Whatcom Watch Online
September 2000
Volume 9, Issue 9

Cover Story

Happy Valley Residents Challenge Western Washington University and City of Bellingham

by John Servais and Tip Johnson

John Servais lives in Happy Valley and has long been a community advocate, activist and government watchdog. He maintains the web site www.nwcitizen.com in his spare time. Tip Johnson, founder of Fairhaven Boatworks, lives in Happy Valley. A two-term city council member, he maintains www.friendsofwhatcom.com in his spare time.

Tip Johnson and John Servais, long-time south side activists, have undertaken to tilt yet another windmill. Servais and Johnson are taking the City of Bellingham and Western Washington University before the Western Washington Growth Management Hearings Board. The city and Western Washington University have an agreement for Western to build projects and roads before Western’s expansion plan is approved by the city. In fact, before their plan is even made public.

The deal, called a Memorandum of Agreement, is a contract that specifies what projects Western can build before they finish their campus plan. This allows them to avoid the public review involved in a plan approval. New projects are just added to the Memorandum of Agreement.

This has been going on now for almost three years. Technically, the original Memorandum of Agreement expired last fall. Lo, the city magically “extended” the expired Memorandum of Agreement six months later with seven new projects and no public hearing.

WWU Not Subject to Growth Management Act?

The Memorandum of Agreement is the ultimate expression of Western Washington University’s belief that it is exempt from the state Growth Management Act. The Memorandum of Agreement makes sense when you consider that Western claims their authority to decide what they will do and how, by dint of medieval English common law.

They say in legal documents that they are not subject to the Growth Management Act. So, it is not surprising that the WWU campus expansion plan continues to be delayed —with the convenient memorandum of agreement committed in place. Western has not had a legally approved expansion plan since 1974.

The central issue here is that Western Washington University wants to roll into Happy Valley like they have been rolling for the past 30 years. We think the Growth Management Act means that Western must work with the community in planning their expansion.

We think this means the Growth Management Act should put a stop to Western’s red-lining and checkerboard buyout practices. And we think this means that Western’s expansion must be guided by an open public process, not by the whims of Western’s administrators.

University Has Better Options Than Bulldozing Happy Valley

Western has better options than continuing to bulldoze Happy Valley. So, we ask why wreck a neighborhood when Western can help revitalize downtown Bellingham? The old St. Luke’s hospital is available, as is the Chestnut Medical Center. There is the vacant south side Albertson’s with plenty of parking and easy access to both the campus and the freeway.

And wouldn’t a couple of parking structures make a lot of surface parking available for new campus buildings? For that matter, build the parking downtown and run a shuttle. These are just a few of the options that are available.

City Is Like A Puppet With Western Pulling the Strings

Western is not interested in even considering these options. And the city is like a puppet with Western pulling the strings. In late August, Western started construction on realigning Bill McDonald Parkway and 21st Street — per only the Memorandum of Agreement. Western does not know (or won’t say) where 21st will go, although in previous drawings it carves a multi-million dollar boulevard up to Highland Drive.

Even when the planning commission requested to know the plan for 21st Street, all Western’s planners would do was wave their arms in the air drawing possible routes. The planning commission then unanimously approved the Memorandum of Agreement, without any public hearing. And the mayor signed it.

Enough is enough. After four years of interminable planning meetings, we have filed a legal challenge to the Memorandum of Agreement. We contend that it violates the Growth Management Act. Western has hired the most expensive law firm in Seattle to defeat us.

Formal Hearing Set for September 21 in Mount Vernon

They started out by saying we had not attended enough meetings nor made the proper objections and that, therefore, we did not have legal standing to bring our action. Anyone who knows us will laugh at that. The hearings board ignored the request to dismiss. The formal hearing is set for September 21 in Mount Vernon.

This legal action has impacts beyond our Happy Valley. The Growth Management Act defines “essential public facilities” and specifies that communities cannot deny their development. This includes hospitals, schools, and public works. Western interprets this as carte blanche permission to do as they please.

The importance of our legal action is that it will decide if public facilities must coordinate with the local planning process. Our success will mean that all neighborhoods can plan their futures safely in knowing that state and local agencies must also obey the law.

Expansion Could Impact South Hill, Sehome, Edgemoor

Want to help bring Western and the city to obey the law? While we are the target now, Western’s expansion could also impact the South Hill, Sehome, and eventually even the Edgemoor neighborhood. Everyone has an interest in seeing that overbearing public institutions do not run roughshod over our lives, our children and our homes.

It would be a shame if this important issue was lost because Western’s high priced attorneys wore us down.

What You Can Do!

We’re scrambling for funds. We need other residents to contribute to the legal fund. If you want to help, send your check to our attorney at the address below. Your contribution will be well used. We thank you.

Roger Ellingson
PO Box 1258
Blaine, WA 98231
Attention: Happy Valley Legal Fund

Cover Story

The Chemicals at Our Tables:
DDT, PCBs, and Nonylphenols (to Name a Few)

by Danielle Gray

Danielle Gray, a lifelong resident of Whatcom County, is currently a student at Western Washington University, and is pursuing an English degree and teaching career.

Almost forty years ago Rachel Carson, author of “Silent Spring” and catalyst for the environmental movement, began the warning about the dangers of pesticides— which led to the ban of DDT in 1972.1

Yet, today the principle behind Carson’s plea still goes unheard, unanswered and unheeded by many people. Even more frightening, Carson accurately predicted these problems would worsen before improving.

Today, as we begin to unearth the impacts of hormone-disrupting chemicals, the consequences become unmistakable. Cancer is no longer the only concern; scientists have linked these chemical agents to everything from the dramatic drop in sperm count to the rise of learning disabilities.

Hormone-Disrupting Chemicals Found in Pesticides, Plastics, Appliances

The problem: hormone-disrupting chemicals are found in pesticides, plastics, and even appliances. They permeate our everyday lives. They are on our dinner plates, in detergent boxes, in plastic-coated water pipes, and even in our bottled water. They are in the pesticides we launch on backyard invasions of ants, wasps, fungi, cockroaches, and other pests. They are in the plastic blocks our toddlers love to chew on—even her or his baby bottle.

Currently, “pesticide use in the United States alone amounts to roughly 8.8 pounds per man, woman and child.”2 Moreover, “thirty-five percent of the food consumed in the United States has detectable pesticide residues.”3

Even more disturbing, “around the world, one hundred thousand synthetic chemicals are now on the market, and each year one thousand new chemicals are introduced, most of them without adequate testing and review.”4 Only a Fraction of Chemicals Are Tested

Even if we wanted to test all of the new chemicals before introducing them, testing facilities worldwide, at the most, could only test half for their potential hazards, and “in reality only a fraction of this number actually do get tested before they are put on the market.”5

Consequently, of the 80,000 chemicals the Environmental Protection Agency (EPA) has registered, “little information on possible toxic potential is available.” Moreover, “of the 3,000 chemicals produced or imported, a mere 23 percent have been tested to determine whether they have the potential to cause developmental damage.”6 However, DDT and PCBs have been tested more than most chemicals. The results are shocking.

DDT Still Found in Human Breast Milk, PCBs Still Contaminate Rivers and Lakes

Banned in 1972 in the United States, DDT, having a half-life that is longer than the average human life, is still found in most (if not all) humans, even infants—for such chemicals can be transmitted via breast milk, and can penetrate the placenta. The destruction DDT alone caused, and still is causing, should warn us not to toy with chemicals—especially the ones we know little about.

