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PRHSPSC PKT 09-12-2017City of Federal Way City Council Parks, Recreation, Human Services & Public Safety Committee September 12, 2017 City Hall 5:00 .m. H lebos Conference Room MEETING AGENDA 1. CALL TO ORDER 2. PUBLIC COMMENT (3 minutes) 3. COMMISSION COMMENTS 4. COMMITTEE BUSINESS Topic Title/ Description A. Approval of Minutes: July 11, 2017 and August 23, 2017 B. Arts Commission Contract for Services Application Changes and Updates C. Lake Jeane Report D. Interagency Agreement Between Washington State Patrol and the Federal Way Police Department on Commercial Motor Vehicle Inspections E. Valley Narcotics Enforcement Team (VNET) / U.S. Department of Justice, Drug Enforcement Administration (DEA) HIDTA Task Force Agreements F. King County Registered Sex Offender Cost Reimbursement Agreement G. Federal Way Police Department Substations 5. COUNCIL DISCUSSION ON EMERGING ISSUES 6. PENDING ITEMS • Festivals 7. NEXT REGULAR MEETING: October 10, 2017 8. ADJOURNMENT Committee Members Mark Koppang, Chair Lydia Assefa- Dawson Martin Moore 1 K: \PRHSPS Committee \2017 \09 -12 -2017 Agenda.doc Presenter Page Action Council or Info Date 3 Action N/A Geddes 9 Information N/A Only Weidenfeld 21 Information N/A Only Hwang 23 Action Consent 9/19/17 Hwang 33 Action Consent 9/19/17 Hwang 43 Action Consent 9/19/17 Hwang 55 Information N/A City staff John Hutton, Parks Director Mary Jaenicke, Administrative Assistant 11 This Page Left Blank Intentionally City of Federal Way City Council PARKS, RECREATION, HUMAN SERVICES & PUBLIC SAFETY COUNCIL COMMITTEE Tuesday July 11, 2017 5:00 P.M. SUMMARY Committee Members in Attendance: Committee member Moore, Committee member Assefa- Dawson Council Members in Attendance: Deputy Mayor Burbidge Committee Members Excused: Chair Koppang Staff Members in Attendance: Chief Andy Hwang, Judge Dave Larson, Susanne White, Court Administrator, Yarden Weidenfeld, Senior Policy Advisor, Eric Rhoades, Assistant City Attorney, John Hutton, Parks Director, and Mary Jaenicke, Administrative Asst. H. Committee member Assefa- Dawson called the meeting to order at 5:12p.m. Commission Comment: None Public Comment: None Deputy Mayor Burbidge moved to correct topic C on the agenda to read "Reciprocal EOC Use Agreement between the Cities of Auburn, Federal Way and Kent" and to make the same correction to the Subject line of the Agenda Bill. Committee member Assefa- Dawson seconded. Motion passed. BUSINESS ITEMS Approval of Minutes Deputy Mayor Burbidge moved to approve the June minutes as written; Committee member Assefa- Dawson seconded the motion. Motion passed. Restorative Justice will be discussed upon Judge Larson's arrival. Reciprocal EOC Use Agreement Between the Cities of Auburn, Federal Way and Kent The idea for this agreement was created because of the potential failure of the Howard Hanson Dam. If one of the participating cities EOC is not operational, they will call one of the signatories to see if their EOC is available. The potential host city can turn down the request for use of their EOC. The EOC operational equipment and room is available to the requesting city. The host EOC will provide a liaison. Training in each participating city's EOC will occur every year. This is an ongoing Agreement, but there is an option to withdraw from the Agreement. The requesting City will be responsible for any damage to the EOC. Deputy Mayor Burbidge moved to forward the Reciprocal EOC Use Agreement between the Cities of Auburn, Federal Way and Kent to the July 18, 2017 consent agenda for approval. Committee member Assefa- Dawson seconded. Motion Passed. Committee member Moore arrived at 5:19 Interlocal Cooperative Agreement for the Creation of the Puget Sound Auto Theft Task Force S(P ATT) The Puget Sound Auto Theft Task Force (PSATT) is the creation of a multi jurisdictional team. Currently there is a detective assigned to a Patrol Task Force, which encompasses the South King County agencies. There are four Detectives and a Sargent. They will combine the Patrol Task Force with the ACE and P.A.T.R.O.L. Auto Theft Task Forces which are in Pierce County. The State Patrol will provide six Troopers and a Supervisor. This new Task Force will consist of 12 Detectives and two Supervisors. They will focus on the Pierce County and South King County area. This will result in a K:\PRHSPS Committee\2017\07 -11 -2017 Mins.doc 3 PARKS, RECREATION, HUMAN SERVICES & PUBLIC SAFETY COUNCIL COMMITTEE Tuesday, July 11, 2017 Summary Page 2 bigger impact of addressing auto thefts in the region. Federal Way is the Lead Administrative Agency of the Task Force. This Task Force will be funded through the state. Committee member Moore moved to forward the PSATT Interlocal Agreement to the July 18, 2017, Consent Agenda for approval. Deputy Mayor Burbidge seconded. Motion passed. Restorative Justice Judge Larson stated that restorative justice deals with treating the disease rather than symptoms. Most people that the Judge sees in court over and over again have three things in common: Mental illness, addiction or both. Restorative justice gets down to the underlying causes of crime rather than just treating the symptoms. The focus is on the defendant, and they get rid of the impetus for crime, which will reduce the number of victims. Judge Larson gave a brief explanation of the nine restorative justice programs in Federal Way. Those programs are: 1) Domestic Violence Victims Panel, 2) DUI Victims Panel. 3) Juvenile Diversion, 4) Consumer Awareness Class, 5) Community Service, 6) Work Crew, 7) Restitution, 8) New Connections and 9) Mediation /Conflict Resolution. Judge Larson also discussed suggestions for the future. Possible ideas are: 1) Community partnerships to develop structured Community Service. Those partnerships could include Parks, Public Works, Federal Way Public Schools, South King Fire, Lakehaven and community based non - profits. The difficulty with this is that there is not enough support to manage it. 2) Fund a pilot project with the Dispute Resolution Center of King County (DRCKC) at one or more problematic multi - family housing developments 3) Develop a "Community of Peace" in cooperation with DRCKC and the Court — this would "breathe life into Resolution 10- 375 ", which is endorsing the use of alternative dispute resolution services through the DRCKC. Judge Larson stated that you can add more police officers and courts, but the issues come from the ground up. The underlying issues need to be treated. 4) Work with the King County Prosecutor to enhance Juvenile Diversion, 5) Work with the Federal Way Public Schools in the development of Youth Courts. 6) Cooperate in the development of a Community Court. Forming partnerships in the community is very important. The next steps are forming partnerships with the apartments and police for mediation. The idea of having a "Community of Peace" is resolving issues at the grassroots. MacDonald - Miller Facilitv Solutions Retainage Release Plan The copper wire theft protection system was successfully installed at Saghalie, Sacajawea and Lakota Park. The amount of retainage being held is $2,080.50. There have not been any attempts to steal copper wire since the system was installed. If there is an attempt, it will send a silent alarm to the Police Department. Committee member Moore moved to forward the acceptance of the MacDonald - Miller Facility Solutions installation of the copper wire theft prevention system as complete and forward the authorization for staff to release retainage in the amount of $2,080.50 to the July 18, 2017 City Council consent agenda for approval. Deputy Mayor Burbidge seconded. Motion passed. Fourth Amendment to the MacDonald - Miller Energy Performance Agreement MacDonald - Miller has been providing excellent service on the HVAC system. The Federal Way Community Center HVAC system has been added to the contract amendment. No discussion was held. Committee member Moore moved to forward the authorization of a fourth amendment to the MacDonald - Miller Energy Performance Agreement in the amount of $259,975.98 for a total compensation of $895,975.98 to the July 18, 2017 City Council consent agenda for approval. Deputy Mayor Burbidge seconded. Motion passed. COUNCIL DISCUSSION ON EMERGING ISSUES Movies in the park were discussed. There are two this year at Town Square Park. Committee member Moore is going to share an article he read regarding domestic violence, and ordinances that the cities of Lakewood and Puyallup passed. Committee member Assefa- Dawson would like to have the Veterans Human Services Levy on a future agenda. 4 PARKS, RECREATION, HUMAN SERVICES & PUBLIC SAFETY COUNCIL COMMITTEE Tuesday, July 11, 2017 Summary Page 3 Committee member Moore would like to discuss a Senior Citizen Commission at a future meeting. PENDING ITEMS Festivals — Deputy Mayor Burbidge stated that the Red, White and Blues Festival is a huge festival and it's very successful. The city should take pride in it. Committee member Moore would like the City of Federal Way to have a real parade. Mr. Hutton stated that he does not have the staff that it would take to put together a parade. Committee member Moore does not expect it to take place in 2018, but he would like there to be a discussion. Deputy Mayor Burbidge added that the planning would have to start one year in advance; it involves many departments in the city. NEXT REGULAR MEETING September 12, 2017 ADJOURNMENT Meeting adjourned at 6:13p.m. 5 This Page Left Blank Intentionally City of Federal Way City Council PARKS RECREATION HUMAN SERVICES & PUBLIC SAFETY COUNCIL COMMITTEE Wednesday, August 23, 2017 5:00 p.m. SUMMARY Committee Members in Attendance: Chair Koppang, and Committee member Assefa- Dawson Council Members in Attendance: Deputy Mayor Burbidge Committee Members Unexcused: Committee member Moore Staff Members in Attendance: Yarden Weidenfeld, Senior Policy Advisor, Eric Rhoades, Assistant City Attorney, John Hutton, Parks Director, Jeri -Lynn Clark, Executive Assistant to the City Council, and Mary Jaenicke, Administrative Asst. H. Chair Koppang called the meeting to order at 5:00p.m. Commission Comment: None Public Comment: Doug Baxter was a member of the Violence Prevention Coalition Steering Committee, and he wanted to thank the committee for taking a thoughtful approach, and he urged the committee to move all of the recommendations on to the full Council. BUSINESS ITEMS Adoption of Violence Prevention Coalition Steering Committee Recommendations The VPCSC made ten recommendations; five of those recommendations can be implemented in the near term. Those recommendations are: 1) Bystander Awareness, 2) Expansion of restorative justice practices, 3) Promotion of safe gun storage and practices, 4) Expansion of youth mentoring programs and 5) Establishment of after - school programs. Committee member Assefa- Dawson questioned on how the ten recommendations can be implemented if the School District is not interested. Chair Koppang responded that the recommendations that don't need additional staff time or resources can be implemented without the School District. The recommendations that require significantly more time, resources and additional staff were also reviewed. The implementation of these recommendations will require collaboration with the School District and community partners. These recommendations are: 1) Establishment of a one -stop resource center, 2) Expanded social/emotional training, 3) Establishment of program to address youth and young adult substance abuse, 4) Establishment of a youth employment program and 5) Additional City staff to support implementation of the VPCSC recommendations. Committee member Assefa- Dawson moved to forward the proposed VPCSC recommendations to the September 5, 2017 business agenda for approval. Chair Koppang seconded. Motion passed. Establishment of a City Council/School Board Co- committee The key points of consideration for establishing a City Council /School Board Co- committee were reviewed. Committee member Assefa- Dawson stated that one of the key points for consideration states that assigned staff from both the City and School District would provide support for the co- committee. She inquired if the City staff person would be a newly hired position or current existing staff. Chair Koppang answered that it would be existing staff. The Deputy Mayor will appoint the Council members to the Co- committee. Committee member Assefa - Dawson moved to forward the authorization to negotiate an interlocal agreement with the Federal Way Public Schools to the September 5, 2017 business agenda for approval. Chair Koppang seconded. Motion passed. Next steps: These items will go to full Council on September 5 for approval, if it passes, the Mayor's office will meet with the School District to see if there is interest. K:\PRHSPS Committee\2017 \08 -23 -2017 Mins.doc PARKS, RECREATION, HUMAN SERVICES & PUBLIC SAFETY COUNCIL COMMITTEE Tuesday, August 23, 2017 Summary Page 2 NEXT REGULAR MEETING September 12, 2017 ADJOURNMENT Meeting adjourned at 5:25p.m. COUNCIL MEETING DATE: NA ITEM #: CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: Arts Commission Contract for Services application changes and updates POLICY QUESTION: Contract for services updates — No Questions COMMITTEE: PRHSPS MEETING DATE: 9/12/17 CATEGORY: ❑ Consent ❑ Ordinance ❑ Public Hearing ❑ City Council Business ❑ Resolution ® Other STAFF REPORT BY: Cody Geddes, Recreation Supervisor DEPT: PRCS Attachments: 1. Memo with changes and updates 2. 2017 -2018 Updated Contract for Services Application 3. 2016 -2017 Contract for Services Application Options Considered: 1. NA - Information only MAYOR'S RECOMMENDATION: NA — Information Only MAYOR APPROVAL: -% DIRECTOR APPROVA �d:/s-��/'Z C nmitt a r Coun it It Initia ate Initial/Date Initial/Date COMMITTEE RECOMMENDATION: NA - Information Only Committee Chair Committee Member Committee Member PROPOSED COUNCIL MOTION: NA - Information Only BELOW TO BE COMPLETED BY CITY CLERKS OFFICE, COUNCIL ACTION: ❑ APPROVED COUNCIL BILL # ❑ DENIED 1sT reading ❑ TABLED/DEFERRED/NO ACTION Enactment reading ❑ MOVED TO SECOND READING (ordinances only) ORDINANCE # REVISED — 08/12/2010 RESOLUTION # 9 CITY OF Federal Way Centered on Opportunity Date: August 7, 2017 To: PRHSPS Council Committee From: Cody Geddes, Recreation Supervisor Via: Jim Ferrell, Mayor John Hutton, Director of Parks Subject: Arts Commission 2017 -2018 Contract for Services Application Updates The goal of the changes and updates is to clean up the Contract for Services Application for a more straight forward application. The current commission felt questions had been added and removed one at a time over the years but it is due for an edit to the entire document to make it easier for applicants to fill out and for commissioner review. Page 1- Guidelines a. Performances must take place within the city limits of Federal Way b. Added the word citizens c. Added priority for funding for programs serving youth d. Removed eight of the listed funding restrictions Page 2 - Organization information a. Removed the budget information on this page because it asks for it in other places b. Removed the service description, attendance, and participation numbers because it asks for that information in other places Page 3 - Application Questions a. Removed youth and diversity to question 1 and made a separate question b. Removed the word "specifically" to question 3 c. Revised question 4 to reflect the importance of diversity and culture in Federal Way 10 d. Removed the question about funding sources - on most occasions we are too early for groups to confirm funding e. Added question 6 to find out why they are asking for more /less than previous year Page 4 - Budget and Checklist a. Removed the "In- Kind" line from the document b. Revenues - Streamlined what we were asking to make it easy to follow and removed the "In- Kind" line c. Expenses - Removed "In- Kind" d. Funding Amount is cleaner to view revenues, expenses, and funding request in the same spot on the application 11 CITY OF Federal Way CONTRACT FOR SERVICES Arts Commission Mission Statement 2018 Guidelines and Application 876 S 333rd Street "The charge of the Federal Way Arts Commission is Deadline: October 2, 2017 Federal Way, WA 98003 to develop a community where cultural heritage is 253.835.6926 valued and the Arts are Alive!" Introduction: Established in 1991, the City of Federal Way Arts Commission is a volunteer commission made up of residents living in Federal Way. There are nine members and two alternates on the Commission.The Arts Commission advises and recommends to the Federal Way City Council activities related to all aspects of the arts — visual, performing, literary and cultural. Purpose: The purpose of Contract for Services is to provide funds for the promotion of the arts, events and cultural heritage activities for the citizens of Federal Way. Eligibility: Applicants for the 2018 Federal Way Arts Commission Contract for Services must demonstrate that their projects meet the following criteria: • Services must be provided between JANUARY 1, 2018 and Services must provide a program or activity that directly DECEMBER 31, 2018 and be located in the City of Federal Way. benefits the diverse citizenry of Federal Way. • Agencies /individuals must have Internal Revenue Service Those services that include Federal Way youth as participants Code, Section 501(c)3 non -profit tax - exempt status. The or as a target audience are recognized as having priority in applicant will be required to present evidence of such status. requests for public funding. Restrictions to funding: 2018 Contract for Services are not available for: • Tuition for course or school credit School activities that might be considered a part of regular or • Events not open to the general public extra- curricular school programs How to apply: Complete a Federal Way Arts Commission 2018 Contract for Services Application on the form provided. Applications for 2018 shall reflect services delivered between January 1, 2018 and December 31, 2018. Fill out the application form completely, submit the original, include all requested attachments and please include 14 copies of all documents for a total of 15. For questions regarding the application process, please contact Bo Du, Recreation Coordinator, at 253.835.6928 between 8:00 a.m. and 4:00 p.m. Monday through Friday or by email at bo.du @cityoffederalway.com. Deadline: APPLICATIONS MUST BE RECEIVED /POSTMARKED BY 5:00 P.M. ON OCTOBER 2. Applications submitted after the deadline are ineligible. Applications must be delivered to the Parks, Recreation & Cultural Services Administrative Offices at the Federal Way Community Center located at 876 S. 333rd Street, Federal Way, WA 98003 (253.835.6900). Review process: The Arts Commission will review the applications. Applicants will then be notified in writing of a schedule of interview periods for the purpose of presenting their proposal to the panel and answering any questions the panel may have about the Applicant's proposed services. APPLICANTS MUST HAVETWO PEOPLE PRESENT ATTHETIME OFTHE INTERVIEW, one of which must have signing authority for the requesting organization. All meetings are open to the public. After the review is completed, the Arts Commission will recommend recipients for Contract for Services funding to the Federal Way City Council. Contract recipients will receive notification of funding and contracts the first quarter of 2018. Payment: The Agreement provides REIMBURSEMENT for costs incurred in connection with such performances /services following their completion. Partial payment may be requested. For example, if an organization applies for a series of concerts, partial payment may be requested following each concert. If partial payments are requested, please fill out the application accordingly. Upon being awarded an amount, the panel will make clear how partial payments will be dispersed in the contract. Before payment can be processed, an event report must be completed and reviewed. After review, processing will take four to six weeks. Changes to contract: If the applicant's services change, the contract must be revised.The applicant must request this in writing four weeks prior to the original contract dates. A letter stating the requested revision, the reason for the change and copies of any revised program materials and budget must be included.The Commission will review the request and a decision will be made as to the status of the funding. 12 Final instructions: • Please read and review the entire application before completing. • Answer all questions only in the space provided, on the form provided. • Give complete, accurate and clear information. Deadline: October 2, 2017 CONTRACT FOR SERVICES APPLICATION General information: Organization Name: Mailing Address: E -mail Address: Day Phone: Organization's IRS #: Non -Profit Organization — 501 (c) 3: O Yes O No O Pending Mission Statement: • Applications must be typed. • Appended materials (beyond attachments, which are requested in the application) will not be accepted. • Submit one (1) original application form and requested support materials and 14 copies. Retain copies for your files Evening Phone: Date of Incorporation: Contact person: (application author /contract administrator) Contact Name: E -mail Address: Dav Phone: Address: Authorizing official: (person with authority to sign Contract) Contact Name: E -mail Address: Dav Phone: Address: Title: Evening Phone: Title: Evening Phone: Alternate contact person: (If main contact and authorizing official are the same, please provide an additional contact) Contact Name: Title: F -mail Arldract- Day Phone: . Evening Phone: _ Address: 13 APPLICATION FORM Please provide responses to the following. Font size must be no smaller than 8 point and responses should encompass no more than two pages. 1. Describe your proposed services for 2018. Include the Federal Way venue, dates, times, unique populations served and audience size. 2. Describe the participating artist(s), their qualifications, and what their performance entails. 3. How would the Arts Commission funds be used? 4. How will the proposed service(s) attract an audience that includes Federal Way youth and the diverse populations of Federal Way? 5. How will the service (program /project) be promoted? 6. If you have previously received funding from Contract for Services and your 2018 funding request is significantly different please describe the nature of that change. The signatory declares that s /he is authorized to make this application and will assure that any funds received as a result of this application are used only for the purposes set forth herein. If any application changes are required, the request must be made in writing. The signatory also understands that the application must be complete at the time of submission and that incomplete applications will not be reviewed. 1 certify that to the best of my knowledge, the information contained in this application is accurate. Contact Person Signature Authorizing Person Signature 14 Date Date CONTRACT FOR SERVICES BUDGET DETAIL — 2018 (Please limit this to the project for which you are applying. This may not be your annual budget.) Organization: Revenues: Expenses: Funding amount: 1. Admissions 2. Private Donations 3. Corporate Donations (i.e. foundations, grants) 4. Other Revenues (i.e. concessions, posters etc.) A. Total Patron - generated Revenue (lines 1 -4) $000 B. Government Support (not including this request) 1. Personnel, Administrative 2. Personnel, Artistic 3. Personnel, Technical /Production 4. Outside Artistic Fees 5. Outside Fees — Other 6. Space Rental 7. Equipment Rental 8. Marketing 9. Other Project Expenses C. Total Expenses (from lines 1 -9) $ n nn TOTALS TOTAL REVENUES (from lines A +B) $ 0 on TOTAL EXPENSES (from line C) o n nn FUNDING AMOUNT REQUESTED a n nn Please check off and include each item listed to ensure a complete application (if any of the following are not attached, please explain): Required application and supplementary attachments: O Completed application O Proof of 501(c)3 status (IRS # must match those given on application. If it doesn't match, explain why.) O 2017 Agency Budget and Actual Revenue and Expense O Financial Statement 13 2018 Agency Budget O Copy of most current financial audit (if revenue of $ 100K or greater) or management letter Return completed application and materials to: Federal Way Community Center, c /o: Arts Commission 876 S. 333rd Street Federal Way, WA 98003 15 O Organization chart with names and titles of board and staff O Plan of succession for board leadership, artistic director and other positions of central importance to your organization. (This supplement request is waived for organizations founded within the last five years.) O No more than five samples of promotional materials as they relate to your request O Please provide the original and 14 additional copies (for a total of 1 s) of the above — mentioned materials. CITY OF Federal Way CONTRACT FOR SERVICES Arts Commission Mission Statement 2017Guidelines and Application 876 S 333rd Street 'The charge of the Federal Way Arts Commission is Deadline: October 3, 2016 Federal Way, WA 98003 to develop a community where cultural heritage is 253.835.6926 valued and the Arts are Alive!" Introduction: Established in 1991, the City of Federal Way Arts Commission is a volunteer commission made up of residents living in Federal Way. There are nine members and two alternates on the Commission. The Arts Commission advises and recommends to the Federal Way City Council activities related to all aspects of the arts — visual, performing, literary and cultural. Purpose: The purpose of Contract for Services is to provide funds for the promotion of the arts, events and cultural heritage activities for the citizens of Federal Way. Eligibility: Applicants for the 2017 Federal Way Arts Commission Contract for Services must demonstrate that their projects meet the following criteria: Services must be provided between JANUARY 1, 2017 and and be located in the S Agencies /individuals must have Internal Revenue Service Code, Section 501(c)3 non -profit tax - exempt status. The applicant will be required to present evidence of such status. Restrictions to funding: 2017 Contract for Services are not available for: • Tuition for course or school credit • Events not open to the general public • Services must provide a program, activity or service that directly benefits .. of Federal Way. • School activities, which might be considered a part of regular or extra - curricular school programs "W 4AWORMS • p�� .. AGQ[1f� Q5 •PO Eu prQ1Y How to apply: Complete a Federal Way Arts Commission 2017 Contract for Services Application on the form provided. Applications for 2017 shall reflect services delivered between January 1, 2017 and December 31, 2017. Fill out the application form completely, submit the original, include all requested attachments and please include 14 copies of all documents for a total of 15. For questions regarding the application process, please contact Bo Du, Recreation Coordinator, at 253.835.6928 between 8:00 a.m. and 4:00 p.m. Monday through Friday or by email at bo.du @cityoffederalway.com. Deadline: APPLICATIONS MUST BE RECEIVED /POSTMARKED BY 5:00 P.M. ON OCTOBER 3. Applications submitted after the deadline are ineligible. Applications must be delivered to the Parks, Recreation & Cultural Services Administrative Offices at the Federal Way Community Center located at 876 S. 333rd Street, Federal Way, WA 98003 (253.835.6900). Review process: The Arts Commission will review the applications. Applicants will then be notified in writing of a schedule of interview periods for the purpose of presenting their proposal to the panel and answering any questions the panel may have about the Applicant's proposed services. APPLICANTS MUST HAVE TWO PEOPLE PRESENT ATTHE TIME OF THE INTERVIEW, one of which must have signing authority for the requesting organization. All meetings are open to the public. After the review is completed, the Arts Commission will recommend recipients for Contract for Services funding to the Federal Way City Council. Contract recipients will receive notification of funding and contracts the first quarter of 2017. Payment: The Agreement provides REIMBURSEMENT for costs incurred in connection with such performances /services following their completion. Partial payment may be requested. For example, if an organization applies for a series of concerts, partial payment may be requested following each concert. If partial payments are requested, please fill out the application accordingly. Upon being awarded an amount, the panel will make clear how partial payments will be dispersed in the contract. Before payment can be processed, an event report must be completed and reviewed. After review, processing will take four to six weeks. 10 Changes to contract: If the applicant's services change, the contract must be revised. The applicant must request this in writing four weeks prior to the original contract dates. A letter stating the requested revision, the reason for the change and copies of any revised program materials and budget must be included. The Commission will review the request and a decision will be made as to the status of the funding. Final instructions: • Please read and review the entire application before completing. • Answer all questions only in the space provided, on the form provided. • Give complete, accurate and clear information. • Applications must be typed. Deadline: October 3, 2016 CONTRACT FOR SERVICES APPLICATION General information: Organization Name: Mailing Address: E -mail Address: Day Phone: Organization's IRS #: Non -Profit Organization — 501 (c) 3: Mission Statement: • Appended materials (beyond attachments, which are requested in the application) will not be accepted. • Submit one (1) original application form and requested support materials and 14 copies. Retain copies for your files. Evening Phone: Date of Incorporation: O Yes O No O Pending Organization information: Agency Operating Expenses - most recent completed year Agency Revenues - most recent completed year 2017 Arts Commission Contract for Services Request Contact person: (application author /contract administrator) Contact Name: F -mail Address_ Day Phone: Address: $ S Title: Evening Phone: Authorizing official: (person with authority to sign Contract) Contact Name: Title: E -mail Address: Day Phone: _ Evening Phone: Address: _ Service Description: Service Date(s): Projected Total Attendance: Approximate # or participating artists (include all artists involved in the program /project): Alternate contact person: (If main contact and authorizing official are the same, please provide an additional contact) Contact Name: Title: F -mail Addrett- Day Phone: Evening Phone: Address: APPLICATION FORM Please provide responses to the following. Font size must be no smaller than 8 point and responses should encompass no more than two pages. 1. Describe Y, our proposed services for 2017. Include the Federal Wa venue, dates, times, uni 0 ue o ulations served and size of audience. Ose servreesmarnTruve reaerar Wouth and refl tests for funding. 2. Describe the participating artist(s), their qualifications, and what their performance entails. 3. How specifically would the Arts Commission funds be used? 4. An educational outreach_plan that suoDorts and recognizes diverse populations is broadly encouraged. H w wil the proposed services utilize the arts to support cultural awareness and diversity in your audience and the community at large? 5. How will the service (program /project) be promoted? 6. List your other funding sources including dollar amounts for which you have applied (i.e. grants, foundations, corporate sponsorships). a. Confirmed: b. Unconfirmed: c. Declined: The signatory declares that s /he is authorized to make this application and will assure that any funds received as a result of this application are used only for the purposes set forth herein. If any application changes are required, the request must be made in writing. The signatory also understands that the application must be complete at the time of submission and that incomplete applications will not be reviewed. 1 certify that, to the best of my knowledge, the information contained in this application is accurate. Contact Person Signature Authorizing Person Signature On Date Date CONTRACT FOR SERVICES BUDGET DETAIL — 2017 (Please limit this to the project for which you are applying. This may not be your annual budget.) Organization: Revenues: Expenses: rant Support 54a Support 6. Government Support 7. Other Revenues (concessions, posters, etc.) 8. Applicant Cash (accumulated resources, savings, eic) 7q l„ .Cas _ enues 1. Personnel, Administrative 2. Personnel, Artistic 3. Personnel, Technical /Production 4. Outside Artistic Fees 5. Outside Fees - Other 6. Space Rental 7. Equipment Rental 8. Marketing 9. Other Project Expenses C. Total Cash Expenses D.Total In -Kind Contributions 0 *In -kind services are donated services for which applicant has not paid i.e. non -cash donations andlor servi g vo'lu Funding amount: E. Amount requested from Arts Commission TOTALS TOTAL REVENUES (from lines A +B)____ TOTAL EXPENSES (from lines C +D) 0 FUNDING AMOUNT REQUESTED (from line E) 0 VOLUNTEER HOURS CONTRIBUTED Please check off and include each item listed to ensure a complete application (if any of the following are not attached, please explain): Required application and supplementary attachments: O Completed application O Proof of 501(c)3 status (IRS # must match those given on application. If it doesn't match, explain why.) O 2016 Agency Budget and Actual Revenue and Expense Financial Statement O Copy of most current financial audit (if revenue of $100Kor greater) or management letter O 2017 Agency Budget Return completed application and materials to: Federal Way Community Center, c /o: Arts Commission 876 S. 333rd Street Federal Way, WA 98003 19 O Organization chart 4OW with names and titles of board and staff O No more than five samples of promotional materials as they relate to your request O Please provide the original and 14 additional copies (for a total of 15) of the above- mentioned materials. O Plan of succession for board leadership, artistic director and other positions of central importance to your organization. (This supplement request is waived for organizations founded within the last five years.) This Page Left Blank Intentionally 20 The Lake Jeane Report was provided to each Council Member electronically. See page 57 for the report. This Page Left Blank Intentionally 22 COUNCIL MEETING DATE: September 19, 2017 ITEM #: . . ........ . ......... . .......... . ................... ..... CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: INTERAGENCY AGREEMENT BETWEEN WASHINGTON STATE PATROL AND THE FEDERAL WAY POLICE DEPARTMENT ON COMMERCIAL MOTOR VEHICLE INSPECTIONS POLICY QUESTION: Should the City of Federal Way /Federal Way Police Department enter into an Agreement with Washington State Patrol on Commercial Motor Vehicle Inspections? COMMITTEE: PARKS, RECREATION, HUMAN SERVICES & PUBLIC MEETING DATE: Sept. 12, 2017 SAFETY COUNCIL COMMITTEE (PRHS&PS) CATEGORY: [E Consent ❑ Ordinance ❑ Public Hearing ❑ City Council Business F-1 Resolution Other - STAFF REPORT BY: LYNETTE ALLEN, CHIEF'S EXECUTIVE ASSISTANT DEPT: Police Department . .. . ........ ................. Attachments: 1. PRHS&PS Committee Memo 2. Interagency Agreement between WSP and FWPD on Commercial Vehicle Inspections Options Considered: 1. Accept the Agreement between WSP and FWPD on Commercial Vehicle Inspections . 2. . Reject the Agreement between WSP and FWPD on Commercial . ..... . .......... . . . . MAYOR'S RECOMMENDATION: 1 - Accept the Agreement between WSP and FWPD on Commercial Vehicle Inspections, and allow the Chief of Police to sign. MAYOR APPROVAL: D RECTOR APPROVAL: 7 comiflitteg COMMITTEE RECOMMENDATION: "I move to forward the Interagency Agreement between WSP and FWPD on Commercial Vehicle Inspections to the September 19, 2017 Council consent agenda for approval. " Committee Chair Committee Member Committee Member PROPOSED COUNCIL MOTION: "I move to accept the Interagency Agreement between WSP and FWPD on Commercial Vehicle Inspections, and authorize the Chief of Police to execute said Agreement. (BELOW TO BE COMPLETED BY CITY CLERKS OFFICE) COUNCIL ACTION: ❑ APPROVED COUNCIL BILL # ❑ DENIED 1sT reading ❑ TABLED/DEFERRED/NO ACTION Enactment reading ❑ MOVED TO SECOND READING (ordinances only) ORDINANCE # REVISED- 08/12/2010 RESOLUTION # 23 CITY OF FEDERAL WAY CITY COUNCIL COMMITTEE STAFF REPORT DATE: September 12, 2017 TO: Parks, Recreation, Human Services and Public Safety Council Committee VIA: Jim Ferrell, Mayor FROM: Andy J. Hwang, Chief of Police SUBJECT: Interagency Agreement between Washington State Patrol and the Federal Way Police Department on Commercial Motor Vehicle Inspections In January 2010, Federal Way Police Officers completed the Washington State Patrol (WSP) Commercial Enforcement Academy. This is specialized training to have a significant impact upon commercial vehicle enforcement issues in our city. In 2010 an agreement was entered into with WSP to maximize the utilization of commercial vehicle, driver and cargo inspection resources, avoid duplication of effort and expand the number of inspections performed. This new agreement is updated and will confirm the Federal Way Police Department's continued support of the Commercial Motor Vehicle Inspections. Currently, we have one officer certified to complete inspections. 21 WSP Contract No: K13003 INTERAGENCY AGREEMENT BETWEEN WASHINGTON STATE PATROL AND FEDERAL WAY POLICE DEPARMENT THIS AGREEMENT, pursuant to Chapter 39.34 RCW, is made and entered into by and between the Washington State Patrol, ATTN: Commercial Vehicle Division, PO Box 42614, Olympia WA 98504 -2614, hereinafter referred to as WSP; and the Federal Way Police Department, 33325 8 th Avenue South, Federal Way WA, hereinafter referred to as FWPD. The purpose of this Agreement is to maximize the effective utilization of commercial motor vehicle, driver and cargo inspection resources; to avoid duplication of effort and to expand the number of inspections performed; to advance uniformity of inspections, to minimize delays in schedules incurred by the commercial motor vehicle industry inherent to these types of enforcement activities; and to provide FWPD a means to use the Federal Motor Carrier Safety Administration's (FMCSA) ASPEN software to upload commercial vehicle inspection data into FMCSA's Motor Carrier Management Information System (MCMIS) via WSP's SAFETYNET. 1. Statement of Work. Both parties shall furnish the necessary personnel, equipment, material and /or service(s) and otherwise do all things necessary for or incidental to the performance of the work set forth in Exhibit A, Statement of Work, which is attached hereto and incorporated herein. FWPD shall use ASPEN to report commercial vehicle inspection data. For use of ASPEN both parties shall perform in accordance with Exhibit B, ASPEN Responsibilities. 2. Period of Performance. Subject to its other provisions, the period of performance of this Agreement shall start DOE, and shall continue for a period of five (5) years through end date, unless terminated sooner as provided herein. 3. Command and Control of WSP Staff. WSP staff providing services under the terms of this Agreement shall be under the direct command and control of the Chief of WSP or designee and shall perform the duties required by this Agreement in a manner consistent with WSP policy and regulations, applicable state and local laws, and the Constitutions of the State of Washington and the United States. The assignment of personnel to accomplish the purpose of this Agreement shall be at the discretion of the Chief of WSP or designee. 4. Compliance with Civil Rights Laws. During the period of performance for this Agreement, both parties shall comply with all federal and state nondiscrimination laws. 5. Records Maintenance. Both parties to this Agreement shall each maintain books, records, documents and other evidence which sufficiently and properly reflect all direct and Pa6; 1 of 8 indirect costs expended by either party in the performance of the services described herein. These records shall be subject to inspection, review or audit by personnel of both parties, other personnel duly authorized by either party, the Office of the State Auditor, and federal officials so authorized by law. Both parties shall retain all books, records, documents, and other material relevant to this Agreement for six (6) years after expiration, and the Office of the State Auditor, federal auditors, and any persons duly authorized by the parties shall have full access and the right to examine any of these materials during this period. 6. Agreement Alterations and Amendments. This Agreement may be amended by mutual agreement of the parties. Such amendments shall not be binding unless they are in writing and signed by personnel authorized to bind each of the parties. 7. FWPD Representatives. The following persons or their successors represent the parties in matters involving this Agreement: For WSP: Mr. Kevin Zeller Commercial Vehicle Division PO Box 42614 Olympia WA 98504 -2614 For FWPD: Chief Andy J. Hwang Federal Way Police Department 33325 8th Avenue South Federal Way WA 98003 8. Hold Harmless. Each party shall defend, protect and hold harmless the other party from and against all claims, suits and /or actions arising from any negligent or intentional act or omission of that party's employees or agents while performing this Agreement. 9. Termination. Except as otherwise provided in this Agreement, either party may terminate its participation in this Agreement upon thirty (30) days' written notification to the other party. If a party's participation in this Agreement is so terminated, the terminating party shall be liable only for performance in accordance with the terms of this Agreement for performance prior to the effective date of termination. 10. Disputes. In the event that a dispute arises under this Agreement, it shall be determined in the following manner: The Chief of WSP shall appoint one member to the Dispute Board. The Department shall appoint one member to the Dispute Board. The Chief of WSP and the Department shall jointly appoint an additional member to the Dispute Board. The Dispute Board shall evaluate the dispute and make a determination of the dispute. The determination of the Dispute Board shall be final and binding on the parties hereto. 