County or City |
Topic |
Synopsis (Click on hyperlink or scroll down for the full text of the report) |
Jefferson County |
Critical Areas Code Amendments (2006 & 2007) |
Objections to Both the Majority and Minority Reports of the Citizen Advisory Committee on Critical Areas Code Updates (March 28, 2007) After many of the local farmers drove their tractors around the County Court House, in protest against Jefferson County's proposed amendments to their Critical Areas Code, and a large number of individuals objected to them during their hearings before the Jefferson County Planning Commission, the Planning Commission formed a Citizen's Advisory Committee to recommend draft ammendments that would be more acceptable to the public. That committee allowed both majority and minority reports to be submitted and after about half a year of weekly meetings, they coelesced into two groups each of which presented a report. One group might be described as “conservative” or “establishment,” whereas, the other consists of environmentalists, all of whom have some association with the Washington Environmental Council. I, however, am not part of either group and have submitted objections to both of their reports.
Testimony to the Jefferson County Planning Commission (June 2006) on the County's proposed amendments to their Critical Areas Code.--- One of the rules established by the Central Puget Sound Growth Management Hearings Board is that they will only consider issues and studies that were identified during the public hearings. Therefore, this brief written testimony introduces several issues and scientific studies, so, that they can be considered later by the Hearings Board, if the need or opportunity arises. That includes:
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Bainbridge Island |
Marine Buffers (2002) |
Testimony at the first public hearing on the City's proposed ordinance to create a buffer of native vegetation around the entire Island. However, their best available science review contained inconsistencies and also suggested an approach for inducing the residents to move their homes back from the water, which exceeded the City's authority. |
Clallam County |
Elwha-Dungeness Watershed Management Plan, WRIA 18 (2004) |
The watershed councils of WRIA 18 proposed minimum instream flow rules and a management plan for adoption by the County. But, the studies they are based upon are not scientifically valid, and unless the plan and process is modified it may violate the civil rights of the residents of Eastern Clallam County. Three documents: Testimony to the County Commissioners Sept 21, 2004 --- Shows that the following methods are invalid: Swifts toe width method used to set flows in the small streams; IFIM used to set flows in the rivers; USGS groundwater study of the Dungeness Valley; and Booth's runoff model used to restrict clearing and impervious surface; and sugggests that the plan is un-implementable. Shows that Tetra Tech's study of the impacts of full buildout in domestic wells is invalid; and suggests that the delegation of authority involved would violate the civil rights of the residents of Eastern Clallam County unless changes are made in the plan. The Groundwater Work Group's study of the impact on the Dungeness River of full buildout in domestic wells. This study shows that: The impact of full buildout would be too small to be measurable; If more than approximately a third of the wells went into a confined aquafer, the net impact on the River would be to increase instream flow; and Likewise, if more than 5% of the land area converted to residential use were previously irrigated farmland, the impact on the River would be to increase instream flows. |
King County |
Critical Areas Ordinance (CAO) on rural buffers, clearing, grading, and stormwater (2004) |
Testimony on the County's proposed ordinances for buffers, clearing, grading and stormwater would prevent the use of more than half of the land in rural King County, but the studies they are based upon are not scientifically valid. This report shows that: Their Best Available Science Review is based on the principles of Conservation Biology. But, Conservation Biology to not science; Booth's study of the impact of clearing and impervious surface is not repeatable as he does not present its methods. Thus his study is scientifically invalid but the ordinances based upon it would prevent the use of 65% of rural King County; and Their proposed buffers are much wider than are necessary. |
Kitsap County |
Salmonid Refugia Study (2000) Instream flows, WRIA 15 Draft Critical Areas Ordinance regarding wetlands (2005) |
Three documents: Review of Dr. Chris May's (2000) proposed salmonid refuges for the Kitsap Peninsula. His study was based on the principles of Conservation Biology. This study was not scientifically valid, but was essentially political in nature. Nevertheless, it provides a clear example of how Conservation Biology can lead to Neodemocracy: specifically, to subwatershed councils run using the consensus process.--- He states that the best way to protect the environment is to change public behavior and that they would provide an effective means for molding the beliefs and positions of the public. Review of the Authorizing Documents for WRIA 15. The authorizing documents for the instream flow negotiations in WRIA 15, on the Kitsap Peninsula, reveal that certain Tribes, but not others, may be attempting to establish a monopoly on the development of land, by establishing control over water. --- This is one of the better examples of how the 2514 processes, by which the instream flow negotiations are conducted, can be used for power-grabs. Review of Kitsap County's Second Draft Critical Areas Code Update for Wetlands --- Kitsap County's second draft ordinance suggests adopting the buffers recommended by the Washington Department of Ecology, in Volume Two of Washington Wetlands. However, those recommendations did not originate in a scientific study but are based on qualitative opinions and values-judgments reached by a committee. --- They do not meet the State's requirement that critical areas ordinances be based on Best Available Science nor do they meet the Federal due process requirement that they be reasonable, directly related to the legitimate government purpose they serve, and in proportion to the harm the ordinances guard against. |
Pierce County |
Critical Areas Ordinance regarding Marine Buffers, (2004) |
Testimony on their proposed Critical Areas Code update for marine buffers. They suggested that the marine littoral zone (that is the land adjacent the marine shore) was a type of riparian zone (that is land adjacent to streams or rivers) and, then, based their marine buffers on their studies for riparian buffers. However, the functions and values of the marine littoral zone differ from those of the riparian zone. Thus, their ordinances lack scientific justification. |
Skagit County |
Instream flow in the Samish River, WRIA's 2 & 3 (2002) |
The Unaffiliated Caucus in the instream flow negotiations for the Samish River represented all the members of the public who were not represented by the other caucuses. Our objectives were: 1) To protect the civil rights of the residents of Skagit County; and 2) To force the instream flow rules and plans to be based on valid science. One document in three parts: A letter to the Skagit County Commissioners, Aug. 2002, clarifying our position on two issues: Our objection to the change in the groundrules which disenfranchised the caucuses; A review their IFIM study of the Samish River, which would be used to set the instream flows. It contains several fatal mistakes and consequently, it is not scientifically valid. This letter resulted in the negotiation being postponed and eventually in a water right being granted to agriculture in the Skagit Valley. The negotiations were, then, restarted, excluding the citizen's caucuses. That is, all decisions on their draft plan were made in the executive committee. But, they had to submit the final plan for approval to the full committee Their final proposed minimum instream flows for the low-flow period were just over ten-times the average natural flow. --- We strongly objected, but the parties behind those absurd proposed flow levels refused to reduce their demands. When it became clear that negotiation had broken down, the question was called. The Swinomish Tribe voted for the proposal, whereas Skagit County and the Upper Skagit Tribe voted against it. That terminated the process. Washington Department of Ecology is now setting the minimum instream flows and they and the County are litigating, hopefully, to reach a reasonable outcome. Although, it is unfortunate that it has to be settled in court, that is unavoidable, as the parties at the table could not reach agreement. However, one advantage of this outcome is that DOE can not reduce the allocation for domestic wells and another is that it has terminated the WRIA and, thus, ended the problem of its disenfranchisement of the public. Nevertheless, these types of quasi-governmental organizations have a proclivity for resurrecting from the dead, so, eternal vigilance is necessary.
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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:
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.
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.
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X = characteristic must be present for information derived to be considered scientifically valid and reliable Y = presence of characteristic strengthens scientific validity and reliability of information derived, but is not essential to ensure scientific validity and reliability <The WAC also provides the following clarification of the various types of sources:>
Summary of Best Available Science : In applying these standards to an ordinance, the first step is to explicitly identify which results in which scientific studies support each of its articles. As the criteria for best available science differ for each of the eight different types of studies identified in the WAC, it is necessary to first determine which type each study may be. Then, it can be examined to see if it meets the corresponding criteria. That is the process which is laid out in the WAC and RCW. It is intended to result in a clear statement of the scientific basis of the ordinances and if properly applied it can provide an adequate systematic approach for determining the quality of scientific research. However, you will find nothing of the kind in the Bainbridge Island Nearshore Assessment: Summary of Best Available Science. That report is a general review covering a broad range of topics which bear upon the ecology of the shorelines of Bainbridge Island; it is presented in a non-technical manner probably suitable for students at the seventh to twelfth grade level; and although it may prove to be a useful educational tool, it does not identify which results from which scientific studies support each article of the Draft Shorelines Ordinance nor does it go through the mechanics of demonstrating that each scientific work it cites meets the criteria for best available science. As a listing of the supporting best available science is required of any city or county ordinance which regulates critical areas, but such a document is lacking in this case, the draft Shorelines Ordinance, would be a nullity, were it adopted, today. It is, therefore, premature for the City to bring the Draft Ordinance to public hearings, before the science upon which it is based has been identified and examined to determine if it meets the standards for "best available science." Furthermore, many of the studies cited within the Summary of Best Available Science appear not meet the criteria for "best available science." It cites approximately 200 works, of which only approximately 10% are scientific articles published in respected scientific journals. Most of the remaining works, the bulk of those they cite, are "gray literature." They mostly consist of reports by government agencies, reports by consulting companies to their clients, reviews, books, and personal communications, together with a smattering of other types of publications. Some of the weaknesses of gray literature are that the researchers doing the work may not have been scientists, the work may not have met scientific standards, and it may not have received independent review by qualified peers of the scientific community. Thus, gray literature are of unknown quality. --- Although some of it may be good work, all of it must be critically examined. Most reports by government agencies fall into the category of gray literature as they characteristically do in-house review instead of independent peer review. Also, the results they present may reflect departmental positions and policies. In addition, the quality of government publications varies substantially among the various agencies: Some are comparable to scientific journals while others are unreliable. Thus, publication by a government agency can not be regarded as equivalent to scientific publication. Nor are scientific publications above question. --- Some traditionally reliable elements of the scientific and academic communities have become highly politicized and are no longer reliable. This is part of the reason why the Legislature chose to let the government bodies at the local level make the determinations on what may be valid science. Although they may often lack scientific expertise, they are the level of government closest to the people, where their decisions will have an impact. --- Today, the rule on "science" is that all "science" must be critically examined. An example, of the "best available science" cited in the Summary of Best Available Science is provided by section 9 of chapter IV of the Summary, entitled " Marine Riparian Zones." I have selected that section because, possibly more than any other section, it speaks to the issue of the ecological importance of Native Vegetation Zones to the nearshore marine environment. Those zones are one of the central elements of the draft Ordinance and will be the topic the November 14, 2002, public hearing or workshop on it. That section begins by giving two citations to define their terminology and then enters into a brief discussion of the importance of the interactions between the terrestrial and water elements of riparian zones. i Their first substantive statement is, "Although marine riparian zones have not been subject to the same level of scientific investigation, increasing evidence suggests that riparian zones serve similar functions regardless of the salinity of the water bodies..." The supporting "science" which they cite to support this statement is a work done, in 1994, by Desbonnet et al. It turns out not to be a piece of scientific research, but a review and bibliography; and it was not published in a respected refereed scientific journal but by Rhode Island Sea Grant. Next, that section of the Shorelines Assessment gives a list of all the impacts which they feel alterations of the natural riparian zones may cause, but they cite no scientific support. Finally, at the end of that section, they cite two works which apparently speak to the difficulty of regulating these environments. The first of these is a report to a government task force, while the second apparently has not even been completed, as it is listed as being "in preparation." Thus, although that section addresses one of the key issues in the Ordinance, it appears to provide no supporting " best available science," whatsoever. The literature they do cite, where they cite any at all, addresses peripheral issues, does not meet the standards of "best available science," or both. --- These problems are symptomatic of the Summary of Best Available Science: Much of the literature they cite appears not to meet the criteria for "best available science." Although the Summary of Best Available Science covers a broad range of topics, it has missed a few key issues. One is the role of vegetation in establishing interflow; another is the need for technological solutions such as drainage and bulkheads to maintain the integrity of banks and bluffs until native vegetation can reestablish these ecological functions; and a third is technological alternatives to revetments, bulkheads, and seawalls which absorb wave energy instead of reflecting it. Regarding the first, the roots of vegetation, rot out after the plant dies, leaving a tunnel which can provide drainage. Rapidly-growing short-lived trees such as alders may play a particularly important role in this. Yet they still live around 80 years before they die, so it may take a century or several centuries to fully reestablish the network of subterranean channels which provide effective drainage through interflow. Until such drainage is fully reestablished, technological solutions may be needed to provide drainage and mechanical support, for if there is a mass failure, the process of reforestation will have to begin over again from the beginning, adding many years to the length of time needed to reestablish these ecological functions and values. A vertical seawall can reflect virtually all of the wave energy. That would effectively double the wave energy disrupting the benthic community in front of the seawall. Bulkheads and revetments have similar problems if they are in the surf zone. Both the Draft Ordinance and the Summary of Best Available Science ignore the existence of technological solutions to this problem. --- Designs for alternatives which absorb wave energy, other than just "soft armoring," exist and there is a literature on them. Their use should be encouraged in Bainbridge Island's working harbors where boat wakes are unavoidable. The Summary includes lists of the functions of the various elements of the ecological system. These appear to represent an attempt to list all the functions, some of which are relevant to the objectives of the ordinance and others which are not. Although, they are to be commended for having provided such lists, the substance of the requirement of best available science is that a cohesive rational argument supporting the ordinances be presented which justifies them based on valid scientific knowledge. In that process, the functions are the mechanisms occurring in nature upon which those logical arguments should be based. That is, they provide the model showing why the ordinances may achieve their objectives. Simply providing a shotgun assortment of mechanisms does not serve that purpose.
