This is a 2x2 detail from a print I'm donating to the Tualatin River Keepers for the auction at their annual Green Heron Gala, April 14th. All framed out the print is 11x11 (image area 6x6). Hope to see you there! Bring $$$!
03/14/2012
03/08/2012
OSB 1582 - 30 Yes / 0 No
This is a better written bill than it was when it went into the Natural Resources Committee February 14th. Maybe that's one reason why it won such overwhelming approval on its final round. The fact that 16 Democrats and 14 Republicans could all agree about any piece of legislation, much less one with potential environmental/economic overtones might leave you thinking that anyone who might wish to continue fretting about this law is either crazy or an idiot – or possibly even both.
OK, call me crazy. Based upon my current understanding of the cut/fill process where “waters of the state” are concerned, this bill as enacted further tips the table towards the pockets of private enterprise at the expense of the Public Trust. It does this by giving permit applicants access to an additional and relatively low-cost appeal process when the DSL rules against their permits. I think this part of the bill, in and of itself, is strong. But what seems to smack of inequity here is the fact that access to this remedy is unavailable to individuals and/or organizations who may wish to contend against issuance of any of those permits.
Given my current understanding of the intricacies of the permitting process at every level of government it is quite possible that I simply haven’t fully grasped how these may bear on the Public Trust/Private Interest equity issue I see lurking in OSB1582. Certainly any sane person would look at the complete unanimity of the vote and quit the field. How could 30 Senators all be wrong, and at exactly the same time?
As I said, just call me crazy. As a survivor of the debacle that ensued from the Golf of Tonkin Resolution, I’m never surprised (and never comfortable) when an overwhelming majority of politicians from either side of the aisle suddenly meet in the middle and agree in principle on something that later on turns out to have been an obviously bad idea. I don’t mean to implying that these 30 senators are ALL clueless or that they’ve sold out the wetlands or were just too pressed for time to read the bill or anything like that. I’m just saying that I’m (1) inherently suspicious, (2) admittedly ignorant, and (3) therefore still very uncomfortable with what is, for all intents and purposes a done deal.
As soon as time permits I am going to get my head more completely around the permitting process. I believe I have an excellent grasp of the non-political issues, and a fair comprehension of the basic regulatory processes; but I am still a novice where the intricacies of watershed governance and related processes are concerned. Maybe when I’ve become more well-informed I will be able to make that vote 31/0.
03/05/2012
Pine Ladybird Beetle (Mulsantina Picta)
I took a break from editing the book on Sunday. It was far too glorious a day to grind away in the downstairs office. In order to keep from feeling too guilty I spent a few hours beating back the holly that has taken over the back bank of the Koi Pond. At one point I sat down for a snack and this little darling flew by. It was slightly smaller than a grain of barley and while my macro is very, very nice, it is a monster to focus with, at least on my D3100. Someday maybe I will be able to afford a better camera. At any rate, I'd never seen one of these before, but they are supposed to be common throughout the United States. Hope you run into one yourself, but make sure you have a magnifier handy or you might miss some of the more subtle details.
02/17/2012
OSB 1582 - I Still Have Questions
How much of this was delineated as a wetlands? Apparently not enough to keep it from becoming the future site of a 400' bridge.
This last Tuesday (2/14/2012) I gave testimony before the Senate Committee on Environment and Natural Resources. I spoke against the passage of OSB 1582. The bill had been re-amended in a manner that eliminated many of the main points I addressed in my rant of a couple days ago. It still represents a threat to wetlands and waterways but now it is just a less direct.
MEMORANDUM
To: Chair/Senate Environment and Natural Resources Committee and members of the committee
From: Eric L. Lindstrom, EdD
Date: 2/14/2012
Re: OSB 1582 / Arguments Against
OSB 1582 will lead to further degradation of the waters of the state by reducing the scope, authority and resources (both human and fiscal) of The Department of State Lands (DSL).
OSB 1582 requires the DSL to enter into arbitration without option if and whenever a person so requests. In this manner any “final” decision by the director is inherently anything but final.
By specifying that the Corps of Engineers 1987 manual (etc.) will be the maximum standard for Oregon’s approach to watershed delineation procedures, OSB 1582 binds the state to a minimum standard for the rest of the country.