Similar to DDT, the “manufacture of PCBs ceased in the United States in 1977, but the chemicals still contaminate many rivers and lakes” because PCBs, though no longer produced and having a shorter half-life than DDT, are still contained in numerous products that are in use today. For example, PCBs are found in “transformers and other electrical equipment.” Thus, people are still being exposed and affected by these chemicals.7

Nonylphenols Found in Plastic Products Are Estrogenic

Nonylphenols, valued for increasing the durability of plastic, are a group of chemicals that are found in many plastic products ranging from piping, lining of canned food, to bottles and children’s toys.8

“Nonylphenols have been shown to be weakly estrogenic…in estrogen-responsive human cell cultures.” For example, Nonylphenol bisphelnol-A in a concentration of only five parts per billion caused cell proliferation in estrogen responsive breast cancer cells.9

However, what this means beyond the cellular level for an entire organism, such as humans, is unclear so far because “several data gaps exist which limit the ability to predict the consequences of exposure to nonylphenols.” 10

According to recent studies, all three chemicals, DDT, PCBs and nonylphenols, are potential hormone mimickers. In the case of nonylphenols, these chemicals, at least weakly, mimic estrogen. The function of hormones, being one major key of human development, is endangered by the threat of chemicals disrupting their natural biological function.

Receptors of Hormones Are Sloppy, Will Receive Hormone Mimickers

Hormones facilitate the development of sexual and mental systems of unborn children, but are also responsible for “orchestrating the growth of the baby’s nervous and immune systems, programming organs and tissues such as the liver, blood, kidneys, and muscles, which function differently in men and women.”11

Since each stage of development is crucial to different systems and functions of the body, the timing of exposure to chemicals plays a significant role in the toll the exposure will have.

Furthermore, because the receptors that receive the hormones created in our bodies are sloppy—meaning they will receive chemicals with structures far different from the hormones created in our bodies—other chemicals, which are far different in structure can fit into receptors and create or block activity associated with the receptor. Normally, “hormones and their receptors connect via a ‘lock and key’ mechanism.”12

Need For Comprehensive Studies Over Lifetime of Chemical Exposure

All three chemicals, DDT, PCBs and nonylphenols, have what scientists consider to be hormone-like properties which allow these chemicals to cause havoc on mental and reproductive systems, especially in children. However, the consequences of these chemicals are unclear and disputed.

Nevertheless, it is argued that the inconclusiveness of studies is due to the lack of comprehensive studies, which account for a lifetime exposure to a range of chemicals—persistent and not persistent.

Moreover, chemicals’ effects are studied in isolation. Thus a realistic representation of the exposure a typical person would have is not accounted for. There is speculation that accumulated and numerous chemicals may be working together to cause cellular dysfunction in the human body.

However, even in the isolated studies it is found that “certain synthetic chemicals released into the environment can behave like hormones…” thereby “contributing to the disruption of cellular activity.”13

Currently, scientists are worried about the impacts chemicals have on the fetal brain because they believe that certain chemicals interfere with neurological development.14

Complications range from “small shifts in intelligence quotient scores” to “a slightly increased tendency towards aggression.” But people do not find these problems as disturbing as “a picture of deformed limbs.” Yet, the realization of the importance of such problems “is gathering momentum… But for most neuro-developmental disabilities, the cause remains unknown.”15

Worldwide Decline in Sperm Count and Estrogen Mimickers

The source of debate is centered on whether chemicals, such as DDT, PCBs and nonylphenols—which are found to be estrogen mimickers—are at least partially, if not fully, involved in the recent worldwide decline in sperm count.

The debate over the worldwide drop in sperm count began in 1992, when research from Copenhagen University determined there might be “potential environmental influence on fertility, such as exposure to pesticides and industrial chemicals.”16

For example, “new data reveals that DDE, a breakdown product of DDT,” is one of many “man-made chemicals that interfere with sex hormones [and] have the potential to disturb normal brain sexual development.”17 Similarly, Nature journal reported that men rely heavily on naturally-occurring estrogen to maintain “fertility — specifically regarding sperm count.”18

Moreover, waning sperm counts are linked to hormone disruption during the development of the testes, which involves sexual development regulators—the hypothalamus and pituitary gland found in the brain.19 Estrogen receptors, when disrupted by sources such as chemicals that mimic estrogen, become blocked which “progressively impairs sperm production.”20

Learning Disabilities Correlated to Chemicals

Scientists have theorized, “very low levels of PCBs…can alter thyroid function in the mother and the unborn baby and thereby impair neurological development.”21

Furthermore, The Erice Statement (1996) released by a group of 23 scientists from around the world, stated that industrial chemicals, such as hormone mimickers, could obstruct brain development and parts of the central nervous system. However, the stage of development when exposure occurs crucially determines the severity of dysfunctions that arise.

A study published the New England Journal of Medicine (1996) confirms that children exposed to low levels of PCBs in the womb grow up with “deficits in general intellectual ability, [deficits in] short-term and long-term memory, and [deficits in] focused and sustained attention.”22

For example, our thyroid hormones effect us throughout our life and disruption of these hormones can lead “to abnormalities in brain and behavioral development,” such as “motor dysfunction of varying severity including cerebral palsy, mental retardation, learning disability, attention deficit hyperactivity disorder, hydrocephalus, seizures, and other permanent neurological abnormalities.”23

Additionally “exposure to man-made chemicals during early development can impair motor function [ability to move], spatial perception, learning, memory, auditory development, fine motor coordination [for example, coordinating movement of the hands and eyes], balance, and attention-span processes; in severe cases, mental retardation may result.”24

Despite Health Problems, the Debate Rages On

The debate continues regardless—one study linking hormone-disruptors to cancer and another refuting it. Yet, problems due to chemical exposure have been linked to cancer, to reproductive complications (low sperm count, deformities), and to behavioral and mental conditions (aggressiveness, lower IQ, and learning disabilities).

Various chemicals act like hormones, but exposure levels vary due to the rate of breakdown of the chemical and its hormonal potency. For example, most people are exposed daily to more plant estrogens, such as “soybeans, nuts, plant oils, grains, berries, vegetables, and tea, which also have hormone like activity,” than they are chemical estrogen mimics, such as PCBs.25

However, PCBs remain in the human body about seven years, while plant estrogens, such as soy, can be eliminated from the body in a couple of days.26 Thus, we should be more wary of the persistent man-made hormone mimickers, because they are accumulate in our bodies and potentially can do the most damage.

1 Carson, R. “Silent Spring.” New York: Houghton Mifflin Company, 1962.
2 Colburn, T., Dumanoski, D., and J. Peterson. “Our Stolen Future.” New York: Plume Books, 1996.
3 Ibid.
4 Ibid.
5 Ibid.
6 Landrigan, P.J, Weiss, B. “The Developing Brain and the Environment: An Introduction.” Environmental Health Perspectives Volume 107, Supplement 3, June 2000.
7 Colburn, T., Dumanoski, D., and J. Peterson. “Our Stolen Future.” New York: Plume Books, 1996.
8 Ibid.
9 Ibid.
10 Hickey, J. P., Passino-Reader, D. “Summary of Broad Endocrine Disruption Research.” Ann Arbor: Great Lakes Science Center, 1998.
11 Colburn, T., Dumanoski, D., and J. Peterson. “Our Stolen Future.” New York: Plume Books, 1996.
12 Ibid.
13 Ibid.
14 Erice Statement. “Chemicals and the Brain, Part 1” Rachel’s Environment and Health Weekly. Issue 499. June 20, 1996.
15 Landrigan, P.J, Weiss, B. “The Developing Brain and the Environment: An Introduction.” Environmental Health Perspectives Volume 107, Supplement 3, June 2000.
16 Barlow, J. “Estrogen Linked to Sperm Count, Male Fertility” University of Illinois at Urbana-Campaign. 1997.
17 Erice Statement. “Chemicals and the Brain, Part 1” Rachel’s Environment and Health Weekly. Issue 499. June 20, 1996.
18 Barlow, J. “Estrogen Linked to Sperm Count, Male Fertility” University of Illinois at Urbana-Campaign. 1997.
19 Erice Statement. “Chemicals and the Brain, Part 1” Rachel’s Environment and Health Weekly. Issue 499. June 20, 1996.
20 Barlow, J. “Estrogen Linked to Sperm Count, Male Fertility” University of Illinois at Urbana-Campaign. 1997
21 Colburn, T., Dumanoski, D., and J. Peterson. “Our Stolen Future.” New York: Plume Books, 1996.
22 Jacobson, J.L., Jacobson S.W. “Intellectual Impairment in Children Exposed to Polychlorinated Biphenyls in Utero,” New England Journal of Medicine. Vol. 335 No. 11. September 12, 1996, pgs. 783-789.
23 Erice Statement. “Chemicals and the Brain, Part 1” Rachel’s Environment and Health Weekly. Issue 499. June 20, 1996.
24 Erice Statement. “Chemicals and the Brain, Part 1” Rachel’s Environment and Health Weekly. Issue 499. June 20, 1996.
25 Okie, S. “Assessing Hormone Mimicking Chemicals.” The Washington Post. 1999.
26 Ibid.

