2022-02-02 Hearing Examiner PacketO� LDIVO
�o Agenda
Edmonds Hearing Examiner
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PUBLIC HEARING
1. 6107 : Appeal of SEPA Determination for the City Stormwater Code Update PLN2021-0052
ADJOURNMENT
Edmonds Hearing Examiner Agenda
February 2, 2022
Page 1
1.1
Hearing Examiner Agenda Item
Meeting Date: 02/2/2022
Appeal of SEPA Determination for City Stormwater Code Update
Staff Lead: Kernen Lien
Department: Planning Division
Prepared By: Kernen Lien
Background/History
N/A
Staff Recommendation
Staff is recommending the Hearing Examiner uphold the DNS.
Narrative
The City of Edmonds has received an appeal of the State Environmental Policy Act (SEPA) Determination
of Nonsignificance (DNS) issued for the city's update to the City of Edmonds drainage code (ECDC 18.30)
which adopts the 2019 version of Stormwater Management Manual for Western Washington
(SWMMWW), as required for compliance with the municipal NPDES permit the City holds with the
Department of Ecology. Minor City variations from SWMMWW are proposed as outlined in the
Edmonds Stormwater Addendum. The appeal claims flaws in the SEPA process and analysis and seeks
invalidation of the DNS and notes that an Environmental Impact Statement should be drafted including
consideration of alternatives, due to significant environmental impacts of the city's proposal. The public
hearing will be conducted in accordance with ECDC 20.06.110.
Attachments:
Appeal
Revised Prehearing Order
Appellant 01.12.22 Breif
City 2022-01-19 response brief
Appellant 01.21.22 Reply Breif
Appellant Exhibit List with links to Exhibits
City Exhibit List with links to Exhibits
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Appeal of SEPA DNS relating to stormwater code
By:
Lora Petso
10616 237" Place S.W.
Edmonds, WA 98020
votepetsokaol.com
206-542-7464
Standing to Appeal: I have standing to appeal under ECDC 20.06.020 due to
submission of written comments 10/28/2021.
Grounds and Facts upon which the appeal is based:
I appreciate the response provided by the City yesterday, and hope that discussions
will continue. The short timeline, however, requires that I get this appeal filed now
1) Failed process
For the initial DNS, the City failed to notify all necessary parties, and also
represented to the public that SEPA had been completed. Apparently, this was not
true, since the checklist that ultimately surfaced was dated the day after the first
hearing. That DNS was pulled.
A new DNS was issued, but the opportunity to comment on the re -issued DNS
occurred after the City Council had concluded hearings on the underlying proposal,
and some Councilmembers and staff had already decided to push to adopt the
proposal as is. This fails under GMA (ongoing and continuous public
participation), and it fails under SEPA (notice and comments at the earliest
opportunity in the process).
SEPA after a decision has been taken is not valid. The DNS is invalid due to a
failure to provide for comment early in the process. Evidence of the botched
process is readily available from City records and press accounts, and I will submit
evidence and legal citations for the hearing.
2) Failure to evaluate environmental impacts of proposed code change
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The DNS is clearly erroneous because it fails to evaluate (or even mention) the
significant adverse environmental impact of changing the code to allow untreated
stormwater from pollution generating pervious surfaces to be discharged to
groundwater in circumstances where such discharge is prohibited under the
existing code. ECDC 18.30.060(6)(d). (This change is a bit subtle, inserting the
word "hard" into the code, so that only discharge from pollution generating "hard
surfaces" are regulated, when the existing code also includes discharge from
pollution generating pervious surfaces.)
Under SEPA, the City is required to evaluate the negative and cumulative effects
of this proposal. What pollution generating pervious surfaces is the City seeking to
allow to discharge to groundwater? How many will there be, how large will they
be, where in the City will they be located, which water bodies will be impacted,
and how much environmental damage will they do? An EIS is required.
Evidence and additional legal citations will be provided at the hearing.
3) Failure to mention or protect Wellhead Protection Areas (WHPA's) in and near
the City.
The DNS did not even mention the two WHPA's, one in the City, and one nearby.
The City is required to evaluate all environmental impacts of its proposal,
including the impacts on WHPA's.
Evidence and additional legal citations will be provided at the hearing. a
4) The proposal conflicts with state and federal laws, including WAC 173-200-
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030(2) which protects groundwater from degradation.
The DNS response to supplemental item 7 is clearly erroneous. Item 7: "Identify, if
possible, whether the proposal may conflict with local, state, or federal laws or
requirements for the protection of the environment." The City response is that the
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proposed amendments are "designed" to be consistent with other applicable laws.
However, the proposal is not consistent with other laws.
Both the current stormwater code, and the new proposal, fail to protect existing
beneficial uses of groundwater and fail to protect exiting groundwater quality, in
violation of WAC 173-200-030(2), which protects groundwater from degradation.
Related laws violated include RCW 90.48, WAC 173-218, and 40 CFR 144.12.
Also, as noted in comment 3, above, the City is also in violation of GMA and other
laws due to failing to identify and protect WHPA's in and near the City.
The City is required to protect groundwater from degradation, WAC 173-200-
030(2), and even the State has admitted that doing the minimum set out in its
stormwater manual is insufficient to meet that standard.
Evidence and additional legal citations will be provided at the hearing.
5) The DNS is clearly erroneous for failing to identify and address the impact of
groundwater flooding, particularly in those areas already subject to flooding.
The November 3 memorandum from Zachary Richardson seems to admit that the
City may protect areas from impacts from stormwater infiltration. And we seem to
agree that my area is not included in the protections. As a result, an EIS is required
to evaluate the impacts, including cumulative impacts, of the proposal on areas
already subject to flooding, including mine.
Evidence and additional legal citations will be provided at the hearing.
Relief sought: I am seeking invalidation of the DNS, and an EIS, including a
consideration of alternatives, due to the significant adverse environmental impacts 0
of the City's proposal.
I, Lora Petso, have read this appeal and I believe the contents of this appeal to be
true.
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THE HEARING EXAMINER OF THE CITY OF EDMONDS
IN RE:
Stormwater Code Update
DNS Appeal
FIRST REVISED PRE -HEARING
)RDER
The schedule and procedural rules outlined below apply to the above -captioned hearing.
A. Document Distribution. All documents required by this Order shall be
emailed or mailed to the parties at the addresses below. All documents must be
received by midnight on the due dates set by this order. For mailed documents,
documents shall be deemed received three business days after mailing.
Address
Appellant
Lora Petso 10616 237th Pl. S.W.
Edmonds, WA 98020
votepetso@aol.com
PRE -HEARING ORDER
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City of Edmonds Jeffrey Taraday
City Attorney
City of Edmonds
121 5th Ave. N.
Hearing Examiner
Edmonds, WA 98020
jeff@lighthouselawgroup.com
Kemen.Lien@edmondswa.gov
720 N. I O'h St., A No. 297
Renton, WA 98057
olbrechtslaw@gmail.com
B. Hearing Date. The appeal hearing will be held on February 2, 2022 at
9:00 am as a virtual hearine hosted by the Citv. Citv staff shall notifv the parties on
how to participate prior to the hearing. As offered by the City, the City shall also
provide Ms. Petso access to a City computer to facilitate her participation if she
chooses. in person at the Edmonds P4he Sane Complex, 250 5th Ave N. Ed
Wn 99020.
C. Exhibit and Witness Lists. The parties are required to exchange witness
and exhibit lists per the schedule below. Witness lists should include a summary of the
testimony to be provided by each witness along with a general estimate on the length of
the testimony. The time estimates are just for scheduling purposes. Witnesses will not
be bound to the estimates. The exhibit lists shall list any documents, recordings, videos
or photographs that the parties intend on presenting at the appeal hearing. No exhibits
or witness testimony beyond those identified in the witness and exhibit lists will be
admitted unless necessary for reasonably unanticipated surrebuttal or for other good
cause. Exhibits must be exchanged contemporaneously with the exhibit lists and
may be distributed by email.
D. Procedural Rules. To the extent that procedural issues are not addressed
by the Edmonds Community Development Code, the Washington State Superior Court
Civil Rules (CR) shall serve as a general guide. Hearings are not subject to the
evidentiary rules of the court system, but are guided by the concept of due process.
E. Cross -Examination. All witnesses who present live testimony will be
subject to cross-examination. Declarations and other documents that would qualify as
testimony are admissible without a right of cross-examination unless a right to cross -
PRE -HEARING ORDER
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examine is asserted by email to all hearing parties within 24 hours of when the
document is disclosed in the witness and exhibit lists.
F. Scope of Appeal. As a matter of adequate notice under procedural due
process, the scope of the appeal shall be limited to the issues raised in the Petso
prehearing brief due 1/12/22. The City may further object to scope in its pre -hearing
response brief, subject to reply in the Petso pre -hearing reply brief. Any such
objections so raised will be ruled upon prior to the appeal hearing.
G. Schedule. The following schedule applies:
1/12/22 Pre -Hearing Briefs Due
1/19/22 Pre -Hearing Responses Due
1/21/22 Pre -Hearing Replies Due
1/24/22 Witness and Exhibit Lists due, along with exchange of exhibits.
1/27/22 Rebuttal Witness and Exhibit Lists due, with exchange of rebuttal
exhibits
2/2/22 Hearing on Appeal (irsenyirtual); 9:00 am.
ORDERED this 145th day of January Deeeffihff 2022-�.
PRE -HEARING ORDER
PAGE
City of Edmonds Hearing Examiner
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Opening Brief on Appeal of City of Edmonds
SEPA DNS re Stormwater Update
Submitted by Appellant Lora Petso
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5 I. Introduction
6 In short, proposed changes to the city stormwater code increase the risk of contaminating
7 a local municipal drinking water supply already designated as highly susceptible to potential
8 stormwater contamination.
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Proposed changes will also increase flooding of properties and residences in my
neighborhood (constructed in reliance on now failing stormwater infiltration). We will be forced
to connect to the City system, but another proposed change to the code will now charge us if we
do connect to the city system. (A taking without just compensation actually).
II. Preliminary Issue-Jurisdiction/Qualification of the Hearing Examiner
Though I filed this appeal as instructed by City staff, and I wish to pursue it, I can see no
authority for the hearing examiner to decide this case. I request that the City update its code to
remove the Forest Practices Act limitation on hearing examiner powers. While processing that
code amendment, the Mayor and Council could formally appoint and confirm the hearing
examiner, and accept an annual report.'
1 City code provides for a hearing examiner, appointed by the Mayor and confirmed by
City Council for a term of four years. ECDC 10.35(A). I can't find any record of the appointment
and confirmation of this hearing examiner within the last four years.
If properly appointed and confirmed, the hearing examiner then has powers and duties to
"review land use applications and issues as specified in Chapter 20.100 ECDC and related
matters." ECDC 10.35(E). However, chapter 20.100 ECDC only authorizes participation of the
hearing examiner related to moratoriums imposed after violations of the Forest Practices Act.
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2 III. Facts
3 It is hoped that the City will stipulate to the following facts:
4 (1) Appellant.
5 Appellant is an elected Commissioner for Olympic View Water & Sewer District (since 1995), a
6 member of the Washington Association of Sewer and Water Districts team involved in talks with
7 Ecology regarding the risks of UIC stormwater wells in drinking water supply areas, and a
8 participant in negotiations with the Edmonds School District over the deep UIC wells placed at
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Madrona School that drain stormwater directly to a location just above the aquifer that supplies
Olympic View's Deer Creek municipal drinking water source. Appellant is a 30+ year resident
of the Edmonds area --living at 10616 237th Place SW in an area of Edmonds that has, and has
always had, drainage issues. The neighborhood is within or immediately adjacent to the
Wellhead Protection area for Olympic View's Deer Creek municipal drinking water source.
Appellant's residence is also near the site subject to the Hearing Examiner decision, Woodway
Court II, PLN20160023.
(2) Urban stormwater in the Puget Sound area is contaminated.
(2019 Western Washington Stormwater Manual, p. 53-54, herein "the manual", citing USEPA
1995, Field et al 1997, and Strecker et al 1997.) The manual states at page 53 that "A study
ECDC 20.100.050. This appeal is not an appeal of a Forest Practices Act moratorium or any
related matter.
The hearing examiner is required to report to Council annually. "The purpose of such
review is to enable the city council and the hearing examiner to coordinate city land use policy
and philosophy." ECDC 10.35(G). Such coordination would be important for issues regarding
stormwater regulations so that decisions may be legislatively informed, and not merely staff or
hearing examiner driven. I cannot find any record suggesting the hearing examiner has been
reporting annually to the City Council.
