Objections to Both the
Majority and Minority Reports
of
the Citizen Advisory Committee on Critical Areas Code Updates
by
Dr. Robert N.
Crittenden
March 28, 2007
274 Sturdevant Rd.
Sequim WA 98382
360 582-9550
I have the following
objections to the majority and minority reports which make it
impossible for me to support either of them:
The general
approach proposed in both reports may reasonably be expected to
result in the opposite of what they aim to achieve because they
penalize those property owners who have protected their
critical areas and reward those who have degraded or eliminated
them. That may be expected to promote the further degradation
or destruction of critical areas and to foster
anti-environmental and anti-government sentiments among the
public.
A buffer is a
government-regulated area. That regulation deprives the
property owner of his or her decision-power over that area.
That is a penalty. Jail is another example of that same general
kind of penalty, that is, the deprivation of personal
decision-power. It is unjust and contrary to our heritage for
people to be penalized when they have done nothing wrong; and
it is even more unjust for them to be penalized when they have
done the right thing rather than the wrong one. --- The proper
approach is to penalize those individuals who do the wrong
thing. For example, those who have deliberately polluted water
bodies. We have laws to do that and there is a lack of evidence
that such acts have been a significant problem in Jefferson
County.
The definition of
"wetlands" employed in their delineation in the
processes laid out in both the majority and minority reports is
so broad that few members of the public would recognize many of
them as wetlands nor can large parts of those areas be assumed
to have the same functions and values as marshes or bogs.
Consequently, the buffers and other policies designed to
protect wetlands, under the misapprehension that they are
marshes or bogs, are in many cases inappropriate. Furthermore,
those regulations will not be likely to be accepted by the
public, as they do not appear to serve any legitimate purpose
for those large areas of the "wetlands" that are not
marshes or bogs.
Department of
Ecology's new wetlands rating system is primarily based on two
reports by Dr. Hruby et al. These are not scientific studies
but reports of the results of two meetings convened for the
purpose of obtaining support for the adoption of a new wetlands
rating system based on some ideas that were, at that time,
being promoted by the Federal Government. However, the
attendants at the first of those meetings repeatedly rejected
the idea that an overall score for the value of a wetland could
be obtained by combining scores from the various functions. So,
in order to achieve their predetermined outcome (that is,
obtaining support for the acceptance of their new wetlands
rating system) the department convened a second meeting for the
purpose of obtaining support for combining the scores from the
various functions. I presume that they did not invite those
individuals who had objected strenuously to the combining of
scores during the first meeting and that, had they failed to
obtain their desired outcome in the second meeting, they would
have held yet another meeting. Thus, by the evidence of their
own supporting literature, their rating system was not
supported by the scientific community. --- The majority report
the the Citizen's Advisory Committee makes some modifications
to the department's new rating system that may reduce this
problem, by relating buffer widths to the scores for the
specific functions, but the minority report uses the
Department's new rating system without modification.
Because, the
species are not identified for which the wetlands buffers seek
to provide protection and habitat, it is not possible to
demonstrate that those species are worthy of protection, need
protection, that the buffers will provide habitat for them, or
that the habitat thus provided can reasonably be expected to
meet their needs.
In the case of the
majority report, the habitat components of that plan from the
Buffer Subcommittee were not accepted when that report was
adopted by the full Citizens' Advisory Committee but, the
process from the Fish and Wildlife Subcommittee's report for
identifying species of local significance that are in need of
protection and the protection that should be provided for them,
was adopted, instead, to be incorporated into the buffer
subcommittee's report, replacing its habitat components. This
would have satisfied the previous objection. However, after
adopting that process, that change seems to have been forgotten
and their final report was produced without it.
The Forest
Practices Act or elements from it has been adopted in several
places in the majority report. However, the Timber, Fish
,Wildlife (TFW) negotiations from which it originated only had
representation from the timber industry, environmental groups
and the Tribes and only considered commercial forestry
applications. Consequently, the Forest Practices Act is in many
places inappropriate for other types of applications, including
residential, agricultural, business, and so on... For these
reasons, the Forest Practices Act should be adhered to only in
those cases where the County is required to do so.
There are
compelling reasons to believe that the salmon populations did
not decline during the recent salmon crisis, during the 1990's,
due to a lack of freshwater habitat. I wrote a book about this,
in 1992, before the salmon crisis had occurred, saying that the
Washington Department of Fish and Wildlife, in collaboration
with the Tribes and leading environmental groups, was
deliberately depressing the salmon stocks. --- I personally
have no doubt that that was the case, as I was working as a
consultant to State government at the time and spoke with
several of the principles involved about this, attended some of
the public meetings at which these policies were discussed and
decided upon, spoke about this to other individuals within the
departments who were involved in the implementation of these
programs, and know departmental employees who quit the
department on account of these policies. --- However, perhaps,
the best evidence (because it should be apparent to a wide
segment of the public) that the decline of Washington's salmon
stocks was not caused by a lack of freshwater habitat, is that
the salmon populations declined in degraded rivers as well as
in pristine ones. --- Another one of the major causes of their
decline was the reopening of the West Vancouver Island fishery,
as the result of the collapse of the Canadian-American Salmon
Interception Treaty, due to the South Alaska salmon fishery's
refusal to stop intercepting Frazer River sockeye. When, I
asked the manager of that fishery why she allowed it, she said
that she had been told to do it by one particular prominent
elected official from her State. So, that, too, was deliberate
and political.
There actually was a
legitimate fisheries management reason from them to have done
that, although, I do not know whether or not that was actually
why they did what they did. That was that they needed more data
from low abundance years in order to obtain statistically
significant estimates of the parameters in the Ricker
spawner-recruit curve. That is an important management tool and
I had (Crittenden 1994) demonstrated the high cost of that lack
of statistical significance but, also, that they only needed a
few more years of data to obtain statistical significance.
What they should not
have done is deliberately perpetrate the hoax that the salmon
crisis was caused by a lack of freshwater habitat and use that
to leverage land-use regulation. Furthermore, this is still
continuing, for, at the public hearing at the Jefferson County
Library on their hatchery management plan, their
representatives said that they were still holding the stocks in
several rivers down for a few more years to obtain more data. I
asked about the Samish and Dungeness Rivers and they said,
"Yes. They were doing that in both of them." However,
I did not ask about the streams and rivers in Jefferson County.
I do not suggest that
we should destroy salmonid habitat but it is well to be aware
that the loss of freshwater habitat was not and is not the
cause of the decline of the salmon stocks. Then, the County
will be less likely to be misled into taking unnecessary
actions for its protection or enhancement.
No-touch buffers
are not only not necessary but can be counter-productive. The
regulation of buffers should only prohibit activities that
interfere with the functions of the buffer. Prohibiting all
activities is unnecessary and prohibiting activities such as
the management of woody growth is counter-productive.
Many of the
studies cited in the Department of Ecology's review of the
"best available science" (That is, Washington
Wetlands, Vol 1 by Diane Sheldon et al.) are not
scientifically valid because of methodological problems. Their
most common weakness is that they failed to control the various
environmental variables that affect buffer performance.
Furthermore, many of them were government reports or other
types of gray literature that were never peer reviewed.
Another problem with
their best available science is that the Department of Ecology
funds studies on those issues which they know will be on their
agenda in the near future and they tend to provide funding to
scientists that generally agree with their viewpoint.
Consequently, the studies that are available when the issues
arise are a biased sample.
Nevertheless, a
considerable preponderance of studies indicates that dissolved
nutrients and suspended solids can be effectively removed by
buffers which have a width of ten meters or less. In some
cases, buffers as narrow as two meters have been shown to
adequately provide that protection. Similarly, shading, cover,
and insect drop can be effectively provided by narrow buffer
strips. Nevertheless, as filtration and the removal of
nutrients is one of the functions of wetlands, it can be
questioned whether any buffer for the removal of dissolved
nutrients is needed, except in extreme cases such as beside
animal feed lots. However, some kinds of pesticides and
herbicides are not adequately removed even by buffers of a
thousand feet or more. They should be dealt with by other
means, such as prohibiting their use within an appropriate
distance of a water body or wetland.