Given the ever-changing nature and inherent volatility of contemporary wetlands, particularly those in urban areas, any wetland delineation, no matter how expertly accomplished, should automatically expire in three years, not ten.
The fiscal and administrative burden that passage of this bill could place upon an already heavily obligated agency could be ruinous, particularly since (1) the DSL is required to participate and (2) the mediators themselves will be allowed to determine the cost of mediation. All this is to say nothing of the foreseeable negative impact on morale.
Finally, OSB 1582 specifically and exclusively favors only the applicant. Neither the DSL (the State) nor the citizens of the state can possibly benefit from this process. Indeed, the citizenry is inherently excluded from it.
The EPA calculates[1] that there are 114,823 miles of rivers and streams in Oregon. To date only 46,035 of those river and stream miles have been assessed. Of the assessed miles, 31,060 are either environmentally threatened and/or impaired. Closely associated with those impaired river and stream miles, and generally impaired themselves, are thousands of acres of wetlands too small to attract surveys but too large not to have significant impact upon the waters to which they ultimately commute. The negative impact of OSB 1582 on these already at-risk waters is potentially staggering.
Fanno Creek, the urban stream that I have studied for the last five years could be the poster-child for all the other streams and rivers in the EPA’s list of impaired miles of waterways in the state. In the late 1960s the stream was so badly polluted that locals called it Drano Creek. If the wind was right you could smell it before you could see it. One of the major factors contributing to its near demise was the unbridled cut and/or fill practices of the pre-Environmental Enlightenment era. Even with today’s regulatory practices significant chunks of the Fanno Creek watershed continue to be harmed or vanish completely on a far too regular basis. SBO 1582 will only serve to insure that Fanno Creek and the other 31,045 miles of Oregon streams in similar trouble will be less protected tomorrow than they are today.
[1] http://iaspub.epa.gov/waters10/attains_state.control?p_state=OR#STREAM/CREEK/RIVER
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After I delivered my remarks Senator Hass asked me why I was studying Fanno Creek. Hadn’t its condition improved considerably? The creek is in his district so the the question was obvious and natural and I should have been prepared for it. I wasn’t, however and as a result I fumbled with my response. Too bad, because it was a perfect chance to get right down to the heart of the creek’s issues and I’m afraid I didn’t, at least not as clearly and effectively as I might have.
Several other people testified against the bill including Sue Marshall. She delivered her remarks in a clear and seemingly effortless manner, I was envious and am sure her testimony was the most well crafted, reasoned and potentially effective of the lot. She was questioned pretty hard by Senator Olsen who, from his remarks seems to see protection of wetlands on private property as a kind of “takings.” She fought him off quite well, I’m happy to say. But in the end the combined testimony against it wasn’t enough to sink the bill, at least to the extent that it would die in committee. Instead it was forwarded to “ways and means without recommendation.” Exactly what that means in legislative-speak I am not sure, but I suspect the bill will ultimately make its way to the floor of the senate for a vote. If there is another chance to attack it I will give it a go; but given that the arguments put forth in committee did not prevail this time ‘round I’m not convinced they would have a better chance in the full senate.
I think a major selling point for the bill was the idea that the decision as to whether a wetlands actually exists on a piece of private property can now be decided by a group of science minded people rather than by a judge. I can see some real positive attributes to that aspect of the bill and if access to the remedy it provides to private parties was also there for the public I could actually support most of it. But the latest revisions are still focused on applicants for wetlands cut and fill permits to an extent that potential opponents would left out in the cold. Or at least that’s my understanding to this point.
Interestingly enough the DSL supports this bill. They don't believe that it will add much if anything tot the cost of doing business because they don't anticipate that the option will be used all that much. I think. If I understood the testimony of the department's spokesperson, that belief is based upon the fact that rarely do applicants seek remedies to DSL determinations using the current process, e.g., bringing suit. But this additional option (exclusively available to the applicant for a permit) would be considerably less expensive than bringing a law suit and yet its outcome would be every bit as binding. I would not be surprised to see the option used quite frequently.
Perhaps more than anything else this experience helped me recognize that I am at a tipping point with regard to the nature and scope of my involvement with wetlands issues. In the days leading up to the committee meeting I sunk considerable time and energy into working on my knowledge of the various OSBs, RSOs and other regulatory aspects involved in the case. Even so I felt almost completely unprepared for the exercise. If I am to function effectively, much less comfortably in such environments I will need to deepen my understanding and refine my insights considerably. That means time spent away from the creek and out of the watershed. Furthermore I am not certain that I could ever be very effective working in the political frame, even on an occasional basis.