Whatcom County’s Toxic Sites

The Superfund program, created in 1980 by the U.S. Congress, focuses on finding, inspecting, and cleaning hazardous waste sites. Sites are prioritized for cleanup based on human health threat.

Active Superfund Sites Whatcom County-Acme Landfill Boulevard Park (Bellingham)* Oeser Company (Bellingham)* Whatcom County Central Shop (Bellingham) Northwest Transformer (2 sites-Everson) Thermal Reduction Landfill (Ferndale) Bertrand Creek Area Properties (Lynden)

Boulevard Park

Bellingham’s Boulevard Park is an active Superfund site. Soil samples taken in September of 1990 were found to contain high levels of the toxic chemicals benzene, ethylbenzene, toluene, xylene, and styrene. Additionally found were elevated heavy metal levels of chromium and lead.

Water samples collected near the pier at the Boulevard Park contained eight semi-volatile organics. Four of these exceeded carcinogenic Polycyclic aromatic hydrocarbons (PAH) standards. The source of these chemicals is a storage tank located in the upper park area which was left over from a coal gasification plant that produced “an average of 38,736 gallons of coal tar per year” in the 1950s.

PAHs, such as those found at Boulevard Park, are present at about half of the sites that the Environmental Protection Agency considers to be seriously toxic. PAHs are usually released from industrial plants or are the result of inadequately stored or disposed containers. PAHs are widely produced and “commonly used in industry for many applications, including pesticides.”

Carried in many forms, PAHs can evaporate, can travel long distances, and are most commonly exposed via inhalation. Other types of exposure include eating, drinking, and skin contact resulting in absorption into the blood stream.

Exposure to PAHs can induce “decreased fertility, caused birth defects, and reduced body weight in mice.” Moreover, “The Department of Health and Human Services determined that PAHs and other benzene compounds are carcinogenic, causing leukemia, cancer of the blood-forming organs in humans.

PAHs may also cause birth defects, still births, nervous disorders, liver disease, and reduced fertility in both men and women.”

Oeser Company

PAHs are also found in creosote, used to treat utility poles at the Oeser Cedar Company in Bellingham until the 1960s when it was replaced with Pentachlorophenol (PCP). However, exposure to PCP can cause birth defects and reduce fertility in humans and animals. Additionally, according to the Environmental Protection Agency, PCP “can harm the liver, kidneys, blood, lungs, nervous system, immune system and gastrointestinal tract.”

All information was compiled from the Greenhouse Journal www.nas.com/~greenhouse/Green.html

War of the Greens

Mike Lowry is Back from the Ranch and Running for State Lands’ Czar

by Nina Shapiro

Nina Shapiro is a staff writer at the Seattle Weekly who writes about politics, health care, the environment, and social issues.

Former Governor and Congressman Mike Lowry, who disappeared from politics under the cloud of a sexual harassment scandal, is suddenly back running for office. Three weeks ago, he declared his candidacy for state Commissioner of Public Lands on the heels of a bombshell announcement by current Commissioner Jennifer Belcher that she would retire rather than run again.

It’s no surprise that environmentalists are over the moon about Lowry’s candidacy for Lowry is a green from way back. As a congressman he championed the Washington Wilderness Bill that preserved a million acres of roadless forestland.

Lowry Suggests Reduction of Logging by 15 or 20 Percent

Now, as he contemplates the position he seeks, he tentatively suggests that he may be able to reduce logging on state lands by 15 or 20 percent.

Them’s fighting words among several constituencies, among them schools (which rely on state logging revenue for construction funds) and struggling rural communities that have lost countless logging jobs already.

But Lowry brings an unexpected attribute to the race that may help him get past the polarization that plagued environmentalist Belcher: his record since leaving the governor’s mansion four years ago working on economic development in e astern Washington through two nonprofits he established, the Fairness Project and Enterprise Washington.

At the same time, he has been running a family ranch, complete with a 260-acre tree farm, in the town of Kettle Falls, near Spokane, not far from the tiny town of Endicott where he grew up. “People over there know these are my roots,” Lowry says.

Concerns of Rural Washington Important to Lowry and Gardner

The concerns of rural Washington figure surprisingly prominently in the Democratic primary, not only because of Lowry, but also his rival, Georgia Gardner. A plainspoken state senator from Blaine, Gardner talks about the distressed industries of farming, forestry, and fishing as her county’s version of Three Strikes and You’re Out.

That orientation is bound to make for more interesting debates with the Republican candidate, Pierce County Executive Doug Sutherland, and might possibly keep the Democrats from being tagged as out-of-touch tree-huggers.

Given his high profile, Lowry is the presumed Democratic frontrunner. But he carries the liability of the sexual harassment accusations by a deputy press secretary and state patrol technician that overshadowed his last two years as governor. Lowry addressed the issue head-on as he announced his latest candidacy by issuing a statement that expressed profound regret for the “pain and discomfort” he caused.

The issue nonetheless surfaced in endorsement deliberations by King County Young Democrats, which gave Gardner the nod last week. Lowry supporters, however, are optimistic that the past is the past, and he himself seems unworried and not defensive when asked about it.

Compared to those last tense months in office, the 61-year-old Lowry seems remarkably relaxed, like a man who now has the freedom to do what he wants, even if what he wants seems like a step down in political terms. He smiles often and talks gleefully about spending time in the field if elected.

Lowry’s Recent Work Related to Poverty and Economic Development

He seems, too, to have enjoyed his recent nonprofit work. Conforming to his reputation as a classic urban liberal, he has dedicated himself to a variety of issues related to poverty and economic development. In this state, however, where the high-tech boom has stayed close to the Puget Sound metropolises, those concerns bring one into the rural, conservative terrain largely east of the mountains.

In Moses Lake, for instance, Lowry has worked with an industry-oriented nonprofit called the Economic Development Council. He has helped the organization win grants and develop proposals for projects such as an inland facility that would offer storage and other services for ships using the Seattle and Everett ports. Lowry’s work there has left the group’s executive director, Terry Brewer, convinced that the former governor has “a genuine interest in the economy of rural Washington and what he can do to assist us.”

Lowry Also Interested in Hybrid Poplar Tree Farms

More pertinent to his current campaign is Lowry’s recent work to encourage the development of hybrid poplar tree plantations, an idea that has been circulating in environmental circles and which is already practiced in Europe.

As Lowry explains it, hybrid poplars are extremely fast-growing, reaching to 100 feet in a mere eight or nine years, a height that would take a Douglas fir 50 or more years to reach. That means more trees sooner to improve air quality and suck up the carbon dioxide that fosters global warming. It also means more trees to log, thereby generating jobs and revenue while preserving natural forests.

Lowry believes that the planting of hybrid poplars on state lands would be one way to reduce the logging of natural forests by as much as 20 percent and still maintain sufficient revenue for school construction.

Another way, he says, would be the institution of a “Washington green label” to certify wood produced with environmentally friendly practices. If the Department of Natural Resources could sell its wood with such a label, he says, it could charge up to 20 percent more for a product that, like organic coffee, would be highly valued.