11. Order of Precedence. In the event of any inconsistency in the terms of this Agreement, unless otherwise provided herein, the inconsistency shall be resolved by giving precedence in the following order: • Applicable federal and state statutes and regulations; • Special Terms and Conditions contained in the Statement of Work • General Terms and Conditions contained in this Agreement • Any other provisions of the Agreement, whether incorporated by reference or otherwise. PAe2of8 This Agreement contains all the terms and conditions agreed upon by the parties. No other understandings, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind any of the parties hereto. IN WITNESS WHEREOF, the parties have executed this Agreement. For Washington State Patrol: For Federal Way Police Department Signature Signature Date Date APPROVED AS TO FORM BY THE OFFICE OF THE ATTORNEY GENERAL 06/04/2008 Pa69 3 of 8 WSP Contract No: K13003 Exhibit A STATEMENT OF WORK 1. WSP Responsibilities. WSP shall inspect commercial vehicles operating over public highways and at carrier terminal facilities. WSP also agrees to: a. Function as the lead FWPD for purposes of administering participation in the Surface Transportation Assistance Act (Act) and to ensure Washington State's compliance, including participating political subdivision, with the terms and conditions of the act. b. Train, retrain (as necessary or desirable), test and certify FWPD commercial vehicle inspections pursuant to agreement between WSP and the Commercial Vehicle Safety Alliance (CVSA). c. Supply to FWPD vehicle and driver out -of- service stickers, CVSA decals and inspection forms for all inspections conducted under this Agreement. d. Provide monitoring service relative to FWPD inspection techniques and violations recorded; and provide data entry for all eligible inspections conducted by FWPD. 2. FWPD Responsibilities. FWPD certifies that it has the authority to enforce FMCSA and hazardous materials regulations. FWPD shall, as a routine practice, confine inspection activities to vehicles operating over public highways; and shall participate in consolidated efforts during special roadside inspection activities and training programs. Also, FWPD shall: a. Adopt the North American Uniform Inspection Procedure and CVSA Out -Of- Service Criteria as adopted by WSP. b. Honor CVSA inspection decals affixed to commercial vehicles by authorized agencies. c. Affix CVSA decals to commercial vehicles that pass Level 1 CVSA inspections with no violations. The term "pass inspection" as used in this section shall be interpreted to mean that no violation of any inspection items contained in Appendix A, Part II of the CVSA Out -Of- Service Criteria is disclosed during the inspection process. No CVSA decal will be affixed to commercial vehicles when the inspection is pre - scheduled or voluntary. a. Require commercial vehicle operators to correct all defects disclosed during inspections. b. Adopt recommended out -of- service and other defect repair verification procedures as developed by CVSA. c. Conduct inspections with CVSA certified inspectors only; document commercial vehicle inspections on forms provided by WSP; and forward completed inspection forms to WSP within 5 days following the date of the respective inspection for processing and final compliance. d. FWPD officers that will perform commercial vehicle inspections shall attend CVSA Part A and B training, Size, Weight, and Load training and complete the required number of initial inspections under the guidance of a CVSA certified inspector within six (6) months of completing Part A and B classroom instruction. FWPD officers shall adhere to CVSA requirements for maintaining certification, adhere to all CVSA policies for conducting inspections, including following the Out -of- Service Criteria, and follow WSP enforcement guidelines when conducting CVSA inspections. Pa69 4 of 8 h. Operating Authority Checks: Officers shall verify every carriers operating authority and take appropriate action if a carrier is found to be non - compliant with federal regulations. Carriers found to be non - compliant shall be placed out -of- service when required and a copy of the inspection report will be faxed to the local FMCSA office. Investigators will check to see if companies have an Out of Service (OOS) order in effect and if it is determined a company is OOS, the vehicle will be placed OOS. Officers will utilize the ISS system, Query Central and any tools available to confirm carriers operating authority, jumping of OOS orders and violation history before conducting an appropriate Level of a CVSA inspection. If the information is not available roadside during a CVSA inspection the officer will contact the local FMCSA office to verify operating authority in order to ensure appropriate action is taken. Commercial Driver Licenses are verified through the National Law Enforcement Telecommunication System (NLETS) or Washington State's Department of Licensing. i. Require all FWPD inspectors to perform the required number of commercial vehicles inspections per year in order to maintain certification. WSP reserves the right to remove all related software if the required numbers of inspections are not met. a. Beginning January 1, 2017, CVSA updated Operations Policy 4. To maintain certification to conduct North American Standard Level I through Level V Inspections, an inspector shall in addition to the "General Maintenance of Certification" section of Operational Policy 4, perform a minimum of 32 North American Standard inspections of the inspector's highest certified level annually, preferably 8 inspections per quarter for which the inspector alone takes credit. b. To maintain the annual certification, the officer shall complete 32 CVSA Level 1 inspections. No CVSA Level 5 inspections will be submitted to the WSP. Require all FWPD inspectors to attend refresher training provided by WSP in order to maintain certification. k. Provide to the WSP Program Manager named under Agreement Management quarterly program evaluations within 15 days of the end of each fiscal quarter. I. Any cost incurred by FWPD relating to conformance with this Agreement, including training, retraining, testing and certifying inspectors, is the sole responsibility of FWPD. Pa68 5 of 8 Exhibit B ASPEN Responsibilities 1. Introduction. ASPEN was developed to facilitate electronic roadside safety inspections of commercial vehicles and drivers. It provides users with current information about the carrier, an inspection recommendation based on the carrier's safety and accident history, and computer assisted data entry procedures for conducting inspections. The Safety and Fitness Electronic Records System (SAFER) provides information to keep ASPEN users current by identifying changes to carrier information from MCMIS; it also provides a mechanism to electronically transfer inspections reports from roadside ASPEN units to SAFER for input into WSP's SAFETYNET and MCMIS. 2. Scope of Work. The parties to this Agreement agree to the following: a. FWPD Responsibilities. 1) Administration. FWPD shall designate a computer (IT) specialist to administer FWPD's use of ASPEN, SAFER and related software and equipment. The IT specialist shall obtain a User Authentication System (UAS) account from WSP for purposes of downloading FWPD's own ASPEN/ Inspection Selection System (ISS) updates. FWPD shall maintain software and hardware to keep it compatible with ASPEN and SAFER; resolve software and hardware problems that its officers may encounter with the program; set up software to make it FWPD- specific; update computers with new versions of the software as it is released; and update computers with new editions of the ISS and any other add -on programs required by SAFER or ASPEN in accordance with timelines, if any, provided by FMCSA or the WSP. FWPD shall also resolve download and data entry problems after FWPD officers submit their inspections to SAFER; and safeguard FWPD ASPEN manager's password to assure data integrity. 2) Training. FWPD's ASPEN computer specialist and all FWPD officers using ASPEN shall attend at least two hours of ASPEN - related training conducted by WSP. FWPD shall be responsible for providing any necessary training subsequent to this initial training provided by WSP. FWPD will correspond with the WSP's Commercial Vehicle Division's (CVD) Computer Support group supervisor to arrange the time and location for the Administrator and End -User training. 3) Data Transfer. FWPD officers using ASPEN shall upload inspection reports to SAFER on a daily basis. If FWPD experiences delays with the transfer due to equipment failure /phone line failure, FWPD will inform the WSP's Commercial Vehicle Division Computer Support Supervisor. b. WSP Responsibilities. 1) Administration. The WSP will provide at least one Commercial Vehicle Enforcement Officer (CVEO) to provide in- the -field training to FWPD personnel. The WSP's CVD computer support group will be responsible for providing FWPD with an ASPEN user's identification number. WSP's Commercial Vehicle Division Computer Support Supervisor will work with FWPD's technical representative to arrange a date for initial installation and training of the ASPEN and ISS applications. Pads 6 of 8 2) Software Distribution. WSP shall provide to FWPD one initial installation copy each of the current versions of ASPEN and ISS software. FWPD shall be responsible for obtaining newer versions of this software as they become available. Software is available on the FMCSA website; if any critical software is unavailable on the website, upon request, WSP shall provide that data to the designated IT specialist to update FWPD's ASPEN Programs. 3) Training. WSP shall conduct one initial ASPEN /ISS training class for FWPD ASPEN computer specialist and up to five FWPD officers. All subsequent training will be the responsibility of FWPD. 3. ASPEN Equipment. a. Equipment Reimbursement. FWPD is responsible for providing the computer equipment necessary for FWPD to perform CMV inspections. Subject to available funding and solely at WSP's option, FWPD may receive reimbursement from WSP to provide initial computer equipment for each CVSA certified FWPD officer to aid in the purchase of the necessary computer equipment. FWPD is responsible for all computer equipment they use under this Agreement; and to ensure that the ASPEN and ISS applications coexist effectively with other possible applications on their computers. b. Title and Use of Equipment. Upon successful completion of the terms of this Agreement, all equipment purchased by FWPD with Agreement funds will be owned by FWPD. FWPD shall be responsible for any and all operation, maintenance, replacement, and for the safe operation of such equipment, including all questions of liability. c. Equipment Management. If WSP reimburses FWPD for the purchase of equipment associated with this Agreement, FWPD shall manage that equipment according to the following: 1) Equipment Records. FWPD shall maintain equipment records that include: a description of the equipment; the manufacturer's serial number, model number, or other identification number; the Catalog of Federal Domestic Assistance (CFDA) number 20.218 or other CFDA number provided by WSP; who holds title; the acquisition date; the cost of the equipment and the percentage of federal participation in the cost; the location, use and condition of the equipment at the date the information was reported; and disposition data including the date of disposal and sale price of the equipment. Equipment records shall be retained by FWPD for a period of six (6) years from the date of the disposition, replacement or transfer. If any litigation, claim, or audit is started before the expiration of the six year period, the records shall be retained by FWPD until all litigations, claims, or audit findings involving the records have been resolved. 2) Inventories. FWPD shall take a physical inventory of the equipment and reconcile the results with the property records at least once every two years. Any differences between quantities determined by the physical inspection and those shown in the records shall be investigated by FWPD to determine the cause of the difference. FWPD shall, in connection with the inventory, verify the existence, current utilization, and continued need for the equipment. FWPD shall develop a control system to ensure adequate safeguards to prevent loss, damage, and theft of the property. Any loss, damage or theft shall be investigated and a report generated. FWPD will develop adequate maintenance procedures to keep the property in good condition. 3) Disposition of Equipment. If FWPD is authorized or required to sell the property, Page 7 of 8 proper sales procedures must be established to ensure the highest possible return. When original or replacement equipment is no longer needed for the original project or program or for other activities currently or previously supported by a federal FWPD, items of equipment with a current per -unit fair market value of less than $5,000 may be retained, sold or otherwise disposed of by FWPD with no further obligation to WSP or the awarding FWPD. Pabe8of8 COUNCIL MEETING DATE: September 19, 2017 ITEM #: CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: VALLEY NARCOTICS ENFORCEMENT TEAM (VNET) / U.S. DEPARTMENT OF JUSTICE, DRUG ENFORCEMENT ADMINISTRATION (DEA) HIDTA TASK FORCE AGREEMENTS. POLICY QUESTION: Should the City of Federal Way /Federal Way Police Department enter into an Agreement with the U.S. Department of Justice, Drug Enforcement Administration to continue efforts to stop the tracking of narcotics and dangerous drugs? COMMITTEE: PARKS, RECREATION, HUMAN SERVICES & PUBLIC MEETING DATE: Sept. 12, 2017 SAFETY COUNCIL COMMITTEE (PRHS &PS) CATEGORY: ® Consent ❑ Ordinance ❑ Public Hearing ❑ City Council Business ❑ Resolution ® Other - STAFF REPORT BY: LYNETTE ALLEN. CHIEF'S EXECUTIVE ASSISTANT DEPT: Police Department Attachments: 1. PRHS &PS Committee Memo 2. Drug Enforcement Administration MOU 3. State and Local HIDTA Task Force Agreement — Appendix F 4. U.S. Department of Justice — Certifications Regarding Lobbying; Debarment, Suspension and Other Responsibility Matters; and Drug -Free Workplace Requirements. Options Considered: 1. Accept the DEA MOU, State & Local HIDTA Agreement & Certifications 2. Reject the DEA MOU State &Local HIDTA Agreement & Certifications MAYOR'S RECOMMENDATION: I - Accept the Drug Enforcement Administration MOU, HIDTA Agreement and Certifications, and allow the Chief of Police to sign. MAYOR APPROVAL: / 7 > DIRECTOR APPROVAL: A�j --7 7vl 7 om ' ee 1' // 1-7 Initial COMMITTEE RECOMMENDATION: "I move to forward the Drug Enforcement Administration MOU and HIDTA Agreement between the City of Federal Way / Federal Way Police Department and the U.S. Department of Justice, Drug Enforcement Administration to the September 19, 2017 Council consent agenda for approval. " Committee Chair Committee Member Committee Member PROPOSED COUNCIL MOTION: "I move to accept the Drug Enforcement Administration MOU and HIDTA Agreement between the City of Federal Way / Federal Way Police Department and the U.S. Department of Justice, Drug Enforcement Administration, and authorize the Chief of Police to execute said Agreements. " (BELOW TO BE COMPLETED BY CITY CLERKS OFFICE) COUNCIL ACTION: ❑ APPROVED COUNCIL BILL # ❑ DENIED IST reading ❑ TABLED/DEFERRED/NO ACTION Enactment reading ❑ MOVED TO SECOND READING (ordinances only) ORDINANCE # REVISED- 08/12/2010 RESOLUTION # 33 CITY OF FEDERAL WAY CITY COUNCIL COMMITTEE STAFF REPORT DATE: September 12, 2017 TO: Parks, Recreation, Human Services and Public Safety Council Committee VIA: Jim Ferrell, Mayor FROM: Andy J. Hwang, Chief of Police SUBJECT: Valley Narcotics Enforcement Team (VNET) / U.S. Department of Justice, Drug Enforcement Administration Enforcement (DEA) HIDTA Task Force Agreements Narcotics and dangerous drugs have a detrimental effect on the health and well -being of not only the Citizens in Federal Way, but all people throughout Washington and beyond. The US Department of Justice, Drug Enforcement Administration (DEA) formed a local Task Force to help stop the trafficking of narcotics and dangerous drugs. The Valley Narcotics Enforcement Team (VNET) was established to create and maintain a multi - jurisdictional team to effectively investigate and enforce the laws relating to controlled substances. This Agreement designates the equitable sharing which the law enforcement participating agencies must acknowledge. In reference to Appendix F, the Federal Way Police Department (FWPD) assigned a Commissioned Officer to the DEA Task Force on February 8, 2010 and FWPD entered into an Agreement with the State and Local HIDTA for the reimbursement of overtime for the Officer. The attached appendix F is a continuation of our efforts to control the trafficking of drugs. This Agreement is effective October 1, 2017 through September 30, 2018 and reimburses FWPD for the Officer's overtime up to $18,042.00. 31 Drug Enforcement Administration Asset Forfeiture Sharing Memorandum of Understanding This agreement is made this 1St day of October, 2017, between the United States Department of Justice, Drug Enforcement Administration Enforcement (hereinafter "DEA "), and the Federal Way Police Department (hereinafter "FWPD "). 1. The police agencies participating in the DEA SeaTac HIDTA Task Force (Group D -22), hereby agree to the following terms and conditions of this Memorandum of Understanding ( "MOU ") governing the Task Force's equitable sharing requests and participation in the United States Department of Justice ( "DOJ ") Equitable Sharing Program: The following are the Task Force Participants and their contribution to the Task Force: Participating Agency Contribution Auburn Police Department 1 TFO Federal Way Police Department 1 TFO Kent Police Department 1 TFO Port of Seattle Police Department 1 TFO Renton Police Department 1 TFO Seattle Police Department 1 TFO Tukwila Police Department 1 TFO Washington State Patrol 1 TFO 2. Participants acknowledge that equitable sharing is at the discretion of the Attorney General and not guaranteed in any case. Participants acknowledge that sharing will not be awarded in a case if victims have not been fully compensated. State, local, or federal government entities can be considered victims. Equitable sharing among the Task Force members shall be based upon the following pre - arranged percentages: DEA shall receive 20% Valley Narcotics Enforcement Team shall receive 80 %* *The equitable sharing will be disbursed per the agreed upon MOU signed by all the parent agencies participating in the Valley Narcotics Enforcement Team Task Force. 3. Participants understand that if a non -MOU member receives an equitable share based upon their contribution, then the MOU Participants' shares shall be reduced proportionately (e.g., if non -MOU agency C receives 10% based upon their contribution, then the MOU Participants' pre - arranged percentages shall be based upon 90% of the full amount available for sharing). 35 4. Participants further understand that additional adjustments may be necessary so to ensure that DEA (DOJ) receives a minimum of 20 %. 5. Participants further understand that the federal decision - makers on each equitable sharing request retain discretion to modify percentages as deemed appropriate based on the facts and circumstances in each case. For the Drug Enforcement Administration: Keith Weis Special Agent in Charge For the Federal Way Police Department: Andy Hwang Chief of Police 2 36 Date: Date: Appendix F STATE AND LOCAL HIDTA TASK FORCE AGREEMENT This agreement is made this first (ls) day of October 2017, between the United States Department of Justice, Drug Enforcement Administration (hereinafter "DEA "), and the Federal Way Police Department (hereinafter "FWPD "). The DEA is authorized to enter into this cooperative agreement concerning the use and abuse of controlled substances under the provisions of 21 U.S.C. § 873. Whereas there is evidence that tracking in narcotics and dangerous drugs exists in the Greater King County area and that such illegal activity has a substantial and detrimental effect on the health and general welfare of the people of Washington, the parties hereto agree to the following: 1. The DEA SeaTac HIDTA Task Force (Group D -22) will perform the activities and duties described below: a. disrupt the illicit drug traffic in the Greater King County area by immobilizing targeted violators and trafficking organizations; b. gather and report intelligence data relating to trafficking in narcotics and dangerous drugs; and c. conduct undercover operations where appropriate and engage in other traditional methods of investigation in order that the task force's activities will result in effective prosecution before the courts of the United States and the State of Washington. 2. To accomplish the objectives of the DEA SeaTac HIDTA Task Force (Group D -22), the FWPD agrees to detail one (1) experienced officer(s) to the DEA SeaTac HIDTA Task Force (Group D -22) for a period of not less than two years. During this period of assignment, the FWPD officers will be under the direct supervision and control of DEA supervisory personnel assigned to the task force. 3. The FWPD officers assigned to the task force shall adhere to all DEA policies and procedures. Failure to adhere to DEA policies and procedures shall be grounds for dismissal from the task force. 4. The FWPD officers assigned to the task force shall be deputized as task force officers of DEA pursuant to 21 USC 878. 37 5. To accomplish the objectives of the DEA SeaTac HIDTA Task Force (Group D -22), DEA will assign three (3) Special Agents to the task force. HIDTA will also, subject to the availability of annually appropriated funds or any continuing resolution thereof, provide necessary funds and equipment to support the activities of the DEA Special Agents and six (6) officers assigned to the task force. This support will include: office space, office supplies travel funds, funds for the purchase of evidence and information, investigative equipment, training and other support items. 6. During the period of assignment to the DEA SeaTac HIDTA Task Force (Group D -22), the FWPD will remain responsible for establishing the salaries and benefits, including overtime, of the FWPD officers assigned to the task force and for making all payments due them. HIDTA will, subject to availability of funds, reimburse the Valley Narcotics Enforcement Team "VNET" on behalf of the Federal Way Police Department for overtime payments made by it to the FWPD officers assigned to the DEA SeaTac HIDTA Task Force (Group D -22) for overtime, up to a sum equivalent to 25 percent of the salary of a GS -12, Step 1 (RUS) federal employee, currently $18,042.00, per officer. Note: Task Force Officer's overtime "Shall not include any costs for benefits, such as retirement, FICA, and other expenses." 7. In no event will the Federal Way Police Department charge any indirect cost rate to DEA for the administration or implementation of this agreement. 8. The FWPD shall maintain on a current basis complete and accurate records and accounts of all obligations and expenditures of funds under this agreement in accordance with generally accepted accounting principles and instructions provided by DEA to facilitate on -site inspection and auditing of such records and accounts. 9. The FWPD shall permit and have readily available for examination and auditing by DEA, the United States Department of Justice, the Comptroller General of the United States, and any of their duly authorized agents and representatives, any and all records, documents, accounts, invoices, receipts or expenditures relating to this agreement. The FWPD shall maintain all such reports and records until all litigation, claim, audits and examinations are completed and resolved, or for a period of three (3) years after termination of this agreement, whichever is later. 10. The FWPD shall comply with Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, as amended, and all requirements imposed by or pursuant to the regulations of the United States Department of Justice implementing those laws, 28 C.F.R. Part 42, Subparts C, F, G, H and I. 11. The FWPD agrees that an authorized officer or employee will execute and return to DEA the attached OJP Form 4061 /6, Certification Regarding Lobbying; Debarment, suspension and Other Responsibility Matters; and drug -Free Workplace Requirements. The FWPD acknowledges that this agreement will not take effect and no federal funds will be awarded until the completed certification is received. 12. When issuing statements, press releases requests for proposals, bid solicitations and other documents describing projects or programs funded in whole or part with federal money, the FWPD shall clearly state: (1) percentage of the total cost of the program or project which will be 38 financed with federal money and (2) the dollar amount of federal funds for the program or project. 13. The FWPD understands and agrees that HIDTA will provide the DEA SeaTac HIDTA Task Force (Group D -22) Officers with vehicles suitable for surveillance. HIDTA through DEA will furnish mobile radios for installation in the HIDTA Task Force vehicles and HIDTA will assume the cost of installation and removal. HIDTA will be financially responsible for the purchase of fuel for the leased vehicles and for providing routine maintenance, i.e., oil changes, lubes and minor tune -ups via the HIDTA lease contractor. DEA and HIDTA procedures for reporting and investigating automobile accidents involving Official Government Vehicles (OGV'S) -HIDTA lease vehicles shall apply to accidents involving the leased vehicles furnished to the FWPD personnel, in addition to whatever accident reporting requirements the FWPD may have. 14. While on duty and acting on task force business, the FWPD officers assigned to the HIDTA task force shall be subject to all DEA and federal government rules, regulations and procedures governing the use of OGV's for home to work transportation and for personal business. The HIDTA Executive Committee acknowledges that the United States is liable for the actions of task force officer, while on duty and acting within the scope of their federal employment, to the extent permitted by the Federal Torts Claim Act. 15. The term of this agreement shall be effective from the date in paragraph number one until September 30, 2018. This agreement maybe terminated by either parry on 30 days advance written notice. Billing for all outstanding obligations must be received by DEA within 90 days of the date of termination of this agreement. HIDTA will be responsible only for obligations incurred by Federal Way Police Department during the term of this agreement. For the Drug Enforcement Administration: Name: Keith R. Weis Title: Special Agent in Charge (SAC) For the Federal Way Police Department Name: Andy Hwang Title: Chief of Police 39 Date: Date: U.S. DEPARTMENT OF JUSTICE OFFICE OF JUSTICE PROGRAMS OFFICE OF THE COMPTROLLER CERTIFICATIONS REGARDING LOBBYING; DEBARMENT, SUSPENSION AND OTHER RESPONSIBILITY MATTERS; AND DRUG -FREE WORKPLACE REQUIREMENTS Applicants should refer to the regulations cited below to determine the certification to which they are required to attest. Applicants should also review the instructions for certification included in the regulations before completing this form. Signature of this form provides for compliance with certification requirements under 28 CFR Part 69, "New Restrictions on Lobbying" and 28 CFR Part 67, "Government -wide Debarment and Suspension (Nonpro- curement) and Government -wide Requirements for Drug -Free Workplace (Grants)." The certifications shall be treated as a material representation of fact upon which reliance will be placed when the Department of Justice determines to award the covered transaction, grant, or cooperative agreement. 1. LOBBYING As required by Section 1352, Title 31 of the U.S. Code, and implemented at 28 CFR Part 69, for persons entering into a grant or cooperative agreement over $100,000, as defined at 28 CFR Part 69, the applicant certifies that: (a) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the making of any Federal grant, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal grant or cooperative agreement; (b) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or at- tempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal grant or cooperative agreement, the undersigned shall complete and submit Standard Form - LLL, "Disclosure of Lobbying Activities," in accordance with its instructions; (c) The undersigned shall require that the language of this cer- tification be included in the award documents for all subawards at all tiers (including subgrants, contracts under grants and cooperative agreements, and subcontracts) and that all sub - recipients shall certify and disclose accordingly. 2. DEBARMENT, SUSPENSION, AND OTHER RESPONSIBILITY MATTERS (DIRECT RECIPIENT) As required by Executive Order 12549, Debarment and Suspension, and implemented at 28 CFR Part 67, for prospec- tive participants in primary covered transactions, as defined at 28 CFR Part 67, Section 67.510— A. The applicant certifies that it and its principals: (a) Are not presently debarred, suspended, proposed for debar- ment, declared ineligible, sentenced to a denial of Federal benefits by a State or Federal court, or voluntarily excluded from covered transactions by any Federal department or agency; (b) Have not within a three -year period preceding this applica- tion been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connec- tion with obtaining, attempting to obtain, or performing a 40 !3-911 REPLACES OJP FORMS 4061/2. 4061/3 AND public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; (c) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State, or local) with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and (d) Have not within a three -year period preceding this applica- tion had one or more public transactions (Federal, State, or local) terminated for cause or default; and B. Where the applicant is unable to certify to any of the statements in this certification, he or she shall attach an explanation to this application. 3. DRUG -FREE WORKPLACE (GRANTEES OTHER THAN INDIVIDUALS) As required by the Drug -Free Workplace Act of 1988, and implemented at 28 CFR Part 67, Subpart F, for grantees, as defined at 28 CFR Part 67 Sections 67.615 and 67.620— A. The applicant certifies that it will or will continue to provide a drug -free workplace by: (a) Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition; (b) Establishing an on -going drug -free awareness program to inform employees about— (1) The dangers of drug abuse in the workplace; (2) The grantee's policy of maintaining a drug -free workplace; (3) Any available drug counseling, rehabilitation, and employee assistance programs; and (4) The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace; (c) Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by paragraph (a); (d) Notifying the employee in the statement required by para -graph (a) that, as a condition of employment under the grant, the employee will— (1) Abide by the terms of the statement; and (2) Notify the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such conviction; (e) Notifying the agency, in writing, within 10 calendar days after receiving notice under subparagraph (d)(2) from an employee or otherwise receiving actual notice of such convic -tion. Employers of convicted employees must provide notice, including position title, to: Department of Justice, Office of Justice Programs, ATTN: Control Desk, 633 Indiana Avenue, N.W., Washington, D.C. 20531. Notice shall include the iden- Ification number(s) of each affected grant; (f) Taking one of the following actions, within 30 calendar days of receiving notice under subparagraph (d)(2), with respect to any employee who is so convicted— (1) Taking appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; or (2) Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforce- ment, or other appropriate agency; (g) Making a good faith effort to continue to maintain a drug - free workplace through implementation of paragraphs (a), (b), (c), (d), (e), and (f). B. The grantee may insert in the space provided below the site(s) for the performance of work done in connection with the specific grant: Place of Performance (Street address, city, county, state, zip code) SeaTac HIDTA Task Force (Group D -22) 300 5th Ave, Suite 1300 Seattle, WA 98104 eck ❑aif there are workplaces on file that are not indentified here. Section 67, 630 of the regulations provides that a grantee that is a State may elect to make one certification in each Federal fiscal year. A copy of which should be included with each ap- plication for Department of Justice funding. States and State agencies may elect to use OJP Form 4061/7. Check 0 if the State has elected to complete OJP Form 4061/7. DRUG -FREE WORKPLACE (GRANTEES WHO ARE INDIVIDUALS) As required by the Drug -Free Workplace Act of 1988, and implemented at 28 CFR Part 67, Subpart F, for grantees, as defined at 28 CFR Part 67; Sections 67.615 and 67.620— A. As a condition of the grant, I certify that I will not engage in the unlawful manufacture, distribution, dispensing, posses- sion, or use of a controlled substance in conducting any activity with the grant; and B. If convicted of a criminal drug offense resulting from a violation occurring during the conduct of any grant activity, I will report the conviction, in writing, within 10 calendar days of the conviction, to: Department of Justice, Office of Justice Programs, ATTN: Control Desk, 810 Seventh Street NW., Washington, DC 20531. As the duly authorized representative of the applicant, I hereby certify that the applicant will comply with the above certifications. 1. Grantee Name and Address: Federal Way Police Department 333258 111 Ave South Federal Way, WA 98003 2. Application Number and /or Project Name DEA SeaTac HIDTA Task Force (Group D -22) 4. Typed Name and Title of Authorized Representative Andy Hwang, Chief of Police – Federal Way Police Department 5. Signature 41 3. Grantee IRS/Vendor Number 6. Date *U.S. Government Printing Office: 1996 - 405-037/40014 C h This Page Left Blank Intentionally 42 COUNCIL MEETING DATE: September 19, 2017 ITEM #: CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: KING COUNTY REGISTERED SEX OFFENDER COST REIMBURSEMENT AGREEMENT POLICY QUESTION: Should the City Of Federal Way / Federal Way Police Department accept the Registered Sex Offender (RSO) Overtime Cost Reimbursement Agreement from the King County Sheriff's Office (KCSO)? COMMITTEE: Parks, Recreation, Human Services and Public Safety MEETING DATE: Sept. 12, 2017 Council Committee (PRHS &PSC) CATEGORY: ® Consent ❑ Ordinance ❑ Public Hearing ❑ City Council Business ❑ Resolution ❑ Other STAFF REPORT BY: Lynette Allen Executive Assistant DEPT: Police _.........— -- -- -- -- - ... ... — '-- ..__.._ .......—_ ...._ ...................._.._.. --_........_.. ..-- .._......----- ........... -- ._.- ........— . —.. - -- - - -- — - -- - -- Attachments: 1. PRHS &PS Staff Memo 2. KCSO Cost Reimbursement Agreement Options Considered: 1. Accept the KCSO RSO Overtime Cost Reimbursement Agreement 2. Reject the KCSO RSO Cost Overtime Reimbursement Agreement MAYOR'S RECOMMENDATION: 1. Accept the KCSO RSO Overtime Cost Reimbursement Agreement MAYOR APPROVAL: 17 D RECTOR APPROVAL: �"� 7 ommi ee ci1 �� / / f Initial COMMITTEE RECOMMENDATION: "I move to forward the RSO Overtime Cost Reimbursement Agreement between the Federal Way Police Department and the King County Sheri s Oj ce to the September 19, 2017 Council consent agenda for approval. " Committee Chair Committee Member Committee Member PROPOSED COUNCIL MOTION: "I move to accept the RSO Overtime Cost Reimbursement Agreement between the Federal Way Police Department and the King County Sheriff's Office and authorize the Chief of Police to execute said Agreement. " (BELOW TO BE COMPLETED BY CITY CLERKS OFFICE) COUNCIL ACTION: ❑ APPROVED COUNCIL BILL # ❑ DENIED 1sT reading ❑ TABLED/DEFERRED/NO ACTION Enactment reading ❑ MOVED TO SECOND READING (ordinances only) ORDINANCE # REVISED— 08/12/2010 RESOLUTION # 43 CITY OF FEDERAL WAY CITY COUNCIL COMMITTEE STAFF REPORT DATE: September 12, 2017 TO: Parks, Recreation, Human Services and Public Safety Council Committee VIA: Jim Ferrell, Mayor FROM: Andy J. Hwang, Chief of Police SUBJECT: King County Sheriff's Office (KCSO), Registered Sex Offender (RSO) Cost Reimbursement Agreement The Federal Way Police Department (FWPD) is seeking grant funding from the King County Sheriff's Department in support of the Federal Way Police Department's Registered Sex Offender and Kidnapping Offender Address and Residency Verification Program. The grant is for reimbursement of overtime expenses incurred while verifying current addresses and residencies of sex and kidnapping offenders, up to a maximum amount of $25,579.36. FWPD will be partnering with the King County Government in implementing multiple program elements to ensure that sex offenders are in compliance under the guidelines of current laws. A strong enforcement effort to apprehend and prosecute offenders will help improve the quality of life for our citizens. We have been participating in the King County RSO Grant Funding since at least 2009. 1 44 Cost Reimbursement Agreement Executed By King County Sheriffs Office, a department of King County, hereinafter referred to as "KCSO," Department Authorized Representative: John Urquhart, Sheriff King County Sheriffs Office W -150 King County Courthouse 516 Third Avenue Seattle, WA 98104 and Federal Way Police Department, a police department in King County, hereinafter referred to as " "Contractor," Department Authorized Representative: Andy Hwang, Chief of Police 33325 8h Avenue South Federal Way, WA 98002 WHEREAS, KCSO and Contractor have mutually agreed to work together for the purpose of verifying the address and residency of registered sex and kidnapping offenders; and WHEREAS, the goal of registered sex and kidnapping offender address and residency verification is to improve public safety by establishing a greater presence and emphasis by Contractor in King County neighborhoods; and WHEREAS, as part of this coordinated effort, Contractor will increase immediate and direct contact with registered sex and kidnapping offenders in their jurisdiction, and WHEREAS, KCSO is the recipient of a Washington State Registered Sex and Kidnapping Offender Address and Residency Verification Program grant through the Washington Association of Sheriffs and Police Chiefs for this purpose, and WHEREAS, KCSO will oversee efforts undertaken by program participants in King County; NOW THEREFORE, the parties hereto agree as follows: KCSO will utilize Washington State Registered Sex and Kidnapping Offender Address and Residency Verification Program funding to reimburse for expenditures associated 45 Cost Reimbursement Agreement with the Contractor for the verification of registered sex and kidnapping offender address and residency as set forth below. This Interagency Agreement contains eight (8) Articles: ARTICLE I. TERM OF AGREEMENT The term of this Cost Reimbursement Agreement shall commence on July 1, 2017 and shall end on June 30, 2018 unless terminated earlier pursuant to the provisions hereof. ARTICLE II. DESCRIPTION OF SERVICES This agreement is for the purpose of reimbursing the Contractor for participation in the Registered Sex and Kidnapping Offender Address and Residency Verification Program. The program's purpose is to verify the address and residency of all registered sex and kidnapping offenders under RCW 9A.44.130. The requirement of this program is for face -to -face verification of a registered sex and kidnapping offender's address at the place of residency. In the case of • level I offenders, once every twelve months. • of level II offenders, once every six months. • of level III offenders, once every three months. For the purposes of this program unclassified offenders and kidnapping offenders shall be considered at risk level I, unless in the opinion of the local jurisdiction a higher classification is in the interest of public safety. ARTICLE III. REPORTING Two reports are required in order to receive reimbursement for grant- related expenditures. Both forms are included as exhibits to this agreement. "Exhibit A" is the Offender Watch generated "Registered Sex Offender Verification Request (WA)" that the sex or kidnapping offender completes and signs during a face -to -face contact. "Exhibit B" is an "Officer Contact Worksheet" completed in full by an officer /detective during each verification contact. Both exhibits representing each contact are due quarterly and must be complete and received before reimbursement can be made following the quarter reported. Original signed report forms are to be submitted by the 5th of the month following the end of the quarter. The first report is due October 5, 2017. Quarterly progress reports shall be delivered to: Attn: Tina Keller, Project Manager King County Sheriff's Office 500 Fourth Avenue, Suite 200 M/S ADM -SO -0200 Seattle, WA 98104 P462 of 5 July 26, 2017 Cost Reimbursement Agreement Phone: 206 - 263 -2122 Email: tina.keller @kingcounty.gov ARTICLE IV. REIMBURSEMENT Requests for reimbursement will be made on a monthly basis and shall be forwarded to KCSO by the 10th of the month following the billing period. Overtime reimbursements for personnel assigned to the Registered Sex and Kidnapping Offender Address and Residency Verification Program will be calculated at the usual rate for which the individual's time would be compensated in the absence of this agreement. Each request for reimbursement will include the name, rank, overtime compensation rate, number of reimbursable hours claimed and the dates of those hours for each officer for whom reimbursement is sought. Each reimbursement request must be accompanied by a certification signed by an appropriate supervisor of the department that the request has been personally reviewed, that the information described in the request is accurate, and the personnel for whom reimbursement is claimed were working on an overtime basis for the Registered Sex and Kidnapping Offender Address and Residency Verification Program. Overtime and all other expenditures under this Agreement are restricted to the following criteria: 1. For the purpose of verifying the address and residency of registered sex and kidnapping offenders; and 2. For the goal of improving public safety by establishing a greater presence and emphasis in King County neighborhoods; and 3. For increasing immediate and direct contact with registered sex and kidnapping offenders in their jurisdiction Any non - overtime related expenditures must be pre- approved by KCSO. Your request for pre - approval must include: 1) The item you would like to purchase, 2) The purpose of the item, 3) The cost of the item you would like to purchase. You may send this request for pre - approval in email format. Requests for reimbursement from KCSO for the above non - overtime expenditures must be accompanied by a spreadsheet detailing the expenditures as well as a vendor's invoice and a packing slip. The packing slip must be signed by an authorized representative of the Contractor. All costs must be included in the request for reimbursement and be within the overall contract amount. Over expenditures for any reason, including additional cost of sales tax, shipping, or installation, will be the responsibility of the Contractor. Pip 3 of 5 July 26, 2017 Cost Reimbursement Agreement Requests for reimbursement must be sent to: Attn: Tina Keller, Project Manager King County Sheriff's Office 500 Fourth Avenue, Suite 200 M/S ADM -SO -0200 Seattle, WA 98104 Phone: 206 - 263 -2122 Email: tina.keller@kingcounty.gov The maximum amount to be paid under this cost reimbursement agreement shall not exceed Twenty Five Thousand Five Hundred Seventy Nine Dollars and Thirty Six Cents ($25,579.36). Expenditures exceeding the maximum amount shall be the responsibility of Contractor. All requests for reimbursement must be received by KCSO by July 31, 2018 to be payable. ARTICLE V. WITNESS STATEMENTS "Exhibit C" is a "Sex/Kidnapping Offender Address and Residency Verification Program Witness Statement Form." This form is to be completed by any witnesses encountered during a contact when the offender is suspected of not living at the registered address and there is a resulting felony "Failure to Register as a Sex Offender" case to be referred/filed with the KCPAO. Unless, due to extenuating circumstances the witness is incapable of writing out their own statement, the contacting officer /detective will have the witness write and sign the statement in their own handwriting to contain, verbatim, the information on the witness form. ARTICLE VI. FILING NON - DISCOVERABLE FACE SHEET "Exhibit D" is the "Filing Non - Discoverable Face Sheet." This form shall be attached to each "Felony Failure to Register as a Sex Offender" case that is referred to the King County Prosecuting Attorney's Office. ARTICLE VII. SUPPLEMENTING, NOT SUPPLANTING Funds may not be used to supplant (replace) existing local, state, or Bureau of Indian Affairs funds that would be spent for identical purposes in the absence of the grant. Overtime - To meet this grant condition, you must ensure that: • Overtime exceeds expenditures that the grantee is obligated or funded to pay in the current budget. Funds currently allocated to pay for overtime may not be reallocated to other purposes or reimbursed upon the award of a grant. • Additionally, by the conditions of this grant, you are required to track all overtime funded through the grant Pa4V of 5 July 26, 2017 Cost Reimbursement Agreement ARTICLE VII. AMENDMENTS No modification or amendment of the provisions hereof shall be effective unless in writing and signed by authorized representatives of the parties hereto. The parties hereto expressly reserve the right to modify this Agreement, by mutual agreement. IN WITNESS WHEREOF, the parties have executed this Agreement by having their representatives affix their signatures below. FEDERAL WAY POLICE DEPARTMENT Andy H ang, Chief of Police ,F /:?