APPEAL OF MDNS: WRITTEN ARGUMENT

Table of contents:

Summary

General Background

Procedural errors in the determination

Inadequately considered facts

Conclusions

 

Summary

The Appellants claim:

·       That the Mitigated Determination of Nonsignificance (MDNS), delivered by the City of Lake Forest Park on September 8, 1999, was made in error, because:

·       The procedures relating to SEPA in the City of Lake Forest Park’s Municipal Code and in the State of Washington’s Administrative Code were not properly followed in the making of the threshold determination for this proposal.

·       Numerous facts in the public record were not adequately considered in the making of the threshold determination.

·       That the MDNS should be reversed, and that a Determination of Significance (DS) should be rendered in its place; and 

·       That additional mitigation measures should be required of the Proponents beyond what are specified in the current MDNS.

General Background  

The Hill Property consists of 4 tax parcels, with a total area of 7.1 acres. The City of LFP has classified significant portions of all four lots as Sensitive Areas; all four lots contain wetlands. Also, all four lots are classified in their entirety by LFP  as Erosion Hazard areas (see Fig. 1, LFP Erosion Hazard Area Map). The lots contain a pair of ponds and a stream which connects the ponds (see Fig. 2, photographs of the ponds; Fig. 3b, stream connecting the ponds). These ponds, the stream, and the surrounding wetlands occupy over 5 acres [Ref. Letter from L. and P. Newman, entered into public record 7/20/99].  These ponds and wetlands comprise the headwaters of Brookside Creek [Ref. letter from G. Barrere, entered into public record 7/20/99; letter from L. Carpenter, entered 7/20/99; see Fig. 4, watershed map]. Brookside Creek is a major tributary of McAleer Creek, a known spawning ground of Coho, Sockeye, and Chinook Salmon [Ref. Letter from M. Kaplan and W. Swan, entered into public record 7/21/99].

These four lots, along with 15 other lots along the 28^th Ave./30^th Ave. NE corridor, comprise the largest undeveloped parcel of land in the City of LFP.

A large sand pit, roughly 30 feet in diameter and 30 feet deep, exists uphill from the building sites. See Fig. 3a, photos of the sand pit. This sand pit and the surrounding slopes have been the source of extensive slope failures in recent history. [Ref. Letter from E. and S. Gauglitz, entered into the public record 7/22/99; letter from R. Moulton, entered 7/21/99.] The proposed septic drainfields occupy the slopes immediately adjacent to the sand pit.

The proposal involves the construction of four houses on this site, three of which encroach onto wetland buffers and setbacks. The total encroachment on buffers and setbacks is 24,726 square feet. See Fig. 5, site map.

The following description of the function of wetland buffers is excerpted from a letter from Doug Hennick of the Washington Department of Fish and Wildlife, entered into the public record on 9/15/99 in accordance with agency review of the MDNS:

It is well documented that buffers are vital for protecting the functions of streams and wetlands, and for several reasons headwaters wetlands such as those on the Hill site are very important to salmonid survival lower in the watershed. They cause streams to flow less violently in winter by storing stormwater, and they cause streams to flow more reliably in the summer by slowly releasing that water. Scour from winter storms is presently the worst habitat problem for salmonids in urban streams because eggs and juveniles get killed by the violence of storm flows. Low summer flow in small streams is historically the limiting factor for coho salmon production. So the winter storage functions of wetlands is vital. Also vital is the rearing habitat they provide. Typically coho salmon juveniles migrate upstream seeking flooded wetland in which they can forage for food and escape scouring flows in stream channels. Headwaters wetlands also produce fish food which is exported downstream to the benefit of salmonid populations.  

Procedural Errors in this Threshold Determination

1.   Section 16.06.050.A of the LFP Municipal Code  (LFPMC) states:

1.     A project or action which by itself does not create undue impacts on the environment may create undue impacts when combined with the cumulative effects of prior or simultaneous developments; further, it may directly induce other developments, due to a causal relationship, which will adversely affect the environment.

2.     An individual project may have an adverse impact on the environment or public facilities and services which, though acceptable in isolation, could not be sustained given the probable development of subsequent projects with similar impacts.

Additionally, the City is required to assess the cumulative effects and impacts of prior, simultaneous, or other future similar developments. For example, the Hill property is part of a large contiguous wetland area, larger than 10 acres, stretching from the Petrie property (just south of the Hill property) at the south end up to the Burns property (near the intersection of Meadow and 28^th Ave. NE) at the north end. The majority of this area is currently undeveloped (See Fig.4, showing the undeveloped lots and city-designated wetlands in this area), but development efforts are under way on at least 5 parcels in this stretch of wetlands, in addition to the Proponents’ site.  Section 16.06.050 of the LFPMC requires the assessment of the impact of the possibility of all of this property being developed as the Hill property would. The cumulative effect of all of these current and potential development efforts on the quality of the water downstream, impact of traffic in the area, impact on the aquifer, stormwater retention in the wetlands, and effect of that quantity of septic drainfields near a wetland must be assessed. This assessment has been performed by neither the Proponents nor the SEPA offical.

