What follows is a scanned copy of the Decision of the Thurston County Hearing Examiner relating to AAPL-98-0075, Hank Doelman vs. Tammy Phelps and Timothy Miller
BEFORE THE HEARING EXAMINER
FOR THURSTON COUNTY
| In the Matter of the Application of | NO. SSDP-98-0075 AAPL-98-0075 |
| Applicant: Hank Doelman
Appellant: Tammy Phelps/Timothy Miller ) |
FINDINGS, CONCLUSIONS AND DECISION |
| For a Shoreline Substantial Development Permit (SDP). |
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The appeal of the May 25, 1999 MDNS (SEPA-98-0075) issued in conjunction with Hank Doelman's request for a Shoreline Substantial Development Permit to construct an animal waste storage pond within the 100-year floodplain of the Chehalis River is GRANTED. No decision is made of the Shoreline Substantial Development Permit until all SEPA issues and procedures are resolved.
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Request:
Hank Doelman (Applicant) requested a Shoreline Substantial Development Permit (SSDP) to construct a three-acre animal waste storage pond (WSP) within the 100-year floodplain of the Chehalis River. The subject property is located at 1 1641 183 d Avenue SW, Rochester, Thurston County, Washington. Thurston County issued a Mitigated Determination of NonSignificance for the proposal, which was appealed by Tammy Phelps and Timothy Miller (Appellants).
Hearing Date:
An open record hearing on the requests was held before the Hearing Examiner of Thurston County on August 2, 1999.
Testimony:
At the hearing the following individuals presented testimony under oath:
1. Cindy Wilson, Thurston County
2. Fred Colvin, Applicant's Representative
3. Tammy Phelps, Appellant
4. Timothy Miller, Appellant
5. Wym Matthews
6. Mark Tovrea
7. Bob Young
8. Neil Marvin
9. Kamiele Anderson
10. John Rose
11. John Cochran
12. Wayne Perry
13. Nora Boyd
The Applicant was represented by Richard Phillips, esq. The Appellants were represented by Ben Cushman, esq. The County was represented by Thurston County Prosecuting Attorney, Jeff Fancher.
Exhibits:
At the hearing the following exhibits were admitted:
Appeal Exhibits
Exhibit I AAPL-98-0075 Development Services Report
Attachment a Notice of Hearing
Attachment b Administrative Appeal
Attachment c Pre-Hearing Order
Attachment d Mailing List for SEPA Mitigated Determination of NonSignificance
Attachment e Drainage Erosion Control Plan (See Exhibit 7, Attachment i)
Attachment f Project Design Folder and Plans (See Exhibit 7, Attachment j)
Attachment g HEC-2 Analysis (See Exhibit 7, Attachment k)
Attachment h Soil Mechanics Report (See Exhibit 7, Attachment 1)
Exhibit 2 Pre-hearing Statement of Appellants
Attachment I June 14, 1994 Letter from U. S.D. A. Soil Conservation Service
Attachment 2 Copy of Executive Order No. 11988
Attachment 3 HEC-2 Analysis
Attachment 4 Environmental Checklist
Attachment 5 U.S. Environmental Protection Agency Environmental Impacts of animal Feeding Operations (December 31, 1998)
Exhibit 3 Request for Summary Dismissal of Appeal, Submitted by Applicant
Exhibit 4 Declaration of Appellant, with Attachments
Exhibit 5 August 2, 1999 Letter from Roberta Davenport
Exhibit 6 April 9, 1996 Full Size Aerial Photograph
Exhibit 7 SSDP-98-0075 Staff Report
Attachment a Notice of Public Hearing
Attachment b Joint Aquatic Resource Permit Application
Attachment c Environmental Checklist
Attachment d Mitigated Determination of NonSignificance, dated May 25, 1999
Attachment e Vicinity Map
Attachment f Site Plans (3)
Attachment g Project Plans (7)
Attachment h March 4, 1999 Memorandum from Thurston Conservation District
Attachment i Drainage Erosion Control Plan
Attachment j Project Design Folder and Plans
Attachment k HEC-2 Analysis
Attachment l Soil Mechanics Report
Attachment m March 15, 1998 Letter from Bob Young
Attachment n March 9, 1998 Letter from Ronald and Carla Hardenbrook
Attachment o March 16, 1998 Letter from Tammy Phelps
Attachment p May 6, 1999 Memorandum from Roads and Transportation Services Department
Attachment q May 6, 1999 Memorandum from Environmental Health Department
Exhibit 8 Thurston County GeoData Floodways and Wetlands Map
Exhibit 9 Thurston County GeoData Aerial Map of Area
Exhibit 10 Thurston County GeoData FEMA 100-year and 500-year Flood Plain Map
Exhibit 11 Thurston County GeoData Map Showing Where Water Went in the 1996 Flood
SSDP Exhibits
Exhibit 1 SSDP-98-0075 Development Services Report (See Appeal Exhibit 7, Above)
Exhibit 2 Photographs Submitted by Bob Young of 1996 Flood
Exhibit 3 Declaration of Robert Schanz, P.E. with Attached Letter, Submitted by Tammy Phelps.
