Posts
Since 2005 WEAN has been involved in the proposal to develop 20 house sites between Edgecliff and Sandy Point roads. We are now at a point where the Planning Advisory Board is at the end of a long series of hearings. Now they have to render a report and recommendation to the City council. Here are WEAN’s proposed recommendations, with supporting Findings of Fact and Conclusions of Law.
Whidbey Environmental Action Network and Langley Critical Areas Alliance propose the PAB adopt the following recommendation, resolution, findings of fact and conclusions of law: Recommendation 1:
The Planning Advisory Board recommends that the Langley City Council overturn the Mitigated Determination of Non-Significance issued on 13 May 2009 for the proposed Langley Passage development and instruct the SEPA Responsible Official to issue a Determination of Significance preparatory to scoping and preparation of an Environmental Impact Study as provided for in WAC 197-11.
Alternatively, appellants respectfully request the PAB to recommend conditioning of the development proposal sufficient to prevent or reduce its significant adverse environmental impacts to non-significance:
Recommendation 2:
The Planning Advisory Board recommends that the Langley City Council condition the Mitigated Determination of Non-Significance issued on 13 May 2009 for the proposed Langley Passage development so that its probable significant adverse impacts are mitigated to the level of nonsignificance:
(i) the total volume and rate of water discharged from the site, both on and below the surface, will be no greater than that currently discharged, including the water likely to be imported and discharged on-site by future residents;
(ii) no utilities may cross the wetland or buffer and occupancy may occur only after construction of the water loop between Sandy Point and Edgecliff identified on the 2001 City of Langley Water Plan as line 12 so that the houses in the development can be connected to a looped water main running along Sandy Point Road.
Resolution:
Whereas the environmental threshold determination issued for the Langley Passage development has been properly appealed by Whidbey Environmental Action Network and Langley Critical Areas Alliance;
Whereas the Langley Planning Advisory Board (PAB) is charged with hearing such appeals;
Whereas the PAB has conducted an open record appeal hearing as required by law;
Whereas the PAB has carefully considered all arguments and evidence provided by all the parties in this matter;
Whereas the PAB has concluded that the Langley Passage development as proposed and conditioned would have probable significant adverse environmental impacts to wetlands, drainage facilities, and bluff stability;
Whereas the PAB has concluded that the proposed mitigations do not sufficiently reduce those impacts to the level of non-significance;
Whereas the PAB has concluded that either resolving remaining scientific uncertainty as to the fate of surface and groundwater is desirable because it may more precisely clarify the significant adverse impacts to the drainage ditch and outfall, and to stability of the bluff, or not allowing any increase in the water discharged to the surface or ground by the development will avoid those probable significant adverse impacts;
Whereas the PAB has concluded that following the adopted Comprehensive Water System Plan regarding placement of a single water pipeline east of the Langley Passage development site will avoid the need for location of a water pipeline across the wetland on that site, as well as avoid possible need for construction of multiple pipelines further east and the specific and cumulative impacts that will cause;
Whereas the PAB has adopted the following resolution, Conclusions of Law and Findings of Fact in the matter;
Now therefore,
Recommendation 1:
or
Recommendation 2:
Conclusions of Law.
1. The PAB has jurisdiction in this matter. LMC 18.36.040.
2. The PAB’s authority in this matter is to make a recommendation to the Langley City Council for approval, approval with conditions, denial, or denial without prejudice. LMC 18.36.040C.
3. The City of Langley’s adopted policy when water flows over or through a steep bluff is that infiltration of stormwater is not preferred. Langley Comprehensive Stormwater Plan, Policy J.
4. The Langley Municipal Code requires that utilities may be located in wetlands and buffers only when there is “no other feasible and reasonable alternative” with less impact to the wetland and buffer. LMC 16.20.080 C.2.a.
5. The adopted Comprehensive Water System Plan includes only a single water system connection between Sandy Point and Edgecliff Roads. Comprehensive Water System Plan.