On Monday I start work on what I hope will be the last pre-publication edit of my book. I won’t be blogging again, or doing much else for that matter, until I’m finished. When I finally get UP FANNO CREEK off my laptop and out into the world, I plan to take a trip over to the Eastside and spend a few days "witnessing.” I need to clear my head somehow before I grapple with how best to go forward with my future work in support of Fanno Creek and places like it.
02/13/2012
Oregon Senate Bill 1582 - I Have Questions
whatCurrent land-use regs failed to protect nearly a quarter mile of urban wetlands. OSB1582 will lessen protections.
I’m headed to Salem Tuesday (2/14/2012) to ask some questions about a proposed piece of legislation, OSB 1582. I’m pretty excited about the prospect because (1) I’ve never attended a senate level legislative activity and (2) it is Oregon’s 153rd birthday. Oh, and it is Valentine’s day, but no biggie about that. Here’s a general summary of the bill as provided by the state:
Creates process by which applicant for permit to remove material from beds or banks of waters of this state, or for permit to fill waters of this state, may request arbitration of final order issued by Director of Department of State Land.
Changes certain processes related to wetlands delineation.
Declares emergency, effective on passage.
Here are some portions of the proposed bill’s language that pique my curiosity:
Section 2. (1) An applicant for a permit to remove…or fill any of the waters of this state, may request arbitration of a final order issued by the Director of State Lands…
Currently if an applicant for a cut/fill permit gets turned down s/he can appeal the decision through the DSL appellate process. If the appeal fails (“final order”) the applicant still has the right to seek other remedies, including submitting a new plan or taking the DSL to court. Neither of these are especially attractive alternatives, I’ll agree; but they are exactly the same alternatives that are available to anyone or any group that may have opposed the particular application in the first place. If I understand the bill at all (and I am pretty sure I do) it would establish a dispute-resolution option that is exclusively limited to the applicant. Why? Where’s the fairness in that? Doesn’t that effectively disenfranchise those who may be in opposition to the proposed cut/fill activity?
(2) Arbitration under this section must be conducted by a panel of three individuals…The arbitrators must be certified and in good standing with the Soil Science Society of America…
As Butch said to Sundance, “Who are these guys?” No offense intended towards the SSSA, but why doesn’t the bill specify a more water-oriented organization, the AIH (American Hydrological Society) for example, or maybe the SWS, the Society of Wetlands Scientists? If having the word “water” mentioned directly in the name of an organization isn’t important, then why is it that here in Oregon we have something called the Soil AND WATER Conservation District?
The arbitrators…shall be selected in the following manner:
(a) The department of State Lands shall select one…
(b) The applicant shall select one…
(c) The department and the applicant shall jointly select one…
Isn’t this a little like putting the coyote in the henhouse to make sure the fox doesn’t run off with the hens?
(5) The decision of the panel of arbitrators is limited to…affirming or setting aside…the director’s final order.
Why doesn’t the bill encourage the arbitrators to arbitrate instead of requiring them to judge? Why does this bill limit them to only one of two conceivable outcomes to the resolution of the dispute? Where’s the opportunity for these “certified” arbitrators to exercise their professional insights and/or wisdom? And a further question here: What constitutes a decision either way, 2/3 majority or consensus? What happens if there’s a split vote and the third arbitrator can’t decide?
Fees are discussed in (5)(a) through (6)(b). I spent some time trying to imagine how this kind of process might actually work, given all the unaddressed variables involved, until a much larger question thrust itself upon me: Why should taxpayers pay for even a portion of a process that essentially disenfranchises the public and further fetters an important state agency in the bargain? Doesn’t this suggest that the DSL bears some sort of culpability simply for upholding its mandate whenever it denies a permit?
Section 5: ORS196.674 is amended…
This existing law addresses Wetland Delineation. The proposed amendments begin with the following language:
(3) A system of delineating wetlands adopted by the Department of State Lands…must comport with:
(a)The United States Corps of Engineers Wetlands Delineation Manual of 1987; and (b) any subsequent federal supplements to the manual…provided that in no event may any rule (imposed by the State of Oregon) specify any guidelines or methods that exceeds those specified…by the United States Army Corps of Engineers.