Exhibit 4 Video Tape Submitted by John Cochran
Upon consideration of the testimony and exhibits submitted at the open record hearing,
the following Findings and Conclusions are entered by the Hearing Examiner
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1. The Applicant requested a SSDP to construct a three-acre animal waste storage pond (WSP) within the 100-year floodplain of the Chehalis River. The subject property is located at 11641 183rd Avenue SW, Rochester, Thurston County, Washington. The Chehalis River is subject to the jurisdiction of the State Shoreline Act (RCW 90.58). Appeal Exhibit 7, SSDP Staff Report,- Appeal Exhibit 7, Attachment b, JARPA; WAC 173-18-380(5).
2. The subject property is zoned Long Term Agriculture (LTA) and designated in the Thurston Regional Shoreline Master Program as a Rural Shoreline Environment. Appeal Exhibit 7, SSDP Staff Report.
3. The Applicant operates a dairy on site, which consists of 600 milking cows that produce almost four million gallons of manure each year. Although the Applicant spreads the manure over the fields as fertilizer, there is currently inadequate storage space for all of the manure on site. In order to control the amount being stored, the Applicant must spread the manure over the fields daily, regardless of the weather or saturation of the soil. Because of the limited space and intensity of the operation, manure is often discharged off-site. Appeal Exhibit 1, AAPL Staff Report, Appeal Exhibit 2, Attachment 1, U.S.D.A. Letter, Appeal Exhibit 7, Attachment j, Project Design Folder and Plans, Testimony of Mr. Colvin.
4. Various state and local regulations are applicable to manure handling. The State of Washington requires manure management as part of shoreline permits. WAC 173-16 -060. In addition, WAC Title 173 sets forth state regulations on manure handling. The State Soil Conservation Service prepared a plan for the subject dairy that includes manure storage as a structural element of the dairy operation. Testimony of Mr. Colvin; Testimony of Mr. Matthews. The Applicant's proposal complies with all dairy farm requirements of the state of Washington. Testimony of Mr. Matthews.
5. The proposed WSP was designed for the Applicant by the U.S.D.A. Natural Resources Conservation Service (NRCS) in order to provide six months of storage capacity for animal wastes produced on site. The manure is projected to be stored in the WSP from October to March, and then applied to the fields during crop growing season. Appeal Exhibit 7, Attachment h, Memo from Thurston Conservation District; Appeal Exhibit 7, Attachment j, Project Design Folder and Plans; Testimony of Mr. Colvin.
