La Paz Loses Yakima Case

Little La Paz County, AZ, has failed at great cost in putting biosolids drier Yakima Company out of business. Jim Willett, owner, told me years ago about the bizarre goings on that precipitated his 2004 claim for damages of $20M, the amount he would lose over a 25 year period as a result of the County terminating its contract. The contract was for providing space for the drying operation, and to secure additional space for future expansion in exchange for a $/ton fee. The contract encouraged volume and, in hopes of generating County revenues as quickly as possible, the County allowed Jim to start operations on condition of working up a closure plan and bonding for the closure costs. Then something went sour, and the county stalled beyond reason their acceptance of first the plan and then the bonding. When they did accept, they didn't inform Jim.

It was a pretty simple business model: truck the solids in from LA, lay it out thin and dry it in the wind and sun, windrow it to finesse stabilization, pick it up and truck the now Class A fertilizer-esque material a few miles back to California to needy farmers. With the right combo of clients, farmers, and truckers, it was clean, simple, satisfying, and profitable in what can be a complex, and low margin business.

Last week a La Paz County jury awarded Jim $9.2M plus legal expenses. Jim regrets the process and takes no joy in the results. It is not the life, and not the legacy, that he wanted.

The local rag has posted several articles on the trial (1, 2, 3). The newspaper, which gamely supports comments on articles, was unprepared for the outpouring of vigorous support for the jurors courageous decision, and the level of outrage directed towards the County Board of Supervisors for their mismanagement of political power. The paper clearly slants its writing in support of the BoS, adding to the intensity of the backlash. The editor, John Gutekunst, selectively deletes comments but even at that the longest set of comments now prints out to 33 pages even when ported to Word in 10font.

According to comments, the County's $1.5 million in legal fees are not covered by insurance, and the County determined this early on in the process. Comments characterize the legal effort as a personal vendetta against Jim by Supervisor Gene Fisher. This vendetta included asking the sheriff to arrest Jim's clients at the drier site for trespassing on County property, and coaching employees against their better judgment to the point that one County employee quit their job. Word gets out fast on that type of work place abuse. Tossing aside the potential of $1-200K/yr in much needed tax free revenue for personal reasons has added to local dissatisfaction.

Despite a lack of public support, or financial capacity, it is clear that the County will appeal. A reinvigorated recall effort is mounting to pull the plug on this monster.

Sunnyside Wetland

One of my projects made the front page of the Yakima newspaper. Since the paper tends to paywall these things in short order, I thought the blog would make a handy archive.

The picture here is from the project site. The retaining wall in the picture was placed by the county in order to keep the road apron from impacting what was presumed from USFWS-NWI reconnaisance mapping to be a jurisdiction wetland. That mapping plus the observed standing water and the wetland vegetation seemed to the county to be proof positive that clearing the land was a violation of the county critical areas code. It wasn't.

Published on Monday, September 10, 2007

County learns lessons from fight with farmer
By PAT MUIR
YAKIMA HERALD-REPUBLIC

SUNNYSIDE -- Don Young didn't think his neighbor's irrigation water leaking into his property should qualify it as wetland, and after a yearlong fight, Yakima County agreed with him.

The saga, which Young documented in a meticulous inch-thick file he says makes him feel like an attorney, cost him about $6,000 by his count and kept him from using the land until last month. It also forced county leaders to rethink the way they apply the county's Critical Areas Ordinance. The ordinance, which has been under review for five years and is nearly finished, still will be enforced as mandated by state law, county Public Services Director Vern Redifer said.

"But where you can construe the law in the favor of property owners, we'll construe it that way," he said.

That's good news to Young, a self-described "stubborn old farmer" who believes he might not have prevailed in his dispute if he hadn't had the money for a consultant to make his case.

"This is a story that needs to be told, not for my benefit but for the taxpayers and the public," the 73-year-old retired rancher said.

The whole thing began when a county road crew spotted Young pulling up vegetation on the edge of his property. The county issued a cease-and-desist order in May 2006, about seven months after Young bought the 4-acre property south of Sunnyside. To his thinking, the Russian olive trees and other vegetation he removed were just trash like the piles of tires and garbage that were also on the property.

Thinking he was actually improving the land, Young took umbrage to the county's order, which included the possibility of $1,000-a-day fines.

"Nobody ever said anything about it being a wetland," he said.