//'-7 Date KING COUNTY SHERIFF'S OFFICE John Urquhart, Sheriff Date P" 5 of 5 July 26, 2017 FMCN:SiT A V eriftcation Request Page: Page 1 of 1 Agency: King County WA Sheriffs Office Administrator: King County Sheriffs Office Phone: (206)263 -2120 Date: 7/25/2017 RSO Unit Offender Information Name tester , teaser I POB Drv. Lic. /State DOB 01/01/1990 Sex Male Race White Height Comm. Weight Risk/Class. Responsibility () Verifications: Type Last Date Age 27 Orient Nat. No Selection Hair Eyes Next Date Comments Transient - Weekly 04/01/2017 04/14/2017 12 Active Officer Alert 7/25/17 TEST ALERT!! Registration # 2399903 SSN 123 -12 -1111 Alt Reg # Drv. Lic. /State Phone (Bold - Primary Contact Numbers) Number Type Descri tion FBI (123) 456 -7777 Home State ID Zone L3 Comm. ) Offender Photo PHOTO NOT AVAILABLE Compliant Primary Email Address Primary IP Address 123.SMITH @YAHOO.COM Residence (Bold - Primary Home Address) Street _ Phone (Bold - Primary Contact Numbers) Number Type Descri tion (123) 456 -7777 Home Employment/School - Name Address Supervisor Phone SMITH BROTHERS - Vehicle Make Model Color Year License State VIN Comments Acura CL Red 1997- ABC1234 Offense Date RS Code /Description Convicted Released Case # Crime Details 9.68A.070 /Possession of depictions of minor 02/19/2015 engaged in sexually explicit conduct., Probation Status Probation Officer Contact County Conditions Open Cases ❑ No Change hereby attest, under penalties of perjury, that any and all information contained here is current and accurate on this day of 20 Offender Signature: Officer Signature: Date: Badge Number: VVitness Signature: _Date: O hITI c CJ y n h -c O y H O H 0 z y � H d � z z ro H � � O � z z c z H ❑ ❑ O 0 ❑ ❑ H � z d O r H O 0 y n y ,y tTj m a�ro U2 U2 C4 C4 W W b zrz�z O y tzi-J d � d o r d m 7� z �z �d C) w0 a ° d- z zx a z '"rJ�Nnl� 0 d �O ° �Ovs cn c z o d °z a 00 z b MvOXa0 a � CZ m ❑ NC7�o r z a trn > r y y o O p z v m m z O y H O H 0 z y � H d � z z ro H � � O � z z c z H ❑ ❑ O 0 ❑ ❑ H � z d O r H O 0 y n y 51 O n O y Cd r O 0 n d 0 O OtwO tTj m U2 U2 C4 C4 W W zrz�z c r r r 51 O n O y Cd r O 0 n d 0 O OtwO zrz�z t��t7r�nd O z '"rJ�Nnl� �Ovs Orot�y Oil d °z b O d n TI O� �o yz n� y Od x� y� °z x y tz EXHIBIT C Date Suspect's Name: Agency /Officer Incident number Witness Statement — Failure to Register Suspect's Last Registered Address: Witness' Name: Witness's Home Address: Witness' Home Phone Number Cell: Other: How do they know the suspect (please be as detailed as possible)? *If suspect rented an apartment or a room from the witness, please have them provide a copy of any documentations to this effect and any documentations the suspect moved out. Did the witness ever see the suspect at his/her last registered address? How often would they see him/her there? When did the witness start seeing him/her there ?. When did they stop? Why did the suspect stop staying at the address? Did the suspect keep any personal belongings there? In general, when is the last time they saw the suspect ? Do they know where the suspect moved to or their current whereabouts? Can they provide the names and contact information of any other witnesses who would have seen the suspect staying at his/her last registered address? Is the witness willing to assist in prosecution? Under penalty of perjury of the laws of the State of Washington, I certify that the foregoing is true and correct. Witness' Signature date EXHIBIT D WASPC GRANT FILING NON - DISCOVERABLE TO: KCPAO — Special Assault Unit — Seattle DATE: FROM: INCIDENT #: AGENCY: SUSPECT #1: DOB: RACE: SEX: M ❑ F❑ HGT: WGT: SUSP #1 ADDRESS: CHARGE: Failure to Register as a Sex Offender DATE OF CRIME: VICTIM #1: State of Washington DOB: VICTIM #2: DOB: INTERVIEWED BY: NO ONE DPA NAME: TYPE OF CASE: FTR - Failure To Register OTHER TYPE: THIS CASE IS BEING REFERRED FOR THE FOLLOWING REASONS I I I FILING OF CHARGES: - Comments: I DECLINE: - Comments: WASPC STATISTICAL REPORTING TO KCSO Case Referral Received by KCPAO on this date: Case filed by KCPAO: YES ❑ NO ❑ Cause Number Assigned: If no, please indicate why: Other Explanation: 53 This Page Left Blank Intentionally 54 COUNCIL MEETING DATE: N/A ITEM #: CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: FEDERAL WAY POLICE DEPARTMENT SUBSTATIONS POLICY QUESTION: Should the City Of Federal Way / Federal Way Police Department accept the offer of free office space at 29404 Pacific Highway South and 30854 Pacific Highway South as FWPD Substations? COMMITTEE: Parks, Recreation, Human Services and Public Safety MEETING DATE: Sept. 12, 2017 Council Committee (PRHS &PSC) CATEGORY: ❑ Consent ❑ Ordinance ❑ Public Hearing ® ❑ City Council Business ❑ Resolution Other — Information Only STAFF REPORT BY: Commander Chris Norman DEPT: Police Attachments: 1. PRHS &PS Staff Memo Options Considered: 1. Information Only MAYOR'S RECOMMENDATION: MAYOR APPROVAL: l �"``� DIRECTOR APPROVAL: j ►y t�h0�1• " f�rc« Committee Council Initial A..IQ Are t w o a COMMITTEE RECOMMENDATION: N/A Committee Chair Committee Member Committee Member PROPOSED COUNCIL MOTION: N/A 55 (BELOW TO BE COMPLETED BY CITY CLERKS OFFICE) COUNCIL ACTION: _ ❑ APPROVED COUNCIL BILL # ❑ DENIED 1ST reading ❑ TABLED/DEFERRED/NO ACTION Enactment reading ❑ MOVED TO SECOND READING (ordinances only) ORDINANCE # REVISED— 08/12/2010 RESOLUTION # 55 CITY OF FEDERAL WAY CITY COUNCIL COMMITTEE STAFF REPORT DATE: September 12, 2017 TO: Parks, Recreation, Human Services and Public Safety Council Committee VIA: Jim Ferrell, Mayor FROM: Andy J. Hwang, Chief of Police SUBJECT: Request to utilize office space to enhance community policing Background The Federal Way Police Department (FWPD) has been approached by two entities which are offering free office space to patrol officers. Both locations provide officers with opportunities to: • Increase uniform visibility on Pacific Highway South • Interact with the community • Reduce the need to travel back to police headquarters for office related activities The additional office spaces are intended to supplement and not supplant the existing downtown substation, 31620 23`d Avenue South (Parklane Executive Center) which is well located for the Transit Center, Town Center Park and Performing Art Center. The additional spaces are offered at no cost. No external signage is anticipated. Any additional signage at either location is at the owners expense the offer of free office spaceat 29404 Pacific Highway South and 30854 Pacific Highway South Location #1 The William J. Wood Veteran's Apartments, 29404 Pacific Highway South • Office space and bathroom facilities • Good patrol vehicle visibility from Pacific Highway South • Sector 3 Police presence • Close proximity to multi - family housing Location #2 Metier Construction, 30854 Pacific Highway South (formerly New Lumber and Hardware) • Office space and bathroom facilities • Good patrol vehicle visibility from Pacific Highway South • Close proximity to Federal Way High School and 31P/Pacific Highway • Large enough for some storage Staff Recommendation Both locations enhance visibility and police operations on Pacific Highway South on the north side of the city with no additional financial burden. Staff recommends both locations be approved for use by members of the police department. 1 56 ki1111- WAll Q 41� YARDEN F. WEIDENFELD SENIOR POLICY ADVISOR CITY OF FEDERAL WAY MAYOR'S OFFICE TABLE OF CONTENTS I. Overview ............................................................... ..............................3 II. Litigants and Litigation .......................................... ..............................8 a. King County Superior Court case number 16 -2- 07439 -1 SEA .........................8 i. Lawsuit .................................................. ..............................8 ii. Litigants ............................................... .............................16 1. Patti Ward .......................................... .............................16 2. TLGCC Leaders and Attorney David Chawes ........................18 b. Pollution Control Hearings Board Case Number 16- 078 . .............................23 i. Suit ................. .....................23 .............. ............................... ii. Litigants ............................................... .............................26 1. Bob Woolley and Lake Jean Residents Coalition Committee (LJRC C) .......................................... .............................26 2. Assistant Attorney General Chris Reitz (Dept. of Ecology attorney) ................................................................. .............................34 3. Jon Jennings, Department of Ecology ....... .............................36 III. Other Lake Jeane Homeowners ............................... .............................37 a. Survey ............................................................... .............................37 b. Mary Jo Reintsma ................................................ .............................39 c. Don Smith ........................................................... .............................40 IV. Twin Lakes Homeowners Association ........................ .............................40 V. City of Federal Way, King County, and State of Washington Officials ...........44 a. City of Federal Way Department of Public Works ....... .............................44 b. State Department of Ecology (DOE) and Department of Health (DOH) and Seattle & King County Public Health Department ( PHSKC ) ........................48 c. Upper Joe's Creek Watershed Nutrient Reduction Study .............................52 i. Background .............................................. .............................52 ii. Release of Study .......................................... .............................54 iii. Initial Reaction to Release of Study .................. .............................56 iv. Don Russell ................................................. .............................58 1. Background ...................................... .............................58 2. Rebuttal ........................................... .............................61 v. Further Follow- up ........................................ .............................63 d. Testing for Toxicity ............................................... .............................67 e. Lake Management District ...................................... .............................70 VI. Scientists and Specialists ......................................... .............................71 a. Phil Matonti ......................................................... .............................71 b. Terry McNabb ..................................................... .............................72 c. Doug Dorling ....................................................... .............................72 d. Rob Zisette ......................................................... .............................73 e. Don Russell ......................................................... .............................74 f. Professor Jim Gawel .............................................. .............................75 g. Professor Daniel E. Schindler ................................... .............................77 VII. Options and Recommendations ............................... .............................78 a. General Considerations .......................................... .............................78 b. OPTION: Do Nothing — REJECT .............................. .............................79 c. OPTION: Adopt Nuisance Ordinance on Blue -Green Algae— REJECT WITH FURTHER EXPLANATION ................................... .............................80 d. OPTION: Engage with Relevant Parties— RECOMMEND WITH FURTHER EXPLANATION .................................................. .............................81 i. Remaining Issues of Contention ......................................... .............................81 ii. State Funding .............................................. .............................82 iii. Lake Management District ............................. .............................83 iv. Steps Forward ............................................ .............................84 VIII. Conclusion ......................................................... .............................85 2 I. Overview On December 5, 2016, my first day as senior policy advisor in the Office of the Mayor of the City of Federal Way, I was asked by Mayor Jim Ferrell to look into an issue regarding Lake Jeane, one of two small man-made lakes within the Twin Lakes Homeowners' Association ( TLHOA), the other being the slightly smaller (eight -acre) Lake Lorene. Lake Jeane is ten acres in size. TLHOA is composed of approximately 1,500 homes. The west branch of Upper Joe's Creek feeds into Lake Lorene, which then discharges into Lake Jeane. The lakes are also fed by storm water from surrounding neighborhoods and (to a lesser extent) from ground and rain water. Lake Jeane discharges back into Joe's Creek, which then discharges into Puget Sound. Lake Jeane is surrounded by approximately 40 homes and the Twin Lakes Golf & Country Club (TLGCC), which owns the lake bed. Per State law, the water itself is owned by the State. TLGCC, however, possesses a "water right" to remove water from Lake Jeane to irrigate its fairways, greens, and landscaping but is also required to replace the water removed within a reasonable time (done via pumping ground water from a well located on the Club's property). The homeowners have a non - exclusive easement in common with TLGCC allowing them the use and enjoyment of the lake for recreation, subject to the right of TLGCC to remove water for irrigation of its greens, as long as it is replaced by TLGCC within a reasonable time. TLGCC has an easement on part of the homeowners' property abutting Lake Jeane solely for the purpose of performing maintenance on the lake. Pursuant to the Covenants, Conditions, and Restrictions that govern TLHOA and TLGCC, most (but not all) homeowners abutting Lake Jeane must pay TLGCC special "associate member" dues of approximately $900 per year. These dues entitle the homeowners to use the club house, swimming pool and tennis courts but not the golf course itself. A similar requirement and entitlement applies to about two - hundred homeowners in TLHOA whose property abuts the golf course fairways. Associate members do not have voting rights. For several summers, both Lake Jeane and Lake Lorene experienced cyanobacteria (also known as blue -green algae) blooms. These blooms upset the homeowners for several reasons. First, they are allegedly unsightly and have a bad odor, thereby preventing their full enjoyment of their property as lakefront property. Second, property values have declined. Finally, and perhaps most importantly, cyanobacteria, for reasons that are still unclear to scientists, may produce dangerous cyanotoxins that can be harmful or even lethal to animals and harmful to people. The presence and the level of such cyanotoxins can be measured from samples taken from the lake. However, since the blue -green algae can produce and then stop producing cyanotoxins within a very short period of time (hours), the absence of cyanotoxins does not necessarily mean that that the water containing blue -green algae is safe. While the scientific evidence does show that drinking or recreating in blue -green algae infected water presents health risks to people and animals, the jury is still out as to whether such cyanotoxins could be an airborne hazard. The whole area of cyanobacteria and cyanotoxins is a new, emerging area of scientific study. The World Health Organization has published guidelines for the level of cyanotoxins in drinking water based on "tolerable daily intake ". The State of Washington and several other states have also had a standard for recreational waters. In December 2016, the United States Environmental Protection Agency (EPA) proposed a draft recreational standard stricter than the one Washington had been using. State Department of Health (DOH) and State Department of Ecology (DOE) guidelines call for "Caution" signs to be posted upon the appearance of blue -green algae and for "Warning" signs to be posted when the level of cyanotoxins reaches above the recreational standard. At very high levels, the local health department can close the lake by posting "Danger- Closed" signs. These are only guidelines for private lakes. Mandatory rules only apply to public lakes. Testing of Lake Jeane waters showed a level of cyanotoxins above the acceptable recreational level in 2014 and 2015. However, since sampling was done by homeowners, the results are disputed by TLGCC, whose own samples in 2015 did not show a level of cyanotoxins as severe as those taken by the homeowners (though samples taken by TLGCC on July 20, 2015 and on July 27, 2015 did show a level of cyanotoxins above the State recreational standard). TLGCC did voluntarily place several Caution signs by Lake Jeane in the summer of 2015. In 2016, the City of Federal Way took samples from Lake Jeane and had them tested, showing a level of cyanotoxins within the acceptable recreational level. Some homeowners, however, have disputed the way in which samples were taken. No local, state or federal laws or regulations require blue -green algae- infected bodies of water to be treated. I have not found any clear evidence that any jurisdictions so require. Currently, DOH does not even have anyone on staff with expertise in fresh water harmful algae blooms. The growth of blue -green algae cyanobacteria is thought to be the result of excess nutrients. Specifically, growth is based primarily on phosphorus. Urbanization has greatly exacerbated this phosphorus problem. The only definitive way to remove the threat of blue -green algae is to remove the phosphorus from the water column. From 2016 through the first half of 2017, the City of Federal Way, with grant money from the DOE, completed a study of Upper Joe's Creek that analyzed concentrations of nutrients (including phosphorus) therein. The study concluded that in general, phosphorus concentrations in Joe's Creek were comparable to concentrations in other similar -sized streams and with similar nearby land use. The study also concluded that seventy (70) percent of total phosphorus input into Lake Lorene during the summer algae growing season is from surface water, and thirty (30) percent is from other sources (e.g. ground water, fecal matter from geese, decaying vegetation, sediments at the bottom of the lake, fertilizers, and other sources). Most (84 %) of the surface water input to Lake Lorene was found to be from Upper Joe's Creek. With respect to Lake Jeane, the study found that ninety -three (93) percent of the surface water total phosphorus loading of Lake Jeane derives from Lake Lorene outflow, while seven (7) percent derives from storm drain outfalls. Mostly due to Lake Lorene exporting more surface water total phosphorus than it brings in and to Lake Jeane having additional surface water input from storm drain outfalls, Lake Jeane receives a higher total phosphorus load than Lake Lorene. Other sources of total phosphorus are the same as for Lake Lorene and in addition, the groundwater pumped into Lake Jeane from the TLGCC well. These, however, were outside the scope of the study. Some Lake Jeane homeowners have emphasized the addition of phosphorus -rich TLGCC well water as a major part of the problem on Lake Jeane. TLGCC, however, states that the phosphorus content of the well water is lower than what is taken from Lake Jeane, so if anything, they are diluting the phosphorus content of Lake Jeane. Homeowners dispute these findings and conclusions. Other than reducing the phosphorus supply, there is no definitively proven long -term treatment for blue -green algae. However, there are some approved treatments and others that are in an experimental phase. TLGCC has a permit from the Washington Department of Ecology (DOE) allowing it to treat the lake for cyanobacteria. However, TLGCC did not treat Lake Jeane at all between 2014 and 2016 and is opposed to treatments favored by Lake Jeane homeowners for several reasons, cost being only one of them. Treatments favored by homeowners cost approximately $12,000 to $15,000 per year. Homeowners have offered to pay for the treatment themselves and also asked for TLGCC's consent to a City of Federal Way grant application to DOE for funding to treat Lake Jeane. TLGCC declined both. Its main concern is that treatments favored by homeowners (such as aluminum sulfate or "alum ") would, it is feared, disrupt TLGCC's ability to utilize lake water for irrigation as it is entitled to do under its water rights. Furthermore, TLGCC asserts that these treatments have not been proven effective and that the only definitive treatment is the removal of phosphorus from the water supply, which is beyond its control. In 2015 and 2016, an experimental treatment (zero - valent iron) was utilized on Lake Lorene with results apparently acceptable to homeowners around that lake. The lake bed of Lake Lorene is owned and controlled by TLHOA, which handled and paid for the treatment. TLGCC does not border Lake Lorene. However, in addition to private homes that are part of TLHOA, Treasure Island Park also abuts Lake Jeane and occupies about 20 percent of Lake Lorene's shoreline. Treasure Island Park is open to all TLHOA members but not to the general public. No such common facility exists on Lake Jeane, so TLHOA does not have the same interest in Lake Jeane as in Lake Lorene. TLHOA is also wary of getting into conflict with TLGCC, which TLHOA sees as an essential part of the community without which property values would fall. It is alleged by homeowners that after treatment, water from Lake Lorene was used to irrigate Treasure Island Park without ill effect. Nevertheless, whether this experimental treatment is a long -term solution is still undetermined. Furthermore, TLGCC disputes that that it was in actuality effective at all. According to DOE, the effectiveness of zero - valent iron on Lake Lorene was inconclusive. Also, Lake Jeane has a lower water volume and more water flow than Lake Lorene, so results may not be the same. TLGCC has received a DOE permit for a treatment of its own that could allegedly mitigate the odor problem and possibly work to reduce phosphorus. However, homeowners do not support that proposed treatment because it would only be used after blue -green algae appear and would not take care of any toxicity. Also, TLGCC only plans to utilize this treatment on a very small portion of Lake Jeane. In March 2016, nine homeowners filed a lawsuit in King County Superior Court against TLGCC alleging nuisance, breach of contract, breach of easement, and breach of the Declaration of Covenants, Conditions, and Restrictions that govern TLHOA and TLGCC.1 The homeowners sought monetary damages and injunctive relief requiring TLGCC to take action to resolve Lake Jeane's "algae and toxicity issues." Summary judgment was initially granted to TLGCC on all claims. A motion to reconsider summary judgment on the nuisance claim was denied. Upon granting summary judgment on breach of contract, breach of easement, and breach of Declaration, the Court seemed to accept the notion that the homeowners and not TLGCC have the right and responsibility to treat the lake. But the Court found that TLGCC had not interfered with that right and responsibility because it was the State DOE and not TLGCC which issued a permit to TLGCC and not the homeowners. On January 17, 2017, the homeowners moved the Court to reconsider its ruling granting summary judgment on breach of contract, breach of easement, and breach of Declaration. As part of its motion to reconsider, the homeowners presented new evidence in the form of an email supplied by an interested Lake Jeane homeowner named Bob Woolley. Woolley was not part of the lawsuit but had separately applied on behalf of a loose association of Lake Jeane homeowners called the Lake Jeane Residents Coalition Committee (LJRCC) to the DOE for a permit to treat the lake. The permit was denied, as was Woolley's appeal to the Pollution Control Hearings Board (PCHB). The email supplied by Woolley was sent by current TLGCC president (then vice - president) Phil Matonti2 to the DOE objecting to Woolley's application, "[b]ased on potential concerns about any possible adverse impact of treatment on [ TLGCC] ... property...." The plaintiffs' position was that with this new evidence, there now existed an issue for the jury as to whether TLGCC unreasonably interfered with the plaintiff s enjoyment of their easement. On February 17, 2017, based partially on this new evidence, the Superior Court reversed its summary judgment ruling as to breach of contract, breach of easement, and breach of declaration, allowing the suit to go forward on a combined claim of breach of Declaration of Covenants, Conditions, and Restrictions by unreasonable interference with easement. Furthermore, the Court allowed the homeowner plaintiffs to amend their complaint by adding 1 One homeowner later withdrew from the lawsuit, leaving eight current plaintiffs. 2 Matonti is a retired water treatment specialist with a 32 -year career at two water treatment companies (Calgon and Ecolab). DOE as a defendant (along with TLGCC). At approximately the same time, Woolley appealed his administrative case for a permit to the King County Superior Court and requested that his case be joined with the eight- homeowner lawsuit. After some initial interest in joinder by the eight plaintiff homeowners and DOE, these parties decided not to stipulate to joinder, so no joinder occurred. At this point, Woolley is waiting the resolution of the lawsuit before deciding how to proceed on his appeal, which has been continued in to 2018. Both sides in the lawsuit filed motions for summary judgment. The plaintiffs requested a declaratory judgment against DOE ruling that the homeowners are entitled to a permit to treat Lake Jeane. They are also asking for injunctive relief against TLGCC in the form of an order to stop interfering with the homeowners' right to treat Lake Jeane. TLGCC is asking for dismissal of all plaintiff claims based upon various arguments outlined in full in Section II.a.i below. At the June 16, 2017 summary judgment hearing, the Court strongly urged the parties to reach a settlement. After a lengthy recess, parties indicated that that a framework for a resolution had been reached whereby an agreed Declaration from the Superior Court would be entered that the Lake Jeane homeowners have a general right under their easement of use and enjoyment to treat Lake Jeane for blue -green algae and alleged toxicity, with the normal requirement of following all DOE protocols and procedures. DOE would follow its normal process of soliciting input from any other interested parties as to the particular treatment sought to be used and would be free to permit or forbid particular treatments pursuant to normal criteria. Subsequent hearings set on July 21, 2017 and on August 4, 2017 were stricken without an agreed order being entered. However, Scott Weaver, the plaintiffs attorney, indicated in an email on August 21, 2017 that the parties were still working on a settlement agreement and that he expected the matter to settle.3 Of twelve respondents to an informal survey I conducted of Lake Jeane homeowners (not including the eight plaintiffs in the lawsuit), half considered Woolley at least to some extent to represent or speak for their concerns. Woolley himself claims to speak for Lake Jeane residents based on his claim that 29 out of 40 Lake Jeane homeowners had consented to representation by the Lake Jeane Resident Coalition Committee ( LJRCC) when it was formed. At that time, the LJRCC included four other members, two of whom left to initiate the lawsuit, one of whom left because he moved away from Lake Jeane, and one of whom left for other reasons. Thus, Woolley remains as the only LJRCC member. Woolley has argued that the issue is one of great public import because blue -green algae are, he insists, a public health hazard. He has appeared several times before the Federal Way City Council; the Land Use and Transportation Committee; and the Parks, Recreation, Human Services, Public Safety Committee for public comment on this issue. He has also has met and corresponded with City Council members and various city officials from the Mayor's Office (including Mayor Ferrell himself), Public Works Department, and Law Department. He has also corresponded with county and state officials and representatives. 3 Meanwhile, trial remains set for October 30, 2017. Woolley has been strongly lobbying for the City to adopt a nuisance ordinance specifically stating that blue -green algae AKA cyanobacteria on "residential lakes" are a public nuisance and therefore prohibiting the causation, creation, maintaining, sufferance, or allowance of such to "occur, exist, or remain." Federal Way Revised Code 7.03.050 (General Public Nuisances Statute). However, there is no definition in the law for "residential lake," a cyano- toxin standard for which Woolley believes should be stricter than the recreational standard. Essentially, his proposed "residential" standard would consider a "residential lake" to be toxic at the lowest level of measurable cyanotoxin. No such standard exists in any jurisdiction to my knowledge, and, unlike for drinking and recreational waters, there are no scientific studies that support it. Woolley has also suggested the creation of a lake management district (LMD), a quasi - governmental entity, to cover Lake Jeane or possibly Lake Jeane and Lake Lorene. However, even the creation of an LMD would not, in Woolley's opinion, eliminate the need for a nuisance ordinance for various reasons. First, an LMD would take a while to form. Second, Woolley has stated that it would be futile, in his opinion, for an LMD (or any other entity) to have Lake Jeane treated while TLGCC continues to replenish the lake's water with phosphorus -rich ground water from its well. Third, an LMD, like TLGCC, could fail to act on the presence of cyano- toxins. Only a nuisance ordinance, in Woolley's opinion, would ensure action. The position of other Lake Jeane homeowners on an LMD has been unclear, though it appears that they may be moving in the direction of also favoring an LMD. On the other hand, homeowners may object to a lake management district as long as they still have to pay dues to TLGCC. TLGCC has been opposed to the creation of an LMD. It has been TLGCC's position that the dispute regarding Lake Jeane is a private matter that should not involve the City of Federal Way. II. Litigants and Litigation a. King County Superior Court case number 16 -2- 07439 -1 SEA i. Lawsuit On March 30, 2016, nine homeowners (Patti and Mel Ward, Casey and Jana Richardson, Elmer and Rose Reed, David and Laine Kokosz, Anthony and Vera Diloreto, Tony and Bonnie Armstrong, Stephen Mandle, Jennifer Cade, and John Read) with homes bordering Lake Jeane filed suit in King County Superior Court against the Twin Lakes Golf & Country Club (TLGCC) (Ward et. al. vs. Twin Lakes Golf and Country Club, King County Superior Court case number 16 -2- 07439 -1 SEA). Elmer and Rose Reed later withdrew. Several other Lake Jeane homeowners (Dave Jones, Ed Hirahara, Mike Umbehocker, Patty Schulz, Mary Jo Reintsma, Duong Nguyen, Jim Englund, Allen Church, Greg Crossland, and Joann McGovern) filed declarations in support of the plaintiffs' lawsuit. Furthermore, plaintiff Jana Richardson states that "[s]ince 2015 twenty -six of the forty lakeside homeowners have contributed financially in the pursuit to get TLGCC to maintain Lake Jeane." Declaration of Jana Richardson in Support of Plaintiffs' Opposition to Defendant's Motion for Summary Judgment of Dismissal at Page 18. She concludes from this "that 65% of [homeowners] that live on Lake Jeane want to live on a clean and healthy recreational lake and ... want TLGCC to finally be held accountable." Id. I reviewed over one hundred (100) documents filed in this case and spoke with the litigants with the permission of their attorneys. The initial cause of action was nuisance, under which the plaintiffs alleged that as the owner of the lake bed, TLGCC had a duty to the neighbors "to maintain the Lake such that it does not become a nuisance and a duty not to allow its property in general to become a nuisance." The plaintiffs requested monetary damages and "injunctive relief in the form of a judgment and court order requiring Defendant to take all actions suggested by the State, County and City and as advised by remediation experts to resolve the algae and toxicity in the Lake." A cause of action for breach of contract was added on September 30, 2016, alleging that "[u]nder the Declaration governing Plaintiffs and Defendant, Defendant has a contractual duty in good faith to maintain the Lake and to protect Plaintiffs' collective interests" and that "Defendant materially breached its contractual duty by refusing to remediate the Lake's algae and toxicity issues despite the existence of readily available remedies." Also on September 30, 2016, TLGCC moved for summary judgment on the nuisance claim based on the Club "not owing] a duty to control blue -green algal blooms on Lake Jeane" and on there being "no governmental requirement that the Club must treat the Lake for such algae." Its only duty, TLGCC claimed, is to maintain the existing water level when withdrawing water for irrigation. While it has a permit from the DOE to treat Lake Jeane for blue -green algae, TLGCC argued it is not required to utilize that permit. Plaintiffs, on the other hand, argued that (1) TLGCC's duty to maintain the water level of Lake Jeane included a duty to maintain water quality; (2) homeowners' right to use and enjoy the lake requires that TLGCC not unreasonably interfere with that right which it allegedly did by failing to control or treat the algal blooms; and (3) a duty is imposed by the Declaration of Covenants, Conditions and Restrictions on TLGCC to maintain Lake Jeane for the benefit of the homeowners, considering the dues paid by the homeowners to TLGCC. On October 28, 2016, summary judgment for TLGCC as to the nuisance claim only was granted by the Court, which agreed with TLGCC that it has no duty to maintain the water quality of Lake Jeane. On November 7, 2016, the homeowners moved the Court to reconsider this ruling based upon their allegation that TLGCC replenishes the water taken from Lake Jeane with ground water from a well that, according to the plaintiffs, causes or exacerbates the problem due to its high phosphorus content. Furthermore, the homeowners maintained, TLGCC's exercise of its right to withdraw water from Lake Jeane and replenish with water from its well created a corresponding duty to maintain both water volume and water quality. TLGCC responded that introducing phosphorus does not create a duty where none existed before, that phosphorus is not considered pollution under any definition, and that in any case, their studies showed phosphorus content in the well water to be below that in the water removed from Lake Jeane. On December 9 23, 2016, the Court denied reconsideration, finding that adding unadulterated waters of the State (i.e. ground water from well) to other waters of the State (i.e. Lake Jeane) cannot constitute pollution, particularly where TLGCC is specifically permitted by the State to replenish Lake Jeane with ground water from its well. On December 6, 2016, the homeowners filed a second amended complaint adding causes of action for breach of easement and breach of Declaration of Covenants, Conditions, and Restrictions. On December 9, 2016, TLGCC moved for summary judgment on these claims and on breach of contract, based on lack of any duty created by contract, easement, or Declaration to control blue -green algae on Lake Jeane. Its only duty, TLGCC claimed, is to replenish water taken from Lake Jeane for irrigation purposes. In its motion for summary judgment, TLGCC argued that the "responsibility for the maintenance and repair of an easement to keep it in proper condition lies with the owner of the easement —the dominant estate," Defendant Twin Lakes Golf & Country Club's Motion for Summary Judgment of Dismissal (December 9, 2016 page 9). Therefore, argued TLGCC, since Lake Jeane homeowners have the "dominant estate" with respect to their easement of use and enjoyment of Lake Jeane, "the obligation to maintain the Shoreline Owners' easement lies solely with those owners," Id. At 10. The homeowners responded that "[h]ad the Club asserted this position from the beginning and granted Plaintiff's request to maintain Lake Jeane, Plaintiffs never would have filed this lawsuit," Plaintiffs' Opposition to Defendant Twin Lakes Golf & Country Club's Motion for Summary Judgment (December 27, 2017 page 2). The homeowners thereby objected to summary judgment and asked the Court to "conclude that the Club has unreasonably interfered with Plaintiffs' easement right to use and enjoy Lake Jeane" by "continually prevent[ing] Plaintiffs from maintaining Lake Jeane themselves." Id. Furthermore, the homeowners asked the Court for "an order permitting them to maintain Lake Jeane." Id. Additional arguments were also made to the effect that it is at least a legitimate question of fact whether TLGCC's easement on homeowners' property for the purpose of maintaining Lake Jeane includes the duty to treat it for blue -green algae and that TLGCC breached a good faith duty under the Declaration of Covenants, Conditions, and Restrictions to use dues paid by the homeowners to maintain the lake for the use and enjoyment of the homeowners. Finally, the homeowners argued that the addition of phosphorus -rich groundwater into Lake Jeane constitutes an intentional trespass. In reply, TLGCC reiterated that it had no duty to treat Lake Jeane for blue -green algae. It also argued that it had no duty to allow the homeowners to treat Lake Jeane because the homeowners' "easement of use is secondary to the Club's right of use." Defendant Twin Lakes Golf & Country Club's Reply Re: Motion for Summary Judgment of Dismissal (January 3, 2017 page 3). Furthermore, TLGCC argued, it was the DOE and not TLGCC that "determined the lakeshore owners cannot themselves legally attempt to treat Lake Jeane for blue -green algae." Id. On January 6, 2017, the Court granted summary judgment in favor of TLGCC on breach of contract, breach of easement, and breach of Declaration of Covenants, Conditions, and 10 Restrictions. Orally, the Court also indicated that there was no evidence TLGCC took any action preventing the homeowners from use and enjoyment of Lake Jeane. The Court also agreed with TLGCC that it was the DOE and not TLGCC that determined the homeowners had no legal right to treat Lake Jeane. On January 17, 2017, the homeowners moved the Court to reconsider its January 6, 2017 ruling base on the claim that TLGCC had, in fact, interfered with the homeowners' easement. In support, they offered as evidence a February 14, 2016 email sent by TLGCC president (then vice - president) Phil Matonti to the DOE. This was six weeks before the lawsuit was filed. In the email, Matonti objected to the granting of a permit to treat Lake Jeane to Lake Jeane homeowner Bob Woolley (who was not part of the lawsuit but who had separately applied for a permit to treat Lake Jeane for blue -green algae). In the email, Matonti asserts that TLGCC "is the sponsor for Lake Jeane" and "has clearly deeded ownership of the lake parcel, as well as long established Water Rights to use lake water for irrigating the golf course." Matonti also asserts that "[b]ased on potential concerns about any possible adverse impact of treatment on [their] ... property, under no circumstances will [they] ... allow anyone to treat the lake without [their] ... permission." Matonti also notes that TLGCC has a permit from DOE and that "it has not been the practice of the DOE to issue two permits for the same sponsorship." DOE, the homeowners noted, subsequently denied Woolley's application, and its denial was upheld by the Pollution Control Hearing Board (PCHB). TLGCC objected to reconsideration, arguing that the email from Matonti to DOE merely restated its position in a document previously filed with the Court. Furthermore, TLGCC maintained that the email was a response to DOE's formal request for public comments and that finding this to be an interference with the homeowners' easement would unconstitutionally violate TLGCC's First Amendment right to free speech and would "unreasonably stifle the statutorily permitted free exchange of comments that is the hallmark of Ecology's decision - making process." Defendant Twin Lakes Golf & Country Club's Opposition to Plaintiff s Motion for Reconsideration of the Court's January 6, 2017 Order Dismissing Claims (February 8, 2017 page 4). TLGCC also noted that the decision of PCHB denying Woolley's permit application does not reference Matonti's comment as a basis. On January 17, 2017, the homeowners moved to amend its complaint by: • adding DOE as a defendant; • adding a claim for declaratory relief setting out the rights and obligations of all parties (including DOE) with respect to treatment of Lake Jeane • adding claims for injunctive relief ordering TLGCC to acknowledge and stop interfering with the homeowners' rights to treat Lake Jeane and manage the algae problem and ordering DOE to recognize the right of the homeowners to treat Lake Jeane and manage the algae problem. The amended complaint also changed the breach of easement claim to breach of and interference with easement. Other causes of action were deleted. 11 TLGCC objected to the motion to amend complaint on several grounds. First, TLGCC argued that the motion was untimely. Second, it argued the new causes of action for declaratory and injunctive relief were improper because the homeowners' use and enjoyment easement is, according to TLGCC, subordinate to TLGCC's "overriding right to use the lake water for irrigation." Defendant's Opposition to Plaintiffs' Motion for Leave to File Third Amended Complaint (January 23, 2017 page 5). TLGCC also argued that adding DOE to the lawsuit was improper since the correct procedure would be for Woolley to file a petition to Superior Court appealing the PCHB denial. On February 17, 2017, both the homeowners' motions for reconsideration and to amend complaint were granted (with the claim for breach of and interference with easement ordered changed to breach of Declaration of Covenants, Conditions, and Restrictions by unreasonable interference with easement). In its ruling granting reconsideration, the Court notes that the order of PCHB upholding DOE's denial of Woolley's permit application "appears to adopt defendant's objection to the permit based on its claim that defendant owns Lake Jeane" and that there is no evidence TLGCC "informed the Department of Ecology or the Pollution Control Hearings Board — as it has informed this Court — that the lakeshore owners, as the dominant estate, are responsible for maintaining that easement of enjoyment." Order Granting Plaintiffs' Motion for Reconsideration (February 17, 2017 page 4). "Given defendant's objection and the position it took before the Department of Ecology," the Court observes, "it is perhaps not surprising that both the Department of Ecology and the Pollution Control Hearings Board concluded that defendant, rather than plaintiffs, is tasked with the responsibility for maintaining Lake Jeane." Id. Thus, the Court held that a jury could find that defendant's actions, when looked at in the light most favorable to plaintiffs, unreasonably interfered with plaintiffs' ability to maintain their non - exclusive easement for the use and enjoyment of Lake Jeane. Those actions include: (1) telling plaintiff Pattie Ward that plaintiffs could not treat the lake because defendant owned it; (2) obtaining a permit to treat Lake Jeane from the Department of Ecology when the Department of Ecology may not issue a second permit for that treatment; and (3) objecting to plaintiffs obtaining a permit to maintain Lake Jeane for their use and enjoyment when the Department of Ecology and the Pollution Control Hearings Board based their decision to deny the permit on many of the same objections made by defendant. Id. At 4 -5. On March 15, 2017, the Department of Ecology filed a notification that it would not be actively participating in the litigation but did wish to be served with all pleadings. On April 7, 2017, the plaintiff homeowners and TLGCC both filed motions for summary judgment. 12 The plaintiffs are seeking declaratory relief in the form of a declaration that they have the right to treat Lake Jeane and injunctive relief in the form of an injunction prohibiting TLGCC from unreasonably interfering with that right. The plaintiffs argue that, based upon the Court's prior rulings; the Declaration of Covenants, Conditions, and Restrictions; and general law of easements, they (the plaintiffs) as the dominant easement holder have a right to maintain the easement, while TLGCC as servient easement holder may not unreasonably interfere with their enjoyment of their easement. The plaintiffs do not dispute that, if the Court rules as they wish, they still must go through the normal DOE permitting process, during which TLGCC may present evidence that a proposed treatment plan might damage its property. Plaintiffs also do not dispute that TLGCC may appeal an unfavorable ruling and may seek damages if homeowner treatment does indeed cause damage to TLGCC property. However, the plaintiffs argue, TLGCC may not represent that only it has the authority to treat Lake Jeane or that the homeowners have no authority to treat Lake Jeane. TLGCC is seeking summary judgment of dismissal of all remaining claims based on the following arguments: • Lack of subject matter jurisdiction because there are specific statutory and regulatory frameworks for resolving issues of water rights and water treatment permits which, TLGCC argues, must be followed before going to Superior Court; • Lack of standing and failure to join all necessary parties because adjudication would affect the 32 other Lake Jeane homeowners who are not part of the lawsuit; • Lack of factual dispute that TLGCC has not unreasonably interfered with plaintiffs' easement rights because o Reasonable interference with the plaintiff's easement rights is permissible since the plaintiff's easement of enjoyment and right to maintain Lake Jeane is "subject to" and therefore inferior to TLGCC's superior right to take Lake Jeane water for irrigation; o TLGCC has no obligation to negotiate with the plaintiffs concerning its rights; o The plaintiffs never themselves applied for a permit to treat Lake Jeane as it was non - plaintiff Bob Woolley who did so; o In any case: TLGCC's opposition to Woolley's application for a treatment permit is merely an exercise of its right and obligation to protect its water and property rights; ■ It was DOE, not TLGCC that denied Woolley's application; 13 ■ Woolley based his argument on a different easement than that referenced by the plaintiffs;4 o No Lake Jeane homeowner, TLGCC claims, has ever in writing requested to take on Lake Jeane treatment responsibilities as part of an easement right; • Plaintiff's alleged unclean hands because of its insistence without adequate information on TLGCC's agreement to approve a City of Federal Way grant application to fund Lake Jeane treatment costs within 24 hours, under threat of being sued ;5 • Plaintiff's alleged lack of standing to seek injunctive relief because: o Plaintiffs lack a well - grounded fear of an immediate invasion of their rights since there was, per TLGCC, no problem with algae in 2016, and any future such problem is speculative 6; o Plaintiffs were not injured since there was, per TLGCC, no need to treat Lake Jeane in 2016, and there is no evidence that the plaintiffs intend to apply for a permit in the future or that TLGCC will oppose such an application, its position to be based upon the specific sponsor and the specific treatment requested; See Section II.b.i below. SSee Section II.a.ii .1 and II.a.ii.2 below. 