The latest development involves a letter from state Rep. Jan Angel asking the state departments of Ecology and Commerce to quite giving legal guidance to local agencies. See my story in today’s Kitsap Sun.

It seems clear from court decisions and legislative actions that the Shoreline Management Act will provide long-term regulations for properties within 200 feet of the shoreline. This law — unlike the Growth Management Act that spawned critical areas ordinances — requires local shoreline plans to be approved by the Washington Department of Ecology.

But the immediate conflict involves what regulations should apply until local shoreline master programs are updated, a process under way for most Puget Sound cities and counties.

The practical aspects are that critical areas ordinances, updated within the past few years, generally include more restrictive regulations, such as larger buffers, in comparison to shoreline plans, most of which were drafted in the 1970s with updates that vary by jurisdiction.

Legally, the issues become complicated. Angel’s position appears to be that court rulings direct local governments to fall back to rules listed in the shoreline master programs until new shoreline plans are approved. Read her letter to Interim Ecology Director Polly Zehm (PDF 172 kb).

Ecology’s position seems to be that local governments should not throw out rules developed in their critical areas ordinances until the shoreline plans are updated.

I should point out that Brian Hodges, an attorney with Pacific Legal Foundation, maintains that Kitsap County would be putting itself at legal risk if county officials continue to process shoreline applications under the Kitsap County Critical Areas Ordinance. Hodges was the prevailing attorney in a lawsuit brought by Kitsap Alliance of Property Owners. County officials say they will appeal the ruling to the Washington State Supreme Court.

As for Ecology’s updated “guidance,” the reasoning goes as follows. See Ecology’s Web site for the complete analysis.

“On June 10, 2009 the Washington State Supreme Court issued its final ruling in Futurewise et al v. Western Washington Growth Management Hearings Board et al., 164 Wash.2d 242, 189 P.3d 161. This case addressed protection of critical areas that are within the jurisdiction of the Shoreline Management Act. Specifically, the Supreme Court was asked to interpret Engrossed Substitute House Bill (ESHB) 1933, which passed the legislature in 2003. The case is commonly referred to as the “Anacortes case” because that city’s critical areas ordinance (CAO) is the topic of the decision….

“In the Anacortes case, the Supreme Court issued a 4-1-4 decision. The Court issued two opinions — a “lead” opinion and a dissenting opinion, each supported by four justices. The ninth (and deciding) justice concurred with the lead opinion with the stipulation that her signature supported “result only.” This deciding vote was unaccompanied by an opinion.

“Due to the nature of this split decision it was not clear whether the Board decision applies beyond the City of Anacortes. It takes a majority of justices (in this case, five votes) for a Court opinion to establish a legal precedent that is binding on subsequent cases. Here, there is no majority Court opinion beyond reinstatement of the 2005 Board decision, and neither of the Court opinions endorsed the Board’s reasoning in the Anacortes decision. In addition, other recent Supreme Court decisions have stated that Growth Boards decisions resolve disputes related to specific local government actions under the Growth Management Act, but do not establish policy.

“In September 2009, the Court of Appeals Division II issued a decision in Kitsap Alliance of Property Owners et al v. Central Puget Sound Growth Management Hearings Board et al No. 38017-0-II. This decision involved Kitsap County’s update of Critical Area provisions in the Shoreline area. The decision relies on the June 2009 Supreme Court decision discussed above. Specifically, Division Two concluded that, when the Supreme Court cannot garner a majority view for resolving an issue, the position of the court is the position of a majority of justices concurring on the narrowest possible grounds. Here, reinstatement of the Anacortes Growth Board decision was the narrowest possible grounds for five justices’ concurrence. Thus, Division Two applied the Growth Board decision to the Kitsap County CAO.

“As a result, the court remanded the matter to Kitsap County to do its planning for shoreline critical areas under the SMA rather than the GMA. The court did not address the issue of whether the County’s prior CAO continues to apply until the SMA planning effort is complete. However, the Growth Board decision in the Anacortes case held that prior CAOs remain in effect until the SMA planning is complete. Since Division Two found that reinstatement of the Growth Board decision was the “decision” of the Supreme Court, it is our position that prior CAOs do remain in effect until a local jurisdiction completes its planning under the SMA….