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1 found 19 of the U.S. Environmental Protection Agency's 121 priority pollutants present in the
2 runoff from Seattle streets." Per the manual at p. 49, the runoff from roads includes oil and
3 grease, PAH's, lead, zinc, copper, cadmium, sediments and salts. Residential runoff includes the
4 same road -based pollutants and herbicides, pesticides, nutrients from fertilizers, bacteria and
5 viruses from animal waste.
6 Edmonds Comprehensive Plan, 2020, p. 132: "and runoff in all storm events carries a variety of
7 pollutants."
8 (3) The contaminated stormwater (fact 2) can seriously pair beneficial uses.
9 (per the manual at page 49: "All of these contaminants can seriously impair beneficial uses of
10 receiving water.")
11 (4) Many of these contaminants can impair drinking water supplies.
12 (For example, referring to Total Suspended Solids, the manual states at page 53: "These
13 sediments can destroy the desired habitat for fish and can impact drinking water supplies.")
14 See also PFAS (fact 7).
15 (5) Stormwater MR's and BMP's do not clean all contaminants from stormwater or fully
16 protect beneficial uses.
17 From the manual at p. 52: "Ecology understands that despite the application of
18 appropriate practices and technologies identified in this manual, some degradation of urban and
19 suburban receiving waters will continue."
20 Also, from the manual at p. 41: "Application of appropriate Minimum Requirements
21 (MRs) and Best Management Practices (BMPs) identified in this manual are necessary but
22 sometimes insufficient measures to achieve these objectives." The identified objectives are to
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comply with water quality standards and contribute to the protection of beneficial uses. The
identified water quality standards include WAC 173-200 (Water Quality Standards for
Groundwaters of the State of Washington).
(6) Stormwater infiltration can result in groundwater and soil contamination.
From the manual at page 162 "studies ... show mixed results in the effectiveness of vadose zone
filtration in protecting groundwater quality." "studies ... also indicate that filtered and adsorbed
pollutants accumulate in the vadose zone ... at concentrations that may require soil cleanup
activities." Also the manual, p. 163.
From the manual at page 723: One condition that can limit the use of infiltration is the potential
adverse impact on groundwater quality.
(7) PFAS are a group of thousands of synthetic perfluoroalk. l�polyfluoroalkyl
substances, are highly mobile, do not break down in the environment, and some bioaccumulate
(Per the DOE web site "these manufactured chemicals never disappear from the environment, a
which is why they're called `forever chemicals.' Some of them build up in people and the m`
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environment... PFAS are water soluble and highly mobile. They can easily contaminate
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groundwater and can be hard to filter out. Since these substances don't break down naturally,
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our exposure to PFAS could continue for hundreds or thousands of years." (emphasis added). a
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(An RCW definition of PFAS is found at RCW 70A.350.010(8)). See also HAS CAP. Ecology
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MTCA.
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(8) Health effects of even very small levels of some PFAS forever chemicals are serious
and include liver toxicity, cardiovascular effects, immune suppression, developmental toxicity,
reproductive toxicity, thyroid disruption, cancer.
EPA draft toxicity analysis released November 16 include "EPA's proposed approaches to the
Derivation of a Draft Maximum Contaminant Level Goal for PFOA in Drinking Water", "EPA's
proposed approaches to the Derivation of a Draft Maximum Contaminant Level Goal for PFOS
in Drinking Water", EPA's Draft Framework for Estimating Noncancer Health Risks Associated
with Mixtures of PFAS, EPA's Analysis of Cardiovascular Disease Risk Reduction as a Result
of Reduced PFOA and PFOS Exposure in Drinking. (Emphasis Added).
See also Appendix 7 of PFAS CAP p. 310, The CB Health Project, Ohio River Valley, 2005-
2012 in PFAS CAP p. 313, Primary health endpoints of concern PFAS CAP p314-316.
(9) Drinking water is a significant source of human PFAS exposure.
PFAS CAP p. 333.
(10) PFAS has been detected in urban stormwater in the Puget Sound area.
PFAS CAP p. 42. Also, "stormwater disposal into injection wells may act as another potential
source of groundwater contamination." PFAS CAP p. 226.
(11) PFAS travel well in groundwater.
PFAS CAP p. 225-227. "Many PFAS transport easily through groundwater and surface water
due to their high solubility. Dispersion, diffusion, and advection will all affect the movement of
PFAS in water, but generally, the compounds will follow the water flow. It is estimated that the
oceans are the main final sink for PFAS (Armitage, et. al., 2006)." PFAS CAP p. 226.
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1 (12) PFAS persist in groundwater.
2 PFAS CAP p. 227. "Soil contaminated with PFAS may remain a low volume source of
3 contamination for ground and surface water for a long time, complicating hazard assessment."
4 (13) Drinking water sources across Washington have been contaminated by PFAS.
5 See PFAS CAP p. 339. Sites include private wells near Naval Base Kitsap, private and municipal
6 wells near Naval Air Station Whidbey Island, Fairchild Air Force Base, and Joint Base Lewis
7 McChord, the Moses Lake Well field Superfund site, and the Lower Issaquah Valley Aquifer.
8 PFAS CAP p. 340.
9 (14) PFAS Cleanup is estimated to cost millions
10 PFAS CAP p. 46. "The total cost of remediation for PFAS contaminated groundwater remains
11 unknown, because there are no completed cleanups of PFAS contamination in the U.S." PFAS
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13 (15) HAS has been detected in urban stormwater in the Puget Sound area. a
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15 (16) The City may adopt greater stormwater protections than those provided by the 04
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17 A jurisdiction may apply "more stringent requirements" to meet locally established goals, state �-
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18 water quality standards or other established objectives. The manual at p. 42. This can be seen in
19 practice in the Snohomish County Code, SCC 30.62C.330(2) which prohibits UIC wells in
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20 Wellhead Protection Areas (among other prohibited uses).
21 (17) The City is authorized to remedy prior errors.
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1 "If it is found that, after implementation of BMP's advocated in this manual, beneficial
2 uses are still threatened or impaired, then additional controls may be required." The manual at p.
3 55.
4 (18) Critical are codes to not contain M provision for aquifer recharge areas.
5 (This has already been conceded in item 3 of the stormwater engineers memo dated November 3,
6 2021.)
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IV. Legal Argument
9 Here is the see spot run version. The City and the Hearing Examiner should be looking
10 for a probable significant adverse environmental impact. Loss of a municipal drinking water
11 source and flooding of home and property are both significant and adverse environmental
12 impacts of the proposed code changes.
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14 A. Process Issues.
15 I request that the SEPA checklist from the City of Seattle 2021 stormwater code update
16 be included in the record. The Seattle process included a draft shared for public comment in
17 April of 2020, revised and presented again for public comment in November of 2020. At the time
18 the Seattle checklist was prepared, in December 2020, a third round of public review was
19 expected in 1Q 2021, and the checklist indicated that BAS would be updated in connection with
20 the work. In all, Seattle residents and interested agencies had about a year to participate in the
21 drafting of the code, and months for evaluation of environmental impacts.
22 In contrast, Edmonds' residents and interested agencies had just four days to review and
23 address the proposed code at the public hearing. Two of those days were Saturday and Sunday.
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1 There was no planning board review, though development regulations must go through the
2 planning board, and the proposed code was apparently sent to reviewing agencies prior to SEPA
3 review in violation of WAC 197-11-230.
4 Many of the errors were admitted in Mr. Taraday's comments at the conclusion of the
5 public hearing on 9/28/2021, including but not limited to the failure to provide the SEPA to the
6 Council. SEPA is for decisionmakers. WAC 197-11-535(1), 197-11-535(4), 197-11-030(b) and
7 (c) and (f). Also, Taraday admitted that SEPA must be provided at the earliest possible stage in
8 the process. WAC 197-11-055(2), WAC 197-11-030(d). He even mentioned avoiding the
9 "snowball" effect, so that there is not too much momentum behind a decision before
10 environmental consequences of the decision are known. City Council minutes September 28,
11 2021 p. 15.
12 Perhaps based on public comments, the September 21 public hearing was continued to
13 September 28. This would have given the City a chance to provide the SEPA materials for the
14 public and the Council. The City did not do so, causing one Councilmember to ask "if the
15 Council would ever see the SEPA. Mr. Williams (public works Director) noted it was only a
16 checklist. Mr. Richardson (stormwater engineer) said a SEPA checklist was prepared, and the
17 SEPA DNS ... could be included as an attachment when the code comes back to Council for
18 final adoption." Minutes, 9/28/2021, p 12 (emphasis added).
19 Repeat: Staff replied it "was only a checklist" and offered to include only the "DNS"
20 when "the code comes back to Council for final adoption."
21 Once the hearing opened, one citizen pointed out that SEPA is for the public as well.
22 Cass, Id. p. 12. (The GMA also seeks public participation. RCW 36.70A.020(11), RCW
23 36.70A.140, RCW 36.70A.035 and WAC 365-195-600.) Overall, public participation was
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1 deliberately avoided, in violation of WAC 197-11-030(d) and (f). At one point in the Council
2 presentation on 7/20/21, the stormwater engineer stated that since the changes were relatively
3 non -controversial, they did not think a "ton" of public input was needed. (I cannot find the
4 comment in the minutes, but it is in the tape. At about 41:45 he states something like the four
5 changes he presented seem "relatively non -controversial so we didn't think we needed tons of
6 public outreach.")
7 At the Council presentation on 7/20/2021, the presenter, the city stormwater engineer,
8 repeatedly mentioned that after he had Council input, he would then do SEPA. (Again, I cannot
9 find the comments in the minutes, so citations are to the video). At around 32:30 on the video we
10 hear something like "we do have to run that Commerce review and that SEPA review so the big
11 goal is to flesh out those issues before we go through that more formal process." At about 41:16,
12 staff seeks buy in from Council and then will do SEPA with something like he is "open to
13 guidance and direction as you see fit, then we plan to take that revised version out for the more
14 formal review and adoption process that will include the Department of Commerce and SEPA.
15 He then concedes something like "we will have public comments at the SEPA and at the public
16 hearing which we will have before adoption."
17 Another commenter pointed out that SEPA is also for affected agencies. Barnes, General
18 Manager at Olympic View, Id. at p. 14. He did not say that the failure violates at least the
19 following: WAC 197-11-502(1) and (3)(a), WAC 197-11-030(2)(b) and (2)(c) and (2)(f) and
20 (2)(g), but it does.
21 Two more errors are conceded when Mr. Taraday then states an incorrect legal standard
22 supporting the DNS, that is also factually inaccurate. "Mr. Williams said these changes actually
23 have a positive environmental impact which is why the DNS is justified." Id. That is not the
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1 standard for a threshold determination. WAC 197-11-330(5). "A threshold determination shall
2 not balance whether the beneficial aspects of the proposal outweigh its adverse impacts, but
3 whether a proposal has any probable significant adverse environmental impacts under the rules
4 stated in this section. For example, proposals that designed to improve the environment, such as
5 sewage treatment plants or pollution control requirements, may also have significant adverse
6 environmental impacts."
7 The statement is also factually inaccurate, as not all proposed changes in the code are
8 environmentally for the better. Increasing the likelihood of contaminating a municipal drinking
9 water source or flooding my neighborhood are unlikely to be considered improvements. (See
10 below).
11 Another deficiency was pointed out in that environmental review was not integrated with
12 the code update process as required. WAC 197-11-055(1) and WAC 197-11-030(2)(e). "Mr.
13 Richardson [the stormwater engineer] answered the SEPA process is a separate process and is
14 not part of the public hearing. Id. p. 12. He was corrected by a member of the public when the
15 public hearing opened: "The Council is making a decision, and it is totally inappropriate to for
16 staff to say it is a separate process ..." Scordino, Id. at p 13.
17 Another error relates to the timing and extent, if any, of review by the SEPA responsible
18 official. WAC 197-11-330.
19 The SEPA checklist was dated Friday, Sept. 17, the date that the packet is posted for the
20 Sept. 21 Council meeting and public hearing. (Please recall, however, that the checklist was not
21 included in the packet). Although the stormwater engineer indicated at the hearing that SEPA
22 had been completed, the threshold determination is dated the next day, after the public hearing,
23 Sept. 22. The proposed code was presented to Council prior to the environmental review.
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1 WAC 197-11-330(1)(a) requires that the SEPA responsible official review the checklist.