6 TLGCC Vice President Phil Matonti filed an affidavit on September 30, 2016 stating that "[n]o noticeable blue - green algal blooms were observed on Lake Jeane during 2016 to date." Declaration of Phil Matonti in Support of Defendant Twin Lakes Golf & Country Club's Motion for Summary Judgment (September 30, 2016 page 2). On April 7, 2017, he filed another affidavit stating that he "observed no noticeable blue -green algal blooms in Lake Jeane during 2016." Declaration of Phil Matonti in Support of Defendant Twin Lakes Golf & Country Club's Motion for Summary Judgment of Dismissal (April 7, 2017 page 1). However, in an affidavit by lead plaintiff Patty Ward, Ward states that "Whether they reached the level of toxicity or not, there were pockets of algae last summer and the algae stench was strong and present numerous times during the summer." Declaration of Patti Ward in Support of Plaintiffs' Opposition to Defendant's Motion for Summary Judgment of Dismissal (May 12, 2017) at Page 1. Ward attaches pictures to her affidavit that she took allegedly showing the algae in the summer of 2016. On May 12, 2017, former Lake Jeane homeowner Don Smith (who is not part of the lawsuit) also filed an affidavit with photos he allegedly took or had taken on June 12, 2016, showing algae in Lake Jeane. Finally, on May 22, 2017 plaintiff Jana Richardson filed an affidavit in which she states that the 2016 summer "was a repeat of the same disgusting swamp like conditions living on Lake Jeane," that their "backyard smelled putrid," and that they "definitely were not swimming in the green algae waters." Declaration of Jana Richardson in Support of Plaintiffs' Opposition to Defendant's Motion for Summary Judgment of Dismissal at Page 16. Richardson also attaches photographs she allegedly took in the summer of 2016 showing algae in Lake Jeane. 14 o Plaintiffs have the ability to request a monetary remedy based upon alleged diminution of the value of their homes o Plaintiffs have not identified any safe treatment they wish to apply to Lake Jeane, a necessity for the Court to determine the parameters of any injunction since TLGCC's superior rights to use Lake Jeane water for irrigation must not be adversely affected. The parties' motions were scheduled to be heard on June 16, 2017. On that date, as part of his argument, TLGCC attorney David Chawes stated, "... [T]he Club has no authority or ability to stop them [i.e., the plaintiff homeowners] from (INAUDIBLE) doing what they wish to do [i.e., treat Lake Jeane]." King County Superior Court Judge Ken Schubert then stated, ".. . [T]hat's fantastic news. Put that in an ... let's put that in an order: `The Club has no ability to prevent the plaintiffs from treating the lake. "' After some more clarification from Chawes about protecting TLGCC's right to withdraw water from Lake Jeane so that it does not harm their property, Judge Schubert added, "`Subject to what it's in the, it's in the easement. "' Judge Schubert then recessed the hearing for the parties to speak among themselves and come up with language on which they could agree, noting in passing that Chawes "might have a sense how in favor of them [i.e. the plaintiff homeowners] I am.... "7 After a 1.25 hour recess, the parties went back on the record, reporting that while they had made progress and were very close, they needed to discuss with DOE (joined to the lawsuit previously but not in attendance at this hearing) some details. The hearing was then set over to July 21, 2017 with a requirement that the parties notify the Court by July 17, 2017 if the hearing was to be stricken.$ The July 21, 2017 was later continued to August 4, 2017. The August 4, 2017 hearing was then stricken with no hearing date re -set. Trial is apparently set for October 30, 2017. Bob Woolley has reported to me that he believes the case will still go to trial because there is no agreement on whether homeowners would have to indemnify TLGCC for any damage to the Club's property caused by treatment.9 However, in response to my inquiry, plaintiff homeowner attorney Scott Weaver sent me an email on August 21, 2017 stating, "The parties are still working on a settlement agreement. I expect this to settle." All cited quotations from the June 16, 2017 hearing were transcribed personally by me from an audio recording of the hearing provided to me by the King County Superior Court Clerk. 8 I reported on the status of this Ward v. TLGCC lawsuit at the June 20, 2017 City Council meeting. 9 Woolley has stated to me that homeowners will never agree to this. However, it should be noted that Washington State Assistant Attorney General Chris Reitz, who represents DOE (See Section III.b.ii.2 below), has told me that such indemnification of any party with relevant water rights is a standard part of permits for treatment. Also, in the final brief filed by the plaintiff homeowners, their attorney writes that "if the treatment causes damage, the Club can seek damages from the homeowners. Obviously, the homeowners will be incentivized to find a treatment plan that is a win- win." Reply in Support of Plaintiffs' Motion for Partial Summary Judgment (June 12, 2017) at Page 7. 15 ii. Litigants 1. Patti Ward Patti Ward is the lead litigant in the lawsuit. She has lived by Lake Jeane since February 2015. She alleges in her Declaration filed in her lawsuit that in the summer of 2015, she reached out to TLGCC president Jim Reed to discuss Lake Jeane's algae blooms. According to Ward, Reed said that nothing could be done about the blooms, that TLGCC had no obligation to use membership fees paid by Lake Jeane homeowners to clean up the lake, and that the only obligation TLGCC had was to replenish waters taken from Lake Jeane for irrigation. He allegedly rejected Ward's proposals to sell Lake Jeane either to the homeowners by the lake or to TLHOA or to allow the homeowners take responsibility for the maintenance of Lake Jeane. He expressed TLGCC's concerns that treatment could clog TLGCC's irrigation system. In September- October 2015, Ward says she contacted Reed stating that Lake Jeane's water level being low, it would be a good time to do some maintenance on the lake. She says that Reed responded that TLGCC had no plans to do maintenance on the lake and that homeowners may not do any without TLGCC's approval. In November 2015, Ward states that the City of Federal Way Public Works Department advised her that there was funding available to pay for treating Lake Jeane with aluminum sulfate ( "alum ") if TLGCC provided a letter of agreement, there was a reliable cost estimate, and homeowners would pay 25 percent of the cost.10 According to Ward, homeowners agreed to the cost estimate and to paying 25 percent, but TLGCC never responded to a request for its approval. Thus, Ward contacted attorney Scott Weaver to send a letter to TLGCC asking for its agreement to the treatment if the grant were awarded. Weaver sent his letter on November 12, 2015, noting that the City of Federal Way needed a letter of agreement by noon the next day, Friday, November 13, 2015. Weaver further noted that should TLGCC not agree, his clients had directed him to file a lawsuit against TLGCC for nuisance. As discussed below in Section Il.a.ii.2, TLGCC responded by email on November 13, 2015, through its attorney, that it was "unreasonable" to insist on agreement within 24 hours without more information about the proposed treatment and its possible side effects. The response letter concluded that TLGCC "is not going to be cowed by threats of litigation" and was not liable for conditions on Lake Jeane. io See also Sections Il.a.i.2 and V.a. on this point as well. This refers to a proposed grant from the Washington Department of Ecology, to which the City of Federal Way would apply should all conditions be met. Also, according to City of Federal Way Public Works Director Marwan Salloum, the proposed grant amount would not have been sufficient to pay for treatment with "alum," an expensive treatment. " According to TLGCC's attorney, he heard nothing more from Weaver until being served with the lawsuit on April 6, 2016. According to an affidavit filed by Weaver on June 12, 2017, this was because his client Patti Ward had told him not to take any further action since TLGCC had offered to meet her and discuss the matter. According to Weaver, he advised Ward that it is never a bad thing to talk, so she did meet with TLGCC board members. However, Weaver goes on to state, the meeting did not yield any result, so plaintiffs brought the lawsuit a few months later. 16 On November 13, 2015, the City of Federal Way Public Works Department sent a letter to Ward explaining that the City would not be applying to the Department of Ecology for the grant money since it did not have written permission from TLGCC. In January 2016, Ward met with TLGCC vice - president (now president) Phil Matonti. As Reed had expressed earlier, Matonti told Reed that TLGCC would not allow homeowners to treat Lake Jeane and that any proposed treatment would clog TLGCC's irrigation system. Matonti also explained to Ward that TLGCC would be trying an experimental treatment to be applied only after blue -green algae (cyanobacteria) appeared. The treatment, Matonti said, would be applied on top of the algae and might reduce the smell. Ward was concerned about possible health hazards from the treatment and that it would not do anything about toxicity of the blue - green algae. According to Ward, Matonti said that if the treatment worked, TLGCC might patent it as a way of making money for TLGCC. 12 On December 13, 2016,1 met with Ward and her (and the other litigants') attorney Scott Weaver. Ward said that her initial goal was merely to sit down with TLGCC leaders and work together toward a resolution, but TLGCC refused to sit down with her. Nevertheless, both she and her attorney were still hopeful when I met with them that, despite the ongoing litigation, a negotiated solution could still be achieved. However, they were concerned that so far, TLGCC had shown no inclination to find a negotiated settlement but continued filing motions. Ward feared that TLGCC was attempting to "wear them down" by escalating legal expenses. Originally, Ward said she and her co- litigants had not wanted damages, just for the problem to be fixed. But now, they were spending tens of thousands of dollars responding to motions. She and her attorney pointed out to me that TLGCC's legal fees were paid by insurance. Nevertheless, Ward said she and fellow litigants would carry on to the end. Ward said that there are numerous potential remedies for the Lake Jeane problem that are not onerously expensive, but TLGCC said it was so money - distressed that it could not afford anything. But homeowners even said they would help pay for the treatment. Ward said that she and her co- litigants were not seeking any one particular treatment, but she was frustrated that TLGCC was unwilling just to try something, even to take some baby steps. While not necessarily favoring treatment with aluminum sulfate ( "alum "), Ward said that alum was used successfully on Green Lake and would not clog TLGCC's irrigation system because it would drop to the bottom of the lake. 13 She mentioned that TLGCC's own treatment contractor supported alum treatment. See Section VI.b below. Ward claimed that once sued, TLGCC stopped putting phosphorus -rich well -water into Lake Jeane. 12 Also See Section Il.a.i.2 below on this experimental treatment. 13 Green Lake, however, is much larger than Lake Jeane, so it is not necessarily comparable. See Section II.a.ii.2 below regarding TLGCC leadership opinions on the importance of the size of the lake. Also see Section VI. f below. Professor Schindler said that Green Lake is treated with alum every 3 to 5 years at an expense of $1,000,000 (total). 17 At the time we met, Ward indicated that one of her and her co- litigants' objections to the approach taken by Bob Woolley (see Section II.b below) was that he favored a Lake Management District (LMD), which would result in homeowners paying twice—to the LMD for lake maintenance and still to TLGCC based on the land covenants. Ward and her co- litigants at that time favored their approach of attempting to enforce what they saw as TLGCC's responsibility to treat the lake with the funds paid by the homeowners. Ward mentioned that TLGCC can raise mandatory dues at any time. Ward and her co- litigants also did not want to be involved in Woolley's efforts to lobby the City of Federal Way to pass a nuisance ordinance that would apply to blue -green algae. Ward did still express an interest in the City playing a mediating role between her group and TLGCC. The next day (December 14, 2016), attorney Scott Weaver emailed me that Ward had not believed an LMD was possible since Lake Jeane is a private lake. "[I]f it is possible," her attorney added, "we would be remiss in not exploring it." On January 24, 2017, I emailed Weaver regarding the position of his clients on a Lake Management District. Weaver responded that he could not give an answer until the litigation is completed. He did say he would like to learn more about that option (of a Lake Management District). However, in a subsequent email on January 26, 2017, he said that it was not the right time to discuss that option while the Court was still in flux. On February 23, 2017, attorney Scott Weaver indicated to me that, based on recent developments in the court case, Ward was now interested in discussing the formation of a Lake Management District with me. He gave me permission to speak with her directly about this. In our conversations toward the end of February 2017 and beginning of March 2017, Ward and I were initially planning to meet with several people from the City of Federal Way Department of Public Works to discuss how a Lake Management District could be formed and how it would work. However, it was later determined that such a meeting would be premature before the City determined what its posture would be and before the Superior Court resolves the issue of who is entitled to receive a permit. I did query Ward as to what she and her group preferred at this point. As to a public nuisance ordinance as preferred by Bob Woolley, she was not opposed but thought it was probably unrealistic. As to a Lake Management District, she supported that concept and felt that she and her group could convince the majority of Lake Jeane homeowners also to support it, even if they were still required also to pay dues to TLGCC. 2. TLGCC Leaders and Attorney David Chawes It is the position of TLGCC that the situation on Lake Jeane is a private matter that should not involve the City of Federal Way. Their position is also that there is no known effective and viable chemical treatment program for the blue -green (cyanobacteria) problem in Lake Jeane. If there were such a treatment, TLGCC says they would use it. 18 TLGCC maintains that starting in the 1970s, it has made various efforts to treat Lake Jeane for algae growths. TLGCC's current position is that while it has no requirement to maintain Lake Jeane free of algae, it would attempt to do so if possible. However, TLGCC maintains, the only treatment proven effective for algae growth in the past was copper sulfate, which was banned a long time ago by the Environmental Protection Agency (EPA). Other treatments used in the past were not effective or inconclusive. For instance, algaecides, which were used in the past, may actually make the problem with blue -green algae worse by killing beneficial aquatic plants. Aeration technology, which can be somewhat effective, has been used since sometime between 2010 and 2012.14 Thus, in 2014, TLGCC decided not to attempt further treatment until a viable treatment was identified. 15 The only real solution, TLGCC maintains, is to get rid of or at least minimize the root cause of the problem which is the introduction of phosphorus into the water system.16 Any chemical treatment would only be temporary. TLGCC also notes that this is not a situation they created or over which they have control but is one that is happening in lakes all over the United States. As noted above, TLGCC president Phil Matonti (vice - president until January 2017) is a retired water treatment specialist with education and experience in water quality assessment and treatment. It is his opinion that treatment with aluminum sulfate ( "alum "), one treatment favored by litigants, would not work in a small, shallow lake (like Lake Jeane) with a lot of water flow in and out. Matonti further states that alum would react with phosphorus to form a sticky "floc" which could clog TLGCC's irrigation system. It would also, Matonti says, settle to the bottom of the lake and build up there, eventually requiring expensive dredging of the lake. Finally, Matonti says, the bonding would eventually break down, releasing the phosphorus back into the lake. Matonti further states that zero valent iron, as used on Lake Lorene, is experimental only and has not been proven effective. Also, there is still a concern that, like with "alum" treatment, zero valent iron could cause coagulation. 17 While TLGCC initially stated it would consider zero valent iron in the future, Matonti later claimed that TLGCC had "strong evidence that the zero valent iron program used in Lake Lorene was not effective in 2015 or 2016." Supplemental Declaration of Phil Matonti in Support of Defendant Twin Lakes Golf & Country Club's Reply Re: Motion for Summary Judgment of Dismissal (January 6, 2017 page 3). is Lake Jeane homeowners claim that use of aeration has been inconsistent. is However, Patti Ward states that in the past, when TLGCC used algaecides and aeration, Lake Jeane was not covered in blue -green algae and did not have toxins. When TLGCC stopped doing anything, Ward says the lake got worse. Also, she said TLGCC's claims that past treatments did not help were not based on any measurements. 16 See Sections V.a, V.c, VI.f, and VI.g below for more on this point. Professor Daniel E. Schindler, a professor of biology at University of Washington School of Aquatic and Fishery Sciences and a limnologist (expert on lakes), agrees with TLGCC on this point. i' According to Don Russell, whose opinions are further discussed in Section VIA below, this opinion of Matonti is based on Matonti's belief that the iron treatment would be in the form of an "iron salt." See Section VIA for more details. 19 Matonti also fears that chemical treatment could harm the golf course greens when Lake Jeane water is used for irrigation. On March 1, 2016, Matonti addressed the City of Federal Way City Council and explained the position of TLGCC that it did not cause the problem of the algae growth on Lake Jeane. It is caused, he explained, by the introduction of nutrients (phosphorus) into the water flow. He mentioned housing around Joe's Creek and said that septic tanks and other sources channel nutrients (phosphorus) into the Creek, which feeds Lake Jeane. He referred to a two -year grant to the City of Federal Way to collect and identify sources of nutrients into Lake Jeane.l Matonti further explained that while TLGCC owns the lake bed, the State of Washington owns the water and that while TLGCC is being asked to treat Lake Jeane, there is in reality no known proven viable program to do so. TLGCC would try it, he indicated, if there were such treatment. He denied that there is any toxic threat and said that (former) City of Federal Way Surface Water Quality Program Coordinator Dan Smith did extensive testing of water flowing out of Lake Jeane to Puget Sound in 2015 and found no toxic threat to fish and wildlife. 19 Matonti reiterated that TLGCC complied with all State regulations (by notifying residents of lake conditions). Finally, Matonti emphasized TLGCC's position that this is a private matter and not a City of Federal Way issue. From August 2015 through May 2016, TLGCC conducted its own monthly tests of various parts of the Twin Lakes watershed for phosphate20 levels. Phil Matonti conducted this testing using an industry standard kit. In August 2015, this testing included the water from the TLGCC well, showing a phosphate level of 300 parts per billion, which TLGCC commented "[c]onfirtns presence of phosphate" but at a "[flower level than stream entering Lake Lorene [which tested at 370 parts per billion]." That month, Lake Lorene tested at 90 parts per billion (which TLGCC commented "[s]hows the return of phosphate to the lake only a couple of weeks after iron treatment. ") Lake Jeane tested at 190 parts per billion (which TLGCC commented may reflect a "[d]ilution effect. ") The level leaving TLGCC property downstream measured at 250 parts per billion. Test results from September 2015 through May 2016 were only recorded for samples taken from Joe's Creek (entering Lake Lorene), Lake Jeane, and Lake Lorene. This testing showed a wide variation with respect to phosphate levels and even with respect to which place tested higher. In January 2016, TLGCC commented, "All of this is simply more evidence of the need to collect much more data over a period of time." is See Section V.c below. 19 See Section V.d below. 20 Phosphate is oxidized phosphorus dissolved in water. 20 Per Matonti, the average soluble reactive phosphate over this period of time (August 2015 through May 2016) in Joe's Creek upstream was 356 parts per billion and in Lake Jeane was 297 parts per billion. Although test results for the well water were not recorded after August 2015, Matonti states that the average soluble reactive phosphate for the well water was approximately 250 parts per billion during the period of the testing. As noted in Section II.a.i. above, Matonti states that when the average phosphate concentration in Lake Jeane is lower than in the well, adding well water actually reduces Lake Jeane's total phosphate level. He also states that any phosphate added via the well is far less than that added from Joe's Creek. Finally, he notes that the well water draws upon the A -3 aquifer also used for City of Federal Way drinking water and that the phosphate level measured in the drinking water is typically the same as in the well water, unless the City is temporarily drawing from its alternate source, the Green River.21 From August through October 2016, TLGCC again conducted testing of phosphorus levels in Lake Jeane and in their well water, this time using Dr. Tamara Lunsman, a senior environmental toxicologist with Gradient Corporation.22 Her August 2016 results showed phosphorus levels in Lake Jeane between 0.1 and 20 mg/L and in the well between 0.028 mg/L and 0.049 mg/L, much lower than the Lake Jeane samples. 23 In April -May 2016, TLGCC applied for an experimental use permit from Department of Ecology (DOE) for its own experimental plan involving powdered activated carbon. This treatment would be applied only after blue -green algae appears. It is being tested, however, both for its effectiveness in reducing or eliminating odor and for its effectiveness in inactivating phosphorus. TLGCC also indicated it may seek to patent this treatment. In a February 18, 2016 letter to lakeside homeowners, TLGCC indicates that this treatment is environmentally friendly, does not kill algae, does not release toxins, and does not require EPA registration (as herbicides and algaecides may do.) As discussed in Section II.a.ii.1 above, lakeside homeowners are not satisfied with this proposed treatment. They favor a proactive, not a reactive approach and therefore do not want to wait until potentially toxic blue -green algae is already present before treatment is attempted. While they are concerned about odor, they are more concerned about toxicity, which is not addressed by this proposed treatment. Also, according to homeowner and plaintiff Jana Richardson, the plaintiff experts say that this treatment has risks, with the "potential to create a black tar like substance on [homeowner] beaches." Declaration of Jana Richardson in Support of Plaintiffs' Opposition to Defendant's Motion for Summary Judgment of Dismissal at Page 17. Finally, homeowners also note that the plan calls for this experimental treatment only to be used 21 In December 2015, Matonti tested City of Federal Way tap water and found it to contain 370 parts per billion phosphate, a level Matonti noted was actually higher than any level found in the well water during the summer. 22 Gradient Corporation also tested for cyano- toxins. The City of Federal Way was conducting testing for cyano- toxins at the same period of time, showing a level within acceptable recreational levels. See Section VA below. 23 See Section V.c.iv.1 below regarding Don Russell's dispute with the TLGCC testing described in this section by both Matonti and by Dr. Lunsman. 21 on a small portion of Lake Jeane, not the whole lake. They maintain that instead, TLGCC should test this experimental treatment on one of its golf course ponds. The TLGCC plan was approved by DOE on March 1, 2017, over objections filed by Don Smith 24, Don Russell s, Elmer Reed 26, Stephen Mandle27, Bob Woolley and Doug Dorling.28 On December 14, 2016, with the permission of TLGCC attorney David Chawes, I met with Jim Reed ( TLGCC president until the end of 2016), Matonti, and incoming vice - president Bob Rawlings at the TLGCC at the club house, which is right next to Lake Jeane. They showed me Lake Jeane and the TLGCC facility. They reiterated what they had explained to the Court— that while the well water they use to replenish Lake Jeane water does have phosphate, this is true for 20 to 25 city wells which supply the City of Federal Way with drinking water. Thus, replenishing with city water would have exactly the same problem. They also reiterated that the well water actually lowers overall phosphate because it has less phosphate than that which is removed from Lake Jeane. Upon being asked whether TLGCC's irrigation system could be reconfigured to irrigate directly from the well, the TLGCC officers said this was possible, but it would require some expensive work on the irrigation system. 29 They also said that before the lawsuit was filed, there were numerous discussions to try to resolve the situation. However, in November 2015, they were given only two days' notice to agree to a joint grant request to the Department of Ecology for treating Lake Jeane, or they were threatened with the lawsuit. Without knowing more about the grant or having more time to investigate, they would not agree to this under threat of being sued.30 The TLGCC leadership said that TLGCC has complied voluntarily with the posting of caution signs upon seeing cyanobacteria on Lake Jeane. They said that they almost went beyond 24 See Sections II.b.ii.1 and III.c. below. 25 See Sections V.c.iv and VIA below. 26 As indicated in Section II.ad above, Reed was part of the lawsuit against TLGCC but withdrew. 27 Mandle is one of the plaintiffs in the lawsuit against TLGCC as indicated in Section II.a.i above. 28 See Section VI.c below. 29 A TLGCC document entitled "Water Management Plans" filed by Patti Ward in her lawsuit against TLGCC states that TLGCC intends to "conduct a full engineering assessment of diverting well water directly to [their] irrigation system vs. adding to the lake as make -up water." However, TLGCC notes that "[ t]his is a complex project which will involve testing & monitoring, feasibility studies, engineering calculations, cost analyses, and possibly design work." According to Bob Woolley, the cost would be approximately $35,000. 30 See Sections II.a.i.1 and V.a. on this point as well. 22 recommendations in alwar putting up the first level caution signs in the summer until they stop irrigating the golf course. I The next day (December 15, 2016), I met with TLGCC attorney David Chawes. I asked him whether the City of Federal Way Mayor's Office could play a role in informally mediating the dispute between TLGCC and Lake Jeane homeowners. Chawes responded that the (in his opinion unlawful) revelation of settlement negotiations in documents filed by homeowner attorney Scott Weaver suggested that they were not interested in negotiations. Chawes said that he would discuss the idea of the City acting as a mediator, but he pointed out that to be a true mediator, there would need to be a confidentiality agreement which may not be possible for the City due to laws concerning public disclosure of City documents.sz Later that day, I emailed Chawes as to whether I could talk to their experts. Chawes responded they were not making their experts available at that time due to court rules regarding disclosure of expert opinions. On December 30, 2016, I emailed TLGCC leadership and attorney Chawes about setting up a meeting between Club leadership (and Chawes if desired) and Mayor Ferrell. Chawes asked what the agenda would be. On January 12, 2017, I sent a proposed simple agenda, which basically entailed only discussions on options for moving forward and on whether a "summit" involving TLGCC, Lake Jeane residents, and the City might be possible. Chawes responded the next day (January 13, 2017) that they could not meet with Mayor Ferrell while the lawsuit was pending. On February 24, 2017 or thereabouts, I called Chawes and asked him about the possibility of Mayor Ferrell mediating the dispute between Lake Jeane homeowners and TLGCC. He said he would discuss it with TLGCC leadership and get back to me. On February 27, 2017, he emailed me that on behalf of the TLGCC, he was thankful for Mayor Ferrell's interest in amicably resolving the situation but that "[t]he Club respectfully declines your very kind offer to have the Mayor mediate this matter." b. Pollution Control Hearings Board Case Number 16 -078. i. Suit Much of this suit is discussed in Section II.a.i above. I did review approximately ten additional documents in this case. 31 Patti Ward, however, states in her affidavit filed in the lawsuit that the signs were placed "in two out -of -the -way areas that were not visible from [her] home." Declaration of Patti Ward in Support of Plaintiffs' Opposition to Defendant's Motion for Summary Judgment at Page 3. Ward states that her neighbor posted a warning sign on her door. She also states that "[allthough the Club had our email addresses and home addresses, it never notified us when the lake turned toxic." Id. " Indeed the public disclosure laws would make it impossible for the City to act as formal mediator with a confidentiality agreement. I was really referring to more of an informal role in helping resolve this dispute between parties. 23 On January 29, 2016, Lake Jeane homeowner Bob Woolley submitted to the Department of Ecology an application to treat Lake Jeane for blue -green algae with zero valent iron (as Lake Lorene was being treated). His application was rejected on June 15, 2016 on two grounds. First, Woolley claimed to be a member of the Lake Jeane Residents Coalition Committee (LJRCC)33, which he described as representing the Lake Jeane homeowners. However, this organization is not an acceptable recipient of a permit since it is not a legal entity able to sign contracts and other legal agreements. Second, DOE found that the homeowners did not appear to have the authority to treat Lake Jeane. It should be noted, however, that DOE apparently was not examining the easements regarding Lake Jeane referenced in Sections I and II.a.i above but an unrelated easement granted to lakeside homeowners for the "exclusive use and enjoyment of whatever land may from time to time lie between said [lakeside] lot and the water's edge ... subject only to the right reserved in the TLG to pass over and across said easement area for necessary maintenance and upkeep of Lake Jeane and its related facilities. "34 However, DOE also stated that "[e]ven if an easement for use or recreation exists over the lake surface, the easement does not necessarily include the right to treat the lake." Letter from Bill Moore, P.E., Program Development Services Section Manager, Water Quality Program, Washington State Department of Ecology. 35 On July 12, 2016, Woolley appealed the denial to the Pollution Control Hearings Board (PCHB). On December 1, 2016, DOE, through its attorney Chris Reitz from the Office of the Washington Attorney General, moved for summary judgment based on the same reasons that DOE rejected Woolley's application. Once again, however, his argument did not cite the easements regarding Lake Jeane referenced in Sections I and II.a.i. but instead the one emphasized by Woolley granted to homeowners for the "exclusive use and enjoyment of whatever land may from time to time lie between said [lakeside] lot and the water's edge ... subject only to the right reserved in the TLG to pass over and across said easement area for necessary maintenance and upkeep of Lake Jeane and its related facilities." Reitz added that "[e]ven if an easement for use or recreation exists over the lake surface, the easement does not 33 Woolley initially also claimed to represent the Twin Lakes Homeowners Association ( TLHOA). However, TLHOA president Gary Darcey later submitted a letter disclaiming any role regarding Lake Jeane. Woolley later also asked that TLHOA be removed from consideration. 34 In fact, Woolley also did submit documents showing the easements regarding Lake Jeane referenced in Sections I and II.a.i above. However, his argument did not emphasize these easements, instead relying on the easement quoted here. 35 In a letter to State Senator Mark Miloscia and (former) State Representatives Linda Kochmar and Teri Hickel DOE Director Maia D. Bellon noted the ownership of the lake bed as being the relevant issue with respect to authority to treat the lake. However, the importance of this ownership was apparently later not considered to be the relevant issue. Bellon also noted that the possession of a permit does not mean that the permit holder is legally required to use it to treat a lake. 24 appear to include the right to treat the lake." Respondent State of Washington, Department of Ecology's Motion for Summary Judgment (December 1, 2016 page 7)(emphasis added).sb In his response, Woolley argued that DOE had "utilized fine -line reading of `normal sponsor qualifications' in the determination to deny permit approval," had provided "no technical reasons for non - approval of the permit," and had "disregarded the unusual circumstances that were brought to the attention of the DOE Permit Office during the staffing of the application." Response to Respondent, Department of Ecology's Motion for Summary Judgment and Appellant Request for Counter - Summary Judgment (December 13, 2016 page 8). "The focus of attention," he went on, "should have been to allow common treatment of water columns in both of the Twin Lakes, which are owned by the State. If one lake on Joe's Creek waterway is allowed to have an effective corrective treatment program, should not the other connected lake be allowed to have the same treatment process ?" Woolley also provided thirty (30) paragraphs of additional alleged facts, including the following: • TLGCC took no action to treat blue -green algae on Lake Jeane in the years 2013 to 2016. • Lake Jeane residents pay TLGCC $900 a year with no obligation on the part of TLGCC to spend it on Lake Jeane treatment. • TLGCC refused to allow treatment of Lake Jeane with experimental zero - valent iron in 2015 and 2016 and (unsuccessfully ) resisted the treating of Lake Lorene in this manner. • Lake Lorene was treated with zero - valent iron in 2015 and 2016, and that lake was algae -free both summers. • Lake Jeane residents were willing to pay for one year of treatment of Lake Jeane with zero - valent iron. • TLGCC refused to approve the submission of a grant request by the City of Federal Way to DOE intended for treatment of Lake Jeane. On January 9, 2017, the PCHB granted DOE's summary judgment motion. PCHB recognized that the Lake Jeane homeowners have "non- exclusive easements in the use and enjoyment of Lake Jeane, and over the land between the end of their lots and the water's edge." Order on Summary Judgment (January 9, 2017 page 7). However, noting that TLGCC also "has 36 This language is identical to that in the letter from Bill Moore at Department of Ecology initially rejecting Woolley's application, except that in Moore's letter, he states that "[e]ven if an easement for use or recreation exists over the lake surface, the easement does not necessarily include the right to treat the lake." Letter from Bill Moore, P.E., Program Development Services Section Manager, Water Quality Program, Washington State Department of Ecology (emphasis added). 25 easements over lakeside lots for the purpose of performing maintenance on Lake Jeane," PCHB found that "maintenance would include treatment of Lake Jeane under the Permit. "37 Id. PCHB concluded that "Ecology correctly denied the permit application as neither Mr. Woolley nor the LJRCC qualify as sponsors under the Permit." Id. at 8. On January 13, 2017, Woolley moved for reconsideration based essentially on an equitable argument that he and the Lake Jeane homeowners truly intended to treat Lake Jeane to address the lake's toxicity, while TLGCC did not. Request for Reconsideration of Summary Judgment (January 13, 2017 page 3). Woolley also alluded to "easement case law that suggests that a holder of a valid easement, which is the case for the Lake Jeane lakeside resident, is the dominant legal party for exercise of the easement rights." Id. 38 "That," Woolley went on, "supports the argument that the sponsor /appellant put forth as on behalf as the collective desire of the lakeside residents." Id. PCHB rejected Woolley's motion for reconsideration and entered a final order upholding DOE's denial of Woolley's permit application on January 20, 2017. Woolley filed an appeal with King County Superior Court on February 17, 2017 and asked that his case (Woolley v. Washington, Department of Ecology, King County Superior Court Case Number 17 -2- 03964 -1) be joined with Ward v. Twin Lakes Golf & Country Club, King County Superior Court Case Number 16 -2- 07439 -1, discussed in Section II.a.i. above. At first, DOE and the homeowner plaintiffs were going to stipulate to this joinder request. However, that ultimately did not happen, so no joinder occurred. Apparently no further hearings are set on this case until 2018 because Woolley wants to see what happens on the Ward v. TLGCC lawsuit before proceeding on his appeal. It is possible, depending on the outcome of the Ward v. TLGCC lawsuit, that Woolley will drop his appeal but resubmit another application to treat Lake Jeane. ii. Litigants 1. Bob Woolley and Lake Jean Residents Coalition Committee ( LJRCC) Bob Woolley has been a homeowner around Lake Jeane for three decades. At one time, he was a full- fledged "proprietary" (voting) member of the Twin Lakes Golf & Country Club but is not so anymore. 39 He has personally claimed a leadership role amongst lakeside homeowners with respect to the problems Lake Jeane has faced with blue -green algae for a number of years. He has educated himself and is extremely passionate about this issue. 37 In a footnote, PCHB also noted that "it is unclear whether two separate entities could be granted Permit coverage for the same water body for the same period of time." Id. (footnote 1). 3e Interestingly, it was TLGCC that first put forward this argument in its December 9, 2016 Motion for Summary Judgment of Dismissal in Ward v. Twin Lakes Go f & Country Club, King County Superior Court Case Number 16- 2- 07439 -1. See Section H.a.i. above. 39 According to Woolley, these dues were $2,500 initially and then $400 per month. 26 Throughout 2016 and 2017, Woolley has spoken numerous times during public comment periods before the Federal Way City Council; the Land Use and Transportation Committee; and the Parks, Recreation, Human Services, Public Safety Committee. Woolley has also has met and corresponded with City Council members and various city officials from the Mayor's Office (including Mayor Ferrell himself), Public Works Department, and Law Department during this period of time as well. Woolley has also engaged with media outlets, particularly the Federal Way Mirror, which has covered Woolley's Lake Jeane activism in its news articles and to which Woolley has submitted letters to the editor about his activities and positions with respect to Lake Jeane. Woolley has also engaged with 30`s Legislative District state representatives and state senator for help on his permit application and permit denial appeal discussed in Section II.b.i. above. It appears that State Sen. Mark Miloscia and former States Reps. Linda Kochmar and Teri Hickel did write a letter to the Washington State Department of Ecology (DOE) in support of Woolley's application to treat Lake Jeane. I do not have a copy of that letter, but I did review a letter sent in response by DOE to the state senator and (former) state representatives. See Section II.b.i above, footnote 35. Furthermore, State Sen. Mark Miloscia and former States Reps. Linda Kochmar and Teri Hickel apparently also wrote to the Washington State Department of Health (DOH) about the situation. Once again, I do not have that letter, but I have reviewed a response from DOH to the state senator and (former) state representatives stating that DOH "serves in a technical assistance role in managing and addressing concerns related to freshwater harmful algal blooms." The letter, while not precisely saying so, strongly suggests that DOH has no authority to require the treatment of a lake for blue -green algae. The letter goes on to state that DOH has advised against using the lake water to irrigate during bloom events since there currently are not enough data to indicate whether there is a human health risk of exposure with irrigation. We have recommended the golf course follow lake protocol signage and notify affected residents and golfers during bloom events. We have also recommended the concerned parties work toward a short-term treatment solution and a longer -term solution to reduce phosphorus inputs into the watershed. We will continue to provide guidance on limiting human exposure to harmful algal blooms and provide expertise on the potential public health impacts of harmful algal blooms. We will also continue to strive to develop both short- and long -term solutions with the City of Federal Way, Public Health - Seattle and King County, the Department of Ecology, the Twin Lakes Golf and Country Club, and the Twin Lakes Homeowner's Association. Woolley has also stated that he believes statewide legislation needs to be considered in the future and that he has worked with legislative assistants in a state legislator's office on proposed language that would bring a "corrective orientation" to the DOE permitting process. Specifically, he is proposing legislation that would either require a treatment permit to be used or 27 mandate the termination of a permit if it is not being used. He would also like to see legislation that would allow an organization like the Lake Jean Residential Coalition Committee (discussed below) to be a permit sponsor. Before the summer of 2015, a (now deceased) Lake Jeane resident named George Maitland used to serve as an informal liaison for lakeside residents to the Twin Lakes Golf & Country Club (TLGCC). On August 3, 2015, Maitland wrote to TLGCC's then- president Jim Reed announcing that he was resigning that position and that in its place, a group called the Lake Jeane Residents Coalition Committee (LJRCC) was being formed. It consisted of five individuals, all lakeside residents — Woolley, Patti Ward, Jana Richardson, Don Smith, and Deb Crossland. Woolley has claimed that 29 of 40 lakeside residents (i.e., 72.5 percent) gave written consent for the LJRCC to represent their interests. However, I have never been able to obtain these written documents, which, according to Woolley, are in Richardson's possession .40 Also, LJRCC does not appear to have any official registered status with the Washington Secretary of State. It does not appear that there are bylaws, Articles of Incorporation, formal board of directors or the like set up (though Woolley told me there is a "charter ".) According to Woolley, Ward and Richardson resigned from the LJRCC in November 2015 in order to pursue the lawsuit against TLGCC. Woolley and Smith did not want to go that route at that time, largely because they did not want to sign the required confidentiality agreement and thereby, in their opinion, limit their courses of action.41 Crossland also resigned from the LJRCC at that time but did not end up joining the litigation (though her husband did file notice that they supported it —see Section Il.a.i. above). Smith, though still supportive, no longer lives on Lake Jeane. So that leaves Woolley as the sole remaining "member" of the LJRCC. This is the source of Woolley's claim to represent lakeside residents. Furthermore, Woolley states that he has told Lake Jeane residents in person and by email that if any of them does not want him representing him or her anymore, he or she should get the support of 21 residents (i.e. a majority) and tell him (Woolley) that he is dismissed. However, that has not been done.az Woolley sends monthly updates by email to Lake Jeane residents and held a meeting in February 2016 to further update residents. On August 2, 2016, he held a community gathering billed as a "National Night -Out cul -de -sac assembly." Mayor Ferrell attended and addressed the group. Three City of Federal Way City Council members also attended. Woolley claims that at 40 I do have an unsigned copy of Maitland's August 3, 2015 letter to Reed, wherein he also claims that the LJRCC had "written consent and support of most of the Lake Jeane residents." 