He also didn't like the way county staff treated him when he disputed the matter. It was clear enough to Young that the land in question wasn't a wetland because the only source of water was the neighbor's irrigation runoff, or what his hired consultant labeled "water trespass." But he couldn't get the county to see it that way.

"The heading of their letter is 'public services,'" Young said. "I told them they need to change that, because there is no way in this world that they are serving the public."

The county's opinion on the matter didn't change until Young received a report he'd commissioned on the matter by wetlands delineation expert Phil Small of Spokane. Small's report, written after a visit to the property during which he drilled holes to measure groundwater levels, found there was no source of water other than the irrigation runoff. The county considered it a persuasive argument and in a July 31 letter lifted the cease-and-
desist order.

"What I want to know," Young said, "is why didn't the county have to hire him to prove it was a wetland instead of me having to hire him to prove it's not."

In the county staff's defense, the property did have signs of being a wetland, such as reeds, bulrushes and the Russian olive trees, Redifer said. The staff was simply following its procedures as laid out in its own policy and didn't err in that regard, he said.

County officials tried to work with Young along the way, planning manager Steve Erickson said. But the county's suggestion that Young "wait and see" if his property was a wetland based on whether groundwater returned even without irrigation runoff didn't fit into Young's schedule, Erickson said. That meant Young had to hire his consultant to force the issue, but that was up to him, Erickson said.

Where things might have been done differently, and will be in the future, is in the way county staff deals with people in such disputes, Redifer said.

Comparing it to baseball, in which "ties go to the runner," he said if there are questions about whether to act on a possible wetland scenario like Young's, the landowner will be "the runner." That is in line with the Yakima County Commissioners philosophy of a more user-friendly Critical Areas Ordinance application, which they have espoused during deliberations on the ordinance.

Staff also might call people in the future or knock on their doors, rather than sending formal letters specifying possible fines.

"I think (the letter) made him feel like a big lawbreaker, and that certainly wasn't the intent," Redifer said.

"That's another lesson learned -- how we go about engaging someone with a potential violation," Erickson added.

While he would be happy to see such changes, Young still isn't sure the county has done right by him. He's contemplating filing a claim to recoup the money he spent fighting the initial ruling. In the meantime, though, he's working the land for the first time in about a year.

He's put manure down and hopes to have the whole thing seeded for pasture by the end of September.

"I lost the production of that land for a year already," he said. "Over a year."

* Pat Muir can be reached at 577-7693 or pmuir@yakimaherald.com.

My 2007 Field Season Begins

This week I field validated my hyporheic confinement hypothesis for a site I have been working on.

I had been out mapping wetlands and characterizing a system of ditches and stream-like features. Lucky for me, a chinook was blowing: soil thawed sufficiently to be observed each afternoon. With not-normal effects on vegetation and soil chemistry from seasonal saturation by a nearby irrigation ditch, I suspect these two particular wetlands would delineate smaller, jurisdictionally speaking, come the growing season in March. But I don't know for certain. The combination of river and irrigation induced hydrology can be confounding.

Many of the stream-like ditches used at the site to accommodate irrigation water and return flows were dry. For the ones that had flow I had a devil of a time getting into them safely to measure their cross sectional profile. Prior to my client's purchase for a residential/golf course project, the property was used to run a cow/calf operation. Much of the lower ditch (15 - 30 feet across) has 20 plus inches of anaerobic mud and manure, a sure recipe for disaster for the hip wader approach. The occasional gravel bar saved me from having to pontoon for my data.

The ditches are running with mostly hyporheic/phreatic Yakima River water. I say mostly, because some snowmelt was running in a small ditch onto the site from the upland terrace onto the floodplain. The Yakima is 1000 feet away and was running near bank-full. The ditches are running a few inches below the ordinary high water scour line, and I feel certain the two hydrologies are connected.

The concept that hyporheic/phreatic hydrology can reach this far is a challenge for most folks, including my fellow project team members. How can river groundwater hydrology be feeding it when the ditch is higher than the river? The answer lies in subsurface gravel filled channels. Rivers lose and gain the same water repeatedly. In losing reaches, water drops out of the bottom into permeable gravel filled channels. Where these channels are covered with less permeable material, confinement can result in a considerable buildup of gravitational head. Where the gravel channel reaches to the margin of the floodplain, confined water can upwell at considerable distance from the river, and can be confused with irrigation derived groundwater.