2 When was that done? Overnight between the September 21 Council meeting and the September
3 22 issuance of the DNS. In the old days, the responsible official would independently evaluate
4 the information, and make comments on the checklist. That appears to still be required by WAC
5 197-11-330 (1)(a)(i): "Independently evaluating the responses of any applicant and indicating the
6 result of its evaluation ... on the environmental checklist, if used."
7 The official must determine if the proposal is likely to have a probable significant
8 adverse environmental impact. WAC 197-11-330(1)(b). (Emphasis added). This was obviously
9 not done, and both staff and the attorney seemed to believe that as long as some of the effects of
10 the proposal were beneficial, a DNS was warranted. As noted above, this is not the correct
11 standard.
12 The official must consider mitigation measures which the agency or the applicant will
13 implement as part of the proposal including any mitigation measures required by required by
14 development regulations, comprehensive plans or other existing environmental rules or laws
15 WAC 197-11-330 (1)(c). Had such a review occurred, the SEPA responsible official would
16 likely have noticed the lack of a CARA regulation, conflicts with (and omissions) in the
17 comprehensive plan, and laws including the antidegradation WAC. This is a tall ask for an
18 "overnight" threshold determination. WAC 197-11-330(1)(c).
19 More "snowball" effect! Prior to the Sept. 21 public hearing, staff pushed for adoption of
20 the code as presented. This "done deal" approach to SEPA violates WAC 197-11-055(2)(c),
21 WAC 197-11-030(2)(f), WAC 197-11-030(2)(g). Even one of the citizen's who provided
22 comment that evening stated that it was now too late for meaningful public comment: "Tonight
23 the City is conducting a hearing on the stormwater code ... It is too late to make major
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1 adjustments at this point. This is one code where the City can make real progress ..." Seitz,
2 Minutes of 9/21/2021, p. 10.
3 The public works director, at about 1:22:50, stated something like "we should move
4 ahead with these" and "we'd need a similar process to make new changes" and "I can't see
5 waiting to do these". (I could not find this in the minutes, so the reference is to the video). In
6 contrast, WAC 197-11-060(3)(iii) states that proposals should be described in ways that
7 encourage considering and comparing alternatives.
8 Worse was "we could do public outreach once we adopt these."
9 Repeat on that "we could do public outreach once we adopt these."
10 The stormwater engineer concurred, saying something like "there is no benefit to not
11 implementing these now". (Again, I think these comments are from the video as noted above.)
12 The minutes of September 21, 2021, p. 14 present a slightly different version, but still include
13 Mr. Williams' preferred order of events: "Once the changes are adopted, it would be appropriate
14 to do public outreach ..." . Also "He summarized it was justified and the right thing to do and he
15 would hate to slow the process at this point ...". Id.
16 Anyway, back to the duties of the SEPA responsible official. WAC 197-11-330(3). The
17 SEPA official must consider, among other things, whether the proposal may have a significant
18 impact in one location but not in another (perhaps in a wellhead protection area or saturated
19 basin), quantitative effects, that several marginal impacts taken together may result in a
20 significant impact (a few infiltration wells may be OK, more may not), for some proposals it may
21 be impossible to forecast the impacts (hint: perhaps a precautionary approach), that a proposal
22 may to a significant degree affect environmentally sensitive areas (municipal drinking water
23 supplies), endangered or threatened species and their habitat, conflict with laws for the protection
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1 of the environment (especially the antidegradation WAC), establish a precedent for actions with
2 significant effects involving unique or unknown risks to the environment (PFAS forever
3 chemicals), or may affect public health or safety (drinking water & flooding). Most of these
4 determinations were obviously not considered. (See below).
5 As noted above, about the one thing that shall not be done, considering whether the
6 beneficial aspects of a proposal outweigh the adverse impacts, appears to be the one thing that
7 was done.
8 The decision must also be based on information reasonably sufficient to determine
9 impacts. WAC 197-11-335. The City did not even mention the drinking water source, or the
10 constant flooding of my neighborhood, or the effect of the proposed changes. The City's options
11 when faced with insufficient information do not include issuing a DNS.
12 The withdrawal of the DNS gave the City a chance to correct some of the errors, but no
13 Only the failure to notify Olympic View was corrected, and that apparently reluctantly.
14 "Planning staff inadvertently omitted a single check mark which ensures OVWSD received
15 proper notice. The error has been corrected, and the SEPA re -issued with proper notice to
16 OVWDS." The "Snowball" effect remains, as do the other errors and omissions.
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18 B. The proposal changes the code to allow contamination from pollution generating
19 surfaces to be discharged to ground water in circumstances where such discharge is
20 presently prohibited without any environmental identification or evaluation of the impacts,
21 no consideration of alternatives, and no mitigation.
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23 When a city fails to even identify an obvious environmental impact of a proposal, it
24 cannot claim to have adequately completed a SEPA review of the impact, or determined the
25 impact to be "not significant" or "not significant as mitigated".
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1 To date, the City has not acknowledged the above impact, much less evaluated it,
2 explored alternatives, or considered potential mitigation. Anyone can see, however, that by
3 inserting the word "hard" into the text of the existing code, ECDC 18.30.060(6)(d), that section
4 of code would no longer prohibit whatever discharges from pollution generating pervious
5 surfaces that section now prohibits. This makes the code less protective than the current code,
6 and is an adverse impact.
7 The city knows it cannot make the code less protective than the current code. The City
8 Council approved minutes from July 20, 2021 at page 5, indicate "City provisions cannot be less
9 stringent than Ecology standard and cannot be less stringent than previous version (without
10 Ecology approval)." The slide containing that text appears in the September 21 Council packet at
11 page 464, though I seem to recall that slide was "accidentally" flashed at the hearing, then
12 skipped. The slide appears in the Council packet for September 28, but the content "City
13 provisions cannot be less stringent than Ecology standard and cannot be less stringent than
14 previous version (without Ecology approval)" is removed.
15 Should we construe that as an admission? Yes.
16 Has Ecology granted permission to make the code less protective? Unlikely. The
17 antidegradation WAC would not permit this proposed change. WAC 173-200-030.
18 In any event, the change obviously creates adverse environmental impacts because it
19 allows the discharge of contaminated stormwater from pollution generating pervious surfaces to
20 groundwater in circumstances where it was previously not permitted. The significance of the
21 impact is enormous since the code definition of pollution generating pervious surfaces
22 specifically mentions artificial playfields (which could include tire crumb rubber fields),
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I cemeteries (presumably including the one located within feet of my property), and parks (which
2 could include off lease dog runs such as the one at Madrona).
3 There would be few properties (or species) in Edmonds that would escape the impacts of
4 this change. Deliberately discharging contaminated water to ground water would have significant
5 adverse environmental impacts on (1) any property near the site, (2) any property near a polluted
6 area near the site, (3) any property in a landslide hazard area, (4) any property where the
7 contaminants can reach a stream, lake or Puget Sound, and (5) any property within or near a
8 municipal drinking water source. As one person mentioned to me, all Edmonds is a critical area.
10 C. The SEPA fails to identify and evaluate the impacts of the proposal on Olympic Views
11 drinking water supply.
12
13 Really? The stormwater code, in ECDC 18.30.000(A)(2), states one purpose of the code
14 is to "minimize degradation of groundwater quality." WAC 365-190-100 includes similar
15 protections specifically including wellhead protection areas.
16 When a city fails to even identify an obvious environmental impact of a proposal, it
17 cannot claim to have adequately completed a SEPA review of the impact, or determined the
18 impact to be "not significant" or "not significant as mitigated".
19 The SEPA documents do not even mention the Deer Creek water source adjacent to the
20 City that provides over a third of the drinking water for Olympic View customers. (Note also that
21 most of the contribution area for the source is in Edmonds, SEPA does not stop at the border!).
22 The documents do not mention the Deer Creek Wellhead protection area, delineated, and
23 updated and re -delineated by Olympic View's Geotech, or that the aquifer supplying the Deer
24 Creek source has been designated as "highly vulnerable" to contamination."
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1 This is an impossible omission. The treatment plant for the Deer Creek water supply was
2 built in 1998, and used, maintained and upgraded since. See Olympic View Wellhead Protection
3 Plan 2018. The Madrona fiasco, in which the Edmonds School District was allowed to directly
4 inject untreated stormwater to a location just above the aquifer, created not only a media stir but
5 the waste of millions of dollars on experts and attorney fees. (Those of us unlucky to live within
6 both the School District and Olympic View paid, at lot, for both sides).
7 In addition to all the usual stormwater contaminants that can find their way into drinking
8 water such as mercury, lead, zinc and a variety of cancer -causing compounds, PFAS has been
9 detected in stormwater in the Puget Sound area, and in drinking water supplies around the State.
10 During the Madrona fiasco, the State acknowledged the need to protect the Deer Creek
11 aquifer from stormwater contamination:
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"Olympic View is required to develop a Source Water Protection Plan
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and include it as Part of the Water System Plan (citation omitted). We
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approved Olympic View's most recent plan in August of 2017. The plan
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identified storm water as the most likely source of contamination to
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affect the Deer Creek Source."
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18 Letter, Garin Schrieve, P.E., Director Office of Drinking Water, Washington State Department
19 of Health, to Lynne Danielson, Olympic View Water & Sewer District, April 19, 2018.
20 The City's "pretending" must stop. The SEPA must admit the water source exists. Then
21 we can talk about implementing protections. WAC 365-196-830, WAC 365-190-080, WAC 365-
22 190-100.
23 Note that Snohomish County simply prohibits stormwater wells, among other uses
24 ranging from landfills to radioactive waste facilities, in wellhead protection areas. SCC
25 30.62C.330. Simple!
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1 To the best of my knowledge, only Edmonds refuses to even acknowledge an existing
2 drinking water source. (Similarly, Olympic View's Wellhead protection area in Snohomish
3 County jurisdiction, but also near Edmonds, is not identified in the SEPA. It should also be
4 identified and protected, since Olympic View plans to go out for bids to construct a drinking
5 water well in that area in February 2022.) RCW 36.70A.070(1) provides that "the land use
6 element shall provide for the protection of the quality and quantity of groundwater used for pubic
7 water supplies. We appear to be out of compliance, as our land use element does not contain any
8 such provision.
9 In addition to the change discussed in item B above, the Deer Creek water source will
10 also be negatively impacted by the proposed changes to the Edmonds Way drainage basin. Water
11 previously discharged to the City system and Puget Sound will be discharged into the ground
12 within the Deer Creek wellhead protection area, risking both potential contamination, and the
13 alteration of ground water patterns.
14 It is interesting to note that both experts involved in the Madrona fiasco, Robinson Noble
15 for Olympic View and Pacific Groundwater Group for the School District seemed to agreed that
16 existing City of Edmonds regulations will not protect the source.
17 "In the last paragraph of this section PGG recommends that the
18 City of Edmonds revise its CARA designations to include the Deer
19 Creek Springs water source. This implies that PGG believes the spring
20 source may be at risk and that the City of Edmonds current regulations
21 are inadequate to protect this drinking water source."
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23 Letter from Max Wills, Hydrogeologist, Robinson Noble, to Lynne Danielston, Olympic
24 View, dated June 8, 2018.
25 The November 3, 2021 memo from the City concedes that "it is true the City's critical
26 area code does not contain any provisions for critical aquifer recharge areas." The City states
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1 they might fix that in 2024: "However, this issue has been flagged for the next critical area
2 ordinance update due in 2024."
3 Obviously, if the City waits until 2024, the source could be contaminated. RCW
4 36.70A.130(1)(a) states that comprehensive plans and development regulations shall be subject
5 to ongoing review and evaluation. (See also RCW 36.70A.130(1)(b) and (1)(c)). WAC 365-190-
6 040 indicates that the review and update must include public participation. There are even
7 provisions in WAC 365-190 calling particular attention to wellhead protection areas. WAC 365-
8 190-080, WAC 365-190-100(4).
9 Neither Robinson Noble or Pacific Groundwater Group recommend that the City wait
10 until 2024 to update CARA designations. I can find no authority allowing the City to wait, and
11 no excuse for why it was not designated sooner. The obligation under laws, including but not
12 limited to SEPA, GMA and WAC, to protect drinking water sources and groundwater appears to
13 be absolute. The City has conceded in its memo of November 3, that the NPDES permit also
14 requires protection of groundwater.