Best Available Science, Takings, Due Process, and the Present Shorelines Ordinance Most of the public regard regulations which take part of their property or their right to use it as a "taking" and feel that they are due compensation. However, the standards established by Washington's Counts are that a "taking" occurs only when 100% of the use of 100% a parcel of property is taken for a public use. Thus, in few if any cases would Bainbridge Island's Shorelines Ordinance result in a "taking." ii What is involved is not a "taking" but an application of the police power for the enforcement of public health and safety. That is how environmental regulations are regarded. But, the police power can not be indiscriminately applied. It must:
This puts best available science into its proper context. It is a clarification of the above requirements for due process. According to the review presented in Washington Practiceiii, "the affected person must seek damages under the Civil Rights Act, 42 U.S.C.A., 1983.,... ...<but that> denial of due process is actionable only if it is invidious or irrational... or arbitrary." Best available science avoids these possibilities. --- If the environmental regulation is scientifically justifiable, then it is supported by reason and careful observation: It is not irrational. The definition of the second key word in that passage, "arbitrary", in the current edition of Black's Law Dictionary is to regulate or govern without an underlying principle. --- Thus, we find the requirement that the regulation be based on explicitly stated functions, values, scientifically established principles and knowledge and serves a know objective guarantees that it is not arbitrary. And a regulation is "invidious" if it is unduly oppressive, which would be the case if the required action or mitigation were out of proportion to the impact or unrelated to it. --- Thus, again, the requirement that the regulations be rationally justified assures that they are not invidious. Thus, the requirement for best available science can be seen as a clarification of the requirement for due process. That requirement for due process predates Bainbridge Island's current Shorelines Ordinance, so it, too, is subject to the requirement that the ordinances have a rational basis. Now, that the City and their contractors have attempted to show the scientific basis for their draft Ordinance, but have failed, and as that draft is not very different from the current ordinance, they have, thereby, provided evidence that neither the current ordinance nor the draft have a rational or scientific basis. Then, it follows that both may violate due process and both are cast into question.
Principle Impact of the Ordinance. One of the major thrusts of the Draft Ordinance appears to be to prevent the property owners from installing adequate drainage or physical structures which would stabilize the bluffs and banks. The expected outcome will be their erosion in the form of gullies and mass failures. This, in turn, will have two impacts: The first will be to provide a source of sands and gravels to sustain the beaches. There is no doubt that this will be the result. But, the train of argument gets weaker from there to their legitimate environmental objective of sustaining salmonids and other desirable marine species. The argument seems to be that native vegetation zones will sustain the beaches through erosion, that will sustain the eelgrass beds, and they are invaluable as salmonid habitat. Also, the beaches provide spawning grounds for baitfish, which are prey for older salmonids. Thus, the train of argument goes from preventing the property owners from stabilizing their bluffs and banks to sustaining salmonid populations. The onus is not upon me to provide a counter argument, but upon the City or their contractors to prove that these processes are critical to salmonid survival and that their ordinances will advance that objective. Nevertheless, a few of the weaknesses in their argument are: 1) There is a lack of evidence that salmonid abundance is limited by the availability of eelgrass beds or by survival through those life history stages. Life history patterns vary widely among the various salmonid stocks and species, but for many stocks the critical periods in their life history are their smolt migration and, later, their survival in the ocean and their survival of fishing pressure. 2) Although young salmonids are known to utilize eelgrass beds, they also utilize other habitats. So, if the eelgrass were replaced by other types of communities, as the beaches are starved of their supply of sands and gravels, salmon may survive comparably well in those other habitats, when they arise. 3) If the pre-Colombian natural condition involved forestation of the banks and bluffs, and that stabilized them, then the beaches in their pre-Colombian condition were starved of sands and gravels; whereas, alternatively, if forestation of the banks and bluffs does not effectively stabilize them, what is the purpose of the natural vegetation zone? Could it be to prevent the stabilization of the banks and bluffs or is it purely matter a of aesthetics? 4) The list of weakness goes on and on... The cause of this is that neither the draft Ordinance nor the Summary advance a clear and cohesive line of argument. They seem to leave that to the reader. The second impact of preventing the property owners from installing effective drainage or structures to support the banks and bluffs will be to threaten their homes. The only possible course of action, the planners who drafted the ordinance may have reasoned, would be for the property owners to move their homes back from the bluffs. The time horizon they give in the draft Ordinance for making such land use changes for the more than two-thousand parcels involved is 20 years. So, obviously they must feel that the circumstances the Ordinance will create will provide a strong motivation to make those changes.
Personal and Criminal Liability But, when those homes are threatened, the lives of the residents within them are also put at risk. --- Mass failures can occur with little warning beyond the obvious signs which prompted the property owners to apply for permits to install drainage or supporting structures. When those permits are denied and the bluff fails in the middle of the night, depositing the home in a mud slide into the sea, the residents in that home have little chance of survival. Thus, a failure to issue the necessary permits places the residents lives at risk. In a very similar situation, the Attorney General's office wrote a letter to a Washington Department of Fish and Wildlife employee stating that they would prosecute him for reckless endangerment if he did not issue a hydraulic permit which would allow several property owners to repair a dike which protected their homes from the Dungeness River. Thus, it is clear that in the opinion of the Attorney General's Office failure to issue a permit which is necessary for a property owner to protect his home and the lives of his family can constitute reckless endangerment. According to the Revised Code of Washington, when a death results from reckless endangerment, the offense becomes first degree manslaughter. In addition, if the train of scientific argument from denying permits to enhanced salmonid populations has weaknesses, and it has many, there may be grounds for litigation for violation of due process. Likewise, the same applies to the arguments supporting native vegetation zones as their purpose was not unambiguously stated nor the scientific support provided. The result is that should the City's employees who are responsible for issuing permits, under the Draft Shorelines Ordinance or possibly even under the existing ordinance, not issue those permits, thereby, placing homes and lives at risk, they may acquire personal and criminal liability. Consequently, the expected outcome of denying permits may be quite different from the property owners moving their homes back from the edge of the bluffs. It may result in a change of personnel at the City, instead. If the employees acquire a personal liability, the City probably acquires liability, too. Infact, it may already have acquired some.
Alternative Vision The course which was taken by the City of Sequim was to allow variances or the purchase the property in cases where their ordinances resulted in regulatory takings. The same approach could be followed here, by allowing variances for drainage or structures or purchasing the property in cases where denying the permits would constitute a criminal act. But, then, the main thrust of the Ordinance would be altered. My general impression is that the course mapped out by the draft Ordinance can not achieve its intended objective, which appears to be to create a buffer of native vegetation around the entire coastline of the Island and also to remove all artificial structures from that zone. I have doubts whether the Ordinance is intended to serve any other objective, such as preserving salmonid stocks, and there is at this point a lack of evidence that they would accomplish that, even if that were their objective. --- When you have satisfied yourself of the impossibility of the present course, that is will not achieve its objective whichever it may be, you will seriously consider the alternatives. The alternative involves embracing the changing environment which will result from stabilizing the banks and bluffs and residential development along the shorelines, but planning for it, so that it moves towards a better rather than a worse outcome. What the future may hold, may be a littoral zone with homes surrounded by smaller trees, lawns and shrubs above a coastline of exposed claystone, with a few small beaches and the larger bays with bottoms of sand and gravel. Although, whatever results will be different from the present conditions, that does not necessarily mean that it has to be ecologically or environmental non-productive nor aesthetically unpleasing.
Testimony on the WRIA 18 Watershed Management Plan by Dr. Robert N. Crittenden
Crittenden Biometrical 274 Sturdevant Road, Sequim WA 98382 360 582-9550
Oct. 12, 2004
Executive Summary: Tetra Tech's, 2004, study of the impact which the buildout in domestic wells will have on the Dungeness River has flaws in its methodology and assumptions such that it is not scientifically valid nor does it meet the criteria for Best Available Science. A corresponding study done by Clallam County's Groundwater Work Group, completed in 1999. is attached. The principle result of that study is that the impact of the full buildout of domestic wells would be so small as be unmeasureable. Two other important results of that study were that if more than a third of the new wells went into a confined aquifer or if more than one-twentieth of the buildout involved the conversion of irrigated agriculture to residential uses, the instream flows would be enhanced rather than diminished. Finally, I address the question of whether the County Commissioners have the right to delegate authority to the WRIA. --- I had, originally, thought that they did not, but after reading American Jurisprudence on the delegation of authority, my conclusion is that the Commissioners would have that power, provided that three criteria were met:
The plan, in its present form, does not meet these criteria. Therefore, I recommend that it should be remanded to the WRIA for revision.