Lowry and Georgia Gardner Seem Almost Identical In Their Approach

In broad strokes, Lowry and rival Georgia Gardner seem almost identical in their approach. Gardner says she doesn’t have enough information to judge whether logging on state lands should be reduced, but she expresses a desire to carry on Belcher’s environmental legacy.

Where she says she differs from Belcher is her insistence on “looking at the other side”—that is, at the people suffering the economic consequences of environmentalism. She stresses the importance of offering “mitigation” to these folks.

For instance, she suggests that the money from the controversial Loomis Forest deal, in which an environmental group is paying the Department of Natural Resources to refrain from logging, could have been used to plant hybrid poplar plantations and create new jobs.

Gardner Might Prevent Lowry From Being Primary Shoo-in

A 56-year-old cross-border accountant with a steely and authoritative presence that might just prevent Lowry from being a primary shoo-in, Gardner seems even more attuned than the former governor to rural sensitivities.

When Lowry in a joint interview with Gardner implies that tourism jobs will replace logging jobs if natural resources are preserved, the state senator interjects, “You can’t take a logger and put him in the tourism industry. They don’t want to do that, they’re not comfortable doing that, and there’s also the widespread understanding that tourism jobs are minimum wage jobs.”

Gardner believes she can use the lands commissioner job to help make up for the lack of growth management that has occurred in rural areas, where much of the Department of Natural Resources’s land lies. Bad environmental decisions have resulted, she believes, from rural towns falling all over themselves to attract companies.

But she also believes that industry has been unfairly demonized. “Industry is not the bogeyman,” she says. “Industry will work with us to do the things that we can’t afford to do ourselves,” namely providing jobs and cleaning up environmental problems, “and they[‘ll] do it cheerfully.”

Georgia Gardner Championed Proposed Sumas Energy Plant

One of the causes she has championed as state senator is a proposal for a power plant in the small, depressed town of Sumas. Gardner is proud of negotiating with the National Energy Systems Company for union jobs, reduced emissions, and the cleanup of two plants in Canada that sent fumes across the border.

Environmentalists, concerned that the Sumas plant would still emit unacceptable levels of carbon dioxide, nonetheless opposed the bill she sponsored to give a tax break to the power company in exchange for these concessions. The bill, while successful in the Legislature, was vetoed by the governor.

Washington Conservation Voters Endorse Lowry Over Gardner

The Sumas bill factored into a decision by the Washington Conservation Voters to endorse Lowry over Gardner. The organization’s field director, Jennifer Lindenauer, says that while Gardner has consistently taken “really great” environmental votes, the state senator has not been an environmental leader and has on occasions like the Sumas bill had problems with local environmentalists.

“I don’t think her priority would be the environment,” Lindenauer muses. “I think her priority would be labor.” That might help explain why she got an early endorsement from the Washington State Labor Council, though the decision, made before Lowry got into the race, is open to change at labor’s upcoming convention.

Whoever wins the primary, the race is poised to be unusually civil. During the first joint appearance of their campaign, Lowry tended to follow Gardner’s remarks with comments like, “I agree very much with that.”

Gardner, for her part, calls Lowry a “natural resource” of the state who, in his nonprofit role, could be deployed for a variety of good works. She just wishes he would stick to nonprofit organizations and stay out of her race.

This article is reprinted, with permission, from the August 17 issue of the Seattle Weekly.


County Revising Ordinance Preserving the Charter of Rural Landscape

by Peter Tassoni

Peter Tassoni recently moved back to western Washington after a ten-year hiatus in Utah. Peter has been active in preservation issues since graduating from the University of Washington in 1988.

In September, the Whatcom County Council will be voting on the adoption of revisions to Title 21 of the Whatcom County Code. The standards and procedures created in Title 21 are designed to prevent development without infrastructure support throughout Whatcom County.

This legislation provides mechanisms for the county to grow in a pragmatic and rational way based on sound principles. These are the important health and safety protections for citizens that the county government is charged with by its voters.

Revisions Incorporate New Terminology

The revisions in Title 21 incorporate new terminology and planning goals contained in the 1990 Growth Management Act and the 1995 Washington State regulatory reform bill 1724. It makes these newer standards enforceable. The planning commission found that these revisions were:

Title 21 Closes Gap Between 1890s and Present

Title 21 closes the gap between plats created in the 1890s and current health and safety standards legislation. Title 21 renders the steps the county needs to have addressed before changes in land use zoning will be permitted.

The process for revising Title 21 formally began in February 1997 with county staff and the technical advisory committee developing text in response to new state legislation and complaints compiled by the county planning department.

After three years of evaluating and re-evaluating these changes, the technical advisory committee promoted it to the planning commission. The nine-member planning commission conducted four public meetings and two work sessions during a six-month period before issuing final recommendations on March 9, 2000 to the Whatcom County Council.

Then Title 21 underwent more scrutiny by the planning and development committee composed of council members Connie Hoag (chairperson), Dan McShane and Sam Crawford. Their revisions are included in the version present to the full council for action on August 8th. A public hearing is scheduled for September 26, 2000 to solicit public input on these revisions and their impacts to the community. Title 21 is available for public review at the council office in the county courthouse.

Issues Surrounding Title 21

Planning and development committee member Dan McShane assured me that Title 21 is meant to protect new property buyers from purchasing land that is difficult or impossible to develop. He brought up examples in which land owners didn’t address drinking water supply considerations and land survey provisions before subdividing, and are consequently burdened with properties that can’t be developed.

Dan McShane also is concerned about the equity between irrigation water use requirements versus residential water use requirements on the same piece of property related to well draws. Mr. McShane believes the revised Title 21 will be easier for the general public to understand, but won’t necessarily make the act of subdivision any easier to do. Rural property owners may still exercise the exemption clauses carried forward from the current Title 21.

Is Title 21 a Mini-Environmental Impact Statement?

I implied that Title 21 is like a miniature Environmental Impact Statement (EIS) or Environmental Assessment (Whatcom Comprehensive Plan) that assesses the ramifications of any development before it happens. Mr. McShane acknowledged that they are similar but their legal realms are different.

Pushing this analogy further, county citizens insist that large projects like primary sewage treatment plants or pipeline transmission routes go through the Environmental Impact Statement process to minimize most hazards to the public. Title 21 and Environmental Impact Statement documents are measures that prevent disasters before mitigation needs are invoked, whether from the degradation of the environment and its residents or by the loss of human life.

Like an environmental impact statement, Title 21 carries the burden of assessing one’s impacts before irreversible change occurs. The legal steps to subdivide are all up front before any meaningful ground breaking occurs. This is good foresight application.

You can’t get rid of contamination once it is in the landscape. You can’t drink water that is not there. You can’t enjoy your property if you have no access to it. You can’t fish for a species that is extinct. Knowing what the land can be used for before you learn that it can’t sustain that use is just standard investor analysis and good government.

County Council Will Also Discuss Changes in Title 20

In a related issue, the county council will discuss the merits to changes in Title 20 in September as well. These include revisions to home business, cottage industry, and the controversial new category of rural business. Title 20 and 21 are the foundation code mechanisms for development in Whatcom County. Voice your opinion during the public hearing and send your concerns in writing to the council office.

I cannot afford to own property in Whatcom County. I have never tried to subdivide a piece of property nor am I a developer. I don’t know the hassles and frustrations hidden in the permit process to change a land use zone designation first hand. I assume the county employs competent personnel to oversee this process. But I know that an expansion fervor in a finite place is suicide.

Without progressive Title 20 and Title 21 provisions, combined with rampant development, we commit ourselves to a prison. Speculative real estate buyers here in Whatcom County may lose some money. But that is the definition for risk. As I’ve stated before, even mighty Wall Street won’t reimburse losses incurred from a poor investment.