The great width of the
proposed buffers, in the majority and minority reports, which
in some cases are in excess of 100 feet, is primarily due to a
desire to provide wildlife habitat. It has already been stated
above, that the species in need of this and their needs have
not been identified. The point that I wish to make here, is to
question the right of the County to require private land owners
to provide wildlife habitat. --- The private landowner not only
has no obligation to provide habitat for the public's animals
but could lawfully exterminate many species of them if he or
she desired to do so. The preservation and fostering of
wildlife is a general public benefit and the cost of providing
that benefit should be born by the public in general not by one
sub-group of them. Thus, there appears to be no justification
for any buffers of more than ten meters in width. Nevertheless,
if some species can be shown to justifiably need buffers for
their protection, the procedure outlined in the Fish and
Wildlife Subcommittee's report would allow for those buffers to
be created.
Perhaps, it was
unintended and simply a matter of viewpoint but both the
majority and minority reports contain a certain amount of
featherbedding. In particular, the majority report, was
primarily prepared by a biologist who does wetland delineations
and related studies for private parties and it requires, in
many cases, that such studies be part of the permitting process
or it allows them as options; the individual who represents
commercial forestry and who has studied small forestry
applications, has repeatedly tried to insert the Forest
Practices Act into the majority report; the minority report was
prepared by environmentalists and provides funding
opportunities for their class of people; and the agriculture
report was prepared largely by an employee of the Conservation
District and another from WSU, and it suggests a heavy reliance
on the services that those two government entities provide. ---
There is entirely too much self-interest in the majority and
minority reports.
Much of what I
have said above, is that many of the proposed regulations in
both the majority and minority reports are unreasonable. In
addition, in many cases they are also arbitrary and unduly
restrictive or hurtful to the land owner. Two studies by
Stanford Professor P.G. Zimbardo showed that the arbitrary,
unreasonable, unpredictable and cruel application of power
caused deindividuation among those upon whom it was applied.
That resulted in their depersonalization, emotionalization,
group-membership, and irrational and/or anti-social behavior.
There were also personality changes among about a third of
those wielding the power, such that they come to devise
creative ways to torment those who had the misfortune to be
under their power.
His first study dealt
with these phenomena in an open population, whereas, his second
study, which was the more definitive, dealt with them in a
simulated prison setting. However, the difference between
land-use regulation in Jefferson County and his mock-prison
study are not all that great, as buffers are penalties that
deprive the victim of decision-power. Although, that is less
severe and is in an open setting, instead of a prison, that is
the same kind of penalty as a prison sentence. In addition the
volunteers who participated in his study were college students
and, thus, were the same class of people as enter government. A
short quote from his 1982 paper goes a long ways towards
explaining what he found: "The counterpart of the mastery
and control [exhibited by the guards] was the depression and
hopelessness witnessed in the prisoners." --- We have
heard in public testimony or have personally experienced these
types of behaviors among government employees, involved in
land-use regulation. So, we should not fail to recognize that
these phenomena are applicable to land use regulation in this
County.
Nevertheless, all that
these two studies really tell us, is that psychologists have
studied the mechanisms by which repressive regulation and/or
its unjust application can lead to the breakdown of law and
government and the development of a widespread sentiment of
belligerence and defiance or, worse yet, depression and
lethargy, among the public.
When we consider the
risks and costs associated with regulation, these risks should
not be overlooked, for they quite possibly have a greater
impact upon the quality and enjoyment of life even than the
financial burden that regulation unavoidably imposes upon the
public. In my opinion, it is highly unlikely that the doubtful
gains that may be obtained by the environmental protections
that are suggested in the majority and minority reports will be
greater than these risks and costs.
During the first
meetings of the Citizens' Advisory Committee, I suggested that
we should take the opportunity to confirm and support the
widely-held view among the public of Jefferson County, in favor
of what might be called "sustainable-living." In
particular, I suggested that any land use, including not only
agriculture but also residential use and small businesses,
should be exempt from the critical areas code regulations if
the property owner followed a few simple and easily-understood
rules that would provide reasonable assurance that no pollution
or other environmental damage would occur. Central among these
rules was the requirement that no pesticides, herbicides,
fertilizers, or other chemicals would be used in gardening or
farming except those that were grown or originated on the
parcel. There would have to be a few other rules, such as
setbacks for compost heaps, driveways, and buildings, the
provision of shade along water bodies and control of stormwater
runoff. --- In fact, one could simply add such an exemption to
the allowed uses of buffers in either the majority or minority
reports. --- This would go a long ways towards making the
critical areas ordinance livable for the vast majority of the
public, by allowing them a way to escape government regulation,
if they do no harm. It would also confirm and support a widely
held ethic in this County and, quite possibly, might result in
this County's becoming a World leader in sustainable living.
Unfortunately, it soon became apparent that this proposal was
inconsistent with the desires for featherbedding on the part of
the various interest groups represented within the Citizen's
Advisory Committee. They were all opposed to a non-regulatory
approach, probably, because it did not provide them with the
opportunities for funding, authority, or power that they
desired. Thus, we appear to have missed an opportunity to take
a significant step forwards.
The majority and
minority reports appear to be two different interpretations of
the Department of Ecology's recommendations: Specifically,
option three in appendix 8C of Volume two of Washington
Wetlands. These two reports differ mainly in details, one
being more prescriptive (which is not entirely without merit,
as the law is, then, fixed and known), whereas, the other
allows more for creative solutions. It should be possible to
combine many parts of these two reports into a single
ordinance. Nevertheless, as most of my objections apply to
elements which are common to both of them, I can not endorse
either of them nor is it likely that I would be able to endorse
a combined version.
The only possible
exception, would be, if, the outcome included a provision that
would allow individuals to avoid regulation, if they followed a
set of simple rules that will insure that they would do not
harm. However, "no regulation" within that path,
really means no regulation and anything short of that defeats
the purpose.
Finally, I object
to the suppression of minority opinion: The Citizen's Advisory
Committee voted to allow minority reports but the Planning
Commission has instructed them, near the end of the process,
that such reports can only be accepted from groups within the
Advisory Committee, not from individuals.
Literature
Cited
Crittenden, R.N. 1992.
Salmon at Risk, first edn. Hargrave Publishing, Carlsborg
WA.
Crittenden, R.N. 1994. Optimum Escapement Computed using the
Ricker Spawner Recruit Curve. Fisheries Research. 20:
215-227.
Sheldon, D. et al. 2004. Washington Wetlands. Vol. I.
Dept. of Ecology, Lacey WA.
Zimbardo, P.G. 1970. "The human choice: Individuation,
reason and order versus deindividuation, impulse and chaos. in
W.J. Arnold and D. Levine (eds.) Nebraska Symposium on
Motivation. 1969. Univ. of Nebraska Press, Lincoln,
Nebraska.
Zimbardo, P.G. et al. 1982. "The psychology of
imprisonment" in J.C. Brigham and L.S. Wrightsman (eds.)
Contemporary Issues in Social Psychology Brooks/Cole
Publ. Co. Monterey CA 395 p.
Testimony Submitted to
the
Jefferson County Planning Commission,
Regarding
Their Draft Critical Areas Ordinance
by
Dr.
Robert N. Crittenden
June
21, 2006
Crittenden
Biometrical
274 Sturdevant Road,
Sequim WA 98382
360 582-9550
Below I list several issues that
need to be raised during the hearings on this ordinance, in
order that they may be available to be examined by the courts.
1.
The restriction imposed by the Hearings Board that, only
scientific studies and issues that were mentioned during the
public hearings on an ordinance can be examined by them is
unjust, as a member of the public will rarely know what issues
or scientific studies may be relevant, particularly when it is
necessary for them to have been identified before the issue to
which they apply arose.
2.
I identify here broad categories of scientific literature in
order to provide a body of scientific literature upon which they
can draw. That includes all articles in respected peer-reviewed
scientific journals. These journals include by are not
limited to the Canadian Journal of Fisheries and Aquatic
Sciences, Fisheries Research, Ecological Modeling, Journal of
the American Fisheries Society, North American Journal of
Fisheries Research, Journal of the American Statistical
Association, and Biometrics.
