers are over appropriated, that is, more water rights have been issued by the state than practically exists in the stream channel. If everyone used their water right at the same time they would dry up the channel. This has led to the concept of senior water rights: first in time, first in right. The older your right is the better your guarantee to actually get water, while junior users may be shut off to protect the senior rights.

In case you have not considered it, the Tribes hold the most senior water rights. They were here first and they never gave their water rights away. In fact, the Tribes reserved their rights through the series of treaties between the Tribes and the United States government long before Washington was even a state.

So when all the water has already been appropriated and basins have been closed to further appropriation, what is a regulator to do when a new application comes along asking for more water? For some time Ecology did nothing, resulting in a huge backlog of water right applications. They could have simply said no, the well is dry (choose your own metaphor).

But fearing the political backlash of an apparently irrational public, they have fiddled around trying to get more water out of the proverbial rock. Their current favorite accounting trick is to apply the concept of mitigation to water. First, avoid the impact, right? Well that one is out. And so on it goes until they get to compensatory mitigation, substituting an action to offset the impact. But they have no rules! Look up mitigation in the state water code; you won’t find it. Ask Ecology whether they have any adopted rules or guidance for what is acceptable mitigation for water rights. They will recite some party line about their authority, but the simple answer is no. They have no rules. It makes for an interesting game when there are no rules and the decision maker is an enabler.

How do you mitigate for taking water out of a stream? Water creates instream habitat. It is the medium in which fish live. You dry up the stream and you have no fish. Once those fish are extirpated, their genetic integrity is gone, possibly forever. How do you compensate for that loss? Have you ever looked at Woodland Creek during the summer where substantial reaches dry up? Do you honestly believe that is normal? There are some small streams around Puget Sound that do run dry in the Mediterranean summer we enjoy. But Woodland Creek that drains several lakes that are fed by upwelling groundwater? A more reasonable conclusion is that numerous human caused activities, like wells sucking water out of the aquifer and impervious surface short-circuiting the hydrological system have severely impacted Woodland Creek.

The Squaxin Island Tribe has proposed to Ecology that they write rules for how they handle mitigation decisions in water rights determinations. We have offered to help. They have declined our overtures. We have pursued litigation, appealing water right decisions, in order to build case law around mitigation determinations. In short, we have been fighting this beast because the decisions to keep issuing new water rights where no water exists are fundamentally nonsensical. Given the Tribe’s well established positions on the matter and the nature of the dialogue with Ecology and the local municipalities including Lacey, no one with a reasonable understanding of what is going on could conclude that “complex water rights issues smooth out when cooperation is involve.”

Oakland Bay Improving, But Sustained Funding Needed

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On 6/22, the Squaxin Island Tribe and other partners on an advisory committee made a report to the Oakland Bay Clean Water District Board of Directors (aka the Mason County Commissioners) on the status of Oakland Bay.  The review was generally positive, but cautious.  Below summarizes some of my and others comments.

Water quality has improved since 2005,  no portion of the bay is listed as “threatened” by DOH, and harvest restrictions have been removed for the fall-winter-spring months at the head of the bay.  The bacteria sources forcing the remaining summer restrictions still must be studied and corrected.

While  larger climatic/weather patterns certainly play a role  in the transport and fate of bacteria in the bay and consequentially, improvement of water quality, increased maintenance of septic systems around Oakland Bay helps.  In the last year, septic system inspection reports to Mason County have jumped by 26%.  This has occurred only in the Oakland Bay watershed; in other areas like Hood Canal and Case Inlet, reporting levels remained flat.

This difference between Oakland Bay and the rest of Mason County is the result of partial implementation of a social marketing plan the Clean Water District developed to encourage residents around Oakland Bay to check their septic systems.  The plan refocused messaging away from slogans like “Saving Puget Sound” to more personal consequences of poor water quality like threats to children’s health, property values, and local jobs.  The new messaging included straightforward suggestions for what to do and incentives to make doing it cheaper and easier.   With this new approach, the residents of Oakland Bay responded in quick order.

Today 63% of the residents around Oakland Bay are up-to-date with their septic maintenance, but that is not good enough in the long run.  As the local population continues to grow, we are going to need even higher levels of compliance to sustain the opportunity to harvest shellfish in Oakland Bay.

The bottom line is that we have a plan, the social marketing plan, to get beyond 63%.  It is only partial implemented and funding is the biggest impediment to further action.

