Larry Morris has submitted a State Environmental Policy Act (SEPA) checklist for the proposal as described in the attached checklist. Mr. Morris has represented himself as the agent for the property owner, Darrell Peterson, and as an environmental engineer. Mr. Morris has also submitted an application for a fill permit as required by the Chehalis Municipal Code (CMC) 15.28.070 for the described activity.
While the SEPA checklist specifies that the nature of the development involves a "commercial park to include commercial buildings, parking and landscape," representations made to city staff by Mr. Morris also include an industrial park and a machine shop currently being designed, and a subdivision of the property for independent ownership of the future buildings. The development requirements for either an industrial park or a commercial center will be identical, so no distinction is made in the SEPA review process.
The subject property is zoned industrial, which zoning includes commercial uses, so no zoning issues are discernible. If a significant adverse environmental impact were to be identified, it could affect the permitted uses in an industrial zone, however such a finding would have to be specifically made to influence any zoning decisions. An industrial use in an industrial zone does not constitute a significant adverse environmental impact.
When the city received the subject checklist, certain decisions were required to be made regarding the proposal. Those decisions and the basis for them are articulated below. The city submits the checklist to the Development Review Committee (DRC) for internal review and comment at the same time any public review process might be applicable. The city departments are required to respond to the SEPA Responsible Official (RO) "on the record" with any concerns, comments or requirements.
ITEM A: Is this proposal an action under the Washington Administrative Code (WAC) 197-1 1 -704?
FINDING: This proposal is an action (WAC 197-11-704(1)(a) and (2)(a)(i)).
ITEM B: Is this proposal categorically exempt under WAC 197-11-800?
FINDING: This proposal is not categorically exempt.
ITEM C: Is this proposal located in an environmentally sensitive area (ESA)? (WAC 197-11-908)
FINDING: This proposal is not located in an ESA.
FURTHER: (WAC 197-11-908(3)) proposals that will be located within ESAs are to be treated no differently than other proposals under this chapter except as stated in WAC 197-11-908(2) (relating to applicability of categorical exemptions in ESA's). A threshold determination shall be made for all such actions, and an environmental impact statement (EIS) shall not be automatically required for a proposal merely because it is proposed for location in an environmentally sensitive area.
ITEM D: Is this proposal located in a Growth Management Act (GMA) critical area (Resolution 3-92)?
FINDING: This proposal is located in a GMA critical area (frequently flooded area).
FURTHER: (SEPA Handbook, 1993, p. C-2) GMA and SEPA have different purposes and requirements, and are not interchangeable. GMA critical areas are protected through specific development regulations (Ordinance #394-B). Adoption of SEPA ESAs only identify areas where categorical exemptions will not apply; ESAs do not regulate anything. Location of the proposal in a GMA critical area does not constitute a significant adverse environmental impact.
ITEM E: Is this proposal located in a shorelines jurisdictional area or a wetland?
FINDING: The subsequent site plan submitted shows the location of the filling activity only upon an area previously filled by the EPA remedial action. The shoreline jurisdiction maps used by the city show that the proposed fill activity is not located within a shoreline jurisdiction area. The wetland maps used by the city show that the proposed fill activity is not located in a National Wetland Inventory (NWI) mapped area. No information has been received by the RO documenting that the city's maps are incorrect.
ITEM F: Are there any cumulative affects of filling in the floodplain that constitute a significant adverse environmental impact?
FINDING: The Federal Emergency Management Agency (FEMA) Flood Insurance Study (FIS) of 1979 clearly and adequately addresses the expected cumulative impact of filling in the floodplain. The data, dimensions and function of the floodplain and floodway of the Chehalis River, and the influence of the Newaukum River on this reach of Dillenbaugh Creek are clearly articulated in the Study, and are adopted in the governing law of the city (Ordinance 394-B). Filling of the entire floodplain within the city of Chehalis would not constitute a significant adverse environmental impact (in and of itself and notwithstanding wetland issues), and therefore, filling of successive portions of the floodplain does not constitute a significant adverse environmental impact.