41 Smith also told me when I spoke with him on December 21, 2016 that he and Woolley thought a lawsuit was "premature" and that they wanted to "give peace a chance" even if it were to take a year. See Section III.c below for more on Don Smith. Woolley told me that he and Smith supported the litigation but wanted the prerogative to go to the City and to maintain collaboration with TLGCC to find a resolution. 42 Litigants and/or former LJRCC members Jana Richardson, Bonnie West - Armstrong, and Deb Crossland did write to Woolley stating that he does not represent them. Lead litigant Patti Ward has not said anything either way. 28 these meetings, he has solicited people to join the LJRCC so it does not remain a one - member organization (i.e. Bob Woolley), but nobody has volunteered. On behalf of the LJRCC, Woolley met with the leadership of TLGCC in late 2015 through early 2016 conveying his concerns with Lake Jeane. In October 2015, he emailed Mayor Ferrell and asked him to call a meeting of the LJRCC, TLHOA, and TLGCC "to determine an agreeable written solution to this public health circumstance." On February 29, 2016, Don Smith wrote to former City of Federal Way Chief of Staff Brian Wilson with a similar request. In a March 1, 2016 public comment to City Council, Woolley asked for them to call a meeting to "bring us closer together" and to "sit down and discuss nuances." On March 15, 2016, Woolley and Smith sent a letter to TLGCC president Jim Reed explaining that Ward, Richardson, and Crossland had resigned from the LJRCC and that the only remaining LJRCC members were therefore themselves (Woolley and Smith). At the same time, Woolley sent a letter to the TLGCC board with a formal request to address the board at its March 22, 2016 meeting. On March 18, 2016, this request was denied in a formal letter from James V. Handmacher stating that the board had unanimously so voted. The letter also gave formal notice that, due Woolley's "past and present methodical and calculating effort to undermine the well- being and financial stability of the Twin Lakes Golf & Country Club" and his "numerous written and verbal threats to take legal action," he would no longer be "recognize[d] ... as an acceptable representative for the Lake Jeane Owners." This correspondence was forwarded to Mayor Ferrell. Woolley nevertheless continued to keep TLGCC leadership informed regarding his (LJRCC) activities with several written letters. However, future correspondence from Woolley to TLGCC was rejected with instructions to deliver to TLGCC's attorney, who did not respond. Woolley feels that TLGCC is treating all residents as if they are part of the lawsuit and therefore cannot be contacted except through an attorney. Finally, on August 6, 2016, Woolley wrote to TLGCC president Jim Reed that (1) Don Smith was no longer an LJRCC member since he no longer resided on Lake Jeane; (2) the LJRCC no longer should be considered as representing Lake Jeane homeowners /residents for purposes of interaction with the TLGCC board; (3) communication by TLGCC on Lake Jeane matters should be with each individual household; (4) Lake Jeane homeowners /residents consisted of two groups —the eight litigant households and the 32 non - litigant households; and (5) he (Bob Woolley) would continue serving as a "solo activist for a healthier Lake Jeane." Mayor Ferrell did personally and through directives to staff attempt to facilitate discussions between TLGCC and Lake Jeane residents through early 2016. However, upon the filing of the lawsuit referenced in Section II.a.i. above on March 30, 2016, such efforts had to be mostly put on hold. However, former chief of staff Brian Wilson did continue to reach out to TLGCC's attorney in an attempt to facilitate a resolution. Woolley has also unsuccessfully attempted to persuade the board of the Twin Lakes Homeowners Association (TLHOA) to formally support his efforts to resolve the issues concerning Lake Jeane, including the support of a public nuisance ordinance to apply to blue- 29 green algae. Woolley also has unsuccessfully attempted to persuade TLHOA specifically to call on TLGCC to deal proactively with Lake Jeane.43 In the months leading up to Woolley's January 29, 2016 application to the Department of Ecology to treat Lake Jeane for blue -green algae with zero valent iron, Woolley was in contact with former City of Federal Way Deputy Public Works Director William Appleton for advice and to ask for a formal letter from Mayor Jim Ferrell in support of Woolley's application. On February 1, 2016, Appleton emailed Woolley that the treatment issue "is a private matter between the owner of the Lake Jeanne (Twin Lakes Golf and Country Club) and the residents that surround it" and that "the City chooses not to intercede and will not be writ[ing] a support letter to the Department of Ecology for granting the LJRCC the required Permit for treatment of the Lake." On February 24, 2016, Woolley wrote to Mayor Ferrell and the City Council with a request that this decision be reconsidered and that the City issue a letter to DOE endorsing Woolley's treatment application. Woolley claims to have been told that there was a slim chance he would be successful in his application without City support. Starting around February 2016, Woolley began lobbying Mayor Ferrell, City Council, and City staff to amend the City of Federal Way public nuisance ordinance by defining blue - green algae on "residential lakes" as a public nuisance and then to enforce the amended ordinance against TLGCC. On February 16, 2016, Woolley told City Council in a public comment that residents had pursued all private ways to resolve the issue on Lake Jeane. He said that in the summer of 2016, he would be requesting that a lake management district (LMD) be formed to solve the toxic algae problem, which he said had been ongoing for three years. He said it was not a private matter but a public health matter that needed City Council attention because there was no willingness by the other side to come to common grips with it. This is Woolley's strongly held position - -that "residential lakes" infested with blue -green algae (or cyanobacteria) pose a public health hazard and therefore present an issue of great public (i.e. government) concern. He bases this on his concern that mere proximity to a blue - green algae infected lake risks exposure to cyano - toxins 44 Woolley believes that with the enforcement of a properly worded public nuisance statute, the responsible party would be forced as a matter of law to rectify or at least mitigate the problem, or potentially suffer sanctions. Woolley does not believe that TLGCC will, under any circumstances, agree voluntarily to treat Lake Jeane in a manner satisfactory to lakeside homeowners .45 Woolley believes that treatment with zero - valent iron, as was done on Lake 43 Woolley also told me that TLHOA told the City of Federal Way not to do anything regarding Lake Jeane. He has expressed an opinion that the current TLHOA board is in "cahoots" with TLGCC. Woolley told me he has unsuccessfully asked to be a board member six times. 44 As will be made clear in later sections of this report, the jury is still out as to whether such cyanotoxins could be an airborne hazard. See Sections V.b.,VI.f, and VI.g. 45 Woolley claims that he had asked Mayor Ferrell to set up meetings between TLHOA and TLGCC with the mayor as referee, but the TLGCC board refused to meet. 30 Lorene, should be tried on Lake Jeane. However, he has also stated that he wants Lake Jeane to be treated any way possible and that the lakeside residents do not deserve to live on a "toxic lake ". In March 2016, Woolley submitted to the City a proposed public nuisance ordinance reading as follows: Any accumulation of algae conditions on any privately owned (or public) lake surrounded with residential properties can be considered a public nuisance. Toxic algae conditions on any residential lake that are above State designated criteria for toxicity via certified testing results that present a health hazard, potential loss of property value, or loss of access due to potential harm to humans or domestic pets are to be considered to be a specific public nuisance. On behalf of TLGCC, Phil Matonti sent city staff an email on March 13, 2016 objecting to Woolley's public nuisance ordinance proposal. His objections included the following arguments: • The blue -green algae problem on Lake Jeane is caused by nutrients (phosphorus) entering the Twin Lakes from Joe's Creek, is thus not caused by the actions of TLGCC, and thus cannot be labelled a nuisance. • TLGCC only owns the parcel underneath Lake Jeane, not the water column itself. Thus, there is no clear entity that would be responsible for mitigating any hypothetical nuisance. • The State Department of Ecology (DOE) has set up a system of signs, warnings, etc. to protect the public from any danger from blue -green algae. There is no State law that goes further than that. • The proposed ordinance could subject the City of Federal Way to fines were it not immediately to treat a lake with the lake bed owned by the City that a citizen complained was infected with toxic algae. The City would then have to budget for such treatment expenses. • The proposed ordinance could require the City regularly (weekly?) to sample all lakes and ponds within its limits, every year. After some internal discussion, it was concluded for various reasons that the requested nuisance ordinance was not a viable option. Woolley has challenged the City to explain the problems with his suggested ordinance or, in the alternative, to write an ordinance that would pass muster. He has stated that he would not accept simply being told that such an ordinance is not possible without an explanation and a chance for rebuttal. He believes that only the City of Federal Way has the proper authority to enforce a solution to what he describes as the "public health hazard" of blue -green algae (cyanobacteria) on what he describes as "residential lakes" like Lake Jeane through an ordinance, since it is not in the jurisdiction of the State Departments 31 of Health (DOH) and Ecology (DOE) or of Public Health of Seattle and King County (PHSKC) to do S0.46 These agencies instead play a merely passive role in reviewing and approving /denying applications to treat waters of the state (DOE), recommending standards for cautioning or warning about or closing toxic lakes (DOH), and providing caution, warning, and closing signs (PHSKC). If the City cannot act, Woolley requests to be informed what entity could take corrective action regarding Lake Jeane. Woolley has stated that the City of Lakewood has a nuisance ordinance covering blue - green algae (cyanobacteria). He may be referring to a provision prohibiting property owners or renters from "maintain[ing] or allow[ing] to be maintained ... any ... vegetation to include a majority of vegetation (other than vegetation located in flower beds) which is dangerous to public health, safety, and welfare, located in any front yard, side yard, rear yard, or upon any vacant lot." Lakewood Municipal Code § 8.40.020(1)(E). However, this ordinance would not necessarily encompass blue -green algae since it would be a point of dispute whether a majority of such algae is dangerous and since a lake is not usually considered a yard or a vacant lot. (This could be because determining ownership of a "lake" is, as will be seen, a difficult issue.) In April or May 2016, Woolley wrote to King County Councilmember Pete von Reichbauer requesting assistance on Lake Jeane. Councilmember von Reichbauer responded that he had had his staff contact Teri Barclay with Public Health of Seattle and King County (PHSKC) and that Barkley had indicated PHSKC could not do anything other than post signs around the lake regarding toxic algae.47 Barclay also specifically told Councilmember von Reichbauer's staff that PHSKC had no authority to force TLGCC to treat Lake Jeane. Councilmember von Reichbauer also wrote that he had had his staff contact the King County Prosecuting Attorney's Office "to determine if there was any circumstance in which the County could intervene in the matter." Amy Eiden with the Prosecutor's Office responded that "the only scenario in which the County could step in is if there is a determination of human health risk resulting from aerosolization of microcystin toxins [a cyano- toxin] due to use of Lake Jeane water for golf course irrigation. "48 Thus, Councilmember von Reichbauer concluded that neither PHSKC nor King County could legally intervene. In the Spring of 2016,Woolley requested an inspection of Lake Jeane by the King County Tax Assessor. The inspection was conducted on June 6, 2016. The assessor observed algae and phosphorus content on Lake Jeane and noticed signs posted around the lake warning residents that the lake may be unsafe and not to recreate, drink from, or allow pets to access the lake. The assessor also noted high levels of toxicity found by testing in 2014 and 201549 Based on these 46 See Section V.b. for more on the State Departments of Health (DOH) and Ecology (DOE) and Public Health of Seattle and King County (PHSKC). Also see Section V.a, for a discussion of Woolley's distinction between "residential" and "recreational" lakes. Woolley states that PHSKC was "no help" and that they are "too soft," and that DOH advises PHSKC but has no authority. 47 See Section V.b below for more on Barclay. 48 As will be discussed in later sections of this report, the jury is still out on whether aerosolization of cyano - toxins presents a public health hazard. See Sections V.b, VI.f, and VI.g. 49 See Section VA below. 32 observations and on information provided by Woolley, the tax assessor concluded that Lake Jeane homes are affected by the toxic algae conditions and thereby reduced the assessed value of all lakeside homes by $24,000 for property tax purposes and sent homeowners a partial refund check for property taxes paid in 2015. Woolley in the long term supports the formation of a Lake Management District (LMD) on Lake Jeane (to include Lake Lorene in his opinion). In fact, he discussed the issue with City of Federal Way Department of Public Works staff throughout the end of 2015 and the first half of 2016. He has apparently even prepared documentation to get this process started. Woolley believes that an LMD must encompass both Lake Jeane and Lake Lorene since Lake Lorene feeds into Lake Jeane. Therefore, were Lake Lorene not treated, treatment for Lake Jeane would likely be fruitless. However, at this point, Woolley believes that a Lake Management District is a long -term solution that (a) will not resolve issues likely to develop in the short term; (b) may not be approved by Lake Jeane homeowners while they still have to pay dues to TLGCC; 50 51 and (c) will not resolve the issue of TLGCC's replenishing water taken from Lake Jeane for irrigation with phosphorus -rich ground water from the TLGCC well, a practice that Woolley believes makes treatment futile. 52 Therefore, the formation of a Lake Management District does not, in Woolley's opinion, negate the need for a specific nuisance ordinance. Woolley also has expressed concern that a Lake Management District could vote not to treat blue -green algae and could be dissolved at any time, while a nuisance ordinance would provide a permanent legal mandate for the treatment of blue -green algae (cyanobacteria). On October 10, 2016, Woolley submitted a formal Citizen Action Request (CAR). In it, he demands action from the mayor and City Council as to his proposed public nuisance ordinance (either a formal vote by the City Council on the proposed ordinance, an alternative solution, or at minimum, a formal explanation as to why such action is not taken). Woolley commented at the October 18, 2016 City Council meeting about his CAR, noting the actions 50 Woolley is also engaged with members of the Twin Lakes Homeowners Association ( TLHOA) at large in attempting to have Covenants, Conditions, and Restrictions (CC & Rs) amended by altering provisions requiring payments to TLGCC. He has held several meetings on this issue with several dozen interested TLHOA members. Unlike with respect to the issue of blue -green algae on Lake Jeane, Woolley stipulates that his efforts to amend CC & Rs represent a private issue on which he does not seek assistance from the City of Federal Way. si Woolley has volunteered to pay personally for one year's treatment with zero valent iron, expected to cost approximately $15,000. However, he believes this would be fruitless as long as TLGCC continued to, in his opinion, exacerbate the problem by adding phosphorus -rich water from their well to Lake Jeane. 52 Because of this issue, Woolley has indicated that he intends to petition the Department of Ecology to decertify TLGCC's well water, which he asserts "is over the State guidelines for injection of phosphorus into State waters," Email from Woolley to Scott Weaver (May 24, 2017). It should be noted, however, that according to TLGCC attorney David Chawes, TLGCC, though not required to do so, actually replaces water lost to evaporation and not just the water taken for irrigation. According to Chawes, if TLGCC did not do that, the lake would eventually completely evaporate. 33 taken by the King County Tax Assessor lowering property values for homes around Lake Jeane and sending homeowners a partial refund check, as noted above. Woolley noted that the lowered property values would continue until a remedy was found, causing revenue loss to the City. Woolley commented that the King County Tax Assessor had acted within four months and that all other public agencies had taken little or no action. Formal response to Woolley's CAR by way of fully researching this issue and preparing a full report was assigned to me by Mayor Ferrell on December 5, 2016, my first day with the City of Federal Way. Since starting with the City of Federal Way Mayor's Office on December 5, 2016, I have had lengthy meetings with Mr. Woolley in person or by phone on multiple occasions plus countless other shorter conversations. 53 While he has spoken of a potential lawsuit against the City of Federal Way and of publicizing the issue further through various media contacts, he has held off on any such actions while my fact - finding and report- writing efforts have been ongoing. 2. Assistant Attorney General Chris Reitz (Dept. of Ecology attorney) At the suggestion of Woolley, on December 8, 2016, I contacted Chris Reitz, the assistant attorney general representing the Department of Ecology (DOE) in Woolley's case. Reitz and I had a lengthy conversation on December 13, 2016 regarding DOE's position. He explained that Woolley's permit request had been denied because he did not demonstrate the authority necessary to treat Lake Jeane. He said that while there was technically no bar to issuing permits to more than one entity, DOE would not mediate disagreements between citizens. Reitz further explained that the documents provided by Woolley did not show authority to treat the Lake Jeane water and that the LJRCC also lacked the formal structure necessary to be an entity that could get a permit. Reitz indicated that a Lake Management District (LMD) is an entity that could apply for and receive a permit. However, he did not know if the formation of an LMD was possible without the assent of TLGCC. Reitz further indicated that this was an unusual situation for DOE, which does not usually deal with homeowners wanting chemical treatment but with homeowners who were opposed to such treatment. Reitz further stated that the legal issues raised by the Lake Jeane situation were novel in nature and that there is not much legal precedent. Ultimately, a Superior Court may have to sort it out. While the State has management authority over all waters of the State, this is done not by DOE itself treating lakes but by DOE issuing permits to private groups or public authorities (such as cities) to do so. While the City of Federal Way could itself apply for a permit, TLGCC may not agree, in which case there would still be an issue of who has authority over the lake. 53 Woolley continued to make contact with me and request meetings. My goal during my "investigation" was to make sure that I had as much information from as many sources and sides as possible. 34 DOE is not really in a position to make these sorts of determinations. There is also no precedent for DOE to order a permit holder to use it and treat a lake. Deputy City Mark Orthmann and I spoke to Reitz again on January 18, 2017. Reitz explained recent developments in the lawsuit (referenced in Section II.a.i. above). DOE was being added to that lawsuit, in which the litigants were now seeking a declaratory judgment that the Lake Jeane homeowners have the authority to treat the lake. While based on what they had received from Woolley, DOE had determined it was TLGCC that had the authority, Reitz said that they had not seen the original deed language and that it was possible the homeowners really do have the authority. Reitz also said that originally, the primary reason Woolley's application was denied was that another entity ( TLGCC) already had a permit. However, Reitz said that in reality, the issue is who has management authority over the water. There is nothing, he said, that prevents two entities from having a permit for the same lake. That having been said, if an entity has management authority, it does not really make sense for another entity to have the same authority. Reitz said DOE would be reluctant to issue two permits for the same body of water. Reitz explained that DOE does not really have much of a stake in who has the authority and does not really want to make that decision. In his opinion, King County Superior Court is a good forum to decide this issue. DOE would defer to the Court and honor its declaratory judgment, if issued. Without a court decision, Reitz felt it was risky for DOE to make its own decision on private property interests. Reitz did not directly answer my question of how DOE would decide now if it had to make the determination but said that it sounds as if TLGCC may have "painted itself into a corner" by its position in the Ward v. TLGCC lawsuit. However, even if the Court were to declare the residents to have the legal authority to treat Lake Jeane, there would still be an issue of having a legitimate entity. The Twin Lakes Homeowners Association would suffice. So would a Lake Management District or a city. However, once again, without a declaratory judgment from Superior Court, Reitz could not definitively say that even a Lake Management District or a city would be granted a permit with respect to a private lake without public access. Without a court declaratory judgment, the same question would be raised of who has the management authority over the lake. On May 16, 2017, I spoke again with Chris Reitz after having read TLGCC's motion for summary judgment of dismissal filed on April 7, 2017. I realized that TLGCC owns all official "water rights" regarding the waters of Lake Jeane, while the rights of the homeowners are based upon easements, which are real estate rights. I asked whether this would affect the ability of the homeowners to obtain a permit to treat Lake Jeane. Reitz explained to me that water rights, like all property rights, are mostly based upon very old (19th Century) established patterns. There is also a process to establish them anew. However, Reitz explained, this is a completely different process from the regulatory process of obtaining a water treatment permit. One party's owning of a water right, Reitz explained, does 35 not necessarily affect another party's ability to obtain a water treatment permit. However, the general water treatment permit does contain a provision that if the treatment affects an existing water right, the permit holder must reimburse the water right holder for any loss. 3. Jon Jennings, Department of Ecology At the recommendation of Chris Reitz, I spoke on December 20, 2016 with Jon Jennings, a water quality discharge permit writer and Water Quality Program administrator at the Department of Ecology. Jennings explained the process whereby entities apply for and receive aquatic permits to treat toxic algae and /or remove phosphorus. He said that government entities can receive such permits as can people actually applying the products to water. However, such people need a "sponsor," meaning a person with authority to manage the water body. This gets into property rights issues. Homeowner Associations can generally get a permit if they represent people living on the water who have authority to manage the body of water in the area being treated. Generally, DOE assumes a sponsor has authority unless it gets information otherwise. In the case here, DOE staff talked to TLGCC, which claimed authority and had another application pending. TLGCC was able to show the roperty deed showing ownership over the lake bed, so DOE found TLGCC had the authority.5 Woolley, on the other hand, could not show proper authority or even that he properly represented the parties for whom he was claiming representation. DOE permits, Jennings explained, cannot authorize trespass. Jennings said that the City of Federal Way could apply for a permit, but whether it was granted would depend upon whether the City has management authority over the body of water. Typically, when a City applies for such a permit, the body of water is one where there is public access, so there is an assumption that the City can manage it for public benefit. Jennings was unsure how this would play out on a private lake like Lake Jeane. There would still need to be a showing of management authority. With regards to a Lake Management District (LMD), Jennings said there would be similar outstanding questions with respect to who has management authority. An LMD is a quasi - governmental entity with taxing authority over its members. With TLGCC being the property owner, would it have veto authority? Or would an LMD override the property right? If so, could this be considered a "taking" of private property for public use? These are unanswered questions. Jennings further explained that the State Department of Health (DOH) requires sign postings or even lake closure when toxic algae is present. However, he said that (1) not all blue- 54 In the January 18, 2017 conversation with Chris Reitz referenced in Section II.b.ii.2 above, Reitz stated that DOE had assumed ownership of the lake bed gave management authority because, for one, sediment can come out from the lake bed causing algae growth. However, Reitz indicated that ownership of the lake bed does not give management authority because all waters belong to the State. The issue is one of who has management authority over the water column, not who owns the lake bed. 36 green algae blooms turn toxic and (2) DOH only has authority over public lakes. For privately held lakes, the DOH guidelines are only recommendations. Jennings reiterated that there is no requirement to test for blue -green algae and no requirement to treat for it if it is present. As far as whether blue -green algae is in fact treatable, Jennings said there is no "silver bullet." He indicated that many urban lakes have excess phosphorus leading to such algae blooms. Jennings agreed with Matonti that alum treatment could cause a "floc" that could plug TLGCC's irrigation system. Jennings said that TLGCC could under its current permit use algaecides on Lake Jeane and could also use two permitted phosphorus inactivators — "alum" and calcium hydroxide. There is an extra application process for experimental treatments requiring monitoring for effectiveness. For instance, the treatment used on Lake Lorene (zero valent iron) is experimental. Beforehand, Phoslock was tried as an experimental treatment. It seemed effective for a while but not great. Jennings described the experiment with zero valent iron on Lake Lorene as inconclusive because the lake was treated with algaecides the week beforehand, so the decrease in blue -green algae may have had more to do with that than the iron. Furthermore, there was a fish kill on Lake Lorene, but whether this was caused by the treatment was inconclusive. Jennings, however, thought it was unlikely that the treatment caused the fish kill because it involved catfish, which are typically hardy even in low oxygen environments. While oxygen levels in Lake Lorene did drop slightly, it was not enough to affect fish, especially catfish. 111. Other Lake Jeane Homeowners a. Survey To get a broader idea of the opinions of Lake Jeane residents other than those involved in the lawsuit and Bob Woolley, I conducted an informal email and phone "survey" of Lake Jeane residents toward the end of December 2016 and beginning of January 2017. I sent emails to twenty -eight Lake Jeane residents or homeowners whose emails were provided to me by Bob Woolley /LJRCC or by the City of Federal Way Department of Public Works. 55 I also made follow -up calls to eight Lake Jeane residents or homeowners whose phone numbers were provided to me by the City of Federal Way Department of Public Works. 56 I did not email or call any of the eight litigants involved in the lawsuit. ss All but one of the ten people contacted by email from the City of Federal Way Department of Public Works list was also on the list of Woolley /LJRCC. 56 Again, all but one of these people was also on the list of Woolley /LJRCC, although he did not provide phone numbers. 37 My general object was to find out opinions on (1) how serious a problem there was on Lake Jeane; (2) who should be held responsible; (3) the lawsuit against TLGCC; (4) the LJRCC; and (5) who represents or speaks to each resident's concerns. Four residents responded by email, seven by telephone, and one partially by email and partially by telephone, for a total of twelve respondents, as follows: Mary Jo Reintsma57, Charles Anderson, Allen Church 5s, Elmer and Mona Rose Reed '59 Terrence and Joann McGovern60, James and Sharon Englund 61, Chris Siegmund, David and Janet Jones62, Celma Maitland '63 Robert and Ock Jung Kim, Mike and Carol Umbehocker64, and Robert and Deb Crossland65 All but one respondent identified toxic algae as a problem on Lake Jeane. Most of these respondents felt the problem was serious, in some cases very serious. Three- quarters of respondents held TLGCC responsible, at least to some extent. Of those who did not hold TLGCC responsible, one respondent specifically stated he did not believe that TLGCC is responsible for Lake Jeane's condition or that the dues paid by lakeside residents are for the treatment of Lake Jeane. Other answers to the question regarding who is responsible included nature, runoff (e.g. from Joe's Creek), people's use of fertilizer, wild birds (e.g. geese) and people who feed them, "Mother nature," King County, and the City of Federal Way. 57 As noted in Section II.a.i. above, Reintsma filed a document with the King County Superior Court in support of the lawsuit, though she did not join it. 58 As noted in Section II.a.i. above, Church filed a document with the King County Superior Court in support of the lawsuit, though he did not join it. 59 As noted in Section II.a.i. above, the Reeds had been part of the lawsuit but withdrew. fi0 As noted in Section II.a.i. above, the McGovern filed a document with the King County Superior Court in support of the lawsuit, though they did not join it. 61 As noted in Section II.a.i. above, the Englunds filed a document with the King County Superior Court in support of the lawsuit, though they did not join it. 62 As noted in Section II.a.i. above, the Jones filed a document with the King County Superior Court in support of the lawsuit, though they did not join it. 63 Widow of George Maitland, referenced in Section II.b.ii.l above. 64 As noted in Section II.a.i. above, the Umbehockers filed a document with the King County Superior Court in support of the lawsuit, though they did not join it. 65 As noted in Section II.a.i. above, the Crosslands filed a document with the King County Superior Court in support of the lawsuit, though they did not join it. Also, as noted in Section II.b.ii.l, above, Deb Crossland was part of the LJRCC but resigned at the same time as Ward and Richardson, who both joined the lawsuit. 38 All but two respondents said they had heard about the lawsuit against TLGCC. Of those who had heard of the lawsuit, various reasons were given for not joining it, mostly the financial expense and in a few cases feeling it would not be successful. Half of respondents identified the LJRCC and/or Bob Woolley as at least to some extent representing or speaking for their concerns. b. Mary Jo Reintsma In addition to her status as a survey respondent, I spoke to Mary Jo Reintsma separately in January 2017 at the recommendation of Bob Woolley. Reintsma has lived on Lake Jeane for 42 years. She expressed sadness that what was once a friendly, neighborly community has turned into a situation where there is less communication amongst neighbors. The neighborhood is divided into four camps —those who support TLGCC, those involved in the lawsuit, those who support LJRCC /Bob Woolley, and everyone else. Reintsma described this as a sad statement on what can happen in a neighborhood. Reintsma feels that Woolley is very knowledgeable on all the issues and speaks to resident concerns. She also said that he is very involved with this issue. As for herself, Reintsma previously told me in a brief December 2016 conversation that she sort of supports Woolley. She said that he was very smart and knows what he is talking about but that his style does sometimes make it difficult for others to hear what he is saying. Reintsma and her husband did not join the lawsuit because she felt it was unconscionable to spend that kind of money which could be better spent on actual treatment of Lake Jeane. Reintsma also told me that most TLGCC members are not familiar with the issues on Lake Jeane. She said most members do not live or even vote in the area and are not really interested in these local issues. Meanwhile, Lake Jeane homeowners have no say in what TLGCC does and cannot even go to their meetings which Reintsma said is frustrating. Reintsma also told me that it bothered her that TLGCC, which had a five -year permit to treat Lake Jeane that expired in 2016, renewed the permit at the last minute when Woolley was seeking to get a permit but then did nothing with it. Also, Reintsma said that TLGCC raised homeowner dues without giving her notice (though she said TLGCC said an email and letter had been sent to all affected people). Although Reintsma complained two or more times to TLGCC about not getting notice, she still never got notice. Though TLGCC said that the dues increase was not only for Lake Jeane people, Reintsma felt it was retaliatory. Reintsma feels that the mayor should call a meeting with homeowners and TLGCC people to help resolve the issues. She feels that this is a City issue, for one thing because it is costing the City property tax revenue due to the lowered assessments66, as explained in Section II.b.ii.1 above. 66 Woolley has also made this argument, in addition to his main allegation that blue -green algae pose a public health problem. 39 While Reintsma said that in the past, Lake Jeane had other issues with algae, it was never blue -green algae until three years ago. She also said that the Lake Lorene homeowners have done the best they can in treating their lake. She said at times, that treatment is very successful, sometimes less, but Lake Lorene is 75% to 100% better than Lake Jeane. c. Don Smith Don Smith no longer lives on Lake Jeane, but when he did, he was active along with Woolley in the LJRCC. He sold his home and moved away in July 2016. I spoke to him at the request of Woolley on December 21, 2016. Smith stated that TLGCC leadership's approach that TLGCC does not have to treat Lake Jeane represents a "rights" over "responsibility" approach. While TLGCC could have the "right," Smith rhetorically asks what are its responsibilities when exercising its rights. He believes TLGCC has a responsibility to be part of the community, act as a good neighbor, and not just see homeowners as a revenue source. Smith also said there should be more communication/interaction between TLHOA and TLGCC. Their respective leadership, he believes, should meet annually to discuss mutual interests and issues. A year ago, Smith said, (former) TLGCC president Jim Reed did not know who (former) TLHOA president Gary Darcey was. However, Smith said that Reed told him nobody would show up from the TLGCC board for the proposed annual meeting because they do not have any interest. At this point, it is Smith's opinion that Lake Jeane residents and TLGCC should amicably "divorce ". He understands that TLGCC would need a new water source, perhaps by irrigating directly from the well (now used to replenish Lake Jeane water), which would be an expensive plumbing change. Also, TLGCC would need some compensation for giving up its covenant rights to $80 per month in membership fees from Lake Jeane homeowners. His suggestion is that the TLHOA buy out TLGCC's property interests in Lake Jeane and then manage both Lake Lorene and Lake Jeane together. 67 He also suggested the formation of a Lake Management District (LMD) to cover both Lake Jeane and Lake Lorene. Smith believes that it would be the cheapest solution for all parties to come to a voluntary agreement. He believes this would require someone with the right "horsepower," with a "bully pulpit." However, if this is not possible, Smith supports Woolley's desire for a public nuisance ordinance to protect the community. IV. Twin Lakes Homeowners Association The Twin Lakes Homeowners Association ( TLHOA) encompasses 1496 homes, including the approximately forty homes on Lake Jeane. As noted previously, TLHOA owns the lake bed of the neighboring Lake Lorene and has been responsible for that lake's maintenance, 67 Bob Woolley has also expressed support for this concept. He also noted that this could cover the cost of TLGCC re -doing its irrigation system. L,X using homeowner dues. This is justified because Treasure Island Park, which is open not to the public but to all TLHOA members, abuts Lake Lorene. Gary Darcey, a Lake Lorene resident, is the former president of TLHOA. From an October 4, 2014 article in the Federal Way Mirror, I learned that Darcey had been instrumental initially in raising attention to the problem of toxic blue -green algae on the twin lakes back around 2010. It was this issue that first got him involved with the board of TLHOA, of which he was eventually elected president. According to the Mirror article, starting in 2012, Darcey convinced the TLHOA board to spend $40,000 on a treatment product called Phoslock, which did work at first. However, toxic blue -green algae returned in 2014, leading to the closure of both Lake Lorene and Lake Jeane. Darcey contacted Mayor Ferrell at that time, leading to a meeting of lakeside residents with city and State officials. To test whether the source of the problem could be phosphorus -laden Joe's Creek, which feeds into both lakes, the City at that time proposed a plan to monitor the water at several different places along Joe's Creek. See Section V.0 below. City staff at that time also noted they could help lake residents form a Lake Management District (LMD). Former City of Federal Way Surface Water Manager William Appleton also noted that the LMD could consist of both Lake Lorene and Lake Jeane. As previously noted, Lake Lorene has been treated with zero valent iron in 2015 and 2016 to apparent, although disputed success. A self - assessment based on monitoring done by Doug Dorling,68 the Lake Lorene applicator, after the 2015 treatment concludes that "[i]t is likely that the iron application removed the entire ortho [i.e. soluble reactive] phosphate69 component from the water column" and that "[t]otal phosphorus concentrations were reduced nearly 55% from the pretreatment levels." The applicator concludes that "the application of zero valent iron to Lake Lorene successfully reduced phosphorus concentrations throughout the water column below those necessary to promote and sustain potential blue green algae growth" and thus that the zero - valent iron "proved to be a viable solution to the Lake Lorene nutrient issues that have plagued the system for years." On the other hand, an August 19, 2016 log entry by the City of Federal Way Department of Public Works states that TLGCC emailed about an algae bloom on Lake Lorene and requested the City to sample it. City staff recommended action by TLHOA. In a February 26, 2016 email to the City of Federal Way, Darcey noted the apparent success of the Lake Lorene treatment and continued as follows: Lake Jeane had no treatments and suffered months of hazardous conditions. The 40 residents that live on Jeane voiced their outrage and concern but those 68 See Section VI.c. 69 See Sections V.c, VI.e and VI.f regarding soluble reactive phosphorus. LEI concerns seem to fall on deaf ears. Those residents this year have decided no more... they are being very proactive in trying to get a treatment program in place to no avail. The golf club does not intend on doing any preventive treatment on the lake until the source of the nutrients are curtailed... something I think will never happen. The only prevention of the conditions that promote our toxic algae is chemical treatment. This is where I come in... the HOA guy. I am concerned that if some kind of mediation does not occur, lawyers will be engaged, newspapers will be contacted, real estate will not move... all negative things that impact the one thing I feel is my job ... the maintenance of PROPERTY VALUES. I have tried to intervene with no success, the Lake Jeane residents have tried... I could use someone independent help. That someone would sit down with the golf club and ask.... Why Not? Why not treat the lake? If the Lake Jeane residents could get an understanding or a reason that made sense, maybe that would hold off the lawsuits and the newspaper articles. Please help. Obviously, Darcey's attempts to avert legal action were unsuccessful. I contacted Darcey by email on December 21, 2016. He commented as follows: ... I think the lack of maintenance by the golf club and thereby causing the conditions in that lake have an impact on all property owners in Twin Lakes. There may not be a permanent corrective action but there preventive actions which were followed by the HOA on Lorene As you are aware, negative publicity is not a good thing for a community trying it's best to maintain a certain standard. Darcey also directed me to current TLHOA president Steve Hatch. I spoke with Hatch on December 27, 2016. Hatch said that TLHOA is an interested third party with respect to Lake Jeane. While they would love to see Lake Jeane cleaned up, it is TLGCC, not TLHOA that is primarily responsible. TLHOA is trying to stay out of the issue because it does not feel it has legal standing. Hatch also expressed concem about harming TLGCC to which TLHOA is, in his words "married." If TLGCC fails, Hatch said, TLHOA members' property values will fall significantly because the property would be re -zoned for condominiums. Hatch even said that there is a potential buyer in the wings should TLGCC fail. Hatch mentioned that TLHOA's management company suggested that TLHOA and TLGCC do a joint operating agreement or even that TLHOA purchase TLGCC and operate both 42 as a single entity. However, this has not been discussed except by management. According to Hatch, it would be difficult to get support behind this idea. Hatch expressed wariness over what he described as Woolley's "antics and misrepresentations." Hatch pointed out, as referenced in Section II.b.i (footnote 33) above, that Woolley had filed his application for a permit for Lake Jeane on behalf of TLHOA without authority. Hatch said that he was close to applying to a court for a cease - and - desist order against Woolley to prevent Woolley from representing himself as a TLHOA representative. However, Hatch held off taking this step since Woolley had backed off. That having been said, Hatch said that Woolley will not take "no" for an answer. From the perspective of TLHOA, Hatch said that he did not want to get "sideways" with TLGCC and that it was a no -win situation to take a position. Woolley is engaged in separate efforts to amend Covenants, Conditions, and Restrictions (CC & Rs) by eliminating mandatory TLGCC dues provisions. However, according to Hatch, these dues provisions are in the property deeds and would not be affected by a change in the CC & Rs. At one time, Hatch explained that Woolley was involved in an official TLHOA committee to review CC & Rs. While this committee had nothing to do with Lake Jeane, Hatch claims that Woolley turned the committee into an advocacy group for Lake Jeane. TLHOA officially sent Woolley a letter thanking him for his service to TLHOA and dissolving the committee, but, Hatch claims, Woolley continues to assert he is part of the HOA. With respect to the Lake Jeane Residents Coalition Committee ( LJRCC), Hatch explained that it was formed separately by Woolley and Don Smith 70 and is not part of and has no relation to TLHOA. The last time Hatch looked, LJRCC has not filed with the Washington Secretary of State's Office. It was an attempt to have group negotiating power with TLGCC. Hatch thought that the founders went door -to -door with a petition. There was no vote of TLHOA. That all having been said, Hatch agrees that Lake Jeane is a mess and needs to be cleaned up. He would like to see TLGCC take care of the lake. He feels that part of ownership is due diligence and keeping the lake from becoming offensive. He described Lake Jeane as smelling like sewage treatment. TLGCC, Hatch believes, could create good will by agreeing to proposed treatments of Lake Jeane. According to Hatch, in general, Lake Jeane residents support Woolley. However, Woolley's tactics have lost him some support. Hatch was unable to say if Woolley "represents" the majority of Lake Jeane homeowners, stating instead that the majority of them are dissatisfied with the lake and probably agree with Woolley's objectives but not necessarily his tactics. 