Voice Your Concerns

The intent of Title 21 is a means of preserving the character of the rural landscape using accepted rules for good stewardship. However, Title 21 is a piece of compromise legislation four years in the making. It won’t please everyone. It can’t.

According to the planning commission members with whom I spoke, public input has been lacking, except from the extreme positions of pro- and anti-development. There needs to be a group of voices heard from the middle. Most people will not speak up until they have a vested interest, which in this economy, is money.

But I want rural nature, clean drinking water, clear air, and abundant wildlife available to me now and in perpetuity. I need the urban areas to absorb this county’s growth and provide me with an enjoyable but safe existence. Zoning laws create a mechanism to insure a better environment for all of us.

Does the County Planning Commission Have a Development Oriented Agenda?

by Peter Tassoni

Whatcom County Planning Commission members are both nominated and confirmed by the Whatcom County Council instead of being nominated by the Whatcom County Executive and then confirmed by the council. The removal of a check and balance mechanism denotes collusion of big brother against the citizenry to me. Government is meant to protect the majority, not to benefit the elite. All levels are accountable.

Has the council picked the right people to forward legislative material for council action based on an agenda provided by the council? Does the planning commission sufficiently represent all walks of county life and produce recommendations to the council that are neither extremist pro- or anti-development? Ah, the subtleties of local politics and the inflammatory scent of a conspiracy.

Nevertheless, Whatcom County could install “neighborhood associations” at the planning commission level to both increase and streamline public input earlier in the planning process. This would create a better venue for vocal extremists and moderates to discuss impacts.

Future articles will discuss the Whatcom County Planning Commission and its members in detail.

Drinking Water

Comments on Land Purchase Ordinance Flood Bellingham City Council

by Peter Tassoni

New taxes and fees must go on the general election ballot for the city voters to decide. However, city council members say they can change, without voter approval, utility rates. The Bellingham City Council is considering an ordinance that would increase the monthly single residence flat-rate water bill for City of Bellingham water users by $5. Other metered users will see a similar increase.

This would raise almost $2 million dollars each year to fund land purchases in the Lake Whatcom Watershed. The council said this ordinance is an interim program until an inter-local agreement with the county, state and federal governments could be created.

Preservation Before Mitigation

Over forty persons spoke out on the ordinance and the vast majority of speakers (29) supported the fund’s creation. Various speakers gave testimony that preservation is the best methodology to preventing pollution problems. Raw land, or land that is still in its forested state, provides the best stormwater runoff absorption, water table filtration, and minimizes landslide potential.

Sewage treatment facilities cannot provide the same service that nature does. Excessive chemical treatment of drinking water does not improve its flavor. Mitigation does not replace preservation as a solution to drinking water or stormwater concerns.

Several speakers testified that other municipalities in western Washington own their drinking water sources. New York City is militant about acquiring drinking water resources and preserving their quality.

Drinking water quality is compromised by impervious surfaces created through development and all the toxins associated with development and living in residential developments.

Money Without a Plan

However, many speakers wanted to know the details about the land purchase criteria. They were concerned about giving money to the government without a concrete plan as to how it would be spent. The city council assured the speakers that a plan would be developed in the near future with specific purchase criteria addressed.

The regressive rate hike on fixed income seniors and low-income renters is mitigated by the current exemptions related to water rates. There were some outspoken complaints against the water rate hike from vested parties principally in Sudden Valley who pay a 50 percent greater surcharge for Bellingham city water.

The lack of drinking water and sewer capacity caused a building moratorium in Sudden Valley that has trapped individual lot owners and developers alike. However, the city should not be expected to bail out property owners who made poor investment choices. Wall Street doesn’t give refunds to investors during downturns.

How Much Watershed Land Could $2 Million Per Year Purchase?

Several speakers were skeptical about how much property could be effectively purchased with only $2 million dollars a year. They also implied that with the city actively seeking out purchases, people would accelerate the development of existing pieces to increase the resale value of the property.

There is hope that matching funds could be solicited from the county, state and federal levels. Bruce Roll, Whatcom County Water Resources Coordinator, noted the good intent of the ordinance but voiced concerns about its fit into the coordinated plan for Lake Whatcom Watershed. Others accused the council of forcing unilateral action upon other government entities.

Raw land is the best bang for the buck but subdivided lots would create absorption areas too. They could absorb some of the toxins created by residents, their properties, and their activities. It would keep toxins out of the water body. However, selective buying of under-developed land could increase values of adjoining pieces with greenbelt and conservation advantages.

The Means and the Ends

The intent of the land acquisition ordinance is widely accepted as a good thing. The mechanics of its use still need to be created. But it is such a small effect that it alone cannot save our drinking water. There still needs to be the coordinated effort from all agencies and governments involved in the Lake Whatcom Watershed.

The politics of this ordinance may force Whatcom County to act. This ordinance may distort the coordinated planning currently taking place. But the ordinance, which is a reactionary development from last year’s defeated initiative Proposal One, is a bold step in the right direction. It is a good end. However, many questions remain about the means to accomplish that good end.

The city council is accepting written comments now and will vote on the ordinance at the September 11th meeting. Complete text of the ordinance is available for the public at the city building.

What Happened to G-P Water Referendum?

In a related issue, the City Council and city administration ignored legal protocol for the Water Use Referendum 2000 petitions submitted in February. The referendum has the necessary signatures to be placed on the next general election. But city attorney Dawn Sturwold wrote: “The City Council considered it and determined, based on legal precedent, that the ordinance challenged in the referendum was not subject to referendum, and therefore, should not be placed on the ballot.”

Whatcom County Initiative 1-99 (medical waste) and Washington state Initiative 695 (license tab reduction) were both deemed illegal by staff insiders but they passed nonetheless. In the city charter, the qualification of the referendum technically abates the subject ordinance until the matter is ratified or rejected by voters. However, the city is continuing to bill Georgia-Pacific for water according to the abated ordinance. This rate is almost twice the old rate.

The Water Use Referendum 2000 would allow voters to determine whether Georgia-Pacific should be forced to pay more for the 38 million gallons a day of water it historically uses. Sturwold based her legal opinion on a 1957 court ruling that stated “city councils have the exclusive right to set water rates to provide the money to pay off revenue bonds.” Bellingham has $26 million in outstanding water utility revenue bonds.

Doug Tolchin and Tip Johnson, supporters of the referendum, want a dramatic rate increase that would force Georgia-Pacific to invest in better technology and decrease its water usage and pollution generation. The new water rate has reduced water usage at Georgia-Pacific by 13 percent. An even higher water rate could translate into more tax revenue and water for Bellingham but perhaps a little less profit for the Georgia-Pacific shareholders. “Legislative bodies cannot make judicial determinations,” stated Tip Johnson.

More information is available at the www. friendsofwhatcom.com website.

Local History

Sehome Hill Arboretum/Park:
Bellingham’s Third Official Park

by Aaron Joy

Editor’s Note: The following is the third in a series of articles recounting the history of Bellingham’s Parks, taken from “A History of Bellingham’s Parks” by Aaron Joy (available for sale at the Whatcom Museum and Henderson’s Books). Aaron M. Joy is completing his sociology degree at Western Washington University. He is The Bellingham Herald librarian and author of The Bellingham Herald’s “Millennium Milestones” 1999 series. For recreation, Mr. Joy is a member of First Presbyterian Church where he is a middle and high school youth leader.

Created: 1893
Location: Sehome Hill
Area: 165 acres

Originally known as Sehome Park, then Sehome Hill Park, it is currently Sehome Hill Arboretum or Sehome Arboretum.

On the morning of June 27, 1922, Bellingham Mayor E. T. Mathes, members of the Bellingham park board, and a Bellingham Herald reporter made an ascent up the incomplete Huntoon Drive (today Arboretum Drive) to a 600-foot elevation on Sehome Hill, about forty feet below the summit. This was the first ascent up Sehome Hill by automobile, an Overland sedan driven by Park Commissioner Bert Huntoon.