15 The antidegradation policy would not permit this omission. WAC 173-200-030(2)(a)
16 provides that "Existing and future beneficial uses shall be maintained and protected and
17 degradation of groundwater quality that would interfere with or become injurious to beneficial
18 uses shall not be allowed."
19 Further section 2(c) provides "Whenever groundwaters are of a higher quality than the
20 criteria assigned for said waters, the existing water quality shall be protected, and contaminants
21 that will reduce the existing quality thereof shall not be allowed to enter such waters" without an
22 overriding consideration of public interest and pretreatment with AKART. The City is that the
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1 existing quality of the waters is "super clean." See comments of then Public Works Director Phil
2 Williams for the My Edmonds News article regarding the Madrona fiasco.
3 This whole situation gets worse when you realize that in ECDC 18.30.060(6)(c) which
4 used to refer to Chapter 2 of volume V now appears to refer to a non-existent section, Chapter 4-
5 1 of Volume III. One might think this might be accidental, but it is coincidental that the deleted
6 reference to Chapter 2 of volume V provides "the project proponent must determine the natural
7 receiving water for the stormwater drainage from the project site (ground water, wetland, lake,
8 stream or salt water). This is necessary to determine the applicable treatment menu from which
9 to select treatment facilities." The section also provides that "the local government should verify
10 whether any type of water quality management plans and/or local ordinances have or regulations
11 have established specific requirements for that (those) receiving waters. Examples of plans to be
12 aware of include:... Ground water Management Plans (Wellhead Protection Plans): To protect
13 ground water quality and/or quantity ..."
14 Perhaps it is not a coincidence.
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16 D. The SEPA fails to identify and evaluate the impacts caused by the fact that the proposal
17 violates several laws.
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19 The most important violation of law is the violation of the state antidegradation standards
20 for groundwater. WAC 173-200-030, RCW 90.48.520. There are also other groundwater
21 standards that will be violated, and the state has set standards for surface water as well. The
22 NPDES permit clearly states that it does not authorize violation of ground water standards.
23 Section S4. Indeed, the permits do not excuse compliance with any law, or allow activity that
24 endangers human health or the environment. The City's permit could be revoked.
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1 The failure to protect the municipal drinking water source also violates GMA. RCW
2 36.70A.070, WAC 365-196-904. Further GMA violations include, but are not limited to the
3 City's failure to update its BAS (the one on the City web site is dated 2004) and CARA
4 regulations. As conceded by the City, the City's CARA code contains no content protecting
5 drinking water sources, and the City does not intend to correct that problem until 2024. WAC
6 365-190-030 defines CARA as including area where an aquifer that is a source of drinking water
7 is vulnerable to contamination that would affect the potability of the water.
8 The City has also admitted that it cannot make the code less protective, yet it is trying to
9 do just that. This likely violates the entire NPDES and MTCA schemes. (303(b), 303(c), RCW
10 90.48, WAC 173-220, WAC 173-216).
11 The City states it is not trying to prevent flooding of private properties in this code
12 update, but that is a purpose stated in the code, and the GMA. (See above). Further, the GMA
13 requires that the land use element shall review drainage, flooding & storm water runoff in the
14 area and nearby jurisdictions. RCW3 6.70A. 170.
15 The City has not updated the stormwater element of the comprehensive plan since July
16 2010.
17 The City has violated the Clean Water act section 402, and WAC 365-190 includes safe
18 drinking water act protection for Wellhead protection areas.
19 The reference in 18.30.060(2) that previously referred to Chapter 4 of volume I, (BMP
20 and Facility Selection Process for permanent Stormwater Control plans steps I — VII) and chapter
21 2 volume V, Treatment Facility Selection Process now refers to a section that no longer exists.
22 As with the change to "hard" surfaces discussed above this change also reduces protections in
23 the code.
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2 E. The SEPA fails to identify and evaluate the impacts caused by the fact that the proposal
3 will flood my property, and others similarly situated.
4
5 From the time we bought the house, I became aware of drainage issues in the
6 neighborhood. The lone infiltration facility at the South of 107th frequently flooded, my kids
7 grew up thinking that riding bikes through a flooded cul-de-sac after storms was an ordinary
8 activity, and, as commissioner for Olympic View I had to deny several requests to simply unlock
9 the manhole cover and allow the water to drain to the Forest Glen sewer lift station. A second
10 infiltration facility was added at the West end of 2371h, which reduced some of the problems,
11 though I still see a City vactor truck in the area after storm events.
12 In 2016, the neighbors from the Forest Glen neighborhood to the South filed a SEPA
13 appeal of the Woodway Court II development, PLN 20160023, that highlighted continuing
14 drainage issues. The hearing examiner imposed a little rat mitigation (which actually failed, but
15 thanks for trying) but offered no relief from the drainage impacts. My property has suffered as a
16 result.
17 During construction, the project managed to flood our neighborhood so severely our soils
18 were saturated in the middle of an August dry spell, the yard and garden were watered from
19 below for over a week, and a stream emerged from a property on the North half of 107th, and ran
20 for several days. We were all lucky that the stream emerged at a location where the water could
21 run into the street, not a house, and then to the two infiltration facilities. I learned of the events as
22 a commissioner for Olympic View when the stream was called in as a suspected water leak,
23 Olympic View investigated and determined it was not a leak. Follow up linked it to a
24 development project in my area, though I have struggled to obtain records from the City. I do
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1 recall some unusual construction practices at the Woodway Court II project, as I recall them
2 installing some underground facilities, then coming back later and digging them up.
3 Since that saturation event, and associated development, my property no longer properly
4 infiltrates flows from storms. The property now ponds in several areas, and water enters the
5 garage. The garage door likely won't dry out until spring.
6 To combat this menace I have dug ditches, attached long black tubes to the bottom of
7 downspouts, and purchased a couple of water dams since the "free sandbag" events at the public
8 works building never seem to coincide with when I need them.
9 The proposed change to eliminate direct discharge from the Edmonds Way basin to Puget
10 Sound, will increase groundwater flows to my property. I cannot afford that. When combined
11 with the housing commission recommendations to increase density in all residential areas of
12 Edmonds, the situation is dire.
13 Instead, at the hearing we get statements that staff is not really trying to prevent flooding
14 of private properties in this code, but maybe we can look at that when we update our stormwater
15 comprehensive plan (last updated July, 2010(?)). Staff would worry about new flooding of
16 downstream properties if they owned and lived on one. Staff has not yet noticed that ECDC
17 18.30.000(A)(3) states that one purpose of the code is to minimize damage to adjacent and other
18 downstream private properties from erosion or other impacts from stormwater runoff. The GMA
19 has similar concerns to prevent flooding. RCW 36.70A.070. Our comprehensive plan even
20 mentions the concern at p. 132. At page 133 we see "minimize property damage", "preserve and
21 enhance critical areas", "comply with applicable local, state and federal regulations."
22 Staff erroneously states in its memorandum that groundwater protection areas "actually
23 need recharge in order to maintain adequate aquifers and provide the drinking water supply
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1 needed." A proper SEPA inquiry would reveal that the Deer Creek aquifer does not have
2 recharge issues, but rather excess flow issues. Regarding the Deer Creek aquifer, (1) Olympic
3 View's Water right limits withdrawals to much less than the capacity of either the aquifer or the
4 filtration plant capacity, and (2) when Deer Creek receives too much water too fast, the filtration
5 plant has to shut down. In addition, excess water poses a threat of altering the patterns in the
6 aquifer.
7 The memo continues, "it is actually required by Ecology that stormwater codes require
8 the use of LID BMP's as the first priority to manage stormwater ...".
9 No, Ecology does not require infiltration everywhere. The City knows this as later the
10 City admits "The City does have the ability to remove the requirement for infiltration in
11 particular areas of concern, as has been done with in the geotechnically sensitive ESHLA area
12 within Edmonds." Had the City done an appropriate SEPA, and not avoided public input, there
13 would be other areas where the code recognized infiltration is not advisable: including my basin,
14 and those that can drain to it (Edmonds Way basin).
15 In the memo, staff then attempts to justify flooding my property with groundwater by
16 reciting the "mimic natural processes" language that is causing so much damage to the Puget
17 Sound area. In natural conditions, much of the stormwater in natural conditions was handled by
18 trees, not infiltration. It was also not contaminated either.
19 Appendix 1 in the NPDES permit recognizes that "mimic" does not equal "infiltrate", but
20 also includes filtration, storage, and evaporation and transpiration from emphasizing use of on-
21 site natural features. A real SEPA process might have allowed staff to "hear" the
22 Councilmembers who asked about tree retention and the use of trees as stormwater
23 infrastructure. But no, the "done deal" approach to SEPA precluded that.
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1 Staff concludes the memo with "Without infiltration as a tool for managing stormwater,
2 the challenges to recover local streams, restore the Edmonds Marsh, or reduce stormwater
3 flooding each becomes much more difficult, and nearly impossible to achieve all at the same
4 time." In reality, we are not achieving our goals due to a lack of any serious effort by staff to
5 listen to the citizen's, who have told them over many years exactly how to improve the code to
6 minimize further damage, and what improvements are needed to restore natural assets.
7 The code change to making existing homes pay to connect to the City system combines
8 with this change in a nasty way. First, the City floods us, now they intend to charge us when we
9 try to hook to the City system. That is a clever little taking of private property without just
10 compensation.
11 Staff erred in not evaluating the environmental impacts of switching the Edmonds Way
12 basin from direct discharge to infiltrate to an area that already has excess stormwater (and, as
13 noted above, a municipal drinking water supply). The memo states "City staff generally do not
14 wish to preclude any area from infiltrating if not absolutely necessary ... "
15 It is absolutely necessary.
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IV. Summary
18 The City should settle with me, and we should put a proposal to the Council and the
19 public with our joint good faith recommendation. (Admittedly, neither party will be pleased with
20 the proposal, and Council and the public might change absolutely everything agreed, but at least
21 Council and the public could have a real crack at it instead of a "done deal" proposal with no real
22 consideration of environmental impacts).
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1 Based on our prior discussion, I request and will agree to a public meeting for any future
2 settlement discussions, although I understand that settlement discussions are ordinarily
3 confidential.
4 If we do not settle, then this gets delayed, either by my further appeal or by an EIS. (Or,
5 the hearing examiner makes a decision that should be made by a properly informed Council,
6 supported by public input and a proactively helpful staff.)
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BEFORE THE HEARING EXAMINER FOR THE CITY OF EDMONDS
LORA PETSO,
Appellant,
vs.
CITY OF EDMONDS,
Respondent.
File No. PLN 2021-0052
BRIEF OF RESPONDENT
CITY OF EDMONDS IN SUPPORT OF
AFFIRMING THE CITY'S
DETERMINATION OF
NONSIGNIFICANCE
I. Introduction and Relief Requested
This appeal asks the Hearing Examiner to consider whether the city properly
issued a SEPA determination of nonsignificance with respect to the city's proposed
updates of its stormwater management code and addendum to bring those documents
into compliance with the 2019 Western Washington Phase II NPDES permit. The
evidence at the hearing will show that these updates do not have a significant adverse
effect on the environment, that the SEPA official properly performed his duties in
reviewing the SEPA checklist and supporting documents, and that the DNS should be
affirmed.
LIGHTHOUSE LAW GROUP PLLC
BRIEF OF RESPONDENT CITY OF EDMONDS IN boo Stewart St. #400
FAVOR OF UPHOLDING DNS - 1 Seattle, WA 98ioI
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II. Facts
A. Background Facts
The Department of Ecology develops and administers Clean Water Act National
Pollutant Discharge Elimination System (NPDES) municipal stormwater permits in
Washington. The Western Washington Phase II permit requires certain local
governments, including the City of Edmonds, to manage and control stormwater runoff
so that it does not pollute downstream waters. The Western Washington Phase II permit
is periodically updated and re -issued. For example, the previous Western Washington
Phase II permit was issued on August 1, 2012, made effective on August 1, 2013, and
expired, after being extended, on July 31, 2019. The current permit was issued on July 1,
2019, made effective Aug. 1, 2019, and expires on July 31, 2024.
These periodic municipal stormwater general permits require local governments,
like the City of Edmonds, to implement a stormwater management program and to
periodically update that program in a manner that is consistent with the then -current
general permit. For example, in 2016, the City of Edmonds adopted Ordinance 4044,
which is currently codified at chapter 18.3o ECDC, entitled "Stormwater Management."