3.
I also identify the review entitled Pacific Salmon Life
Histories, by Groot and Margolis. By citing that book, I
also identify all the scientific works that they cite, therein.
4.
I also identify all articles and technical reports published by
myself.
5.
That includes a scientific article on buffers that is still in
progress. --- Articles that have not been completed yet
have been cited elsewhere for inclusion as Best Available
Science. An example of this abuse can be found in the City
of Bainbridge Island’s best available science review for
their proposed ordinance on marine buffers. This
practice needs to be curtailed. However, so long at it hasn’t
been, I might as well include this not-yet-completed article of
my own. Taking a further step, I shall also include one on
wetlands that I have not begun yet and may, in fact, never
begin. This way, I open the opportunity for myself to write into
it anything I may want, at some future date, when the need
arises.
6.
Another issue that needs to be examined is whether the State’s
definition of “Best Available Science” satisfies the
due process requirement. The State’s definition was
provided by the Department of Trade and Community Development
and appears in the Washington Administrative Code. The
problem is that that definition is a lower standard than the
standard for scientific validity. As the scientific standard is
the strict standard of reason and one of the due process
requirements is that a law, rule or ordinance be reasonable,
studies that meet State’s standards for Best Available
Science but do not meet the scientific standard may not provide
a rational basis for a law, rule or ordinance as required by the
due process requirement. The next two items identify
points where the State’s standards are lower but this is
not meant to imply that these are the only such points:
7.
Government reports and reports by consultants to their clients
rarely receive independent review by peers of the scientific
community. As they, thus, often do not meet the standards for
scientific publication they should not be regarded as scientific
publications, unless they can be demonstrated to have met those
same standards.
8.
The standard for a “scientist” that is established
in the State’s definition of Best Available Science is a
lower standard than that for a “peer of the scientific
community” for the purposes of providing peer review in a
respected scientific journal and is also lower than that usually
found for a scientist within the academic community.
9.
Jefferson County’s proposed buffers on wetlands appear to
be based on option 3 in Appendic 8C in Volume II of Washington
Wetlands. The key study on which that is based in a report
by Hruby et al. in 2004. However, it is merely a modification of
an earlier study by Hruby et al in 1999. That earlier study was
a report done by a committee, which appears to have been
conducted by the Delphi and Consensus processes. These processes
provide a means for directing a committee’s conclusions to
a pre-determined outcome. Therefore, the results presented in
their report should be considered to be dubious.
10.
That committee repeatedly reached the conclusion that the
scores provided by the various elements of their scoring of the
quality of a wetland could not be combined to provide an overall
score for that wetland. --- Thus, although the first
committee’s results may be dubious, because of the
process, if they are to be regarded as being valid, we should at
least respect their repeated conclusion that the individual
scores should not be combined. Nevertheless, the purpose of the
second report was to combine them to provide overall scores.
11.
Furthermore, the supporting scientific literature, provided in
Volume I of Washington Wetlands, was published after the
recommendations made in Volume II, that they support.
Thus, Volume I bears the appearance of providing support
for a predetermined outcome, instead of the outcome being based
upon the science.
Testimony
on King County's 2004
Proposed
Critical Areas Ordinance.
by
Dr.
Robert N. Crittenden
Crittenden
Biometrical
274
Sturdevant Road, Sequim WA 98382
360
582-9550
This
report was prepared for the Citizens' Alliance of Property
Owners.
Permission
to copy and distribute this report is granted to the Citizens'
Alliance of Property Owners.
Executive Summary
The
proposed ordinances on clearing, grading, and stormwater would
remove from use more than half of the total land area of rural
King County and restrict the use of the remaining area. Even if
those restrictions were removed from the proposed ordinance its
proposed buffers would still remove a substantial area. However,
the studies upon which the clearing grading and stormwater
ordinances are based lack scientific validity and fail to meet
the standards for Best Available Science; likewise, relatively
few studies on buffers are both scientifically valid and
applicable to the Puget Sound Region. I, therefore, recommend
against the adoption of these proposed ordinances.
A
few of the defects in the supporting studies are listed below:
The overall context and scientific framework of the Best
Available Science underlying the Critical Areas Code update is
based on the principles of conservation biology. Those
principles include two which show that conservation biology is
not science:
A) Conservation biology assumes complexity as an initial
hypothesis, in violation of Occum's Razor and
B) Studies in conservation biology are mission oriented,
instead of being value-free.
A key study identified as providing the scientific basis for
these ordinances is by Booth, in 2000. It is not directly
applicable to current conditions in King County, because its
data were collected from a watershed which did not have
detention ponds.
The modeling study establishing its applicability is
unavailable for examination.
That study was "modeling" but was presented as
"expert opinion," thus avoiding the necessity of
exposing it to review, but also making it and Booth's study,
which rests upon it, fail the standards of Best Available
Science.
The conclusions about the relative roles of deforestation and
impervious surfaces are unsupported, because Booth was unable
to separate the impacts of these two factors. He relied on the
above mentioned modeling study and others to reach his
conclusions. Unfortunately, their validity remains unknown
because they are unavailable for examination.
Two earlier studies cited by Booth, in 2000, are also
inapplicable, because they are based on the same data set from
the watershed which did not have detention ponds.
Those two studies
also did not adequately describe their modeling methods to be
repeatable or to allow their evaluation. That component of
their papers was a hydraulic model which they used for similar
purposes as the model discussed above in items 3, 4, and 5.
Many of the studies identified as supporting the clear, grading
and stormwater ordinances are weak in statistics and
quantitative analysis. For this reason they fail to demonstrate
that their conclusions achieve an acceptable error-rate and
also fail to meet the standards for Best Available Science.
The suggested thresholds for clearing and impervious surface
are based on observed correlation's, but correlation does not
prove causation. Thus, the conclusions do not follow logically
from the results, failing the standards for Best Available
Science.
Although several thousand studies have been done on buffers,
worldwide, most of them are inapplicable to the Puget Sound
region, as its soils are of glacial origin and it has a
temperate marine climate. That makes it relatively unique.
In addition, a surprisingly high proportion of buffer studies
are not scientifically valid.
After the inapplicable or invalid studies are removed, few
remain.
Many of the studies supporting the proposed buffers are weak in
statistics and quantitative analysis.
The County's Best Available Science review cites several
correlational studies supporting their buffers. But,
correlation does not prove causation.
A related problem is that data on salmonid abundance is often
drawn from periods during which they were declining for reasons
not related to the availability of freshwater habitat.
Consequently, based on data from these periods, significant
positive or negative correlation's, significant regressions,
and so on... can be found between salmonid abundance and urban
growth . But, these results are misleading.
There is no consensus in the literature regarding single buffer
widths for particular functions or to accommodate multiple
functions.
The GMA does not mandate the restoration of habitat, only its
protection and preservation. Thus, buffers are not necessarily
required.
Agricultural pollution is probably most effectively controlled
through the use of best management practices, specific to the
particular application, instead of buffers.
Prohibiting a specific list of egregious agricultural
practices, which pose an unusually high risk of pollution, has
been remarkably effective in Skagit County.
I present the case for narrow buffers based on the reviews by
Desbonette et al, Chris May, and DOE.
A US Judge ruled, in 2004, that it is better to restrict the
use of chemicals near the water than to use buffers.
Contrary to the statement in the County's BAS review that, no
studies show that no buffers are needed, I give examples of
seven studies which show this.
The proposed ordinances do not allow for engineering or other
alternative solutions.
The ordinances can not be justified by a desire to "save
the salmon" as the salmon crisis was caused by ocean
conditions not habitat. Also, some runs are current being kept
at low numbers, by WDFW, for legitimate management reasons.
The proposed ordinances place a disproportionate burden on
rural property owners.
Introduction
My
testimony focuses on the proposed buffers and requirement that a
minimum of 65% of the land area of parcels in rural King County
be in native vegetation and a maximum of 10% be impervious
surface.