Introduction: I testified, on September 21st, on my concerns about the unscientific nature of the studies underlying the WRIA 18 Watershed Management Plan. I appreciate the additional time which the County Commissioners have allowed the public, to examine it. ---- I wish to add several additional issues to my previous testimony. Tetra Tech's Buildout Study: The groundwater study completed by Tetra Tech, in 2004, evaluating the impacts which full buildout in domestic wells may have on the Dungeness River, makes several assumptions which are invalid and, also, fails to do the statistical tests which are necessary to establish its scientific validity. Possibly the most important flaw in their study is that they assumed that the groundwater recharge from agricultural irrigation will be reduced by 10%, to account for the reductions in agricultural irrigation, caused by the conversion of agricultural land to residential uses, but, they failed to make a corresponding reduction in agricultural water withdrawals from the river. As the total rate of water use for agriculture is very much larger than the total rate of domestic use this mistake may be the primary factor causing the model's results. It invalidates the model. In addition, as agricultural irrigation water is predominately drawn directly from the river, through the irrigation ditches, whereas many of the domestic wells will be at locations remote from the river, agricultural irrigation will have a greater impact on the river for each gallon used than domestic wells will have. Furthermore, Their assumption of a ten-percent reduction in agricultural uses, does not correspond to full buildout in domestic wells, as full buildout occurs when all land available for that use is put to that use. In that case, the only remaining farmland would be that to which the development rights have been sold or for which domestic use is prohibited for some reason. Their model uses the structure and parameter values from their 2003 study, but there were a few important changes. The most important of these, may be that they appear to have assumed in the second model that the aquatard which separates the upper unconfined aquifer (the first or top layer) from the first confined aquifer (the third layer) does not form a continuous barrier between those two water-bearing layers. They state this on their page 8. But, in the earlier study, on their page 2-2, they state that, "The upper confining bed is generally about 80 ft thick and consists of silt and clay deposits. It contains locally discontinuous layers of water bearing sand and gravel and ranges in thickness from 5 to more than 175 ft." Thus, their assumption in the second model was not supported by their earlier model. That assumption is, also, inconsistent with the requirements which the Department of Ecology currently places upon the well drillers, that they drill into the third layer, because it is a confined aquifer. (Personal Communication with a Oasis Drilling.) This apparently flawed assumption in their later model results in its predicting a greater movement of water between the first and third layers, than may exist. There also appears to be a similar problem with the model's treatment of the movement of water between the third and fifth layers. Their discussion of their results and particularly their presentation to the public during the October 6th hearing, failed to adequately point out that the large impacts which the model predicts are very localized impacts at the sites of the wells for the municipal water supply systems for Sequim and Carlsborg, but are not found generally over the valley. The drawdown over most of the Valley is relatively small. In addition much of this predicted impact may be attributed to reduced agricultural recharge. The model also predicts a largish impact directly beneath the City of Sequim. This is probably due to reduced recharge caused by the high proportion of impervious surface. However, contemporary building standards and the use of infusion ponds for roads and parking lots should greatly reduce that impact. This is not adequately accounted for in the model. Their overall prediction that domestic wells will reduce the instream flow in the Dungeness River by a few cfs, is probably an overestimate, as stated above. But, even if it were not, that small amount they predict is insignificant compared to the WRIA's recommendation of 175 cfs during the low flow period, which occurs during September and October. Such a small impact on instream flows may not even be measurable using the current methods for the measurement of river discharge. Their study, examining the impact of the buildout in wells, also, presents no statistical tests, confidence intervals, nor other measures of dispersion for their predictions. Consequently, those predictions are meaningless for it remains unknown whether they are relatively accurate, inaccurate, or show nothing at all. Thus, they failed to establish the scientific validity of their results. These tests or measures of dispersion also a requirement for modeling studies if they are to qualify as "Best Available Science" (see Appendix 1 for the criteria.). The faulty assumptions in the model are other points where their study fails to meet those criteria. The County is placed at a difficulty when the Watershed Management Plan is not based on Best Available Science, as is the case here, because the County may acquire an obligation to implement the plan by forming ordinances which necessarily affect critical areas, but as the plan is not based on Best Available Science, neither will those ordinances be. That creates a conflict with the Growth Management Act which requires that ordinances affecting critical areas be based on Best Available Science. --- But, perhaps this is for the best, as the result may be that the County would have no obligation to implement the plan. The Groundwater Work Group's Study: That report is attached. It follows a very different approach from the above models:
This model was initially constructed by myself and was then discussed and modified, for approximately two years, by the County's Groundwater Work Group. It was submitted to the County in 1999. Both of Tetra Tech's models are of more recent origin. A few of the results of the Groundwater Work Group's study are similar to those of the corresponding model by Tetra Tech. For example, both models indicate that the impact which domestic wells will have on the Dungeness River will be relatively small compared to the recommended flows, during the low flow period. However, the results of these two models differ on their other results. In particular, in contrast to Tetra Tech's results, the Groundwater Work Group's model indicated that:
The difference between the results of the two models can mostly be attributed to the mistakes in Tetra Tech's model, in how they modeled reductions in agricultural irrigation and the flow of groundwater from the first to the third layers and from the third to the fifth layers. The Groundwater Work Group's study has different weaknesses. These are that it has not been peer reviewed and it lacks references. --- These problems could be easily overcome, as they are not problems with the study itself, but with its presentation. Delegation of Power: Adopting the Watershed Management Plan involves more than just a delegation of authority. It is a transfer of power. --- By accepting the Watershed Management Plan, the County Commissioners transfer their legislative power to form plans to the WRIA and, then, subordinate themselves to them. Thereafter, their authority over land use and water is limited to implementing the WRIA's plans. At first, I was of the opinion that the Commissioners could not lawfully do this. But, after reading American Jurisprudence on the delegation of power, I reached the conclusion that it might be possible, under certain conditions. These are:
When power is lawfully delegated, that traditionally involves the assigning to some other government body the power to fill in the small details of some plan. That plan has to be fairly narrowly defined. --- The current form of the Watershed Management Plan certainly does not meet that criterion. It will have to be substantially tightened up and made concrete and explicit. The plan may have to contain an option, so that future County Commissioners can opt out of it. Alternatively, it could simply advise and commit itself to never creating any obligations for the County. Something along those lines would probably be necessary to avoid reducing the authority of future County Commissioners. However, protecting the civil rights of the residents of Eastern Clallam County, is my principle concern. The issues at question generally are violations of due process. Due process is guaranteed by the fifth and fourteenth ammendments and involves far more than just how meetings are conducted. A few places where the current process used by WRIA 18 may infringe on due process are:
The point is that WRIA 18's process is demonstratably "arbitrary,35 irrational and invidious 36. According to Washington Practice, Volume 24, in its chapter on takings, Demonstrating any one of those characteristics is sufficient to establish that a violation of due process has occured. However, there is more to due process than just that, it basically encompases all that is contained in the concept of fairness. Unfortunately, it is difficult to see how the civil rights of the public can be adequately protected, as long as HB 2514 continues to guarantee immunity for violations which occur within the WRIA's. Nevertheless, perhaps there is some way to do it. Therefore, I recommend that the plan be remanded to the WRIA to provide them with the opportunity to make the necessary changes. Literature Cited Crittenden, R,N. and Groundwater Workgroup 1999. Expected Water Demand from all Future Impacts Domestic Wells along the Dungeness River. Department of Community Development, Clallam County, WA. 8 p. Tetra Tech F.W. INC. 2003. Dungeness Water Users Association Comprehensive Water Conservation Plan: Groundwater Model Report. Tetra Tech 121pp NE 195th St. Suite 200. Bothel WA 98011 Tetra Tech F.W. INC. 2004 Report: Dungeness Groundwater Modeling Evaluation of Full Buildout in the Dungeness River Area. Tetra Tech, 12100 NE 195th St. Suite 200, Bothel WA 98011. 61p. Appendix 1: Best Available Science Section 365-195-905 et sec. of the Washington Administrative Code (WAC) specifies that "best available science" has the following elements:
... Information derived from one of the following sources may be considered scientific information if the source possesses the characteristics in Table 1. A county or city may consider information to be scientifically valid if the source possesses the characteristics listed in (a) of this subsection. The information found in Table 1 provides a general indication of the characteristics of a valid scientific process typically associated with scientific information. Table 1 |
||||||||||
Source |
Peer Review |
Methods |
Logical conclusions and reasonable inferences |
Quantitative Analysis |
Context |
References |
||||
Research |
X |
X |
X |
X |
X |
X |
||||
Monitoring |
|
X |
X |
Y |
X |
X |
||||
Inventory |
|
X |
X |
Y |
X |
X |
||||
Survey |
|
X |
X |
Y |
X |
X |
||||
Modeling |
X |
X |
X |
X |
X |
X |
||||
Assessment |
|
X |
X |
|
X |
X |
||||
Synthesis |
X |
X |
X |
|
X |
X |
||||
Expert Opinion |
|
|
X |
|
X |
X |
||||
X = characteristic must be present for information derived to be considered scientifically valid and reliable Y = presence of characteristic strengthens scientific validity and reliability of information derived, but is not essential to ensure scientific validity and reliability The WAC also provides the following clarification of the various types of studies:
Two Attachments:
Testimony on the WRIA 18 Watershed Management Plan by Dr. Robert N. Crittenden Sept. 21, 2004
I recommend against the County's accepting the Watershed Management Plan because. it does not have a valid scientific basis, is not based on best available science, will create a conflict with the Growth Management Act, can not be expected to achieve its intended objectives, nor is there a mandate for some of its stated objectives. Before proceeding further, I should say that I am not only a resident and property owner in WRIA 18, but that I am also a scientist with expertise relevant to these issues.37 The first of the flawed studies which I will point out, was the Department of Ecology's, 1997, recommendations for minimum instream flows in WRIA 18's small drainages. These streams include Johnson, Jimmycomelately, Chicken Coop and Dean Creeks. DOE's study used Swift's toe-width method to arrive at their recommendations. Unfortunately, Swift's original studies, in 1976 and 1979, in which he developed the toe-width method, had two fatal flaws. Both are technical errors in statistical methodology. --- The first is that he developed his method using stepwise regression, but failed to discount his alpha-level to account for multiple comparisons. This violates standard methods and can be expected to lead to erroneous results.38 His second mistake was in how he selected streams for his study: He chose representative streams and representative reaches within those streams, rather than selecting them at random. Consequently, his results, if his methodology had been otherwise valid, would have applied only to those specific reaches of those specific streams rather than to all streams in the Puget Sound Region.39 Furthermore, all of the streams and rivers he sampled were larger than those to which his method is being applied in Clallam County.40 Because of these mistakes, Swift's toe-width method is not scientifically valid and, consequently, neither are the Department of Ecology's recommendations for the minimum instream flows in small streams in Eastern Clallam County. In addition, this method was probably also used in other small streams in WRIA 18, wherever an minimum instream flow was desired, but relatively little data on the stream was available. Whereever it was used, it is inapplicable. Similarly, the minimum instream flow recommendations for the Dungeness River were made using the instream flow incremental methodology (IFIM), but that methodology contains three flaws which invalidate it for this type of application. The first is that IFIM was not intended for this kind of application. Bovee made it clear, in his definitive 1982 review of this methodology, that it was intended for the assessment of small changes not for large ones