FURTHER: The 1979 FIS has been the basis for all floodplain management decisions since it was adopted into law. There is also no state law known to the city which prohibits filling in a floodplain merely because it's a floodplain. Public assertions that the floodplain maps are wrong and that the law should be different cannot be a basis for decision making under the law; no evidence or documentation of any sort has ever been submitted to the city to support any perspective except the adopted flood study. The publics demand to stop all filling in the floodplain because it might cause damage is clearly not supported by the FIS, and unless valid hydrological information becomes available to the contrary, the city will implement the law as adopted. Increasing the "I 00 year" flood elevation up to one foot is permitted by law as a balance between protection of the public's interest, and a "takings" issue, and therefore does not constitute a significant adverse environmental impact. The applicant is not precluded from protecting him/herself from floodwater in the exercise of their property rights.
ITEM G: Can this proposal be mitigated to preclude all "probable significant adverse environmental impacts"?
FINDING: WAC 197-11-350(3) allows an agency to specify mitigation measures which would eliminate potential adverse impacts. The Mitigated Determination of Non-Significance (MDNS) is intended to encourage the applicant and agencies to work together early in the SEPA process to modify the project and eliminate significant adverse impacts." The city's Development Review Committee (DRC) comprised of the building, zoning, environmental, fire & police divisions, public works department, city attorney, city clerk and city manager has reviewed this proposal on at least two occasions and determined that the application of certain conditions to the proposal would eliminate potential impacts.
FURTHER: WAC 197-11-330 provides that the RO shall consider mitigation measures which an agency or the applicant will implement as part of the proposal. An EIS is used to assist the agency in identifying reasonable alternatives, including mitigation, that would avoid or minimize adverse impacts or enhance environmental quality. The filling activity is clearly described in the checklist and attachments and does not require an EIS to identify its potential impact on the floodplain. The future development of the property is not clearly identified in the checklist, but the potential for build-out under the city's zoning ordinance can be quantified and regulated. Nothing is being exempted from review. Numerous other ordinances of the city regulate potential impacts such as stormwater, traffic patterns, hazardous material generation and storage, and virtually every other aspect of any possible proposal. Existing regulations will eliminate any possible significant adverse environmental impact of any future proposal, and the mitigating conditions identified on this proposal are adequate to address any future proposal.
ITEM H: Are there any decisions or cases which might relate to or give guidance on a threshold decision on this proposal?
CITATION: "When the decision maker has identified some environmental impact, but has nevertheless concluded that a detailed EIS is not required, the decision maker must furnish or procure an "assessment" containing convincing reasons why a project with "possible" significant environmental impact does not require a detailed impact statement, before taking final action on the project. [Dept. of Ecology and Attorney General v. Klickitat Co. et. al. ]ASSESSMENT: Identified impacts relating to the filling activity include: displacement of flood storage capacity in a floodplain and potential for erosion from stormwater runoff into an existing filtration pond. The issue of displacement is addressed in item "F" above. In determining whether an EIS is required, the criteria remains whether a "probable significant adverse environmental impact" cannot be mitigated, not whether some impact may occur. An EIS for the proposed filling activity would not identify any more information than is already known or can be easily calculated using existing information. A "possible" impact might involve erosion or sedimentation into the drainage system already installed on the site or migration of leachate from the site. As long as the city has restrictive conditions under the authority of the stormwater utility which requires affirmative action to prevent erosion on such filling activity and the EPA has authority over the use of a "superfund" site, any "possible" impact is prevented. The city has any number of statutory methods of requiring compliance with adopted standards or corrective action if necessary.
This MDNS requires compliance with all applicable regulations for any future use of the property for a commercial and/or industrial park, including SEPA review. This conditioning statement is intended to identify a phased review process allowed by WAC 197-11-060(5). Adopted laws, development regulations, stormwater utility standards and DOE stormwater discharge standards to a wetland will adequately prohibit any significant adverse environmental impact. The only permit applied for is a fill permit; the checklist and supplemental site plan is adequate for a fill permit. (That doesn't mean it's adequate an anything else). The checklist is not adequate for future commercial development, and is not being "approved" by the city for anything beyond the fill application.