Ordinance 4044 also authorized the director to "to develop, implement, and enforce
policies and procedures to administer and enforce this chapter, such as the Edmonds
Stormwater Addendum." The adoption of that ordinance implemented the city's
stormwater management program for the purposes of compliance with the 2013 general
permit.
The issuance of each periodic municipal stormwater general permit carries with ii
a corresponding obligation on the part of each city regulated by the permit to update its
stormwater management program. The 2019 general permit had enough similarities to
the 2013 general permit that the Department of Ecology was able to publish redline
LIGHTHOUSE LAW GROUP PLLC
BRIEF OF RESPONDENT CITY OF EDMONDS IN
FAVOR OF UPHOLDING DNS - 2
boo Stewart St. #400
Seattle, WA 98ioI
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documents showing changes from the 2013 permit to the 2019 permit as well as changes
from the 2013 Appendix 1 to the 2019 Appendix 1. Those redline documents are linked
here as Exhibit A (permit) and Exhibit Ai (Appendix 1) to this Response. Under the
current 2019 permit, the City of Edmonds is required, no later than June 30, 2022, to
adopt and make effective a program that meets the requirements of Appendix 1 or
equivalent. The city is also required to adopt and make effective, no later than August 1,
2022, ordinances requiring source control BMPs. Adoption of the Proposal described
below would satisfy both of these requirements.
B. Facts About the Proposal
1. The Proposal — in general
To comply with its obligations to update its stormwater management program to
conform to the 2019 general permit, city staff have drafted proposed amendments to
chapter 18.3o ECDC (the "Code") and the Edmonds Stormwater Addendum (the
"Addendum"). The Code adopts the Stormwater Management Manual for Western
Washington (the "Manual"), as amended by the Addendum. For SEPA purposes, these
proposed updates to the Code, the Manual, and the Addendum, collectively, constitute
"the Proposal." Linked as Exhibit B to this Response is redline document showing how
the proposed amendments to chapter 18.3o ECDC differ from the version of chapter
18.3o ECDC that is currently in effect. The proposed amendments to the Addendum are
also shown in redline and are linked here as Exhibit Bi. The 2012 Manual is linked
here as Exhibit B2. The 2019 Manual is linked here as Exhibit B3. This appeal
concerns the determination of nonsignificance (DNS) that the city issued after
evaluating the Proposal along with a SEPA checklist (and supporting documents) that
city staff completed to describe the environmental impacts of the Proposal. The SEPA
checklist is linked here as Exhibit C. The DNS (corrected version, see below) is linked
BRIEF OF RESPONDENT CITY OF EDMONDS IN
FAVOR OF UPHOLDING DNS - 3
LIGHTHOUSE LAW GROUP PLLC
boo Stewart St. #400
Seattle, WA 98ioI
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here as Exhibit D. City staff hold the opinion that all aspects of the Proposal make
stormwater mitigation requirements within the City of Edmonds more stringent, and
therefore better for the environment, than the existing version of the code.
2. The Proposal — material change #i: Regulates new
connections of existing impervious surfaces as if they were
new impervious surfaces
These changes would close a loophole that currently could allow existing
impervious surfaces to be connected directly to stormwater systems without mitigation.
Under current codes, these new connections of existing impervious surfaces are
required to provide, in most cases, only a pipe capacity verification, with limited concern
for further downstream impacts. Given that new tight -lined storm drain connections,
and the associated reduction of natural evaporation, transpiration, and infiltration, can
generate all the same negative stormwater effects on downstream receiving waters as
new development or redevelopment, staff is recommending that such projects be
required to fully comply with mitigation requirements of the drainage code.
Historically, the city might receive applications for these types of projects only a
couple times a year. So, the impact of this change is not significant. This change is
considered to have an environmental benefit by maintaining existing infiltration that
could otherwise be lost through a proposed connection to a hard -piped system. The
code revisions will not increase the amount of water put into the ground. But they will
likely maintain the existing amount of infiltration. By keeping these flows from being
added to the piped system (without mitigation), the cumulative impacts over years or
decades will better protect receiving waters and preserve capacity in city drainage
systems.
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This code revision does not change permit fees, connections fees, or utility rate
charges required for a legal stormwater connection to the City system. The proposed
code revisions only change whether mitigation is required prior to connecting.
3. The Proposal — material change #2: Removes Edmonds
Way basin as a `direct discharge basin'
These changes only affect the applicability of stormwater mitigation
requirements to projects located within the Edmonds Way drainage basin. The
proposed code revision applies solely to water quantity requirements (ie., flow control
and LID requirements) and does not alter how water quality requirements are applied
any site.
City staff have noted that a WSDOT drainage line in SR-104 overflows into the
Edmonds Marsh when its capacity is exceeded. This overflow potential precludes the
Edmonds Way drainage basin from being eligible for direct discharge as outlined in the
Manual (ie., man-made outfall directly to the Puget Sound with adequate capacity for all
anticipated flows). Accordingly, staff have proposed removal of all exemptions
associated with the direct discharge status of this basin.
The proposed code change will require stormwater mitigation in this basin that is
not required today, resulting in better protection from flooding at and around the
Edmonds Marsh. These new mitigation requirements should reduce the frequency and
extent of overflows, which, in turn, keeps overflowing stormwater away from high-traffi
highway areas, which, in turn, reduces potential adverse impact on wildlife habitat
within the Marsh and surrounding areas.
Under current codes, projects in the Edmonds Way basin are required to assess
whether infiltration is feasible. If it is, projects must use infiltration for stormwater
mitigation. So, projects in this basin which have suitable conditions for infiltration
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would not be affected by these proposed code revisions. The proposed code revisions
will only affect projects that would already be required to detain stormwater (due to
unsuitable infiltration conditions on site) by increasing the quantity of water required to
be detained. These additional detention requirements should ameliorate the SR-104
overflow problem. These revisions are not anticipated to change the amount stormwaterI
entering the ground through on -site infiltration.
4. The Proposal — material change #3: Better protects
Perrinville Creek by (a) increasing the applicability of "retro-
fit" LID requirements and (b) increasing the flow control
standard for projects within the basin
These changes are specific to the Perrinville Creek drainage basin. They build
upon city efforts to restore a heavily impacted creek with well -documented problems
caused by previous urbanization of the watershed. These changes will increase
stormwater mitigation requirements for new development and redevelopment within
the Perrinville Creek drainage basin, resulting in better protection of the creek over a
span of years or decades. Impacts over the near -term will not be significant. More
importantly for the purpose of this appeal, these revisions will not have any impacts
beyond the limits of this specific basin. The appellant's address and all OVWSD
wellhead protection areas are located outside of this drainage basin.
5. The Proposal — material change #4: Re -ranks the LID
BMP list so that the Edmonds -specific detention BMP is used
before the "perforate pipe connection"BMP
This change makes a technical revision to achieve greater stormwater mitigation
across the City. It applies to cases where infiltration BMPs have already been
determined to be undesirable for one reason or another. The Ecology preferred BMP in
such cases is a "perforated pipe connection," which is a ten foot stretch of perforated
pipe within a tightlined system. The perforated pipe is intended to mitigate stormwater
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impact by allowing some of the piped stormwater to seep into the ground. The propose
code revisions make use of a detention tank BMP, to detain runoff in a designed system
at values which achieve greater stormwater flow reductions compared to the perforated
pipe connection BMP. The result of the proposed code revision will be twofold: 1) better
flow reduction in downstream receiving waters; 2) and less water being put into the
ground on sites where infiltration is unsuitable.
6. The Proposal — immaterial change *1: The addition of the
word "hard" to ECDC 18.30.o6o.D.6.d makes no substantive
change to the Code
The pending appeal is premised largely on a misunderstanding or
misinterpretation of the current and proposed stormwater codes, not on a proposed
material change to the Code. Appellant makes much of the addition of the word "hard"
to ECDC 18.30.o6o.D.6.d (see Appellant's brief at top of page 14). The revision of that
subsection reads as follows:
The discharge of untreated stormwater from pollution -generating hard
surfaces to ground water will not be authorized by the City except for
infiltration or dispersion of runoff through BMPs designed and
implemented per ECDC 18.3o and SWMMWW. Ad asseeiatedr eff must
be tf eated using On site Stef mwatef Management BAIPs designed te
V.,I,,me V and nl,.,,- tef r, V.,I,,me V of the C`WAiTAiTTNW;
thfough soils meeting the soil suitability efitefia in Chaptef 3 of Volume
rr�e 8NVA4 4WW
ECDC 18.30.o6o.D.6.d (proposed). The addition of the word "hard" here does not
change the application of the Code in practice. Staff note that the Manual, in both the
previous version (linked here as Exhibit B2) and the revised version (linked here as
Exhibit B3), which is proposed for adoption, includes the word "hard" in this same
location as ECDC 18.30.o6o.D.6.d. The Manual has not changed in this respect, and
this code section has been interpreted by staff to be consistent with the Manual's
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language. Accordingly, city staff does not intend for there to be any substantive change
resulting from the updated language. It is merely intended as a non -substantive
clarification to confirm that the Code and the Manual should be read consistently on
I this subsection.
As further evidence, staff note that both the Manual and proposed Code
definitions refer further to the same BMPs standards to be used in such cases. These
BMP standards, per the Manual and the Code, apply to the total of new plus replaced
hard surfaces. Therefore, the requirement is ultimately still applied only to the hard
surfaces of a project site, whether the word "hard" is omitted in this specific location or
I not.
7. The Proposal — immaterial change *2: The reference
made in ECDC 18.3o.o6o.D.6.c is a correct reference
Appellant claims that ECDC 18.30.o6o.D.6.c references a nonexistent section of
the Manual. Appellant appears to be misreading a strikethrough of the number 4 in the
redline version of this subsection. This mistake is understandable considering that, with
certain fonts, strikethrough marks can overlap with the horizontal portion of the
number 4. In fact, proposed ECDC 18.3o.o6o.D.6.c does not refer to Chapter 4-1 of
Volume III, it refers to Chapter 1 of Volume III: the chapter with guidance for choosing
BMPs.
C. Facts Related to both the City's Existing Stormwater Code/Addendum
and the Proposal
The city's stormwater regulations comply with the Department of Ecology's
requirements and do not remove any element of those requirements as prescribed in the
NPDES permit Appendix 1.
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All but one of the City of Edmonds' modifications to the existing stormwater
regulations make the city's stormwater management requirements more stringent than
the minimum Department of Ecology requirements.
The only element in the existing city stormwater regulations allowing any
deviation from strict compliance with Ecology requirements is within the Earth
Subsidence and Landslide Hazard Area (ESHLA), which is a well -documented
geotechnically hazardous area in Edmonds. Projects within this area are excluded from
infiltration requirements due to known safety concerns associated with infiltration in
such geotechnically sensitive areas based on well documented and scientifically
supported geotechnical conclusions. This provision is in the existing stormwater code
and is not proposed to be altered by the Proposal.
D. SEPA Procedural Facts
1. Procedural Timeline
The following is a list of milestones that relate to the city's SEPA threshold
determination process on the Proposal:
July 13, 2021: the Proposal is introduced to the parks and public works
committee.
July 20, 2021: the Proposal is introduced to the city council.
August 19, 2021: stormwater engineer provides the initial SEPA checklist (linked
here as Exhibit Ci) to the SEPA official for review.
August 24, 2021: the Proposal is provided to Department of Commerce.
September 14, 2021: SEPA official requests that more detail be added to the
SEPA checklist.
September 17, 2021: stormwater engineer submits revised SEPA checklist (linked I
here as Exhibit C) to SEPA official.
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September 21, 2021: Public hearing for code update held at city council meeting.
September 22, 2021: First DNS (linked here as Exhibit D1) is issued with
comment period ending on October 6, 2021, and appeal deadline of October 13, 2021
September 28, 2021: Continuation of city council public hearing from September
21, 2021 is held.
September 28, 2021: Comments from Bloom and Petso (linked here as Exhibit
E) are received.
October 12, 2021: City notified by OVWSD (linked here as Exhibit F) that it was
not directly notified of the SEPA determination.
October 15, 2021: SEPA determination is reissued (linked here as Exhibit D),
notifying OVWSD with comment period ending on October 29, 2021, and appeal
deadline of November 5, 2021.
Fi).
October 28, 2021: Petso comments on reissued DNS (linked here as Exhibit Ei).
October 29, 2021: OVWSD comments on reissued DNS (linked here as Exhibit
November 3, 2021: Staff respond to Petso (linked as Exhibit G) and OVWSD
(Exhibit Gi).