nor for long-term planning. The problem is that IFIM does not model the movement of the sediment-load of the stream or river (that is the movement of the sands and gravels in the streambed or riverbed.) Consequently, it is only applicable when the changes resulting from the perspective development or management plan are either small enough or occur over a sufficiently short time period that there is no significant change in the stream or river's pattern of erosion, sediment transport, and deposition. The WRIA 18 watershed management plan involves large changes and long-term planning. Consequently, IFIM is not appropriate for this type of application. The second flaw in IFIM is that it involves qualitative input of the species and species composition of the fish whose habitat it models. This qualitative element in the IFIM allows the individuals who input these values to achieve any desired prediction of the optimum instream flow, within a fair wide range of possible outcomes. Most of the seatholders of the WRIA's are probably not aware that this had been done. The third flaw of IFIM is that the "optimum" is only optimum in a purely mathematical sense; it is not necessarily the best nor the desired outcome in an ecological sense nor in terms of human values. Because of these three flaws, the State of Oregon recognized the invalidity of IFIM for setting minimum instream flows and discontinued its use for this purpose.41 A third key study underlying the WRIA 18 Watershed Management Plan is Blake Thomas et al's 1999, groundwater study for the Dungeness Valley. It is neither scientifically valid nor best available science. Its fatal flaw is that he assumes that the substrate at the southern boundary of his groundwater model consists of a thin layer of soil overlying impervious bedrock. Unfortunately, that bedrock is not impervious, but is fractured basalt and is a relatively good conductor of water. If you wish to verify this for yourselves, you can observe this bedrock at the DNR quarry off Norris Drive, which is a private road off of Sturdevant Road. This quarry is located almost exactly on the southern boundary of his model. The fractures in the basalt are clearly evident, and it is also clear the water flows through them and does so relatively easily. In addition, recent studies have shown that the Dungeness River loses a significant part of its total discharge, in the reach just below the confluence of the Dungeness and Greywolf Rivers, where it flows over fractured basalt. Thus, a critical assumption in Blake Thomas's groundwater study was in error. Consequently, his study is not scientifically valid, nor does it meet the criteria of best available science. The WRIA 18 Watershed Management Plan recommends that in some, unspecified, parcels, a maximum of 7% impervious surface will be allowed. The studies supporting this recommendation are not listed. However, it is probably based on the work of Dr. Booth of the Department of Civil Engineering at the University of Washington. There is one study by him, presented as an appendix to King County's Best Available Science Review, Volume 1, for their current Critical Areas Code Update, and a second study by Booth and Jackson in a engineering journal. Both are based on the same initial study. --- The single largest impact which urbanization has on streams is increased peak flows. This can result in the severe degradation of streams. Dr. Booth did a study of this phenomenon in a watershed near Issaquah, Washington. He examined how the percentage of development was related to increases in the peak flows and the degradation of the streams. However, his data were collected before ponds for the retention and infusion of stormwater were in common use. He used a hydraulic model to overcome this data gap. His conclusions were that the threshold where severe stream degradation began was at about 10% impervious surface and 65% native vegetation, and that the streams could not be effectively protected by best management practices for roads and parking lots alone. Unfortunately, that hydraulic model is unrepeatable as he failed, in both of his publications, to report his methods of modeling. Consequently, his studies and not scientifically valid nor do they meet the criteria for best available science. Furthermore, the results which he obtained are unlikely as, according to Dr. Chris May's Ph. D. Dissertation, 65% of the impervious surface in rural King County are roads and parking lots. As they are often ditched directly to streams, whereas other rural imperious surfaces rarely are, it would appear likely that as much as 80% or 90% of the problem of increased peak flows may be due to roads and parking lots. In light of this, the restrictions on impervious surface and clearing are not likely to have much effect, nor are they capable of achieving their intended purpose. That will be achieved primarily by improvements in how stormwater from roads and parking lots are treated. The Watershed Management Plan will create obligations for the County to create ordinances to implement it, and then to proceed to their application. However, the County can not lawfully do this as the plan, being based on studies which fail to meet to standards for best available science, violates the requirement, in the Growth Management Act, that ordinances regulating critical areas be based on best available science. Thus, the Watershed Plan is not implementible. Clallam County's Groundwater Workgroup developed a model for the expected impact which full buildout in domestic wells within a half-mile of the Dungeness River would have on instream flows. That is the region throughout which domestic wells might be expected to have an impact. That study was a simple mass-balance model with the refinement of a stochastic component so that confidence limits could the set. Its results were that full buildout is expected to have no measurable effect on instream flows, but that if more than 5% of the parcels converted irrigated agricultural land to residential uses or if more than a third of the domestic wells went into the first confined aquifer, the net impact of full buildout would be positive rather than negative. Consequently, the restrictions on domestic wells which the WRIA 18 Watershed Management Plan seeks to impose, can not be expected to achieve their intended purpose. Similarly, restoration of the salmon is one of the principle objectives in the WRIA 18 Watershed Management Plan. But, as Robert Lohn, the Northwest Director of National Marine Fisheries Service, pointed out, "Most scientists today agree that the salmon crisis was caused by ocean conditions, not by habitat." ( He meant by "ocean conditions" both harvest and upwelling.) ---- However, it is also generally recognized among fisheries biologists that mismanagement of hatcheries was another important contributing factor. In contrast, freshwater habitat was demonstrably not a major factor. This can be readily seen in the fact that, during the salmon crisis, runs declined in both degraded and pristine streams. Consequently, the WRIA 18 Watershed Management Plan is unlikely to achieve its intended objective of salmonid restoration. Furthermore, the Growth Management Act mandates the protection and preservation of the functions and values of critical areas and salmonid habitat, it does not authorize their restoration to some previous pre-development level. In the absence of a mandate, the application of the Watershed Management Plan for environmental restoration meets one of the tests for a "taking" Consequently, the County must condemn and buy the properties or uses for restoration, instead of applying the police power for the preservation of public health and safety (which includes the health of the environment). Thus, the Watershed Management Plan commit the County to substantial financial burden. In conclusion, as the WRIA 18 Watershed Management Plan does not have a valid basis, conflicts with the Growth Management Act, and can not be expected to achieve its intended objectives. I, recommend against its acceptance.
Literature Cited Bovee, K.D. 1982. A guide to stream habitat analysis using instream flow incremental methodology. Instream Flow Papers 12. USFWS Fort Collins, Colorado FWS/OSD-82/26 Crittenden, R,N. and Clallam County Groundwater Workgroup 1999. Expected Impacts of Full Buildout in Domestic Wells along the Dungeness River. Swift et al. 1979. Estimation of stream discharges preferred by steelhead trout for spawning and rearing in Western Washington. US Geological Survey Open-File Report 75-155. Tacoma WA Thomas, Blakemore, Layna Goodman and Therresa Olson 1999. Hydrologic assessment of the Sequim-Dungeness Area. Clallam County, Washington. USGS Water Resources Investigations Report. 99-4048. 165 pages. Wampler, P. and J. Hiss 1991. Fish habitat analysis for the Dungeness River using the instream flow incremental methodology. USDI Fish and Wildlife Service, Western Washington Fisheries Resource Office, Olympia WA. Washington Department of Ecology 1997. Flow recommendations for WRIA 18 small drainages.
Expected Water Demand from all Future Domestic Wells along the Dungeness River
by
Robert N. Crittenden and Ground Water Work Group
( The Ground Water Work Group was a citizens' committee formed by Clallam County to examine groundwater issues in the Dungeness Watershed.) Abstract The additional exempt wells which would result from completing all of the development allowed under the Growth Management Act within approximately a half--mile of the Dungeness River would be expected to decrease instream flows by approximately 1.1 ± 0.5 cfs. Such a small change in instream flows is less than can be detected by the measurement methods currently used. But, that is a maximum which applies only if all future wells were drilled into the unconfined upper aquafer and all land converted to homesites was previously not irrigated. --- As the proportion of wells into the confined aquifers is increased, the cumulative impact of domestic wells decreases rapidly. In particular, it would be zero if approximately thirty percent of them were drilled into a confined aquafer but, if the proportion were larger than that, the instream flows would be augmented rather than decreased. In addition, each conversion of a five acre parcel of irrigated farmland into a homesite results in a water savings adequate to supply approximately 21 homesites. Thus, if at least five percent of the land converted were previously irrigated farmland, there would be a net savings. In conclusion, the addition of all future domestic wells is expected to have no measurable negative impact.
Introduction The purpose of this report is to consider the impact which allowable future growth in the number of private exempt wells would have on instream flows in the Dungeness River.
Methods The approach taken was to estimate the number of such wells and then multiply that by the average rate of consumptive water use. Various corrections were then applied to account for other factors which either increase or decrease the consumptive use. (See Appendix.) An attempt was made to make all assumptions conservative. That is, where in doubt, to err on the side of overestimating the reduction in instream flows. The strategy employed was to use a simple approach and approximate parameter values, but to determine the uncertainty which would result from that imprecision. The feeling of the groundwater group is that the conclusions reached show such strong effects that a higher level of precision is not necessary. Specifically, a Monte Carlo simulation was done to account for the uncertainty in the various parameters. The parameters were assumed to be normally distributed, except for those which are proportions. The latter were simulated using normal distributions with their tails recoded to zero or one. Five--hundred runs were done at each set of parameter values examined. Region Considered: The region considered is that within approximately ahalf--mile of the Dungeness River. At any location more distant from the river than that, it seems unlikely that the small withdrawal rate from an exempt residential well could have any material effect upon the river level. In addition a half--mile is approximately the width of the geological region throughout which the river--bed materials extend. Throughout that region, the river has cut into the geological strata, and then replaced them with river sediments. That is, therefore, the region throughout which there may be some direct connection between the ground water and the river. It is slightly wider in the lower reaches of the river. Buildout: The region modeled was delineated on a county map, generally following sector lines. That allowed parcels and wells to be identified by township, range, sector, and forty acre block in the county's data base. The buildout, that is one minus the ratio of the existing wells to the maximum allowable number, was estimated by randomly sampling 40's in the approximately mile--wide swath along the river and recording the number of logged wells and parcels.
Results Forty--eight 40's were sampled to estimate the buildout. The mean buildout is 0.5325, with a standard error of 0.0569. Thus, it would appear that slightly less than half of the potential number of wells are already in place. The buildout was approximately uniformly distributed between 0.0 and 1.0, except that a disproportionate number of 40's were either built out completely or not at all. The following parameters were used in the principle set of runs to estimate the impact on instream flows:
Parameter values used in the principle set of runs |
||||||||||
Parameter |
Mean |
Standard Deviation |
||||||||
Total number of parcels |
3250 |
125 |
||||||||
Buildout |
0.53 |
0.0569 |
||||||||
Gal. per person per day |
90 |
5 |
||||||||
Persons per household |
2.5 |
0.25 |
||||||||
Proportion consumptive use |
0.25 |
0.1 |
||||||||
Irrigation rate (gal. per day) |
2000 |
500 |
||||||||
Proportion consumptive use in irrigation |
0.33 |
0.3 |
||||||||
Proportion of homes which irrigate |
0.33 |
0.3 |
||||||||
Proportion of wells with a riverwater source |
0.75 |
0.13 |
||||||||
Proportion of wells which are active |
0.9 |
0.05 |
||||||||
Proportion shallow wells |
1 |
0.05 |
||||||||
The predicted decrease in the instream flow is 1.09 cfs with a standard deviation of 0.508 cfs. The predictions were approximately normally distributed, but with a slight right skew The system's response to variation in the proportion of deep wells is rapid and reaches zero at about 30 percent deep wells.