Why do the provisions for the delineation of wetlands need to be amended as part of this proposed bill’s passage? Why adopt a maximum criteria for Oregon’s interests based upon a minimum criteria established at the federal level? Can’t we (and shouldn’t we) do better than that?
Section 5(5) further amends ORS 196.674 to provide a mechanism for removing land from the state’s inventory of wetlands if and when “…the vegetation, soil or hydrology of an area is sufficiently altered by recent human activities or natural events in such a manner that the vegetation, soil or hydrology indicates a wetland is not present…”
Right away I have to wonder what happened to this area in the first place. We haven’t been inventorying wetlands for much longer than we’ve been trying to protect them. What went wrong and why isn’t something being done to redress the situation?
The process for determining whether or not a wetland should be removed from the inventory looks somewhat like the arbitration idea discussed above. Making the call will require the services of another triumvirate:
- a botanist, one who is certified by a third-party that certifies experts in botany;
- a soil classifier certified by the Soils Science Society of America (Who are those guys?);
- an expert in soil water who is certified by a third party that certifies – wait for it – experts in soil water.
What is “an expert in soil water” called and who might certify one? (You guessed it, the SSSA.) And to pick a little more nit, how do the other life and geological specialties get addressed? You could end up with a panel rather than a trio, especially if you wanted to do a good job of the process. Why not just cut to the chase and get three individuals certified in wetlands science?
Section 5 is also worrisome because using the Corps standards would mean that a wetlands delineation would be good for ten rather than five years. The dynamics of watersheds these days is particularly volatile, especially in urban areas. We’d be better served with a shorter rather than longer life-span for these critical assessments.
Finally:
Section 10. This 2012 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist` and this 2012 Act takes effect on its passage.
What’s up with that? Is this just some piece of boilerplate that legislators put on the ends of their bills to attract attention or is there genuine crisis out there that passing this bill and its amendments might impact? Maybe I’ll know more about that after I've attended Tuesday’s session.
Getting ready for the meeting and preparing my comments has taken a lot more time than it took to write the analysis/commentary above. I think it’s ok for me to shoot from the hip in my blog, but commenting more formally within the context of state business certainly requires a great deal more maturity, discipline and brevity. I’ll post a PDF of my testimony later today, after I’ve had a chance to review it more fully. If you’d be interested in commenting on the bill I urge you to visit
HOLD THE PRESSES!
After working on both this blog and my testimony for much of the last four days, moments ago (3:00 PM 2/13) a copy of an amended version of the bill showed up on my laptop. Given that it had taken the better part of two days to plow through both the bill’s language and the various ORSs and other documents it references I now have to regroup – and in a considerable hurry at that. This new bill is a little less directly worded than the first version.
Stay Tuned!
01/24/2012
Raleighwood Revisited (1/19/2012)
Looking north through the heart of where Marlene's house used to stand.
I went by Marlene Azar’s old place today to see how the last 24 hours of heavy precipitation was moving its way through the watershed. The area is flooded, as is usually the case, and the two homes nearest the creek are just inches above the crest. The owner of the home closest to the creek (on Raleighwood Lane) was working on his garage door so I stopped by for a brief chat. He’s lived in the home for 11 years, which means he moved in just about the same time as Marlene began to have water issues on her property. The water level around his home was pretty high but the inside was dry and that’s what really counts. He noted that the basin where his home is located is silting up at what seems to be an even more rapid pace than previously. Beavers and THPRD’s unwillingness to rid the area of them were at the root of the problem, he told me. Then he suggested I take a look at the two dams that lie less than .1 mile south of his back yard. “They span the entire bottom of the floodplain,” he said. That surprised me. Last time I looked (which has been a year or so) there were three dams in the park but only one of them of any size.
The upper dam is just visible on the right hand side of the photo.
When I pulled into the parking space at the main entrance to the park I was astonished to see (1) just how high the flood waters were in this area; (2) the size of the dam just north of the entrance (above); (3) the rim of a second dam of similar size that crosses the basin just 100 yards further to the south. Both dams were overflowing but neither appeared to be breached. The water was too deep for a wade so I was confined to shooting from a single perspective. When the waters subside and the ground dries out a bit I will go back and take some measurements.