The
County's review of Best Available Science states that the
primary purpose of these regulations is to protect the functions
and values of critical areas.
Best Available
Science:
Ordinances which affect
critical areas are required to consider best available science
(BAS), but that is not much different from the requirements
which apply to ordinances controlling other areas, as the
State's BAS requirement is essentially their interpretation of
the Federal due process requirement that all laws, rules,
ordinances and their applications be reasonable.
"Reason" and
"science" are approximately equivalent, for that which
is truly supported by reason will be scientifically valid. Thus,
scientific validity becomes the central issue when we consider
the studies which provide the basis for the County's proposed
ordinances.
However, the State's
uses Best Available Science, instead. The State's standards for
BAS are published in the Washington Administrative Code, WAC
365-900 through 925 and are, also, summarized in Appendix A of
Volume I of the County's Best Available Science document.
BAS has six criteria:
The study must have passed independent peer review;
Its methods must be valid and adequately described for the
study to be repeated;
Its results must
have passed appropriate statistical tests and quantitative
analysis;
Its conclusions
and inferences must follow logically from the results;
It must be in its
proper context; and
It must cite the
relevant scientific literature.
The
standards for Best Available Science differ depending upon the
type of study. The highest standards apply to research and
modeling. They must pass all six of the criteria. These
standards are approximately equivalent to the conventional
guidelines for peer review provided by respected scientific
journals.
The
criterion for Best Available Science that appropriate
statistical tests be conducted, establishes the traditional
scientific error rate, of 0.05%, as the "acceptable error
rate"
in the context of the due process requirement. Thus, when Best
Available Science is required, passing the statistical tests
demonstrates that, in the State's opinion, an acceptable error
rate has been achieved .
But,
the criteria for Best Available Science for other types of
studies, than research and modeling, have lower standards. In
particular, "expert opinion" is only required to meet
the fourth, fifth, and sixth criteria. Therefore, for expert
opinion, as well as for those other types of studies for which
lower standards apply, "Best Available Science," does
not necessarily guarantee scientific validity, nor does it
guarantee that the study provides reasonable support or achieves
an acceptable error-rate.
Fortunately, in most of
the studies which are examined here are research or modeling
and, therefore, BAS and scientific validity are approximately
equivalent.
Overall
Context and Scientific Framework:
The overall context and
scientific framework of the County's review of Best Available
Science are described in their Chapters 1 and 2. They rest upon
the ideas of conservation biology enunciated by Noss and
Cooperrider, in 1994,
and Noss et al., in 1996.
But, the principles of conservation biology include two which
directly violate the long-established principles of scientific
methodology:
1)
Conservation Biology Violates Occum's Razor: Their principle
that ecosystems are complicated beyond human understanding, and
that their highly complex nature should be adopted as the
working hypothesis, directly contradicts Occum's Razor, that the
simplest hypothesis should be adopted as the working hypothesis
until proven otherwise. The simplest hypothesis, is that simple
direct effects should be accounted for first, before
interactions and more complex processes are considered.
There is a large body of successful ecological research
demonstrating the effectiveness of this traditional scientific
approach, whereas only a few successes support the alternative
approach taken in conservation biology.
The statement of this principle from conservation biology, can
be found on page 330 of Noss and Cooperrider's book. It is a
quotation from Frank Egler, in 1977: "Ecosystems are not
only more complex than we think, but more complex than we can
think."
The relevance of this principle to the body of Best Available
Science underlying the proposed ordinances became clear, in
2000, when it was identified by Dr. Chris May. He was one of the
reviewers of the County's report on Best Available Science, he
was one of the contributors to the studies it is based on; and
he received his doctorate from the department of Civil
Engineering of the University of Washington, which is where most
of the central studies cited in the County's review of Best
Available Science originated.
Dr. May explicitly recognized this principle as one of the
central principles of conservation biology, in his study of a
system of proposed salmonid refuges for Kitsap County.
That study was done concurrent with King County's Best Available
Science document. However, his study for Kitsap County was
rejected by their Planning Commission, partly, because it rested
upon that principle.
2)
Research in Conservation Biology is Mission-Oriented: A
second principle which Noss and Cooperrider enunciated was that,
"Conservation biology ... is not value-free science. Rather
it is mission-oriented." That can be found on page 89 of
their book. They go on to say that the first step is to set
goals and, only afterwards, are studies conducted. They serve
the purpose of achieving those goals.
The
principle, that conservation biology is mission-oriented,
directly recognizes the non-scientific nature of conservation
biology. It should serve as a warning to carefully examine the
studies presented in King County's review of Best Available
Science.
It
should also alert the County Commissioners to the possibility
that the County's employees may have goals and a goal-setting
process independent of the County Council. If that is the case,
hopefully, the County Council will establish control over that
process so that they will determine the goals which the County's
ordinances serve.
3)
Furthermore, In Conservation Biology, People are Regarded as
Being Part of the Ecosystem: Conservation biology is an
approach to ecosystem management. As people are included as part
of the ecosystem,
conservation biology includes the management of people. Dr.
May's, 2000, Salmonid Refugia Report for Kitsap County
illustrates how the principles of ecosystem management can be
applied to molding public opinion and, thus, controlling
peoples' behavior.
Validity and
Applicability of Studies:
There
appears to be at least 3000 to 4000 studies of buffers and their
related issues, worldwide. However, the vast majority of these
studies are either scientifically invalid or inapplicable to the
Puget Sound Region. King County's review of Best Available
Science did a good job in limiting the studies they cited to
ones which are applicable, but some of the key studies have
flawed science.
I
examined about 100 studies, at random, from the documents which
were assembled for the court case by the two sides for or
against the narrow agricultural buffers originally required by
Skagit County. More than half of those studies suffered from
some problem in their scientific methodology. ---- The most
prevalent flaw was probably their failure to control for other
variables, such as slope or soil type, which would be expected
to influence the effectiveness of the buffers. Probably the
second most common mistake was their failure to do the
statistical tests necessary to establish the scientific validity
of their results. A few studies even did the statical tests ,
showed that their results were not significant but,
nevertheless, drew conclusions from them. Good sampling designs
which had adequate replicates, randomization, and controls were
the exception rather than the rule and serious mistakes in
statistical methods were not uncommon. The vast majority of
these studies are "gray literature": That is, they
were the reports of consulting companies, government agencies,
or were published in minor or obscure journals, engineering
journals,
symposia, or as chapters in books. These types of publications
often do not receive independent review by peers of the
scientific community. Nevertheless, a few of the flawed studies
were published in respected scientific journals.
After
eliminating the studies which were not scientifically valid,
almost all of those which remained were inapplicable to the
Puget Sound Region. --- This area is relatively unique, as it
has soils of glacial origin and it is in a littoral zone with a
prevailing onshore wind, which gives it a temperate marine
climate with a dry season in the Summer. The only similar
regions may be Western Scotland, Southern Norway and Denmark.
This
climatic zone is delimited on the East by the Cascades. The
prevailing onshore wind keeps temperatures mild, the air humid,
and also results in a dry period usually from August through
October. This climatic region, may or may not be considered to
include the Frazer Valley, as the cold air from the Canadian
interior will flow down it, at times during most winters; but,
the Northern limit of this region is certainly not further north
than the mountains along the North side of that valley, as they
divide the Arctic airmass of the Canadian Interior from the
marine airmass of the Lower Canadian Mainland. Much of the
coastal regions of Vancouver Island are included in this
climatic region, but along the coast north of there, the
conditions tend to be colder.
In
addition, the Puget Sound Region has soils of glacial origin.
The glaciers of the last Ice Age extended as far South as
Olympia. They left behind them sediments mostly composed of
either gravel and cobble or of the silts and clays which
precipitate from glacial milk. All of these materials were very
well washed by the ice-melt during the glacial periods. That
removed much of their soluble minerals and changed their soil
chemistry. The result is that this region has a type of soil in
terms of porosity and chemistry which is only found in a band
around the Earth, at approximately the limit of the glaciers of
the Ice Age.
