Is Voluntary Compliance Enough?

Al Krause has lived in Birch Bay since 2003. He and his wife, Ruth Higgins, produce birchbayblog.blogspot.com.

by Al Krause

“Are you aware there is a $125 fine for throwing a lighted cigarette butt out of a car window? Legal action doesn’t work sometimes,” explains Nancy Lee. Based on Mercer Island, Lee is the state’s leading advocate for “Social Marketing.” At www.socialmarketing service.com you will find enough information for a three-credit course on “Principles for Success” and “Influencing Behaviors for Good. “ She has a long list of accomplishments in improving public health and preventing injuries as well as protecting the environment.

Lee is the mentor of George Boggs and Rachel Vasak who think they can persuade home and land owners in the watershed of Terrell Creek, the main source of pollution in Birch Bay, to change their ways. Since 2009 a half-mile arc around the mouth of the creek has been closed to commercial clamming with an advisory to recreational diggers. And the creek itself is unsafe for swimming or wading. Vasak’s and Boggs’ goal is to persuade home and land owners to voluntarily fix faulty septic tanks and contain animal waste.

Boggs, who heads the Whatcom County Conservation District, and Vasak, the executive director of NSEA, the Nooksack Salmon Enhancement Association, have a $600,000 grant that funds a plan to persuade 30 targets to stop polluting by 2014. Their hope is that best practices by those targets will influence some 300 other offenders in the Terrell Creek watershed.

In addition to safe septic tanks – “maintenance is cheaper than repair” – and control of pet and animal waste, Boggs and Vasak will encourage land owners to create buffers with native plants and trees between pastures, wetlands and water routes.

The guardian — some might say guardian angel — of these property owners is Barbara Brenner. On the general subject of voluntary action, Brenner wrote in an exchange of e-mail that, “Much restoration can be done through a voluntary program. I back up my opinion with the fact that I live in the Ten Mile watershed which had a successful restoration program for many years...” (Vasak and Boggs cite the Ten Mile Creek success, organized by Dorie Belisle, in a description of their plan.)

Brenner, longest serving member of the County Council, persuaded the council not to impose inspection and repair of septic tanks in the Terrell Creek watershed. In that exchange of e-mail Brenner wrote about septic tanks: “I think most people want to take care of their systems, if not for environmental or public health reasons, at least to maintain the value of their property. The County originally used the sledgehammer approach. All it did was create hard feelings and some of those who were cited never did fix the problem if they didn’t have the money to do so.” The county now offers a low-cost loan program to assist with septic-tank repair.

In June the Whatcom County Health Department listed 725 septic tanks in the Birch Bay watershed which is larger than Terrell Creek watershed. Records showed that 457 were evaluated — all but five by certified and licensed inspection services. Of those, 199 were found to need maintenance. Nine failed inspection and were repaired. The condition of 268, or 37 percent of the total, was unknown, according to Kyle Dodd of the Whatcom County Health Department.

In the Lake Whatcom and Drayton Harbor watersheds septic tank inspection is mandatory. In the Lake Whatcom watershed 95 percent of the 665 septic tanks were inspected by June 15. In the Drayton Harbor watershed 82 percent of the 3087 septic tanks were inspected by June 22.

In July the Health Department asked the County Council to make inspection of all septic tanks mandatory. As the September Whatcom Watch went to press, the County Council had not made a decision.

The Boggs and Vasak campaign sits on top of BBWARM, the Birch Bay Watershed and Aquatic Resources Management District, that became active in 2009. Adopted by the County Council and operated by the Public Works Department, with an advisory board, the district improves infrastructure and seeks to “increase citizen participation in watershed stewardship.” BBWARM also acts as a Shellfish Protection District with water samplings for fecal coliform taken routinely at 39 stormwater entry points to Terrell Creek and Birch Bay.