After I left the park I traveled upstream a quarter mile north to part of a residential development called Laurian Grove.
One hell of a handsome rock, about 7 or 8 feet tall.
Development taking place across the street from the sign.
The newest housing near here dates from around 2008 and consists of large homes a million or more in value. The area lies just off Scholls Ferry Road and looks to be about 3.3 acres in overall size. A workman told me that four homes were in the process of going up on the upper portion of the open property. One of Sylvan Creek's tributaries drains through the northern section of the property (wooded area left side of frame). It's ravine is very heavily wooded and there's also a stormwater treatment area (fenced in bio-swale) located near where the channel crosses under 64th Place (outof sight to the left).
The upper rim of the developing area lies at around 400' but where the creek crosses under the bridge the elevation is 320' - a net drop of eighty feet in less than 800 feet. Pretty steep. The stormwater from this area flows for around 1500 feet before the tributary meets up with the mainstem of Sylvan Creek. The photo below was taken at the intersection of Sylvan Creek and SW 66th Avenue, about 300 feet upstream from that confluence. I'll try to talk to the home owner here someday and maybe get alook at what kind of rip-rap they've put at that corner. The elevation is right at 280 feet.
This is Sylvan Creek as it exits the culvert at the dead-end of Preslynn Drive, elevation 260 feet.
Barely visible through the small gap in the tree line on the left (photo below) is the roof of one of Marlene's neighbors. The flooded area in the foreground is an extension of the property on the north side of Raleighwood Lane that invariably floods during heavy rain events.
As far as I can tell Laurian Grove is not a LID project. If this is true, that's too bad for the creek. It will have lost another three acre chunk of its biological machinery. Interestingly enough the remaining trees and the stream figure prominantly in the development's brochure. It would be wrong to maintain that this development will add signifiacntly to the ongoing siltification of the bottom land at Raleighwood Park. But at the very least it will add more stormwater runoff to the equation and that won't help. At bottom it's a complex situation: You can't blame the beavers or the builders from doing what comes naturally; but if they keep it up and we don't find some solid fixes for both ends of the problem soon, the future of the properties adjacent to the bottom reaches of Sylvan Creek could be grim.
01/12/2012
Up Fanno Creek - Progress Report
This afternoon I took a 232 page bundle to Kinkos for binding. There are ten copies of this draft - the last one, I hope, before I sit down and prepare an actual manuscript. Pretty excited. I am sending it out to a dozen reviewers and hope to get their feedback by 2/15/2012. Boy, just getting to this point has been a long time coming. Still a ways to go but more excited than ever. Old friend Juliet Shen has volunteered to design the final book, which means that it will be beautiful no matter what. Stay tuned.
01/09/2012
Happy Birthday Buddy!
Buddy at about three months.
Buddy at four.
12/22/2011
11/28/2011
TMDL / WQMP for The Tualatin Basin
The Oregon Department of Environmental Quality (DEQ) is accepting public comments on the draft of The Tualatin Basin TMDL and WQMP until 5:00PM 11/30/2011. Mine are detailed below in a copy of the memo I sent to DEQ earlier today. I’ll have more to say about TMDLs, WQMPs, and a variety of other acronyms at a later date. Meanwhile the December “Drop Dead” date for the final draft of my book looms so I need to attend to that before anything else.
__________________________
To: Avis Newell / Oregon Department of Environmental Quality
From: Eric L. Lindstrom, EdD
Date: 11/29/2011
Re: Comments on TMDLs / Clean Water Services
It’s too bad there’s not a TMDL for something like “Total Stream Degradation.” Focusing on a few key and easily quantified characteristics of stream behavior such as nutrient loads, water temperature and so on is certainly a positive and necessary step in monitoring stream health. But until the actual drivers of these kinds of indices are addressed in some concrete regulatory form or another we won’t be dealing with the disease so much as we are its symptoms. For example, please regard the following photographs of Ball Creek.
Figure 1
These first two shots were taken above the culvert that directs the creek under 74th street in Tigard. These were taken on 5/2/2009, around 5:30 PM. A storm had passed over the Tualatin Hills area approximately an hour earlier. It was a good downpour but nothing for the record books by any means. The culvert lies less than 300 feet from the stream’s confluence with Fanno Creek. Figure 1 shows the receiving side of the flow while Figure 2 shows the outflow on the downstream side.