Thus,
having both a glacial origin and a temperate marine climate,
makes this region is fairly unique. It extends roughly from
Olympia to Vancouver BC and from the Pacific Ocean to the crest
of the Cascades. Studies done in Western Scotland, Southern
Norway or Denmark may also be applicable to this region, but the
applicability of other studies needs to be demonstrated before
they are applied.
King
County's Review of Best Available Science clearly tried to limit
the studies it cites to ones which are from this region, when
such studies were available. However, some of the key studies
they cite are not scientifically valid. I point out some of
these in the following sections.
Criticism of the
Studies Supporting the Proposed Clearing, Grading, and
Stormwater Ordinances:
Volume
1 of King County's review of Best Available Science contains an
essay by Dr. Booth,
which they say reviews the studies which support their clearing,
grading, and stormwater ordinances.
That study and some of
the studies it cites, fail to meet the standards for Best
Available Science nor are they scientifically valid. A few of
their defects are as follows:
Not directly applicable: Booth's 2000 article is based
on a study of a watershed in which ponds for the detention and
infusion of stormwater were not used, at that time.
Consequently, a large part of the runoff from roads, parking
lots, roofs and other impervious surfaces was probably
conveyed, by storm drains, directly to the streams and rivers,
where it made an immediate and substantial contribution to peak
flows. As these practices are now avoided in King County, the
author's conclusions about the relationship between
urbanization and peak flows are not directly applicable to
current conditions in King County.
The model
establishing its applicability is unavailable for examination:
He attempted to bridge this critical gap in his reasoning, by
relying on a modeling study by David Harley, in 2000. However,
that study was cited only as "written communication."
Evidently, it was not a peer-reviewed published work. Nor, is
it available for examination. Consequently, its validity
remains unknown. For this reason, this critical gap in Booth's
logical argument remains unbridged and his paper, fails to
demonstrate that his conclusions follow logically from his
results. For this reason, among others, Booth's paper fails to
meet the standards both of Best Available Science and
scientific validity.
That study was
"modeling" but was presented as "expert
opinion": In essence, Booth presented the conclusions
of Hartley's research as "expert opinion," whereas,
his study was research involving modeling. ... Expert opinion
has the lowest standards in BAS; whereas modeling and research
must meet all the criteria and, thus, have the highest
standards. Thus, as it is presented, Hartley's study does not
meet the standards for Best Available Science. It also clearly
fails to establish its scientific validity. Furthermore,
Booth's presentation of Hartley's conclusions did not even meet
the criteria for "expert opinion," as only the
conclusion of his study was given, without showing that it
follows from the results, nor did he establish the context or
cite references.
The result of
the unpresented model appears unlikely: In Chris May's
Ph.D. Dissertation, he states that approximately 65% of the
impervious surface in rural King County is roads and parking
lots. As roads and parking lots are often traditionally ditched
to drain directly into streams and rivers, whereas other
impervious surfaces, such as roofs or driveways rarely are,
roads and parking lots must be contributing disproportionately
to increasing peak flows in streams and rivers. They may
account for roughly 80% or 90% of the problem. Therefore, the
expected conclusion, which one would anticipate from that
model, would be that the problem of increased peak flows in
streams and rivers can not be resolved unless quick runoff from
roads and parking lots is substantially reduced. However, they
gave the result, that the problem of increased peak flows in
streams and rivers can not be resolved unless the problem of
quick runoff from other impervious surfaces is substantially
reduced. However, as they may contribute only roughly 10% or
20% of the problem, it is doubtful whether one could even
observe the beneficial effects of reducing that source of quick
runoff.
The conclusions
about the relative roles of deforestation and impervious
surfaces are unsupported: Similarly, Booth's study
recognized that both deforestation and the creation of
impervious surfaces, are results of urbanization. He clearly
showed their interrelationship in his figure 12. But, he was
unable to separate the impacts of these two factors. Therefore,
he relied on the modeling studies by David Hartley and others
to reach his conclusions. Unfortunately, the validity of these
studies remains unknown. This is another critical gap in logic,
causing his study to fail the standards for Best Available
Science.
Two earlier
studies Booth cites are also inapplicable for the same reason:
Booth's paper is largely a recapitulation of a symposium talk
presented by Booth and Jackson , in 1994, and an article, in
1977, by those same authors.
They are both subject to the first criticism, presented above,
that as the watershed studied did not have detention ponds,
their results are not applicable to current conditions in King
County.
Those two
studies also did not adequately describe their modeling
methods: That talk and paper also had a modeling component,
in which the authors examined the expected runoff at various
levels of urban development. But, they did not describe that
model adequately nor their parameter values and methods of
analysis, to repeat the modeling exercise. Consequently, it is
not possible to evaluate the validity of their results which
were based on that model. Thus, their talk and paper fail
several of the criteria of Best Available Science.
Observed
correlation's do not prove causation: The County's review
of Best Available Science, in speaking of the 10% threshold,
recognizes that it came from a correlation found by Booth, in
2000, but they state that,
" not all correlative studies are in agreement with these
findings." However, instead of doubting the validity of
those findings, they use that weakness as a justification for
adding the 65% threshold on clearing. But, that threshold also
came from the same observed correlation's from the same studies
and suffer from the same weaknesses. Furthermore, those studies
were weak on statistical tests and quantitative analysis. In
addition, observed correlation's do not prove causation. The
most common cause of this problem with observed correlation's
is the so-called "underspecification bias"
and Booth's study is seriously underspecified. Likewise, the
study by They and May, in 1997, showing the impact of a 10%
threshold on impervious surface, is inconclusive as it is based
on observed correlation's.
At least one of
the reviewers of the County's BAS document was not independent:
In particular, Dr. Chris May is listed as a reviewer, but
one of the studies in the section he reviewed was his own
dissertation, while many of the other studies in that section
were done by individuals from the same department at the
University of Washington. --- Independent review is necessary
to assure impartial evaluation, for, even if there is no
deliberate bias, individuals who have worked or studied closely
together are likely to share one narrow viewpoint. ---- The
details of the histories of the other experts listed in the
County's Best Available Science document, are unknown to me,
but this one obviously inappropriate reviewer, raises a concern
over the possibility that the County's documents may have had
other non-independence of reviewers as well.
In conclusion, overall,
their studies which provide the basis for the clearing, grading,
and storm water ordinance, and which also pervade the rest of
King County's CAO update, contain enough errors, gaps, and
omissions that they do not meet the standards of Best Available
Science nor are they scientifically valid.
Criticism of the
Studies supporting the Proposed Buffers:
Chris May's
dissertation is not applicable to King County due to a sampling
problem: Dr. Chris May's dissertation
bears upon both the proposed buffers and the clearing, grading
and stormwater ordinance. It involved a study of selected
streams in Western Washington. However, because they were
selected rather than being chosen at random, the results of his
study apply only to the particular streams he selected, rather
than to all streams in Western Washington. --- Had he selected
them at random from some population of streams, for example,
from all streams in King County, then, his results would have
applied to that population of streams. But, he did not do that.
Consequently, his results apply only to the specific streams he
studied. --- The risk inherent to the methodology he used, is
that his results may incorporate a bias due to the streams he
selected not being representative of streams in King County.
..... I do not know whether this methodological error was done
deliberately or through naivety, but preselection of the
subjects of a study may provide a means for biasing the
results, so that they become "mission oriented, "
that is, so that they serve a predetermined goal, instead than
being value-free science.
Another
technical problem with Dr. May's dissertation: Dr. May used
stepwise regression to develop relationships among the various
variables he considered, but he said that he did all his tests
at alpha=0.05. He should have decreased the alpha-level to
compensate for multiple comparisons. What he did violates
well-known standard methods for stepwise regression. The risk
in what he did is that some of the relationships he identified
may not be statistically significant, but may be due solely to
random variation. It is, in fact, relatively likely that this
occurred. Fortunately, the main contribution of his
dissertation was not the relationships he developed, but in its
extensive literature review, which undoubtedly helped to lay
the intellectual foundation for the programs in the Center for
Urban Water Resources Management, at the Department of Civil
Engineering of the University of Washington. ---- That is a
relatively new program which is entering a field which, until
now, has traditionally been part of aquatic biology.
