185 Acres in Ag/Forest Use Proposed for Annexation to Freeland Water & Sewer District

The owner of 185 acres of land in active farm and forest use has applied for annexation into the Freeland Water & Sewer District. The proposed use of the water is somewhat hazy, but appears to be for irrigating an as yet unknown crop. The land is just west (towards Greenbank) of the AOK Min-Storage on the south side of Hwy 525.

The land is outside of the Freeland Urban Growth Area. WEAN is opposing the annexation mostly because providing piped water almost always facilitates and eventually results in development at increased densities, whether suburban or urban. The area has not been designated for urban development and should not have this infrastructure. The annexation contradicts the County's Freeland area planning efforts.

The Freeland Water and Sewer District previously considered the proposed application last September and October. The upshot of the October hearing was a request that the applicant clarify what the purpose of the annexation was. The proposal has not yet been analyzed for its environmental impacts, as required by the State Environmental Policy Act (SEPA).

The Water and Sewer District will again take up the annexation proposal at hearing on Jan. 19. For more information, contact the Water District or WEAN.

Below are WEAN's most recent comments on the proposed annexation.

Whidbey Environmental Action Network

Restoration Education Preservation

Box 53, Langley, WA USA 98260

(360) 579-4202 wean@whidbey.net

Dedicated to the preservation and restoration of the native biological diversity of Whidbey Island and the Pacific Northwest

Jan. 7, 2009

TO: Freeland Water and Sewer District Commissioners

5492 S. Harbor Ave.

Freeland, WA 98249

FROM: Steve Erickson

RE: Fletcher request for water service outside of UGA and for agricultural use

Please consider these comments in your deliberations regarding the proposed Fletcher annexation.

We have received a letter from Gary Hess regarding three issues. We have several comments about those and two other issues.

1. Can the District supply water for commercial agricultural use?

The letter reports a conversation with Dept. of Ecology personnel. First we note that the reference to RCW 90.03.105 is erroneous; the relevant section that was apparently meant is §15, not §105. Second, Andy Dunn is no longer with DOE. On Jan. 7 I spoke with Jaccque Klug, the acting Water Resources Section Supervisor in DOE’s Northwest Region. I was particularly curious about the court case the letter alludes to, since I was unable to find any Washington State appellate court decision that matched this case. In fact, this decision was in King County Superior Court. It is not a published appellate decision, which means that it has absolutely no precedential value. It has been certified for direct appeal to the state Supreme Court and oral arguments in the case will be heard by that body next Tuesday. Until and unless this decision is affirmed by a Washington or Federal appellate court, the District should ignore it. The existing law is still in effect. In summary, that law still requires that a change in water right is required for the District to provide water for commercial agriculture, as has been requested.

2. Will provision of water for agricultural use by Fletcher impair groundwater availability for other District customers?

The letter here confuses three related, but different issues. The first is whether providing water for this agricultural use is legally permissible even if it impairs senior water rights. As the letter correctly states, the District cannot impair senior water rights. And that holds true regardless of the use the water is put to. The second issue is whether provision by the District of water to Fletcher obligates it to supply Fletcher in the future, regardless of competing demand from other landowners in the District. As the letter correctly points out, once the property is annexed into the District, the District must supply it. (However, see our discussion below regarding whether supplying this property is consistent with other local plans.) Once it does so, this may create an obligation to prioritize service to this property in the future to the detriment of other District customers. The District should research this legal issue prior to deciding to annex this property. The third issue is not at all legal, but substantive: will providing the large volume of water that irrigated agriculture will likely require impair the other area wells? To date, Fletcher has not stated what quantity of water he seeks for agricultural use. This information is needed for both reasoned decision making and environmental analysis. We expect that this information will be disclosed in the required environmental checklist (discussed below at 4).

3. Is annexation of this property consistent with regional plans?

The proposed annexation is not consistent with regional planning efforts. As Hess’s letter correctly cites, providing water service to this property must be “consistent with the requirements of local plans . . .” WAC 246-290(1)(d). Moreover, the District should not subvert regional planning efforts. This agricultural land was excluded from the NMUGA. That portion of the NMUGA process is finished and settled. Historically, providing infrastructure such as piped water greatly increases pressure to convert land from low density, rural, and agricultural uses to high intensity urban use. For that reason, this annexation is inappropriate, counter to good planning, and inconsistent with the existing regional plans for the area and this particular property. This is yet another reason to reject the annexation.

