Deschutes TMDL Letter to the EPA

On July 31, 2020 The EPA established Total Maximum Daily Loads (TMDLs) for nutrients, dissolved oxygen and other factors for Budd Inlet, the Deschutes River and other tributaries in the watershed. The following letter was submitted in response:


A Total Maximum Daily Load is a numerical value representing the highest amount of pollutant a surface water body can receive and still meet water quality standards. The number is not a constant. Different water bodies respond differently to pollutants. Any study should logically, if we’re interested in solving the problem, include how these differences are manifested in a water body.

Oceanographically, this might be expressed as the study of the interrelationships between physical, chemical and biological parameters. Physical parameters would include things like depth, mixing patterns and availability of sunlight. Chemical parameters would include things like dissolved oxygen and nutrients. Biological parameters would include things like phytoplankton and zooplankton up to apex predators like diving ducks. These things do not exist in self-contained vacuums. They effect each other in ways that deserve rigorous analysis.

The report barely mentions tributaries that drain directly to Budd Inlet, principally Ellis, Schneider and Moxlie Creeks. The combined estuaries of these streams historically comprised as great an area as the estuary of the Deschutes River. The only assessments seem to be for E. coli which may be an indication of other problems but itself poses no threat to the marine environment. Even if we do only consider E. coli, most of the fecal coliform bacteria in Budd Inlet – 93% – comes from two sources: Capitol Lake/Deschutes River and Moxlie Creek. What data we have for dissolved oxygen indicates that DO is lowest near Capitol Lake and in East Bay, the estuary of Moxlie Creek.

What about the past? We know what Budd Inlet looked like from old maps, drawings and photos. East Bay, the estuary of Moxlie Creek, was a predominant feature in shaping Budd Inlet. Many rivers have a companion stream, Hylebos for the Puyallup, Medicine Creek for the Nisqually and others. First People lived sustainably in South Puget Sound for thousands of years. We know from accounts by Edwin Tolmie and others that they understood the importance of stream estuaries, each of which was occupied by a band of 50 to 100 people.

What will it look like in the future? In the 1980s, 1.1 million cubic yards of contaminated dredge spoils were used as fill to create 54 acres of uplands, nobody knows exactly where. In the following years, more dredge spoils were dumped on the Cascade Pole site which was turned into a containment cell. Dioxin concentrations inside the cell are said to be comparable to Love Canal. The containment cell has sheet steel walls that will fail in the salt water and we’ll have a mess like at the Wyckoff/Eagle Harbor Superfund Site only worse. That will be the next generation’s problem, not ours.

Flawed efforts:

In 2008, combined governing bodies completed a Sediment Characterization of Budd Inlet at great expense. The next steps were to be to “evaluate potential sources”, That never happened. We’ve decided instead to base the order of cleanup on development preferences and in the process little has been cleaned up. There are sub-tidal sediments in the vicinity of East Bay Waterfront Park with dioxin contamination as high as 1100 parts per trillion. The area should be fenced. This and other studies also found high levels of dioxin contamination in benthic surface sediments indicating uncontrolled sources.

Budd Inlet is an artesian discharge zone. The 100 plus historic wells and springs in downtown Olympia, combined with the prevalence of groundwater seeps, form an additional tributary, one that may be in worse shape than any of the others.

The Budd Inlet Sediment Dioxin Source Study 2016 states: “Moxlie Creek discharges through a large (72 inch) outfall at the south end of the East Bay. Moxlie Creek originates as an artesian spring approximately 1.5 miles south of the East Bay (Anchor QEA 2013). The creek is fully covered prior to discharging into Budd Inlet… Elevated surface sediment concentrations of dioxin/furan congeners were noted in the south end of East Bay during the 2007 Sediment Investigation (SAIC 2008). Subsurface cores collected in 2013 had some of the highest dioxin/furan concentrations measured in Budd Inlet (Anchor QEA 2013). Determining whether the outfall or other historical activities were the source of these dioxins/furans is a key component of this study and is discussed in Section 5.2.” This was never done.

