Submitted by Tom McClellan, Lakewood
The Lakewood City Council has voted to move forward with an aluminum sulfate (alum) treatment of Waughop Lake in Fort Steilacoom Park. In order to address the persistent toxic algae blooms, their hope is that adding 8 tanker-truck loads of chemicals to an already polluted lake will make everything better, and at a cost of ONLY several hundred thousand dollars.
Past articles here in The Suburban Times have addressed the science aspects of this effort, and how the arguments for doing an alum treatment are rather weak. The only identified course of action which will actually bring about a lasting solution to Waughop Lake’s problems is to dredge the phosphorous-rich lake bottom sediments, thereby denying those nutrients to future generations of algae blooms.
The City Council has not wanted to pursue a dredging project, because they have received inflated estimates of the cost of a dredging project from the contractors who favor doing the alum treatment. But the cost of such a project should not be the City’s to bear, since the State is who made the mess.
The scientific issues, while important, have been presented on numerous occasions. Now, it time to examine the legal avenues available to effectuate a solution to this problem.
When the Tacoma-Pierce County Health Department posted Waughop Lake as “closed” in 2009, that action placed Waughop Lake into a very specific legal category known as a “public nuisance”. That determination comes about via Lakewood Municipal Code section 8.40.020, which states the following (truncated for the sake of clarity):
8.40.020 Duty to maintain property.
A. No person owning, or responsible for any property by virtue of leasing, renting, occupying, or being in possession or having charge of any property in the City, including vacant lots, shall maintain or allow to be maintained on such property, except as may be permitted by any other City ordinance, any of the following conditions visible from any public street or alley, or from any other private property:
9. Any accumulation of… junk, litter, trash, dead organic matter, debris, offal, rat harborages, stagnant water, combustible materials and similar materials or conditions constituting fire, health or safety hazard;
8.40.030 Declaration of public nuisance.
Any property found to be maintained in violation of LMC 8.40.020 is hereby declared to be a public nuisance and shall be abated by rehabilitation, removal, trimming, demolition or repair.
The persistent toxic algae condition in Waughop Lake is the result of 80+ years of its use as a dumping ground for farm waste, i.e. “dead organic matter”, during the period when Fort Steilacoom Park was an operating farm managed by the staff and patients of Western State Hospital. This problematic condition was further exacerbated by an additional 40+ years of episodic human sewage overflow from Pierce College due to the plumbing problem which was finally remedied in early 2018. Pierce College and Fort Steilacoom Park are both located on land owned by the State of Washington, and thus the State bears the responsibility as landowner for the cleanup of the phosphorous-laden lake bottom sediments which are causing these algae blooms.
STATE LAW ON PUBLIC NUISANCE
The State of Washington’s laws echo the City of Lakewood’s in terms of a property owner’s “duty to maintain”. RCW 7.48.010 states the following:
Actionable nuisance defined.
The obstruction of any highway or the closing of the channel of any stream used for boating or rafting logs, lumber or timber, or whatever is injurious to health or indecent or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property, is a nuisance and the subject of an action for damages and other and further relief.
Saying it more plainly, the maintenance of phosphorous-laden farm waste sediments in Waughop Lake, which cause persistent algae blooms that render the lake unsuitable for beneficial recreational use, is a violation of State law.
Later in that same chapter, RCW 7.48.140 states:
Public nuisances enumerated.
It is a public nuisance:
(1) To cause or suffer the carcass of any animal or any offal, filth, or noisome substance to be collected, deposited, or to remain in any place to the prejudice of others;
(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….
Later in RCW 7.48, the text of RCW 7.48.190 stipulates that “no lapse of time can legalize a public nuisance…” And RCW 7.48.140 stipulates that it is the landowner who is responsible for the abatement of a public nuisance on that land.
It is worth remembering that the farm operation (which ended in 1965) included a slaughterhouse built on brick pilings over the lake, which made for easier disposal of the byproducts of the animal harvesting by just allowing them to drop into the lake. Problem solved!!! The old Hill Ward did not have a septic system, and instead just ran a sewer pipe down into the lake. Problem solved!!! And the fecal waste from the barn animals was also carried from the livestock barns to the lake to be dumped into it, in order to replenish the lake bottom sediments which the farm operation pumped out to use as field fertilizer. These are the very contaminants in the lake which now are continuing to fuel the persistent toxic algae blooms. And they were put into the lake by State agencies.
