Lois A. Lopez
16723 Sargent Road SW
Rochester, WA 98579
April 21, 1997
Robert W. Nacht
Manager, Community Development
City of Chehalis
1321 S. Market Blvd
Chehalis, WA 98532
Re: MDNS of proposed fill by Darrell Peterson
at 99 SW Chehalis Ave, Chehalis
File #97-E048
Dear Mr. Nacht:
On behalf of the Sasquatch Group of The Sierra Club, I respectfully submit that the DNS in the above-referenced application should be withdrawn. Following are the legal justifications in support of this request.
SEPA rules are not unclear as to the requirements of a lead agency when making a determination - regarding having sufficient information to make an adequate analysis, addressing cumulative impacts, addressing the uniqueness of site issues, and working with other agencies or jurisdictions in gathering information about potential adverse impacts.
WAC 197-11-330(3): "In determining an impact's significance, the responsible official shall take into account the following, that: (a) The same proposal may have a significant adverse impact in one location but not in another location; (c) Several marginal impacts when considered together may result in a significant adverse impact; and (e) "Establish a precedent for future actions with significant effects, involves unique and unknown risks to the environment, or may affect public health or safety."
Regarding WAC 197-11-330(3)(a), this same proposal would likely not have an adverse impact outside of the floodplain. Regarding 197-11-330(3)(c), though depositing 27,000 cubic yards of fill into a floodplain is not a "marginal" impact, surely, when taken together with the loss of flood storage, the future flooding that will occur in and on the area, and the impacts to Dillenbaugh Creek - there will be an adverse impact. Regarding 197-11-330(3)(e), given the subsequent DNS of another proposed project for 25,000 cubic yards of fill next to Dillenbaugh Creek, in the floodplain, there are strong concerns that the lead agency is not only setting a precedent, but that cumulative effects of these two closely related projects filling in the floodplain must now be addressed and the DNS withdrawn. The impacts of these two projects may surely "affect public health and safety."
Further, when there is inadequate information to make a determination, as in this checklist (no site plan or description, and incomplete responses of many questions), an agency can request additional information of the applicant and other agencies.
WAC 197-11-335: "The lead agency shall make its threshhold determination based upon information reasonably sufficient to evaluate the environmental impact of a proposal. The lead agency 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 threshhold determination: (1) Require an applicant to submit more information on subjects in the checklist; or (3) Consult with other agencies, requesting information on the proposal's potential impacts which lie within the other agencies' jurisdiction or expertise; or (4) Decide that all or part of the action or its impacts are not sufficiently definite to allow environmental analysis and commit to timely, subsequent environmental analysis consistent with WAC 197-11-055 through 197-11-070."
Department of Ecology's SEPA Handbook states that during the threshhold determination process is the time when lead agency should identify major problem areas, and "to work with other agencies and the public to make them aware of the project and allow them to identify any concerns which may be resolved early in the SEPA process."
An adequate analysis of impacts could not be accomplished with the level and quality of responses in the checklist. In fact, an MDNS was issued, and then a "Notice of Incomplete Application" sent to applicant. This requested the information still lacking that would be necessary to make an adequate determination of whether the project would have an adverse environmental impact, yet the threshhold determination was made without this critical information. That is, no stormwater management or erosion control methods, no wetland delineation, no identification of EPA's restrictive covenants, no identification related to shorelines.
It is unclear as to the scope of work. Is this a fill project or a construction project?
WAC 197-11-060(3)(a) "Agencies shall make certain that the proposal that is the subject of environmental review is properly defined."
The description of this project is identified in the public notice as: "STRUCTURAL FILL OF APPROXIMATELY 27,000 CU YDS FOR FUTURE COMMERCIAL/INDUSTRIAL DEVELOPMENT." However, throughout the environmental checklist, the applicant refers to this project as development of a commercial park in every relevant question in the checklist.
A. 1. Name of proposed project: Chehalis Commercial Park
10. List all government approvals or permits that will be needed. building permits
B. 6. a. What kinds of energy will be used to meet the completed project's energy needs? electric, natural gas
7. b. 2) What types and levels of noise would be created by or associated with the project on a short-term or a long-term basis? construction
16. b. Describe the utilities that are proposed for the project. . . all above (responded to in 16. a: electricity, natural gas, water, refuse service, telephone, sanitary sewer)
None of these responses would be correct for a fill project alone.
To add to the confusion, in response to A. 7. "Do you have any plans for future additions, expansion or further activity related to or connected with this proposal?" the applicant responded "No." While throughout this checklist a description of a construction project is discussed, applicant responds that he has no future plans for additions or expansions. The obvious question which arises is: Are the applicant's responses such because the checklist is in regard to a construction project and not a fill project?
If so, the City has failed to identify such in the determination as required by WAC 197-11-060(5)(3). Further, a phased review is not appropriate for this proposal given the environmental characteristics and probable adverse impacts. i.e., On-site wetlands, 100-yr. floodplain, close vicinity of Dillenbaugh Creek. A phased review of this proposal would allow exactly what is forbidden in WAC 197-11060(5)(d). "Phased review is not appropriate when: (ii) It would merely divide a larger system into exempted fragments or avoid discussion of cumulative impacts." Obviously, the cumulative impacts of increasing the loss of flood storage to fill and then to impervious surfaces in the construction phase, as well as increasing stormwater runoff and other issues, are impacts that must be addressed together.