4. Has there been environmental analysis of the annexation?

To date, there has not been the analysis required by the State Environmental Policy Act (SEPA). The annexation is subject to SEPA’s requirements for analysis. The annexation does not fall within SEPA’s categorical exemptions and SEPA specifically defines this sort of annexation and its reasonably forseeable impacts as actions fully subject to SEPA’s requirements.[1] If the District chooses to proceed, it must produce an environmental checklist and make a threshold determination as to whether the annexation and its forseeable impacts will have no probable significant environmental impacts, whether it will have probable significant environmental impacts that can be mitigated, or whether the adverse impacts cannot be mitigated and an Environmental Impact Statement (EIS) must be prepared. Please inform us as to when the required public comment period will be held.

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[1] 197-11-704 WAC 197-11-704 Action. (1) "Actions" include, as further specified below:

. . .

(2) Actions fall within one of two categories

. . .

(b) Nonproject actions. Nonproject actions involve decisions on policies, plans, or programs.

. . .

(iii) The adoption of any policy, plan, or program that will govern the development of a series of connected actions (WAC 197-11-060), but not including any policy, plan, or program for which approval must be obtained from any federal agency prior to implementation;

(iv) Creation of a district or annexations to any city, town or district;

500 Person Church Proposed for Troxell Rd. Ag Land in Navy Jet Noise Zone

A 500 person church has been proposed on 20 acres of Rural Agriculture land on Troxell Rd., North Whidbey under the County's "reasonable use" regulations. The area is mostly farmland, with low population density, with the Navy asking the County to deny the application. In at least one respect, the proposal is similar to the attempt to permanently convert Rural Forest land on south Whidbey to pasture in what was essentially a de facto rezone. The County denied that application and should deny this one for the same reasons, as well as few others. The location is in Navy Noise Zone 3 - not a good place for hundreds of people to gather, has extensive wetlands that have to be crossed to gain access, and is in a rural area dominated by agriculture on a distinctly rural road.

Here are the comments WEAN has submitted to the County.

Whidbey Environmental Action Network

Restoration Education Preservation

Box 53, Langley, WA USA 98260

(360) 579-4202 wean@whidbey.net

Dedicated to the preservation and restoration of the native biological diversity of Whidbey Island and the Pacific Northwest

Dec. 15, 2009

TO: Bobak Talebi, Island County Planning

FROM: Steve Erickson

RE: 934/07 SPR & SEPA; Bridge Christian Fellowship

Please consider these comments on this proposal.

Conversion of agricultural land. The proposal is to convert Rural Agricultural zoned land at a scale that is inconsistent with the purpose of the zone. As with the recent case of the denied application for the Saratoga Passage development, this amounts to a defacto rezone. The purpose of the Rural Agriculture zone is virtually the same as that of the Rural Forest zone. The Saratoga Passage proposal was judged to exceed the primary purpose of the zone it was located in, even though it would not have completely eliminated that primary use. However, this proposal would essentially eliminate agricultural use of the parcel. As with the Rural Forest Zone that was the setting for the Saratoga Passage case, the Rural Agriculture zone requires that any Permitted Use “shall be disapproved upon finding that it will Interfere with efficient management or productivity of Agricultural Uses.” ICC 17.03.090A. If Permitted Uses must be so denied, then discretionary Conditional Uses surely must also be. Conditional uses are just that – conditional. Because of its scale, this proposal interferes with continued use of the land for agriculture and must be denied. It is simply too big for this location.

Impacts from noise. We believe that a determination of significance should be issued and this proposal denied because it will periodically expose large numbers of people to injurious noise levels. We note that the Navy has recommended denial because of the proposal’s location in noise zone 3. No mitigation is proposed, other than meeting noise reduction building standards. But it is not reasonable to believe that 500 people will not walk in the woods, children will not play outside, etc. This is simply the wrong place for a use of this scale. It is conversion from a low density of people to a very high density, from low to high intensity land use. The only mitigation we can conceive of is to limit the potential number of people and/or their presence on the site. If the proposal is approved it is appropriate for the days when the church is used to be limited. In fact, proposal documentation submitted by the applicant states that the facilities will only be used on Sundays.[1] If the proposal is not denied, this should be an explicit condition of approval.

Impervious surface grossly underestimated. The submitted documentation states that “total impervious area is approximately 19,632 square feet (less than 2.4 percent of the total 19 acre site).”[2] This grossly underestimates the area of actual impervious surface., because it omits the driveway and parking area.[3] [4] [5] The rationale given for this omission is presumably the definition of “Impervious Surface” found in ICC 17.03.040. However, this ignores both that the definition in the County’s stormwater regulations does include graveled surfaces and that every agency with expertise on this subject does likewise.[6] While for purposes of compliance with ICC 17.03 the County may ignore the actual impact of these impervious surfaces, SEPA does not allow this subterfuge: the actual impacts must be addressed.