THE PARK LEASE
The farm operation was shut down in 1965, and then in 1970 the State leased the land which now comprises Fort Steilacoom Park to Pierce County. That was 26 years before Lakewood was incorporated as a city, and so Pierce County was the agency designated to run the park. The 1970 lease agreement stipulated that the County as tenant was responsible for the cost of maintaining it as a park. Here is that specific section from the 1970 lease:
The City of Lakewood subsequently took over the park’s lease from Pierce County, and it is this language which the City of Lakewood has relied upon to assume that the City is responsible for the cost of any and all efforts to abate the unhealthful conditions in Waughop Lake.
The assertion in paragraph 5.03 of the lease 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 for and the use of water facilities presently located” 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 readers 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 like to 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 sort of make sense on its own 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 make the lake qualify as a “water facility” for most of the period of the State’s operation of the farm.
There are even to this day some galvanized pipes sticking up out of the ground next to the lake, which volunteer weed removal crews have uncovered. These pipes were part of that irrigation system involving pumping lake water to the crop fields.
If a reasonable person were to interpret the 1970 lease agreement’s clause about “water facilities” in terms of what that term means in 2019, then one might reasonably omit these old pipes, as well as the lake water which was fed into them. But as the meaning of the term “water facilities” was understood in 1970, when the lease agreement was signed by the County and the State, it is reasonable to accept that a lake which had served as an irrigation source pond for 80+ years should be included in that category of park property which the State had reserved to itself under the “water facilities” clause.
And thus, Waughop Lake can be interpreted has having been reserved by the State to itself in terms of the right to use, and for the “duty to maintain” under the law. That puts responsibility onto the State in terms of being liable for the cost of remediating the problem which the State itself had caused, irrespective of the other part of the lease in which the State attempts to pass off that responsibility to the tenant (which is now the City of Lakewood and its taxpayers).
30 years ago, the State of Washington enacted a toxins cleanup law, the Model Toxics Control Act (MTCA), which evolved out of Citizens’ Initiative 97 in 1988. According to the Department of Ecology’s own article on this topic, the key principles of the MTCA were:
- The polluter pays.
- Cleanups should be as permanent as possible.
- Public participation is crucial.
- Processes should demonstrate a bias toward action, permanence, and innovation.
30 years ago, the concept of exposure to “toxics” was pretty simple: If you had arsenic, selenium, chromium 6, lead, or other obvious toxins in your soil, each of those could be a direct threat to your health. But in a lake’s chemistry, things get more chaotic and more complicated.
High phosphorous levels like what we find in Waughop Lake are not by themselves a problem. Dissolved phosphorous is not a direct health hazard to you if you came into contact with the lake water containing that phosphorous. But phosphorous is an important nutrient for plant growth, and also for the growth of toxic algae. There are many species of algae which can produce toxins, most notably anabaena algae which is the dominant producer of “microcystin”, the nasty toxin that can cause liver failure, neurological disorders, and other health hazards.
The cyanobacteria which produce this toxin do so to get an evolutionary advantage, eliminating other types of algae which it may compete with for nutrients, and also poisoning the shellfish, birds, fish, and mammals which might filter-feed it and thus affect its survival.
Not all mammals who come into contact with algae-contaminated lake water are intending harm to these cyanobacteria, but that does not diminish at all the risk to humans and other mammals from this toxin. No humans are known to have died yet from exposure to toxic algae blooms in the State of Washington, but several dogs have died from it. And a dog does not need to drink the algae-contaminated water to get a lethal dose; just swimming in it and then licking their fur (as dogs are known to do) can be enough. That is why people are advised to keep themselves and their pets out of waters affected by toxic algae blooms.