The studies are weak in statistics and quantitative
analysis: It would appear that statistics is not one of Dr.
May's strengths nor, judging from the various studies I have
examined from the University of Washington's Department of
Civil Engineering, is it one of their's, either, and the
studies supporting the grading, clearing, and stormwater
ordinances are mostly their work. --- Their studies are
generally empirical or descriptive; they contain few
statistical tests and often contain errors in statistical
methodology; their models are simple and determinate or
non-stochastic; and they do not calculate the propagated
errors, to establish whether their predictions are meaningful,
nor do they do sensitivity analysis to examine the impacts of
structural changes in their models. --- The standards for Best
Available Science, require studies which have research and
modeling to have statistical tests and quantitative analysis.
In their absence, it is difficult, at best, to ascertain
whether their results have any predictive accuracy. This
defect, alone, invalidates their studies, for without these
statistical tests and analysis, there is no demonstration that
they show anything at all. Thus, they not only fail the
standards of Best Available Science, but they have also failed
to demonstrate that their conclusions achieve on an acceptable
error-rate.
Observed
correlation's do not prove causation: The County's Best
Available Science review cites several correlational studies
supporting their buffers. A few examples are the study by Pess
et al,, in 2002, which observed a correlation between Coho
abundance and land use; May et al., in 1997, found a
correlation between the coho/cutthroat ration and
urbanization's impacts; and Moscript and Montgomery, in 1998,
found a correlation between salmonid abundance and peak
discharges.
Salmonid Abundance Declined for other Reasons: A related
problem is that data on salmonid abundance is often drawn from
periods during which they were declining for reasons not
related to the availability of freshwater habitat. In
particular, their two most recent periods of decline are now
considered, by most scientists, to have been caused by ocean
conditions and secondarily by hatchery problems.
Although the preservation of freshwater habitat and the
maintenance of streams is a legitimate government objective, it
should be remembered that, as Robert Lohn, the Director of the
National Atmospheric and Oceanic Administration (NOAA), pointed
out, "Most scientists, today, believe that the salmon
crisis was caused by ocean conditions, not by habitat."
However,
this conclusion should also occur to any good observer, as the
size of the salmon runs, throughout the Northwest, declined and
subsequently largely recovered not only in degraded streams, but
also in pristine ones. ---- It is generally believed that a
number of factors contributed to the decline of the salmon runs,
but that stream habitat was only a minor contributor.
Thus, the decline in salmon abundance during this period was not
caused by problems with terrestrial habitat, but these were also
periods of urban growth. Consequently, based on these data from
these periods, significant positive or negative correlation's,
significant regressions, and so on... can be found between
salmonid abundance and urban growth or between salmonid
abundance and any other variable which is related to urban
growth. Thus, salmonids provide entirely misleading data when
they are used as ecological indicators. This objection
eliminates many of the studies cited in section 7.2.3 of the
County's Review of Best Available Science. In particular, the
substance of its subsection entitled, "Salmonids as
Ecological Indicators and Keystone Species", is cast into
doubt.
No Consensus on
Buffers: I generally agree with the statement on page 7-22
of the County's Best Available Science Review that, "There
is no consensus in the literature regarding single buffer
widths for particular functions or to accommodate multiple
functions." --- Skagit County found between 800 and 900
studies supporting their narrow agricultural buffers, but the
parties who challenged their ordinance found two or three times
that number of studies supporting wide buffers. The Growth
Management Hearings Board, however, found this evidence
inconclusive. The problem, as discussed above, was that very
few of the studies were both valid and applicable.
There is No
Mandate for Buffers in the GMA: After two tries, Skagit
County abandoned trying to set agricultural buffer widths. They
then, required no buffers whatsoever, but established a
sampling program to assure that there no further degradation of
habitat occurred. Their position was that the GMA did not
mandate the restoration of habitat, only its protection and
preservation. This ordinance was challenged, but their
ordinance and interpretation of the GMA was upheld by the
Growth Management Hearings Board. Their ruling was appealed,
but it was upheld by the Court of Appeals. Thus, this is now
established in case law.
BMP's are a
better way to control agricultural pollution: Agriculture
is already required to follow best management practices. They
are generally effective and have the advantage of being
specific to the particular application. For that reason they
will usually be more effective than a one-size fits all buffer.
Prohibiting a
list of egregious agricultural practices is also effective:
Skagit County also prohibits a list of specific egregious
agricultural practices, such as feedlots draining into streams,
dairy barns hosed out into streams, and so on... A planner from
that County proudly told me that this has been far more
effective than they expected and that, since they adopted this
ordinance early this year, they have had only two or three
complaints about agricultural pollution, whereas, they
previously received many each month. --- This approach appears
to have been very effective.
Fairly narrow
grassy buffers remove most pollution from nutrients and
sediments: Having looked at much of the literature, it
appears that grass provides one of the best vegetated buffers
for removing dissolved nutrients and suspended sediment. Many
studies have show that a large proportion of these types of
pollutants are removed by grassy buffers even as narrow as 6 to
12 feet in width. Sixteen to Thirty foot ( 5-10 meters) grassy
buffers are most often recommended as the standard.
Buffers are ineffective at removing certain types of
chemicals. Buffers of 300 feet (100 meters) or more do
poorly at removing certain types of herbicides and pesticides.
The use of these types of chemicals should be restricted
instead of relying on buffers.
The case for
narrow vegetated buffers drawn from the reviews presented by
Desbonnet et al.,
Chris May, and the Washington Department of Ecology's (DOE)
draft report on buffers. These are some of the more widely
cited reviews of buffers:
78% of the vegetated buffer widths cited by Desbonnet et al,
support buffers of 100 feet or less for pollutant removal
resulting from heavy agricultural use.
Desbonnet shows (in his figure 8) that the first thirty feet
are the most effective in pollutant removal in heavy
agricultural uses, and that beyond 100 feet there is virtually
no increase in function.
Desbonnet concluded that, "In general, the greater than
50% removal standard can be met with vegetated buffers about 5
meters (16 feet) wide."
In another place he stated that, "A multiple use vegetated
buffer of 5 meters (16 feet) could be considered a reasonable
minimum buffer-width standard"
92% of temperature studies examined by Desbonnet found adequate
microclimate control with buffers less than 100 feet wide.
Chris May reached the same conclusion.
62% of studies cited by Chris May for fine sediment removal had
buffers of 100 feet or less.
May also found that a buffer of 9 meters (29 feet) was 98%
effective on an 11% slope.
88% of studies
cited by Chris May for animal waste removal had buffers of 100
feet or less.
May found that a
4.6 meter (15 feet) buffer was 98% effective at animal waste
removal at an 7% slope.
52% of studies
cited by Chris May for wildlife habitat had buffers of 100 feet
or less.
In DOE's
synthesis, the studies cited show effective sediment removal
with buffers of 100 feet or less.
DOE's summary on
sediment control was that 30 foot buffers gave 85% removal.
DOE's synthesis
found 85% removal of sediment in the first 30 feet of buffer.
In DOE's
synthesis, 88% of the studies they cite showed effective
removal of nutrients from animal waste by buffers of 100 feet
or less.
In DOE's
synthesis, 66% of the studies cited showed that fecal coliform
was effectively removed by buffers from 13 to 100 feet in
width.
in DOE's
synthesis, they found that a 16 foot vegetated buffer provided
50% or greater sediment and nutrient removal and that a 100
foot buffer provided only 70% or better removal of sediments
and pollutants.
The majority of
studies cited by DOE show that buffers of 16 feet or less are
very effective in buffering low intensity residential uses.
DOE states,
"Castelle and Johnson (2000) note that the apparent
effectiveness of small buffers in removing toxics is due to the
absorption of many toxics to sediment particles. When vegetated
buffers are effective as filtering sediments, they will also be
effective at filtering those toxics and nutrients adhered to
them."