“First, it is our position that neither decision affects critical areas ordinances that were adopted prior to the effective date of ESHB 1933 (2003). Those ordinances remain in effect.

“Second, it is our position that CAOs that were adopted after the effective date of ESHB 1933 and are not currently subject to a challenge are valid and remain in effect. This is based on the GMA’s requirement that CAOs are presumptively valid and must be challenged within 60 days of their enactment for a GMHB to determine that the CAO is invalid. If the CAO was not challenged within 60 days or if the appeals have been completed, then local governments are not required to revisit the critical areas protections contained in those ordinances.

“Third, it is our position that, moving forward, local governments that are currently updating their protections of shoreline critical areas should do so under the SMA rather than the GMA. This can be done either as part of a comprehensive SMP update or as a stand-alone amendment that complies with the guidance that Ecology has issued for stand alone amendments. However, cities and counties should be careful that the adopting ordinance for any CAO updates clearly ensures the existing CAO remains in place for critical areas within Shorelines until superseded by an Ecology-approved SMP update.

“Fourth, local governments have the authority and the obligation under the SMA and their existing SMPs to review and condition project proposals in the shoreline area to achieve consistency with the SMA’s policy objectives, including protection of shoreline resources. The legislature directed in ESHB 1933 that local shoreline master programs provide protection of critical areas in shorelines at least equal to the protection provided by their CAO (RCW 36.70A.480(4))….”

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Winning photo in the Rachel Carson Sense of Wonder contest. This photo was offered by Isabel L., age 16, and Isabel M., age 42.

The winners are not identified specifically, but you can review the photos, essays, poems and dances named as winners and honorable mentions by going to the EPA’s Web site. It doesn’t appear we have any winners from Washington state, but I hope local folks are entering this contest. Maybe we’ll have a winner or two next year. (See EPA site for entry details.)

The first-place photo at right is by Isabel L., age 16, and Isabel M., age 42. Here’s the description: “My mom and I were in the beach at Acapulco watching the sunset and while we talked about time and growing up. We took a picture of the sea and the sunset but we also captured a small boy playing in the sand enjoying the beach.”

Click here for the three photo winners and an honorable mention.

The winning poem was a combined effort of three generations of women: Katie, 21; MaryKate, 53; and Kate, 92.

Place of Peace
By: Katie, MaryKate and Kate

Knee-deep in purple asters, where maples gaily spill,
Unwept living crimson on our firm New England hill,
Our little half-built house awaits you, serene and still.
Such peace is here
And quiet dreaming.
No din of fear
Like sirens screaming
Or brass bells tolling, no dark hate rolling
That troubles the wind-washed silence under
These white clouds flying.
Only the crying of a far bird calling
Like a feather falling
That flutters earthward from above.
Warm as the sun that softly spills
Its life-giving light across the hills,
Kindling the crimson apples for the day of your returning.
When sunwashed sky turns crimson gold
And cool breezes fall from top of hill
Bringing clouds of bat food buzzing still

After the day’s chores done. Memories wash over
Of small children laughing in silver drops of water,

Blushing under other’s gazes peeking through clover.
My family founded in elder days
Continues the call that Nature makes
For our souls returning to this place of peace,
Where time stands still until we say
Who we are and where we are from.

From black olives and candy flowers made on Sunday’s
I am from the Lake (wet, warm, natural)
I am from the lily, dogwood, earth, planted in the front yard.
My mother’s earth. I’m from long trips and dark features.
From the long line of Kate’s and of Robert.
I’m from the stubborn and matriarchal.

I’m from tall altars and winding passages with spires from the sky.
I’m from Europe, France, England, Germany, Ireland, Scotland,
A mutt all around.
From the broken butt to being my rock and storms.
The stubborn women through and through
I am from the old, dust, moths, mold.
I am from mothers and lakes and lots of people,
With love.