6. The WSP would be approximately 314 feet long and 193 feet wide. Although the project site has an elevation of I 1 2 feet, the 100-year flood elevation is I 1 4 feet. Because of the difference, the proposal includes the construction of a several-foot-high embankment (berm) around the perimeter of the pond. With the berm, the elevation at the top of the pond would be 117.3 feet. The plans also include a 1.8-foot compacted soil liner and an overflow spillway constructed of rock riprap. As recommended by the NRCS, the bottom of the pond would be a liner that would be approximately two feet above the seasonal high water table. A manure injection machine would transport the manure via pipeline from the barns to the WSP. Appeal Exhibit 7, Staff Report,- Appeal Exhibit 7, Attachment h, Memo from Thurston Conservation District, Appeal Exhibit 7, Attachment j, Final Design Folder and Plans; Appeal Exhibit 7, Attachment q, Memo from Public Health and Social Services; Testimony of Mr. Colvin
7. The spillway is a requirement of the Department of Ecology. It is not intended to accommodate spills, but is designed with the assumption that the WSP will contain the manure within its boundaries. If the spillway was ever used, water quality could be impacted. Testimony of Ms. Wilson.
8. The WSP would have a six-million-gallon storage capacity. It would store manure, rainwater mixed with manure, and rainwater falling directly into the pond. Only waste produced on site would be stored in the WSP. Appeal Exhibit 7, Attachment h, Memo from Thurston Conservation District, Testimony of Mr. Matthews.
9. The WSP was designed to reduce environmental impacts caused by the dairy. Wym Matthews of the Thurston Conservation District offered the following comments regarding waste storage ponds:
Manure lagoons are a proven technology that has resulted in water quality improvements on farms that have implemented those structures. The history of these structures goes back over 20 years with good track records.
Appeal Exhibit 7, Attachment h, Memo from Thurston Conservation District, Testimony of Mr. Matthews
10. Even though the proposed WSP is designed to be at the highest elevation of the subject property, the site was underwater during the floods of 1996 and 1998. Appeal Exhibit 7, SSDP Staff Report, Appeal Exhibit 7, Attachment o, Letter from Tammy Phelps. The floods of 1996 were the most severe on record and the depth of water in the floodplain on the property was approximately 16 to 18 inches. Testimony of Mr. Miller. Adjacent properties were similarly affected by floods of both the Chehalis River and Chehalis Slough. For example, during the 1996 flood, Appellant Tammy Phelps' property, outside the 100-year floodplain, had floodwaters reach the front of the garage. She testified that if the water level had been 1/4" higher, her garage would have flooded.
11. Since 1996, the floods have exceeded the 100-year floodplain, and the Appellant's property has flooded every year. Testimony of Ms. Phelps. Other property owners have had similar experiences. See, e.g., Testimony of Mr. Marvin (floodwaters entered his home in 1996) and Testimony of Mr. Rose (floodwaters have reached the top of his well head). During flood events, the water flows through the Applicant's property before entering some of the neighbors' property. Testimony of Mr. Marvin.
12. In March 1997, the Thurston Conservation District (District) performed an HEC-2 analysis to determine the impact the berm would have on water flow in the area. Appeal Exhibit 7, Attachment k, HEC-2 Analysis; Testimony of Ms. Wilson. The analysis was based on the Applicant's 1994 WSP plans, which have since changed. Among the differences, the original plans were for a larger pond, Testimony of Ms. Wilson, and the original plans included only one foot of pond liner instead of the proposed two feet of liner. The addition of liner increases the elevation of the top of the pond. Appeal Exhibit 7, Attachment q, Memo from Public Health and Social Services.
13. The District submitted a short memo summarizing the results of the HEC-2 analysis to the County. Neither the memo or attached report were signed or stamped, and the District did not provide any information regarding the assumptions relied or the methodologies used in the analysis. Only two cross-sections of the pond were used in the analysis. Testimony of Ms. Wilson. Based on the HEC-2 analysis of the 1994 WSP plans, the District predicted that for the 100-year flood event, the project would cause the floodplain elevation to rise 0. 12 inches at the project site and 0.24 inches 4630 feet downstream. It concluded that "no detectable flood-rise would occur' as a result of the Applicant's proposal. Appeal Exhibit 7, Attachment k, HEC-2 Analysis, Testimony of Ms. Wilson. Impacts caused by the project during flood events exceeding the 100-year flood levels were not considered in the HEC-2 analysis. Testimony of Ms. Wilson.