The Forward of the Source Study states that the Port’s consultant’s findings that the source of dioxin is hog fuel burning, mixed urban sources, regional sediment profiles, urban background, sewage and nearby catch basins are off the mark and counters that the serious problem in Budd Inlet is pentachlorophenol (PCP).” The Forward concludes:
“The Department of Ecology, after consultation with regional experts, disagrees with the Port of Olympia’s chemometric analysis for the following reasons: The Port’s interpretation cannot explain the presence of dioxin/furan contamination hot-spots. The primary sources/factors identified by the Port of Olympia’s analysis were only diffuse sources. The Port of Olympia’s source factor profiles are not supported by their own site investigation
data and site history. The Port of Olympia does not address historical dioxin/furan contamination and the dispersion
and mixing pattern of the sediments. As the Department of Ecology moves forward with the cleanup of Budd Inlet sediments we will base all future decisions on the results and interpretation found in the Ecology study” (Budd Inlet Sediment Dioxin Source Study Olympia, WA (Newfields 2015).

Since then, in overseeing nearshore development, Ecology has reversed course again, going with the Port’s consultant, looking for surface contamination from hog fuel burning and mixed urban sources.

Westman Mill, a Case Study:

Westman Mill is an 85 unit complex with ground floor retail currently under constructionon on fill in the center of the historic estuary of Moxie Creek. Olympia Urban Waters League (OUWL) appealed the development’s SEPA checklist, suggesting the assessment for dense non-aqueous phase liquids (DNAPLs) like dioxin laden creosote (PCP) at the site was inadequate. Only near surface samples were taken whereas DNAPLs tend to sink. The assumption was that any contamination would be from plywood manufacturing and hog fuel burning and if there were any problems they would originate from theses activities.

The Sediment Dioxin Source Study 2016 states “All sediment samples in Budd Inlet had a similar dioxin/furan congener profile, or fingerprint that of PCP originating at Cascade Pole. Elevated dioxin/furan concentrations near the Moxlie Creek discharge also showed a congener profile similar to PCP. Additional source and sediment evaluations may be needed at these sites to determine whether they have significant sources of dioxin/furan contamination through the use of PCP. Additional current studies ininner Budd Inlet may also be needed to determine whether circulation patterns could result in the transport and accumulation of dioxins/furans (originating from Cascade Pole sources) to these areas.”

The OUWL appeal also claimed that the development would forever eliminate the restoration option impacting both endangered species of salmon that spawn in the creek and water quality. East Bay and Moxlie Creek, its principal tributary, are both degraded for numerous parameters. Moxlie Creek, which flows into East Bay, is encased in a half-mile-long, underground, concrete pipe. This affects the creek’s ability to assimilate necessary levels of oxygen from both the atmosphere and the workings of phytoplankton. Moxlie Creek needs to be “daylighted.”

Daylighting the creek would entail taking it out of the pipe and allowing it to flow above ground. Allowing any section of the creek to “breathe” would likely improve water quality. If only the mouth of the creek, the estuary, were opened, the exchange between salt and fresh water would happen more as it should.

The Hearing Examiner’s decision was that “The culvert conveying the waters of Moxlie Creek to the outfall into Eastbay is not a “stream” as defined by the City’s Critical Areas Ordinance. “This appeal is in essence a collateral attack on the City’s zoning ordinances, development regulations, and Comprehensive Plan.” In other words the stream does not exist. These regulations might make some sense if they are applying to existing structures. In this and most cases however they apply to new developments in sensitive areas.

Black Lake, a case study:

Black Lake lies at the headwaters of Percival Creek which flows into Capital Lake which flows into Budd Inlet. The Black Lake Special District sprays the lake with glyphosate, diquat and other poisons and recently requested $1.4 million to treat the lake for algae with alum. Prior to doing this we might employ some classical science: 1. We observe that nutrients in the lake contribute to an over-growth of aquatic plant life. (observation) 2. The source of these nutrients is septic tanks (hypothesis1). The source of these nutrients is fertilizers (hypothesis 2). 3. Conduct a chemical analysis of lake water (test 1). Measure geographic nutrient distribution (test 2). 4. Publish the findings and develop a plan to reduce nutrient input into the lake. To immediately employ poisons is not a science based approach.