Discussion The system parameters are discussed one--by--one: Proportion of Wells in Active Use: Not all wells will be active at any given time. --- Some of the people who regularly reside in the study area will be away from home some days during the year, and there are also vacation homes which are characteristically unoccupied most of the year. Total Domestic Water Use per Person and Number of People per Household: The estimate of the total domestic water use rate is based on 80--100 gallons per person per day. That is a widely used figure for total water use, including some watering of plants, in urban areas. It would, therefore, be expected to overestimate purely household use. There is assumed to be fewer than three persons per household, which is what the 1990 census indicated for Clallam County. Total Irrigation Water Use per Household: Each household is currently allowed to irrigate one--half acre. The rate of irrigation required for grass is one acre--inch per acre per week (Sunset Western Garden Book) and two acre--inches per acre every ten days for alfalfa. That is 1940--2715 gal per day. These are both crops with a high water demand. Therefore, 2000 gal per day should be sufficient for most irrigation needs for a half--acre. Proportion of Homes Irrigating: 100 parcels with homes on them were selected at random and sampled during the late summer to see whether they were irrigating. Almost exactly one--out--of--three were irrigating, and many of those who did water were not doing much more than occasionally sprinkling a patch of lawn. Lush gardens, showing regular watering, were relatively rare, approximately one--in--ten or less. It should also be noted that some of those who watered may have been doing it with water from one of the irrigation ditch systems. No attempt was made to determine if the water came from a well. Non--Consumptive Versus Consumptive Uses: Household uses are considered to be primarily non--consumptive as a septic tank and drainage field return much that water to the ground water in the unconfined upper water table with little loss. However, the watering of lawns and gardens and most other non--household uses of water are mostly consumptive. That is, part of that water permanently leaves the system. During the late Summer, when low instream flows are a concern, evaporation and evapo--transpirations rates are high. Consumptive uses are assumed to be around 25 percent for household uses and 90 percent of the non--household uses. Proportion of Ground Water from the River: The river is not the only source of water. A great deal of rain falls directly on each parcel and the ground is quite porous, so much of that rainfall contributes to the groundwater. Assume, for the moment, that the groundwater is a static reservoir, and that 50 percent of the rainfall goes into ground water, which may not be a bad approximation as most of the rain falls during the cool season; then, over the year, a 5 acre parcel which gets 12 inches of rainfall per year, will contribute 108,900 cubic feet per year: (that is 5 acres* 1.0 foot * 0.5 * 43560 square feet per acre) to the groundwater. That is enough to supply 2231 gallons per day, every day of the year. That is approximately equal to the total needs of a household which irrigates and far exceeds purely household needs. However, it is less than the 5000 gal exemption or a household. But, that is just at 12 inches of rainfall per year, which is the minimum in the Sequim--Dungeness region.There is considerable microclimatic variation in the region, with total rainfall generally increasing with elevation. Some parts of the region receive as much as three--times that amount of rainfall. Since most of the study area is zoned for five--acre parcels, and the average parcel size is between three and four acres, obviously, on the average, each parcel is serving as a net water source. Therefore, it is certainly possible that many individuals may be drawing from their shallow wells the water which fell as rain on their own land, or that of their immediate neighbors. To this direct recharge should be added the water which fell as rain on the uplands behind the inhabited area. Direct recharge almost certainly contributes to the groundwater in the region of this study. So, as one considers wells progressively more distant from the river, the probability increases that underground flow at those locations may be dominated by direct recharge rather than being related to the river. The water which would be drawn from those wells may not have come from the river nor be destined for it. Proportion Shallow Wells: Water from deep wells, that is wells which are drilled into the confined aquifers, was treated as being added to thesystem. The reason for this is that the first aquatard impedes the direct flow of water from the river to the aquifer. Thus, the water which comes to a deep well primarily flowed along the aquifer from a distant recharge area, rather than by a local source. Furthermore, in much of the region of this study, the level of the hydraulic head for the confined aquifers is above the confining layer. Therefore, in those areas the net flow is out of those aquifers and no recharge is occurring there. But, having no information about where the recharge areas for the aquifer may be, we must assume they are equally likely to occur at any location. Since the vast majority of the aquifer and its aquatard are distant from the river, stretching across the entire plain and underlying much of the uplands, a much higher probability must be assigned to those locations, in aggregate, than to the narrow swath along the river. Thus, the best assumption, the assumption which has the highest probability of being correct, is that most of the water in the confined aquifer is not coming from the river.Furthermore, even if it were, there must necessarily be a time--delay to allow the water to flow from the recharge area to the well. As instream flows are only a concern during a critical period of only one or two months during the year, the larger probability (about 6:1 to 12:1) is that it was not withdrawn during a low flow period. Thus, the water in the confined aquifers most likely came from a distant source, outside of the region of concern, either spatially or temporally. The water from deep wells ultimately ends up in the groundwater in the upper unconfined aquifer and contributes to raising its water table, except for the consumptive portion of the water--use which must be subtracted from the water taken from deep wells. Thus, deep wells can benefit instream flows. The system's response to the proportion of wells which go into the unconfined aquifer was examined throughout the range of values for which there is a predicted net decrease in the instream flows. However, the proportion of deep wells, among the new wells now being drilled, is usually fairly substantial in practice, because it promises a higher water quality in the long--run. Therefore, it may be outside of this range, particularly, along those reaches of the river which have more expensive homes. In those areas, the buildout of exempt wells would be expected tobenefit instream flows rather than reducing them. Conversion from Irrigated Farmland: Every five--acre parcel which is converted from irrigated farmland to residential use, saves approximately 19,100 gallons per day. That represents the change from 5 acres irrigated at 2000 gal per day per half--acre to a 5 acre residential parcel with household use and only a half--acre irrigated at that same rate. But, on the average, only about a third of the houses irrigate. Although, only a small fraction of the land converted to homesites was originally irrigated farmland, if only five percent of it were, buildout would result in a net water savings. Of course, the previous irrigation rate as farmland depended upon the type of crop grown. But, the overall concept remains true that the land in its previous use may have had a water demand and some types of irrigated farming require a great deal of water. So, the assumption used in this model, that there previously had been no water demand, is extremely conservative. Conclusion The principle conclusion, is that the total impact of the buildout of exempt wells on the instream flows is negligible. At most, it would be about one cfs. However, if there were a significant proportion of deep wells or of land converted from irrigated farmland, there would probably be a net increase in instream flows. Therefore, it follows, that there are probably more productive uses for effort, funds, and good--will than expending them on restricting exempt wells.
Appendix 1: Mass Balance Equation Q = ( C1 C2 C9 C10 (C6 C8 (C7 C11- (1- C7) (1- C11)) + C1 C2 C3 C4 C9 C10 (C5 C11 -(1- C5) (1- C11))/ ((7.48)(86400)) The first term in the numerator gives the predicted reduction in instream flows due to irrigation and the second term gives the reduction due to household uses. The denominator converts gallons per day to cubic feet per second. Q = predicted reduction of instream flow in cfs C1 = total number of parcels C2 = buildout C3 = gal total per person per day for household use C4 = persons per household C5 = proportion consumptive household use C6 = gal for irrigation per household per day C7 = proportion consumptive non--household use C8 = proportion of homes which irrigate C9 = prob river water C10 = proportion of wells which are active C11 = proportion shallow wells 7.48 gal per cubic foot 86400 seconds per day
700 S. 2nd Room 202 Mount Vernon WA 98273 August 8, 2002 Regarding: The 2514 process to set instream flows in the Samish River Basin. Dear County Commissioners; I am writing separately from the Unaffiliated Caucus, because, although I contributed to their letter, I have not seen its final form. --- I, therefore, do not know what it may or may not contain. Nevertheless, like them, I support the County Commissioners' terminating the 2514 process for setting minimum instream flows in the Samish River Basin. I support this for two reasons: First, because the instream flow study, which is the key piece of research upon which the negotiations should be based, is not scientifically valid, leaving an inadequate basis upon which to make those decisions; and second, because there are many problems with the process due to difficulties in the MOA and groundrules, which can not be satisfactorily resolved except by terminating it. A more detailed statement of my position is contained in my two reports, 1) A Review of the Instream Flow Assessment- Samish Sub-Basins Lower and Upper Skagit Watershed Plan and 2) The Unaffiliated Caucus's Objections to the New Groundrules. I apologize for burdening you with additional copies of these reports, I include them in this letter to make it a complete statement. Sincerely
Dr. Robert N. Crittenden Alternate Representative Unaffiliated Caucus
The Unaffiliated Caucus's Objections to the New Groundrules:
1) They disenfranchise the public -- The planning team was direct democracy while it operated under consensus. By "consensus" we mean unanimous consent among all the seatholders. Although direct democracy has some problems, it retains some legitimacy, as the public, can be involved in the process and have some control over its outcomes. In particular, the caucuses' veto-power provided the public with a way to block any outcome to which they did not consent. That was how the planning team operated until the May 2002 meeting. But, the new groundrules, which were imposed at that meeting, removed the caucuses' veto-power. Under the new groundrules, the influence of the caucuses was reduced to majority vote among the caucuses, and the caucuses were carefully balanced so that is unlikely that the public would have much impact. In addition, two of the caucuses represent government entities instead of the public. That further dilutes the influence of the people upon the process and its outcomes. Under the new groundrules, the power in the planning team is held by the seatholders who represent the initiating governments. Some decisions, such as those on process, are made by the steering committee, on which the caucuses are not represented at all and, thus, there is no public representation, at all. On these issues their disenfranchisement is complete. We object to these reductions in the power and influence of the people. We do not consent to them.
2) They lack legitimacy. --- By the State Constitution, all power resides in the people and is derived from them. ---Under representative government, the legitimacy of government is clear, as the officials in each government body are elected by the people who reside within their jurisdiction. Direct democracy, as was used by the planning team prior to the new groundrules' being imposed, does not have as clear a legitimacy as representative government, for under it, representation is unequal over the community, that is the number of people represented by each caucus is unequal. However, the veto-power of the caucuses largely compensated for this inequality, as the core issue is not equality of representation but equality of power, and the veto-power, being an absolute power which allows a single caucus to block any outcome to which they do not consent, grants each caucus power equal to that of the remainder of the Planning Team. Thus, the disproportionate representation is not as serious an issue under the consensus process as it is under majority rule. In addition, the presence of an unaffiliated caucus provides representation to all those who are not in one of the other caucuses. Thus, if this system is perfectly operated, every member of the community would be represented with some equality in terms of power over the process and its outcomes. Thus, the veto-power lends the consensus process legitimacy. Considering how few people actively participate in the political process of electing representatives under our traditional approach of majority rule,the consensus process is roughly comparable, and in some cases may compare favorably, in terms of providing proportionate distribution of power among the members of the community. But, one weakness of direct democracy, which you can readily see here, is the ease with which it withers away, leaving a dictatorial or arbitrary form of government in its place. The new groundrules, remove the veto from the caucuses and replace it with majority voting. Thus, that very factor which gives the consensus process its proportionate distribution of power was eliminated. The new process, a hybrid voting mechanism between the initiating governments and the caucuses, is extremely disproportionate in terms of both power and representation. For this reason, it loses its legitimacy. Furthermore, it is not just "disproportionate" in the traditional sense of an unequal distribution of power among members of the public within the jurisdiction, but involves an extremely unequal distribution of power between the people within the jurisdiction and government entities, including some which are not even located within the jurisdiction. Returning to the original statement, from the State Constitution, that all power resides in the people and is derived from them, this new process, established by the new groundrules, has no legitimacy because it is not based upon the people, but rests primarily upon government entities. In conclusion, as the public has little impact on the process or its outcomes, the process has correspondingly little legitimacy. 3) The process which the new groundrules create resembles "arbitrary government." The abuses of this type government were listed in several places in the Declaration of Independence where it gave justifications for the American Revolution. As this is one of the three pieces of organic law upon which our nation is founded, it is probably not within the power of the State nor any of its divisions to establish arbitrary government. The definition of arbitrary Government which was current at the time of the Declaration of Independence comes from John Winthrop, the Vice-Governor of the Commonwealth of Massachusetts, in 1644. He said that arbitrary government is, "where people have governors set over them without their choice or allowance, who have power to govern them and to judge their causes without a rule." (His article is reprinted in American Historical Documents, The Harvard Classics. Charles W. Eliot (ed.)) None of the seatholders at the table who still hold the veto-power were elected by the residents of the Samish Watershed and the caucuses are virtually powerless. Thus, the first requirement in the definition of arbitrary government is met. If you consider the process, you will realize that there are few constraints on what the planning team can base their decisions upon. There is the requirement to use best available scientific information, but we will see in the case of Duke Engineering's report on instream flows whether that requirement will be observed or not. They might even consider cultural values in reaching their decisions. Thus, the second requirement in the definition is met, that they govern without a rule. Fortunately, the planning team does not have any judicial function, therefore, the last part of the definition is irrelevant. But, I think you can see the similarity between arbitrary government and this process. --- It certainly tends in that direction. The essence of this complaint, is that under this new process, the residents of the community are effectively being dictated to by a committee, but have no control over its composition or membership and the committee has few constraints on how they make their decisions. In addition, they are not required to follow due process. 4) The purpose of the 2514 process was to allow local planning. That is exactly the opposite of what is happening under the new groundrules, as they disenfranchise the residents of the WRIA and their interest groups (the caucuses), empower government bodies, some not from within that WRIA, and transfer power from the legitimate jurisdictional body, the County, to these other entities. 5) If the planning team is not terminated before it establishes an instream flow, it will continue indefinitely regulating land use and natural resources in the watershed. Thus, unless this process is terminated, the planning team, under its new groundrules will effectively become the form of local government regulating these issues, in perpetuity. Furthermore, if these issues are construed broadly, they may include most activities within the WRIA. This change in our form of government is of far greater importance than the issue of instream flows. Governor Gary Locke acknowledged this in speaking to the Seattle Area Chamber of Commerce Leadership Conference, in Vancouver B.C. on October 9, 1998, when he said: "It comes back to our ability to compromise our own narrow interests for the benefit of the common good, and it comes back to our ability to set aside either/or thinking and focus instead on the balance which leads us forward..... The effort to restore wild salmon runs will make history in bigger ways than we usually realize. ... The stakes are very high." His statement could be construed several different ways, but I think you are familiar enough with this process to realize that he was talking about the change which is occurring all over the State by the creation of planning teams like the one here. And part of that transition is the changes in their groundrules. The issue of instream flows, justified to restore the salmon, is not the central issue. That is merely a lever to get us to implement and accept this new form of governance. That is why process and the groundrules are the primary concern of the unaffiliated caucus. 6) The disenfranchisement of the residents of the community violates their civil rights: Specifically their rights to elect who governs them, to proportionate representation, and to due process. No one has the right to make an agreement which compromises the civil rights of another individual, and any such agreement is null and void. Thus, even if the new groundrules were passed, they are a nullity.