Click here for the other winning poems.

The first-place essay is an illustrated story by Logan, age 6. It’s called “Fish with a Crab.” His kindergarten teacher, Linda, age 61, had this to say:

“I was amazed when Logan handed me his first story. It was two months ago. In one school year, he was gone from a total nonreader/writer, to a storyteller/illustrator. Equally amazing is his wealth of information about the natural world. He loves his fish tank, his tarantula, and all of the creatures that fill his life with joy… I see his pure delight in observing nature. He sees nature for what it is, an interaction between the living and nonliving world. His love of the wonder of nature fills him with stories and they flow freely from his heart and mind.”

The essays, including Logan’s can be found by clicking here.

Mixed media include both written creations and poetry.

This year, the EPA included a category of dance for the first time. I thought the Winged Migration dance — the second one below — was creative.

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Salish Sea watershed
EPA graphic

The question now is whether the name will catch on and be used more frequently.

One application that comes to mind is the description of the three pods of killer whales known as Southern Residents. I’ve often referred to these animals as the orcas that frequent Puget Sound. That’s because “Southern Residents” have little meaning to the average reader, who wishes to know why they are “southern” and what I mean by “residents.”

It so happens that the Salish Sea just about defines the range of these whales for a large percentage of the year.

Now I may refer to them as the killer whales that frequent or mainly reside in the Salish Sea — including much of the summer in the San Juan Islands, with winter and fall stints into Puget Sound.

I’m not sure how else I will use this term, but I no longer feel constrained by the idea that the Salish Sea is not a real name and has never been defined by any authority.

Here are some facts about the Salish Sea provided by the SeaDoc Society. (I’ve converted meters to feet and kilometers to miles.)

• Coastline length, including islands: 4,642 miles
• Total number of islands: 419
• Total land area of islands: 1,413 square miles
• Sea surface area: 9,942 square miles
• Maximum depth: 886 feet
• Number of different marine animals species estimated: 20 species of mammals, 128 species of birds, 219 species of fish, and over 3000 species of invertebrates
• Number of species listed as threatened, endangered or are candidates for listing: 64
• Total watershed area, not counting the upper Fraser River area (See Stefan Freelan): 42,000 square miles

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These two words have been spinning around in my brain since I attended a conference on water resources a couple of days ago. Check out my story in today’s Kitsap Sun.

Western Washington may not experience an overall water shortage as a result of climate change the way some regions will, according to climatologists. But our rains, on average, are likely to come in heavier downpours. To me, that means we will have our hands full trying to reduce the frequency of flooding, which affects natural systems as well as man-made ones.

In areas of the country that become drier, water could become scarce and the price of water is likely to go up. We’ve seen an ongoing drought in the Southwest. While it could be a just temporary trend, the situation calls for better water management and makes people nervous about the future. Click here to see an animation of changing conditions over the past 12 weeks.

A speaker at the conference, Michael Read of the Water Environment Federation, predicted that the Northwest will attract population from the Southwest as climate change continues. Winners and losers?

It may not be a question of whether we want the extra people. It may be more about whether we can manage the population growth with the least disruption to our ecosystem. Will we find ways to work with the coming changes in climate — or not? Will we be winners or losers?

If water gives our region a competitive edge, maybe we could attract industry looking to move away from more arid regions. That could help stabilize our economy, which seems to be a perpetual goal of many people. Winners and losers?

If climatologists are right, many species in the Northwest will struggle to adapt to the changing conditions. Some will survive and some will go extinct. Winners and losers.

I am not discounting efforts to reduce greenhouse gases and possibly avert some of the more dire consequences of climate change. But a growing effort is looking into how humans and animals may adapt to whatever changes will come.

While experts study adaptation, I don’t believe the concept has entered our general consciousness, let alone our actions. Perhaps waiting to see what happens is the prudent thing to do. After all, how do we plan for something uncertain?

On the other hand, maybe it would be wiser to begin considering the range of futures we could face within a few short decades. How do we become winners instead of losers?