CITATION: Adequacy standards for an EIS are not applicable to an "environmental impact assessment." An assessment is adequate if it provides a sufficient basis for determination that no detailed impact statement is required. [Fisher Co. V. King County, et. al. ]
ID: A finding of no significant impact which is based on an adequate environmental assessment sufficiently complies with SEPA.CITATION: The total proposal must be identified before the categorical exemptions can be applied. [SEPA, C-2]
APPLICATION: This does not mean that the total proposal must be identified before an MDNS can be issued. This project was determined to not be categorically exempt and the fact that the site plan was lacking detail of the future commercial/industrial development is irrelevant to that decision. The decision specifically states (as a mitigating condition) that no future development is considered exempt. This also constitutes a phased review. I The applicant is free to argue categorical exemption for some future aspect of the proposal, but the condition has been applied to the entire proposal, including any future activity. Phased review for this proposal is appropriate under WAC 197-11-060 (5)(c)(ii).CITATION: If there will be no significant impacts, or the impacts can be mitigated, a determination of non-significance is issued. [WAC 197-11-350]
APPLICATION: No probable significant adverse environmental impacts are identified; any possible impacts for future activities are adequately mitigated by either applicable statutory regulations or attached conditions; the MDNS adequately precludes any future possible significant impacts.CITATION: Agencies should use existing studies and incorporate material by reference whenever appropriate. [WAC 197-11-635(1)]
APPLICATION: Chehalis Ordinance No. 394-B, which is a public law available to anyone, adopts by reference the flood insurance study of 1979 for Chehalis as the basis for its floodplain management regulations. This study is an extremely important document relating to the hydrology and function of the floodplain. Since the provisions of ordinance 394-B are applicable to this proposal, the elements of the study are also applicable to the proposal.CITATION: Before requiring mitigation measures, agencies shall consider whether local, state or federal requirements and enforcement would mitigate an identified significant impact. [WAC 197-11-660 (1)(e)]
APPLICATION: The SEPA process recognizes that applicable statutory law may, and in some cases is designed to, eliminate significant impacts. There is no need to require mitigation on something that will, in fact, be mitigated by the application of law. The SEPA process is not intended to be duplicative, but to address only significant adverse impacts that can't or won't otherwise be eliminated. This proposal has several conditions stated in the MDNS to address issues identified by the DRC that may not be covered in statutes; it does not have conditions for aspects that are regulated by laws or other agencies.CITATION: SEPA does not require that every remote or speculative consequence be included in an EIS. (Cheney v. Mountlake Terrace]
CITATION: Before deciding not to prepare an EIS, an agency must actually consider environmental factors (and later be able to demonstrate this consideration to a court on appeal). [Juanita Bay VCA v. Kirkland]CITATION: An agency may attach environmental mitigation measures as conditions for approval even after issuing a DNS. [Levine v. Jefferson County]
CITATION: SEPA does not require that all adverse impacts be eliminated but merely seeks a balance, restraint and control of development. A decision based on community displeasure and not on reasons backed by policies and standards will not withstand review. [Maranatha Mining v. Pierce County]
SEPA requires that public comments received be considered, and a determination made by the RO as to retaining, modifying or withdrawing the threshold mitigated determination of non- significance. Of significant notation is the fact that no agency assumed lead agency status on this proposal.
Phone calls were received from several individuals. No consideration is made on the calls since they were not properly filed as comments and, for the most part, were argumentative, abusive and opinionated. Public notice states that factual statements must be submitted for consideration.
pages omitted intentionally . . . . . . . .
downstream but includes no evidence or reference to any study to support that opinion. (8) Asserts unable to identify EPA deed restrictions (Note - the RO requested taxed copies of the EPA restrictions from DOE, Toxics Program on April 3rd; nothing has been received 3-1/2 weeks later). Argues that the MDNS should be withdrawn.
This individual clearly has a differing opinion and perspective on what this application consists of, what information is necessary to make a decision, and how the city should make its determinations. The only issue raised by this letter that is not included in the decision criteria in the previous section is relating to the tribes. The RO will address this issue below.
Knutsen - This letter asserts various opinions and facts without supporting evidence or reference to any studies, however the arguments relating to the involvement of the tribes do have supporting evidence in the form of a letter from the Department of the Interior (DOI). Most assertions in this letter relate to issues similar to all of the previous letters, and further discussion of those issue is not presented here. The applicability of the DOI letter, and the issues raised relative thereto, are discussed separately below. Assertions that filling would tend to increase the flood levels in downstream jurisdictions is not supported by any evidence or engineering study, including the FIS. The University of Washington letter attached to the Baker letter above is specifically and intentionally ambiguous as it relates to quantifying the cumulative affects of filling in the floodplain; however the FIS does quantify those affects.
