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Sunday, March 17, 2002
A river runs wild Questions of ownership, responsibility cloud solutions LORRINE THOMPSON THE OLYMPIAN
THURSTON COUNTY -- Janet McCarthy stands next to the muddy, fast-moving Deschutes River as it whirls and flows directly beneath her bedroom window.
Two days of steady rain have changed the river from a peaceful waterway barely visible from her 1939 cabin to a bloated and busy thing looking for a place to flow.
That's because the water has slammed into a dense, 1,300-foot logjam not far from McCarthy's house.
But she's not worried about her cabin.
As she stands in the quiet woods near her home, a loud, mechanical droning can be heard from across the river.
"His pump is going," McCarthy says, pointing to her across-river neighbor, Bill Pendergast. "It's a sad sound."
It means her friend is again working to save his house from the logjam's flood.
None of the tight network of friends living along the Deschutes knows if Pendergast will succeed, or what will remain of their own properties when the river is finished carving new channels around the jam.
The logjam has been developing for years near the Waldrick Road bridge in south Thurston County, but grew suddenly by several hundred feet in December during heavy rains.
Nearby properties started to flood severely, and property owners began asking the county for help.
They recently sat through a series of public meetings in which county officials decided they couldn't use tax money to remove the jam because it threatens only private property.
The public process left homeowners disappointed and confused about the nature of their property -- they can't own the river, can they? -- what right they have to act on the logjam themselves, and where they go from here.
Such questions are common not only in watery South Sound, but throughout Washington and other states with many rivers and lakes, state and federal officials say.
"It gets complicated," said Steven Ivey, an aquatic lands surveyor for the state Department of Natural Resources.
Although numerous laws exist to protect natural resources, the laws also leave a great deal open to debate regarding public rights to use river water and different types of shorelines, he said.
Who is responsible for logjam situations and whether a jam can be demolished also vary by type of river and what is being threatened.
Each situation is unique, so each can be debated individually, state officials say.
It's a debate that is now reality for the landowners near "river mile 13" on the Deschutes River, where the large logjam is growing.
Learning that the riverbed is private property was news to them.
"I thought that was a rather shocking statement," McCarthy said. "We own the ground but not the water?"
Pendergast, her busy neighbor, agrees. It is his home that is nearest the river and most in danger of being lost. He sustained about $10,000 in flood damage this winter when the logjam grew.
"The problem we're having is, they're telling us they won't help us because it's a private river," Pendergast said. "Well, if it's a private river, why do we need all these permits?"
Logjams as habitat
When logs start jamming up sections of the Nisqually River near the Nisqually tribe's reservation, you won't see anyone scrambling with worry.
"We don't do anything with them except brag about them," said George Walter, environmental program supervisor for the tribe.
"It's indicative of a stream that's still partly in its wild and natural condition," Walter said of logjams. "They're a good sign."
Logs and woody debris floating down the river mean the river still has a natural bank with plenty of plant life, he said.
"To the extent that it is at all possible, we want to promote natural river dynamics," Walter said. "We want old-growth trees; we want abundant side channels. We want a river that's free."
But that hasn't always been the case. Until about 1975, government agencies and private landowners cleared logjams regularly. They were seen as a nuisance, not only to landowners but to fish needing passage up streams and rivers.
"Probably in the old days, we did things we shouldn't have done," said Jim Fraser, a biologist and habitat manager for the state Department of Fish and Wildlife.
But tribal and state biologists began to realize that logjams provide cover for fish -- places to hide from predators, find shelter from the sun, rest and eat.
The jams also promote gravel areas for spawning and attract insects for food.
"It creates a more complex habitat. It kind of controls the river somewhat, too," Fraser said.
When logs are placed in rivers, within days they are surrounded by young fish, according to a report by the Northwest Indian Fisheries Commission.
The benefits of wood in the river "are pretty universally accepted," Fraser said.
For that reason, logjams are now protected. Rivers that carry protected fish species -- the Deschutes is home to Puget Sound chinook salmon -- are watched more closely than others.
Only when a jam creates a fish passage problem will state officials step in to clear the passage, Fraser said.
Owners have options
But that doesn't mean property owners are out of luck. They still can seek permits to clear the logjams.
"They have to have a reasonable justification that it causes a property loss situation," Fraser said.
State biologists will look at each situation, he said. Permits to clear jams that are threatening property can be issued, though officials will ask that property owners clear the minimum possible.
"We easily prefer for people to rearrange (the jams). Keep the wood in the system," he said.
Rick Nelson, a cattle rancher who lives along the Deschutes, fought through the permit process to remove a large jam near his ranch in 1998. The logjam was causing severe flooding of Nelson's hay field, threatening his livelihood.
Even then, Nelson said it was a struggle to get the permit.
"When you talked to the bureaucrats, they said, 'Oh, you can't touch that. That's large woody debris,' " Nelson said.