November 4, 2021: Petso appeals the reissued DNS (linked as Exhibit E2).
November 5, 2021: Letter from OVWSD (linked as Exhibit F2) noting that it
will not appeal and looking forward to moving forward cooperatively with the city.
2. The July 20, 2021 pre-SEPA discussion with the city
council was an effort to confirm the principal features of the
Proposal
The July 20, 2021 city council discussion of the stormwater update should be
viewed as part of the process to formulate the principle features of the Proposal. This
early draft review with the city council was intended to determine whether city staff and
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the city council were on the same page with respect to the principal features of the
stormwater update. Staff presented and sought preliminary direction on the proposed
changes and whether they should be included in the version to be sent for further
review. Engineering staff did not feel comfortable formulating the Proposal without any
input from the city council because some of the potential features of the Proposal were
discretionary. So, the July 20, 2021 city council meeting served to confirm whether
these discretionary features should be included in the Proposal moving forward. This
step was necessary to identify the principal features of the Proposal as contemplated by
WAC 197-11-055.
3. SEPA official's analysis of the proposal
SEPA review for the Proposal involved a nonproject analysis. As such, the
analysis was broader than a single site -specific project. In making the threshold
determination, the baseline for analysis was the extent to which the Proposal (ie., the
change to existing stormwater regulations) would impact the existing environmental
conditions. So, the SEPA official reviewed the draft regulations to determine if the
changes to the Code, Manual, and Addendum would have a significant adverse impact
on existing environmental conditions. In addition to the answers on the SEPA checklist,
the SEPA official reviewed the redlined Code and Addendum. Particularly helpful in the
impact analysis was the summary of changes prepared by the stormwater engineer
(linked as Exhibit H). Most of the changes to the Code and Addendum were merely
intended to add clarity (in some cases, bringing the Code and Addendum into
conformance with the Manual) and were not considered to be substantive changes in the
regulations. The substantive changes in the Proposal would actually increase
environmental protections (closing loopholes, creating special requirements for the
Perrinville Basin, etc.). Furthermore, implementing the Manual results in compliance
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with the Federal Clean Water Act, Federal Safe Drinking Water Act and Washington
State Water Pollution Control Act. Given that the Proposal would bring compliance
with state and federal water quality laws and only make minor changes to the existing
stormwater code, none of which were perceived as having a significant adverse
environmental impact, the SEPA official did not believe that an EIS was warranted.
Consequently, the SEPA official issued a Determination of Nonsignficance.
4. The omission of the DNS and checklist from the city
council packet can be corrected moving forward
The city acknowledges that the SEPA checklist and DNS should have been
included in the council packet, at least for the September 2021 meetings. But the
omission of these documents from the council packet is correctable going forward. After
all, the council has not yet acted on the Proposal and has adequate time to consider the
environmental effects of the Proposal (or alternatives proposed by the public) before the
mid-2022 deadline. The SEPA checklist and DNS were still made publicly available
through the SEPA process. And the city council public hearing was continued, in part, to
allow for the public hearing to be informed by the city's threshold decision.
Furthermore, despite the omission of these documents, the Proposal still
public attention and environmental scrutiny, as reflected by the testimony before the
city council. The materials specifically prepared to communicate with the city council
and public at that hearing arguably provided a more robust accounting of the relevant
environmental issues associated with the Proposal in that they went beyond an adverse
impact analysis, especially since the Proposal lacks a significant adverse environmental
impact.
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E. Facts Related to Petso's Appeal Issues
1. Facts related to protection of OVWSD's drinking water
sources
While the city concedes that there are no wellhead protection areas within the
Edmonds critical areas code, city staff contend that the Manual provides adequate
protection of these areas even in the absence of an applicable critical areas regulation.
The city has added wellhead zones (from the Department of Health) into its GIS
maps as a result of recent comments on the Proposal.
The OVWSD water right for Deer Creek is a surface withdrawal directly from
surface waters within the creek; while the creek is feed by an aquifer, the water is not
directly from that aquifer.
The "high susceptibility" designation for the Deer Creek aquifer has been known
since 1996 and directs how OVWSD must complete testing to remain compliant with
source control requirements applicable to the district.
Since 1996, until the current code proposal, no OVWSD staff have contacted the
City's the stormwater division with request for additional protections or mitigation in
this basin.
As part of this current SEPA comment period, OVWSD filed comments, to which
the City responded. City responses were determined adequate for OVWSD to pursue no
further action on the SEPA DNS.
The adopted OVWSD Watershed Protection Plan (May 2019) required per WAC
246-290 states (Page 31): "Based on the hydrogeologic and land use analyses developed
as part of this Watershed Protection Plan, it is concluded that the District's Deer Creek
and wellfield sources are generally well protected from potential contamination and that
a very high level of source reliability is provided by the District's multiple sources of
water."
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The adopted OVWSD Watershed Protection Plan (May 2019) includes a
Regulatory Control section (Page 37) for recommended implementation in local land -
use codes does not include a recommendation to prohibit all infiltration within the
basin. The recommendations for limitations on infiltration facilities only apply within
the 1-year capture zone, and ultimately only require "adequate protection" of the
watershed. The use of UIC is only recommended to be restricted if it extends deeper
than twenty feet or compromises a confining layer of soil.
The adopted OVWSD Watershed Protection Plan (May 2019) directs district staff
to work with other agency staff (including Shoreline and Snohomish County) to improve
groundwater protections as recommended in the plan. Between adoption of the
watershed protection plan and the current SEPA filing, no district staff had contact City
stormwater staff with this regard.
2. Facts related to the use of infiltration as a stormwater
management technique
Prior to installation of any permitted infiltration facilities under both, current
and proposed stormwater codes, a geotechnical evaluation, and drainage report are
always required. Both documents ensure qualified professionals have evaluated the si
site soils, and surrounding areas for proper conditions to allow for on -site infiltration.
Infiltration BMPs are not installed where site conditions do not meet minimum
conditions.
The flooding of Appellant's property is obviously not caused by the Proposal
because the flooding exists today and according to the Appellant (brief, at 21) has
existed since "the time we bought the house." The Proposal is still just a proposal.
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F. Review Process Remaining Prior to Final Council Action on the
Proposal
With the Department of Commerce review now completed, assuming that the
DNS is affirmed after this SEPA appeal hearing, the stormwater code will be returned to
city council for further consideration and final action. Staff have worked to address
several city council comments on the Proposal since the previous presentation. Other
revisions (probably minor ones) may still be forthcoming. In any case, the city council is
not bound to a particular course of action in the consideration and eventual adoption of
the Proposal (or some future version of it). If the city council wants to make additional
substantive amendments to the Proposal, it may still do so. The city council may still
decide to partially approve, wholly approve, or reject the Proposal, with direction for
further revisions at any point, and/or it may direct additional code revisions or updates
immediately upon adoption.
II1. Issues Presented
A. Does the Proposal have (unmitigated) probable significant adverse
environmental impacts?
No, the Proposal does not have a probable significant adverse environmental
impact on drinking water, neighborhood flooding, or any other aspect of the
environment.
B. Did the SEPA official undertake an adequate review of environmental
impacts?
Yes, the SEPA official adequately reviewed the Proposal and even asked for more
information prior to issuing the DNS.
C. Was an alternatives analysis required?
No.
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D. Is the Critical Areas Ordinance or environmental review of the CAO
properly before the Hearing Examiner?
2
No.
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IV. Applicable Law and Legal Argument
A. SEPA's Purpose
"SEPA does not demand any particular substantive result in governmental
decision making." Stempel v. Dep't of Water Res., 82 Wash.2d log, 118,
5o8 P.2d 166 (1973). Instead, SEPA "'is an attempt by the people to shape
their future environment by deliberation, not default.'" Sisley, 89
Wash.2d at 89, 569 P.2d 712 (quoting Stempel, 82 Wash.2d at 118, 5o8
P.2d 166). SEPA demands a "thoughtful decision -making process" where
government agencies "conscientiously and systematically consider
environmental values and consequences." ASARCO, 92 Wash.2d at 700,
6ol P.2d 501; SETTLE, supra, § 3.01[2], at 3-4•
Wild Fish Conservancy v. Washington Dept of Fish & Wildlife, 99263-1, 2022 WL 120903,
at *12 (Wash. Jan. 13, 2022).
B. Hearing Examiner's Jurisdiction and Scope of Review
The Hearing Examiner has jurisdiction to hear Ms. Petso's appeal of the City's
DNS on the Proposal pursuant to ECDC 20.15A.240 subsections A and C:
A. Any interested person may appeal a threshold determination, adequacy
of a final EIS and the conditions or denials of a requested action made by a
nonelected city official pursuant to the procedures set forth in this section.
No other SEPA appeal shall be allowed.
C. On receipt of a timely written notice of appeal, the director of
community services shall advise the hearing examiner of the pendency of
the appeal and request that a date for considering the appeal be
established. The decision of the hearing examiner shall be final and shall
not be appealable to the city council.
ECDC 20.15A.240. The city's critical areas code and/or environmental review of the
critical areas code are not subject to appeal at this time and are not before the examiner
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because the city has not issued a threshold determination related to a critical areas code
update.
The Hearing Examiner does not have jurisdiction to hear takings claims.
C. Burden of Proof
ECDC 20.o6.o9o.B states: "In an appeal, the appellant has the burden of proof
with respect to points raised on appeal."
D. Hearing Examiner's Standard of Review of Threshold Determination
The primary inquiry for the Hearing Examiner in assessing whether the SEPA
official correctly issued a DNS is whether the Proposal has a probable significant
environmental impact. See WAC 197-11-330(1)(b).
The second inquiry for the Hearing Examiner is whether the SEPA official
adequately reviewed environmental impacts in reaching his threshold determination.
WAC 197-11-335 Provides that a threshold determination shall be "be based upon
information reasonably sufficient to evaluate the environmental impact of a proposal".
That regulation goes on to state that the SEPA official "may take one or more of the
following actions if, after reviewing the checklist, the agency concludes that there is
insufficient information to make its threshold determination: (1) Require an applicant t
submit more information on subjects in the checklist;...." WAC 197-11-335• This step is
exactly what the SEPA official did when he stated to the stormwater engineer on
September 14, 2021, that the "SEPA checklist needs to be filled out with more than just
N/A. Particularly the stormwater section of the checklist. More detail needs to be
provided in the non -project section of the checklist too."
Although the SEPA official's determination must be given substantial weight, the
City must make a showing that "environmental factors were considered in a manner
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sufficient to make a prima facie showing with the procedural requirements of SEPA."
Chuckanut Conservancy v. Washington State Dept. of Natural Resources, 156 Wn.
App. 274, 286-287, quoting Juanita Bay Valley Community Assn v. City of Kirkland, 9
Wn. App. 59, 73 (1973)• Black's Law Dictionary defines prima facie as "sufficient to
establish a fact or raise a presumption unless disproved or rebutted; based on what
seems to be true upon first examination, even though it may later be proved to be untruE
<a prima facie showingx" The SEPA official's requesting of additional information and
the other things he considered in reviewing the Proposal prior to issuing the DNS, which
will be testified to at the hearing, are sufficient to satisfy the prima facie showing
required for a SEPA threshold determination.
But assuming for the sake of argument that the prima facie showing were not
satisfied, information presented at the hearing itself can qualify as information used for
the threshold determination. See Moss v. City of Bellingham, log Wn. App. 6 (2001)
The Moss case is instructive in that the court was willing to look at actions taken by the
agency after the threshold determination was issued to evaluate the adequacy of review
In Moss, the City of Bellingham added SEPA mitigation measures after the SEPA
responsible official issued the MDNS. The court ruled that:
Although the DNS was issued prematurely, it is difficult to see how the
appellants were prejudiced. The city council imposed many additional
mitigation measures on the project before approving it, thereby making it
more environmentally friendly than the version in the DNS. Appellants
suggest that the DNS misled the city council into believing that all of the
impacts were capable of mitigation, but the record indicates that the
project received a considerable degree of scrutiny.
Moss, log Wn. App. 6, 25, 31 P.3d 703, 713 (2001). As in Moss, ultimately all that
matters in a threshold appeal is whether the Proposal has probable significant adverse
environmental impacts. In other words, even where the SEPA official's review does not
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satisfy the prima facie standard, that procedural standard can be satisfied after the
threshold determination issues. Even if only through the efforts of SEPA appellants, the
purpose of SEPA would still be served.