14. Hydrologist Robert Schanz submitted the following comments regarding the HEC-2 model, in general and as applied to the proposal:
Hydraulic models such as HEC-2 can be manipulated in many ways to simulate a proposed condition, and it is vital that all model assumptions are documented and available for review. For example, without a map of cross-section locations it is impossible to see how the lagoon was represented in the model. or to interpret the model's results... Depending on the lagoon shape, at least three cross-sections (one at each end and one in the middle) would be required to accurately simulate its impact on local flood levels. I am also concerned that HEC-2 is not the right model for this situation. This section of the Chehalis has very complicated flow characteristics, due to the many backwater sloughs and the nearby confluence with the Black River. HEC-2 is a one-dimensional, steady-state model that will probably not be able to accurately simulate the kinds of dynamic, two dimensional flow patterns that will be influenced by the lagoon. The U.S. Army Corps of Engineers recognizes this, and is now using their updated UNET model to model these kinds of situations.... Finally, it is well known that the FEMA studies underestimate the 100-year flow rates on the Chehalis.
SSDP Exhibit 3, Declaration of Robert Schanz.
15. Pursuant to the State Environmental Policy Act (SEPA), Thurston County was designated lead agency for review of environmental impacts caused by the proposal. The County conducted its review based on the Environmental Checklist, the 1997 HEC-2 analysis, and other documents furnished by the Applicant.(see footnote 1). The County determined that, with mitigation, the proposal would not have a probable significant adverse impact upon the environment, and issued a Mitigated Determination of NonSignificance on May 25, 1999. The MDNS contained 11 conditions, three of which are particularly relevant to this appeal:
Condition No . 1(h): The elevation of the top of the berm shall be one foot above the FEMA flood elevation or the highest flood of record, whichever is greater.
Condition No. 2: in order to prevent any possibility of overflow or early application; the size of the lagoon shall be able to handle the 25-year 24-hour rainfall or the maximum 24 hour rainfall in the last three years whichever is greater. This may be accomplished by either increasing the pond size or decreasing the amount of liquids included in the farm operations that are directed to the lagoon.
Condition No. 6: Construction of the new Manure Storage Pond shall not obstruct the floodplain or waters that flow through the area. The applicant has submitted a HEC-II analysis of the backwater impacts from the project that indicate no detectable flood rise would occur in the area of the pond.
Appeal Exhibit 7, Attachment d, MDNS, Appeal Exhibit], Staff Report, Testimony of Ms. Wilson.
16. The County characterized the proposed use as management of a farm in a long-term agricultural zone. Testimony of Ms. Wilson. Existing and ongoing agricultural uses are permitted within the 100-year floodplain without separate review under the Thurston County Critical Areas Ordinance. Chapter 17.15 Thurston County Code, Table 5.
17. In conducting its environmental review, the County determined that the HEC-2 analysis was sufficient even though it was based on the Applicant's 1994 plans. In MDNS condition no. 6, the County adopted the Thurston Conservation District's conclusion that the proposal would cause no detectable flood rise. However, the County has no guidelines for determining whether a particular increase in flood rise is "detectable." Testimony of Ms. Wilson.
18. The County considered odors and potential methane gas pollution in its review. Thurston County routed the request to the Olympia Clean Air Agency for comments, but no comments were received. No evidence was submitted regarding the impacts and in the absence of comments, the County assumed that the Agency concurred with the proposal.
In most circumstances, agricultural uses and odors are exempt from the state clean air laws (see footnote 2). Testimony of Ms. Wilson.