6. Washington land use law comprises a scheme whereby cities adopt plans and policies that are then implemented and interpreted in light of those plans and policies. RCW 36.70A.
7. The State Environmental Policy Act (SEPA) requires that “proposals or parts of proposals that are related to each other closely enough to be, in effect, a single course of action shall be evaluated in the same environmental document.” WAC 197-11-060(3).
8. SEPA requires that whether a proposal conflicts with laws or policies for the protection of the environment, or whether it will serve as a precedent for future actions must be taken into account in determining an impact’s significance,. WAC 197-11-060(4); §330(3).
9. SEPA requires that major actions having probable significant adverse environmental impact(s) must have those impacts fully analyzed through performance of an Environmental Impact Statement (EIS). RCW 43.21C.031(1).
10. An action having probable significant adverse impacts that are sufficiently mitigated so their impacts are no longer significant does not require preparation of an EIS. WAC 197-11 350.
11. Required mitigations must be sufficient to reduce adverse environmental impacts so they are no longer significant. WAC 197-11-350.
12. Mitigations must be capable of being accomplished. RCW 43.21C.060.
13. If the action will cause significant adverse impacts despite required mitigations, a determination of significance must be issued and an EIS performed. WAC 197-11-330(4); §350(1).
14. The highest priority of mitigating conditions is avoidance of impacts. WAC 197-11-768.
15. If information is lacking or there is scientific uncertainty regarding an action’s impacts, that information must be obtained if possible and the cost of doing so is not exorbitant. WAC 197-11-080.
16. The proper mechanism for resolving any remaining uncertainty as to this action’s impacts is either through performance of an EIS or conditioning the proposal to eliminate its probable significant adverse environmental impacts. WAC 197-11-330(4); §350(1).
Findings of Fact.
History.
1. The Langley Planning Official issued a notice of complete application on January 30, 2007 for the Langley Passage development.
2. The SEPA Responsible Official issued a final revised Mitigated Determination of Non-Significance (MDNS) on 13 May 2009.
3. The appeal period for that MDNS concluded on 27 May 2009.
4. Langley Critical Areas Alliance and Whidbey Environmental Action Network timely appealed the MDNS. LMC 2.06.240; 16.04.150.
5. The PAB conducted a combined open record hearing as required by statute and code, including the SEPA appeals, on March 24, April 28, May 12, June 2, June 9, July 14, and August 4, 2010. RCW 36.70B.060(3); LMC 18.01.040D.
Moot issues.
6. Placing a trail through the wetland has been removed from the proposal.
7. Graveled surfaces are effectively impervious and the mitigations relating to impervious surface are intended to treat them as such.
Bluff.
8. The proposal will increase the volume of water discharged from the development site relative to its current, undeveloped condition.
9. Additionally, importation of water onto the site for irrigation and then discharged has not been accounted for..
10. How much of the increased discharge of water will flow through or over the bluff and how much will flow out the drainage ditch and outfall is unknown, but obtaining that information is possible and the cost is not exorbitant.
11. Conditions limiting the amount of impervious surface for the development were not based on quantitative criteria related to the water balance on the site before and after development.
12. There was a major failure of the Edgecliff bluff in 1969 severing the road connection to Sandy Point and since that time there have been numerous incidents of bluff slides, flooding, and road subsidence causing significant environmental damage and expense to property owners and the City.
13. In 2006 the City sought the impartial expert opinion of the United States Geological Survey and was advised that development south of Edgecliff bluff should result in no net increase in water discharge and any additional discharge should be conveyed in an enclosed system to the base of the bluff.
14. The bluff is currently unstable and has water weeping out of it during the driest portion of the year.
15. Given the existing instability of the bluff, any increase in water flowing over or through it will likely increase instability, constituting a probable significant adverse environmental impact.
16. Mitigating conditions that either tight-line stormwater to the base of the bluff or prevent any stormwater discharge to the groundwater in excess of the pre-developed condition of the property would avoid adverse impacts to the stability of the bluff.
