Submitted by Tom McClellan.
This is a follow-up to my January 14, 2019 article, Lakewood Is On The Wrong Path For Its Biggest Environmental Problem, to which Lakewood’s Public Works Director Paul Bucich submitted a Jan. 18, 2019 response.
I am grateful to Paul Bucich for laying out the City of Lakewood’s position regarding the decision making process concerning the treatment of the toxic algae situation in Waughop Lake. It is clear that he and other City staff are working hard to move forward on a plan which he thinks will help with this problem.
But there are several errors of fact and omissions in Mr. Bucich’s response, which ironically was supposed to be about “the rest of the story”. Most importantly, Mr. Bucich did not address the two main points I raised about why an alum treatment was a bad idea. Those two points were:
Alum treatments in shallow lakes like Waughop Lake tend to fail after a very short time, according to a paper by researchers from the University of Washington.
The presence of carp in Waughop Lake will accelerate the pace of failure of an alum treatment, since these bottom-feeding fish will stir up the bottom sediments, reintroducing phosphorous into the lake water and bringing about more toxic algae blooms. See this 2001 paper.
It is not clear from Mr. Bucich’s response why he would ignore these two important points, other than that they are inconvenient to the City’s plans to proceed with an alum treatment as directed by the City Council.
What Mr. Bucich seemed to try to do in his response to my article was to address the points I raised about the need to dredge the phosphorous-laden bottom sediments. But he made several errors of fact and analysis in that response.
Mr. Bucich cites the opinions of “nationally recognized consultants”, without identifying whom he is referring to, and who he claims have evaluated options for addressing the algae blooms. Citing the opinions of “experts” rather than addressing the point at hand is a famous logical fallacy known as “appeal to authority”.
Later, he reveals that he is referring solely to one consulting firm, Tetra Tech, which the City has contracted with to do analysis about what is needed for the intended alum treatment.
What Mr. Bucich did not reveal is that Tetra Tech is a consulting firm actively engaged in the activity of doing alum treatments in lakes. So it should not be much of a surprise that a firm which earns money from conducting alum treatments would be a proponent of conducting alum treatments. I wonder why he left out that very relevant point.
Mr. Bucich did address one point which I raised, which is that alum treatments are risky and can sometimes turn out badly if they are done wrong. I cited the example of Wapato Lake in Tacoma, which had an alum treatment in 2008 which went horribly wrong, killing the fish in the lake because of improper application of the chemicals. In response, Mr. Bucich asserted that the City of Lakewood will seek to minimize this risk by “contract[ing] with our design firm to ensure a qualified expert is on hand to oversee the application to Waughop Lake. The expert we are working with from the consulting firm of Tetra Tech has over 40 years’ experience, is a nationally recognized Ph.D water quality scientist and expert who has designed and overseen the treatment of 200 lakes.”
But Tetra Tech is the very same firm which oversaw the treatment of Wapato Lake that turned out horribly. Mr. Bucich left out that particular point.
“The State Should Do It”
Mr. Bucich noted that the 1970 lease (he said 1967, but why quibble) under which the State of Washington conveyed control of what is now Fort Steilacoom Park to Pierce County (and then later to Lakewood) was written so as to “release the State of Washington from any and all responsibilities for virtually anything related to the park lands.” So that means we presumably cannot demand that the State pay the cost of cleaning up the mess it made in Waughop Lake, courtesy of 80+ years of dumping farm waste and human sewage into Waughop Lake, in addition to the 40+ years of human sewage overflow from Pierce College, which is on State-owned land.
Here is the specific language of that 1970 lease to which Mr. Bucich is referring:
This assertion about the State being absolved of liability for the whole site is mostly true, but it misses a hugely important point. That 1970 lease had an earlier clause which reserved to the State the right to use and maintain “water facilities: on the site: Here is the specific language:
So what would constitute a “water facility”, under the terms of this lease? The lease document does not contain a definitions section to clearly delineate what the term means, so interpreters of the language of the lease are left to make such interpretations based on the common meaning of the term as of the date in which the agreement was entered into.