About two weeks later the road was opened to the public and a year after that it was extended to the summit. The finished road formed a complete loop over the hill, going up the hill behind the college to the summit (where the trails are today) and then down the back on what is now Arboretum Drive.

Semi-Official Inauguration of Sehome Hill Park in 1922

On the day of the excursion in 1922, The Bellingham Herald reporter wrote, “Both Mayor Mathes and the park commissioners are enthusiastic over the possibilities of this drive for bringing Bellingham to the attention of the tourist world. They believe that every year the Sehome Hill trip will be the greatest attraction Bellingham has to offer within its own precincts.”

But, the drive up Huntoon Drive, “overlooking the city and its magnificent harbor” (Bellingham Bay Reveille), marked more than just the creation of a new tourist attraction. It was also the semi-official inauguration of a park that had been desired since the 1890s - Sehome Hill Park, called “one of the grandest natural parks in the U.S.” by the Bellingham Sunday Reveille of April 29, 1923.

Sehome Hill Named After Clallam Tribe Subchief

Sehome Hill was named after a Clallam tribe subchief whose daughter married early settler Edmund C. Fitzhugh. The first records of development to Sehome Hill start in 1855 when surveyor J. Wilson Lysle acquired the land by staking a donation claim. He wanted to mine coal on the hill, but its steep slope prevented any development along this plan.

During the 1870s, logging cleared much of the hill’s old growth timber. This continued until 1904 when better quality logging sites were discovered in the Chuckanut Hills.

During the 1890s, Sehome Hill was also the site of the Sehome Quarry, a quarry carved into the Chuckanut Sandstone formation. Chuckanut Sandstone, a rock that is durable and excellent building stone, was used in the foundations of Western Washington University’s Old Main, the courthouse that is today the site of Fouts Park, the DeMattos Block (Sunset Building on State Street), along with numerous other buildings and residences in Whatcom County.

Sandstone was originally discovered around 1856 on Chuckanut Bay, the future site of the Chuckanut Quarry, by one of Bellingham Bay’s first white settlers, Captain Henry Roeder.

The sandstone formation includes rocks that were transported to the area about 48 to 55 million years ago by meandering rivers that existed before the Cascade Mountains. The Chuckanut formation is one of the thickest sequences of non-marine sedimentary rock in the world.

C.X. Larrabee Proposed Land Donation to Create a Park

The first mention of turning the Sehome Hill into a park came in 1891 when C. X. Larrabee proposed a donation of 25 acres to the towns of Fairhaven and New Whatcom jointly, for the creation of a park on the hill that overlapped the boundaries of the two towns. (Today, the acreage is in the vicinity of Western Washington University’s Old Main.)

Larrabee urged Pierre Barlow Cornwall, of the Bellingham Bay Improvement Company, to follow suit with a similar offer. The offers were accepted and the following year J. J. Donovan, of the Bloedel Donovan Lumber Mills, did a survey of Sehome Hill to aid toward the study about park possibilities of the area.

The ensuing decades had many residents and civic leaders offering their support for the official creation of a Sehome Hill Park and easy access to the hill’s summit. Two residents were quoted in the May 6, 1908 Bellingham Herald, saying that the view is “the grandest that could be desired in this section” and is an area “impractical for anything but park purposes.”

Normal School Purchased Some of the Sehome Hill Park Property

Further land annexations occurred and Sehome Hill Park expanded around the Bellingham Normal School campus (today Western Washington University), helping to create a feeling of seclusion for the 16-year-old teacher’s college. In 1915, the college purchased the surrounding park property. Since that time Sehome Park, and now Sehome Hill Arboretum, have remained under partial-jurisdiction of the school.

The road that Bert Huntoon, Mayor DeMattos, the park commissioners, and a Bellingham Herald representative ventured forth on that morning of June 27, 1922 was one of the pieces of official development to the area to turn the secluded and unreachable summit park into an accessible park.

The prize at the summit, at the loop of the road, was two-fold. First, there was the automobile tunnel dug out of the sandstone hill. This had to be dug by hand because the normal procedure of dynamiting would have possibly destroyed the outcropping. The tunnel was closed to automobile traffic in 1975.

On the north side of the hill was the second attraction of the park - the unsurpassed vista of Bellingham Bay and Canadian mountains in the distance on a clear day. Trees were trimmed to improve the views from around a parking area, which created Bellingham’s premiere “lover’s lane.” Today this spot is at the end of the trail below the observation tower.

In the early 1960s, landslides destroyed the part of Huntoon Drive that ran behind the campus. The untouched part of the road was widened to accommodate two-way traffic, with the landslide section turned into a pedestrian trail, “returning the 640-foot Sehome to the status of grade-A tourist attraction,” Street Superintendent Oscar Lindquist said to The Bellingham Herald in January 1961.

In the 1960s, Threats of Logging Sparked Idea of Arboretum

In the late 1960s, there was a threat of more logging to re-establish the now overgrown vistas and to plant exotic vegetation in the park. This sparked the idea of transforming the park into an arboretum of native Whatcom County plants, which was approved by the college’s board of trustees in May 1969.

It took two years before 38 acres were set aside for arboretum development and before a feasible plan was proposed. In 1974, one hundred acres were officially designated as Sehome Hill Arboretum.

At the same time, then Mayor Reg Williams and the board of trustees established a board of governors to handle park affairs, such as development and upkeep. The board is made up of 10 members: three appointed by the city, three appointed by the college, and three at-large members appointed by the other members and a student appointed by the nine members.

There was some reluctance by both the city and college to agree on co-ownership and the direction the park’s development should follow. As President Emeritus Charles Flora later wrote in his book “Normal College Knowledge” — “Always there has been conflict over nature versus nurture, i.e., whether it should be unmanaged or managed.”

Today Sehome Hill Arboretum Is Prize Observation Point

Today Sehome Hill Arboretum is a prize observation point for residents and tourists, for an afternoon excursion or a time of meditation, and is populated with native Washington plants and a growing population of birds and mammals. As The Bellingham Herald wrote on November 27, 1989: “Some people say there’s no better natural vantage point in Bellingham than Sehome Hill Arboretum, bulging like a forested whale above Bellingham Bay.”

Human Waste

Septic Systems Monitoring and the Lake Whatcom Watershed

by Chris Sheridan

Chris Sheridan is a WWU student, a freelance writer and gardener who currently lives in Fairhaven.

Among the many issues concerning Whatcom County, the issue of water quality is without a doubt one of the most contentious. Just the mere mention of these words is enough to elicit an opinion, a rant, or even an argument from anyone whose drinking water source is Lake Whatcom.

Thus, when the issue is the City of Bellingham’s policy for the management of septic systems, the discussion has the potential to become rather interesting. After all, the scope of the matter includes issues of civic and personal responsibility, city growth, and Whatcom County Health and Human Services Department management policies.

And besides, who really wants to allow people the ability to pump their raw sewage right onto the ground, especially if that ground is located within the Lake Whatcom Watershed?

“Why Not Just Hook My Faucet Up to Their Toilet?”

As a friend of mine so eloquently stated, “why not just hook my faucet up to their toilet?” Interesting point and one I probably shared before I wrote this article. Then, my only knowledge about septic systems had to do with hands-on digging of a septic pit.

However, as I was to find out, properly operated septic systems are quite effective in the cleaning of raw sewage. Yet, the main point to highlight here is “properly operated” since this is the weakest link in the chain of septic management.

How Septic Systems Work: Scum, Effluent and Sludge

Before delving into the local legalities of septic systems in Whatcom County, it is probably helpful to quickly refresh our knowledge of how a system actually is supposed to work.

Sewage from a residence is gravity fed into a tank where it is naturally separated into three different layers: scum (upper layer), effluent (middle layer), and sludge (bottom layer). The scum layer contains all those floatable materials such as soaps, grease, cigarette butts, and any other material that is less dense than water. The sludge layer consists of decomposing and partially decomposing solids that have sunk to the bottom and uses anaerobic bacteria to help in its breakdown.