70 As indicated in Section II.b.ii.1 above, Patti Ward, Deb Crossland, and Jana Richardson were also involved in founding the LJRCC. 43 Hatch also expressed frustration with the volume of emails Woolley sends to the HOA demanding responses. This consumes a lot of resources distracting from daily business. The TLHOA board is all volunteers, and there is only one temporary employee. I asked Hatch about Don Smith's idea of TLHOA buying Lake Jeane property rights from TLGCC. Hatch said he could put it to the board, but he doubted that there would be any interest in buying a property that would also entail an annual maintenance expense. As noted previously, Hatch described the general consensus to be that the treatment of Lake Lorene was successful. He said it costed about $10,000 to $15,000 for one year's treatment, which would have to occur every year to be effective. 71 Advice on the treatment was provided by Don Russell.72 Asked whether, if TLGCC permitted it, TLHOA would pay for Lake Jeane to be treated, Hatch said it would need a vote of the board and would be a "tough sell ". However, he did say it may be worth presenting to the board as an option. Towards the beginning of March 2017, Bob Woolley indicated that it was his understanding TLHOA may not be treating Lake Lorene at all in 2017 because, to his knowledge, neither the previous company that managed treatment nor any other licensed applicator had submitted a bid for 2017. However, when I followed up with Hatch, he (Hatch) said that, while the previous company was not being re- contracted, there would be a licensed company contracted to advise treatment for Lake Lorene. 73 V. City of Federal Way, King County, and State of Washington Officials a. City of Federal Way Department of Public Works In order to familiarize myself with all of the issues surrounding Lake Jeane, I met on December 8, 2016 with City of Federal Way Department of Public Works Director Marwan Salloum, Deputy Director Edward "E.J." Walsh, Surface Water Manager Theresa Thurlow, and Surface Water Quality Program Coordinator Mindi English. These officials explained that blue -green algae blooms in lakes occur due to a combination of conditions of which phosphorus in the water is one of the most important, along with high temperatures. There has been an exponential increase in this problem from urbanization. (For instance, even run -off from people washing their cars can contribute to this problem, as well as fertilizer for plants. However, the phosphorus level in fertilizers has gone 71 In his February 26, 2016 email from former TLHOA president Gary Darcey to City of Federal Way Surface Water Manager Theresa Thurlow, Darcey stated that "TLHOA spent nearly $25,000 in chemical treatments to preclude the onset of toxic algae in Lake Lorene and we were successful." 72 See Sections VLe below. 73 This is important to Woolley since, as noted in Section II.b.ii.1 above, Lake Lorene feeds into Lake Jeane, so without treatment on Lake Lorene, Woolley states that treatment on Lake Jeane would be fruitless. 44 down in recent years.) At present time, there is no known long -term treatment for blue -green algae, though there have been many successful short-term treatments (i.e. effective for 1 to 5 years). The science in this area is only a few decades old, and the number of studies done still small. One treatment used ten years ago is illegal now in that it was shown to cause more harm than good. Blue -green algae, Public Works officials explained, is actually cyanobacteria. Cyanobacteria (blue -green algae) can produce cyano- toxins, but the presence of cyanobacteria (blue -green algae) does not necessarily mean that cyano - toxins are present. Testing must be done to determine the presence of cyano- toxins. The World Health Organization (WHO) has set a level of cyano- toxins beyond which the affected water is considered not safe as drinking water. A few states, including the State of Washington (through our Department of Ecology (DOE)), have also set a (higher) level beyond which the affected water is considered not safe for recreational use (e.g. boating, swimming). At the time, no federal or international standard existed for recreational use. However, about a week after our meeting, I was alerted by Department of Public Works staff that the United States Environmental Protection Administration (EPA) had just issued a draft proposal for public comment containing a recreational standard that was lower (i.e. more strict) than the one that had been set by Washington DOE. Public Works staff explained that Bob Woolley wants the City of Federal Way to establish an acceptable cyano -toxin level for "residential lakes" that is stricter than the standard for recreational lakes. 74 His proposed standard is based upon the extremely low level of cyano- toxin at which the guidelines state caution signs should be posted. This level is essentially the lowest level at which such toxins can even be detected. However, by way of comparison, the WHO drinking water standard is based on millions of dollars of research over a period of ten years. The State of Washington standard for recreational lakes was based on the Department of Health's Scientific Advisory Committee (which includes doctors, nurses, toxicologists, biologists, and other public health specialists). In contrast, the City of Federal Way would have no way of determining a standard for "residential" lakes other than basically making it up, which would be unwise from a policy perspective since it would not be based on any verifiable scientific research. No such standard exists anywhere, to the knowledge of the City of Federal Way Department of Public Works. In one of her last emails to City of Federal Way staff before retiring, Former State of Washington Department of Health Toxicologist Joan Hardy, who specialized in blue -green algae (cyanobacteria), stated in response to a question regarding Bob Woolley's request for a standard for "residential lakes" that "[i]t would be highly unusual for a city or county to have develop it's [sic] own standards that are different than the state or country." Email from Joan Hardy to Theresa Thurlow (October 24, 2016).75 74 Woolley sent me an email in December 2016 stating that "[t]he criteria for a residential lake should be lower due to the daily exposure during the blooming season." See Section ll.b.ii.1 above for more on this point. 75 See Section V.b below for more on Hardy. 45 Furthermore, there is no definition of what a "residential" lake is. We discussed Bob Woolley's request for a public nuisance ordinance specifically labelling blue -green algae (cyanobacteria) as a public nuisance. The challenges to this idea, I was told by Public Works staff, are many. First of all, a body of water could be anything including even a ditch or a pond, both of which could contain toxic blue -green algae. On the other end of the spectrum, Dumas Bay /Puget Sound could end up having a marine equivalent of blue -green algae (though this problem could be avoided by focusing only on fresh water). Second, who is the owner of the body of water at issue? It could be a public right -of -way or another city (that does not have the relevant ordinance). Third, what would the enforcement mechanism be? Someone would have to sample and test the water. This itself would take three to four days. Then, if the results show toxicity, the owner would have to be notified and given time to react, which would be another couple of weeks. In the meantime, an allegedly toxic situation would have been allowed to fester. This could create problems for the City and could involve the City in issues regarding which there is no expertise and with which no other municipality has dealt. An ordinance as requested would require staff with the knowledge to administer it. Finally, at what level would blue -green algae be labelled a public nuisance —when it is unsightly? When it causes bad odor? When it is toxic? If the latter, the City's testing showed no toxicity in the summer of 2016.76 However, homeowners wanted there to be more frequent testing done. And, as indicated, Woolley wants a lower "residential" standard to be adopted. With respect to treatments used for the blue -green algae problem, the City of Federal Way's consultant told Public Works staff that treatments that work by bonding to phosphorus (e.g. "alum" and zero - valent iron) would likely be effective for no more than five years. Within five years, the bonding would break down and release the nutrients (phosphorus) back into the lake, causing another algae outbreak. One concern about which there is no data is whether the resulting outbreak would end up being ten times worse than the initial ones. Homeowners could argue that zero - valent iron treatment worked on Lake Lorene without complaints by TLGCC that irrigation systems got clogged. (Since Lake Lorene feeds into Lake Jeane, if there were this problem, arguably treating Lake Lorene would also cause it.) However, there is a difference in that Lake Jeane is shallower than Lake Lorene with a lower water volume. Also, since Lake Jeane is used for irrigation with the water replaced via TLGCC's well, Lake Jeane, unlike Lake Lorene, has a high water flow. Thus, TLGCC would argue that the breaking down of the bonding caused by treatment would happen faster with Lake Jeane, with its lower water volume and higher water flow, than with Lake Lorene. 76 See Section VA below. 46 Political pressure on State officials concerning the toxicity of Lake Jeane led DOE at the end of 2015 to approach the City of Federal Way with an offer of a monetary grant for treating Lake Jeane with aluminum sulfate ( "alum "). The City would have to apply for a permit. Mayor Ferrell approved this application. All grant requirements were met other than the one that the lake bed owner (TLGCC) had to concur. The City approached TLGCC, which would not concur, so the City was not able to submit the application and obtain the grant money.77 Lake Lorene homeowners had tried to get the City of Federal Way to pay for its treatment from surface water fee funds. However, since these lakes are private, they had to pay for treatment themselves. Subsequently, I asked City of Federal Way Surface Water Manager for help in summarizing the various treatments that could be used for blue -green algae. Thurlow responded as follows: There are holistic treatments such as grass carp and raking that have a minimal effect on filamentous algae but nothing large scale, sort of band aid approach. Also, adding dissolved oxygen through aeration can help cut down on algae outbreaks. However, for wide spread effective use, a full scale nutrition load and lake structure type analysis would be needed (and the resultant aeration system would probably be fairly expensive to install). Approved WA treatments include: 1. Alum: either aluminum sulfate or sodium aluminate. This compound precipitates in water and creates a flocculent (floc) which binds with the Phosphorous [ "P "] floating in the water column. The floc bound P settles in the bottom of the lake and becomes part of the sediment layer. Length of effective treatment is dependent on the depth of the lake and how often the sediment is stirred up which could release the P back into the water column. If the lake continues to receive Phosphorous loading from external sources (stormwater runoff, creek input, lawn runoff, or other types of discharge into the lake) this treatment is temporary and once the Phosphorous load has built up again, algae will form and another treatment will be needed to pull the nutrient out of the water column. It is possible the floc from the alum could clog the pump used to irrigate the golf course if they need to turn it on before the precipitate has settled to the bottom of the lake. Also, aluminum sulfate is acidic and could have a corrosive effect on machine parts and grass. 2. Zero valent iron (ZVI): This is the `experimental' treatment approved by DOE for use on Lake Lorene. It is the same theory as alum, the iron binds the P and it "Also see Section II.a.ii.1 and Il.a.i1.2 on this point. 47 settles in the sediment, denying the algae its food source. I know it's been used for groundwater and soil remediation and in recent years wastewater treatment plants have been experimenting with it as a flocculent to remove Phosphorous. It is theorized that eventually, the bond between the P and the Fe [iron] will weaken and release the nutrient back into the water column. I haven't read any literature that provides a solid timeline for breakdown of the bond. There are conflicting theories on whether this treatment is toxic to aquatic life. There are also conflicting theories on whether it is good for - or harmful to - plant cycles. 3. Diquat: an herbicide approved by DOE for control of nuisance and invasive species aquatic plants. Its effectiveness for blue -green algae isn't clear. If applied correctly, toxic risk to aquatic life is minimal. It is only a short term treatment. 4. Amine salt (Hydrothol 191 is common name): Another herbicide, toxic to fish, approved by DOE in only extremely small doses and requires several selective treatments for blue -green algae control. No recreational use of water body allowed for 24 hours after treatment. It breaks down quickly so probably would have no effect on land plant cycles. 5. Sodium carbonate peroxyhydrate: Fast acting algaecide that inhibits algae growth. Used mostly for spot treatment of outbreaks, not as common for preventative measure although can be used in this manner, mostly due to the fact it's an extremely short term treatment. Email from Theresa Thurlow (January 9, 2017). b. State Department of Ecology (DOE) and Department of Health (DOH) and Seattle & King County Public Health Department (PHSKC) City of Federal Way Surface Water Manager Theresa Thurlow directed me to DOE Wetland & Aquatic Biologist Lizbeth Seebacher, who, according to Thurlow, is "the go to person on toxic algae issues within the state." Email from Theresa Thurlow (December 22, 2016). Thurlow further explained that the State Department of Health (DOH) "has oversight of waterborne illnesses" and is "responsible for posting health advisories for ... recreational water illnesses," including from cyano- toxins. Id. DOH "delegate[s ]implementation of this to `the local health department'," which for Federal Way is "the combined Seattle and King County Public Health Department (Public Health)." Id. "However," Thurlow went on to explain, "Public Health has never been fully funded and DOH as a whole has serious funding challenges," so "DOE water quality has most of the responsibility for recreational water, both from an ecological and a human health perspective." Id. Finally, Thurlow went on to explain: 48 In an effort to get their arms around the growing incidents of cyanobacteria blooms and help establish a policy for jurisdictions dealing with cyanotoxins in those blooms, the State Legislature funded the WA State Toxic Algae Freshwater algae bloom monitoring program to be implemented through DOE. DOH advises and provides much of the science knowledge necessary for the program. It is under this program we get the guidelines and the ability to test the harmful algae blooms for toxins. Id. On December 28, 2016, I spoke with Seebacher, who said that DOE works closely with the State Department of Health (DOH), which had a toxicologist specializing in blue -green algae (cyanobacteria) named Joan Hardy. For instance DOH would get involved if a pet became sick by running into a blue -green algae- infested lake, or if a person became sick from exposure. Seebacher explained that DOE does not enforce regulations concerning blue -green algae but leaves that up to municipalities and their health departments (e.g. King County Department of Health), which can, under protocols set by DOH, close infested lakes completely or have caution or warning signs posted. The signs can be requested from DOH, but the State does not close lakes on its own authority. Seebacher did not know what legal recourse there would be should signs not be posted and someone became ill by going into an infested lake. Furthermore, like others, Seebacher said that the issue for all governmental entities (State, county, and city) in this case is that the Lake Jeane lake bed is owned by TLGCC. I asked Seebacher if lakes infested with blue -green algae can pose a health hazard to people nearby who do not have any direct contact with the lake, for instance, if a sprinkler was using lake water .78 Seebacher said that she had heard from Hardy it was possible for cyano - toxins to volatilize and thereby to be inhaled. However, Seebacher did not know how close one would need to be to the sprinkler in order to be affected. She did not think that much harm could come from any infested water after a lawn is watered because it would quickly dry out. Seebacher further explained that not a lot of scientific work had been done in the area of cyanobacteria and cyano- toxins. She said this is a new field that has become more important since the problem shut down the Toledo, Ohio drinking water supply in 2014. Press reports on that incident got the United States Environmental Protection Agency (EPA) involved. EPA had not put out guidelines regarding cyano- toxins with respect to recreational waters.79 In fact, the State of Washington was the first state to do so. The EPA has just hired people who are experts on blue -green algae (cyanobacteria). 78 This example came up because Woolley had once mentioned to me that he saw some girls playing in a sprinkler being used on TLGCC property while he (Woolley) was flying overhead. (Woolley is a private pilot.) 79 As mentioned in Section V.a. above, EPA did just propose draft recreational guidelines on cyano - toxins in December 2016 that are stricter than the ones Washington had been using. 49 Seebacher said she believed, with respect to studies showing a link between cyanobacteria and brain diseases, that the link is hard to find. EPA is finally looking at this issue with more research. Seebacher had not heard of research or studies showing the ability of cyano - toxins to volatilize or spread over an area. The studies with which Seebacher was familiar involved taking blue -green algae (cyanobacteria) scum out of the water and injecting it. I had actually attempted to reach Joan Hardy at DOH on December 22, 2016, before I made contact with Seebacher. However, I was told by DOH Office of Environmental Public Health Sciences Site Assessments and Toxicology Section Manager Joanne Snarski that Hardy had retired and had not been replaced due to lack of funding. Therefore, DOH no longer has anyone on staff with expertise in fresh water harmful algae blooms. Snarski confirmed that DOH had in the past provided guidance in this area to local health departments, including testing protocols, and that it did provide signage to local health departments like King County Department of Health. However, DOH does not have regulatory authority in this area, and Snarski did not know who does have such authority or even if regulations in this area are enforceable. Snarski did refer me to the DOH website, which states that most outbreaks of blue -green algae do not become toxic but that when toxic, it can cause "illness in humans, pets, waterfowl, and other animals that come in contact with the algae" and "can kill livestock and pets that drink the water." http: / /www. doh .wa.gov /CommunityandEnvironment /Contaminants /BlueGreenAl ae The toxins are described as "both nerve toxins (neurotoxins) and liver toxins (hepatoxins)." Id. Upon reviewing documents filed in the Ward et. al. vs. Twin Lakes Golf and Country Club lawsuit, I noticed that on August 17, 2015, at the request of homeowners, Hardy had visited Lake Jeane along with Teri Barclay from Seattle & King County Public Health Department (PHSKC).80 These officials noted that appropriate public caution signs were posted. They met with homeowners and representatives from both TLHOA and TLGCC. Hardy and Barclay noted that TLGCC was not treating Lake Jeane, preferring to "put their efforts into long -term phosphorus control instead of algae treatment." "In our view," they noted, "lake treatment would reduce MCs [a cyano- toxin] quickly but would likely be only a short term fix." They also noted that the spray from the TLGCC irrigation system (using Lake Jeane water) "is high enough to potentially create aerosols containing MCs, potentially increasing risk of human contact" but that they "were advised that the TLGCC irrigates the golf course at night." Hardy and Barclay's report continues: During our site visit, we discussed with the individuals present, alternatives to using water to irrigate directly from Lake Jeane during a toxic event occurring in the lake. We were advised by TLGCC representatives that pumping groundwater (rather than lake water) without microcystins [i.e. cyano- toxins] for irrigation use 80 In an affidavit filed on May 22, 2017, plaintiff Jana Richardson states that this visit was prompted by a letter she wrote to DOH when she learned of the liver damage risk from cyano- toxins associated with blue -green algae (cyanobacteria). Richards was distraught because she had been hospitalized in May 2015 for elevated liver enzymes, low white blood cell, and low platelet counts, with the cause never clearly diagnosed. 50 is not feasible due to low groundwater pressure in the well system. We discussed with TLGCC representatives that as a precaution, we encourage water free of microcystin toxin be used for irrigation. We observed high concentrations of geese on the lakeshore of Lake Lorene. We recommend greater effort to control phosphorus including: • goose control in the park; • education of lakeshore residents on the importance of buffering zones; • low fertilization of lawns and gardens; and • pet waste pickup Hardy and Barclay concluded the main section of their report as follows: For long -term problems, phosphorus levels seem to be high in the creek entering Lake Jeane, and high in groundwater. Inputs from lawns and geese droppings along the shoreline also have potential to be high in phosphorus. High phosphorus will feed algal blooms in the lake. Alum and/or other phosphorus treatments could provide short-term relief from blooms with MCs. The study on Joe's Creek should provide some information on phosphorus levels to the watershed to inform longer term phosphorus reduction efforts. 1 Hardy and Barclay's final summary and conclusions were as follows: • We would like the TLHOA and TLGCC to work to protect public health by coordinating lake water sample collection, following lake protocol signage and working with PHSKC and the City of Federal Way to coordinate notification of affected residents and golfers. • PHSKC, City of Federal Way, TLHOA and TLGCC will work to protect public health by communication of testing results and other messaging using best means available, such as e- blast, mailers, fact sheets, pamphlets, etc. • PHSKC, TLGCC TLHOA and the City of Federal Way will work to develop protocols for communication roles and responsibilities. • Scientific evidence and site visit observations are currently inconclusive with regard to MC aerosolization risk to the public. As a precaution, we encourage TLGCC to irrigate the golf course with water that does not contain microcystin toxin. We recommend they investigate alternative sources of irrigation water (for example, using groundwater without MCs, developing a reservoir to hold groundwater before irrigation to create enough water for this use, or pre - treatment of lake water).82 81 See Section V.c. below. 82 It should be noted that three days before Barclay and Hardy visited the Twin Lakes, Former TLGCC President Jim Reed sent an email to Barclay in which he "respectfully request[s] that any further actions concerning the use of 51 • Treatment of Lake Jeane would reduce the risk of exposure to microcystin in the short term. In the interest of protecting health, we recommend that all concerned parties work towards funding this short-term solution before the next bloom season. • The TLHOA, TLGCC, and concerned citizens should work with City of Federal Way and KCDNRP to determine best practices to determine the watershed phosphorus control budget and long -term reduction of phosphorus inputs into the watershed. c. Upper Joe's Creek Watershed Nutrient Reduction Study L Background In 2015, there was an opportunity regarding both lakes (Lake Jeane and Lake Lorene) for a $66,560 grant from DOE to study all sources of the nutrients (particularly phosphorus) in the twin lakes. That amount included a $16,640 cost share to be paid by TLHOA on behalf of lakeside homeowners. However, TLHOA ended up rejecting this because this study would only determine the source of nutrients but would not treat the problem. Perhaps if one specific source were located, it could be reduced, but research showed that many lakes do not have one specific nutrient source. Thus, TLHOA preferred to use the $16,640 to pay for Lake Lorene treatment, as they did. Instead, upon Mayor Ferrell's recommendation, City Council approved a City of Federal Way application for this $66,560 grant with the City to pay the $16,640 "cost share ", to "generate credible and valuable surface and stormwater water quality and hydrologic data collected within the Upper Joe's Creek Watershed that may be used to identify, control, and reduce external surface and stormwater sources of nutrients to the Twin Lakes (Lake Lorene and Lake Jeane)," Water Quality Algae Control Program AGREEMENT BETWEEN THE STATE OF WASHINGTON DEPARTMENT OF ECOLOGY AND City of Federal Way. The study samples taken by the City were completed in December 2016. Analysis and final report were completed at the end of June 2017. The City's consultant was Herrera Environmental Consultants/biologist Rob Zisette. I was cautioned early on by Public Works Staff that this study would not "solve" the problem, which is a natural phenomenon, but would identify some of the sources of phosphorus in the watershed. According to Public Works staff, there could be numerous other phosphorus sources, including storm water, groundwater, the TLGCC well water (which is also groundwater), decaying vegetation (e.g. leaves) at the bottom of the lake, geese and dog waste, etc. There are varying expert opinions as to how much each of these factors contribute to the blue -green algae problem. Lake Jeane water for irrigation be delayed until the work is done under the grant offered to the City of Federal Way for a full engineering study. In the meantime, we continue pursuing viable interim solutions, recognizing that the grant will hopefully define the sources of nutrients and lead to a real solution to the Lake Jeane algae problem." See Section V.c. below. 52 Based on the DOE grant, the study is looking only at Upper Joe's Creek, not other potential phosphorus sources. 83 It is also not examining outflow or sediment at the bottom of the lakes. Thus, it will not be possible to put together a full phosphorus "budget" for the Twin Lakes system based solely on the study. It will only show the extent to which Upper Joe's Creek is contributing to the problem. 14 In a July 18, 2016 email from Bob Woolley to Mindi English (with Theresa Thurlow copied), Woolley alleged that it had been agreed that part of the study would include a "confirming baseline sample" from the TLGCC well. Woolley asserted that this is important since TLGCC takes the position that its well does not significantly contribute to the overall phosphorus load of Lake Jeane. Theresa Thurlow responded that the well was not part of the study since the study's sampling points "were designed to be able to extrapolate what nutrients are in the Joe's Creek drainage basin which enter the Twin Lakes," and "[i]t was determined that samples of well water would be outside of the study parameters and goals." Email from Theresa Thurlow to Bob Woolley (July 20, 2016). Woolley further objected in an email reply asking for reconsideration, asserting that the injected nutrient laced well water can not be ignored as a significant source that impacts Lake Jeane, especially during the dry summer season when there is little surface water drainage into the lake, but when the lake is plagued with undesired blue -green algae growth that is fed by the available nutrients that are in the water column and being replenished on a daily basis. Email from Bob Woolley to Theresa Thurlow (July 21, 2016). He again claimed that Thurlow and former City of Federal Way Deputy Public Works Director William Appleton had agreed "that at least one 2016 baseline measurement would be appropriately made available and included in the final database considerations addressed in the Project's final report, due in 2017." Id. Apparently, Woolley later met with City of Federal Way Department of Public Works staff to discuss this point. 85 Given the high water turnover, Thurlow has stated she would be surprised if the TLGCC well water is a primary source of phosphorus. She did mention that the City of Federal Way did take one (and only one) sample of the well water and had it tested for phosphorus. The test results show a phosphorus level in the well of 0.034 mg/L on August 12, 2015.86 The test results B3According to a November 5, 2014 log entry by the Department of Public Works, the reason the grant application focuses only on external issues in Upper Joe's Creek was that TLHOA had opted out of an internal lake study component. 84 Joe's Creek could be phosphorus -laden based on legacy private septic tanks that are not connected to the sewer system. es Woolley believes the City of Federal Way's consultant for the Joe's Creek study Rob Zisette is "biased" in not supporting testing of the TLGCC well water. 96 On June 29, 2016, Bob Woolley took a water sample from the well and had it tested for phosphorus. Results showed a phosphorus level of 0.039 mg/L, similar to those shown by the City of Federal Way test of the well water the previous year. Also, three separate times in July - August 2016, Bonnie West - Armstrong, a plaintiff in the lawsuit against TLGCC, took water samples from the well and had them tested for phosphorus. Results showed a 53 also showed that other samples were taken (and tested) from other locations on that date including Treasure Island Park/Lake Lorene (0.013 mg/L), Joe's Creek West Branch (0.079 mg/L), 42nd Avenue Pond (0.083 mg/L), North Shore Parkway (0.087 mg/L), Downstream Sleepy Hollow (0.095 mg/L), Hoyt Road @ 3315 (0.029 mg/L) and Lake Lorene Inlet (0.048 mg/L). 87 See Section VI.f below for further discussion. On May 26, 2017, I informed Bob Woolley about the upcoming meeting of the Land Use and Transportation Committee (LUTC), where the Joe's Creek study would be presented by Public Works staff. Woolley was still upset that the Joe's Creek study does not include the contribution of the well water. He elaborated that the well adds to Lake Jeane 700 gallons of water per minute for three hours every day in summers and that this dwarfs anything added by Joe's Creek. Woolley also said that with the significant amount of phosphorus -laden water added to Lake Jeane by the well water, failure to include the well water completely invalidates the study. When reminded that the study was limited to Upper Joe's Creek by design, Woolley responded that the study does include surface water going into Lake Jeane, so it should therefore also have included the well water. He said that it was the City which limited the study not to include the well and that we could have included it if we had wanted. Woolley felt that he should be given time to rebut anything presented at LUTC and explain why, in his opinion, the study is invalid. He said he should not be limited to the three - minute public comment period before the presentation but be given a full chance to rebut. He went on to say that if he is not given a chance to rebut here, he will submit a complaint to Department of Ecology (DOE) explaining why, in his opinion, the study is invalid. ii. Release of Study The final version of the report was released on June 6, 2017. It was based upon water quality samples taken during 2016 from nine monitoring stations: one station on the west fork of Joe's Creek draining largely undeveloped land (JC -1), three stations on Upper Joe's Creek (which feeds into Lake Lorene)(JC -2, JC -3, and JC -4), one station on the portion of Joe's Creek feeding from Lake Lorene into Lake Jeane (JC -5), and four stations at storm drains at developed areas (JC -6, JC -7, JC -8, and JC -9). The following conclusions (among others) were reached from the study: 1. Concentrations of Soluble Reactive Phosphorus (SRP)S8 in Upper Joe's Creek were comparable to concentrations in other similar -sized streams and with similar nearby phosphorus level of 0.04 mg/L on July 27 and August 5 and of 0.03 mg/L on August 25, also similar to those shown by the City of Federal Way test of the well water the previous year. Woolley also took a sample of the well water on July 11, 2017 for which testing showed a phosphorus level of 0.036 mg/L. 87 This sampling was done before the Upper Joe's Creek study by former City of Federal Way Surface Water Quality Program Coordinator Dan Smith, who was looking at the entire system. es See Section VI.f below for further explanation of the distinction between Total Phosphorus (TP) and Soluble Reactive Phosphorus (SRP). 54 land use, with the exception that station JC -4 (the mouth of Upper Joe's Creek, right where it feeds into Lake Lorene) showed a higher level of SRP during storm flow conditions. 2. SRP concentrations were highest in Joe's Creek during summer storms (when the flow includes a lot of storm water runoff) and lowest during the winter (when there is mostly only groundwater base flow). Septic systems near Upper Joe's Creek are not a substantial contributor to the phosphorus problem, because total phosphorus (TP) concentrations are lower at JC -3 than at JC -2, where JC -2 is at the Tacoma part of the Upper Joe's Creek Watershed, and JC -3 is located downstream about halfway between JC -2 and JC -4 (where Joe's Creek feeds into Lake Lorene). (However, since some of the reduction could be from inflow of water with low TP from JC -6, it is possible that septic systems do contribute a small amount of TP to Joe's Creek.) 4. Based on the high level of TP at JC -2, sources of phosphorus within Tacoma should be investigated. 5. Seventy (70) percent of TP input into Lake Lorene during the summer algae growing season is from surface water, and thirty (30) percent is from other sources (likely especially internal loading). Most (84 %) of the surface water input is from Upper Joe's Creek. 6. Ninety -three (93) percent of the surface water TP loading of Lake Jeane derives from Lake Lorene outflow, while seven (7) percent derives from storm drain outfalls. Mostly due to Lake Lorene exporting more surface water TP than it brings in and to Lake Jeane having additional surface water input from storm drain outfalls, Lake Jeane receives a higher TP load than Lake Lorene. Other sources of TP are the same as for Lake Lorene and in addition, the groundwater pumped into Lake Jeane from the TLGCC well. 7. In addition to surface water, other sources may contribute a large part of summer TP loading of the Twin Lakes, but these sources were not evaluated by this study. 8. The solution to the blue -green algae (cyanobacteria) problem in the Twin Lakes would require a reduction in phosphorus from both surface water and internal loading and would likely require a full lake restoration analysis. 89 On June 5, 2017, City of Federal Way Surface Water Manager Theresa Thurlow gave a PowerPoint presentation to LUTC regarding the completed study. In her presentation, she explained that while sources of phosphorus into the Twin Lakes include runoff, precipitation, groundwater, sediment cycling and vegetation decay (i.e. internal loading), and surface /storm 89 According to Zisette, a full phosphorus "budget" would cost approximately $15,000 per lake. A full restoration analysis would cost an additional amount. 55 water, the study was only analyzing the latter (surface /storm water). She also emphasized and explained the following study conclusions: 1. Total phosphorus (TP) concentration within Upper Joe's Creek during "base flow" (i.e. mostly ground water) is similar to that of other streams in urban areas in King County. 2. Total phosphorus (TP) concentration within Upper Joe's Creek during "storm flow" (i.e. including a lot of storm water runoff) is similar to that of other streams in urban areas in King County. 3. Soluble reactive phosphorus (SRP) concentration within Upper Joe's Creek during "base flow" (i.e. mostly ground water) is similar to that of other streams in urban areas in King County. 4. Soluble reactive phosphorus (SRP) concentration within Upper Joe's Creek during "storm flow" (i.e. including a lot of storm water runoff) is higher than other streams in urban areas in King County. Thurlow went on to explain further steps to be taken, including: 1. Presentation to full City Council on June 20, 2017 2. Presentation to Twin Lakes Community on June 28, 2017 3. Further public education and outreach efforts to help reduce surface water runoff. 4. Dialog with City of Tacoma regarding how to reduce loading of Upper Joe's Creek 5. Dialog with King County Department of Health regarding possible leaking septic systems on Joe's Creek. 6. Providing technical support for issues involving surface water. 7. Encouraging both lake managers to conduct a full lake restoration analysis. iii. Initial Reaction to Release of Study The next day, Bob Woolley, who was present at the June 5, 2017 presentation, told me that on December 3, 2015, he and former TLHOA president Gary Darcey met with former Public Works Department Deputy Director William Appleton and Surface Water Manager Theresa Thurlow. At that meeting, Woolley claims he asked for the Joe's Creek study to include testing of the TLGCC well water but was told that it was not going to be part of the study because it was too difficult for the City to ask TLGCC to turn on the well pump every time a sample had to be taken. However, Woolley claims that he was promised that the one sample of the well water that 56 was taken by City staff on August 12, 2015 would be included in the study as a baseline. He claims to have a memorandum he drafted shortly after the meeting confirming this understanding. Though he did not necessarily show the memorandum to other meeting participants to confirm its accuracy, Woolley claims he can get sworn declarations from Darcey and Appleton that this was the agreement. I described to Mr. Woolley the emails between him and Mindi /Theresa from July 2016 (See Section V.c.i above) in which it was explained to him that the well water was not part of the study. Woolley agreed that these emails were sent but alleges that some time between December 2015 and July 2016, the City went back on its agreement. Woolley's position is that since one of the study's goals was "to collect comprehensive and credible surface and stormwater quality data," Water Quality Algae Control Program AGREEMENT BETWEEN THE STATE OF WASHINGTON DEPARTMENT OF ECOLOGY AND City of Federal Way (emphasis added), and since the study did include stations to sample all surface and storm water sources for both Lake Lorene and Lake Jeane, the exclusion of the well was intentional and invalidates the study under its own stated goal of collecting comprehensive surface and storm water data. Though the the well is ground water, Woolley's claim is that once the water rises to the surface via the well pump, it is surface water, no different than any other surface water. He analogizes to site JC -1, where base flow is also groundwater that has risen to the surface, indistinguishable in principle, Woolley claims, from the well water. Woolley further claimed that he had spoken to Department of Ecology (DOE) Wetland & Aquatic Biologist Lizbeth Seebacher at some point in the summer of 2016 and that she told him the City could add the well water to its testing sites by simply submitting a revised Quality Assurance Project Plan (QAPP). Finally, Woolley said that at the June 20, 2017 City Council meeting, he would have a prepared written response (possibly with the help of Don Russell, who advised TLHOA on Lake Lorene treatment with zero - valent iron) to the presentation that he would present during the public comment period. He also said that he was prepared to provide all of the above to the City and if necessary, with the help of our 30th District state legislators, to the director of DOE, asking that they find the study to be invalid. Meanwhile, Gary Darcey was in touch with Mayor Ferrell regarding his issues with the Study. Darcey, though no longer TLHOA president, still serves as "lake manager" for Lake Lorene on behalf of TLHOA. I spoke to Darcey on behalf of Mayor Ferrell on June 13, 2017 and on June 15, 2017. In general, Darcey was upset that the Study did not specifically analyze the groundwater contribution to the phosphorus loading, particularly the groundwater in Aquifer A -3 (which the Study report refers to as the "deep aquifer "). This aquifer is the primary source of base flow water at the undeveloped site JC -1. Darcey thought the Study would specifically conclude the extent to which the groundwater is polluted by phosphorus and conclude that nothing could be done about this problem with respect to Lake Lorene except treatment. Darcey believed that such a showing would assist them in getting state DOE funds for treatment (since the State has control over groundwater). Also, a specific showing of heavily polluted 57 groundwater could distinguish Upper Joe's Creek from other similarly -sized streams, also helping with State funding.90 While Darcey was not specifically interested in Lake Jeane, his interests do dovetail with Woolley's in that Aquifer A -3 is also the source of water for the TLGCC well. On June 16, 2017, Darcey provided the City Council with a "rebuttal" by Don Russell of the official Study. Darcey also submitted a cover letter in which he asserts that the cause of blue - green algae blooms on the Twin Lakes is Joe's Creek base flow water, polluted by nutrients. Darcey also asserts that since the nutrient - polluted base flow water is provided by groundwater in Upper Joe's Creek, the only option for ensuring safe recreational use of Lake Lorene is annual applications of herbicides, algaecides, and agents that inactivate phosphorus. iv. Don Russell 1. Background Don Russell is an active octogenarian who has a B.S. (1953) in freshwater biology with a minor in chemistry from the University of Washington. He taught high school earth science and biology in the 1950s and 1960s and later worked as a biologist and general manager, retiring in 1996. Since then, he has been a volunteer lake quality monitor and has assisted other lake quality monitors. He served as technical advisor for various experimental treatments of various lakes for blue -green algae, including the treatment of Lake Lorene with zero valent iron. For nearly 80 years, he has lived on lakeside property that has been owned by his family for over a century. According to Former State Representative Gigi Talcott, with whom I spoke on July 25, 2017, Russell was in Olympia frequently in 2005 as part of the process of passing the initial legislation creating the Freshwater Algae Control Program (FACP), which funded the Upper Joe's Creek Watershed Nutrient Reduction Study. During the 2015 development of the Quality Assurance Project Plan (QAPP) for the Upper Joe's Creek Watershed Nutrient Reduction Study, Russell had shared with Rob Zisette and Former City of Federal Way Surface Water Quality Program Coordinator Dan Smith his (Russell's) own analysis that phosphorus -laden A -3 aquifer ground water from Joe's Creek and from the TLGCC well are the main cause of the blue -green algae (cyanobacteria) on the Twin Lakes. He therefore recommended that samples be taken and analyzed from both groundwater discharging into Joe's Creek and from the TLGCC well. While the A -3 aquifer groundwater was essentially tested at Site JC -1, Russell's recommendation to test the well water "was reviewed and it was determined not to be in the scope of the project," Upper Joe's Creek Watershed Nutrient Reduction Project Project Summary Report at Page 3. Russell also recommended specific analysis of the A -3 aquifer groundwater to determine the source of the high phosphorus levels, natural or from human activity. Russell suspected the latter. Russell suggested that his hypothesis be tested by testing the A -3 aquifer groundwater for 90 Woolley and Darcey have also made the point that Joe's Creek is unique in feeding into a small, private lake. 58 human markers (e.g. caffeine, sucralose, etc.). This recommendation was also rejected. As Zisette explained in a 2015 email to Russell: I think testing ground or surface waters for the constituents you recommend would be inconclusive and a waste of time unless you have over $I 00k to spend on an extensive research project. Our direct approach is simple and proven: track TP and fecal concentrations at many stream locations during base and storm flow to identify key source areas and conditions, and continue upstream tracking in those key drainage areas to identify specific sources. I understand that groundwater is likely a major external source of TP to the lakes. However, it is important to recognize that groundwater is the primary source of TP in the stream during base flow, and the further you are from the source of groundwater contamination the more difficult it is to identify the contamination. Thus, tracking sources in the stream is an effective method for identifying local groundwater contamination sources, and additional tools may be needed if and when those local source areas are identified to locate specific human sources and determine how to control them. Email from Rob Zisette to Don Russell (July 30, 2015 at 4:11 PM). Russell also filed several affidavits in the Ward v. TLGCC lawsuit in support of the plaintiffs. In the first (filed December 9, 2016), he states that it is his "professional opinion that the proximate cause of the hazardous cyanobacteria in Lake Jeane is the highly concentrated, phosphorus -rich groundwater that is being pumped from the irrigation well into Lake Jeane" and that [t]he most likely cause of recurring toxic cyanobacteria blooms in Lake Jeane is the high phosphorus - concentrated A -3 aquifer groundwater discharging into the headwaters of Joe's Creek and thence flowing into Lake Lorene and high phosphorus concentration surface water flow from Lake Lorene into Lake Jeane augmented daily during the summer by high volumes of high phosphorus concentration A -3 aquifer groundwater being pumped into Lake Jeane.... Declaration of Don Russell in Support of Plaintiffs' Reply Motion for Reconsideration of Order Granting Defendant Twin Lakes Golf & Country Club's Motion for Summary Judgment Re: Nuisance Claim at Page 4. Russell goes on to state that "[s]hould the Club cease pumping phosphorus laden A -3 aquifer groundwater into Lake Jeane and the Twin Lakes Homeowners Association continued phosphorus inactivation treatments in Lake Lorene, it is likely that cyanobacteria blooms in Lake Jeane, including the odors stemming from those blooms, would cease or dramatically be reduced .... "Id. at 5. Based on seasonal variations in phosphorus content, he concludes "that it is the practice of pumping high phosphorus - concentrated groundwater into Lake Jeane during the dry period that ... is the leading cause of elevated phosphorus levels and resultant hazardous cyanobacteria blooms in Lake Jeane during the dry season." Id. at 5 -6. 