7) The new groundrules are consistent with the decision process described in ESHB 2514, but conflict with the 1998 MOA authorizing Tribal participation. In particular, the new groundrules say that there will be two full attempts to reach consensus, but failing to achieve it, a hybrid voting process will be used, with consensus among the initiating governments and majority vote among the caucuses; ESHB 2514 says the department (Ecology) will attempt to achieve consensus but the final vote on the instream flow will use that hybrid voting process; however, the MOA says that decisions will be made by consensus, where "consensus" means unanimous consent. To quote from the MOA's section II, Definitions: "Consensus means by unanimous consent." And its section IV B says, "Consensus Decision-Making. The Tribe represents a particular unique interest yet forms a minority of all those governments participating in the assessment and planning. In order to protect the effectiveness of the Tribe's participation and to promote a more thorough and cooperative method of determining what the current water resource situation is in each water resource inventory area in furtherance of improved water resource management, see RCW 90.82.005, the parties agree that unless they unanimously stipulate otherwise for a specific situation or type of action, all decisions, including interim decisions, of the parties shall be made by consensus." Robert Wheeler, pointed out that the term "parties" refers to the initiating governments, who were signatories to the MOA. I agree, as it is consistently used to mean that throughout the document. But, I do not agree with his conclusion that the paragraph just quoted mandates the use of the hybrid voting procedure by the planning team. Although it says, "all decisions... of the parties shall be made by consensus," the MOA deals with creating the planning team to make decisions on instream flows, most of the decisions of the "parties," dealing with those issues be decisions of the planning team. The MOA gives the following definition of the planning team which it refers to as a "planning unit" in its section II Definitions: "Planning Unit refers to the initiating governments and those entities, agencies, organizations, or individuals who have accepted an invitation by the initiating governments to join in the watershed assessment process described by ESHB 2514." Therefore, for the decisions made by the initiating governments as part of the planning unit, to be "consensus," unanimous agreement must be achieved by the planning unit as a whole. --- Thus, I interpret these sections of the MOA to mean that all decisions must by reached by unanimous consent. Larry Wassermann said, during the July Meeting of the Planning Team that he had participated in the writing of the MOA, and that it was not their intention to require that decisions be reached by consensus. Nevertheless, it is likely that it was initially interpreted it to mean consensus, as the planning process operated by consensus throughout its first four years. I take Mr. Wassermann's statement as indicating that some parties had the intention from the very beginning to initially present this process as consensus, but later to reinterpret the MOA and change the decision process to the hybrid procedure. --- Indeed, we see evidence that several parties may have tried to do this, independently, without complete coordination as, first, they apparently attempted to make the shift to it during November 1999 and January 2000, and two and a half years later, under a different facilitator, they attempted to do it that, again, apparently unaware of the earlier attempt. Regarding the conflict between the groundrules, RCW, and MOA on which decision process will be used, the one in the MOA rules because it is the highest standard. --- In particular, the process in the groundrules meets the standards of the RCW and the process set by the MOA (that is full consensus) also meet those standards because they are a higher standard than the hybrid voting procedure. But, the process set by the groundrules do not meet the standards in the MOA. The standards in the MOA are required in the 2514 process because the MOA is required by 2514 to initiate and authorize that the process. One must take the entire MOA, not pick and choose which of its clauses to recognize. So, if the clauses initiating and authorizing the process are accepted, so must be all the others. Thus, if the MOA requires full consensus, as I suggest, then that is what must be used. As you can see in the paragraph quoted above, the MOA provides a mechanism by which the initiating governments can change the decision process. Specifically, the steering committee agrees to make the change by unanimous consent of that committee. Thus, they could have imposed this on the planning team at any time. But, doing so would be flagrantly unpolitic. It appears that they are trying to achieve the consent of the caucuses for this change. But, we strongly object, do NOT consent, and will not consent. --- We may not be able to stop them, but we are not going to bend over to help them do it. 8) There is no evidence that the groundrules were ever passed, but there is evidence that they were not passed. --- Although the summaries from November 1999 and January 2000 say that the groundrules were discussed and passed, and the groundrules in question, then, are the same as now, the summaries were always inaccurate and they are not legal documents. If the summaries had been entered into the public record by submitting them to the County Recorder as legal documents, they would provide legal records of what had transpired. But, as it is, they are only pieces of paper. The difference between such public records and the Planning Team's summaries is that it is a serious crime to knowingly make a false or misleading statement in a legal document, or to alter one. But, it is not a crime to put a false or misleading statement into the summaries or to alter them, or to modify the tape recordings of the meetings. It is our belief that, sometimes, more was accomplished by making false or misleading statements in the summaries, than occurred in the meetings. That includes the supposed "passing" of the groundrules. Tom Solberg was present at the November1999 and January 2000 meetings. He recalls the discussion of the groundrules, but does not recall their ever having been formally voted on, and believes that he would have remembered it had it occurred. Thus, the direct evidence the Unaffiliated Caucus has indicates that the groundrules were never passed. We find it strange that after having supposedly passed the new groundrules in January 2000, the facilitator and planning team waited approximately two-and-a-half years before implementing them, in May 2002. The "final draft groundrules" were discussed at the April 2002 meeting. We came to the May 2002 meeting prepared to further discuss them and make changes to them. We were then told by the facilitator, Robert Wheeler, that they had been adopted at the previous meeting. No one in our caucus remembered that's happening and Robert Wheeler admitted that there had not been a formal vote on them but that he had had the "feeling" that there had been consensus on adopting them.--- He put that in the summary and, thereafter, treated them as having been adopted. At the next meeting, we questioned whether the new draft groundrules had been adopted. --- To our surprise, the facilitator and several of the representatives of the initiating governments, now said that they had been adopted not two months earlier, but roughly two-and-a-half years before, in January 2000. I requested that we continue the discussion at the next meeting, so that I could check the old summaries and verify that those older groundrules were the same as their current ones. It was mentioned in the summary from that meeting that I would be allowed to do so, but under the assumption that I accepted the new groundrules. However, that condition was not mentioned, at the time, so obviously I never consented to it. Considering that the new groundrules remove the caucuses' veto-power and disenfranchise the public, it is unlikely that the caucuses would ever have voted to pass them. I conclude that if they were passed, it was done by deceit, but most likely, it was never done at all, but was written into the summaries. In conclusion, we believe that the groundrules were never accepted. But, we do not consent to them, even if they were adopted.
9) The new ground rules prevent us from introducing new scientific studies. We also object to this. This has become an issue because their studies have now been unmasked as junk science and no alternative can be presented. 10) The groundrules would impose a gag order on the planning team members, preventing them from going to the press. This violates their freedom of speech and can not, therefore, be required of team members as a condition for their participation in the 2514 process. As this clause of the groundrules is clearly illegal, and they have no severalty clause, the entire ground rules are null and void, even if they were passed.
Robert Crittenden Alternate Representative Unaffiliated Caucus 360 582-9550
A Review of the Samish Sub-Basins Lower and Upper Skagit Watershed Plan
Reviewer: Dr. Robert N. Crittenden June 2002 Crittenden Biometrical P.O. Box 157, Carlsborg WA 98324. Prepared for the Unaffiliated Caucus of the Skagit River Planning Team; submitted to that planning team on June 26, 2002; revised June 30; and submitted to the Skagit County Commissioners July 1, 2002
Summary The instream flow assessment is a modeling study. As such, it must meet all six of the criteria set out in the Washington Administrative Code to qualify as best available science. These are:
For these reasons, the study is not best available science nor valid science. In addition, some of its problems can not be fixed except by redoing the study in a different way. Examples are 2b and 5a,b, and d. It should not be used as a basis for decision making by the Skagit Watershed Planning Team. Introduction This is an independent peer review of the Instream Flow Assessment --- Samish Sub-Basins Lower and Upper Skagit Watershed Plan, prepared by Duke Engineering for the Skagit Council of Governments, in March 2002. It examines their report from two perspectives:
Their study was intended to provide part of the body of scientific information upon which the Skagit Watershed Planning Team will base their negotiations to establish minimum instream flows for the Samish River Basin. The importance of their report's being " best available science" is that the memoranda of agreement which created and authorized the Planning Team under HB2514 require that they make decisions based on "best available science." Specifically, section V(E) of the memorandum of agreement among the initiating governments entitled, "Memorandum of Agreement Regarding Tribal Participation in Washington State Water Resources and Watershed Management Programs, specifies the following: E. Methodologies Used/Data Collection: All methodologies used and data collection shall meet sound, scientific standards, be supported by independent review, and provide an acceptable level of certainty. The parties agree that the methodologies and data collection shall:
These memoranda and House Bill 2514, establish the boundaries within which the planning process must remain. That Act further states that, the individuals who occupy the seats at the negotiating table and the entities they represent are protected from being sued over the outcome of the process. But, by implication, should the planning team fail to remain within the process's established boundaries, for example were they to base their decisions on studies which are not best available science, they might thus acquire liability for whatever negotiated outcomes they might reach. In addition, the minimum instream flows and the watershed plan, which will come later, will create obligations for the cities and counties to implement those policies. But , as they regulate critical areas, according to the sections of the Growth Management Act, in the RCW, which deal with critical areas, the counties must base their ordinances which deal with those areas upon best available science. Thus, should the planning team base their decisions on studies which are not best available science, they could potentially create obligations for the cities and counties which they could not implement without violating the Growth Management Act. For these reasons, it is important to determine whether the Instream Flow Assessment reviewed here satisfies the criteria for best available science. In the process of examining whether it meets those criteria, the question of whether it is valid science is also systematically examined.
Criteria for Best Available Science: Section 365-195-905 of the WAC defines "best available science" as follows: The characteristics generally to be expected in a valid scientific process are as follows:
References. The assumptions, analytical techniques, and conclusions are well referenced with citations to relevant, credible literature and other pertinent existing information. . . Information derived from one of the following sources may be considered scientific information if the source possesses the characteristics in Table 1. A county or city may consider information to be scientifically valid if the source possesses the characteristics listed in (a) of this subsection. The information found in Table 1 provides a general indication of the characteristics of a valid scientific process typically associated with common sources of scientific information. Table 1 |
||||||||||
Source |
Peer Review |
Methods |
Logical conclusions and reasonable inferences |
Quantitative Analysis |
Context |
References |
||||
Research |
X |
X |
X |
X |
X |
X |
||||
Monitoring |
|
X |
X |
Y |
X |
X |
||||
Inventory |
|
X |
X |
Y |
X |
X |
||||
Survey |
|
X |
X |
Y |
X |
X |
||||
Modeling |
X |
X |
X |
X |
X |
X |
||||
Assessment |
|
X |
X |
|
X |
X |
||||
Synthesis |
X |
X |
X |
|
X |
X |
||||
Expert Opinion |
|
|
X |
|
X |
X |
||||
X = characteristic must be present for information derived to be considered scientifically valid and reliable Y = presence of characteristic strengthens scientific validity and reliability of information derived, but is not essential to ensure scientific validity and reliability <The WAC also provides the following clarification of the various types of sources:>
The Study is "Modeling": To apply these criteria, it is necessary to determine which type of study the Instream Flow Assessment may be. Its authors named it an "assessment," but that is only one aspect of it. They say on their page 1-2, regarding the IFIM study which is the topic of their chapter one, that: "The objective of the IFIM study is to model the relationship between surface water discharge and physical habitat for salmonids in the Samish River, Friday Creek and Silver Creek. " Chapter one constitutes the bulk of their study, and that chapter is, indeed, modeling as the authors state. Their small stream study, which is their chapter two, involves collecting data from the small streams and applying Swift's toe width method to estimate their discharge. This estimation involves the application of a model. Thus, chapter two also involves modeling. The objective of their wetland study, which is their chapter three, is as they state on their page 3-1, "to address the relationship between water availability (wetland discharge) and rearing habitat for Coho and Chinook salmon and steelhead trout juveniles in run-of-the-river wetlands within the Samish Basin." That is, they developed a model. Thus, if the overall study is to be put in a single category, it is relatively clear that it should be regarded as "modeling." It follows that the study must meet all the criteria listed in Table 1, if it is to be regarded as "best available science."