The effluent layer is the one which will eventually make its way into the outside environment of the drain field, and where the suspended solids and bacteria contained within are removed through aerobic bacteria and microorganisms naturally found in the soil. This part is probably the most crucial, since the effluent is home to millions of bacteria and disease causing pathogens.

The leftover scum/sludge layers are then periodically removed by experienced professionals for proper treatment and disposal. Without considering all the technical details, this is how a properly maintained system works. Unfortunately, it is not this simple since there is always the overriding variable of our human behavior and its never-ending ability to make mistakes.

Human Error: End Septic Failure

To find out just what type of mistakes can be made, I consulted a local septic system designer, Philip Whitson, of Whitson Geologic Consulting. According to Whitson, the most common reasons for septic failure in new systems usually fall into one of three categories: incorrect installation, poor design or improper maintenance.

Upon researching these reasons, I found that the first two (incorrect installation and poor design) are the least variable of the three since state and county governments exercise a large amount of oversight in those areas.

In the state of Washington, installers must be licensed by local health departments before being allowed to do any installations. In Whatcom County, to gain a license a septic installer must first pass an examination measuring his or her amount of knowledge about public health problems associated with the disposal of raw sewage.

In addition, an installer is tested on the standards for the design, construction, and installation of septic systems. If an installer is ever determined to be negligent, incompetent, purposefully misrepresentative, or shows any failure to comply with set laws, his or her license is revoked.

Like installers, designers must also be licensed through local health departments and are required to pass an examination much like that of installers. Plus designers are held financially responsible for any negligent design work. For both installers and designers, Whatcom County requires prior approval of all work before any actual construction is allowed to take place.

No Muss, No Fuss Mentality

It is not surprising then to discover that most septic failures occur with the owners themselves. In this day and age of escapism, most people would rather just flush their toilets and be done with it. No muss, no fuss.

However, the use of a septic system requires a certain measure of involved participation. When a system does fail due to owner negligence, it is usually due to one of the following reasons:

Failures of a septic system are not only a nuisance, but are potentially hazardous to public health. According to Whitson, usually the dangers occur only within the immediate area of a spill and the liquid will most likely seep back into the ground where it will naturally be cleaned.

Septic Failures Can Impact Surrounding Ecosystem

However, studies have found that cumulative effects of septic failures can impact a surrounding ecosystem. Plus, being in a climate that is pounded by winter storms, the possibility of water surges overloading a system is a real concern.

Put these factors together and combine them with an area that has a large number of septic systems and a recipe for possible trouble is created. With so much that can go wrong on the owner’s end of septic system management, it only makes sense that there be a fair amount of county health oversight to ensure that public health and safety concerns are addressed. To some extent this is true.

The Whatcom County Health and Human Services Department requires a septic owner to immediately inform them of any failure with a system. However, if such a failure is determined to have occurred due to owner negligence, then that owner faces court action, fines, and possibly jail. Without a doubt, this places a lot of faith in an owner’s sense of civic responsibility.

All Septic Tanks Now Subject to “Periodic Monitoring”

The county also sees that this moral dilemma is a potential problem and has come out saying that as of January 1, 2000, all septic systems will be subject to “periodic monitoring.” However, when I contacted an septic owner in the King Mountain area (who requested that his name be withheld), he had yet to hear anything from the health department.

It should also be pointed out, as of yet, there are no required routine tests of a system that just might catch failures before they occur. Here the responsibility (right or wrong) for catching such failures, as well as for the public health, is placed on the owner.

The issue of allowing septic systems in the Lake Whatcom Watershed is also of concern. Most of the lake property is located in the county and as such has no available sewer lines, except in Geneva and Sudden Valley. There are no new sewer lines planned to serve watershed property owners. This is understandable, since the existing sewer line running from Sudden Valley to Bellingham is already a large source of debate, as well as a frequent site for pollution spills.

In a September 1999 report, “Lake Whatcom Watershed Cooperative Drinking Water Protection Project: Results of 1998 Water, Sediment and Fish Tissue Sampling,” the Washington State Department of Ecology identified fecal coliform bacteria levels as an area of concern within the waters of the lake. The source of this contamination is, of course, open to speculation, but we can at least guess that it did not come from the local wildlife.

The fecal coliform bacteria, whether it be from overflowing, mismanaged sewer lines or from a prevalence of septic systems around the lake (or both), it is of no doubt from human impact. This impact will only be felt even further by the continuation of growth and development around the lake.

Lake Should Be “Designated Area of Special Concern”

It is of interest to note that the county health department does categorize certain areas as “designated areas of special concern.” These include areas that contain sole source aquifers, water recreational facilities, areas with critical recharging effects on aquifers, and public water supply wellhead protection areas. In other words, these are problem spots where the effects from sewage can be most detrimental to public health.

When a designated area is recognized, the Whatcom County Health and Human Services Department requires inspections every three years of existing septic systems. It also prepares detailed information on the findings of such an inspection (which is then filed with the health department), monitors ground and surface water quality, and prohibits development in the designated area.

It seems very plausible that Lake Whatcom in its entirety could be listed as a “designated area of special concern” because many people for a wide variety of uses use the lake. However, the already planned-for growth that is occurring within the watershed makes this highly unlikely.

Of course, the water we drink has been declared as among the cleanest in the country by some (thanks to chemicals). But others say it is degraded and threatened. Certainly, more efforts should be made, especially where septic systems are concerned, to ensure that the resource we all share is preserved as much as possible.



The Rusted Shield
Salmon Need Water; the State Fails to Provide It or Protect It

by Daniel Jack Chasan

Editor’s Note: Daniel Jack Chasan is a Vashon Island writer and attorney. This is the fourth part of a series on the history of Washington State government and its attempts to circumvent environmental laws. This paper, The Rusted Shield, was commissioned by the Bullitt Foundation and is being reprinted with permission.

Part Four

The Department of Fish and Wildlife may object to applications for permission to divert water, if the diversions will reduce the flow below the level that salmon need. (The Department of Ecology is the agency that actually grants the permits for water diversions.)

Even on the west side of the Cascades, water withdrawals threaten salmon. “We are going to see that inadequate flow is one of the so-called limiting factors preventing the recovery of salmon,” water rights attorney Rachael Paschal explains. “There are times of the year, some years, when there’s not enough.”

While many people in the rainy Puget Sound basin may doubt this, “the utilities are very worried.”1 Nevertheless, objecting to new diversions has become almost a moot point; the state already has granted approximately 225,000 water rights and claims.

The Right to Withdraw More Water From a River Than It Contains

In many cases, people have rights to withdraw more water from a river than the river contains. Virtually none of the rights was granted with any consideration of in-stream flow.2

The state failed to protect in-stream flows prior to granting water rights. Then the state supreme court ruled that current statutes prevent the Department of Ecology from enforcing in-stream flow requirements on the water it has given away. The legislature can remedy that situation, but shows no inclination to do so.3

Individuals, farmers and corporations have rights to withdraw only specified amounts of water—theoretically. If they do not put the water to “beneficial use” within any five-year periods, they lose their rights—theoretically.

Water Users Do Not Meter Their Withdrawals

Are people withdrawing more water than they are entitled to take? Have they let their rights lapse? No one knows because no one has collected even minimal information. People have not been forced to meter their withdrawals, and they have not done so. Requirements for metering have been largely ignored by water users, and almost entirely not enforced.4

The entire state has only an estimated .25 full time people people devoted to water rights enforcement.5 On February 11, 2000, a Thurston County Superior Court judge ruled that by not requiring water users to meter withdrawals, the Department of Ecology had been violating the law since 1993.6

The Department of Ecology is not the only agency that does less than the law allows. Existing statutes permit the Department of Fish and Wildlife to shut down unscreened water diversions, which direct salmon into irrigation ditches, where they die.7 The Department of Fish and Wildlife virtually never shuts down unscreened water diversions.

