GENDLER & MANN, LLP

attorney s-at-law

Michael W.Gendler                                                                         (206)621-8868
David S. Mann                       1424 fourth avenue, suite 1015         Fax (206) 621-0512
                                               seattle WA 98101
•Also admitted in Oregon                                                     gendler@gendlemiann.com
                                                                                          www.gendlermann.com
                                                       July 7, 2005

VIA FACSIMILE TO (360)379-4451

Al Scalf, Director
Jefferson County
Department of Community Development
621 Sheridan Street
Port Townsend, WA 98368

RE:      MDNS dated June 22, 2005 on Fred Hill Materials revised application for Wahl Extraction Area

Dear Mr. Scalf:

This letter and the letter dated July 6, 2005 from Peter Schwartzman of Pacific Groundwater Group are submitted on behalf of the Hood Canal Coalition in response to Jefferson County's issuance of a Mitigated Determination of Nonsignificance (MDNS) for Fred Hill Materials' (FHM) revised application for a stormwater permit for surface mining in the Wahl Extraction Area.

1.        Summary of Comment

The revised proposal is essentially the same proposal for which Jefferson County stated its intent to issue a Determination of Significance (DS) on May 12, 2005. The only changes are the "resequencing" of the areas to be mined within the 165-acre Wahl Extraction Area, and the proposal to develop a monitoring plan specific to "Group One," the 38-acre segment which would be mined first under the revised proposal.

While it might seem that these changes provide an opportunity to avoid significant impacts by developing data during the anticipated five-year duration of mining in Group One, on closer examination it becomes clear that the resequencing and monitoring plan does not provide a basis to support the new MDNS. As explained in the Pacific Groundwater Group's comment letter, it is doubtful that the monitoring data will prove sufficient to evaluate properly whether mining the rest of the area will have significant adverse impacts. Moreover, Pacific Groundwater Group also points out that there is not a proper basis to conclude that mining the initial 38-acre Group

 

Al Scalf
July 7, 2005
Page 2

One area will not itself have significant adverse impacts. For these reasons, the County should withdraw the new MDNS and issue a DS in accordance with the May 12, 2005 memorandum.

The concept of "phased review" under SEPA does not support this MDNS. The greatest problem here is that the MDNS purports to cover the entire 165-acre Wahl area. Assuming for the moment that an MDNS is justified for the 38-acre "Group One" area, there is no justification for such an MDNS to include areas beyond Group One. Indeed, this is contrary to the SEPA rule on phasing, to "exclude from consideration issues . . . not yet ready." WAC 197-ll-060(5)(b). This is all the more so where the only permit now sought is the stormwater permit for the 38-acre Group One area. The County should not make its SEPA determination in advance of future permit applications.

2.        The Resequencing Does Not Avoid Significant Adverse Impact

The County correctly determined that FHM's proposal to mine 137 acres in its 165-acre Wahl area would have probable significant adverse impacts and therefore required a DS. FHM's subsequent revision to resequence the mining does not change that conclusion. Accordingly, the DS should have been retained.

FHM still proposes to mine fully the same 137 acres it originally had proposed. The only difference is that it now intends to begin the work in another part of the area. But FHM has not offered data or evidence on which to conclude that the "resequencing" will avoid significant impacts. As the Pacific Groundwater Group comment points out, there is not a basis to conclude that mining one area within the Thorndyke Creek watershed will affect base flows significantly less than mining another area. Letter at 2 & n. 1. That the Group One area is further away from the creek than other areas now sequenced to be mined later might affect impacts from phenomena such as erosion, but there is no bassi to conclude that it will significantly change the impact with respect to groundwater resources.

As Pacific Groundwater Group points out, mining in the Group One area can be expected to have about 25% of the cumulative adverse impact of mining the entire 137 acres. Their letter references their prior estimate of a 3% impact to Thorndyke Creek baseflow, such that the current proposal's impact might be estimated at 0.8%. But it must be emphasized (as the Pacific Groundwater Group letter has done) that the 3% estimate was made without the benefit of data that the applicant has chosen not to supply, regarding the site-specific soil texture. The Pacific Groundwater Group estimate of impact was accompanied by an explanation of the uncertainties inherent in such a preliminary estimate. It must be kept in mind that there is considerable uncertainty, which will remain unless the proposed monitoring provides conclusive results or modeling analysis is conducted.