In any case, the prima facie standard does not require an extremely high level of
scrutiny. "An agency does not have to consider every conceivable environmental impact
when making its threshold SEPA determination, and certainly not a potential impact
that is not permitted...." PTAir Watchers v. State, Dept of Ecology, 179 Wn.2d 919,
932, 319 P•3d 23, 29 (2014). "SEPA's procedural provisions require the consideration of
`environmental' impacts ..., with attention to impacts that are likely, not merely
speculative." WAC 197-11-o6o(4)(a).
The evidence at the hearing will show that the Proposal does not create any
probable significant adverse environmental impacts and that the SEPA official's DNS
was based on information reasonably sufficient to evaluate the environmental impact of
a Proposal. The various environmental impact concerns of the Appellant are either
existing issues that pre -date the Proposal, are not probable impacts of the Proposal,
and/or are not significant impacts of the Proposal. So, the DNS should be upheld.
ways:
E. Significant Impact
Courts have articulated what SEPA means by "significant impact" in the
To make a threshold determination, an agency must determine whether
the proposal will have a probable, significant adverse impact on the
environment. A "significant" impact means a "reasonable likelihood" exists
that the proposal will have "more than a moderate adverse impact on
environmental quality." WAC 197-11-794. The regulations also direct
decision -makers to consider a variety of factors in determining an impact's
significance. WAC 197-11-330(3). "Still, a precise and workable definition
is elusive because judgments in this area are particularly subjective —what
to one person may constitute a significant or adverse effect on the quality
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of the environment may be of little or no consequence to
another." Norway Hill Pres. & Prot. Assn v. King County Council, 87
Wash.2d 267, 277, 552 P.2d 674 (1976).
Wild Fish Conservancy v. Washington Dept of Fish & Wildlife, 99263-1, 2022 WL
120903, at *12 (Wash. Jan. 13, 2022).
"[T]he term `significantly' has been defined to include the examination of
at least two relevant factors: (1) the extent to which the action will
cause adverse environmental effects in excess of those created by existing
uses in the area, and (2) the absolute quantitative adverse environmental
effects of the action itself, including the cumulative harm that results from
its contribution to existing adverse conditions or uses in the affected
area."ASARCO, 92 Wash.2d at 705, 6o1 P.2d 501(some emphasis added
and omitted) (quoting Narrowsview Pres. Assn v. City of Tacoma, 84
Wash.2d 416, 423, 526 P.2d 897 (1974))•
Wild Fish Conservancy v. Washington Dept of Fish & Wildlife, 99263-1, 2022 WL
120903, at *10-11(Wash. Jan. 13, 2022)(emphasis added). The Appellant's opening
brief does not establish how the Proposal will cause the impacts that she is concerned
about, especially after taking into account staffs explanation of the Proposal as
described above.
rules:
F. Requirements of the Threshold Determination Process for Nonproject
Actions Like Adoption of the New Stormwater Code
Nonproject actions like the Proposal are given special treatment of the SEPA
Use of checklist for nonproject proposals:
For nonproject proposals complete this checklist and the supplemental
sheet for nonproject actions (Part D). The lead agency may exclude any
question for the environmental elements (Part B) which they determine do
not contribute meaningfully to the analysis of the proposal.
For nonproject actions, the references in the checklist to the words
"project," "applicant," and "property or site" should be read as "proposal,"
"proposer," and "affected geographic area," respectively.
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WAC 197-11-96o.
(1) Agencies shall use the environmental checklist substantially in the form
found in WAC 197-11-96o to assist in making threshold determinations for
proposals, except for:
(e) Nonproject proposals where the lead agency determines that questions
in Part B do not contribute meaningfully to the analysis of the proposal. In
such cases, Parts A, C, and D at a minimum shall be completed.
WAC 197-11-315.
G. Proper Baseline for Environmental Review Purposes
Recent case law establishes or confirms the baseline for measuring
environmental impact.
A "baseline" is a practical tool used in environmental analysis to identify
the possible consequences of a proposed agency action. The basic idea is
that establishing baseline environmental conditions is necessary to
determine the effect a proposal will have on the environment. Chuckanut
Conservancy, 156 Wash. App. at 284 n.8, 232 P.3d 1154 (citing Am. Rivers
v. Fed. Energy Regulatory Comm'n, 201 F.3d 1186, 1195 n.15 (9th Cir.
1999))•
Wild Fish Conservancy v. Washington Dept of Fish & Wildlife, 99263-1, 2022 WL
120903, at *10 (Wash. Jan. 13, 2022).
Professor Richard L. Settle, author of The Washington State
Environmental Policy Act: A Legal and Policy Analysis, reasons that "a
proposal must degrade the existing condition of the
environment to have significant adverse impact. Mere failure
to restore or improve environmental quality is not a
significant adverse impact under SEPA." SETTLE, supra, § 13.01111,
at 13-22 (citing Thornton Creek Legal Def. Fund v. City of Seattle,113
Wash. App. 34, 59, 52 P•3d 522 (2002) (assessing whether
a proposal would "adversely impact existing environmental conditions")).
Wild Fish Conservancy v. Washington Dept of Fish & Wildlife, 99263-1, 2022 WL
120903, at *11(Wash. Jan. 13, 2022)(emphasis added). One of Appellant's arguments
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seems to be that the Proposal does not do enough to rectify existing problems. But
clearly, under the law quoted above, that is not the standard for requiring an
environmental impact statement.
While it is undeniably useful to establish a baseline environmental
condition with which to compare a proposal's impact, nothing in SEPA's
statute, regulations, or cases requires a "no action" baseline analysis in
arriving at a threshold determination. Rather than establishing the
baseline on the current uses of the land (as the WFC suggests), the
appropriate baseline to compare the proposal's environmental
impacts is the condition of the existing environment.
Wild Fish Conservancy v. Washington Dept of Fish & Wildlife, 99263-1, 2022 WL
120903, at *12. (Wash. Jan. 13, 2022)(emphasis added).
Therefore, we hold WDFW's threshold determination was not clearly
erroneous when it compared the impacts of steelhead farming to the
current, existing condition of the environment of Puget Sound, which has
been subject to commercial salmonid farming for over three decades.
Wild Fish Conservancy v. Washington Dept of Fish & Wildlife, 99263-1, 2022 WL
120903, at *12 (Wash. Jan. 13, 2022). Analogizing this recent case to the pending
appeal, Appellant seems to be using some baseline other than the existing condition of
the environment in making her arguments. But it is only the existing condition of the
environment, as impacted by the Proposal, that should be considered in the context of a
threshold determination.
H. Alternatives Analysis Was Not Required
Appellant criticizes a "done deal approach" to SEPA and a failure to consider
alternatives. But WAC 197-11-96o, which provides a checklist for making the threshold
determination of whether EIS is required, does not contain an alternatives
requirement." There is only one instance where an agency may be required to assess
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alternatives to a proposal that is not likely to result in significant adverse environmental
impacts and it does not apply here. See Wild Fish Conservancy v. Washington Dept of
Fish & Wildlife, 99263-1, 2022 WL 120903, at *7 (Wash. Jan. 13, 2022). In any case,
while not required to consider alternatives, city staff did seek early feedback from the
city council on July 20, 2021 for the purpose of confirming the principal elements of the
Proposal. The Proposal certainly was not a done deal on July 20, 2021. And even now,
after the DNS has issued, it is not too late for the city council to consider making
revisions to the Proposal.
V. Conclusion and Requested Relief
For the various reasons stated above, and for the reasons that will be established
during the hearing, including, primarily, the fact that the proposal does not create any
probable significant adverse environmental impact, the City's DNS should be affirmed
City staff intends to include the Hearing Examiner's decision, along with the affirmed
DNS, in the city council packet when the Proposal returns to the city council for further
consideration and possible action later this year.
DATED this 19th day of January, 2022 at Seattle, Washington.
LIGHTHOUSE LAW GROUP PLLC
JEFFREY B. TA DAY, WSBA *28182
Attorneys for City of Edmonds
LIGHTHOUSE LAW GROUP PLLC
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FAVOR OF UPHOLDING DNS - 23 Seattle, WA 98ioI
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1 Reply Brief on Appeal of City of Edmonds
2 SEPA DNS re Stormwater Update
3 Submitted by Appellant Lora Petso
4
5 I. Introduction
"I
7 The SEPA DNS cannot be upheld. Most process errors have been conceded, and probable
8 significant adverse environmental impacts were not evaluated. Some jurisdictions could point to
9 critical area codes prohibiting UIC wells in wellhead protection areas, but Edmonds cannot.
10 Some jurisdictions could point to provisions in the stormwater code that protect areas that
11 already flood, but Edmonds cannot. An EIS is required.
12
13 II. Preliminary Issue-Jurisdiction/Qualification of the Hearing Examiner
14
15 The City brief mentions this issue starting on p. 16, line 14, but does not mention if any
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16 action has yet been taken to correct the jurisdictional defects. The two code sections cited by the 21
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18 The first section, ECDC 20.15A.240(A), confers a right for interested persons to appeal a
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21 The second section, ECDC 20.15A.240(C), confers a duty on the director of community
22 services to contact the hearing examiner to request a date for the appeal, but does not confer
a
23 jurisdiction on the hearing examiner. The cited section also states that the hearing examiner
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1 decision shall not be appealable to City Council, but again, that "assumes" but does not "confer"
2 jurisdiction.
3 By code, ECC 10.35.010(E), the hearing examiner has only the powers and duties
4 specified in Chapter 20.100 (now limited to forest practices act).
5 (In the event that the hearing examiner decides to hear the case before the defects are
6 corrected, or if the defects have already been corrected and I just don't know it, I submit that
7 jurisdiction over the critical area defects is conferred by the checklist and SEPA official(s)
8 reliance on the critical area ordinances as supposedly mitigating impacts from this proposal, and
9 that jurisdiction over the takings claim is conferred by the checklist and SEPA official(s) reliance
10 on the checklist claim that the proposal complies with law.)
11
12 III Legal Argument
13
14 I recommend caution regarding City briefing from p. 13 line 1 to p.15 line 12, as much of
15 the content is either inaccurate or irrelevant. I also suggest that the weird "issues" in Section III,
16 page 15-16, be resolved opposite the City "Answer" for item A, B, and D, if any attention is even
17 paid to that section.
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19 A. Process Issues.
20 The following process issues have been conceded by either a failure to brief them or by
21 overt concession:
22 1) Failure to integrate SEPA with the code update as required by WAC 197-11-055(1)
23 and WAC 197-11-030(2)(e). (Not briefed by the City).
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1 2) Lack of planning board review. (Not briefed by the City).
2 3) The proposed code was sent to reviewing agencies prior to SEPA review in violation
3 of WAC 197-11-230. (This issue was conceded in the City brief on page 9, line 21, "August 24,
4 2021: "the Proposal is provided to the Department of Commerce" and page 10, line 2
5 "September 22, 2021: first DNS ... is issued ...)"
6 4) The incorrect legal standard was applied by both staff and the attorney in violation of
7 WAC 197-11-330(5). (Not briefed by the City).
8 5) There was no consideration of mitigation required by development regulations,
9 comprehensive plans, or other existing environmental laws as required by WAC 197-11-
10 330(1)(c). In fact, though I raised the lack of compliance with laws as a substantive issue as well,
11 that was also not briefed. (Not briefed by the City).
12 6) The "done deal" approach violated at least WAC 197-11-055(2)(c), WAC 197-11-
13 030(2)(f), and WAC 197-11-030(2)(g). (Not briefed by the City, except for being confused with
14 alternatives analysis beginning page 22, line 20).
15 7) The SEPA was based on inadequate information violation of WAC 197-11-335. (Not
16 briefed by the City).
17
18 The following process issues have been minimally briefed:
19 1) Failure to involve the public early in the process. The City brief mentions this item
20 section starting on page 10, line 21, but it is unclear whether the City is conceding it or arguing
21 it. No facts are disputed in the briefing, and the fact is that the staff made no changes to the
22 proposal after that meeting, whether changes were requested by Council or by the public.
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1 (The City does claim to have made some changes now, but there is not yet any evidence
2 to that effect. The City also claims that Commerce review is complete, which is odd since I think
3 they told me it would be suspended pending the appeal. Which version of the code did
4 Commerce review?)
5 2) Failure to provide SEPA to the decision makers (Council), even after they ask, in
6 violation of multiple section of WAC 197-11-535 and WAC 197-11-030. The City concedes the
7 error, beginning at p. 12, line 8, but suggests that this might be cured going forward. No chance
8 given item 6 above (done deal). The "snowball" effect has achieved its goal, and staff will not
9 tolerate any actual consideration of making changes to the proposal that would reduce the
10 environmental impacts.