State Agencies Don’t Enforce Laws

Why do state agencies do so little to enforce the laws? One reason—hardly the whole story but not just a self-serving alibi—is that they lack resources. The Washington Department of Fish and Wildlife does not have enough trained people on its staff to write hydraulic permits that will protect anadromous fish.8

And it has not always received much support from the society it is supposed to serve. The state Department of Fisheries observed long ago that, “A reoccurring problem is the attitude of the local courts when the Department of Fisheries attempts to prosecute a hydraulic violation. Convictions are rarely obtained and when favorable judgments do occur the penalties are usually so low that they provide little if any deterrent to future violations.”9

Politics work against enforcement, too. Former director of Fish and Wildlife Bern Shanks said that every time his agency tried to enforce the hydraulics code, it received a call from the state legislature.10

Department of Ecology Pressured by Legislature

In his federal court testimony about the Department of Ecology’s failure to enforce the Clean Water Act against dairies, Department of Ecology official Robert Barwin was asked, “Was the legislature trying to direct how the agency was enforcing or implementing the Clean Water Act?”

Barwin answered, “Yes.”

He was then asked if his agency was “receiving pressure.” “I think that it was, yes.”

“And what evidence do you have for that?”

“At the last of five public hearings on what was then the draft NPDES (What is this) permit [covering the entire dairy industry], several legislators got up and testified in essence that ‘our budget was perhaps in danger if we moved forward without clear legislative direction to do so.’ ”11

In plain language, the legislators said that if the Department of Ecology enforced the law, the legislature would cut its funding.

State’s Response to Illegal Construction of Elwha Dam

The influence of politics is nothing new. Early in the century, it played an important part in the state’s response to the illegal building of the Elwha dam. The state was prepared to threaten a smaller business venture with no political clout for a similar transgression.

“[W]riting to the bankrupt owner of a small mill dam on a tributary of the Elwha, [state fish commissioner Leslie] Darwin put the matter bluntly,” Bruce Brown explains: “Unless the dam is immediately equipped with a fishway in accordance with [the law], we shall have to proceed under statute to blow it out.”12

“Regarding the much larger and more damaging dam on the mainstem Elwha, however,” Brown continues, “Darwin found the situation ‘perplexing.’ Although the dam, which was being rebuilt, still lacked fishways, Darwin never seems to have considered applying the law with the same rigor as in the case of the small mill dam on the nearby Elwha tributary. The [dam’s] influential backers (among them banker Joshua Green) and the governor’s own infatuation with hydroelectric power encouraged Darwin to attempt a more exotic solution.”13

Enforcement Hampered At County Level As Well

Political influence has hampered enforcement at the county level as well. A landowner, a former King County official, created an industrial staging area on agriculturally zoned land in eastern King County, beside a small fish-bearing stream.

Companies with building projects in the area have parked trucks and heavy equipment and stored supplies there. Although the county’s sensitive areas ordinance requires a 100-foot setback, trucks and equipment park within ten feet of the stream.

Diesel fuel and asphalt have been stored within the 100-foot riparian buffer zone. A diesel spill reached the stream. The offenses were reported to county government, but the sensitive areas ordinance is still being violated in clear sight of the county road.14

The same land owner “was issued a permit by Washington Department of Fish and Wildlife to dredge [the] salmon bearing stream during spawning season,” Washington Trout reported. The agency’s “rationale for the dredging was ‘it was an emergency to help fish passage’ yet the department allowed the same developer to block fish passage on another stream a quarter mile away.

“In cases like this it appears that the Washington Department of Fish and Wildlife is handing out [hydraulic permits] solely to assist developers in meeting their objectives with little regard for state law, or the needs of fish.”15

Legislature Funds Skimp on State Enforcement Budget

In fairness to the Department of Ecology and other agencies, they might enforce the law more zealously if legislators gave them not only more encouragement but also more money. This year, the state legislature did give the Department of Ecology’s Water Resources Program four more enforcement employees, tripling the number of people Department of Ecology had available to enforce water laws.

Perhaps not just coincidentally, the Department of Ecology has subsequently filed two enforcement actions and is trying to levy $59,000 in fines against two allegedly illegal water users in eastern Washington.16

It has also issued a highly publicized cease and desist order against the Willows Run golf course, partly owned by Paul Allen, which pumped water from the Sammamish River to irrigate its grass.17

Despite recent good examples, institutional culture has not encouraged people to buck political pressures. No one wants to be the “bad cop.” More than one-third of the state Department of Ecology personnel who responded to a 1994 survey said that management did not support enforcement. One-half said there was a lack of clear direction or agreement on the role enforcement plays at the Department of Ecology.18

Are Laws Enforced More Vigorously By the Forest Service?

Some people assume that the laws are enforced more vigorously in the national forests, where a great deal of the best remaining spawning habitat lies, ostensibly protected by federal statutes that include the National Forest Management Act and the Northwest Forest Plan.

But the Forest Service has a history of regarding itself primarily as a timber producer, so it commonly fails to enforce environmental requirements for timber sales.19

In an audit of environmental requirements for twelve sales outside the Northwest, the U.S. Department of Agriculture’s inspector general concluded recently that the “Forest Service’s administrative controls over the preparation of environmental documents and implementation of mitigation measures applicable to timber sales have not been effective. The Forest Service could not ensure the integrity of its environmental decisions and the supporting environmental assessments.”20

Next Month — Part Five:
Government Asks the Wrong Questions

1 Paschal, Rachael, personal communication
2 Ibid.
3 Ibid.
4 This is not a trivial problem. Experience in Oregon suggests that stopping illegal water withdrawals can lead to major habitat improvements. Several years ago, WaterWatch of Oregon started trying to identify water from the Wood River that was being wasted and to see if that water could be returned to the stream. WaterWatch found that waste was a secondary problem; so much water was being stolen—because no one metered withdrawals or enforced the law—that stream flows would increase significantly if water users simply stopped stealing. In 1997, pressured by WaterWatch, the state ordered all irrigators to install control structures. Water theft has stopped, restoring 15 million gallons a day—10 percent of the upper Wood River’s natural flow. Benson, Reed, executive director of WaterWatch of Oregon, personal communication.
5 Some people estimate the number as high as 1. Paschal.
6 see Ashton, Linda, “State told to keep track of water withdrawals,” Seattle Post-Intelligencer, February 17, 2000, B1.
7 RCW 75.20,040.
8 Wright, Sam, personal communication.
9 Washington Department of Fisheries, op. cit.
10 Fletcher, Kathy, executive director, People for Puget Sound, personal communication.
11 Community Association for the Restoration of the Environment v. Henry Hosma Dairy et. al.
12 Brown, op. cit.
13 Ibid.
14 Washington Trout, “Salmon Habitat Protection in King County is Failing.”
15 Washington Trout, “Washington Department of Fish and Wildlife’s HPA Process Fails to Protect Salmon Habitat.”
16 Caldwell, Rob, Center for Environmental Law & Policy, personal communication.
17 Sorenson, Eric, “Willow Run Fighting For Water Rights,” The Seattle Times (August 21, 1999) A1. “‘Ecology is starting to realize that enforcing the water code is a very important component to the recovery of salmon,’ [Rob Caldwell, executive director of the Center for Environmental Law & Policy] said.” ibid.
18 “Enforcement survey results tallied,” Ecology Today (May 1994).
19 On August 2, 1999, US District Court Judge William Dwyer held that the U.S. Forest Service and Bureau of Land Management have failed to survey threatened plants and wildlife prior to timber sales, as required by and agreed to in the Northwest Forest Plan.
20 U.S. Department of Agriculture, Office of Inspector General, “Forest Service Timber Sale Environmental Analysis Requirements” (January 1999).

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