Section 197-11-330 of the Washington Administrative Code (WAC) states describes the threshold determination process in detail. In this section, paragraph 3.states:

In determining an impact's significance (WAC 197-11-794), the responsible official shall take into account the following, that:

(e) A proposal may to a significant degree:

(iv) Establish a precedent for future actions with significant effects, involves unique and unknown risks to the environment, or may affect public health or safety.

Therefore, the SEPA official is required to consider the effect of a given threshold determination in light of said determination being used as a precedent in other future actions. Per the LFPMC, a threshold determination must take into account the cumulative effect of such actions as well.

The Appellants believe that the failure of the SEPA official to take into account the cumulative effects of similar developments in the area, and the possible effects resulting from this determination being used as a precedent in  future actions, is a violation of City and State SEPA procedures, and is reason for reversal of the MDNS and the rendering of a DS in its place.

2.   No analysis has been made, by either the Proponents or the SEPA Official, of the impact of this development on the watershed downstream in Brookside Creek and McAleer Creek.

The  LFPMC says, in section 16.06.080,

1. Property development and redevelopment often creates increased volumes and rates of stormwater runoff, which may cause property damage, safety hazards, nuisance problems and water quality degradation.

2. Pollution, mechanical damage, excessive flows, and other conditions in drainage basins will increase the rate of downcutting and/or the degree of turbidity, siltation, and other forms of pollution in streams, creeks and lakes. They may also reduce low flows or low water levels to a level which endangers aquatic and benthic life within these streams, creeks and lakes.

Also refer to the letter from S. Balden and C. Martin, entered 7/21/99, documenting the increase of erosion and siltation into Brookside Creek resulting from development uphill of the stream, for an example of this type of water quality degradation.

Note the requirements of Section 16.06.230.B.2 of the LFPMC:

For any project proposal which poses a potential threat to water quality in Lake Forest Park, the decisionmaker shall assess the probable effect of the impact and the need for mitigating measures. The assessment shall be completed in consultation with appropriate agencies with expertise.

The probable effect of this development on water quality in LFP – in particular, the quality of water downstream from the site - has not been assessed. There is no reference in the public record of any analysis of the effect of this development on the watershed downstream. Since the site contains headwaters of a major tributary of McAleer Creek, and runoff from roofs and driveways will be channeled into those headwaters [ref. “Drainage Feasibility Plan”, Erich O. Tietze and Associates, entered 6/3/99], there will certainly be some impact on water quality in the City. This must be assessed in an Environmental Impact Statement.

3.   The SEPA Official is required by section 16.06.020.C of the LFPMC to consider alternatives to the proposal in a DNS. The SEPA Official failed to consider alternatives. The Proponents presented no alternatives. The WAC describes, in section 197-11-080, actions to be taken by the SEPA Official if alternatives are not presented by the proponent. None of these actions were taken. The Appellants believe that this is a failure to observe proper SEPA procedures.

4.   In discussing criteria to be considered by the SEPA official when making a threshold determination, section 16.06.170.B.1 of the LFPMC states:

A high priority shall be given to the preservation and protection of special habitat types. Special habitat types include, but are not limited to, wetlands and associated areas (such as upland nesting areas), and spawning, feeding, or nesting sites. A high priority shall also be given to meeting the needs of state and federal threatened, endangered and sensitive species of both plants and animals.

The proposed development is indeed in a wetland area, as amply documented in the Proponent’s wetland delineation. The City did not show adequate evidence of giving high priority to the preservation and protection of this wetland in this MDNS.  Neither the proponent nor the SEPA Official made any mention of the fact that the area has been designated by the Washington Department of Fish and Wildlife as a salmon habitat [ref. letter from Doug Hennick, Washington DFW, entered 9/29/99]. Note that section 16.06.170.B.4.d of the LFPMC states that in order to preserve and protect a wetland, mitigation measures may include limiting the use allowed on the site. The Appellants believe that such mitigation measures, limiting the use allowed on the land, should be required.