In the Yakima Valley, with its 500,000 irrigated acres and its network of leaky canals, irrigation induced seasonal wetlands are common. In the floodplain, upwelling hyporheic/phreatic river water can be masked by irrigation induced hydrology, but only while the canals are full, or recently so. During this January visit, long after irrigation diversions have ceased, there was no mistaking the dominant river-induced hydrology at the site. Especially telling was the water level in an existing stream-like ditch compared with the newly constructed closed ditch intended become its replacement. Closed at the upper end, the upwelling river derived groundwater flowing in the new ditch was higher by 14 inches than the water flowing in the adjacent, topographically upgradient, closer-to-canal, older, connected, irrigation district return flow structure. 14 inches is also consistent with seepage on the bank of the older ditch structure. In the photo these are separated by only 60 feet.

These 2 ditches provide the strongest validation I've seen in the 20 years I have been observing and puzzling over hyporheic confinement and upwelling.

Tech Tags: sample soil scientist wetland consulting hydrology yakima water drainage environment irrigation regulation

New Soil Science Licensing Website

Renewed soil science licensing efforts are underway in Washington State. Supporting them is a new website. Titled Soil Science Licensing, the site is available to become a clearinghouse for all soil science licensing efforts. It links to the best available information, including the list of soil science licensing boards maintained by the Soil WikiProject.

For now, the Soil Science Licensing site effort is strictly focussed on Washington state's efforts. The latest revision (pdf) (December 7, 2006) has been posted and I have one concern with the new wording:

The practice of soil science does not include design work, such as would be carried out by either engineers, as defined in RCW 18.43.020 or architects, as defined in RCW 18.08.320.

We need something along these lines, but the term "design work" is not specifically defined in the cited sections, but is referred to somewhat broadly. Is this going to be a problem? Perhaps someone with experience in one of the licensed states can comment.

Grazing tool for managing riparian buffers

A Capital Press article (subscription) by Doug Warnock promotes grazing in riparian buffer areas, saying:

When grazed properly, forage plants in the riparian zone can be stimulated to re-grow and contribute greatly to the health of the ecosystem.
The grazing process helps break up capped soil...

Up until a few months ago I was enthusiastic about preserving soil crusts. Some reasoned criticism of this perspective has helped moderate my opinion.

... stimulates the incorporation of plant tissue into the soil resulting in increased organic matter and the animals add minerals to the soil. It also helps control the growth of woody plants, which can shade out desirable grasses and forbs that hold the soil on stream banks and filter out soil particles during high water periods. Grazing animals can also be effective in controlling undesirable plants, if grazed at the proper time.
By excluding this tool (grazing), other tools must be used in to manage the property and most of them are more costly. Herbicides to control weeds, and equipment to cut back brush and trees require out-of-pocket expenditures. Still, probably the most important benefit from grazing is the stimulation of the growth of the grasses and forbs by the removal of part of the plants’ stems and leaves.
The key, in all of this, is to not allow the grazing animals unlimited access to the riparian zone, so that they are kept from overgrazing the plants.

This all makes good sense and the article goes on to line out the tools available to make it happen. In comparison, the common regulatory default position of universally excluding the total sum of all excludable activity from all riparian buffer areas appears a convenient stop gap rather than a reasoned construct.

Tech Tags: news review soil crust animal information riparian management tools innovation science government regulation

Soil scientists required in Pennsylvania for septic system permits

Soil scientists at work. In many states, professional soil scientists conduct the septic system site assessments required for permit approval. Soil scientists also get involved in adapting alternative on-site disposal technologies. This brief newspaper interview with Leonard Cornish, owner of Pocono Soil and Environmental Consulting Inc., Wilkes-Barre, PA reveals some of the basic scientific and technical requirements needed in this type of a business. The news article should be of particular interest to soil scientists considering going into the business of environmental consulting or individuals looking to hire on with a soil scientist owned business.

Tech Tags: Soil science business job opportunity septic system government permit wetland land survey

German science workshop news critical of precision agriculture performance

A German soil science research center reports that Precision Agriculture has not delivered on promised benefits, stating:

...worse are the actually reported effects of ..."Precision Agriculture" (PA) ...on N efficiency. Still after 15 years of implementation no results proving consistent increases in yields or decreased fertilizer application are available. Quite the contrary: some of the techniques developed in PA may even decrease fertilizer N efficiency...

