Nerditorial: Yes, Virginia, There is a Lake Whatcom TMDL

The Whatcom Excavator is all about Lake Whatcom. Just ask them.

The Excavator has been made privy to a case in Virginia, involving the EPA, and a TMDL. 

In Virginia. LINK

And Publius (the screen name of all contributors for the Excavator) was doing an endzone dance in celebration of this ruling.

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In a nutshell, the State of Virginia argued that EPA has no authority to regulate stormwater volume since stormwater without any pollutants is not a pollution source.  (And EPA has no authority to regulate things that are not a pollutant or pollution sources.
...

The Excavator has concluded that this Virginia case enjoys some profound bearing on the matter of the TMDL of Lake Whatcom.

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Does this case this matter here?   Yes, absolutely.   This ruling is crystal clear - "stormwater runoff is not a pollutant."   WE expect that acknowledgement of this ruling will be fiercely resisted by state regulators and zealots who want to severely limit land use by humans, their pets, and livestock.
...

This story from the Whatcom Excavator reveals the folly of people with no legal background drawing relatively esoteric conclusions from legal rulings. In addition to demonstrating an impaired understanding of water science, Publius also demonstrates an impaired understanding of legal jurisprudence.

Rumor has it that... if a movie about the Whatcom Excavator gets the green light... the part of Publius will be played by Joaquin Phoenix...

Problem #1 The Virginia case is a district court ruling.

It appears that the Whatcom Excavator is under the impression that this will have some sort of precedent setting impact in Washington because it is a federal court ruling.

But it is a federal district court ruling. A district court ruling in Virginia is unlikely to have much (if any) legal impact in Washington State. 

It is my limited understanding that if this were a Circuit Court ruling, then there is the possibility that the ruling would have some precedent setting impact over here, but it would be unlikely to have an impact enough to set a commanding precedent.

Problem #2 The Virginia case bears little resemblance to the Lake Whatcom TMDL

Commanding precedent is a term with a specific legal meaning, and that meaning doesn't appear to apply to a comparison of the Virginia case and the case of Lake Whatcom.

For a case to serve as a commanding precedent to another case (and be the legal slam dunk that Publius is making this Virginia case out to be), all the legal issues need to be identical. The Whatcom Excavator certainly makes it sound like this is the case. But close comparison of the two bodies of water suggest otherwise.

Both Accotink Creek and Lake Whatcom are impaired bodies of water and both are subject to TMDLs. Other than that, there are few similarities.

The Virginia case involves a TMDL on a creek (Accotink Creek), not a lake (Lake Whatcom).

The Accotink Creek TMDL is about an entirely different type of impairment than has been attributed to Lake Whatcom.

Dissolved Oxygen has been clearly identified as the stressor of Lake Whatcom. In Accotink Creek, Dissolved Oxygen has been dismissed as a non-stressor.

Phosphorus Loading has been clearly identified as a primary stressor of Lake Whatcom. In Accotink Creek, Phosphorus Loading has been deemed unlikely to be a probable stressor.

The stressors attributed to Accotink Creek (which, I repeat, is not a Lake) are stormwater and sediment. There is no mention whatsoever of stormwater or sediment as stressors of Lake Whatcom.

The Lake Whatcom TMDL doesn't identify stormwater as a pollutant or a "proxy for a pollutant".

Problem #3 Wrong surrogate

Publius asserts that...

...WA Ecology's 2008 Lake Whatcom TMDL "Water Quality Study Findings" report repeatedly states that it employs "surrogate measures" to regulate pollutants. 

So, TMDL's here are based on model, not observed, data and stormwater is a surrogate (a substitute, or “proxy”) for pollutant (phosphorus) sources. This is very similar to the case decided in Virginia.  In Virginia, the pollutant was "sediment," and here the pollutant is "phosphorus."...

Except, unfortunately, it is not similar.

In the Virginia case, the EPA did attempt, in writing, to use surrogate measures to regulate pollutants. In that case, stormwater serves as a surrogate (or proxy) for sediment.

In the Lake Whatcom TMDL, the "surrogate measures" to which Publius refers are not about regulating pollution. Nor is stormwater used as a surrogate for phosphorus. Instead, developed acreage is used as a surrogate for phosphorus loading. The surrogate measures are used for the purpose of computer modeling of the lake.

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(page 69 of the Lake Whatcom TMDL Study)
Developed acreage qualifies as a possible surrogate measure for phosphorus loading to fulfill the
requirements of Section 303(d).

(page 77 of the Lake Whatcom TMDL Study)
The best available information about the effectiveness of pollutant-control practices can be used
for establishing implementation to meet surrogate measure targets for developed acreage.
...

The Department of Ecology didn't use "surrogate measures" to regulate pollutants. Ecology used "surrogate measures" to simulate the lake's health in a computer program.

The Virginia case didn't mention anything about forbidding the EPA, or anyone else, from using surrogate measures in computer modeling for a TMDL. 

In fact, I was unable to find any mention in the Virginia case of computer modeling at all.

This is the most obvious point where the Virginia case has no apparent meaningful bearing on Lake Whatcom.

Problem #4 The Whatcom Excavator's likely source for this story is a lake impairment skeptic. 

I heard about this Virginia case on Thursday, January 11. Two days before the Whatcom Excavator posted its story.

I was at a County Planning Commission meeting, and Planning Commissioner David Onkels mentioned this case.

It strikes me as unlikely that this is a coincidence.

Commissioner Onkels has been outspoken in his skepticism of the Department of Ecology's entire approach to Lake Whatcom. And it is no surprise that he is talking up a case that, when presented in the shadow of a Gadsen flag, has the appearance of relevance to Lake Whatcom.

This entire story suggests that Publius didn't bother reading anything about Lake Whatcom beyond what supported this anti-Ecology argument.

Which brings me to the Reconveyance.

You see, folks, the Reconveyance critics and skeptics (like Publius) have a long list of reasons for their opposition.

And one of their most celebrated (and gleefully repeated) reasons...?

Because the Department of Ecology hasn't signed off on the Reconveyance.

And which member of Ecology are they relying upon for this perspective?

Steve Hood. 

The author of the Lake Whatcom TMDL Water Quality study that Publius just indicted in its article.

So, when Steve Hood refrains from giving a full throated endorsement of the Reconveyance in terms of Lake Whatcom water quality... then he has credibility in the eyes of Reconveyance skeptics like Publius...

...but when he drafts the TMDL Water Quality study and links phosphorus loading to developed land... his credibility magically disappears.

Bravo Sierra, Publius. LINK

Either Steve Hood is a credible source of information on Lake Whatcom, or he's not. You can't just cherry pick his credibility based on how you feel about his statements about the watershed.


Not without having an impact on your credibility, anywho.

Nice try, Publius. But your concern about Lake Whatcom science just comes across as concern trolling.