Initiative 97 was targeted at those more direct toxins, i.e. mostly the heavy metals like lead and arsenic. But its language extends protections to the public from 2nd order toxins, i.e. those created by the algae that feed on the pollutants which humans have added to waterbodies like Waughop Lake. In every aspect where the law talks about dealing with these toxins, and with the compounds which may create them, it is the landowner’s responsibility to remediate and abate the problem. Right now, that landowner is the State of Washington, in the case of Waughop Lake. The State is punting on its responsibilities, expecting the City of Lakewood to pick up the costs for cleaning up the State’s mess.
But the ownership of Fort Steilacoom Park is about to undergo an important change. On January 19, 2018, the Washington State Legislature passed a new capital budget, under a bill known as SUBSTITUTE SENATE BILL 6090. Within that bill, there is this language concerning the transfer of ownership of the land involving Fort Steilacoom Park to the City of Lakewood, and of Pierce College’s land to the college:
There are two very interesting sentences within that text, as concerns the problems with Waughop Lake in the park. On the one hand, the liabilities will transfer with the land, which would mean that the City of Lakewood would have to accept the responsibility to clean up the State’s mess from the 85 years of farming operations, including the mess that the State made in Waughop Lake which contributes to the ongoing toxic algae blooms. And the City is mandated to accept that liability.
But on the other hand, “The transfer must be at no cost to the city.” Right now in April 2019, with the transfer as yet completed, the State has the liability for the cleanup because the State is the “landowner”. But upon the transfer, the City of Lakewood will become the landowner, and will have to accept the financial responsibility for any cleanup. That conflicts with the “at no cost to the city” provision. So we have what the lawyers call a “delicious legal quandary”, courtesy of the legislature’s mandate, as to who is going to bear the responsibility for the cost of cleaning up the State’s mess in Waughop Lake.
In a perfect world, the principle of “the polluter pays” would be the controlling agenda, as it should be.
The requirement under City, County, and State law for a public nuisance is that it “shall be abated”. So what does that mean? Does “abatement” include temporary treatments like alum, which are known to only last for a few years? And how should that be interpreted in the case of a very shallow lake like Waughop?
The 2015 paper by Huser, et. al, looked at the results of alum treatments in 114 lakes and found that they were more effective in deep lakes, where the floc-bound sediments could settle deep into the lake bottom and away from algae and other agents which might recycle them. But in “shallow, polymictic lakes” (which do not thermally stratify, as is the case with Waughop Lake), such treatments had a mean longevity of 5.7 years. The authors also noted that the “presence of benthic feeding fish in shallow, polymictic lakes” was important in terms of limiting the longevity of effectiveness of an alum treatment. Waughop Lake has many such benthic feeding fish, including grass carp, common carp, and catfish, all of which stir up the bottom sediments and thereby disrupt the effectiveness of an alum treatment.
So if the requirement under the law is to “abate” the problem, an alum treatment cannot be seen as meeting that requirement, as its effect is only temporary.
In order to perform an alum treatment of Waughop Lake, the City of Lakewood has applied for a permit from the Washington State Department of Ecology (DoE), which is the entity that regulates the application of aluminum sulfate (and its associated chemical cocktail) in State-controlled waterbodies. One aspect of the several requirements for undertaking such a treatment is that the City of Lakewood must publish a “public notice” twice about the intention to do such a treatment, and that second notice starts a 30-day clock for public comments to be made to the State Department of Ecology concerning any issues related to such a prospective treatment.
The second notice was posted in The News Tribune on March 18, which means that the public has until April 17 to submit comments either in support of or in objection to such a treatment. If you wish to offer such comments, you should send them to this address:
Department of Ecology
Water Quality Program
Attn: Aquatic Pesticide Permit Manager
PO Box 47600
Olympia, WA 98504-7600
You may also submit such comments by email to Jonathan Jennings, Jonathan.Jennings@ecy.wa.gov.
All such public comments will be afforded consideration by the Department of Ecology, and will be forwarded to the applicant (the City of Lakewood) to address in writing for a response. Addressing each of the public comments which are received will take time both for the Department of Ecology and for the City of Lakewood, and the time it takes to address every one of the public comments may result in a delay in approving the alum treatment. If the delay persists through the summer and into autumn, it might prevent such a treatment from taking place this year, as such a treatment is said to be less effective later in the summer and into autumn.