I’m sure that the State would assert that it means just the wells, the pipes, and the two water towers still standing and covered with graffiti in Fort Steilacoom Park. That meaning would make sense in 2019.
But from the 1880s through the farm’s closure in 1965, Waughop Lake was utilized as a source of irrigation water, as well as the dumping ground for human and animal sewage which is what has created the current problem with excessive growth of aquatic plants and toxic algae. A floating barge with a water pump was utilized to extract water for use on the farm, which would seem to make the lake qualify as a “water facility” for most of the period of the State’s operation of the farm.
So if we are to apply the meaning of “water facilities” as it was understood in 1970, just 5 years after the closure of the farm operations, it is reasonable to assume that this includes Waughop Lake. And so the right to use the water facilities, with its inherent “duty to maintain”, means that the liability remains with the State for the public health problems which the State has created by using Waughop Lake as a dumping ground. And so does the obligation to clean up the mess.
Legal Obligation to Remediate
One of the points which Mr. Bucich failed to address in his response is the legal obligation to remediate a “public nuisance”, which falls upon the property owner. Waughop Lake qualified legally as a “public nuisance” in 2008 when the Tacoma Pierce County Health Department made a determination that the toxic algae problem in the lake represented a threat to public health, and posted warning signs around the lake. See RCW 64.44.030 which establishes this public nuisance declaration.
There is strong language in the Lakewood Municipal Code, the Pierce County Code, and the Revised Code of Washington (RCW) which addresses public nuisances, and the obligation to remediate them. Here are the relevant sections of code:
Lakewood City Code
08.40.020 – Duty to Maintain Property
1. 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.
Pierce County Code
8.08.040 Public Nuisance Defined
A public nuisance consists of performing an unlawful act, or omitting to perform a duty, or permitting an action or condition to occur or exist which:
A. Unreasonably annoys, injures, or endangers the comfort, repose, health, or safety of other; or
B. Unlawfully interferes with, obstructs or tends to obstruct or renders dangerous for passage any lake, or navigable river, bay, stream, canal or basin, or any public property, open spaces, parks, or public right-of-way in the County; or
C. Renders other persons insecure in life or in the use of property; or
D. Creates, maintains, or permits the existence or continuance of any of the specific public nuisances identified in this Chapter.
8.08.050 Specific Public Nuisances Declared
The following specific acts, omissions, places, conditions, and things are hereby declared to be public nuisances and are per se violations of this Chapter:
D. Any poisonous material or poisonous thing on any property accessible to any animal or minor children.
F. Property where solid waste has accumulated… and poses a threat to human health and/or the environment.
K. Any property that has been found contaminated and declared unfit for use by a local health officer pursuant to RCW 64.44.030.
8.08.060 Landowner Responsibility
Every landowner has a duty to maintain his or her property free of public nuisances. It is not a defense to this Chapter that other persons may have caused or contributed to the nuisance.
8.08.070 A Nuisance Does Not Become Legal by Prescription
A nuisance does not become legal by lapse of time.
Washington State Code
RCW 7.48.140 Public nuisances enumerated
It is a public nuisance:
(2) To throw or deposit any offal or other offensive matter, or the carcass of any dead animal, in any watercourse, stream, lake, pond, spring, well, or common sewer, street, or public highway, or in any manner to corrupt or render unwholesome or impure the water of any such spring, stream, pond, lake, or well, to the injury or prejudice of others;
(3) To obstruct or impede, without legal authority, the passage of any river, harbor, or collection of water;…
The upshot is, it is the landowner’s responsibility to maintain the site free of public nuisances, and Waughop Lake qualifies. Because the State reserved to itself the rights (and obligations) to the “water facilities” within the boundaries of what is now Fort Steilacoom Park, it also reserved the duties to pay for the remediation. In other words, the State really must pay.
What is Remediation?