The Clean Water Act (CWA) establishes the basic structure for regulating discharges of pollutants and quality standards for surface waters. The National Environmental Policy Act (NEPA) is the basic national charter for protection of the environment. The Endangered Species Act (ESA) provides for the conservation of threatened and endangered plants and animals and the habitats in which they are found. The Coastal Wetlands Planning, Protection & Restoration Act (CWPPRA) is designed to identify, prepare, and fund construction of coastal wetlands restoration projects.

In the words of Randy Newman, “Who’s in charge here?” That’s not easy to figure out. Here’s a guess. Under the Growth Management Act, nobody. We need to consult the Deschutes River TMDL study from the Feds, The Water Quality Improvement Report (WQIR) published by the Washington Department of Ecology and the Shoreline Master Program (SMP) from the City of Olympia. The Olympia SMP seems to have the inside track. When addressing the City Council, advocates have been advised more than once not to use words like phytoplankton because “nobody knows what that means.” Local jurisdictions who are least equipped to understand the issues and most susceptible to special interests are the ones making the important land use decisions.

East Bay versus West Bay, a case study:

A few years ago local governing bodies embarked on a plan to restore the Port Lagoon, the intertidal area between the railroad berm and West By Drive. Plans included removing sections of the berm. Members of the City Council characterized it as “strongly based in science”. The plan by contrast, like to many others, makes a mockery of the term “best available science” to which we’re supposed to be aspiring.

The berm went in about 100 years ago and represents a mature benthic community. One might hypothesize that removing this benthic community will have a deleterious effect on species richness and abundance and water quality. Or not. Where’s the science – observation>hypothesis>test>conclusion?

In a letter dated December 05, 2015, City Manager Steve Hall writes: “Our current environmental restoration efforts in the City are focused on West Bay which has active salmon runs, bird nesting and many other advantages over the Moxlie area. We are in the middle of a habitat study on west bay with the Squaxin Island tribe, the Port and others to improve environmental conditions on West Bay. Any future dollars we invest in restoration are likely to be directed there and not to East Bay. We don’t have the staff or money to also do Moxlie and I would not recommend the City or the Port change course from our West Bay efforts. If you are looking for optimal environmental impact, I’d urge you to follow the West Bay work.”

The idea that the Port Lagoon has the most restoration potential because it’s the least damaged is illogical. An intact area has no restoration potential. A completely damaged area has 100% restoration potential. Although the lagoon is a part of the estuary of the Deschutes River the same could be said about the entire bay and unlike East Bay the lagoon is not itself an estuary.

The City of Olympia is relying mainly on the West Bay Environmental Restoration Assessment Final Report of February 2016. The report was prepared by: Coast & Harbor Engineering, a Division of Hatch Mott MacDonald who specializes in sediment transport modeling and bulkhead design, in association with JA Brennan Associates GeoEngineers who specialize in landscape architecture and Davido Consulting Group Environmental Science Associates who describe themselves as “excellence in engineering”. All appear to be engineering firms.

Engineering is not science. They are separate, related, disciplines. Scientists explore the natural world. Discovery is the essence of science. Engineers innovate solutions. Engineering without science can be haphazard. Scientific discovery without engineering can be solely academic.

Under Olympia codes once a stream enters a pipe it no longer exists. There may be some logic in this if we’re talking about demolishing existing structures to restore streams. But the rule is more often applied in allowing new construction in what should be considered ecologically important locations. In support we’re supplied with shotgunned data and engineering reports leading us nowhere. Conclusions are buried in the document. There’s no connection between observation and hypothesis: We observe poor water quality in a stream. Might that be because we’ve broken the connection to the hyporheic zone or that we’re denying the stream sunlight?


Total Maximum Daily Load refers to estimation of a water body’s assimilative capacity (i.e., loading capacity). That assimilative capacity needs to be part of the investigation or we are siloing.

The streams, the river and the bay into which they all flow are not separate from each other. Physical, chemical and biological parameters are not separate from each other. Past, present and future are not separate from each other.