Facts Inadequately Considered in this Threshold Determination

5.   The effects of placing septic drain fields in the steep slopes to the west of the proposed housing sites, immediately above the wetlands, must be properly studied.  This was not addressed in the SEPA checklist, though it was addressed in the MDNS. The Appellants are aware that a Site Evaluation and Slope Stability Analysis was submitted by the Proponents to the City on 10/5/99 (after the public record was closed for this determination [Note 1]); however, the accuracy of this document is questionable. This report claims that there “were no slope failures observed in the steeper slopes outside the borrow area”. Mr. Hill’s original SEPA Checklist, in answer to the question “Are there surface indications or history of unstable soils in the vicinity?”, answered “unknown”. This is clearly a false statement. The public record has ample evidence that there are in fact clearly visible slope failures in the vicinity of the area in which the septic drainfields will be located. [Ref. Letter from E. and S. Gauglitz, entered 7/22/99; letter from R. Moulton, entered 7/21/99.] See Fig. 6 for photographic evidence of a major slide which occurred in the winter of ‘97-98; the photo was taken just downhill from the proposed drainfield site. 

Note 1: The Appellants believe that since the Proponents entered this document into the public record after the record was closed, but as a result of mitigation specified in the MDNS, that comments on this document should be allowed at this time.

The Appellants believe that, at the time of the threshold determination, sufficient information regarding the instability of the slopes in the vicinity of the septic drainfields was present in the public record to merit the rendering of a Determination of Significance on this proposal. The Appellants also challenge the veracity of the Slope Stability Analysis submitted by the Proponents to the City on 10/5/99.

6.   The SEPA Official is required by section 16.06.080.B.2.C of the Lake Forest Park Municipal Code (LFPMC) to take into account the fact that the proposed development drains into a stream identified by the State Department of Fish and Wildlife as bearing anadromous fish. Refer to the letter from Doug Hennick of the Department of Fish and Wildlife [entered into the public record Sep, 15, 1999]. Mr. Hennick identifies the wetlands on the Hill property as being salmon habitat. (Salmon are anadromous fish.) Mr. Hennick recommends increasing the widths of the wetland buffers to 100 feet. Instead, the MDNS would allow the developer to decrease the size of the wetland buffers for this project, in some cases down to zero. This is contrary to both the LFPMC (as the SEPA Official did not take into account the fact that the development drains into an anadromous fish habitat) and to the recommendations of the State Fish and Wildlife Department.  The Appellants believe that this contributed to an erroneous MDNS.

The Appellants believe that both the lack of adequate consideration of the presence of wetlands on the site, and the total lack of consideration of salmon habitat on the site, are grounds for reversal of the MDNS and the rendering of a DS in its place. 

7.   The original SEPA checklist claimed that the only known animals which have been observed on or near the site are robins and crows. This is a gross understatement which has been addressed many times in the public record. See letters from R. and D. Simmons, entered 7/20/99; R. Moulton, entered 7/21/99; C. and P. Stowe, entered 7/21/99; H. and M. Sander, entered 7/20/99; P. Fox, entered 7/20/99. Additional animals include barred owls, pileated woodpeckers, chorus frogs, opossum, raccoons, coyotes, and hawks. This discrepancy was never addressed, either by the SEPA Official or the Proponent.  There is nothing in the public record indicating that the proponents performed any wildlife survey, or any water typing, which is appropriate to a development in a sensitive area. Given the nature of the land in question – consisting of over 7 acres in the largest undeveloped portion of land in the City of Lake Forest Park, and containing 5 acres of sensitive wetlands  - such a discrepancy should not be allowed to go unchallenged. The Appellants believe that an EIS would – among many other things – address this issue in the form of a detailed wildlife inventory, performed by appropriately trained professionals.

8.   Section 16.24.270 of the LFPMC states:

It shall be prohibited and in violation of this chapter for any person to…Cause or permit liquid or water-carried pollutants to enter the drainage system of the city including but not limited to oils and petroleum products, paints and paint thinners, pesticides, fertilizers, soaps, detergents and washing wastes;...

Since the drainage plan of the proposed development proposes to channel all of the runoff from driveways via sheet flow into the wetland buffers [ref. “Drainage Feasibility Plan”, Erich O. Tietze and Associates, entered 6/3/99], pollutants from the site such as oil drippings and soap and detergent used to wash cars will inevitably wind up in the site’s wetlends, and subsequently, in the City’s drainage system downstream. This is in violation of the LFPMC and has not been addressed properly in the SEPA checklist or the MDNS. At the very least, the Appellants believe that this is justification for additional mitigation.

Conclusions

A.  The Appellants believe that sufficient procedural errors and factual omissions have been made in this threshold determination to warrant the reversal of the MDNS and rendering a DS in its place. An Environmental Impact Statement is necessary to resolve the issues raised in this document.

B.  There are a significant number of environmental impacts addressed in this document and elsewhere in the public record, but which are not addressed in the Proponents’ applications to the City or the current MDNS. Additional measures must be required of the Proponents in order to mitigate the effects of these impacts.

Dated this 10^th day of November, 1999.

Respectfully Submitted,

Beatriz D’Aquila

Douglas P. Mitchell

President, Lake Forest Park Stewardship Foundation