19. Tammy Phelps and Timothy Miller (Appellants) appealed the MDNS on June 8, 1999, the final day for submission of comments. Appeal Exhibit 1, Attachment b, Administrative Appeal, Appeal Exhibit 7, Attachment c, MDNS. The Appellants argued that the MDNS issued by the County was improper, and an EIS should be required, because the proposal would have a significant impact on the environment. To support their argument, the Appellants cited the following unmitigated impacts and procedural defects:
a. floodwaters would be diverted to neighboring properties;
b. the proposal would generate methane air pollution;
c. the WSP has potential to spill or be flooded;
d. the proposal would increase unpleasant odors in the area;
e. the proposal would increase the number and concentration of airborne noxious insects;
f. groundwater would be inadequately protected from contamination;
g. notice was inadequate; and
h. the County did not analyze the project under the Thurston County Critical Areas Ordinance, Chapter 17.15, Thurston County Code.
Appeal Exhibit 1, Attachment b, Administrative Appeal
20. On July 27,1999, the Applicant filed a Request for Summary Dismissal of Appeal pursuant to TCC 17.09.160. The Applicant requested that the Hearing Examiner dismiss the appeal for lack of standing. Appeal Exhibit 3, Request for Summary Dismissal of Appeal. TCC 17.09.160(B) reads: "Any person aggrieved by a threshold determination may appeal; provided, however, if there is a comment period required by WAC 197-11-340, only those persons who submit written comments during the comment period may appeal the threshold determination." Appellant Tammy Phelps submitted comments regarding the proposal on March 16, 1998. The County considered those comments, coupled with the June 8, 1999 Notice of Appeal, as sufficient to confer standing under SEPA. Appeal Exhibit 4, Declaration of appellant. The motion to dismiss was denied because the Appellants had property in the immediate vicinity that had potential for impact by the proposed project.
21. Notice of the open record public hearing was published in the Olympian on July 21, 1999 and mailed to adjacent property owners within 500 feet of the subject property on July 20,1999. Appeal Exhibit 7, Attachment a, Notice of public Hearing, Exhibit 1, Attachment d, Mailing List.
22. Several area property owners offered verbal and written testimony describing the nature of the flooding problem; explaining how the flooding would impact the WSP; and, predicting how the WSP would impact the environment, particularly in the event of failure. Testimony of Mr. Tovrea, Testimony of Mr. Young,- Testimony of Mr. Marvin; Testimony of Ms. Anderson; Testimony of Mr. Rose; Testimony of Ms. Boyd, Exhibit 7, Attachment m, Letter from Bob Young, Exhibit 7, Attachment n, Letter from Ronald and Carla Hardenbrook,- Exhibit 5, Letter from Roberta Davenport. An example of this type of testimony was given by Mark Tovrea, who offered comments regarding the floodwater and the impact on the permeability of the soil. He testified that the soil used to construct the berm would not be able to achieve 95 percent compaction and as a result there would be failures. Testimony of Mr. Tovrea
Because high compaction is necessary to ensure that water or other liquids do not permeate the soil, a Soil Mechanics Report was prepared by the NRCS. The report recommended soil compaction of 100 percent to achieve "a satisfactorily low permeability." Exhibit 7, Attachment 1, Soil Mechanics Report. Because the berm may not meet this standard, Mr. Tovrea was concerned that it would be damaged by rapid floodwaters or an earthquake. Testimony of Mr. Tovrea. Similarly, Neil Marvin expressed concern that the facility would "dissolve" in a flood. Testimony of Mr. Marvin.
Madore Boyd also expressed concerns about water issues, as well as soil contamination, insects, and air quality. Testimony of Ms. Boyd Ronald and Carla Hardenbrook submitted similar comments. Exhibit 7, Attachment o, Letter from Ronald and Carla Hardenbrook. Roberta Davenport added the concern that permit requirements would not be adequately enforced. Exhibit 5, August 2, 1999 Letter from Roberta Davenport.
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The Hearing Examiner is granted jurisdiction to hear and decide appeals of administrative
decisions pursuant to RCW Chapters 3 5.63 A, 36.70B and 43.21C, and TCC 17.09.160.