Estuaries are important for plankton. There’s been a $40% reduction in plankton world wide. Diatoms, the largest type of phytoplankton, have declined globally more than 1 percent per year between 1998 to 2012, with significant losses occurring in the North Pacific. Phytoplankton account for half of all photosynthetic activity on Earth. They’re a major source of atmospheric oxygen. Their cumulative fixation of carbon through primary production is the basis of oceanic food webs. Phytoplankton are the oldest and one of the biggest carbon sinks.

Sea grass and salt marsh hold fifteen times the carbon per acre as the Amazon rain forest. When coastal habitats are lost not only do they no longer capture carbon, carbon captured in the past is released. They turn from carbon sink to carbon emitter.

The Living Planet Index score for freshwater populations of water dwelling animals has plummeted by 83 percent. A report from the World Wildlife Fund affirms a nearly 50% decline in marine life populations between 1970 and 2012.

In Budd Inlet, as of 2002, birds facing local extinction included: Red-necked, Horned and Western Grebes, Pelagic Cormorant, Surf Scoter, Barrows Goldeneye, Hooded, Common and Re-breasted Merganzers, Ruddy Duck, Bonaparte’s Gull and Mew and Red-winged gulls. White Winged and Black Scoters, American Wigeon, Canvasback and Rhinoceros Auklet were already considered locally extinct.. Today, 18 years later, they’re all essentially gone.

The Moxlie creek culvert is intertidal. The tide backs up twice each day. It’s a mix of fresh water and saltwater environments. We’ve lost over 160 acres of tide flats, sea grass and salt marsh to fill in the historic estuary. Olympia sits on 160 miles of culverted surface waters. The City is absolutely opposed to restoring one single inch of any of it. Contaminated surface sediments indicate that dioxin continues to flow into the bay and the sources remain unknown. Water quality fails for dissolved oxygen, nitrates and bacteria. TMDL, the total maximum daily load refers to how much pollution a water body can absorb. It’s not just about the pollution, it’s about the water body.

Budd Inlet is an ecological train wreck. What was once salt marsh, herring, smelt, salmon, diving ducks and other species has become something more akin to a septic tank. Science has been diverted and compartmentalized, geographical areas and watersheds have been chopped up and time has been frozen in the present. The Federal Government is mandated with protecting and restoring clean water and preventing species from becoming extinct and should not abdicate this responsibility.

According to the UN Convention on Biological Diversity, species are in a catastrophic decline and the impacts will be broad reaching. The convention has issued what is called the “final report card” on progress against the 20 global biodiversity targets that were agreed to in 2010 with a 2020 deadline. Next year at the UN biodiversity conference, countries are expected to adopt a new framework to put nature on a path to recovery by 2030.

That framework – which has been dubbed a “Paris climate agreement for nature”, will encompass eight major transitions that all 196 nations will be expected to commit to including protecting habitats and reducing the degradation of soil; redesigning the way we farm; eating a more sustainable diet; protecting and restoring marine ecosystems; fishing sustainably; urban greening; and taking a ‘One Health’ approach, managing our environment as a whole.

TMDL analyses by their nature, considering a limited number of chemicals in a limited geographic area at only the present time, are essentially the opposite. This TMDL study is particularly egregious because of the arbitrary dividing of a single watershed into segments; the exclusion of important parameters in tributaries that are directly connected to Budd Inlet; and the absence of a plan to deal with persistent bio-accumulative toxins that continue to flow into Budd Inlet from unidentified sources.

Harry Branch

Read the EPA statement and comment:

Further reading:

Wetland/Riparian Management EPA. “It is important to preserve and restore wetlands and riparian areas because these areas can play a significant role in managing adverse water quality impacts. Wetlands, including depressional wetlands, and riparian areas help decrease the need for costly stormwater and flood protection facilities.”

Guidance for the “protection and restoration of wetlands and riparian areas, as well as the implementation of vegetated treatment systems.”

“The loss of nearshore habitat is the most significant threat to the health of marine waters in Puget Sound and Georgia Basin” (British Columbia/Washington Marine Science Panel, 1994).

Graphic of what’s intended. Parcel 3 has been developed. Moxlie Creek flows under Chestnut and across parcels 1 and 2, three buildings in the lower right center that will be constructed next:

More on Moxlie Creek:

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