When I participated with a group of citizen volunteers and academics in the writing of the 2012 Remedial Action Plan, which was provided at no cost to the City of Lakewood, we evaluated the various courses of action according to the standard of how each of them would meet the requirement under the City’s own municipal code to remediate the public nuisance condition in Waughop Lake. That section of code may not have been written with Waughop Lake in mind, but it is the still-existing statute which governs this situation, and which any treatments will have to live up to in terms of meeting the standard of being, “abated by rehabilitation, removal, trimming, demolition, or repair.”
By applying that standard of evaluation, we rejected the option of alum treatment because it did not meet that definition of “abatement”. An alum treatment does not solve the problem; it only makes it not as bad for a short amount of time, and in the case of the shallow Waughop Lake, for a shorter amount of time than would be the case in other lakes.
The only remedial action which we identified which met the legal obligation for remediation was the removal of the phosphorous-lade lake sediments which are fueling the perpetual algae blooms. Any other step is just a band-aid, and does not live up to the requirement of remediation. Thus, any other step cannot be employed, due to the obligation to achieve remediation.
Disposal Is Not So Problematic
Mr. Bucich’s response was dismissive of my proposal that the lake sediments could be sold as fertilizer after hydraulic dredging, even though I provided data showing that their nutrient contents were similar to TAGRO, the soil amendment sold by the City of Tacoma’s sewer utility. He asserted that, “The market for this product is unclear and as such, we have to anticipate disposal at a landfill.”
But when I met with Mr. Bucich at City Hall on Sep. 21, 2018 to go over the background on Waughop Lake’s problems and discuss solutions, I provided him with the contact information for a fertilizer vendor who says he is interested in purchasing such dredging spoils. And as for demand for such products generally, The News Tribune reported in June 2018 that the City of Tacoma had run out of Tagro because demand exceeded their available supply. Tagro sells for $10 per cubic yard, if people come to pick it up, and more if delivered. That is not enough to defray the whole dredging project cost, but it would make a dent.
I also identified to Mr. Bucich a site in the park where a dewatering operation could be set up with minimal impact to park activities. I am talking about the approximately 18-acre area in the northwest corner of the park near the intersection of Steilacoom Blvd. and Farwest Drive.
This area is formerly where garden plots were maintained by Western State Hospital patients in the days of the farm operation, and is currently unimproved grassland. Operating a dewatering site in this area would mean a longer distance to pump the dredged material compared to areas beside the lake, meaning more pipe would have to be laid to reach that site. But it would interfere less with the park’s normal operations, and would make truck access much easier without tearing up the park’s spiffy new access road which was just paved last year.
How Much Would Dredging Cost?
I am not a dredging contractor, but here are some comparable projects and their costs:
Lake Redstone in Wisconsin is having 106,000 cu. yards dredged for $3.7 million, based on that 2018 linked article.
If we were to dredge only 1 meter of sediments from all 33 acres of Waughop Lake, that equates to around 150,000 cubic yards. If we assume a pumping costs of $8/yard, that’s $1.2 million. Because the sediments are about 90% water, they would reduce to around 15,000 of “spoils” which can be sold as fertilizer. Assuming the Tagro sale price of $10/yard, that’s $150,000 of revenue to offset some of the cost, and the customers would come pick it up and haul it away.
There would be additional costs for project design, construction of the dewatering site, signs, fences, portable toilets, etc. So it probably rises up closer to $2 million all in. But it still comes out to less than the $7.9 million to $34.5 million range which Mr. Bucich cited.
An alum treatment will not achieve the required level of remediation as mandated by City, County, and State statutes. Only dredging of the phosphorous-laden sediments can do that.
Lakewood’s expensive consultants have inadequately evaluated the cost of hydraulic dredging of Waughop Lake, and have promoted doing an alum treatment which the best available science says will be of limited effectiveness, but which appears to be in the self-interest of the consultants. We need to seek answers from experts other than firms which are seeking revenue for performing alum treatments.
The dredging cost estimates shown above should demonstrate enough of a cost difference to convince the Lakewood City Council that the dredging option has not been given enough consideration, and that real bids from real dredging contractors should be solicited before we plow ahead with an expensive alum treatment plan which will not achieve the mandatory degree of remediation.
And yes, the State needs to pay for it, in accordance with the State’s own lease agreement for the park.