 

Al Scalf
July 7, 2005 Page 3

Given this uncertainty, and a preliminary estimate of impact of 0.8% to baseflows associated with Group One mining alone, the Department of Ecology's actions to protect Water Resource Inventory Area 17 in Jefferson County provide a useful perspective. The Department of Ecology has determined that new water withdrawals should not be allowed in watersheds it considers to be in critical condition if the withdrawals would result in an impact of 1% to base flows or greater. It is our understanding that the Washington Department of Fish and Wildlife concurs in Ecology's determination. The Pacific Groundwater Group's preliminary estimate of impact of mining Group One alone at 0.8% is nearly the equivalent of Ecology's 1% figure used to decide whether to approve new groundwater withdrawal applications, especially given the uncertainties and potential for greater impact here. Accordingly, the County should not assume or conclude that the impacts of mining Group One alone will not be significant.

Moreover, such a conclusion would be contrary to the SEPA rule that environmental review should not be fragmented to "avoid discussion of cumulative impacts" or to "segment and avoid present consideration of proposals and their impacts." WAC 197-ll-060(5)(d)(ii), (iii). Thus, even if the County proceeded on the basis that the impacts of Group One mining alone did not appear significant, it still would be improper to proceed with an MDNS because that would avoid consideration of the cumulative impacts through segmentation, contrary to the cited SEPA rules. As Pacific Groundwater Group has pointed out, the County has not developed a quantitative threshold for significant impacts to groundwater. This is all the more reason why the DS should be retained in a situation where the question of the significance of impacts from the first mining segment alone might be viewed as a "close call."

We assume that one justification for the MDNS is the premise that segmenting the mining into a first 38-acre group enables the County to obtain monitoring data before commitments are made to approve additional mining. While this may have some appeal, it is wrong for three reasons. First, as Pacific Groundwater Group has pointed out, the County has not yet developed quantitative criteria to determine whether the impacts will be significant. Absent such criteria, it may well be that the first segment alone will have significant adverse impacts which would only be discovered after the fact. This is because the monitoring data will not be evaluated until after the first group is mined and because FHM has not yet provided a defensible site-specific hydrologic evaluation of how excavation would change the timing of recharge and therefore base flows in Thorndyke Creek. Second, also as explained in the Pacific Groundwater Group comment, it is doubtful whether the monitoring data to be developed as the first segment is mined will provide a sufficient basis to determine whether impacts associated with additional segments are significant. This point will be addressed in the next section of this comment letter. Third, the County's MDNS does not limit its scope to the current 38-acre proposal for which a stormwater permit is sought. Instead, the MDNS states that it applies to the entire 165-acre area. While the County has identified potential escape routes from the consequences of this premature and overinclusive SEPA determination, even with these future reviews it is wrong to issue an MDNS for mining for which a permit is not yet being requested. The section after next of this

 

Al Scalf
July 7, 2005
Page 4comment letter will explain why this would constitute improper segmentation under WAC 197-11-060(5).

3. Monitoring Data Cannot Be Expected to Ensure That the Impacts of Additional Mining Will Not Be Significant

The premise that the resequencing of the revised proposal will enable the applicant and County to gather enough monitoring data so that significant adverse impacts can be avoided with future mining segments is not substantiated. There may be good intention behind the notion of developing this data, and the Hood Canal Coalition supports the monitoring requirements as part of any approval issued after proper environmental review pursuant to a DS. But these good intentions do not substitute for good data and good reason to conclude (rather than just believe) that the monitoring will make a real difference in the ability to determine the impacts. As Pacific Groundwater Group has explained, the data "noise" resulting from rainfall variation and other climactic factors is very likely to drown out the changes in stream flows attributable to mining. But this certainly does not mean that the impacts to stream flows attributable to mining are not significant. Instead, it means that such impacts are difficult to isolate and evaluate through the type of monitoring the applicant has proposed. Accordingly, the County does not have a basis to conclude that an EIS is not necessary on the basis that data and analyses will be developed in time, before any significant adverse impacts occur.It must be kept in mind that the purpose of an EIS is to evaluate the probable adverse impacts of a proposal. A requirement for a future study does not prevent impacts or mitigate impacts. Instead, it postpones the environmental review which the County has recognized in this very case is required for the overall project, while allowing the first segment to proceed without that required review. Again, this is contrary to the SEPA rule against review which "would segment and avoid present consideration of proposals and their impacts." WAC 197-ll-060(5)(d)(iii). The better course, and indeed the one recognized by the County on May 12, 2005, is to require an EIS for the entire Wahl area so that impacts can be evaluated before any of them occur and so that the benefit of analyses which could identify measures to avoid impacts can be obtained and applied to the entire mining sequence, not just its later segments.