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Chapter 43.21 C. RCW, the State Environmental Policy Act ("SEPA"), specifies the environmental review procedures the County must follow when it considers proposals that may have an impact on the environment. One purpose of the act is to "insure that presently unquantified environmental amenities and values will be given appropriate consideration in decision making along with economic and technical considerations." Every proposal that may impact the environment (unless it is exempt from the act) must undergo some type of environmental review. RCW 43.21C.030(b). The culmination of this environmental review is a threshold determination as to whether an Environmental Impact Statement (EIS) should be required.
The criteria and procedures for determining whether a proposal is likely to have a significant adverse impact are specified in WAC 197-11-330. In making a threshold determination, the responsible official must (1) review the environmental checklist submitted by the applicant and independently evaluate the applicant's responses, (2) determine if the proposal is likely to have a "probable significant adverse environmental impact", and (3) consider mitigation measures which the applicant will implement as part of the proposal. WAC 197-11-330(1); Indian Trail Prop. Ass'n v. Spokane, 76 Wn.App. 430, 442 (1994).
In determining an impact's significance, the responsible official must take into account that the same proposal may have a significant adverse impact in one location but not in another; that several marginal impacts when considered together may result in a significant adverse impact; and that for some proposals, it may be impossible to forecast environmental impacts with precision. WAC 197-11-330(3). A threshold determination must not balance whether the beneficial aspects of a proposal outweigh its adverse impacts. WAC 197-11-330(5); Indian Trail Prop. Ass'n, 76 Wn.App. at 442. Proposals designed to improve the environment may also have significant environmental impacts. WAC 197-11-330(5).
If the responsible official determines there will be no probable significant adverse environmental impacts, the lead agency issues a DNS. WAC 197-11-340(1). SEPA also permits an MDNS, which is a determination that, as mitigated, the proposal will not have a significant adverse environmental impact. WAC 197-11-350; RCW 43.21C.090; Indian Trail Prop. Ass'n, 76 Wn.App. at 442.
"Significant" as used in SEPA means a reasonable likelihood of more than a moderate adverse impact on environmental quality. The severity of an impact should be weighed along with the likelihood of its occurrence. An impact may be significant if its chance of occurrence is not great, but the resulting environmental impact would be severe if it occurred. WAC 197-11-794.
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Clear error is the standard of review applicable to substantive decisions based on SEPA. Cougar Mt. Assocs. v. King Coun ty 111 Wn.2d 742, 749, 765 P.2d 264 (1988). Under this standard of review, a court does not substitute its judgment for that of the administrative body and may find the decision 'clearly erroneous' only when it is 'left with the definite and firm conviction that a mistake has been committed."' Id . at 747 (quoting Polygon Corp. v. Seattle , 90 Wn.2d 59, 69, 578 P.2d 1309 (1978)). Consequently, "the mere fact there exists credible evidence contrary to the tribunal's findings is not sufficient by itself to label those findings clearly erroneous." Keppeler v. Board of Trustees of Community College District No. 15, 38 Wash.App. 729, 732, 688 P.2d 512, 515 (1984). The Hearing Examiner should accord "substantial weight" to the County's decision to issue an MDNS and not require an EIS. RCW 43.21C.090. The Appellant has the burden of proving that the County's decision was clearly erroneous. Leavitt v. Jefferson County, 74 Wash. App. 668 (1994).
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1. Notice of the open record hearing was adequate. SEPA requires that the lead agency use "reasonable methods" to inform the public of open record hearings on threshold determinations. Examples of reasonable methods include posting notice on the subject property, publishing notice in a local newspaper of general circulation, and mailing notice to persons on an agency mailing list. SEPA does not require any particular method: it only requires that the agency adopt one. WAC 197-11-510; WAC 197-11-535. Thurston County's notice procedure for appeals of threshold determinations is contained in TCC 17.09.160. It requires that the Appellant, adjacent property owners within 500 feet of the subject property, and appropriate agencies receive notice of the hearing. TCC 17.09.160, Appeal Exhibit 1, Staff Report. The County followed this notice procedure. Finding of fact No. 21. The Appellants argue that notice should have been provided to property owners one mile upstream of the project site because "a project extends as far as it causes water to cover the ground." Appeal Exhibit 2, Prehearing Statement of appellants. The Appellants cite no authority for this proposition. Any increase in floodwater elevation is not part of the proposal itself. it is an effect of the proposal. Notice of the open record hearing was adequate.