Peer Review: The facilitating company for the planning team, Triangle Associates, listed Dr. Hal Beecher, of the Washington Department of Fish and Wildlife (WDFW), as having provided peer review of the instream flow study. He has a PhD and is professionally involved with instream flow for the department, so he bears the appearance of being qualified to be regarded as an "expert." However, throughout the study, the authors specifically mentioned having consulted him about the study's design and even of his having "approved" parts of it. In particular, you will find him mentioned as approving the sampling design, on pages 1-13, as approving adjustments to data on page 1-17, as approving methods on page 2-4, and as approving the models used on page 1-29. Thus, he was clearly not "independent," but seems to have filled a role not unlike that of the study's " senior scientist" , providing oversight. The legal requirement for independent review, comes from the phrase "other persons" in the first sentence of the definition of "peer review" given in the WAC, and quoted above. It is also the convention in scientific review. The authors of the study are to be commended for the care they took to consult experts in designing and conducting their research. But, those same experts can not, then, provide peer review, as they would be reviewing a study which was, in part, guided by their own recommendations. You will find his review in Appendix 1-K, together with several other communications and the authors' responses to them. The other reviewer listed by Triangle Associates in their email was a water specialist working for the County. His review and the responses to it are not in Appendix 1-K, nor have I obtained copies of them. So, I can not say what criticisms he may have made and whether the authors adequately responded to them. In his case, I can not say whether he is an expert on the relevant topics: In particular, he does not use the title "Dr." so he evidently does not have a PhD. But, he may have a master's degree. If that is the case, he probably has only limited experience with scientific publication; and If he has only a bachelor's degree, he probably does not have any. His job experience evidently involves water and may, therefore be relevant. Whatever other qualifications he may have are unknown to me. --- I leave it as an open question, which needs to be answered, as to whether he qualifies as an "expert" for the purposes of providing peer review, and if so, on what topics. Another key question is whether he was involved, in any way, in the study, its design, or its authorization. With regard to this review, my claim to be an "expert" is as follows: I have a masters degree in marine biology from the University of the Pacific, specializing in theoretical ecology and modeling, a Ph.D. in Fisheries From the University of Washington, specializing in various topics including statistics and fisheries statistics; I did a Postdoctoral fellowship at Simon Frazer University on salmon population dynamics; I am clearly a member of the scientific community as I am a member of the scientific society, Sigma Xi, to which admission to membership is based on the excellence of published research, done after the Ph.D.; I have published scientific papers in respected, refereed, international scientific journals on various topics including, but not limited to, salmon population dynamics, statistical estimators used in salmon and fisheries management, modeling, open channel hydraulics, and the microclimatology of small streams; I have also written numerous technical reports; and my first professional job, almost 30 years ago, now, involved the use of a predecessor to the IFIM to assess salmonid habitat in a small stream and the modeling of that stream's physical environment. --- Thus, in my opinion, I meet the criteria to be considered an "expert" in most of the topics covered by the instream flow assessment study. I am "independent" as I had no involvement in the study being reviewed. I was not even aware of its existence prior to its being presented at the June, 2002, meeting of the Planning Team. Thus, this critical review meets the criteria to be regarded as "peer review." Considering the three reviews which have been done, it is not clear, that the instream flow study has met the requirement for peer review, as Dr. Beecher was not independent of the study; the second reviewer may or may not qualify as an expert and it is, at present, unknown what his criticisms were and whether the authors adequately responded to them; and although this review is an independent peer review, the authors have not yet had the opportunity to respond to it. The substantive issue, is that irrespective of the whether the first two reviewers qualify as independent experts or not, they failed to criticize several flaws, which invalidate the study if they are not corrected.
Methods: Some of the study's most serious flaws are found in their methods. The aufthors are engineers and they appear to have followed the conventional engineering approach of using standardized methods. This is specifically allowed by the WAC to satisfy the methods criterion. But, herein, lies a weakness in the rule, as it fails to recognize a difference between the disciplines of engineering and the biological and environmental sciences. Engineers are trained to use standard methods. This is not unreasonable in the highly determinate world of the physical sciences. There, the underlying relationships are often known very exactly and the data and estimates are characteristically quite precise, often with confidence intervals of no more than 5 or 10%. In contrast, in biology, the underlying relationships are often unknown, the random error component large, and data and estimates with confidence intervals of plus or minus 30% may be regarded as being "good." This helps to explain the difference in training and orientation between engineers and biological scientists. The former characteristically use standard methods and have a determinate viewpoint, while the latter may have considerable training in statistics and tailor-make methods of specific applications to better address the unknown in a highly stochastic realm. The problem is that the State has specifically allowed both the engineering and scientific approaches without providing any guideline as to where each is appropriate, or even a clue that such a difference exists. In addition, the engineering approach has been widely used among municipal and county governments almost to the exclusion of the alternative. When it comes to local governments' traditional concerns of providing roads, water, sewers, and other services, the engineering approaches is appropriate. But, times have changed. Now counties and cities are required to develop critical areas ordinances, instream flow rules, riparian policies and manage natural resources. That is the other extreme where the stochastic element becomes significant if not dominant. Understand that I am not criticizing the authors. They are engineers, they have meticulously applied the engineering approach of using standard methods, an approach specifically allowed by the WAC, and supported by the "experts" they consulted. They have done a good and workman-like job, within the standards of their field. Unfortunately, far too many biologists went into biology because they have poor math skills. This aggravates the problem because they develop, apply, and misapply methods, without much understanding. As a result, some of their methods err, yet some of them have nevertheless been accepted by natural resource agencies as their "standard methods." Then, agency biologists recommend them to engineers, who expect standardized methods and unsuspectingly apply them. --- The instream flow study has run afoul of this problem. The instream flow study addresses some physical issues, such as the rating curve for the flow gauge on the river. In these applications, data and relationships are characteristically relatively accurate. Velocity-discharge relationships are generally not as good, but still remain relatively precise for larger rivers. The log-log regression which the authors used is an appropriate method to estimate it. --- When a river can be modeled as a sheet of water flowing over an infinite plane, Mannings Roughness Formula can be derived from first principles and the velocity-discharge relationship follows a -5/3 power law. That can be fit using a log-log regression. But, traditionally a negative squareroot relationship is used instead. That works relatively well, too. However, when one considers smaller streams, the shear stresses from the banks or from individual boulders or debris begin to dominate the hydraulics. Then, fitting these curves becomes more problematic. The hydrodynamics of small streams is a difficult topic and it becomes important to estimate the accuracy of the estimates because they may be relatively imprecise. Likewise, the habitat preferences of the fish tend to have low accuracy. --- One has now moved into the stochastic realm where it becomes necessary to obtain some measure of precision. The imprecision in the individual components tend to propagate into the rest of the model, affecting the precision of its final predictions. They can also cause biases. This occur whenever an imprecise estimate is used in a nonlinear equation. The worst case is when the confidence intervals for some estimate cross a discontinuity in the model's response surface, causing, for example, a division by zero, then, the confidence intervals for the final predictions from the model will characteristically include either plus or minus infinity and the bias in the predictions may also be large. In addition, some sophisticated statistical problems can also arise, such as the error-in-covariates problem. But, that is far beyond the level of sophistication in the study. The authors have failed to evaluate the propagated errors. This casts the results of the study into doubt. Another problem is that some of the standard methods they used are flawed and as they are not experts on statistics, they did not detect the flaws nor tailor-make methods to overcome them. In particular, throughout the study, the authors used representative sampling instead of random sampling. You will find this mentioned on pages 1-13 to 1-17, 1-25, 2-2, and possibly elsewhere as well. If one randomly samples some set of things and, then, develops an empirical relationship or parameter estimates from those data, they can be applied to any individual thing drawn from within that set. But, if representative samples are taken instead, then the relationship or estimates can only be applied to those specific things sampled. For example, Swift's toe width method, which is one of the central methods used in their small streams study (their chapter two), was originally developed using a representative sample of streams from the Puget Sound Region. He, also, used representative sampling of the reaches he examined within each of the selected streams. He, then, used stepwise regression to develop several empirical relationships. Those relationships are only applicable to the specific reaches within the specific streams he sampled, not as the authors incorrectly state, to all streams in the Puget Sound Region. Furthermore, Swift neglected to discount his alpha-level for multiple comparisons. --- For each relationship he developed, he discussed having done at least nineteen comparisons, that is individual statistical tests, searching for one significant relationship. He may have done more tests than that, but those were all he mentioned. He appears to have done all of these tests at a 95% confidence level. That is an alpha-level of 0.05. The meaning of this criteria, is that if he had done twenty tests, at that level, he would have expected one of them to be significant, simply by chance alone. That one-out-of-twenty would be a spurious relationship, which passed the test but, infact, resulted from no underlying relationship, only random variation. He did at least nineteen tests at that level and found one which passed the test. That is approximately what would be expected by chance alone. To overcome this statistical problem, it is conventional to decrease the alpha-level for the individual tests, that is to use a higher standard in the individual tests, so that the entire procedure, overall, has a combined alpha-level of 0.05. --- In particular, if you did twenty tests, you would decrease the alpha-level for each individual test, to 0.05/20 =0.0025: That is, you would do each individual test, of the twenty tests, at a 99.75% confidence level. Then, the final result would have a significance level of 95%. That was what Swift should have done, but did not do. --- Looking at the results and data which he presented, it appears that his final relationships are not statistically significant at the 95% confidence level, because they do not pass the higher standard for the individual tests. In addition, he did not present all of his data. Consequently, his stastical procedure can not be repeated using the proper alpha-levels. --- As his computations can not be checked, this, also, fails the standard of repeatability. Thus, Swift's toe-width method is an example of a flawed standard method. --- It used an inappropriate sampling method, an invalid methodology for developing a relationship, and his final results appear not to be significant. --- The authors' small streams study, their chapter two, is a application of this flawed method. Therefore, their study is not scientifically valid. That, in turn, invalidates the overall study, as it is an integral component of it. Just as in Swift's method, much of the field data in the instream flow study were representative samples instead of random samples. The parameter estimates and relationships obtained from these field data can not, therefore, be validly applied to the streams and rivers overall, only to those specific reaches selected. But, they nevertheless, applied them to the rivers overall to obtain their overall estimates. Consequently, they are not scientifically valid. A second problem is that, as the samples were representative rather than random, they do not contain the random error component in nature. Therefore, they can not be used to estimate the size of that error component. The result is that variances, standard errors, confidence limits, and other measures of dispersion can not be estimated with respect to the natural system, nor the river as a whole, nor can statistical tests be conducted on their results. Furthermore, representative sampling, by definition incorporates the researcher's perception of what constitutes a "representative" sample, instead of determining what is representative by observing nature. This opens the door to the researcher's either consciously or subconsciously biasing data, and through it, their results. ---- This is not science! It is difficult to see how to overcome these problems, as they arise from their field data having been taken improperly. Here I must admit that their descriptions of their sampling methods were not clear enough to make it absolutely certain what precisely they did. It is possible that they may have sampled at regular intervals, with a random starting point, or some other similar design. --- Herein is another problem: their description of their methods is not sufficiently clear to repeat the experiment. That, fails the methods criterion of repeatability. A related problem is that their descriptions of their methods of computation are statistically naive enough that they sometimes raise doubts as to whether they really did what they said they did. One example is their use of "mean error", instead of "root mean square error" or "standard error." Did they actually compute the mean error? --- Although there are some circumstances where that might be appropriate, it is unlikely that that is what they did, as they were discussing regression models and one of the constraints on regression models is that the errors sum to zero. Thus, the mean error is always zero. One can guess at what they did, as they evidently did not do what they said they did. But, it should not be necessary for the reader to guess at what methods they employed, the authors are supposed to explicitly describe them. Furthermore, if they made this mistake, and have this level of naievity in statistics, how can one assume that they used the other conventional methods for computing the various other statistically methods they employed? Their technique for adjusting data to improve the fit of their curves is alarming. You will find it described on pages 1-24 and 1-25 for their flow data and on page 1-17 for habitat data. While I understand that the exclusion of outliers is appropriate under certain circumstances, that methodology needs to be applied sparingly under strict criteria. Also, I understand that some of their flow data needed to be corrected to account for the mechanical performance of a pigmy flow meter. However, that should have been done systematically, not just on points which were identified as outliers. Had they not reported their adjusting their data to improve the fit, it would be fraud. But, as it is, it is just poor "science." On the whole, their methods could use a thorough scrutiny. But, these few comments are adequate to reveal enough serious problems with their methods to cast the results of the study into doubt.