This effort is funded by County Council imposed fees based on the amount of impervious surface (IS) in a property. Under 10 percent IS is $5.02 per month; 50 percent is $8.71 per month. Last year the fund totaled $720,344 of which $633,869 was spent. BBWARM’s recent major projects for drainage and stormwater system improvements are located in three sections of the community. (More information can be found at www.bbwarm.whatcomcounty.org.)

The community’s comfort level was jolted when ReSources for Community Sustainability filed a petition with the state’s Department of Ecology to impose mandatory controls in the state’s National Pollution Discharge Elimination System (NPEDS) program to protect water resources from the adverse effects of stormwater runoff. Authors of the petition, Lee First, a Pollution Prevention Specialist, and Wendy Steffensen, the Lead Scientist, argued that BBWARM lacks stringent requirements for new development and needs to provide more extensive education and outreach.

This was too much for Kathy Berg who is the closest thing unincorporated Birch Bay has to a mayor and city council. She styles herself “Chair Kathy” stemming from 2004 when she headed the steering committee that created Birch Bay’s growth management plan.

Normally, Berg operates behind the scenes as a watchdog and advocate. This year she is close to achieving her greatest mission with the County Council approval of funding for ‘The Berm,’ officially called, “The Birch Bay Drive and Pedestrian Facility,” an impressive measure of her strength.

Berg saw the ReSources petition as a threat and challenged the Department of Ecology: “What value and/or benefit over and above the cost of reporting in scarce human and financial resources will result in significant water quality improvement by the addition of requirements?” In personal discussion Berg explained that she is concerned that additional monitoring and reporting will deter BBWARM from making the infrastructure improvements for stormwater control that are part of the Berm plan.

Wendy Steffensen, the scientist, counters that she sees no contradictions between the two projects. “The purposes of these projects are different, the costs of these projects are different in scale, and the Berm has already been approved. It is now up to the Department of Ecology to determine whether this NPDES permit is the correct solution to some of the water quality problems in Birch Bay.”

Lee First, the pollution prevention specialist, adds that, “Permit applicants usually get $50,000 for startup and in most years are eligible for competitive grant money, permit requirements are usually phased over a five-year period and [the state Department of] Ecology is typically lenient with new permit holders.” (Berg expects that her Berm will be completed about 2015-‘16.)

In August the state Ecology Director placed the Birch Bay UGA under the county’s stormwater permit, effective August 1, 2013. Ingred Enschede, responsible for outreach, noted that BBWARM’s program “is designed to meet the same water quality objectives as the state’s program and already meets many of the permit objectives.”

In response to criticism and our headline, Katie Skipper of Ecology said: “The people of Washington want clean water, but in order to end up with clean water, we need voluntary programs, too.”

Side Bar:

Is It Safe to Dig Clams in Birch Bay?

Clamming is sometimes prohibited on Puget Sound beaches because of “red tide,” technically large concentrations of toxic aquatic microorganisms. In Birch Bay now there is also a prohibition against digging razor clams.

When red tide restrictions are lifted you can expect it will be safe to dig for manila clams and other popular varieties – excepting razor clams – on beaches to the north and south of the mouth of Terrell Creek. This is because daily tides bring fresh ocean water onto the beaches diluting polluted water.

During summers three state and county agencies work together in what is called “The Beaches Program.” Three Whatcom County beaches are in this program including sections in Birch Bay that have county park access. These sampling locations are between the Sea Links Golf Course and the Bay Market where Harbor View Road meets Birch Bay Drive.

Last summer the average bacteria level of these three sampling sites were twice found to have high levels of contamination. Two days later these sites were retested and found to be satisfactory.

The bottom line is that Tom Kunesh, who is responsible for environmental food safety at the County Health Department, cannot remember anyone getting sick from eating clams dug on Birch Bay beaches. He notes that cooking for a few minutes at 140 degrees removes the bad effects of harmful bacteria. This contrasts with the deadly toxins of the red tide that cannot be eliminated by cooking.