The Federal Agricultural Research Center (FAL) - Institute of Plant Nutrition and Soil Science's workshop, Options for reducing the nitrogen surplus in plant production, has individual presentation pdf files available, including the one on PA.

Tech Tags: soil science fertility farm productivity dairy waste management manure efficiency environment GPS data analysis precision agriculture workshop news

Phosphorus and TMDL

Today I am pulling together conceptual information related to phosphorus (P) and Total Maximum Daily Load (TMDL) in anticipation of meeting with Walt Edelen and Rick Noll, water quality folks with the Spokane County Conservation District (SCCD). The problem we will be putting our heads together on is the relationship between river and stream P levels (ug/l) relevant to TMDL and soil P levels (mg/kg) in adjacent, contributing areas. More specifically, we are going to lay out what methods and approaches are available for gathering soil P information that will produce data that can be used to measure P loading, measured in pounds of phosphorus, lost to the river. We want tools to quantify the effects of implementing various Best Management Practices (BMPs) for controlling streambank sluffing and farm field erosion.

The motivation for specifically defining pounds of phosphorus delivered has to do with the concept of phosphorus load allocation. It has to be conceptual, rather than actual, because, when it comes to soil contributions, we don't have the studies needed to characterize the complex causes and effects in these systems. Nor do we have the luxury of time of waiting for the studies to be designed, funded and conducted. The TMDL beast is at the door.

At first glance, it seems like a simple question of mass balance. How many tons of soil are discharged to the river, where and when, and how much phosphorus did it have in it. A mass balance approach certainly makes sense for wastewater dischargers, considered the most significant source of P in the Spokane river. But that approach doesn't fit as easily for soil. How much soil phosphorus converts to water phosphorus. It can't be 100% efficient, some will end up dissolved in the water, some will end up involved with the suspended sediment load but the rest will end up on the stream bottom where it will contribute P to water only over a long period of time. Complicating this is seasonal changes in capacity of a stream to carry suspended sediment. Clean water is hungry water and it picks up material fairly easily. Muddy water is different and it drops it's sediment load whenever it loses energy, the insides of curves for instance. You can bet that sediment delivered to a clean stream is going to affect total phosphorus levels more efficiently than sediment delivered to a muddy stream. Considerations of efficiency mean testing for available phosphorus may not be enough. The next most obvious analytes to add into the mix are total phosphorus, texture, pH and organic matter content. I'm looking forward to a lively discussion.

Technorati tags: Soil science TMDL

Dept of Licensing Surveys Soil Science Practice, Recommends Regulation

The Washington State Department of Licensing (DOL) has submitted a requested Sunrise Review of Soil Scientists to the State House Commerce & Labor Committee. The report recommends that the practice of soil science be regulated.

Members of the Washington Society of Professional Soil Scientists (WSPSS) can find much to be proud of as well as cause for renewed vigilance in DOL's report. Soil science has been in DOL's sights before but the current set of events that led to the sunrise report started in 2001. That was the year that soil scientists became concerned that under the Geologists Licensing Act, practicing soil science would require being a registered geologist. Timely action by WSPSS resulted in an exclusion for the practice of soil. It also reignited WSPSS' interest in licensing.

Renewed efforts followed shortly in 2002 when soil reports prepared by a soil scientist were rejected by the Pierce County Planning Department. The planning department required a licensed geologist, consistent with a draft model Critical Area's Ordinance (CAO) being prepared by the State Department of Community, Trade & Economic Development (CTED). Subsequent effort by WSPSS to revise CTED's Model CAO to include soil scientists as qualified to submit soil reports were initially successful but, for reasons that have not been determined, the soil science profession was not included in the final draft.

Without licensing, soil scientists are failing in their efforts to maintain their professional standing with county planning departments, health districts and permitting agencies in Washingtonm State. Draft legislation to license the practice of soil science was submitted to both State Senate and House committees during the 2004/2005 legislative session. Lobbying efforts resulted in the House Commerce & Labor Committee request to the Department of Licensing to prepare a “sunrise� report that would define the reasoning and metrics underlying the request to be regulated.