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Don Flora, a retired forest researcher, conducted a statistical analysis of data compiled in separate shoreline assessments of East Kitsap and Bainbridge Island. Flora concluded that the reports show no apparent relationship between man-made stressors and ecosystem functions. Please take a look at my story in today’s Kitsap Sun.

Not finding a correlation between these two factors does not mean that man-made structures are harmless or without effect on the ecosystem. But these findings do raise questions, as Flora points out. Download his report here (PDF 188 kb).

So far, I have been unable to find a qualified scientist who has read Flora’s report and wishes to respond on the record. I’ve heard from a few who have questions about the analysis and may prepare a response in the future.

Among the complaints about Flora’s report are these: It does not follow standard protocol for a scientific report; it is not obvious how he conducted his analysis; and it was not peer reviewed by third-party experts.

Flora told me that his intent was to create a paper that could be read by average people, and he did ask a couple of people to edit it for readability. He did not intend for it to be considered a scientific paper nor for it to be peer-reviewed in the scientific sense.

I have heard complaints that Flora did not show his work, and I found myself asking him to point me to the data tables that he used to plug numbers into the standard regression analysis — a statistical tool used to show relationships between two independent variables. I suggested to Flora that he include an appendix that would show the raw data and help people replicate his work. He thought this might be a good idea.

If you want to take a closer look, review the findings related to Bainbridge Island shoreline planning and Kitsap County shoreline planning, including the county shoreline assessments.

Some scientists find it offensive that Flora lifted data from these two reports and manipulated them to his own ends without consulting the scientists involved. Others are suspicious that Flora used these data to reach his own conclusions — a suspicion heightened because Flora is a member of KAPO. And KAPO’s press release (PDF 64 kb) about Flora’s report makes a leap that stirs the pot of controversy:

“These reviews bring into question the justification for any nearshore restorations or the need to impose any shoreline buffer zones in the upcoming Shoreline Master Program updates.”

Dealing with numerous scientific studies will be an important part of the effort to update the county’s shorelines plan. Kitsap County planners say they aren’t sure how they will deal with Flora’s report, but they intend to lean heavily on expertise from the Washington Department of Ecology to point them to reliable scientific studies.

The planners say they want to make sure that any studies upon which they rely for planning are vetted before they move into policy discussions. During the update of the county’s Critical Areas Ordinance, such studies were never fully vetted — at least not to the satisfaction of property rights advocates. KAPO members ended up arguing about science all the way to the Washington State Supreme Court — though the court did not address science issues at all when it overturned the county’s shoreline buffers. See the Sept. 9 Kitsap Sun and the Water Ways entry the next day.

I’ve always expected that experts would engage in a healthy discussion about what it will take to protect the ecological functions of the county’s shorelines. Now it appears the discussion may take on the tone of a debate. In comments posted at the bottom of today’s story, some people are showing their distrust of government while others are showing their distrust of KAPO.

I hope everyone can somehow relax enough to embark on a real search for truth knowledge as it relates to shoreline ecosystems. After all, isn’t that what science is really about?

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Water has numerous effects, thanks to unintended additives, according to the video at right. But watch out for the consequences of consuming drinking water.

Quoting from the video:

“With residual pharmaceuticals entering our water table daily, you can be confident the cure is only a faucet away. Results may vary by region.”

And then the requisite warning:

“Water is not for everyone. Water may not be consumed if you are currently on water. If you’re pregnant and nursing, … might become pregnant or are reaching puberty before the age of 7, water may not be right for you. Please discontinue use of water while drowning or if drought occurs.”

And then come the freaky side effects of water, which take up the remainder of the video.

Another video about water purports to show a world record for drinking 1.5 liters of water — just about 4 seconds.

I found another video that has nothing to do with water but shows a world-record speed for a person getting undressed. I’m hoping this is amusing without being offensive.

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It seems a lot of experts are surprised that we have reached this level of low oxygen, considering that we were seeing near-record high oxygen levels earlier this year. See a story I wrote in August.

