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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 4
comment 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 6
situations 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 7
go 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 |