The real problem is future funding.  So far we have gotten by on grants and other special funds.  The sporadic nature of this kind of funding won’t allow us to achieve our ultimate goal:  designation of all of Oakland Bay as “approved” without restriction for shellfish harvest.  To achieve that sort of water quality improvement, we will need a sustained, perpetual effort and that is going to take a reliable, predictable funding source.

Water, Fish Need

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This is the first in a series of posts replying to the assumption by Lacey’s city manager Greg Cuoio that mitigation is a good way to provide more water for the city of Lacey.

Water in the State of Washington has a very few actual owners. When we talk about water rights, we are talking about permission to use water, essentially to borrow it for a time. Water rights are not a conveyance of ownership. The only owners in Washington are the federal government, based on their reserved ownership from before Washington was a state, the state based on what they were granted from the federal government, and the Tribes, the original owners who reserved water rights in the treaties. In other words, the original owners never gave up their interest. Everyone else seeks permission through water rights to use water. Lacey falls into this category.

The State of Washington can only authorize permission to use the portion of the water that they own or control. This amount is clearly not all of the water. When the Tribes reserved water in treaties, some of it is for the fish: instream flows that sustain the aquatic environment and assure that fish like salmon can survive and reproduce in perpetuity. There must be water in streams and the Squaxin Island Tribe is willing to protect that right, that ownership, that property.

The problem arises when some selfish parties want uncontrolled access to as much water as they can get, regardless of how their interest affects anyone else. They do not care if they dry up streams as long as they can do what they want. Have you ever checked out Woodland Creek during the summer as it flows through Lacey? That’s right – it runs dry (an oxymoron) in places. While there are multiple reasons why this happens, one of them is that Lacey pumps water out of the ground for its municipal water system. This lowers the level of the groundwater aquifer and cuts off flow to the stream channel. This situation exists to varying degrees all over southern Puget Sound.

Lacey is working with other municipalities to gain access to more water to fuel more growth of housing developments and shopping centers that identify the trademark feel of the Lacey environment. They know that water is limited as they have been under a moratorium for new hookups in the urban growth area. One would think they would be sensitive to the issues and the other players that they must navigate if they are going to continue their unsustainable growth. Yet they have continued to act preemptively and without an accurate presentation of the facts.

All of the streams and the Deschutes River in WRIA 13 are closed to further consumptive appropriation. This includes diversion of surface water and it also includes the withdrawal of groundwater that would impact the surface water flows of these streams. All of the groundwater in this area is related to surface water flows as a product of the last glaciation. Some of the jurisdictions are interested in developing a new well field out near McAllister Springs. Even though the physical location is within the McAllister Creek watershed, the groundwater withdrawals will have an effect on the Deschutes River flows. The Squaxin Island Tribe has long pointed out this circumstance, and in recent years modeling of groundwater movement has confirmed this fact. And there lies the rub: how can you create additional impacts on a river that is closed by law to further appropriation of water?

Ecology says they will consider such water right applications if they include elements of mitigation. They point to some vague wording in state law to support this contention, yet they have no written policy, no rules, no guidelines, in general, no clear pathway to accomplish this whatsoever. While the Tribe is not convinced that the State has any water to allow Lacey to use, we are equally perplexed about what state law, if any, provides them the vehicle to pursue this course.

When Lacey acts blithely to take something that is not theirs, the Tribe takes offense. In this case, we had offered to sit down and listen to their ideas, however, we have made no commitment to negotiate an outcome with them. They have violated the respect that is involved in dealing with this issue, and as a result, we have cancelled further meetings with them until we reassess the situation.

Coming Soon: How does one mitigate for drying up a stream?

Deschutes Water – Cuoio Gets it Wrong, Again

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Why can’t Lacey City Manager Greg Cuoio think before he opens his mouth and insults the Squaxin Island Tribe? Or maybe he does think and his insults are intentional. In any case, Cuoio’s recent comments to the Olympian are an inaccurate rendition of the current status of very delicate discussions regarding the continued plundering of water resources by the likes of the City of Lacey. At best they are uninformed and his blurting of Lacey rhetoric to the local press establishment is offensive to the Tribe.

As a result, in the coming days I will present a more detailed and accurate description of what is really going on and a reasoned argument as to why Lacey should cease and desist their arrogant attempts to steal water from its rightful owners. Please stay tuned. I am sure you will find this perspective to be enlightening.