59 While Russell states that the high phosphorus content of the ground water could be due to natural causes, he states that there is some evidence it is human caused "since all homes on the high ground above Joe's Creek and the A -3 aquifer are on septic systems," which, Russell states, "are known to discharge nitrogen and phosphorus -based nutrient compounds into underlying aquifers." Id. Russell goes on to dispute the validity of conclusions made by Phil Matonti from his testing of the well water (discussed in Section II.a.ii.2 above) in that Matonti monitored for phosphate rather than total phosphorus. Russell also disputes the validity of any conclusions to be drawn from Dr. Tamara Lunsman's data (also discussed in Section Il.a.ii.2 above) in that she tested for total phosphorus, rather than just soluble reactive phosphorus (SRP), which Russell says "is the nutrient that fuels hazardous cyanobacteria blooms." Id. at 6.91 Had Matonti and Lunsman tested for SRP, Russell states in his second affidavit, filed on December 27, 2016, "those samples would have shown that the concentration of soluble reactive phosphorus in Lake Jeane was less than that contained in the well water being pumped into Lake Jeane." Supplemental Declaration of Don Russell in Support of Plaintiffs' Opposition to Defendant Twin Lakes Golf & Country Club's Motion for Summary Judgment at Page 3.92 In his second affidavit, Russell flat out states that "[w]ater from Joe's Creek is not causing the high phosphorus levels in Lake Jeane. Rather, the high phosphorus levels found in Lake Jeane are caused by the phosphorus rich well water being discharged into Lake Jeane by the Club." Id. at Page 2. Commenting on the testing for total phosphorus done on samples taken by Bonnie West-Armstrong, 93 Russell states that these results are above guidelines contained in the Washington Administrative Code. Finally, in his second affidavit, Russell attaches data showing that toxicity levels, while above acceptable recreational levels for Lake Jeane in 201594, were within acceptable recreational levels for Lake Lorene, which had been treated (under the guidance of Russell) with zero valent iron. Russell makes a similar point in a report attached to Patti Ward's first affidavit, in which Russell states that in the Fall of 2015, the soluble reactive phosphorus (SRP) level was 9'See also Section VI.f. below on this point. 92 However, on May 12, 2017, Lunsman filed a supplemental declaration in which she lays out data from August 2016 testing for not only total phosphorus but also for soluble reactive phosphorus (SRP). Her data shows Lake Jeane having SRP in the range of 0.02 to 0.20 mg/L and the well water having SRP in the range of 0.01 to 0.03 mg/L. Like for total phosphorus, this data does show the well water having a significantly lower level of SRP than Lake Jeane water. 93 See Section V.c.i above, footnote 86. 94 See Section V.d below, but note that TLGCC disputes these figures since they mostly reflect testing of samples taken by homeowners. With two exceptions, TLGCC's own samples in 2015 did not reflect toxicity above acceptable recreational levels. .1 higher in Joe's Creek entering Lake Lorene than in the water leaving Lake Lorene for Lake Jeane,95 a result Russell also ascribes to the use of zero valent iron in Lake Lorene. 2. Rebuttal Russell's "rebuttal" to the Study can be summarized as follows with what he alleges are failures in scope, faulty conclusions, and conclusions that should have been reached. Also included below are comments by Theresa Thurlow made on this "rebuttal ". Alleized Failure in Scope Per Russell, Soluble Reactive Phosphorus (SRP)- polluted groundwater should have been included for consideration as a source of nutrients. Thurlow points out, however, that the report addresses SRP during base flow during summer and winter sampling and recognizes that base flow is predominately groundwater. Furthermore, Thurlow states that groundwater was not identified as a source of concern for nutrient loading at the inception of the grant application, when emails indicated that the main concern was septic systems and that groundwater concerns were only identified after the grant was awarded. Finally, Thurlow points out that groundwater was addressed and the Lake Jeane well mentioned as something to be explored for further information. Alleged Faulty Conclusions Per Russell, the Study's conclusion that there is nothing unusual about the condition of nutrient concentrations in the Joe's Creek/Lake Lorene /Lake Jeane watershed is invalid because there is no substantiating data showing that the four other streams looked at have similar hydrogeological characterizations of their watersheds and similar biological behavior of any downstream lakes affected by their discharge. Thurlow points out, however, that the four streams with which Joe's Creek was compared are all within King County and have similar urban environment and land use. 2. Per Russell, the Study's conclusion that internal loading (i.e. phosphorus pollution from Lake Lorene's and Lake Jeane's own sediment) is likely to be an important source during the summer when lake sediments become anoxic (no oxygen) from microbial activity, and orthophosphate is released by the reduction of iron from ferric to ferrous and by the decomposition of organic matter is invalid because both lakes are very shallow and well - oxygenated by aeration units, and because routine water quality monitoring by Northwest Aquatic Ecosystems as part of Lake Lorene's treatment has established that Lake Lorene does not experience low dissolved oxygen conditions. Thurlow notes, however, that the report states a substantial reduction of phosphorus is needed from both internal loading and surface water. Conclusions that Allegedly Should have been Reached Based on Data in Study 95 TLGCC disputes these conclusions based on its own testing as described in Section II.a.ii.2 and in the current section above. As noted in the current section above, Russell in turn disputes the validity of TLGCC's testing for phosphate. ['i 1. Per Russell, the Study should have concluded that Joe's Creek water quality is not significantly impacted by nutrients from overland surface water runoff or storm water flows but is significantly impacted by nutrient - polluted groundwater that discharges into Joe's Creek to provide its year around base flow, particularly groundwater from aquifer A -3 (based on station JC -1), but also to a lesser extent groundwater from aquifer A -1 (based on data from station JC -6). Thurlow notes, however, that report data show the highest concentration of both TP and SRP during storm flow (winter and summer) and lowest during winter base flow. Per Russell, the Study should have concluded that the primary sources of the SRP that fosters summer cyanobacteria blooms in Lake Lorene and Lake Jeanc are the ground water from aquifer A -3 that discharges into Joe's Creek headwaters (monitoring station JC -1), the ground water from aquifers A -3 and A -1 that discharges into the ravine reach of Joe's Creek, and the ground water from aquifer A -3 withdrawn by the Twin Lakes Golf & Country Club (TLGCC) well. Thurlow, however, notes that while the Study report does identify JC -1 as having the highest SRP concentrations among all the stations, the data does show elevated SRP there (at JC -1) in both storm and base flow and also shows other stations as contributing SRP to Joe's Creek during all seasons and during both base and storm flow. Thurlow also notes that SRP concentrations were slightly higher during the summer than in winter. 3. Per Russell, the Study should have concluded that high concentrations of SRP in ground water suggests water quality impairment due to human activities in the watershed including septic system effluent discharge and leaking sewer lines, malfunctioning surface water runoff infiltration ponds and dry wells, and nutrient and sediment laden storm water runoff conveyed to and discharged into surface water bodies. 96 Thurlow notes, however, that the data collection needed for such conclusions was not within the scope of the Study. 97 4. Per Russell, the Study should have concluded that the human activities resulting in elevated phosphorus are likely to continue unabated, so the only short -term action that can be taken to prevent hazardous cyanobacteria blooms is annual in -lake treatment. Thurlow notes, however, again that this analysis was in the scope of the Study. 96 For this reason, Russell suggest in a later email "that there should be a[n] on -site septic system operators license fee that provides mitigation funding ... [to treat affected lakes]. A portion of the property tax fees collected by the City of Federal Way for Surface Water Management should be committed to mitigating the adverse impact that SRP and nitrate polluted surface and storm water contributes via Joe's Creek (and A3 aquifer groundwater) to the Twin Lakes recurring harmful cyanobacteria blooms." Email by Don Russell forwarded to me on July 6, 2017 at 11:27 AM. 97 In a subsequent commentary, Russell states that "[t]he impact of human activity on groundwater (base flow) quality could and should have been testing for surfactants and chlorine. Such a sampling and analysis from water taken in the ravine reach of Joe's Creek would have disclosed whether or not the high soluble reactive phosphorus and nitrate concentration in Joe's Creek base flow was a natural or human activity caused nutrient pollution condition." Don Russell Commentary on the City of Federal Way Surface Water Management's June 28, 2017 Upper Joe's Creek Watershed Nutrient Reduction Study Slide Presentation (July 24, 2017) at Page 4. 62 V. Further Follow -Up Mayor Ferrell, Public Works staff, and I met with Woolley and Darcey on June 19, 2017. We discussed the Study and Russell's commentary. Both Woolley and Darcey wanted the Study to make some conclusions with respect to the contribution of the A -3 aquifer groundwater to the phosphorus loading of the Twin Lakes (Woolley because of his desire to address the contribution of the TLGCC well and Darcey because of his desire to address the specific contribution of groundwater to the Upper Joe's Creek flow in order to make a better case for State funding). Darcey also explained that he was hoping the Study would conclude (as noted in Section V.c.iv.2 under Don Russell's comments) that the human activities resulting in elevated phosphorus are likely to continue unabated, so the only short -term action that can be taken to prevent hazardous cyanobacteria blooms is annual in -lake treatment. Mayor Ferrell, however, pointed out that in addition to contracting with the City of Federal Way to conduct the Upper Joe's Creek Watershed Nutrient Reduction Project, Rob Zisette also filed an affidavit in June 2017 in support of the homeowners in the Ward v. TLGCC lawsuit. (See Section VI.c below). In his affidavit, Zisette concludes that "Lake Lorene and Lake Jeane will continue to experience toxic algae growth over the years unless action is taken" and that "there is currently no feasible way to stop the flow of phosphorus [leading to toxic algae] into the lakes," but that "there are a number of ways to address the phosphorus in the lakes and thus stem the growth of toxic algae." Declaration of Rob Zisette in Support of Reply in Support of Plantiffs' Motion for Partial Summary Judgment (Errata to Include Exhibit B) (June 13, 2017) at Page 2. Zisette goes on to the state that "with proper monitoring and treatment, Lake Jeane should remain mostly free of toxic algae." Id. On June 20, 2017, Thurlow made her presentation to the full City Council regarding the study. Her presentation was similar to the one presented two weeks earlier to the Land Use and Transportation Committee (LUTC). Consultant Rob Zisette was also present at the meeting and, in answer to a question from Mayor Ferrell, stated that specific measurement and analysis of groundwater was not a part of the study. As noted above, City Council members had previously been sent by Gary Darcey copies of Don Russell's "rebuttal ". Earlier in the day, Woolley also distributed to City Council members a one -page document in which he asserts that the storm water discharge of soluble reactive phosphorus (SRP) into Lake Lorene, as indicated in the Study, is in excess of 0.020 mg/L and therefore is a violation of the State Surface Water Quality Standards, requiring City action. Woolley also distributed at the meeting itself a one -page document with three questions he wanted answered: 1. What were the identified base flow sources of nutrients other than storm water and on- the - surface water; i.e., ground water that is impacting Joes Creek waters and therefore, both Twin Lakes? 2. If the City was to also keep the interested parties informed, as stipulated in the FACP Grant's Scope of Work Purpose (July 2015), what specifically did the City's SWM 63 offer to the parties other than to ultimately read the completed published Project Report, in June 2017? 3. The Report was released publicly by Herrera, and since a written commentary has been provided to the City staff and to the FWCC members, shouldn't the City's Project Team (SWM/Herrera) provide a written response addressing the concerns contained in the submitted critique of the published Herrera Report? In his document, Woolley also commented that the grant request could have included "the significant impact of the natural base flow nutrient laced aquifer waters, especially the AY' On June 28, 2017, Theresa Thurlow presented the Study to an open forum held at Twin Lake Elementary School.98 Homeowners present included Bob Woolley, Gary Darcey, Mel Ward (husband of lead plaintiff Patti Ward), Jana Richardson (also plaintiff in lawsuit), Anthony Diloreto (also plaintiff in lawsuit), Mary Jo Reintsma (See Section I11.b above), Mike and Carol Umbehocker (See Section III.a above), and about fifteen others. Thurlow's presentation was similar to that given at the June 5, 2017 LUTC meeting and the June 20, 2017 City Council meeting. However, Thurlow added a section to her presentation addressing issues raised by Darcey, Woolley, and Russell, as follows: 1. In response to Woolley's Question 1 above concerning "identified base flow sources of nutrients other than storm water and on- the - surface water; i.e., ground water that is impacting Joes Creek waters and therefore, both Twin Lakes," Thurlow answered that: a. Base flow total phosphorus (TP) concentrations in general represent what is in the groundwater. b. Testing of the well water was considered, but it was determined that such testing "would be inconclusive due to multiple factors." c. Testing of the well water had previously been discussed with Don Russell during development of the Quality Assurance Project Plan (QAPP), during which time "questions on why it would not be included were responded to by the Consultant. "99 2. In response to Woolley's Question 2 above concerning communication issues, Thurlow answered that: a. "SWM staff sent Joe's Creek Fact Sheet to area residents within the watershed June 2016 and January 2017." 9e Bob Woolley had also scheduled his own meeting to update Lake Jeane households on the status of his permit request, to follow the presentation by the City. However, Woolley's meeting ended up being cancelled. 99 See Section V.c.iv.1 above. 64 b. "Emails, Public Records Requests, in person meetings and phone calls requesting information from the study were responded to." 3. In response to Don Russell's conclusion that "[a]ll the data so far available indicates that the primary source of SRP in Lake Lorene is Joe's Creek's spring and summer groundwater base (and occasional stormwater) flow into Lake Lorene," Thurlow responded by citing the Report to the effect that "... maximum SRP concentrations typically occurred from June through November, with summer storms having significantly higher concentrations." Quoting from Upper Joe's Creek Watershed Nutrient Reduction Project Report at page 31. 4. In response to Woolley's assertion that soluble reactive phosphorus (SRP) discharge into Lake Lorene is in excess of 0.020 mg/L and therefore is a violation of the State Surface Water Quality Standards, Thurlow responded that this standard does not apply to lakes. Thurlow also added a section in which she discussed the various options available for removing or reducing phosphorus from the water. During the question- and -answer period, Bob Woolley asked why the State should not pay for treatment since the water column is State - owned. City of Federal Way Public Works Director Marwan Salloum responded that the State has not generally funded treatment of waters where the lake bed and shoreline are owned by private parties.' 00 However, Salloum pointed out that that does not necessarily mean that such funding could not happen in the future. In fact, as Salloum pointed out, the State Department of Ecology (DOE) was willing to fund treatment of Lake Jeane back in 2015 (as discussed in Sections Il.a.ii and V.a above). Per Salloum, this was the first time he had seen DOE willing to fund treatment of a privately held lake. Salloum said that this could be attempted again and that the City could guide lakeside residents through the process and again serve as sponsor (subject to Mayor and City Council approval). Several days after the Twin Lakes Elementary School Forum, Woolley submitted to the City a request for a written response to his three questions noted above. However, these questions had largely already been addressed in the presentation (including the PowerPoint slides) made at the Forum. Per Public Works staff, all commentary and follow -up would be submitted to the State when the project was officially closed (in late July or early August). Over the course of the next month, Woolley continued to press me and Public Works staff for an addendum to be added the Study discussing the specific contribution of the A -3 aquifer groundwater to the phosphorus loading of Lake Lorene from Upper Joe's Creek and discussing the contribution of the TLGCC well water (also supplied by the A -3 aquifer groundwater) to the phosphorus loading of Lake Jeane. While Woolley and Darcey objected to the limited scope of the Study, they have nevertheless argued that an addendum addressing the groundwater from aquifer A -3 is possible based on measurements made at site JC -1. 100 DOE spokesman Larry Altose made the same point in a July 14, 2017 and July 21, 2017 article in the Federal Way Mirror. 65 Woolley also continued to maintain that the contribution of the well water can be addressed via the one measurement taken by the City on August 12, 2015 and subsequent measurements made by homeowners. In fact, Woolley provided me and Public Works staff with the results of testing on new samples he had taken from the well water in July 2017 (as well as samples taken from Study test sites JC -1, JC -4, and JC- 5).101 However, samples of well water taken by residents may be contested as unreliable since no neutral party was in charge of the entire chain of custody. And one measurement at one time of the year (August 12, 2015) is likely not enough to make a complete determination of the contribution of the well water. Also, Zisette states in the Study that "[e]stimating the importance of groundwater pumping on TP input and algae growth would require data for the pumping rate, pumping duration, and TP concentration in the pumping discharge. This analysis is beyond the project scope and it is not known whether accurate data are available." City of Federal Way and Herrera Environmental Consultants, Inc. Data Analysis Report, Page 47. Woolley, however, claims that data on pumping rate and duration are easily available. He says it is 700 gallons per minute for three hours every day in the summer. One of Woolley's arguments was that the requested addendum would make the Study more in keeping with the Freshwater Algae Control Program (FACP), which funded the Study. According to the DOE website, FACP grants are for "groups working to manage or control algae in water bodies that have had toxic algae blooms within the last three years." Both public and private lakes are eligible. Indeed, Don Russell was quoted in the July 14, 2017 and July 21, 2017 editions of the Federal Way Mirror criticizing the Study as merely exonerating Surface Water Management from responsibility without addressing the overall problem of managing and controlling toxic algae in a lake. However, in the same article, DOE spokesman Larry Altose is quoted as saying that that "[m]any times a single study will not conclusively solve the targeted problem" and that "[o]ften studies help pinpoint further research needs." Id. Altose also notes that DOE had reviewed the City of Federal Way's grant application for a surface water study and approved it, believing that it did in fact fall within the FACP guidelines. Id. After some internal discussion, it was decided that the requested addendum would not be done. Woolley and Darcey also contacted State Senator Mark Miloscia and State Representatives Michael Pellicciotti and Kristine Reeves about their concerns. On July 31, 2017, Woolley and Darcey met with both state representatives. 1 01 In an email by Don Russell, he characterizes these samples as having been taken "by the City of Federal Wad personnel," Email from Don Russell to Bob Woolley and Gary Darcey (July 21, 2017 at 2:23 PM)(Forwarded to me by Bob Woolley at 3:21 PM)(emphasis in original). However, City of Federal Way Surface Water Quality Program Coordinator Mindi English later explained in an email that she and City of Federal Way Surface Water Management Engineer Tony Doucette had, at Woolley's request, shown him the Study sampling locations, not initially knowing that he intended to take and have tested his own samples. English and Doucette filled the sample bottles for Woolley at the three sites (JC -1, JC -4, and JC -5), though not at the TLGCC well, because Woolley was physically unable to bend down and do so. English clarified that she and Doucette "were not involved with the analyses, chain of custody, labeling nor anything else with the samples." Email from Mindi English to Theresa Thurlow (July 13, 2017 at 11:03 AM)(Forwarded to me by Marwan Salloum on July 21, 2017 at 2:41 PM). 66 On August 8, 2017, I met with State Rep. Pellicciotti, his legislative aide, and Rep. Reeves' legislative aide to discuss the issue. (I had also previously spoken to Rep. Reeves' legislative aide about this issue in July.) Rep. Pellicciotti indicated to me at our meeting that, in response to a request from Darcey and Woolley, he would be submitting a letter to DOE asking why the A -3 aquifer groundwater was not included in the Upper Joe's Creek Watershed Nutrient Reduction Study. Previously, on August 1, 2017, the final Study report (including all commentary from citizens Darcey, Woolley, and Russell) was submitted to and accepted by DOE as a completed project. d. Testing for Toxicity The Washington Department of Ecology (DOE) funds the testing for cyano- toxins and analysis of samples taken from lakes. The actual analysis is done by King County Environmental Labs. The sampling can be done by citizens, who are to follow protocols laid out on DOE's web site, or by public officials. According to a City of Federal Way document entitled "Twin Lakes Algae Issue Summary," the City of Federal Way received a grant in 2010 for surface water management staff to take samples from the twin lakes and have them tested for toxins from 2011 through 2013. This testing showed that Lake Jeane's level of one cyano -toxin was above acceptable recreational levels in 2011, but all levels were acceptable in 2012 and 2013. In 2014 and 2015, Lake Jeane homeowners themselves took samples from Lake Jeane and had them sent in for testing. Like in 2011, these samples showed the level of one cyano - toxin to be above acceptable recreational levels. 102 In 2015, samples were sent in by both homeowners and TLGCC. However, DOE will test no more than one sample per week per lake, so the homeowners and TLGCC alternated weeks. Samples sent in by homeowners consistently showed toxic levels well above acceptable recreational levels, 103 while those sent in by TLGCC generally showed a level within the acceptable level. According to DOE Wetland & Aquatic Biologist Lizbeth Seebacher, this led to a squabble— residents said that TLGCC was not testing where the blue -green algae scum was104 , while TLGCC claimed that the residents were taking samples "from a point which would 102 As noted in Section IV above, Lake Lorene also tested positive in 2014 despite the ongoing treatment with Phoslock. This is what led TLHOA to begin treating Lake Lorene with the experimental zero - valent iron. 103 According to Bob Woolley, the homeowner results showed Lake Jeane to be the fifth most toxic lake in the State of Washington and the most toxic during two testing weeks. Per Patti Ward, Lake Jeane had the highest level of one cyano -toxin in any lake in the state. 104 Per Bob Woolley, TLGCC was taking samples where their well water was being injected into Lake Jeane, resulting in a diluted sample with hardly any toxicity. 67 strategically show the worst conditions of the lake. "105 106 TLGCC claimed that its own samples were taken exactly according to protocol. 107 Seebacher thus asked if the City of Federal Way would take the samples. Bob Woolley also lobbied DOE to ask the City to do the sampling and also appealed to City Council. It should also be noted that in the Summer (July through September) of 2015, (former) City of Federal Way Surface Water Quality Program Coordinator Dan Smith tested Joe's Creek for cyano- toxins at a location below (i.e., after discharging from) both Lake Lorene and Lake Jeane. He found them to be within acceptable recreational standards. In an October 15, 2015 email to Dan Smith, Don Russell claims that "the quantity of commingled base flow and stormwater runoff that passed through the system from the time of the event to the time of your sampling was sufficient to dilute the microcystin [a cyano- toxin] concentration that existed in Lake Jeane prior to its flushing by the major surge of stormwater runoff that flowed through the system." 108 On July 27, 2016, Mayor Ferrell did order the Public Works staff to commence weekly sampling of Lake Jeane through the end of September and to send the samples to DOE for testing. Thus, the City took samples on the same day of the week from August to September 2016. None of the City's samples taken during 2016 showed toxicity above accepted recreational levels, even going by the newer, stricter draft standard tentatively proposed by the United States Environmental Protection Agency (EPA). 109 While Bob Woolley has claimed that the City did not take samples where the blue -green algae appeared, City Public Works Department staff has indicated that for each sample the City took, staff surveyed the lake and took samples where there seemed to be the highest concentration of blue -green algae. However, as previously discussed, Bob Woolley asserts that there should be an even stricter standard for "residential lakes" based on his concern that mere proximity to a blue -green 105 August 14, 2015 email from TLGCC president Jim Reed to Teri Barclay. However, in a February 23, 2016 letter from Woolley and Don Smith to the TLGCC board, they claim that "[t]he State's published guidance indicates that the site that represents the lake's most severe condition should be where the toxic sample is taken for lab testing." 106 TLGCC leadership also told me on December 14, 2016 that that they believed some of the high results were "hijacked" by Woolley and Don Smith. They judged those samples to be not credible, so they do not accept that the high levels of cyano- toxins in 2015 are valid. They said that it is possible to manipulate the results of cyano -toxin testing by failing to refrigerate the sample immediately until it is submitted. 107 On July 18, 2016, DOH toxicologist Joan Hardy sent an email concerning proper sampling protocols to DOE Wetland & Aquatic Biologist Lizbeth Seebacher, City of Federal Way Surface Water Quality Program Coordinator Mindi English, TLGCC President (then Vice - President) Phil Matonti, Bob Woolley, Don Smith, and Federal Way Mirror reporter Raechel Dawson. In the email, Hardy states that "DOH recommends that water samples be taken from lakes with suspected toxicity in areas of scum, thus representing highest potential for human health impacts. However, we request that the sample be approximately 113 adjacent water to allow for proper sample preparation at the lab." Email from Joan Hardy (July 18, 2016). 108 Similarly, Bob Woolley has said that toxic conditions typically do not exist in running creek water but in lakes. 109 Lakeside homeowners would argue that this was because 2016 by chance happened to have been a relatively light year with respect to the growth of blue -green algae (cyanobacteria), while 2015 was a heavy year. 68 algae infected lake risks exposure to cyano- toxins. Under Woolley's proposed stricter standards, the 2016 results would be considered toxic. As explained earlier, he proposes that the standard be based upon the extremely low level of cyano -toxin at which the guidelines state caution signs should be posted, basically the lowest level at which these toxins can be detected. Furthermore, Woolley (and other Lake Jeane homeowners including lead plaintiff Patti Ward) wanted City staff to come to Lake Jeane and take samples upon the appearance of algae scum. In an August 29, 2016 email to Mayor Ferrell, Former City of Federal Way Chief of Staff Brian Wilson, and City of Federal Way Public Works Director Marwan Salloum, Woolley states that the algae "scum is very transitory and mobile based on the many variables, one of which is not the team's sampling schedule." Email from Bob Woolley (August 29, 2016). He goes on: If the City's team arrives only on each Wednesday at mid - morning, significant scum can be missed. Therefore the City's sampling plan may or may not represent the daily toxic conditions on the lake; i.e., only one point in time once a week. Note, the residents have images of scum presence (that was not sampled by the City's team) on multiple days in August, specifically, other than Wednesdays at mid morning, It is suggested that the City's sample team (if not being done) take images of each sampling event and the site conditions. The submission of verifying images (for the record) is specifically suggested within the DOE sample submission approval documentation. Id. In an affidavit filed in her court case, lead plaintiff Patti Ward also states that "the City set a once a week schedule to perform the testing and would not vary from that schedule. The City would not come out to test on the days that the owners requested tested." Declaration of Patti Ward in Support of Plaintiffs' Opposition to Defendant's Motion for Summary Judgment of Dismissal (May 12, 2017) at Page 2. Thus, homeowners do not believe that the City testing provided an accurate picture for 2016. However, the Washington Toxic Algae Program has limited funds for this state- wide sampling program, so multiple samples within a week are discouraged. City of Federal Way Surface Water Management (SWM) funds are also limited. So sampling once per week on the same day each week minimized the impact on SWM resources Furthermore, samples were taken by residents prior to August 1, 2016, none of which 2016 showed toxicity above acceptable recreational levels. That having been said, Ward states that "[ w]hether the Lake reached toxic levels or not was irrelevant," that "[t]he Lake reeked much of the summer [of 2016]," and that "since the algae was present in the Lake, with no way of knowing on any particular day whether the toxicity level was safe or not, nobody could safely go near or in the Lake." Id. On September 6, 2016, Surface Water Manager Theresa Thurlow presented the testing results to the City Council with a conclusion that Lake Jeane was not toxic in 2016. 10 She did, however, note that under State Department of Health recreational 110 Testing continued to the end of September 2016, but as stated above, no results showed toxicity above accepted recreational levels. 69 guidelines, Lake Jeane should be posted with caution signs that cyano- toxins could be present and that being in the lake could cause adverse health conditions and could affect small pets. These state guidelines are a recommendation, not a requirement."' The local health jurisdiction (King County Health) decides whether to enforce these guidelines. Thurlow, in response to a question, said that there was odor from the blue -green algae. Thurlow also informed City Council that cyanobacteria colonies can quickly grow and break apart. Thus, even if weekly sampling shows no toxicity, there could have been phases of toxicity and non - toxicity during the week -long gap, as this can change in one day (or even a shorter period of time). Finally, Thurlow informed City Council that Lake Jeane was the only lake in Federal Way known to contain cyanobacteria (blue -green algae) at that time in 2016.112 She said that treatment on Lake Lorene was experimental and effective. On October 4, 2016, City of Federal Way Department of Public Works staff visually inspected Lake Jeane and did not see any algae bloom. Bob Woolley stopped by the City of Federal Way Department of Public Works on December 29, 2016 and told the staff he was not satisfied with the City's 2016 sampling for the reasons stated above. He stated that in 2017, residents would be taking their own samples. e. Lake Management District The City of Federal Way is involved with lake management for two lakes (i.e. North Lake and Steel Lake) via lake management districts (LMDs) that are facilitated by the City. It should be noted, however, that the City does own a large proportion of the property that abuts Steel Lake. The process to form a lake management district would likely take about one year or longer. The process can be initiated either by a City Council resolution of intention or by a petition from property owners. A resolution of intention must "fix a date, time, and place for a public hearing on the formation of the proposed lake or beach management district," RCW 36.61.030. A petition from property owners must be "signed by ten landowners or the owners of at least twenty percent of the acreage contained within the proposed lake or beach management district, whichever is greater," Id. Regardless of how the process is initiated, the lake management district must be approved by a vote of property owners "with the ballot weighted so that the property owner has one vote 111 Once the level of measured cyano- toxins is above the recreational threshold, the State guidelines call for mandatory posting of warning signs. 112 However, later in the summer, there were blue -green algae (cyanobacteria) blooms sampled in another lake, though no cyano- toxins above the State recommended recreational level. 70 for each dollar of estimated special assessment or rate and charge proposed to be imposed on his or her property," RCW 36.61.090(3). Those "[s]pecial assessments may be measured by front footage, acreage, the extent of improvements on the property, or any other factors that are deemed to fairly reflect special benefits ...." RCW 36.61.160. Thus, a lake management district can be proposed in such a way as to prevent any single property owner from blocking its formation. However, these provisions do not resolve issues of whether the lake management district has the proper authority to apply for a permit to treat Lake Jeane, whether the lake management district would need TLGCC approval to apply for a permit to treat Lake Jeane, or how to handle a situation where TLGCC grass is harmed upon being irrigated with treated Lake Jeane water, as TLGCC is entitled to do under its water rights. As noted in Section II.b.ii.2 above, the general water treatment permit does contain a provision that if the treatment affects an existing water right, the permit holder must reimburse the water right holder for any loss. It should be noted at this point that the lake management district statute does begin with a provision that "[1]ake bottom property and marine property below the line of the ordinary high water mark shall not be considered to be benefited, shall not be subject to special assessments or rates and charges, and shall not receive voting rights under this chapter." RCW 36.61.010(4). This provision suggests that a lake management district could be formed on a privately held lake. In fact, the North Lake lake bed was privately held by Weyerhaeuser when the North Lake Management District was formed. However, Weyerhaeuser did support the formation of the lake management district. In the case of Steel Lake, the City of Federal Way, which as noted above owns a large proportion of lake frontage property, also consented to the lake management district formation as long as the funds raised by the district covered all expenditures. The bottom line is that lake management districts are not typically formed in hostile situations. VI. Scientists and Specialists a. Phil Matonti The views of TLGCC president Phil Matonti, who is also a retired water treatment specialist with a 32 -year career at two water treatment companies (Calgon and Ecolab), have been outlined in Section II.a.12 above. As noted above, it is his opinion that treatment with aluminum sulfate ( "alum "), one treatment favored by litigants, would not work in a shallow lake (like Lake Jeane) with a lot of water flow in and out. Matonti further holds that alum would react with phosphate to form a sticky "floc" which could clog TLGCC's irrigation system. It would also, Matonti says, settle to the bottom of the lake and build up there, eventually requiring expensive dredging of the lake. Finally, Matonti says, the bonding would eventually break down, releasing the phosphate back into the lake. With respect to zero valent iron, as used on Lake Lorene, Matonti states that it is experimental only and has not been proven effective. Also, there is still a concern that, like with "alum" treatment, zero valent iron could cause coagulation. While TLGCC initially stated it would consider zero valent iron in the future, Matonti later claimed that TLGCC had "strong 71 evidence that the zero valent iron program used in Lake Lorene was not effective in 2015 or 2016." Supplemental Declaration of Phil Matonti in Support of Defendant Twin Lakes Golf & Country Club's Reply Re: Motion for Summary Judgment of Dismissal (January 6, 2017 page 3). b. Terry McNabb Terry McNabb is an aquatic biologist and certified lake manager at Aquatechnex, the company with which TLGCC has contracted to manage Lake Jeane. He is also a past president of the North American Lake Management Society. In an email sent to Bob Woolley in January 2016, McNabb stated that treatment with aluminum sulfate ( "alum ") would not have an impact on TLGCC fairways. He stated that "[a]lum forms a precipitate that settles rapidly through the water column capturing phosphorus" and "does not remain in the water column and does not move onto the golf course through the use of the lake as an irrigation source." 113 I did not meet with or talk with McNabb. c. Doug Dorling Doug Dorling owns Northwest Aquatic Ecosystems and is a biologist in the lake management business for over forty years. He contracted with TLHOA to treat Lake Lorene with zero - valent iron upon the advice of Don Russell. (See Section VA below.) Dorling filed two affidavits in support of the plaintiffs in the Ward v. TLGCC lawsuit. He states in the first that alum (aluminum sulfate) "is the most widely recognized material associated with nutrient reduction" that "has been applied to hundreds of lakes statewide." Declaration of Douglas Dorling in Support of Plaintiff's Opposition to Defendant's Motion for Summary Judgment at Page 3. He also states that "[t]he materials Phosloc and zero valent iron (currently on experimental basis only) are also available for nutrient control," that "[z]ero valent iron was applied to Lake Lorene (inflow to Lake Jeane) during 2015 and 2016," and that "[d]uring those two years, no toxic conditions were reported within this system." Id. With respect to the concerns raised by Matonti regarding alum treatment clogging its irrigation system, Dorling agrees that alum "will produce a fine floc -like substance" but argues that "[o]nce the alum has precipitated out of the water column, typically a few days, this concern is a non -issue since the material that the Club is claiming would create problems within their systems is no longer suspended in the water column." Id. With respect to algaecides, Dorling notes that state - registered algaecides have been used on hundreds of water systems in Washington State for over 50 years and that they are used all 113 This email was sent as part of a dialog that Woolley was apparently having with McNabb about contracting with Aquatechnex on behalf of homeowners to apply for a new permit to treat Lake Jeane. Eventually, McNabb stated that since TLGCC had been the sponsor of their former permit, it was up to TLGCC. Woolley asked whether Aquatechnex might terminate the permit with TLGCC, but McNabb said he felt they needed to follow direction from TLGCC, which had directed them to maintain it. 72 over the world to deal with issues such as those on Lake Jeane. He further contends that use of algaecides would not restrict recreational or irrigation uses of the treated water. In a paper authored by Dorling regarding Lake Jeane that is attached to his first affidavit, Dorling states that all of these treatments (alum, Phosloc, zero valent iron, and algaecides) as well as other treatments he identifies ( "[b]iological microbe use and the blue coloring of small waterbodies ") "can be successfully implement[ed] at Lake Jeane," which he states "provides no unusual environmental scenario that is not uncommon to many small lakes throughout Washington State and the United States." Id. at Page 16. Finally, Dorling states in his first affidavit his opinion that without TLGCC's use of its phosphorus -laden well water to replenish waters taken from Lake Jeane for irrigation and its use of fertilizers containing phosphate, the blue -green algae problem on Lake Jeane would not be as severe. He contends that in the summer (when the problem is at its peak), the well water is the main source of Lake Jeane's water since the flow from Lake Lorene subsides during that time. In his paper regarding Lake Jeane, Dorling states that the well water does increase phosphorus levels in Lake Jeane. He recommends that TLGCC either "divert the well water directly into the irrigation system, bypassing Lake Jeane" or "store the well water at a different location specifically designed for irrigation or treat the well water before it is discharged into Lake Jeane." Id. at Page 15. In his second affidavit, Dorling states that "[w]hen the Club discontinued using the phosphate -rich groundwater from the well in late 2015, Lake Jeane no longer became toxic." 