Assertions that the city erred under WAC 197-11-350(3) are clearly erroneous. Arguments that the EPA restrictive covenants are very important to a determination are basically correct, but they are not absolutely necessary to issue an DNS - the covenants are only a minor element of the conditioning statements. The absence of any EPA covenant cannot create a significant adverse environmental impact. The puncturing of the clay cap could. The city is unable to obtain a document identifying the restrictive covenants. The concerns of the EPA are stated in a letter from an EPA attorney to Lewis County. Those concerns will be recognized by the city in the absence of any other documentation. AB arguments that the prior use of the property constituted a significant adverse impact are not relevant to the current proposal - there is no similarity whatever. There was no probable significant adverse impact when the EPA filled the property; the current filling proposal, as it relates to the floodplain, is no different than what the EPA did. There is also no evidence submitted that this proposal would tend to increase flood levels 20 miles downstream.
Only three relevant issues in addition to those initially considered are presented by the public comments: (1) Does the language contained in the MDNS for this proposal adequately state that a phased review process is being used, (2) Does the language contained in the MDNS for this proposal adequately allow or enable the requirements of the EPA to be enforced on this property to specifically preclude any significant adverse impacts, and (3) Is the Chehalis Tribe an affected tribe entitled to notice under 197-11-340(2)(b).
It is the opinion of the RO that the statement "future construction activity shall require a SEPA review unless categorically exempt," which was articulated in the threshold MDNS for the subject proposal, clearly and adequately conveys to a reasonable person that a phased review process is being required under 197-11-060(5)(e), and that alternative language such as "a phased review is being used" conveys less information and direction than the statement chosen. If however, the Department of Ecology would submit to the city the preferred language for this statement, the city would consider using such specified language in the future.
It is also the opinion of the RO, after discussing this application with Lee Marshall, project manager for the EPA on the subject site, that further clarification of the EPA position on the site would be appropriate. Marshall advises that there are no deed restrictions filed on the property. He requests that the attachment of the three concerns expressed in the EPA letter of November 12, 1996, be made deed restrictions to be filed by the owner as a condition of approval. Marshall also indicates that the EPA has not yet received an engineered site plan and requests that such engineering requirements be clearly articulated in the SEPA decision.
It is also the opinion of the RO that the Chehalis Tribe has no regulatory jurisdiction within the city absent a finding that some measurable affect would probably, not possibly, occur upon the Tribe in some definable manner. The public comments submitted are replete with speculation about any number of subjects. The Tribe has had an opportunity to officially argue these issues, but has not done so. Assertions that there might be some rights of the Tribe on this property by virtue of fishing rights in the Chehalis River are irrelevant to the SEPA process unless the site is causing measurable and definable damage to the river system. A finding of "probable significant adverse impact" cannot be made on speculation that "something might happen in the future." Adequate statutory controls are already in place.
Arguments that the prior activity on the site constituted a nexus to the Tribe is not an issue in this proposal. Whether it did or did not is irrelevant. The EPA has asserted that the site is "clean." The DOI stated in a letter to the EPA in July of 1990 (4 years after the EPA began studying the Crossarm site and 6 months after the second major flood) "while we have been unable to identify any adverse affects to trust resources from the site based on existing information, we are concerned about injury to natural resources if contaminants are migrating from the site." This is certainly an ambiguous statement but it at least indicates that no measurable or definable impact is identified off-site by DOI in 1990. If there was no off-site contamination to trust resources during the height of the EPA investigation and prior to any containment/capping action, there would need to be documentation submitted for the current proposal showing that the filling activity would cause a "probable significant adverse environmental impact" in order to be considered. Since there is no evidence, study, documentation, or anything else besides speculation indicating any adverse impact to the Tribe or the trust resources, the Chehalis Tribe is not an affected Tribe entitled to individual notice under 197-11-340. This is not to say that responsible comments from the Tribe would not be considered - this decision only relates to the issue of required individual notice.
The Responsible Official for the city of Chehalis does not withdraw the DNS issued for the identified project, however, this MDNS will be modified to more clearly express the authority and involvement of the EPA in the approval process. Mitigating conditions on MDNS #97-EO48 shall read as follows:
APPROVED MAY 1, 1997
EPA RESPONSIBLE OFFICIEAL
REVIEWED BY:
DIRECTOR OF COMMUNITY SERVICES
CITY ATTORNEY
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