Logical Conclusions and Reasonable Inferences: In light of their methodological problems, it is premature for them to draw any conclusions or inferences. This criterion is where unsupported assumptions and logical gaps should be listed. There are some. One is their assumption, which pervades the effort that, fish abundance is related to the availability of habitat. Not only is it not demonstrated that at the present levels of flow, habitat, and fish that there is any such link, but, speaking in general, Robert Lohn, the Northwest Director of National Marine Fisheries, pointed out that, "most credible scientists, today, believe that the salmon crisis was caused by ocean conditions, not habitat." If that is true, and there are strong reasons to believe that it may be, then there may not be a causal link between instream flow and salmonid abundance at the present levels of flow, habitat and abundance. Yet that assumption pervades the effort and the authors have failed to support their position. Another gap in the study is that it makes no assumptions about the population dynamics of the salmonid stocks modeled. In the original IFIM report, its author, Dr. Bovee, discusses this. But, it would be difficult to do likewise here as the population dynamics of salmonids are generally unknown. --- The life history patterns of the individual stocks of the various salmonid species have the potential to differ widely and each different life history may have different controlling processes and bottlenecks. --- Still, some general conclusions might have been drawn, such as there being fewer of the older life history stages and probably, also, some estimates may be available on roughly what the optimum spawning escapement might be. The authors need to recognize these gaps and either fill them or explain why it is not possible to do so. Quantitative Analysis: I have already mentioned the need for the analysis of the propagation of errors. I will, dwell longer on the general absence of measures of dispersion: that is variances, standard errors, or confidence limits. Estimates alone, without these measures of dispersion, tell you nothing unless you can assume that the are relatively accurate. In contrast, when they are not accurate, you must know both the estimate and how much faith to place in it. Let me clarify this with an example.... Suppose you went to WDFW and asked them how many Chinook adults returned to the Samish River this year, and they told you, "1103." You know that they did not mean exactly 1103, but that that it was an estimate. You might suppose that the confidence interval was roughly plus or minus 10%, that is roughly between 1000 and 1200 fish. But, that was what you assumed, not what you were told. The confidence interval could have been between 0 and 100,000 fish, which would be equivalent to the statement that, "We have only the vaguest idea how many there may have been." So, what did their 1103 mean --- The bottom line is that, if you are given an estimate but no measure of its precision, you have been told nothing. WDFW pulls this trick all the time. It is something more people should be aware of. This is also one of the problems with the Instream Flow Study. They have not computed variances or confidence limits. Indeed, they can't because of the problems with their sampling method. Yet, we have every reason to believe that their estimates and predictions are not highly precise. So, in the final analysis, their study has told us nothing. These measures of dispersion are the basis of statistical testing, so an equivalent statement is that without measures of dispersion, the final estimates and relationships provided by the study have not been demonstrated to be significant. The standard errors found on pages 2-24 apparently were computed using Swift's toe width relationship. Those are the standard errors to his model, when it was computed using the estimated parameters for the small streams in the instream flow study. The error component represents the contribution from Swift's data set, when he originally fitted the model, it does not incorporate the random error component arising from the estimation of the parameters fitted in the instream flow study. That is to say, the standard errors presented on page 24 are out of context. Context: The problem with using representative samples instead of random samples is a context problem when the estimates and relationships developed based on those data are applied out of context. That occurred when they were applied to the entire stream or river instead of just to the sites sampled. As already mentioned, above, the toe width method is out of context for the same general reason. The extrapolation of an empirical relationship beyond that data upon which it is based, is risky as there is no evidence that that relationship continues to be valid in the region of the extrapolation. Yet, you will find on page 1-26 that the authors state that, "The goal of the modeling effort is to be able to model predicted habitat at flows from 40 percent of the low flow calibration measurement and 2.5 times the high flow calibration measurement..." The IFIM is, also, out of its proper context. In fact, Dr. Bovee, the author of the IFIM said, with regard to its use in Washington State, that it is being employed for purposes for which it was never intended. .... This is clear from his description of the philosophical basis of the method on page 2 of his 1982 report. Specifically, he says: The first and probably most important principle is that implementation of an instream flow regime is inseparable from water management. Therefore the IFIM should be thought of as a water management tool. It is not intended to be an ecosystem model. But, the IFIM appears to be being used in the study more as an ecosystem model than as a tool. He went on to say, The second principle is that the method is not intended to generate a single solution, but to predict the impacts of different alternatives. .... Therefore the user must embrace the philosophy of incrementalism and iterative problem solving before the methodology can be used to its full advantage. It most certainly is not being used for incrementalism, that is to predict the impacts of each of many small progressive changes. It is being used to provide the basis for long-term planning. Bovee recognized the importance of the impact which the hydraulic response of the watershed and land use policies have on the bedload of the stream or river. This must be expected to change its cross-section and, therefore, change the relationship between discharge and salmonid habitat, which is what the IFIM predicts. But, the IFIM has no means for predicting these changes. Therefore, it can only be validly applied to the prediction of incremental changes are each small enough not to significantly alter the pattern of deposition and erosion. Allocating the minimum instream flow is a long-term planning issue, creating a regime which may exist for half of a century or longer. Over that time period, it is anticipated that there will be significant development in the drainage basin. For example, one of the principle impacts of development is on the hydraulic response of the watershed. That is why stormwater planning is done. That is important because through changes in the hydraulic response of the watershed, development can have a strong impact on the pattern of erosion and deposition in its streams and rivers. Another change which should be anticipated are policies causing or influencing large woody debris (LWD's). These also affect bedload movement and the cross sections of streams and rivers. For example, they not only cause pools, but they cause logjams diverting the river and they tend to plug up side channels, leading to a single-channel configuration. A single channel will be wider, deeper, faster, and consequently will have a wider meander belt. Thus, an increase in LWD's will often result in the river's leaving its original river bed and cutting a new channel, with all its destructive consequences. But, what is relevant here, is that that it will alter the river's cross-section and change the relationship between discharge and habitat. If buffers prohibit or limit the management of woody growth, they can provide a source of LWD's and lead to the above consequences. As we may expect all of these changes to occur over the long-term, clearly any discharge-habitat relationship developed, now, or at one point in time, will not be valid over the long term. IFIM, therefore, can not provide a basis for long-term planning. And setting the minimum instream flow is a long-term planning issue. Dr. Bovee also stated a third principle for the IFIM..... The third principle is that the objectives of any application must be rigidly defined. It is quite possible for two different identical applications of the methodology to result in vastly different solutions, due solely to the objectives of the analysts. For example, two groups may have as their objective, "the design of a flow regime to maintain a fishery at a minimally acceptable level." To one group this really means. "To maximize fish habitat within the constraints of the available water supply." To the other group, the same objective means," To maximize out-of-channel water use without eliminating the fishery." His last principle says that we should guard against assuming that the study mandates one particular outcome. References: The study does a marginal job of citing the research. One weakness is their citing "experts", by name and address, who provided "expert opinion." The opinions they provided are supposed to meet the standards of best available science for "expert opinion." But, they don't meet that standard because their opinions do not include references to the science upon which they are based. Thus, they never connect to any science, they remain only opinion. Another weakness is the government reports they cite. The problem is that government agencies usually do in-house review instead of independent peer review. The quality of their in-house review process varies substantially among the various government agencies. In the best case, the publications of a few agencies are indistinguishable in their quality from scientific publications. In the worst case, they are unacceptable. State natural resources departments are the principle offenders but you will also find this among some Federal agencies. One of their problems is that, with the exception of a small percentage of their "scientific" staff, their employees may have quantitative skills at no more than a high school or freshman college level. --- I once met an individual who could not do junior high school level mathematics, but who had risen through the ranks of one of our Federal natural resources agencies to the level of scientist. --- The level of competence within the agencies shows in the quality of their publications. The rigor of their in-house review process also varies. In some agencies, "review" means no more than getting the person in the next office to read it over. And when the agency is promoting some political program or agenda, that may bias their publications. The bottom line is that publication by a government agency is not necessarily equivalent to scientific publication. Government publications need to be critically reviewed before they can be accepted as science. But, that is not to suggest that scientific publications or academia are above question. In fact, one of the things which began the issue of best available science was that many of the traditional scientific sources could no longer be trusted. Today, it is "buyer beware" for all science, but agency reports more than traditional scientific journals, and some agencies more than others. One of the problems with the references in the Instream Flow Assessment, is that its authors seem to have uncritically accepted government reports as scientific publications. The unfortunate result was that they based their work on some flawed studies.
Conclusion The study appears to not be best available science nor scientifically valid. Its problems probably can not be corrected within the few months remaining for the planning team to set instream flows. That is, if they can be overcome at all, which seems unlikely considering the sampling problems, the problems with the toe-width method, and the context problems with both the IFIM and the toe-width method. Therefore, the Planning Team should not use the instream flow assessment as a basis for decision making.
Dr. Robert N. Crittenden Alternate Representative Unaffiliated Caucus
Addendum to the Critical Review This addendum summarizes the statements Dr. Hal Beecher made during the July 2002 meeting of the Planning Team, which are relevant to my review of the instream flow study. As you may recall, he was the scientist from the Washington Department of Fish and Wildlife who had overseen that study.
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15One difference between Science and Best Available Science, is that BAS allows a government employee, based on his or her position and experience, or a person with only a master's degree or professional license to pose as a "scientist," whereas full membership as a peer of the scientific community traditionally requires a Ph.D. and selection to be a referee for a scientific journal is based on the individual's publication record. ---In contrast, the definition of a "scientist" in BAS probably reflects the definition of an "expert witness," as defined in the Rules of Evidence, ER 702. That is not necessarily inappropriate, as the context of Best Available Science is often the legal one, when laws and ordinances are challenged in court, instead of the scientific context.
16Laws, rules and ordinances are not required to be error-free, they only have to achieve an acceptable error-rate, so that they do not err too often.
17Noss, R.F. and A, Y. Cooperrider 1994. Saving Nature's Legacy: Protecting and Restoring Biodiversity. Island Press, Washington D.C. 416 pages.
18Noss, R.F., M.A. O'Connell and D.D. Murphy, 1997. The Science of Conservation Planning: Habitat Conservation under the Endangered Species Act. Island Press, Washington D.C.
19May, Chris and Kitsap County, 2000. Kitsap Peninsula Salmonid Refugia Study. available online at Kitsap County's website. The review of it, which resulted in its being rejected, is available at the Kitsap Alliance of Property Owners' Website. There is also a recent update of the Refugia Study and a corresponding review of it.