Impacts to critical areas. The Land Use Intensity ranking of a proposal in large part determines the buffer that wetlands receive from the proposed use. Therefore, it is critical to the amount of protection the wetland ultimately receives. The wetland report assigns a land use intensity of “moderate” to the proposed use.[7] How this intensity rating was arrived at is not discussed. Non-Residential uses on parcels over 5 acres do not appear in the critical areas ordinance.[8] However, the ultimate authority for determining the land use intensity of a proposal resides with the Planning Director.[9] If the proposal is approved, given the large numbers of people that will periodically be on the site (~500 or more) and the actual level of impervious surface, this proposal should properly be classified as High Intensity. Moreover, since the standard buffer widths are presumed well vegetated with native vegetation, they should be increased beyond the standard range or enhanced. Accordingly, even if they are enhanced, the buffer for Wetland A should be increased to at least 90-125 feet and Wetland B to 150 feet.[10] These buffers should be planted with a large proportion of Salmonberry (Rubus spectabilis) and Nootka Rose (Rosa nootkana) to help dissuade human intrusion and buffer reduction over time. This is regardless of the area of direct wetland impact; long term protection of the wetland mandates large buffers enhanced to discourage human intrusion and reduction. We also suggest that since forest clearing is proposed significant amounts of large woody debris (logs and stumps) be placed in Wetland A if the proposal proceeds.

We also note that in using the Wetland Work Sheet to determine the Habitat score for Wetland A trees were omitted because they were “not rooted in [the] wetland.” In the report proper, it was noted that trees were present in the wetland, but were on hummocks. This is normal and expected in forested wetlands and is a critical component of the structural diversity that makes forested wetlands such valuable habitat for a wide array of organisms. Just as hummocks within wetlands are included within wetlands during delineations, so should those trees be considered present in the County’s habitat scoring Wetland Work sheets. While it is not clear that this omission significantly changed the outcome of the habitat rating, we suggest that the County provide guidance that makes clear that trees within wetlands on hummocks are counted as present within the wetland.

Lights. If this proposal proceeds, it should be conditioned to assure that all outdoor lighting fixtures are shielded so as to preserve the dark sky.

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[1] See 4) e, g, and h @ p. 4, DCG Letter, 09-10-13.

[2] Project Proposal Narrative and Visual Analysis, 09-10-13.

[3] g. About what percent of the site will be covered with impervious surfaces after project construction (for example, asphalt or buildings)?

The proposed church facility will create approximately 19,632 square feet of impervious surface area, which includes the proposed church building and surrounding concrete walkways. Less than 2.3 percent of the total site will be covered with impervious surface, not including the proposed gravel access driveway and parking area, which, according to previous conversations with County staff, is not considered an impervious surface.

Environmental Checklist, 09-10-13.

[4] The additional area of impervious surface omitted from analysis is at least 33,000 square ft.:

Regular size parking spaces: 162 square feet X 102 =16,534 square ft. Compact car parking spaces: 128 square feet X 43 = 5,504 square ft.

SubTotal Parking Spaces = 22,037 square ft.

Road >500 ft. long X 22 feet wide = >11,000 square ft.

TOTAL = >33,037 square ft.

We do not know the precise length of the road, but it is at least 500 feet long, must be at least 22 feet wide, and a loop road may be required, potentially doubling the length:

An access driveway will typically need to be 22 feet wide with adequate turning widths to accommodate emergency response vehicles. A future loop road should return to the one access point onto Troxell Road.

Memo by Bill Poss, Island County Public Works, 07-10-11.

With an additional 33,037 square ft., the area of impervious surface is about 6.4%. However, that figure also doesn’t include any roads internal to parking areas or a loop road. With these include the area of impervious surface increases to about 8.7%, near the widely recognized 10% threshold for very serious impacts to aquatic systems.

[5] It is not clear if this also omits the proposed future expansion (additional structures).

[6] Including the federal EPA, Washington DOE, and Puget Sound Partnership.

[7] p. 1, CRITICAL AREA STUDY AND WETLAND MITIGATION PLAN, 09-10-13.

[8] See, ICC 17.03.090D.

[9] See, ICC 17.03.030 Defintions: Land Use Intensity.

[10] See, ICC 17.03.090F. Tables 2 & 3.