Figure 2
The next shot (Figure 3) was taken just below the south rim of PCCs southernmost parking lot (45N 26.169 W122 43.892 approx.) in an area that lies immediately below the a catchment that is designed to reduce, at least in part, the full force of the water flowing off the parking lot. (I believe that drainage from areas other than the parking lot comes through this place as well but have no precise data as to where from or how much. At this particular spot the channel is about four feet deep and six feet wide.
Figure 3
About 100 feet further down the slope the channel is roughly 12 feet wide and 7 feet deep. For scale the smaller rocks in the center of the photo range from baseball to basket ball size. The main channel has also been joined by three smaller but still impressive incisions entering from the west side. A fourth channel (Figure 4) is beginning to form on the east side as well.
Figure 4
I was so impressed by the dynamics of this site that I went to the trouble of working up a guess at the volume of silt that had to wash out of the first 100 feet of the single channel in order to leave this kind of scar tissue. Very approximately it came to 200 cubic yards. The college went operational in 1961 but I think this portion of the parking area wasn’t fully completed until the late 1990s. If that assumption and my rough numbers are even close, that means an average of better than 10 cubic yards of silt have been blown out of the first 100 feet of this channel every year. The quality and accuracy of my math notwithstanding, you don’t need a calculator to tell you that this open wound contributes a huge amount of silt and parking lot byproducts – oils, anti-freeze, brake dust etc. – to the main-stem flow of Fanno Creek every time it rains even moderately in the area. All you have to do is stand there once and see it in the flesh.
The conditions on Ball Creek aren’t unique. There are dozens of places such as this one in the Fanno Creek watershed alone and hundreds more throughout the Tualatin River Basin. The issues this kind of hydrology creates for the rest of the watershed are systemic and pernicious. The quantity of undesirable silt and other potentially damaging materials these open sores are sloughing off into the river must be absolutely stupendous. So too must be the damage that is being done to the biological communities downstream. None of the currently used indices directly measures the impacts of these festering sores on water quality. More importantly none of them provide a lever for getting at the specific stormwater runoff issues that literally and figuratively lie at the source of most of the river’s major biological health issues.
The ratio of pervious to impervious surface area is relatively easy to quantify, particularly in the urban areas where control of this relationship is most critical. The correlation between this ratio and the biological health of a stream and its watershed is both significant and well understood. Accordingly I am urging the adoption of a specific TMDL for Impervious Cover based on the Healthy Streams plan developed by Clean Water Services (pg. 59-60). At the minimum such a TMDL would provide leverage for the more direct control of stormwater runoff and all its associated issues. But it has the added advantage of providing a reliable surrogate for evaluating the biological health of the system as well.
The 303d list of biologically impaired streams in the Fanno Creek watershed does not include several tributaries whose impacts on the overall health of the creek are almost certainly significant. These include Sylvan Creek (all three of its upland stems), Columbia Creek, No Name Creek and the Bridlemile-Ivey creek complex in the northern headwaters of the system, and Bell and Derry Dell creeks in the southern reaches. Some of these creeks are very short in terms of total stream length, but all are heavily incised and becoming more so every day. Both Sylvan and Derry Dale creeks are of particular concern due to the landslides frequently associated with their behaviors. None are adequately monitored, if monitored at all. Until some semblance of measurement of their respective contributions to the overall health of the system is determined the full dimensions of Fanno Creek’s degradation will not be fully known. Accordingly I am requesting that these streams be covered under the pervious cover/biological health TMDL proposed above.
I have more photographs on hand that provide some evidence for the degree of degradation these streams endure and would be happy to make them available to DEQ if so desired. I would also be happy to provide further narrative and acquire additional photography on behalf of the DEQ should such action be deemed necessary for advancement of the Impervious Cover TMDL and the clean water cause. However photographs generally fail to adequately portray the full dimensions of the problem so I suggest a tour of some of these areas would prove to be even more useful in the decision making process. In such an event please let me know and I would be happy to provide some rough coordinates for some of the more typical and easily accessed places.
Respectfully submitted,
Eric L. Lindstrom, EdD – 11/28/2011
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