Although we have had low-oxygen problems in Hood Canal for years, monitoring buoys installed a few years ago now allow us to see what is happening at the moment and to describe the conditions in some detail.

In 2006, for the first time, scientists were able to show the factors leading up to a fish kill. Until then, it was only reasoned speculation. What may be equally troubling, however, is the level of stress that sea creatures are coming under before and after a fish kill — or if none occurs at all.

I didn’t mention it in my story, but oxygen levels at Twanoh and probably up toward Belfair are even lower than at Hoodsport. Lower Hood Canal is an area where the oxygen is so chronically depleted that fluffy mats of bacteria can be seen growing on the bottom at times when no other life can survive.

I feel that I need to express my disappointment with some of the comments posted to my story. To write this piece, I took note of the monitoring buoys; I pulled together observations of divers and others; and I even informed a few officials about the conditions that were developing.

I told this story straight, basing it on facts and observations that I gathered. Yet some people apparently chose to believe that my writing had something to do with taxation, government control, funding for Puget Sound Partnership, another costly study or hysterical tactics by environmental wackos.

I suppose I should be used to cynical comments by now, and I am glad that one person took the time to say he was pleased that I was “telling it like it is.” I just thought people would like to know of the dire conditions facing sealife in southern Hood Canal and what might occur if a south wind blows.

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It is becoming a tradition for the Samish Tribe to name the offspring of the whale we call Samish, now a 35-year-old female. Samish is the granddaughter of J-2, or Granny as she is called. Granny is possibly the oldest living orca among the Puget Sound whales.

Officials with The Whale Museum in Friday Harbor participated in the naming ceremony Saturday. They provided the account below, which I think you will enjoy reading.

By the way, some of our local orcas have shown up in Central Puget Sound, where they were sighted this morning between Fauntleroy and Southworth. I have not yet heard if these animals have been identified. (Note: I updated this with a story late this afternoon.)

The Samish Indian Nation Names New Calf J-45

Friday Harbor — On Saturday, October 17, 2009, the Samish Indian Nation held a traditional potlatch naming ceremony for J-45, the newest J Pod calf in the Southern Resident Community of orcas.

The Whale Museum participated in the ceremony by providing ceremonial gifts for the attendees as well as a greeting by Executive Director Jenny Atkinson. The museum was asked to appoint a witness to the ceremony. Because of her role as the Orca Adoption Program Coordinator and the storykeeper of the whales, Jeanne Hyde was named.

“It was an honor to be asked to witness, ” Jeanne noted.

Being a witness to the ceremony requires one to remember the ceremony and then witness to the gathering what was seen and heard. Witnesses also have the duty to pass on to others what they observed at the ceremony.

Blankets played a significant role in the ceremony. Each witness had a blanket placed over one shoulder. Four blankets were ceremoniously placed on the floor. A young person named Jacob was appointed to carry the image of J-45, the orca calf to be named.

(The original version of this news release said Jacob was the grandson of Dr. Wayne Suttles, who spent his career working with the Coast Salish people. Apparently, that is the way Jacob was introduced, but staff of the Whale Museum later corrected this misinformation. After Dr. Suttles’ death in 2005, the Samish Nation honored him by giving J-40 the name “Suttles” on October 6, 2005.)

Two blankets were placed on Jacob, one on each shoulder. He then walked to the center of the blankets, where words were spoken in the Samish language. Jacob then moved off the blankets with the image and slowly moved about the gathering “introducing” this young killer whale to all in attendance. Proceeding behind him were reverent singers and drummers. When the ceremony ended, the framed image and blankets were given as gifts to honor others in attendance.

J-45’s name was announced: Se-Yi-Chn (pronounced “sea-ee-chin”). This name means younger one. In the Samish language there is no name for brother or sister, but only references to older or younger with the emphasis always being placed on the older or elder ones.

In his family group, Se-Yi-Chn is the younger one to Granny (J-2), Ruffles (J-1), Samish (J-14), Riptide (J-30), Hy’Shqa (J-37) and Suttles (J-40), as well as to all in J Pod.