This MDNS must be withdrawn in that affected parties, such as jurisdictions which may be impacted by this project, including the sovereign nation of the Chehalis Tribe, were not given notice of this application and subsequent threshhold determination.
WAC 197-11-340. "When a DNS is issued for any of the proposals listed in (2)(a), the requirements in this subsection shall be met. (b) The responsible official shall send the DNS and environmental checklist to agencies with jurisdiction, the department of ecology, and affected tribes, and each local agency or political subdivision whose public services would be changed as a result of implementation of the proposal, and shall give notice under WAC 197-11-510. (d) The date of issue for the DNS is the date the DNS is sent to the department of ecology and agencies with jurisdiction and is made publicly available."
The "mitigation of potential impacts" outlined in the MDNS all relate to the future development of this parcel. i.e., "Future development shall comply with public works standards; Traffic impact analysis shall be required for future development," etc. This "migitation" is inadequate in that it does not address mitigation measures for probable impacts of the proposed project (the addition of 27,000 cubic yards of fill to the floodplain - loss of flood storage capacity; displacement during flood event; runoff to a fish-bearing stream, etc). This issue also relates to Issue #2 - that the scope of this project is unclear -- Is it a fill project or a construction/development project?
Because of the confusion as to the scope of this application, I will mention only those referenced to fill.
ACOE Section 404 permit. This permit is required for filling of a wetland. Wetlands on-site are identified by EPA in its Records of Decision, and recorded on the National Wetlands Inventory Map. This permit is required to approve the disturbance or filling of wetlands "adjacent to tributaries of navigable waters and other waters. COE's jurisdiction also includes wetlands not connected to another water body by a tributary or stream." (Comprehensive Flood Hazard Mitigation Plan, CFHMP, pp. 5-5 to 5-6)
Flood Hazard Zone Permit. "A development permit entitled Flood Hazard Zone Permit shall be obtained before construction or development begins within any area of special flood hazard established in Section 3.2. The permit shall be for all structures. . . and for all other development including fill and other activities. (Chehalis Ord. 394-B, Sec. 4.1)
Chehalis Ord. 394-B, a Flood Control Ordinance, details the following remedies for its "Objectives:" (1) "restricting or prohibiting uses which are dangerous to health, safety and property due to water or erosion hazards, or which result in damaging increases in erosion or in flood heights or velocities; (3) controlling the alteration of natural flood plains. . . which help accommodate or channel flood waters; (4) controlling filling, dredging, and other development which may increase flood damage." (Chehalis Ord. 394-B, Sec. 1.3) This project will cause "an increase in flood heights," "alter natural flood plains," and "fill and dredge which may increase flood damage."
Additionally, Lewis County received a grant to develop a comprehensive flood management plan to address flood issues within the county and Chehalis and Centralia. The resultant plan, The Comprehensive Flood Hazard Mitigation Plan for Lewis County (CFHMP), agreed on and adopted by both Chehalis and Centralia, states that "The overall long-term goals for the CFHMP are to: --reduce hazard and --reduce long term flood control costs to Lewis County." This project will increase flood hazards and very likely increase flood control costs to jurisdictions downstream.
The MDNS determination is also lacking in that no information is provided as to the detail of the "restrictive covenants" of EPA. This information is crucial in making a determination of likelihood of probable adverse impacts. Research has not been successful in disclosing this information. EPA identifies these covenants as "deed restrictions," however, no such deed restrictions are attached to the deed transferring ownership to Darrell Peterson. In EPA's Record of Decision regarding the remediation of the cleanup (Superfund trust), it states: "Deed restrictions will be imposed to limit future use of the property, ensure that the cover and contamination below are not distrubed. . ." It is obvious that, in the interest of the public's health and safety, these restrictions should be detailed either in the checklist or should have been identified by the lead agency.
Because of the applicant's obvious lack of familiarity to the history of this site, and the inadequacy of the checklist, there remain strong concerns over the applicant's ability to accept liability for potential lawsuits from future incidents (allowable by EPA). Lawsuits stemming from incidents that are likely to occur, such as flooding impacting downstream residents and runoff into Dillenbaugh Creek impacting water quality and fish habitat due to the addition of 27,000 cubic yards of fill to the floodplain.
Several SEPA requirements have not been complied with in this application process. Additionally, the disregard by the lead agency of the history of the local environment and the unique background of this site could pose adverse impacts in themselves, as well as restrict the ability to mitigate such impacts.
For the following legally supported reasons, the MDNS should be withdrawn and a new environmental review process begun.
I request the MDNS be withdrawn to enable the compliance of all SEPA requirements, including addressing the cumulative effects of the subsequent 25,000 cy project in the flood plain also given a DNS. Also, to clarify the critical elements of this proposal, to allow time for the public hearings process; and to allow opportunity for all involved parties to gather the critical information that has yet to come forth, but is essential to make a threshhold determination in this case.
Respectfully submitted,
Lois A. Lopez, Sasquatch Group, The Sierra Club
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