14 Supplemental Declaration of Douglas Dorling in Support of Plaintiff's Motion for Reconsideration of Order Granting Defendant's Motion for Summary Judgment Re: Nuisance Claim at Page 2. I did not meet with or talk to Dorling. d. Rob Zisette Rob Zisette is an Aquatic Science Principal and a senior limnologist with Herrera Environmental Consultants, Inc. of Seattle, Washington. In addition to contracting with the City of Federal Way to conduct the Upper Joe's Creek Watershed Nutrient Reduction Project (See Section V.c.v above), Zisette also filed an affidavit in June 2017 in support of the homeowners in the Ward v. TLGCC lawsuit. (See Section II.a above). In his affidavit, Zisette concludes that "Lake Lorene and Lake Jeane will continue to experience toxic algae growth over the years unless action is taken" and that "there is currently no feasible way to stop the flow of phosphorus [leading to toxic algae] into the lakes," but that "there are a number of ways to address the phosphorus in the lakes and thus stem the growth of toxic algae." Declaration of Rob Zisette in Support of Reply in Support of Plantiffs' Motion for Partial Summary Judgment (Errata to Include Exhibit B) (June 13, 2017) at Page 2. Zisette goes on to the state that "with proper monitoring and treatment, Lake Jeane should remain mostly free of toxic algae." Id. Zisette then outlines several possible treatments, including: 114 In an October 14, 2015 email from Patti Ward to TLGCC (former) president Jim Reed, Ward states that "[i]t does not appear that the course is pumping any water into the lake." According to TLGCC, this is standard practice each year done to prevent flooding of lakefront homes. 73 Alum (aluminum sulfate), which Zisette notes has been used effectively on Seattle Green Lake for a toxic algae problem and which Zisette states in his professional opinion would be effective for Lake Jeane with treatment every five years at a cost of approximately $100,000. Zisette also expresses bewilderment at TLGCC's opposition to alum treatment, stating that in his professional opinion, this treatment "would not in any way damage the Club's irrigation system or its landscaping, fairways or greens, ... is not toxic and does not hurt animals or plants." Id. at page 3. Zisette points out that "alum is used to treat drinking water." Id. • Dredging the lake, a solution Zisette describes as "more permanent" but "often viewed as cost prohibitive." Id. • Aeration, which Zisette states can "help to reduce toxic algae" but with "results ... less predictable than alum." Id. • A solar power mixing system at a cost $10,000 per unit, two units of which Zisette states "may be sufficient to adequately reduce the toxic algae growth on Lake Jeane." Id. e. Don Russell At the request of Bob Woolley, I spoke to Don Russell on December 21, 2016. See Section V.c.iv above for more about Russell. Russell served as an advisor on the treatment of Lake Lorene. Interestingly, Russell strongly agrees with Matonti in opposing treatment of cyano - bacteria (blue -green algae) with aluminum sulfate ( "alum "). Instead, Russell is a strong proponent of treatment with zero valent iron as used on Lake Lorene. Russell explained the three -part treatment he believes works for blue -green algae. First, zero - valent iron bonds to phosphorus and drops it to the bottom of the lake. This can then lead to a bloom of filamentous algae because the iron does not get rid of nitrates. The filamentous algae needs to be treated with algaecides. Finally, resulting excessive aquatic plant growth can be treated with herbicides. Russell said that all three of these treatments were utilized on Lake Lorene and were successful in getting rid of the blue -green algae. (Russell was only involved with the first phase involving zero - valent iron.) Russell did say that treatment would be necessary every year at a cost of about $12,000 to $15,000, as long as phosphorus -laden water was coming into Lake Lorene via Joe's Creek.' 15 According to Russell, the herbicides used on Lake Lorene did ultimately result in a drop of oxygen to perilously low levels that, combined with an already overpopulated /stressed catfish population, did result in the fish kill there. However, Russell believes that this can be dealt with in the future by stretching out the doses of herbicides. its In a February 26, 2016 email from former TLHOA president Gary Darcey to City of Federal Way Surface Water Manager Theresa Thurlow, Darcey stated that " TLHOA spent nearly $25,000 in chemical treatments to preclude the onset of toxic algae in Lake Lorene and we were successful." 74 Russell insists that as long as a lake is oxygenated as is typical with a small lake (especially if kept aerated), the iron - bonded phosphorus would stay insoluble at the bottom of the lake and not rise to the surface.' 16 He contrasts treatment by zero valent iron, which he describes as elemental particles, with treatment by aluminum sulfate ( "alum "), which he describes as a salt solution that, as Matonti says, forms a "floc" when bonded to the phosphorus. 117 Russell also claims that alum, unlike iron, is toxic to fish. Russell does agree that zero valent iron treatment is experimental and that the long -term effect is unknown. While he does not insist that zero valent iron is the only treatment that must be used for blue -green algae, he maintains that it does appear to be working on Lake Lorene. Other possible treatments include algaecides (which he says are generally disfavored by the Department of Ecology) or alum (which, as explained, he does not believe is practical). It is Russell's position that blue -green algae do pose a serious health hazard to people living near an affected lake and therefore that the problem must be managed in some manner to prevent affected lakes from becoming toxic. He says that one can never know whether an outbreak of blue -green algae will become toxic. He claims that aerosol drops from a toxic lake can drift over a neighborhood and that people trampling on grass irrigated with toxic water could end up inhaling cyano- toxins. He claims that exposure to these toxins leads to a higher incidence of neurological disease. He further claimed that in Spokane, this led to a successful lawsuit against the city for allowing a serious health hazard. 18 Russell describes 2016 as an unusually quiet year with respect to the appearance of toxic blue -green algae. f. Professor Jim Gawel On January 24, 2017, I contacted University of Washington- Tacoma Associate Professor of Environmental Chemistry and Engineering Dr. Jim Gawel. Professor Gawel has worked on phosphorus "budgets" for lakes, has worked on lakes in Federal Way (not Lake Jeane or Lake Lorene), and has dealt with the issue of blue -green algae. He confirmed that it does make sense to find what the dominant source of phosphorus is. He said he could look at our data and give an opinion based on that. Asked about potential treatment with aluminum sulfate ( "alum "), Professor Gawel said that it can be effective for five to ten years, but it works better in deeper than in shallower lakes. 116 According to a self - assessment done by Doug Dorling, the Lake Lorene applicator, dissolved oxygen results in Lake Lorene "were sufficient to prevent the recycling of nutrients from the bottom sediments back into the water column." 1" As discussed briefly in Section II.a.ii.l (footnote 17), Russell believes that part of Matonti's opposition to the iron treatment derives from Matonti's (incorrect, per Russell) understanding that such treatment would, like alum, be in the form of a salt. 118 See Section V.b above and sections VI.e and VI.f below for other experts' opinions on this point. There is no scientific consensus that proximity to a cyano -toxin affected lake is a health hazard, as the jury is still out as to whether such cyano- toxins could be an airborne hazard. 75 In contrast to both Matonti and Russell, Professor Gawel said it is hard to imagine how alum would gum up TLGCC's irrigation system. Later, Professor Gawel indicated that he knew Russell and disagreed with him on this point. On January 31, 2017, current City of Federal Way Surface Water Quality Program Coordinator Mindi English and I met with Professor Gawel and showed him the data from the August 12, 2015 sampling.' 19 We also showed him photographs taken of Lake Jeane in 2015 and 2016. According to Professor Gawel, the phosphorus in our ground water is not particularly high compared to other areas. Based on the algae bloom shown in the photographs, Professor Gawel said that the phosphorus level should be in the 0.1 mg/L range. Water is considered "clean" at a phosphorus level of 0.01 mg/L, while 0.1 mg/L is considered high. That level, he said, would create problems for lakes. Per Professor Gawel, anything in the 0.05 to 0.1 mg/L range represents a high algae content. Professor Gawel said that a lot of phosphorus accumulates in sediments which mix back up with wind. Periodic blooms, Professor Gawel said, depend on weather, especially in shallow water, unless there is aeration. 120 The August 12, 2015 test shows that the well water sample contains phosphorus at a level of 0.034 mg/L, which Professor Gawel said is not low or particularly high. However, the data show that all of the phosphorus in the well is soluble reactive phosphorus (SRP), meaninf it is available for algae growth. Professor Gawel said that 0.034 mg/L is a high level of SRP. 21 So while the water taken from Lake Jeane likely does contain more phosphorus than the water put back in via the well, the water from the well contains available phosphorus (SRP), so it is contributing to the ongoing phosphorus load. 122 Professor Gawel also said that while the level of total phosphorus from the well is lower than from other places sampled, it is only one sample, and all depends on when the sample was done. He also said that in order to do a complete analysis, he would need to see testing of samples taken from the lake itself or an outlet. To determine how much phosphorus loading is caused by the well water, he would also need to know the volume of water supplied by the well, by Joe's Creek, and by storm water, as well as the volume of water going out. He said that a lot 119See Section V.c.1 above. 120 As noted previously, Lake Jeane is considered a shallow lake, and aeration has been utilized, though inconsistently according to homeowners. 121 The August 25, 2016 test of the well water done by Bonnie West - Armstrong also shows that the entire 0.03 mg/L phosphorus was soluble reactive phosphorus (SRP). Woolley's test from June 29, 2016 shows an SRP level of 0.030 mg/L out of 0.039 mg/L was SRP. Woolley's test from July 11, 2017 shows all 0.036 mg/L phosphorus to be SRP. 122 Note, however, that as discussed in Section V.c.lv.l (footnote 92), TLGCC consultant Tamara Lunsman's data from August 2016 testing shows a higher level of SRP in Lake Jeane than in the well water. 76 of the water from Joe's Creek would remain in Lake Lorene, so he would also need to see data from the connection from Lake Lorene to Lake Jeane. As has been discussed previously, Professor Gawel agreed that there are multiple sources of phosphorus for Lake Jeane. One source has been the use of fertilizer, though Washington now outlaws phosphorus in fertilizer. However, per Professor Gawel, there is "bootlegged" fertilizer containing phosphorus, though any fertilizer sold by a store like Home Depot would be phosphorus -free. The sources of phosphorus can be internal or external. The internal source is the sediment in the lake. External sources include Joe's Creek, storm water, birds, and the well water. To complete a full phosphorus "budget," Professor Gawel said he would need measurements from the lake and in the sediment as well as water flow, outflow, and data concerning the water pumped out to the golf course. Professor Gawel asked the question of why the golf course does not just irrigate directly via the well. When asked about health risks, Professor Gawel said that cyano- toxins do not usually cause poisoning unless one drinks from or swims in contaminated water. He did say that some people do respond badly to the odor, especially asthmatics. He said that there is typically about one case per year of a pet drinking cyano -toxin contaminated water, which can be fatal to pets. In this case, he said that since residents are well - informed, there should not be much risk. However, when asked about potential noxious gases from being nearby on a regular basis, he was non- committal. g. Professor Daniel E. Schindler On January 10, 2017, City of Federal Way Surface Water Manager Theresa Thurlow and I met with Professor Daniel E. Schindler, a limnologist (expert on lakes) and a biology professor at the University of Washington School of Aquatic and Fishery Sciences. We brought with us photos of Lake Jeane, but only from 2016. Thurlow prepared a complete report on our meeting which is attached to this report and is incorporated by reference. Subsequently, I emailed Professor Schindler several photos of Lake Jeane from 2015 and asked for his opinion. He responded as follows: These photos show scum - forming algae in a eutrophic lake. In all likelihood [sic], these algae are cyanobacteria but this would need to be confirmed by inspection of a sample under a microscope. Cyanobacteria are typically the dominant form of algae in eutrophic lakes that have been polluted with excessive amounts of phosphorus, a fairly common element that is not toxic on its own. High phosphorus loading to lakes, typically from sewage or agriculture runoff, leads to cyanobacterial dominance. High concentrations of cyanobacteria can seriously degrade water quality because they cause taste and odor problems, and can be fataly [sic] toxic to many vertebrates (humans and pets included) in some 77 circumstances. Blooms such as those shown in these photos are known to reduce property values of lakeshore homes and degrade many of the social and economic values of lakes to society. In some instances, lakes can be "naturally eutrophic" because of naturally high concentrations of P in the environment. These conditions are very rare in the Pacific Northwest and eutrophic conditions almost always are a product of human activities. Email from Professor Daniel Schindler (January 13, 2017). VII. Options and Recommendations a. General Considerations When considering options and recommendations, there are a few general points that should be made: The complexity of this report should make it clear that there are no easy solutions legally, politically, or even scientifically. For these reasons, I do not think it behooves the City of Federal Way to take a position with respect to substantive issues, such as exactly what should be done, whether Lake Jeane should be treated, or, if yes, which treatment should be used. Any such determination is open to legitimate opposition and would be tantamount to taking sides. Instead, the City should help resolve procedure over substance. 2. While the City may choose to involve itself to a limited extent in this dispute, I have seen nothing that mandates the City has a duty to do so. 3. The City should not get involved in any efforts to change the requirements of Lake Jeane homeowners to pay associate member dues to TLGCC or in how TLGCC uses those dues. That is a strictly private matter. 4. A determination of the Court as to who has authority over the treatment of Lake Jeane (or better yet, an agreed resolution) would help clarify the parameters of the City's actions. The issue of whether Lake Jeane is or is not "toxic" has taken on too much importance. As indicated by neutral scientists, a lake containing blue -green algae (cyanobacteria) can become toxic at any time, even an hour after testing shows non - toxicity. Thus, the issue is the presence of blue -green algae, not toxicity levels. 6. The reduction of phosphorus in the Joe's Creek watershed is ultimately the only viable long -term solution. However, such a long -term solution will not satisfy homeowners, who wish to see a resolution before more years pass. 7. While this dispute may appear to be a zero -sum game, where each party sees the other as a pure adversary, it needs to be kept in mind that all TLHOA homeowners and TLGCC are in a symbiotic relationship where they depend upon each other. TLHOA 78 homeowners, both associate members and full members, help finance TLGCC and help keep the neighborhood a good one for a golf club location. The existence of TLGCC, on the other hand, helps maintain TLHOA property values and makes the area an attractive place to live. It helps neither "side" for the other "side" to fail completely. In fact, such an outcome would be a disaster to both sides. 8. Resolution of issues is further complicated by differences of opinion or differences of interests amongst Lake Jeane versus Lake Lorene homeowners and even amongst Lake Jeane homeowners themselves. For instance, the litigants led by Patty Ward appear to favor treatment with "alum" (since they hired "alum " - enthusiast Rob Zisette as an expert), while Bob Woolley and Gary Darcey favor zero - valent iron. b. OPTION: Do Nothing -- REJECT There is a case to be made that no City of Federal Way action should be taken and that the Lake Jeane dispute is purely a private matter. The City has no ownership in interest in the Lake Jeane lake bed or its surrounding lands. There is no public access. All lakefront property is private. An argument could be made that the expenditure of taxpayer money on the issue is improper. Furthermore, State and federal agencies that deal with environmental and health threats have never required actions to be taken with respect to bodies of water infected with blue -green algae other than warning signs or at most closure of the body of water at issue. No other local jurisdictions to my knowledge have required anything else. And as has been explained, there is no known legal category of a "residential lake" that distinguishes it from any other such body of water. These considerations do not lead me to a conclusion that the City of Federal Way should take action where other agencies have not, especially since these other agencies are specifically charged with protecting the public health and the environment. These considerations are, on the contrary, arguments against the City of Federal Way's involvement with Lake Jeane. However, it is not that simple. The issue of who has a right to get a permit to treat Lake Jeane is really one of first impression as has been made clear by Jon Jennings at DOE and Assistant Attorney General Chris Reitz, who seem to feel they are being called upon to make decisions on property rights over which they have no real jurisdiction. Also, despite the fact that Lake Jeane and surrounding properties are all private, the water column is, under state law, public. It is owned by the State, but the State only acts passively with respect to the concern at issue. An argument can be made that the local municipal authority (i.e., the City of Federal Way), having an interest in community peace, can and should help resolve this issue. It also does appear to me as an issue of fundamental equity that something should be done to address the concerns of the Lake Jeane homeowners, who, despite being a "dominant" party in the easement of enjoyment of Lake Jeane, have not been able to enjoy the lake for several years. 79 For these reasons, I believe that "doing nothing" is not the right option for the City of Federal Way. I believe it is possible and proper for the City to take some careful steps in helping to resolve this issue as will be explained further below. c. OPTION: Adopt Nuisance Ordinance on Blue -Green Algae REJECT WITH FURTHER EXPLANATION Though Bob Woolley is a persistent and well- versed advocate of such, I cannot endorse his request that the City of Federal Way adopt a nuisance ordinance concerning blue -green algae. As noted above in Section II.b.ii.1, the City of Federal Way previously considered Woolley's proposal, but it was concluded for various reasons that the requested nuisance ordinance was not a viable option. I am convinced that no changes could salvage this proposal. First of all, the adoption of a public nuisance ordinance on blue -green algae and the application of it to Lake Jeane could foster litigation both by entities objecting to and contesting the validity of the ordinance and by entities seeking to force the City to enforce the ordinance. In contrast, I do not believe that such risks exist from declining to adopt an ordinance, as I know of no cases where municipalities have been found obligated to adopt an ordinance. Even without litigation, enforcement of this sort of ordinance would be costly in terms of staff time and may require the hiring of additional staff with the proper expertise. These considerations are especially concerning given that I do not know of any other jurisdiction adopting a nuisance ordinance on blue -green algae. More substantively, the issue of blue -green algae is not "ripe" for adopting public nuisance standards. The science on the issue is too new and indeterminate. Toxicity determinations are subject to the caveat that the level or existence of toxicity can change even in an hour. There is no definitively proven treatment. The jury is still out on whether proximity to a blue -green algae- affected lake could cause health problems. It is for these reasons that the only regulations and laws on this issue up to now have only mandated caution or warning signs or at most closure of a body of water. As to the adoption of standards for a "residential lake," as has been explained, such standards would have no scientific support. Also, the term "residential lake" is unknown in the law and would be difficult or impossible to define without being over- or under- inclusive. No other entities have, to my knowledge, adopted such a novel standard. As indicated in Section V.a above, former DOH blue -green algae specialist Joan Hardy stated in an email that "[i]t would be highly unusual for a city or county to have develop it's [sic] own standards that are different than the state or country." Email from Joan Hardy to Theresa Thurlow (October 24, 2016). For these reasons, it does not seem prudent for the City of Federal Way to be the first entity to adopt a nuisance ordinance concerning blue -green algae. Furthermore, nuisance law requires an analysis of either causation or duty in order to identify the party who must act. 80 In most cases (including Lake Jeane), causation of a blue -green algae bloom will be difficult to pinpoint since the introduction of nutrients like phosphorus into the water column can have many sources, usually out of any one party's control. While homeowners in this case insist that TLGCC adds to the problem by pumping well water into Lake Jeane, that allegation is disputed and would be difficult to prove. There are also many other potential sources, as has been explained. And even if the well water is a source, it is only so because the ground water (and apparently even the drinking water) in the area contains phosphorus. That is certainly out of TLGCC's control. In the Ward v. TLGCC lawsuit, the Court ruled that TLGCC could not be liable for polluting Lake Jeane by merely adding unadulterated waters of the state to other waters of the state, particularly where TLGCC is specifically permitted by the State to replenish Lake Jeane with ground water from its well. As to duty, as this case should make clear, the determination of duty with respect to a blue -green algae bloom is likely to be problematic because it is always the State that owns the water column. Thus, the determination of who has a duty to act will always be subject to a complicated and potentially irresolvable analysis of various water and other property rights. Even DOE and its attorney found it difficult to make this analysis, so a fortiori, a municipal authority would likely find it difficult to do so. As has been noted, should the homeowners prevail on their lawsuit, such a ruling would also provide a basis for finding them responsible for any nuisance on the lake. Finally, the very nature of nuisance law makes enforcement a "clunky" procedure that takes a period of time to enforce. But any delays in enforcement, once an ordinance officially recognizes this phenomenon as dangerous, could be problematic for the City. For these reasons, I do not support the adoption of a public nuisance ordinance to apply to blue -green algae. However, in the interests of allowing all sides to be heard, I would support the Parks, Recreation, Human Services, Public Safety Council Committee Meeting hearing from Mr. Woolley, another representative or representatives from the Lake Jeane homeowners, and a TLGCC representative regarding arguments for and against this proposal. I would also be prepared to make a presentation to that committee regarding the proposal (and this entire report) if desired. d. OPTION: Engage with Relevant Parties — RECOMMEND WITH FURTHER EXPLANATION i. Remaining issues of contention It remains to be seen for certain whether the Ward v. TLGCC lawsuit will be settled, though, as explained, the plaintiff homeowners' attorney still appears to be optimistic. That having been said, as is suggested in Section VII.a above, resolution of the lawsuit may only open the door to further disputes amongst homeowners. And even resolution of the lawsuit will not necessarily resolve all issues between homeowners and TLGCC. There is also 81 the issue of the extent to which TLHOA can or should be involved. Some issues likely to remain include: • The use of the TLGCC well to replenish Lake Jeane waters used by TLGCC for irrigation. This issue could become particularly contentious if, as stated, Bob Woolley attempts to get DOE to "decertify" the well. • Whether treatment of Lake Jeane should be commenced at all while TLGCC continues to use its well to replenish Lake Jeane waters. • The possibility of TLGCC re -doing its irrigation system so that it would no longer depend on Lake Jeane, an expensive proposition for which payment would have to be negotiated. • The possibility of homeowners or TLHOA completely buying out all TLGCC property interests in Lake Jeane (including its property right to dues from Lake Jeane homeowners) • Which treatment option should be used, residents apparently being divided amongst those favoring "alum" and those favoring zero valent iron • Whether a full phosphorus "budget" and lake restoration analysis should be commissioned, as recommended by the City of Federal Way in concluding the Upper Joe's Creek Watershed Reduction Study. • How treatment and /or any analysis would be funded. • Whether to form a lake management district (LMD) and if so, what its parameters should be, including whether it should encompass both lakes. ii. State Funding As described in Section V.c.v above, City of Federal Way Public Works Director Marwan Salloum indicated at the June 28, 2017 forum at Twin Lakes Elementary School that, while the State has not generally funded treatment of waters where the lake bed and shoreline are owned by private parties, that does not necessarily mean that such funding could not happen in the future. In fact, as Salloum pointed out, the State Department of Ecology (DOE) was willing to fund treatment of Lake Jeane back in 2015 (as discussed in Sections II.a.ii and V.a above). Per Salloum, this was the first time he had seen DOE willing to fund treatment of a privately held lake. Salloum said that this could be attempted again and that the City could guide lakeside residents through the process and again serve as sponsor (subject to Mayor and City Council approval). It should also be noted that in preparing the Quality Assurance Project Plan (QAPP) for the Upper Joe's Creek Watershed Reduction Study, Former City of Federal Way Surface Water 82 Quality Program Coordinator Dan Smith sent an email to a former Department of Ecology official in which he stated, "It would be good to know if you had any additional grant- funded ideas that could be targeted toward these urban lake communities. Something out of the box, or efforts that have been neglected that deserve funding." Email from Daniel Smith to Kathy Hamel (November 3, 2014 at 10:46 AM). So it is my recommendation that the City assist interested homeowners in soliciting further FACP grant monies for either further study or possibly treatment. It is also my recommendation that the City work to expand the FACP program. See Section VII.d.iv below. iii. Lake Management District There are a number of caveats that need to be expressed with respect to the potential formation of a lake management district (LMD). First, it is still not really clear whether Lake Jeane homeowners themselves currently want to form a lake management district (LMD). As has been explained, a significant number of homeowners may not want to pay for an LMD while still having to pay mandatory dues to TLGCC. Also, Bob Woolley has said that he would not support an LMD while TLGCC is still allowed to replenish water taken from Lake Jeane with ground water from the TLGCC well. Hypothetically, once formed, an LMD could vote down payment for any treatment of Lake Jeane while this TLGCC practice continues, if a majority of residents are convinced that this TLGCC practice is a primary contributor to the phosphorus causing the blue -green algae (cyanobacteria) blooms in Lake Jeane and therefore that treatment is futile as long as this practice continues. Second, it is unclear whether Lake Lorene should be included in any proposed LMD. Resolution of this issue would have to involve both Lake Lorene homeowners and TLHOA. Third, TLGCC has apparently long been opposed to an LMD. It is not clear whether this position will change as a result of the resolution of the lawsuit, if that indeed does occur. Without TLGCC support, the formation of an LMD could face various difficulties because there is little if any precedent for the formation of an LMD on a privately held lake in a "hostile" situation, where the lake bed owner, substantial waterfront property owner, and holder of water rights does not support the LMD. Also, once formed, an LMD would still have to apply for a permit to treat Lake Jeane. Without agreement from TLGCC, or resolution via the King County Superior Court in the Ward v. TLGCC lawsuit, TLGCC could object to the LMD application for permit, just like it could object to any other entity's application. Fourth, as noted above in Section Il.b.ii.2 above, the water treatment permit, if granted to homeowners, will have a provision that any effect on an existing water right must be recompensed. If TLGCC continues to irrigate its greens with Lake Jeane water, this provision could be applicable. Finally, this option is not a panacea. It does not deal with the ultimate issue of phosphorus loading in the entire watershed. It will also take time —at minimum eight to twelve months and likely more like 12 to 18 months —to set up. It could take longer. During that time 83 and afterward, of course, City staff time will need to be devoted to getting the LMD set up and operating it (though it may be possible to structure an LMD such that the City is compensated for extra staff time spent administering it). That all having been said, since I have already explained my objections to doing nothing, I do believe that the City should support the creation of an LMD, if desired by and vetted with property owners, for the following reasons: • Unlike a nuisance ordinance, an LMD would be limited to Lake Jeane (or Lake Jeane and Lake Lorene) and would not in any way affect other bodies of water in Federal Way. An LMD is democratic -- -determination of whether to set it up and as to what actions to take would be determined by a vote of property owners. As has been made clear, there are some health risks associated with a lake containing a blue -green algae bloom, especially to pets or small children. For this reasons, some democratic control by nearby property owners does seem to make sense. Ironically, Bob Woolley's concern that an LMD may choose not to engage in treatment is for me an argument in.favor of an LMD since ultimately, whether to engage in treatment should be a decision made democratically by affected parties. To deal with some potential TLGCC objections, possibly TLGCC could be assessed and therefore granted voting rights at a level such that a super- majority of homeowners would be required to overcome a TLGCC objection, or via some other formula on which the parties could agree (though this would also involve TLGCC paying an additional amount, so they may not want that option). iv. Steps Forward Specifically, my recommendation is that the City pursue the following steps: 1. Include increased funding for FACP grants in its 2018 legislative agenda. 2. Hold meeting with TLGCC officers concerning its position on the formation of a lake management district (LMD). 3. Call a public meeting in the Twin Lakes neighborhood, inviting all TLHOA officers and members and all TLGCC officers and members, in which the following is discussed and/or offered: a. Options for a lake management district (LMD) including i. Positives and negatives ii. Scope (i.e., whether to include both lakes) iii. How it would be formed via 84 1. property owner petition OR 2. City Council resolution b. Assistance with soliciting and applying for FACP grants toward further analysis and/or treatment. VIII. Conclusion Hopefully, this report will at least to some extent aid in the resolution of some of the complicated issues that have developed on Lake Jeane in the Twin Lakes Homeowners Association. I am, of course, available for any further explanation needed. 2. Continue with the in progress Upper Joe's Creek Watershed study to determine the nutrient load from that source into the Twin Lakes, Lake Lorene and Lake Jeane. If the creek has a substantial P load, consider developing a plan for potential source control and pollution reduction. This study could possibly help determine a treatment strategy and if a further study should be done to finish the mass loading calculations to determine where the Phosphorus load is coming from. These are long term multi -year actions and would not address HABs developing in the near future. 4'T '_ "'o / -cItNT January 17, 2017 From: Theresa Thurlow, SWM Manager To: Mayor Jim Ferrell'" Via: Marwan Salloum 47 , Public Works Director ' Edward Walsh, Public Works Deputy Director�/lti —� Subj: Memo to file in regards to conversation with Dr. Daniel E. Schindler Meeting Summa On Tuesday, January 10, 2016 Yarden Weidenfeld, Senior Policy Advisor, and I met with Dr. Daniel E. Schindler, limnologist and Professor at University of Washington (UW), to discuss harmful algae blooms (HABs), Lake Jeane, challenges of cyanobacteria (blue -green algae) blooms in recent years and toxicity of cyanotoxins. Dr. Schindler is an award winning faculty member at UW's School of Aquatic Fishery and Sciences. His primary areas of research are aquatic systems and how eco- systems respond to land -use and climate change. Currently he is a principle investigator working on the Alaska Salmon Program which explores watershed function and aquatic systems. He also works in the Seattle region on the change to land -water interaction from urbanization and climate shifts. At the meeting, we outlined the development of the Twin Lakes neighborhood, golf course, Lake Lorene and Lake Jeane as well as information on the associated watershed, Joe's Creek, Lake Jeane water rights, irrigation and pumping. We also talked about the acrimonious situation between the residents and the Twin Lakes Golf Course board (TLCCGC). In response, Dr. Schindler provided the following insight: 1. It is not unusual for lakes created by filling in a wetlands area to become eutrophic - a lake condition where the water is dense in nutrients and low on dissolved oxygen. Blue -green algae blooms as a result of eutrophication are a common regional problem for area lakes. At present, most lake managers that are treating lakes for cyanobacteria prevention are treating the symptoms and not the cause of the eutrophication which is typically a result of excessive Phosphorous (P). Scientists do not know why cyanobacteria become toxic. He mentioned that Green Lake has been treated with Alum every 3 -5 years at an expense of $1M (total). 2. Dr. Schindler was provided pictures (see attached for a few of subject photos) of Lake Jeane from 2016 and he stated that, in his opinion, based on what he was seeing from the pictures, these were as bad as he'd ever seen for blue -green algae western US lakes. 3. Dr. Schindler continually emphasized the need to figure out where the P is coming from and the need for a complete mass loading calculation (Joe's Creek + well water + sediment + runoff + ? = total P). He indicated that it makes a difference for a longer term reduction in HABs because identifying the source of the P allows restoration through reducing the loading via the dominant sources. Without a reduction in the P, any treatment will be recurring with no end date and effectiveness may be inconsistent. He felt that it was unlikely groundwater being pumped out of the well into the lake would be the source of P loading. Groundwater is not likely to have a significant effect on P loading in this region unless it has been contaminated by human sources such as agriculture or sewage. A decrease in water flow could also be part of the problem but pumping of water into the lake is increasing the water flow and potentially helping reduce blue -green algae development. However, if there were failing on -site septic (OSS) in the area, the groundwater could have elevated levels of P. Investigation is needed of any possibility of abandoned legacy on -site sceptic systems (05S) around Lake Jeane and is the Treasure Island restroom hooked up to sewer. When asked about the geese as a source of P loading, he said a dozen geese would be unlikely to have enough P in their waste to be a significant contributor to the mass loading equation, especially since they are not transporting new sources of P into the watershed. 4. Based on anecdotal information of a clear lake as recent as two decades ago, Dr. Schindler felt that there must be an increase of P coming from an external source somewhere. He said normally he would theorize that much of the P in the water column is coming from the sediment but there should have been earlier HABs if so. But in this instance, it seems there is a significant load coming from an external source. He did reiterate that the number one contributing factor to failing water quality and increased nutrient loads has been legacy OSS in this region. 5. He had no recommendations for treatment, either long or short term. He was not familiar with zero valent iron treatment (NI) by that particular name, but said that if it worked for Lake Lorene it should work for Lake Jeane as long as there is stratification (thermal stratification is varying layers of water at different temperatures, warmer water at the top, colder at the bottom). If the P source is in the sediments, dredging would provide a longer term treatment option. However, the year following dredging would have a significant increase in HABs due to stirred up sediment releasing P into the water column before flushing out through natural processes. In response to a question about new developments in aeration treatments, he said they haven't been particularly effective in the past and the jury is still out on the effectiveness of the new systems. However, if they've improved enough to be thorough in creating dissolved oxygen through the lower stratified layer, they may work. If there is enough dissolved oxygen in the lake, the naturally occurring iron in a lake is usually enough to bind up the phosphorus and drop it out of the water column — assuming there is enough iron present to bind up the P. This denies the cyanobacteria its nutrient source and blooms are less able to form. 6. When asked about ill effects just from being in the vicinity of the lake, Dr. Schindler stated that it is entirely possible that if a pet or child ingested water as seen in the pictures we showed him, death was a real possibility within a limited time after exposure if there was a highly toxic bloom present. Not all cyanobacteria blooms are toxic. He mentioned there was a fatality in Wisconsin five years ago after a child had been swimming in a golf course pond. He also mentioned that someone with a compromised immune system would be more prone to adverse health effects if they ingested water with toxic cyanobacteria present. He said the jury is still out on whether cyanotoxins can be an airborne hazard and recommended consultation with an algologist or phycologist. He mentioned that the presence of cyanobacteria does not indicate the presence of cyanotoxins but at a later time, a sample could be taken with no toxin present but an hour later a new sample could show a high presence of cyanotoxins. According to the professor, the sampling we did over the summer only captures a moment in time. 7. He provided a point of contact for a retired professor from UW that worked on the Green Lake HAIR issues for decades. Conclusion As I am an environmental engineer, not a biologist, toxicologist, or other related scientist, I left this meeting with a better understanding of the toxicity issues and the potential of Lake Jeane as a potential health hazard. It is possible his statement in regards to the fatality of a pet or child swimming in Lake Jeane was exaggerated. However, based on reading of various research papers on the known toxicity of cyanotoxins; recorded cases of associated harm to liver function, the opinion of Joan Hardy, toxicologist at DOH and Lizbeth Seebecher, DOE toxic algae program coordinator, as well as the common theme that research is still years out from having a complete and accurate picture on cyanotoxins, I have an understanding of why Dr. Schindler considers ingestion of water from Lake Jeane during a cyanotoxin bloom as a possible serious health hazard. Recommendation based on input from Dr. Schindler: 1. Consider creation of a Lake Management District for Lake Jeane. An LMD's function is to provide management and guidance for private lakes. An LIVID would be able to pursue treatment strategies and fund sourcing becomes a viable option, as does continued management of all the lake functions. An LMD could explore the effectiveness of the newer aeration systems for a holistic lake treatment option and would be able to pursue a grant for installation. 2. Continue with the in progress Upper Joe's Creek Watershed study to determine the nutrient load from that source into the Twin Lakes, Lake Lorene and Lake Jeane. If the creek has a substantial P load, consider developing a plan for potential source control and pollution reduction. This study could possibly help determine a treatment strategy and if a further study should be done to finish the mass loading calculations to determine where the Phosphorus load is coming from. These are long term multi -year actions and would not address HABs developing in the near future. Additionally, based on Dr. Schindler's input, chemical treatment of any lake would be temporary and treatment would possibly be inconsistent. Both Alum and ZVI treat the symptoms and not the cause. Chemical treatment could have currently unknown ecological impacts. Previously approved treatments for blue -green algae included the use of other chemicals that are now prohibited due to the adverse effect they've had on aquatic ecosystems. It is still unclear what caused the fish kill in 2016 within Lake Lorene. The effects of treatment chemicals on the ecosystem of the watershed are poorly understood and could have serious unintended consequences on water quality and ecosystem health downstream of the Twin Lakes. 3. Continue to enlist the aid of DOH and DOE as they are the regulatory agencies that administer the state toxic algae program, publish guidelines on public health issues, and provide permitting for lake treatment. Request assistance from DOH and DOE in the determination of health risks associated with exposure to any cyanobacteria bloom. Very respectfully, Theresa Thurlow, P.E. Public Works SWM Division Manager cm i Z►t jc Y. 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