An excerpt from that report:

Considerable evidence compiled in this report, through out-of-court settlements and litigation, show harm to property, health, safety and welfare of the public. Public health endangered by improper soil analysis ... has led to contaminated wells and groundwater; septic system failures; and compromised wetlands. Harm to the public exists when [action] is approved without a comprehensive soil analysis conducted by a soil expert to support decision[s] taken. Public harm occurs when ordinances excludes a professional group that hold an expertise through education and experience. Exclusion of a qualified group to practice diminishes choice. A significant number of court settlements indicate that there are professionals [who] practice soil science beyond the scope of their expertise. In view of the findings regarding the practice of soil science, the following recommendations [are] made for consideration by the Legislature:

1. That Soil Scientists be regulated; and
2. expertise should be defined to minimize overlap of work to be performed.
   

The sunrise report goes on to indicate that defining what is soil science, and identifying who is a soil scientist is a challenge. Furthermore, without a commercial yellow pages heading for the profession, consumer access to soil scientists is limited to an informal referral system. Professional soil science societies are viewed in the report as ineffective in protecting the public from unprofessional acts by soil scientists or purported soil scientists. Specific examples of damage are provided in the report, including at least $3,000,000 in damage claims due to septic system problems in Cowlitz County in western Washington. Also cited were 20 cases in eastern Washington, provided to DOL by the Washington Department of Ecology, where earlier or more competent soil science consultation could have saved resources and protected human health.

Now that the sunrise report has been submitted, the legislature can move forward during the 2006/2007 legislative session to act on the previous draft. Prospects look good for passage, but regardless of the outcome, Washington soil scientists cannot help but be lifted up by the findings of the sunrise report: Practitioners of soil science are needed in Washington State to a degree that individual practitioners could not have been aware of. While it is extremely disturbing to learn of several instances of unprofessional work by purported soil scientists, it is good to read that quality work is highly valued and recognized as critical to protecting health and resources. Washington soil scientists already know that we are in some demand: once a soil scientist establishes a niche, it is rare to find that individual idle. DOL's survey offers us a unique glimpse into the bigger picture as to why that is.

1997 photo of sprayfield with soil problem.
Olympia Cheese. Lacey, WA.

Technorati Tag: Soil science Licensing

Biosolids, Politics and Character

Biosolids, aka domestic wastewater (sewage) treatment solids, is pretty interesting stuff, to me anyway. From a soil scientist's perspective it is chock full of good stuff: Essential plant nutrients and humic substances (humic acid, fulvic acid) beneficial to soil quality. Biosolids is superior to chemical fertilizers from both a crop production perspective and an environmental protection perspective.

This is not raw sewage solids or raw septic tank solids. This is the microbial biomass solids produced during the time the sewage is being treated, usually a 20-30 day process, prior to the treated liquid being discharged to a surface water body. These solids have about the same ratio of N:P:K:S present in soil microbial biomass.

Since the 1972 Clean Water Act, USEPA has been encouraging treatment facilities to give preferential consideration to recycling the soil property enhancing constituents in biosolids. These constituents were originally derived from crops grown on agricultural land and federal legislative intent is to see these materials recycled and put to beneficial use at their source. At the basis of this intent is a conviction that the overall benefits of beneficial use exceeds the added economic and regulatory burden placed upon the local and regional taxpayer and the wastewater treatment ratepayer.

Because of costs to transport material beyond the reach of urban sprawl, it would be cheaper to dispose of it in the ocean, or, for interior cities, in a landfill.

The constituents within biosolids are derived from nonrenewable resources and energy intensive processes and, being a regulated material under the authority of the federal government, cannot responsibly be allowed to be simply discarded when the opportunity for beneficial use is available. This policy makes more sense with each passing year.

Critics and skeptics of beneficial reuse on farm land abound, but fears of environmental degradation have yet to be borne out by events.

Once I had the opportunity in the 1980's to ask the then-President of the Washington State Farm Bureau why the American Farm Bureau Federation had a policy in opposition to land application of biosolids on farmland. He was a respected, retired soil scientist, and I asked for a science-based explanation. Instead, he explained that the national Farm Bureau was using their opposition to biosolids to persuade legislators to address burdensome regulation of farmers related to wetlands and surface water quality. They correctly recognized that Farm Bureau support was valuable and wanted a quid-pro-quo accommodation or to at least be able to make a statement.

You have to respect this point of view. It may not be science-based but its not off base either. That Farm Bureau fellow was just staying in character.

Technorati tags: Soil science Biosolids