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

Ida Powell

In southeast Yakima is a Carpathian walnut tree. It was planted long ago and the trunk is now 3-4 feet thick. It towers over the expansive 1895 farmhouse that it shades. Beneath its spreading branches, four huge picnic tables wait patiently for spring. That is when the neighbors will return, as they have every year since the early 1980's, to work alongside church and trade school volunteers to reawaken the proud building at the corner of Spruce and Union (Union is where 9th St. would be). Others work to rejuvenate the 1 acre of pioneer planting that helped qualify this Estate's placement on the State's Register of Historic Places. Restoring the property to the community is the vision of the South East Neighborhood Improvement Committee (SENIC), a 501c(3) non-profit corporation. SENIC's unofficial motto is "we can do more good with nothing than others accomplish with thousands." In support of SENIC's efforts at the Historic Ida Powell estate, a PayPal donations link is provided below. Please make a donation and please visit this summer to share in the project. Parcheesi players are especially welcome for late summer evening games in the shade of the walnut tree.

(Historic Property Inventory Form for this site - PDF )
(If you have MS Internet Explorer you can get to a nice write up and picture using the query function at the State Department of Archaeology and Historic Preservation's WISAARD site, but it takes some doing to get there. "Query" (lower Left) for POWELL HOUSE)

UPDATE: I neglected to mention that the POWELL HOUSE is also on the National Register of Historic Places)





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