 Al Scalf
July 7, 2005
Page 5

4. The County Should Not Segment Review and "Phased Review" Does Not Justify the MDNS

The SEPA rules prohibit "segmenting" a project to avoid consideration of its cumulative effects before the project begins. WAC 197-ll-060(5)(d). Notwithstanding this, "phased review" is allowed under SEPA. It must be noted, however, that phased review here does not fit into the situations identified in the SEPA rules as most appropriate for such review. The two general situations where phased review is appropriate are identified in WAC 197-1 l-060(5)(c). But this is not a situation where the sequence is from a nonproject document to a site-specific analysis, nor is it one where the sequence is from an early stage on a specific proposal such as site selection to a later one such as sensitive design impacts. WAC 197-1 l-060(5)(c)(i), (ii).More important, the circumstances here are within the examples in WAC 197-ll-060(5)(d) where phased review is not appropriate. The rule specifies that "phased review is not appropriate when ... it would merely divide a larger system into exempted fragments or avoid discussion of cumulative impacts." WAC 197-ll-060(5)(d)(ii). The issuance of an MDNS for the entire 165-acre area violates that rule because it "avoids discussion of cumulative impacts" of mining the entire area. There is no doubt that the groundwater impacts will be "cumulative." Notwithstanding the good intention of monitoring through the first project segment, phased review here runs afoul of this rule.This also violates the next subsection, that "phased review is not appropriate when it would segment and avoid present consideration of proposals and their impacts." WAC 197-11-060(5)(d)(iii). The result of the MDNS is to "avoid present consideration of the impacts associated with mining FHM's Wahl unit. This is the SEPA rule that embodies the well-known concept of project "segmentation," i.e., dividing a project into "segments" to avoid full environmental review because the impacts associated with each "segment" appear to be less than significant. It is noteworthy that both the applicant and the County use the term "segments" to describe the resequenced mining areas. Especially where the impacts associated with the first project segment alone likely are comparable to groundwater impacts deemed "significant" and unacceptable by the state agency charged with protecting groundwater, and where the data developed through monitoring of that first project segment will not likely prove sufficient to prevent further cumulative impacts, this is a classic situation of "segmentation" which is contrary to the SEPA rules.There is another important reason why this MDNS cannot be sustained as "phased review." "Phased review" requires that there be a future environmental review under SEPA, i.e., the second "phase." Here, an MDNS has been issued for the entire 165-acre area, such that there will not be the future phase that is necessarily part and parcel of "phased review." Whether or not phased review would be supportable even though this application does not fit within the

 Al Scalf
July 7, 2005
Page 6situations described in WAC 197-ll-060(5)(c) where phased review is appropriate, it surely cannot be defended when there will not be a second phase at all. This conclusion is mandated also by the language of another subsection of the rule, WAC 197-1 l-060(b), which provides that "environmental review may be phased ... to exclude from consideration issues . . . not yet ready." The underlined term means SEPA review, i.e., a threshold decision followed by an EIS where required. It does not mean that an agency can do the first phase, but not do the second one at all.One final point on phased review. The County did not state that phased review was being used in the June 22, 2005 MDNS. WAC 197-1 l-060(5)(e) provides, "When a lead agency knows it is using phased review, it shall so state in its environmental document." It may well be that the County agrees with the Hood Canal Coalition that this is not an appropriate situation for phased review, and that is why the statement provided for in the cited rule was not made. Whatever decision the County may make regarding the 38 acres that are the subject of the only current application before it, the County does need to recognize explicitly that applying the MDNS to the entire 165 acres is not supported by the phased review rule and is contrary to SEPA.

5. Other Comments

The June 22, 2005 MDNS mentions the June 1, 2005 on-site meeting, but does not mention that anadromous fish were observed in the unnamed tributary to Thorndyke Creek. This certainly was an important observation, and it was contrary to the assertions of the applicant that there were not fish made to justify not having to prepare an EIS.We reference and incorporate our prior comments regarding this proposal, hi particular, we have called attention to Finding 37 in Ordinance 8 (approved one year ago today), in which the Board of County Commissioners specified that the marine transportation alternative would have to be studied in conjunction with any mining proposal within the MRLO. We renew our call to the County to acknowledge and honor that directive.

6. Conclusion

The Hood Canal Coalition appreciates the opportunity to submit this comment with regard to the June 22, 2005 MDNS. For the reasons stated, an MDNS for future mining proposals that

 Al Scalf
July 7, 2005
Page 7go beyond the current pending application is not proper and the DS issued on May 12, 2005 should be retained.

                                                          Very truly yours,

                                                          GENDLER & MANN, LLP

                                                         Michael W. Gendler

MWG:den

cc: Hood Canal Coalition