By Tom McClellan, Part 2 of 2
The Lakewood City Council has a big decision to make at the March 6 meeting. They are being encouraged to treat Waughop Lake with aluminum sulfate, in an effort to reduce toxic algae blooms. See the City’s announcement here. But this approach will not work, would be a waste of money, and it will not meet the legal requirements in City, County, and State law for such a cleanup.
In Part 1, I covered the background details of how we got into this problem, and why a cleanup is needed. I also introduced the two proposed cleanup options being proposed by the City’s consultants (i.e. dredging the phosphorous-laden sediments, or treating the lake with alum). Today, I’ll explain why dredging to remove the sediments is the only approach which meets the cleanup objectives, and which satisfies the legal requirements.
An Earlier Remedial Action Plan
I began working on this problem in 2009, as part of a group of contributors working toward a useful solution to Waughop Lake’s persistent algae problems. I came to this task with several years of experience as a volunteer water quality monitor on Lake Louise, part of a program orchestrated by the Pierce Conservation District. Other members of the team included fellow volunteer water quality monitors, representatives from the Tacoma Pierce County Health Department, and college professors from Pierce, UW Tacoma, and UPS. We coordinated with City staff, and kept them apprised of developments as the study progressed.
In Dec. 2012, we provided a 70-page Remedial Action Plan to the City of Lakewood at no cost to the City, detailing the science, the law, courses of action, and recommended solutions. City officials thanked us for our input, but then proceeded with a grant application to the State of Washington for $150,000, to be matched by $50,000 of City funds, in order to hire consulting firm Brown and Caldwell to conduct another study. That study finally began in 2014 and was just completed in late 2016, four years after we submitted our Remedial Action Plan.
Both studies identify removal of sediments by dredging as the preferred solution. The Brown and Caldwell study also recommends first pursuing a treatment with alum because money is not available for the higher-cost dredging operation. That study’s authors do concede that an alum treatment would only be a partial half-measure, and would not remedy the problem.
When the TPCHD posted warning signs around Waughop Lake in August 13, 2011, that triggered a finding under the Lakewood Municipal Code of a “public nuisance”. That is an important legal term, because the finding of a public nuisance mandates action by the City and by the landowner, which in this case is the State of Washington.
Here is the specific language of the statute:
08.40.020 – Duty to Maintain Property
- No person owning, or responsible for any property… shall maintain or allow to be maintained… (I) Any accumulation of… dead organic matter, debris, stagnant water,… or conditions constituting fire, health or safety hazard.
08.40.030 – Declaration of Public Nuisance
Any property found to be maintained in violation of Section 8.40.020 is hereby declared to be a public nuisance and shall be abated by rehabilitation, removal, trimming, demolition, or repair.
In part 1 of this 2-part series, I detailed how the persistent toxic algae blooms were the result of high phosphorous levels in the lake bottom sediments. That high phosphorous load is due to the lake’s former use as a dumping spot for farm waste generated by the State-run farming operation as part of Western State Hospital until 1965. That farm waste constitutes an “accumulation of… dead organic matter”. When the TPCHD declared in August 2011 that the algae blooms caused by those sediments constitute a health hazard, in that moment it became designated as a “public nuisance”.
The law mandates that the condition “shall be abated”. The word “shall” means there is no option; it has to happen.
The Lakewood Municipal Code gets a little bit more interesting when it talks about penalties:
8.40.040 – Enforcement – Penalty
The provisions of this chapter shall be enforced pursuant to Chapter 8.16 of this Code. In addition to being subject to abatement as a nuisance, violations of this Chapter shall constitute civil infractions punishable by a fine in the amount of $500 per violation. Each day during which a violation occurs constitutes a separate violation.
Since the designation as a health hazard dates back to Aug. 13, 2011, that’s 2,026 days and counting of the State being in violation. Multiply that by $500 per day, and we get to $1.013 million and counting which the State is on the hook for as property owner.
And just in case anyone wants to argue that the State is not bound to follow the City’s municipal code requirements, I would note that very similar language exists in both the Pierce County Code, and in the State’s own RCW 7.48 covering public nuisances and the mandate to remediate them. All 3 levels of legislation agree in identifying the property owner as being the responsible party for bearing the costs of the cleanup.
Dredging the Preferred Option
The 2016 study by Brown and Caldwell agreed with our 2012 Remedial Action Plan’s finding that removal of the bottom sediments by dredging is the preferred option, since it would take the phosphorous out of the lake permanently. But that more recent study ignored the legal mandates described above, and recommended that a chemical treatment with alum should be pursued in the interim because of a lack of funds for the preferable solution.
There is no provision in the statutes at any level of government for a supposed lack of funds to constitute a defense for failing to take remedial action. So for the City to abandon its duty to enforce the law is an inappropriate and illegal choice.
Given the wording of the laws on public nuisances at all levels, removal of the sediments is the only remediation option which meets the legal requirements. Leaving the phosphorous-laden sediments in place, in a supposedly degraded state of availability, does not remedy the problem.
What The City Council Must Do
If the City Council votes on March 6 to pursue an alum treatment instead of dredging the sediments, then it will be instructing City staff to ignore the law. The Council does not have the authority to do that. The council does have the power to repeal its own law on public nuisances, but then the same requirements would still exist in County and State laws, so there is no escaping the requirement.
What the law requires is instead for the City to notify the State to commence a dredging operation, at State cost.
If the State will not do so, then the City must initiate that remediation, and send the bill to the State. If the State will not pay, then the City is entitled under RCW 7.48.020 to sue for damages, and if necessary then the City may initiate condemnation proceedings per RCW 8.12.030.
City staffers have privately expressed an unwillingness to pursue such a course of action, even though they acknowledge that the law requires it. They note that the City of Lakewood gets a lot of money from the State in various forms, and so they do not want to bite the hand that feeds them.
But uneven enforcement of laws based on who is involved has a long history in our country. We even passed the 14th Amendment to the U.S. Constitution in 1866, mandating “equal protection of the laws”, regardless of who or what entity is committing the infraction.
So now the question is whether the Lakewood City Council on March 6 will have the courage to pursue the harder right, instead of the easier wrong. The actions of man created the persistent toxic algae problem in Waughop Lake. And now the inactions of man are sustaining it.
If you care about the health of Waughop Lake, and the environment generally, then I invite you all to come to the March 6 Council meeting to help let the City Council members know that they should do what is right, and not subject the City to potential lawsuits over failing to enforce the law.