11 3) Lack of review by SEPA responsible official(s) in violation of WAC 197-11-330,
12 including but not limited to, the requirements of WAC 197-11-330(1)(a)(i) and WAC 197-11-
13 330(3). Clearly the checklist indicates no consideration of the various factors required. See my
14 opening brief at p.12, line 16).
15 Curiously, it appears that the two DNS's were signed by different SEPA officials. (See
16 exhibit 15 and 16). Exhibit 15 has a perfectly legible signature, but, perhaps not surprisingly,
17 Exhibit 16 shows an illegible scraw.
18
19 B. The proposal changes the code to allow contamination from pollution generating
20 surfaces to be discharged to ground water in circumstances where such discharge is
21 presently prohibited without any environmental identification or evaluation of the impacts,
22 no consideration of alternatives, and no mitigation.
23
24 The City attempts to defend the failure to evaluate impacts as follows:
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1 1. The `we weren't following the code anyway' defense.
2 The first City defense is that staff was not following the code anyway, so the impact of
3 the change is not intended to be substantive. City brief, page 7, lines 20-22. Is it even ethical to
4 plead this as a defense?
5 The existing code provision, even if generally disregarded by staff, could be used by an
6 interested party challenging untreated discharge from pollution -generating pervious surfaces
7 including but not limited to, tire crumb playfields, tire crumb playground mulch, and dog parks
D.
9 2. The `we wouldn't have followed it in the future' defense
10 On page 8, lines 5-10, the City argues that the manual and the proposal refer to the same
11 BMP's. This appeal is not based on a comparison of the manual and the proposal, but on a
12 comparison of the existing code and the proposal.
13 The existing code references "pollution -generating surfaces," a term which includes
14 pollution generating pervious surfaces. The proposal limits this to "pollution -generating hard
15 surfaces," a term which does not include pollution -generating pervious surfaces.
16 The existing code states "all associated runoff must be treated." The City brief at page 8,
17 line 13, indicates that under the proposal staff intends to limit the use of the referenced BMP's to
18 only runoff from pollution -generating hard surfaces.
19 That would not represent a defense to the failure to evaluate impacts, but an
20 acknowledgement that the City intends to allow discharge from pollution generating pervious
21 surfaces to groundwater. (Even where that would violate the anti -degradation WAC).
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1 C. The SEPA fails to identify and evaluate the impacts of the proposal on Olympic Views
2 drinking water supply.
3
4 The City again concedes that the City critical areas regulations do not include protection
5 of wellhead protection areas, but claims that staff believes that the manual does. Page 13, line 4.
6 The manual repeatedly denies providing adequate protection and expressly states that
7 following the manual does not excuse violations of groundwater quality standards. On page 139
8 Ecology expressly recommends that "local governments" require an off -site analysis report
9 evaluating and mitigating "violations of ground water quality standards in a wellhead protection
10 area. Our code has no such requirement.
11 An EIS is required, and should include evaluation of the risks of PFAS and other forever
12 chemicals. (As a reminder, Snohomish County simply prohibits UIC wells in wellhead protection
13 areas. SCC 30.62C.330.)
14 In addition to the change discussed in item B above, the Deer Creek water source will
15 also be negatively impacted by the proposed changes to the Edmonds Way drainage basin. Water
16 previously discharged to Puget Sound will be discharged into the ground within the Deer Creek
17 wellhead protection area. These impacts should also be evaluated in the EIS.
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19 D. The SEPA fails to identify and evaluate the impacts caused by the fact that the proposal
20 violates several laws.
21
22 With one small exception, this issue was not briefed by the City, thus conceding it.
23 The sole item briefed was clarification that the reference that appeared to refer to a non-
24 existent section of the Storm Water Manual actually refers to a section that does exist. The
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1 section does not appear, however, to provide all the protections included in the sections
2 referenced by the current code.
C
4 E. The SEPA fails to identify and evaluate the impacts caused by the fact that the proposal
5 will flood my property, and others similarly situated.
6
7 The proposed change to eliminate direct discharge from the Edmonds Way basin to Puget
8 Sound, particularly when combined with the City's housing commission recommendations, will
9 increase groundwater flows to my property.
10 Staff erred in not evaluating the environmental impacts of switching the Edmonds Way
11 basin from direct discharge to infiltrate to an area that already has excess groundwater (and, as
12 noted above, a municipal drinking water supply).
13
14 IV. Summary
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An EIS is required due to the significant adverse environmental impacts of the proposal,
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particularly the violation of groundwater quality standards and the flooding. I expect that some
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jurisdictions could point to critical area codes that prohibit UIC wells in wellhead protection
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areas, or to stormwater code provisions designed to consider offsite impacts and prevent
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downstream flooding, but Edmonds cannot.
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Petso Appeal of PLN2021-0052 Exhibit List
1. Stormwater Management Manual for Western Washington. July 2019. Publication Number 19-
10-021
2. Per- and Polvfluoroalkvl Substances Chemical Plan. November 2021. Publication Number 21.-04-
048
3. Department of ECOIOEV Website Imaee 1. What are PFAS Comoounds?
4. Department of Ecology Website Image 2.
5. City of Seattle SEPA Checklist. City of Seattle 2021 Stormwater Code and Rule Update.
6. Hearing Examiner Decision. Woodway Court II Preliminary Plat. PLN20160023.
7. Video of 09.28.21 Council Meeting
8. November 3, 2021 City of Edmonds Letter and Memo Response to Petso Comments
9. November 3. 2021 Citv of Edmonds Letter and Memo Response to OVWSD Comments
10. Council minutes 9/21/2021.
11. Council minutes 9/28/2021.
12. Council minutes 7/20/2021.
13. SEPA Checklist 8/19/2021.
14. SEPA Checklist 9/17/2021.
15. SEPA DNS 9/22/2021.
16. SEPA DNS 10/15/2021.
17. My Edmonds News Article "Meetings between Olympic View, Edmonds School District
underway", June 12, 2018.
18. Olympic View 2018 Watershed Protection Plan
19. NPDES Phase II permit and Appendices
20. 2004 Best Available Science
21. E-mail chain regarding "saturation" event, summer 2017.
22. Letter dated 4/19/2018 to Lynne Danielson, General Manager, Olympic View, from Garin
Schrieve, P.E., Director, Office of Drinking Water, Washington State Department of Health.
23. Letter dated June 8, 2018, to Lynne Danielson, General Manager, Olympic View, from Max Wills,
Geotech, Robinson Noble with two attachments (PGG report, Letter dated 9/12/2017, to Lynne
Danielson from Max Wills).
24. Richardson powerpoint
25. Deer Creek water sample, 12/28/2016
26. English powerpoint
27. Link to 2012/2014 Stormwater Manual
28. Transmittal dated 12/13/2018, Watershed Protection Plan
29. Stormwater System Map - PDF
30. Link to City GIS Map
31. Photo, area drainage basins
32. Photo, Woodway Court II
33. Photo, Contour Map
34. Photo, Distribution List, 2009 Olympic View Comp Plan
35. Photo, Page 1-12, 2009 Olympic View Comp Plan
36. Link to Council Packets, Agendas, Minutes
Rebuttal Exhibits
37. Photo, EPA diagram, rebutting Declaration of Mr. Richardson.
Packet Pg. 64
38. Web link to City announcement of receiving waters conditions assessment study and receiving
water prioritization study. Posted 1/18/2022. Rebutting Declaration of Mr. Lien.
39. Photo's of ECDC 20.100, Rebutting Declaration of Mr. Lien and because the link to the text has
become unstable. Five photo's attached.
40. Photo's of ECC 10.35, Rebutting Declaration of Mr. Lien and as a precaution against the link
becoming unstable. Two photo's attached.
41. Photo's of web page linked at exhibit 38, rebutting Declaration of Mr. Lien, and due to
uncertainty about the link in exhibit 38
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BEFORE THE HEARING EXAMINER FOR THE CITY OF EDMONDS
LORA PETSO,
Appellant,
vs.
CITY OF EDMONDS,
Respondent.
File No. PLN 2021-0052
CITY'S DISCLOSURE OF WITNESSES
AND EXHIBITS
Pursuant to the Hearing Examiner's January 14, 2022 First Revised Pre -hearing
Order, the City of Edmonds submits the following disclosure of witnesses and exhibits.
I. City's intended witnesses
The City of Edmonds intends to call the following witnesses during the February
2, 2022 SERA appeal hearing:
1. Kernen Lien, Environmental Programs Manager, City of
Edmonds
Much of Mr. Lien's testimony has been submitted in writing (see Declaration of
Kernen Lien Concerning His Written Testimony, referenced in the City's exhibit list).
Mr. Lien may supplement his written testimony during the hearing to address matters
related to that written testimony and other issues raised by the Appellant in her briefing
or exhibits, including, but not limited to, alleged violations of the law, applicability of
various sections of chapter 197-11 WAC.
LIGHTHOUSE LAW GROUP PLLC
CITY'S DISCLOSURE OF WITNESSES AND boo Stewart St. #400
EXHIBITS - 1 Seattle, WA 98ioI
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2. Zack Richardson, Stormwater Engineer, City of Edmonds
Much of Mr. Richardson's testimony has been submitted in writing (see
Declaration of Zack Richardson Concerning His Written Testimony, referenced in the
City's exhibit list). Mr. Richardson may supplement his written testimony during the
hearing to address matters related to that written testimony and other issues raised by
the Appellant in her briefing or exhibits, including, but not limited to, alleged violations
of the law, his two memoranda of November 3, 2021 which responded to comments that
the City received on the DNS, extent of the stormwater code update, proper application
and interpretation of the stormwater code, addendum, and manual, applicability of the
stormwater code, addendum, and manual to wellhead protection areas, extent to which
the stormwater code update would contaminate drinking water, and the extent to which
the stormwater code update would cause flooding within the Appellant's drainage basin.
II. City's list of exhibits
The City submits the following list of exhibits, each of which may be obtained by
clicking on the associated hyperlink:
Exhibit A Western Washington Phase II Permit
Exhibit Al Appendix 1 - Minimum Technical Reauirements for New Development
and Redevelopment
Exhibit B Redline draft of Chapter 18.30 ECDC (Permit)
Exhibit B1 Redline draft of Addendum to Edmonds Communitv Development Code
Chapter 18.30 (Edmonds Stormwater Addendum)
Exhibit B2 2012 Stormwater Manual as amended in 2014
Exhibit B3 2019 Stormwater Manual
Exhibit C SEPA Checklist 09.17.2021
Exhibit Cl SEPA Checklist 08.19.2021
LIGHTHOUSE LAW GROUP PLLC
CITY'S DISCLOSURE OF WITNESSES AND boo Stewart St. #400
EXHIBITS - 2 Seattle, WA 98ioI
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Exhibit D Corrected DNS issued
Exhibit D1 DNS issued 09.22.2021
Exhibit E Bloom and Petso Comments on 1st DNS
Exhibit E1 Petso Comment on Reissued DNS
Exhibit E2 Petso Appeal
Exhibit F OVWSD Email
Exhibit F1 OVWSD Comment on Reissued DNS
Exhibit F2 OVWSD November 5, 2021 Letter
Exhibit G Staff Response to Petso
Exhibit G1 Staff Response to OVWSD
Exhibit H Edmonds Summary of Changes
Exhibit I Ecology Summary of Changes
Exhibit J Ecology Summary of Changes with Edmonds Responses
Exhibit K Ecology 2014 - 2019 SWMMWW Crosswalk
Exhibit L Staff Presentation slides from Council Public Hearin
Exhibit M MOU between Ecology and WASWD
Exhibit N OVWSD Deer Creek Water Right Summary Printout
Exhibit 0 OVWSD 2018 Watershed Protection Plan
Exhibit P Kernen Lien's Written Testimony
Exhibit Q Zack Richardson's Written Testimony
DATED this 24th day of January, 2022 at Seattle, Washington.
CITY'S DISCLOSURE OF WITNESSES AND
EXHIBITS - 3
LIGHTHOUSE LAW GROUP PLLC
JEFFREY B. TARA AY, WSBA *28182
Attorneys for City of Edmonds
LIGHTHOUSE LAW GROUP PLLC
600 Stewart St. #400
Seattle, WA 981oI
a
Packet Pg. 68 1