A US Judge
ruled, in 2004, that it is better to restrict the use of
chemicals near the water than to use buffers: In January
2004, US District Judge John Coughenour signed an order
prohibiting the use of certain pesticides and herbicides within
64 feet of a stream or river which contained salmon listed as
threatened or endangered. He had considered the Best Available
Science, and had the benefit of expert witnesses from numerous
State and Federal agencies and scientists from the public and
private sectors. He concluded that it was not necessary to
prohibit uses, such as agriculture and residential use, but
only to ban chemicals within 64 feet of the water.
Some studies
show that no buffers are needed: The County's Review of
Best Available Science goes on to state that,"However,
neither does the literature indicate that buffers are not
needed." Some examples of studies which show that no
buffers are needed, buffers are ineffective, or fish do better
when their are no buffers, are:
Bisson, Peter A.
and James R. Sedell, 1984. "Salmonid populations in
streams in clearcut vs. old-growth forests in Western
Washington." In Meehan, William R. et al. eds. Fish and
wildlife relationships in old-growth forests, proceedings
of a symposium, April 1982. American Institute of Fishery
Research Biologists.
Hall, James D. and
Richard L. Lantz., 1969. "Effects of logging on the
habitat of coho salmon and cuthroat trout in coastal streams.
In: Northcote, T.G. ed. Symposium on salmon and trout
streams. H. R. MacMillan Lectures in Fisheries, a symposium
held by the University of British Columbia, in 1968. Vancouver:
Institute of Fisheries, UBC.
Meehan, William R.
1996. Influence of riparian canopy on macro-invertebrate
composition and food habits of juvenile salmonids in several
Oregon streams. Portland: US Forest Service, PNW Research
Paper 496.
Rafael, Martin G. Peter A. Bisson, Larence L. C. Jones, and
Alex D. Foster, 2002. Congruent Management of Multiple
Resources, Proceedings from the Wood Compatibility
Initiative Workshop. Two papers in PNW Station GTR 563, 2002
O'Connell, M.A. J.G. Hallett, and S.D. West 2000. Effectiveness
of riparian management zones in providing habitat for wildlife.
University of Washington and Washington DNR Timber Fish and
Wildlife Report. TFW-LWAGI-00-001 459 p.
Reynolds, William Gene, and Heidi, 2003. State of the Lakes
Report. Everett: Snohomish County Public Works Department.
Ward, Fruce R., Donald J.F. McCubbing, and Patrick A Slaney,
2003. "Evaluation of the addition of inorganic nutrients
and stream habitat structure in the Keogh River watershed for
steelhead trout and coho salmon." In Stockner, John G. ed.
Nutrients in salmonid ecosystems: sustaining production and
biodiversity. Proceedings of the 2001 Nutrient Conference,
Eugene. Bethesda American Fisheries Society.
In fairness, I must add that this is gray literature and some of
it is from other regions. But, it does demonstrate that there is
a literature supporting the idea that no buffers are needed.
Other Criticisms:
The
ordinances do not allow engineering or other solutions: When
an engineering or other alternative is possible in many cases.
The County should embrace such alternatives to take the fullest
advantage of the public's energy, creativity and ingenuity.
Furthermore, they should go beyond merely passively allowing
this, but sponsor the development of such solutions and they
should also be pursuing some of them, themselves. Several
obvious possibilities include the following:
Rainbarrels or other suitable ways for storing water captured
off impervious surfaces;
Off-channel storage ponds, with their associated drainage
ditches, curtain screens, or other structures to capture water
from peak flows and convey it to the ponds;
Flood by-pass channels;
Organic or other
land management methods which increase the soil's ability to
hold water.
The use of
desirable or useful non-native plants which are good at
retaining water in the soil, as an alternative to native
vegetation;
and so on.....
In
the first two of the above items, the County should also be
actively pressuring the legislature to change the water law to
allow the Department of Ecology to issue the associated water
rights, so that the captured stormwater can be put to a
beneficial use.
The salmon crisis
was not caused by the loss of freshwater habitat: As
discussed above, most scientists agree that the salmon crisis
was not caused by the degradation of terrestrial habitat.
The
salmon crisis is now over and the abundance of most stocks has
recovered to record run sizes.
But some stocks are
being deliberately kept at low numbers for management purposes.
---- In the public hearing on Washington State's hatchery plan,
in Hadlock, during 2004, the representatives of the Washington
Department of Fisheries and the National Marine Fisheries stated
that they were keeping selected salmon runs at low levels, until
they had gathered enough data to obtain statistical significance
in fitting on their spawner-recruit curves. That is an
appropriate management decision which will be beneficial in the
long-run, but the depressed condition of those runs should not
be used to justify ordinances to protect the environment.
For these reasons,
ordinances to preserve stream habitat can not be motivated, as
being necessary to "save the salmon." King County's
documents do not often invoke that justification, but in the few
places they do, it should be removed as it reduces the
credibility of their case.
The proposed
ordinances would place a disproportionate burden upon the rural
property owners. If an equal burden, of up to 65% of the
property value, were placed on the urban property owners, a
great deal might be accomplished towards alleviating the impacts
of stormwater runoff from those areas and it should be
remembered that the most severe impacts are occurring in the
urban areas.
The
County's argument for not applying the regulations equally is
that:
King County's proposed thresholds however do not apply to urban
areas, (nor can it because of historical development). As such ,
this may represent a departure from BAS in those watersheds and
basins where such application is still possible and beneficial."
Their
statement contains several errors:
The thresholds only apply to new development. Therefore, if
they were equally applied to urban areas they would only
regulate new development.
They would not apply to areas where no further development is
possible;
except that they would probably be later extended to regulate
redevelopment, whenever there is a change in use;
There are still many urban areas in King County which are not
fully developed , where the ordinances would still be
applicable;
There are still streams in urban areas which are not severely
impacted stream and need protection;
The application of
the ordinances to urban areas would move those areas towards
"urban forest." --- As illustrated by Carmel,
California, urban forest is achievable through land use
regulations;
The proposed ordinances for clearing, grading, and stormwater
are not based on Best Available Science;
Thus, application of the regulations to urban areas would be
possible and beneficial (if they are applicable and beneficial
in rural areas, which has yet to be demonstrated).
Undue Financial
Burden: By preventing the use of 65% of the rural land in
King County and placing additional restrictions on the use of
the remaining 35%, the proposed ordinances place an undue
financial burden on the rural property owners.
Conclusion
The
proposed buffers and the clearing, grading, and stormwater
ordinances would remove from use more than half of the total
land area of rural King County and restrict the use of the
remaining area, but many of the key studies upon which they are
based lack scientific validity and fail to meet the standards
for Best Available Science. I, therefore, recommend against
their adoption.
However, I have, at various places in this document made
suggestions of what I think will be better or more effective
approaches.
Dr. Robert N. Crittenden
October 17, 2004
Address to the
Kitsap County Commissioners,
Monday
Nov 5, 2001
by
Dr.
Robert N. Crittenden
I
was asked by the Kitsap Alliance to review the County's Refugia
Study. --- I will very briefly give you the highlights.
The
first thing which I wish to point out is that the Refugia Study
is not science, nor is it based on science. In fact, the
authors, themselves, admit this when they state, in their page
4, that the principles upon which their study is based are not
testable. --- Testability is essential to science, a hypothesis
which is not testable can not be used in the scientific process.
Thus, it is clear that the principles upon which their study is
based are not scientific.
Nor,
in fact, do those principles come from a scientific publication.
They come from a book by Noss and Copperrider. That book is
popular literature. It lays out the principles of
environmentalism, as its authors see them. And that is what the
Refugia Study is based on.
Let
me give you another example of how the study is not science....
You will find it develops on the theme, that the environment is
not only complex, but too complex for people to even comprehend.
--- That flies in the face of science. Every successful
scientific study in ecology or environmental science
demonstrates that that is not true.
This
viewpoint, which the authors of the Refugia Study have adopted,
that ecology is incomprehensible complex, directly contradicts
one of the central principles of science. That is that one
should account for what is simple and obvious first, before
postulating complications. The name of that principle is
familiar to you, it is "Occam's Razor." That has been
one of the central principles of science for over half a
millennium. --- But, the authors of the Refugia Study adopt its
antithesis as one of their central themes.