He ended up appealing to an elected official for help, and got the permit -- called a "hydraulic project approval" permit -- from Fish and Wildlife.
Nelson said it took a few days and a few thousand dollars to clear the jam. He stacked the wood alongside the river to retain fish habitat and stabilize his river bank.
Nelson said he has nothing against keeping fish habitat, but "government shouldn't stop you from protecting your property."
County's actions
Thurston County officials say they won't stop Deschutes property owners from protecting their homes and land, but the county is limited in what it can do.
Thurston is not the first county to come to that conclusion, said Dan Sokol, flood plain management specialist for the state Department of Ecology.
Flooding in 1995 caused a large logjam on the Cedar River in King County, which, in turn, began flooding private properties near the jam.
King County officials examined the problem and determined the county would not step in unless there was an overriding public interest -- such as a threat to public roads and properties.
Thurston County doesn't have a logjam policy, although one might now be added to the county's emergency management plan, said Mark Swartout, natural resources manager.
"They've never had to figure out a jam before," Swartout said. "Now we at least have one logjam under our belts."
In a split decision last month, commissioners decided not to use county resources to clear the logjam, though county staff members can help in other ways.
While Commissioner Kevin O'Sullivan voted in favor of helping property owners, Commissioners Cathy Wolfe and Diane Oberquell said they could not justify the cost.
"This is the hardest decision I've ever had to make," Wolfe said.
County officials worried about taking on the logjam for several reasons: liability, the estimated $1.6 million cost of the project, setting precedents for getting involved in logjams, and the likelihood that the jam would re-establish itself within a few years.
However, the final decision rested on one concept: "gifting."
State law forbids the county from giving private property owners substantial tax money to protect private property. There has to be a threat to public health, safety and facilities -- such as a threat to a public road or bridge -- or a threat to life for public resources to be used.
The county can provide "reasonable assistance," such as information and referral, technical assistance and facilitation between affected people and agencies.
County emergency management officials hope to monitor the growth of the logjam and create a plan for acting quickly if a public health or safety situation develops, said emergency management coordinator Kathy Estes.
The county has sent out 16 letters requesting access to properties so it can monitor the situation. However, only three permission forms have been returned, Estes said.
"We aren't measuring it the way we'd like," she said. "Right now, we're relying on someone to say, 'Hey, we need help.' "
The county also has sent out a tree expert to advise residents which trees could be in danger because the rerouted river has weakened roots, and sent out information on federal grant programs for flooding properties.
At river mile 13
Vickie Cline has received the information from the county, but she can't bring herself to answer right now.
"We feel pretty much devastated and pretty much hanging out," she said of the county's decision not to clear the logjam.
Cline and her husband, James, live a few treetops away from McCarthy on the Deschutes. The logjam flooding has cost them property and a campsite, but it should not take their house.
However, the river's actions are startling to see, Cline said.
"All the stuff happening out here right now, I've never seen it," she said. "I was doing dishes, and I saw a tree fall on the (neighbor's) property. It's spooky."
McCarthy, who has lived in her cabin since 1974, feels the same way.
"This is entirely new," she said.
The river can be almost normal and calm, then "literally in 48 hours, it can be right back in your face," she said.
McCarthy is still disappointed with the county's decision.
"I personally can't let go of the frustration that it's public policy that led us to this," she said.
Because state regulations require river wood to be left alone, property owners had little choice but to let the jam grow into this.
Bill Pendergast said he's not bothering with anger. "There's no reason to get angry," he said. "You just have to deal with it."
Pendergast bought his home about 30 years ago. At the time, he asked the owners about problems with the river and was assured that there was none.
That first winter, his home flooded and he tried to give the home back. He didn't succeed.
But he built a berm around the home, and for nearly 30 years that has been enough protection.
His three children have grown up in the home along with most of their friends because there was room enough for young people to spread out and play.
"It wasn't unusual to get up and find a dozen kids sacked out in the family room," Pendergast said.
He always envisioned passing the family home along to the children. That's why he pumps, sandbags and digs trenches -- and hopes he can make it to the summer.
Pendergast plans to gather neighbors and go through the permitting process to clear the jam enough to let water flow, "if we last that long."
He's not angry with government officials, but he's determined to get a permit to take action. "I'm not going to let them force me to lose my home," he said.
He also has to worry about the weather and the river, and about his time running out.
"It's close enough to me now that, how long can I wait?" he said. "One good rain can take me out."
McCarthy calls Pendergast "remarkable" for dealing calmly with the stress and quietly emerging as a neighborhood force.
Though she's lived on the river for 28 years, McCarthy said she is awed by what is happening.
"I think I know more about the river now than I did six months ago, because I've never seen this, the power of nature," she said.
"It's bigger than us, and that's an emotional thing."
Lorrine Thompson covers Thurston County. She can be reached at 360-754-5431 or lcthomps@olympia.gannett.com.
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