17. No conditions are proposed to mitigate probable significant adverse impacts to stability of the bluff from the project.
18. The interpretation by the SEPA Responsible Official and City Engineer of the relationship between the City’s adopted policy regarding stormwater and steep bluffs, and the LMC would essentially negate that policy. Comprehensive Plan Policy J; LMC 15.041.430; 15.01.455(E).
19. In reaching the conclusion that development will have no probable significant adverse impact on the bluff, the SEPA responsible Official relied on the geological borings performed by HWA Geosciences and the peer review of Mr Mark Varljen.
20. The work of HWA Geosciences:
20.1 was confined to two borings south of the wetland;
20.2 demonstrated that there may be a less pervious or porous layer of silt approximately 15-25 feet below the surface of the wetland;
20.3 did not explore the subsurface below the wetland or between the wetland and the bluff; and
20.4 did not specifically address the issue of bluff stability.
21. The terms of reference given by the SEPA Responsible Official to Mr Varljen were too restrictive and his opinions were too heavily qualified to constitute a reasonable basis for the resolution of the scientific uncertainties that exist in relation to the issues associated with bluff stability.
22. Because infiltrated groundwater is currently emerging from the middle of the bluff and because the less porous silt layer found by the borings is significantly below the bottom of the drainage ditch, the opinion of Mr Varljen and the City Engineer to the effect that all additional water will discharge via the drainage ditch and not the bluff is not a logical conclusion or reasonable inference as required by LMC 16.20.015.
Ditch-outfall system.
23. Island County officials have stated that no additional water may be introduced into their portion of the drainage ditch and outfall without improvements being made and that consequently any such improvements are an integral part of this development and with the remainder of the proposed development constitute a single course of action.
24. The SEPA Responsible Official has not consulted with the County regarding the nature and extent of the improvements that may be necessary, has not considered the feasibility of such improvements, has not considered whether or not a Shoreline Development Permit will be required, and has not carried out a substantive environmental review of this part of the project.
25. Proposed predevelopment monitoring of the drainage ditch is of insufficient period and duration to establish a scientifically valid baseline to allow reliable scientific conclusions to be reached as to the actual impact of the development. For this reason, the proposed monitoring does not meet the standards that decisions include the best available science and use quantitative analysis (LMC 16.20.015) and that unavailable information must be obtained if the cost is not exorbitant (WAC 197-11-080).
26. The proposed mitigations relating to the drainage ditch are not capable of being accomplished or will not reduce probable adverse environmental impacts sufficiently so they are non-significant.
Pipeline through Wetland
27. No area-wide analysis has been conducted to determine the feasibility of locating water, sewer, and stormwater utility lines for the development so impacts to wetlands and buffers are avoided.
28. No property owners to the east of the proposed development were contacted to determine their willingness to allow placement of a connecting water loop on their property.
29. There has been no investigation of alternative routings for water and stormwater utility lines that avoid the need to cross wetlands and which more closely reflect the City’s long-term plans for these utilities.
30. The City of Langley’s adopted Comprehensive Water System Plan of 2001 was professionally prepared, formally adopted following public hearings, and by reference constitutes part of Langley’s growth management plan. It is therefore reasonable and feasible.
31. The Comprehensive Water System Plan includes a single looped water main east of the proposed development site, running between Sandy Point Road and Edgecliff Drive, that does not cross the wetland on this site. Comprehensive Water System Plan.
32. Absent the water line planned in the Comprehensive Water System Plan, development east of the project site may require construction of multiple individual water lines between Sandy Point and Edgecliff Roads, including possibly through wetlands. The cumulative impacts of such development have not been considered in the environmental review conducted for this project.
33. Implementation of the Comprehensive Water System Plan by construction of the single connecting water pipeline between Sandy Point and Edgecliff Roads to the east of the proposed development site would avoid future need for any additional pipelines, including the proposed pipeline across the wetland for this project.