Do
I need to say any more. The Refugia Study is not science! And
once you realize this, you will find many examples of it
throughout their study.
The
second point which I wish to make is that in the middle
of their study, they discuss many technical issues and make many
technical errors. You will find some of them discussed in my
review.
I will skip, instead, right to the
bottom line. The bottom line of this study are its results. The
results of the Refugia Study are their rankings of the various
refuges which they have proposed. What they gave you rankings
but what they did not give you were their variances or
confidence limits. As a result they have told you nothing
Let me explain by giving an
example..... Suppose that you wanted to know how many Chinook
there are in the Dewato River. You might go to WDFW, and they
might tell you that their estimate is 324 fish. --- I don't know
what their estimates are, this is just a hypothetical example.
--- Now you realize that their estimate is just an estimate,
that is that there are not precisely 324 fish, but you suppose
that their "324" means there are approximately that
many, perhaps somewhere in the range of 300 to 350 fish. But,
that would be your assumption, not what they told you. They did
not tell you anything about their level of precision. Their
confidence limits might, infact, be between 0 and 10,000 fish,
which would be equivalent that their having said that they
really haven't the vaguest idea how many fish there might be.
WDFW pulls this trick, all the
time. It is something you need to be aware of.
But, they aren't the only people
who do this: The authors of the Refugia Study did it, too. In
particular: they gave you rankings of the refuges, but they did
not give you any measure of the precision of their estimates.
So, in fact, they told you nothing!
But, the authors have been honest
about this: In several places in their study they told you that
their estimates were imprecise and they, also, told you that the
principles on which their study was based are not testable. It
is not their fault if you were not aware of the full meaning of
what they told you.
Let me conclude what I have told
you, here, today, I have said three things:
The study is not
science;
It has many
technical errors;
and, in the end,
it tells you nothing.
I
hope that this will helpful to you and I thank you for
listening to my comments.
Review of Dr.
May's 2000 Kitsap Penninsula Salmonid Refugia Plan
Introduction
The background and theory sections of the Refugia Study
contain a surprisingly high level of sophistication in their
understanding of the biology and genetic structure and of salmon
populations. This provides much of the platform from which the
study commences. But, the authors, take several
unsupported steps and, also, progressively change their focus,
until they reach, in the end, a conclusion that is
scientifically unsupportable and far removed from the
study's original purpose.
In particular, the study begins, in its executive summary,
with a description of the Endangered Species Act (ESA) listing
of salmon species in the Puget Sound Region and of how, by
complying with its 4(d) rule, the County can avoid the
onerous consequences of its "take" provisions.
The Refugia Study is initially presented as part of
the County's response to those listings and as "an integral
part of the recovery process." It is intended to identify
high priority areas for preservation, "the last remaining
areas of high quality salmonid habitat on the Kitsap Peninsula."
But, it concludes by recommending, as its highest priority, the
preservation of a refuge which has the potential to
support only a small population of one of the listed species and
is more than half inside an Indian Reservation and is,
therefore, not subject to the ESA nor to regulation by the
refuge, as the refuges will be created by the County and, thus,
will derive their authority from them.
They view the purpose of refuges not as being for
the preservation and enhancement of the listed species but, as
they state on their page 9, as being the "optimum
strategy" for "managing current and future human
activities."
They identify "adaptive management" as
the process through which these changes will occur. ---
The refuges' function is to create a regime under which
local councils will use this process, with a view towards
conservation, thereby, modifying their own viewpoints and
behavior and, also, implementing management for conservation on
a sub-watershed or community level.
The Refugia Study initially presents itself as science or
science-based, but, it is not. Science merely provides
the platform from which they launch a political program.
In fact, the authors, themselves, admit the study's
lack of firm scientific support when they state on their
page 4, that although they feel that the concepts
underlying their study are "consistent with generally
accepted scientific theory," they are "not testable in
a practical sense."
Testability is the essence of science: A theory which is not
testable can not be used in the scientific process to advance
understanding. Thus, the concepts upon which the Refugia Study
is based, being untestable theories, are not part of
science. Nor, does the study attempt to advance scientific
understanding. What it does is use or misuse selected ideas from
science for other purposes.
Once you have gotten, thus, beyond the illusion
that the study is science or science-based, its mask falls away
and you begin to see its true nature. --- It is a
statement and implementation of the political doctrine
associated with the salmon recovery effort.
The authors' summarize that viewpoint in the concluding
sentences of their introduction/theory section. In
particular, they say, on their page 9, that the approach of
"ecosystem management" should also be
considered. But, that is an understatement as it appears to be
the approach they adopted. They describe it as follows:
This strategy involves managing ecosystems for the
protection of native biodiversity and assumes that the
protection of ecosystem structure and function will result in
the protection of all species including those already listed as
threatened as endangered. Under this strategy, humans are
recognized as a integral part of the ecosystem and the success
of conservation efforts is highly dependent on an understanding
of human influences on ecological processes and landscape
patterns. Therefore, ecosystem management on the scale of
refugia is not just scientific theory; rather it is an
integrated program of scientific, socio-political, cultural, and
economic values designed to achieve long-term ecosystem
conservation.
Under this approach, it is not strictly necessary that a
refuge even provide habitat for the listed species, as its
primary impact is intended to be on human behavior.
Should that be effective, its impact may be far more
widespread than merely the strict confines of the refuge.
This helps to explain why the author's would recommend,
as their highest priority, the creation of a refuge which
s unlikely to ever provide significant habitat to either of the
listed species.
Biology
The logical development of their position is not always
explicit, but the major steps in their biological argument
appear to include the following points:
There is a salmon crisis;
It is due to habitat loss,
largely caused by rapid urbanization;
The problem is that although
salmon adapt to a ever-changing environment, the rate of change
and frequency of disturbances has exceeded their ability to
adapt;
Refuges can provide an
important component of the restoration program by protecting
core populations which can later become foci for colonization
or re-colonization;
These refuges need to be on a
landscape scale;
These refuges should, ideally
be large, complex, and distributed over the region.
Technological solutions
rarely work;
There is much about the
ecosystem that we do not know and can never know;
But, if we return the environment to a condition which
emulates nature, in structure and function, the salmon will
probably prosper;
The term "salmon crisis," usually refers to the
widespread decline in salmon abundance throughout the Northwest
States, beginning in the late 1970's and reaching a low-point in
the mid-1990's. Enough of the overall pattern in salmon
abundances can be explained by ocean harvest, to provide a brief
chronology of it.
Immediately following the Boldt I decision, the Tribes began
taking their half of the salmon harvest. But, due to the
Washington Department of Fish and Wildlife's having
artificially inflated their return estimates in the years
immediately prior to the decision, the Indians actually appear
to have taken approximately 80% of the allowable catch, although
through no fault of their own. The resulting heavy
over fishing caused the runs to decline sharply. During this
early period, also, a number of mistakes were made by parties
who were new to harvest management. But, after a few
years, these problems were sorted out and a workable
scheme for co-management was established.
But, the Chinook stocks continued to decline. A National
Marine Fisheries Service Study conclusively showed that this was
primarily caused by the Canadian harvest West of Vancouver
Island. Therefore, when the United States and Canada
renegotiated their treaty regulating salmon interception, they
curtailed that fishery. This had its expected effect and the
Chinook runs recovered.
However, that only lasted a few years because, beginning in
1991, stronger ocean currents caused the Frazer River Sockeye to
make landfall further north when they returned in their
spawning migration, across the North Pacific from their feeding
grounds on the Arctic fronts. This caused them to make landfall
north of the Alaskan/Canadian Border. The Alaskan fishermen
caught many of them. The Alaska Department of Fish and Game
refused to curtail this interception. The result was that the
Canadian/American Salmon Treaty collapsed, in 1992. The
West Vancouver Island Fishery, then, resumed catching Washington
Chinook and their abundance, once again, declined.
This ended only three years ago, when Canada unilaterally
closed the West Vancouver Island Fishery. In the years which
followed, large and even record runs returned to
Washington State.
But, these were only a few of the leading events in the
pattern of harvests. The success of the salmo |