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Can flood control bonds be used in behalf of recreation interests on Black Lake?

Citizens for a Clean Black Lake has made progress in its effort to show the County Commission that it is illegal to use a flood control district to fund treatment of algae bloom in Black Lake. The Black Lake Special District (BLSD) had requested Thurston County Commissioners to back a bond issue for $1.4 million to pay for an alum treatment to the lake.

The Department of Ecology (ECY) has now contacted the Attorney General’s office to determine if BLSD, formed under RCW 85.38 whose purpose is to allow for flood control, diking and drainage, can be used in behalf of lake management actions related to recreation on Black Lake.

CCBL argues that BLSD as a flood control district never had the authority to do lake management activities under the Clean Water Act. Research into the District’s meeting minutes discovered a 2014 Board Resolution .that specifically states “BLSD does not intend to engage in flood control except to the extent of encouraging Thurston County to fulfill its obligations to maintain storm water flows into and out of Black Lake to minimize flooding.”

As Black Lake has no controllable flooding, no flood control dikes or ditches and the BLDS declares it has no intention of “engaging in flood control” its very establishment was improper. According to Nathan Lubliner, ECY unit manager for general permits in the water quality division, this issue has not previously been considered by the Department.

The County is attempting to circumvent this law by claiming the flood control district would be conducting lake management activities according to RCW 36.61 a statute that governs Lake Management Districts. According to the Citizens’ group, this is like saying that someone with a driver’s license also has the right to fly an airplane.

In effect, the County delegated its authority and responsibility to protect and manage Black Lake to the exclusive BLSD board, whose previous incarnation was as the “Save Black Lake Coalition.” Their primary objective was stated as “to keep our lake water clean of noxious weeds, invasive species, and nuisance weeds that prevent lake enjoyment and damage boat and watercraft engines.”

The flood control district has already carried out several lake management activities. Their own County-approved 2012 Integrated Aquatic Vegetation Management Plan recommended manual pulling of weeds after two years. They have violated the plan by continuing to use herbicides, including glyphosate and diquat through the current year, long past the two years allowed. And though this was never mentioned in their approved Plan, the district spent $790,000 on alum treatment that promised to be effective for 5-10 years but lasted only three years.

Thurston County Commissioner Gary Edwards is opposing the $1.4 bond because of the negative effects it will have on mobile park residents and other low-income seniors on the lakefront because they couldn’t afford the pass-through fees they would inevitably shoulder.

Commissioner Tye Menser responded to CCBL concerns in a letter stating that he favors an “aggressive approach to addressing external phosphorus loading in Black Lake due to stormwater runoff and failing septic systems,” but he is reluctant to intervene in an issue that he perceives to lie within the purview of the flood control district.

Menser’s letter did not address the question of violation of the 2012 plan, nor the possible effects that continued dumping of chemicals will have on the County’s strategic groundwater reserve. This requires “local governments with land-use authority to protect the quality of the public groundwaters reserved for future public water supply” as designated in WAC 173-591, or on the 16 Critical Aquifer Recharge areas which, like the strategic reserve, are in hydraulic continuity with Black Lake.

He also did not respond to CCBL’s claims that according to the purposes of the statutes that formed them, flood control districts can only engage in activities related to flood control, so that any aquatic management done must also be for flood control and cannot be done for a completely different purpose as is the case at Black Lake.

Even if the Department of Ecology ultimately decides to allow the flood control district to do recreational lake management activities, CCBL plans to challenge the ruling. The County will still have many questions to answer about its responsibilities as the land use authority for Black Lake, including the lack of any State Environmental Policy Act (SEPA) review, and the effects of this project on the surface and groundwater of the area.

Esther Kronenberg follows water issues in Thurston County and writes often for WIP. To support CCBL, please contact Suzanne Kline

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