So if you have a strong feeling about the appropriateness of undertaking such a treatment, I would urge you to make your comments known to the DoE, so that such comments can be duly considered before the possible awarding of a permit for such treatment.
If there is significant public outcry against such an effort, and/or sufficient scientific reason to argue against awarding such a permit, then the DoE may withhold or at least suspend the awarding of a permit to the City of Lakewood for this year (or longer). If you let your voice be heard on this topic, you could be the one to make a difference.
I have been working along with others since 2009, intent on bringing about a favorable resolution to the problems affecting Waughop Lake. I have employed every avenue of persuasion open to me, including prior articles in the Suburban Times, submitting a 66-page Remedial Action Plan to the City of Lakewood in 2012, pointing out the law, illustrating the science, attending City Council meetings, and meeting with the Mayor, Deputy Mayor, City Manager, Public Works Director, and District 28 legislators. These efforts have not been sufficient to bring about a satisfactory solution which would meet the requirement to abate the root problem in Waughop Lake. I have done so purely as a concerned citizen volunteer, one of several of us in the City who are seeking to bring about the right solution, and not for personal gain.
I have also been serving as a volunteer water quality monitor on both Lake Louise and Waughop Lake, gathering data for the City of Lakewood under a now 20-year program, just because I believe that such data is important.
In this effort to achieve a proper resolution, I have been countered by the City’s favoring of the opinions of “experts”, i.e. contractors employed by the City of Lakewood who are using their positions as trusted advisors to advocate “solutions” which will end up paying more money to those very same contractors for the undertaking and supervision of an alum treatment. I have been thus far unsuccessful in persuading the Lakewood City Council that it should evaluate that obvious conflict of interest.
I have further been unsuccessful at convincing the City Council members that it is improper for the City to accept financial responsibility for cleaning up the State’s mess in Waughop Lake, an outcome which is in conflict with the State’s own guidance on who should pay for cleanups of toxins.
I have even offered my services to the City at no cost in order to bring about a proper solution, but I have been rebuffed. Even more than just being rebuffed, I have been scolded by the Mayor and Deputy Mayor for not respecting their decision to move forward with an alum treatment.
After exhausting all of these avenues of persuasion, I am left with a situation where the only path toward achieving a proper resolution and outcome is via a lawsuit.
The federal Clean Water Act grants citizens the power to sue to bring about cleanups of waterbodies. As a citizen who is aggrieved by virtue of having been denied the beneficial recreational use of Waughop Lake because of the State’s actions in polluting it, I have initiated a lawsuit intended to compel the State to live up to its obligations as property owner. It was important that I initiate this lawsuit before the property transfer takes place, in order to establish my claim while the provisions of the 1970 lease agreement are still in force. The City was served with this notice on March 18, and the State Attorney General was served on March 19, 2019.
Under the federal Clean Water Act, the City and the State are each allowed 60 calendar days in which to respond to my “notice of claim”, and to attempt to possibly work out a resolution. If that does not happen, then on May 18, 2019 I am allowed to take this claim to the Pierce County Superior Court in order to pursue that court’s remedies which will hopefully include enforcement of the 1970 lease agreement, mandating that the State as property owner bears responsibility to clean up its mess. That responsibility also conforms to the Initiative 97 principle of “the polluter pays”.
I am no fan of lawsuits, and have employed every avenue possible to avoid it coming to this end. But as a citizen who is uniquely in possession of all the knowledge I have gathered over the past 10 years about Waughop Lake and its problems, I would be shirking my own duty if I did not undertake such a suit.
If you find yourself of a similar mind, annoyed at the State for dumping its problems on the City of Lakewood, and annoyed at the City Council for having accepted that deal, then I would urge you to write to the Department of Ecology at the address shown above for public comment on the alum treatment permit. I would further urge you to write to our City Council members, and invite them to reconsider their ill-advised decision to go against State law, imposing the task of remedying the State’s mess upon the citizens they are supposed to represent.