The Naming Ceremony promoted a feeling of community and commitment. Also in attendance, museum board member Fred Felleman observed, “We all share in the responsibility to help assure that Se-Yi-Chn has a clean, productive and serene environment in which to grow up.”

Se-Yi-Chn is now entered into the Orca Adoption Program where he can be symbolically adopted. Adopting this young calf or another whale in the Southern Resident Community supports the mission of The Whale Museum, which promotes stewardship of whales and the Salish Sea ecosystem through education and research.

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An outline of the action plan, titled “A Vision for Hood Canal,” was discussed at today’s meeting of the coordinating council, which is made up of county commissioners and tribal officials in Kitsap, Mason and Jefferson counties.

Scott Brewer, director of the council, told me that actions to address low-oxygen problems in Hood Canal will be rolled into this watershed plan — but specific projects will move forward on their own time tables.

A new sewage-treatment plant in Belfair is expected to reduce nitrogen flowing into Lower Hood Canal. Nitrogen has been determined to be a key factor in creating low-oxygen conditions in this region of the canal, which gets very little flushing.

Other sewage-treatment plants are being considered in Hoodsport, Potlatch and the Skokomish Reservation, all in Mason County, along with a single system for Dosewallips State Park and possibly Brinnon in Jefferson County.

Immediate actions include:

• Making sure people understand the basics of septic system maintenance,
• Continued funding for a low-interest loan program for septic upgrades (See Shorebank),
• Support for the Working Forest Initiative to maintain forestlands in the Hood Canal region,
• A request for research into the effectiveness of nitrogen-removal septic systems,
• And a request for research into the extent that alder trees can increase the flow of nitrogen into Hood Canal and whether to pursue changes in forest management.

The action plan contains a “watershed assessment,” which will describe a “desired future condition” for Hood Canal along with factors that need to be addressed to reach measurable goals. As the outlines states:

In a general sense, the hypothesis to be tested through the watershed assessment is whether ecosystem function throughout the Hood Canal watershed can be protected and restored, and water pollution reduced, while at the same time accommodating expected future population growth. More specifically, the desired future condition will describe healthy habitat and life histories of target populations and other habitat and socioeconomic conditions.

The plan’s description of desired future conditions will be used as a template against which to compare current conditions, for purposes of identifying limiting factors and strategies to correct them. The plan’s description of desired future conditions will be based on a reconstruction of historic conditions, taking into account changes that are irreversible.

For further details, check out materials provided for today’s meeting on the home page of the Hood Canal Coordinating Council.

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I was beginning to wonder if I was the only environmental reporter who recognized the significance of a lawsuit involving Indian treaty rights and state culverts. I wrote about the case for the Kitsap Sun in March, after it appeared negotiations had broken down.

The outcome of the case could well determine how much power the courts hold over state budgets when it comes to the enforcement of Indian treaty rights.

After all, from the tribes’ perspective, the state has been dragging its feet in restoring salmon habitat — including the replacement of culverts that block the passage of salmon. On the other hand, the courts could force the state to spend money that it doesn’t have, or else shift dollars from education, social programs, law enforcement, even other environmental initiatives. That is why I think this is such an important precedent-setting case.

The issue is now in trial, having started in U.S. District Court last week. Reporter Craig Welch does a nice job of putting the issue into historical perspective in today’s Seattle Times.

I was on vacation when the trial started, so we referred the story to the Associated Press. AP reporter Tim Klass has done a good job of following the trial. See his first story in the Oct 13 Kitsap Sun and a follow-up in today’s paper.

If I hear the tribal attorneys correctly, they are looking to fix the major blocking culverts under state jurisdiction within 20 years, rather than the 50-60 years under the state’s current schedule.

If this case succeeds, the next logical step would be to go after counties — which may have hundreds of culverts that need attention. Other habitat issues also would be on the table. Anybody want the courts to set stream and shoreline buffers?

I suppose we’ll have plenty of time to talk about the implications once the decision is handed down. And there will be appeals, of course. No matter the final outcome, this case will have repercussions for decades to come.

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