2. The County did not have enough information from which it could reasonably conclude that the proposal would not have a probable significant adverse impact on the environment.
a. The HEC-2 analysis relied on by the County was not based on the proposal's current dimensions. Although the area of the proposed WSP is smaller than the one used in the analysis, the height is greater. Finding of fact No. 12. With review of the HEC-2 analysis it is unclear what physical consequences and impacts may occur with the changed dimensions.
b. The results of the HEC-2 analysis are out of date. The HEC-2 analysis, prepared in 1997, was based on 1994 project plans and the 100-year floodplain established by FEMA. Site characteristics, such as elevation, may have slightly changed since then. More significantly, the flood conditions have changed. Uncontradicted testimony was received regarding the inaccuracy of the FEMA 100-year floodplain level. This is of significance because since 1996, floods have consistently exceeded the 100-year level. The HEC-2 analysis should have been based on current flood conditions. Findings of fact Nos. 10 - 14.
c. The reliability of the HEC-2 model is in doubt. As Mr. Schanz commented, the HEC-2 model is ill-designed to simulate the complicated flow patterns of the Chehalis. Finding of fact No. 14. Not enough data of the 1996 flood has been studied and the impact to the proposed use is unclear. With floods of the same size or greater than those in 1996, significant environmental damage may occur with the development of the WSP.
d. The information provided by Thurston Conservation District was incomplete. The HEC-2 analysis did not include a description of the methodology used or the assumptions relied on. This is of consequence because the assumptions relied on might be inconsistent with current site conditions. Further, only two cross-sections of the pond were used in the analysis, rather than the three cross-sections recommended by Mr. Schanz. Findings of fact Nos. 13 & 14.
e. The MDNS conditions allow additional changes in WSP design that were not accounted for or addressed in the HEC-2 analysis. MDNS condition no. 2 requires that the proposed WSP have capacity to store a certain amount of rainwater, even if such storage necessitates construction of a larger pond. In implementing the change in pond dimensions, impacts to the floodplain could be increased because more floodwater would be displaced. Similarly, MDNS condition no. I requires that the elevation of the berm be one foot above the FEMA flood elevation or the highest flood of record, whichever is greater. While the proposal was analyzed according to the FEMA flood elevation, analysis according to the highest flood of record, 1996, would be more appropriate. If the Applicant uses the highest flood of record, the height of the WSP could change, thus potentially increasing impacts to the floodplain. In sum the County's analysis was not integrated enough. Greater information and details must be reviewed and approved before the County can make an accurate environmental assessment. Findings of fact Nos. 13 & 15
f The County's conclusion that the rise in floodwater caused by the proposal would be undetectable conflicts with the testimony of the Appellants and other area property owners. The testimony indicates that even a 1/4" increase in the floodplain could impact their properties. Findings of Fact Nos. 1 0, 11 & 17.
3. Even assuming complete information, the proposal would have a probable significant adverse impact on the environment, and an EIS should be required.
The Applicant proposes to construct an open, six-million-gallon animal waste storage facility on property that is subject to yearly flooding. The Applicant's neighbors have indicated that the floodwater is rapid, and that it flows through the subject property before reaching other properties. There is no assurance that the berm would be able to withstand the floodwaters. There is no assurance that the WSP would be higher than an unusually severe flood. Even if the HEC-2 analysis was accurate in predicting impacts to the floodplain caused by the WSP, the HEC-2 analysis can not predict impacts to the WSP caused by the floodplain. The probability of a significant adverse environmental impact in the event of WSP failure is 100 percent: manure would be discharged on the subject property and on properties located downstream of the subject property. The testimony indicates that WSP failure, due to either unpredicted flooding or berm instability is not remote. Since the project was designed according to the FEMA 100-year floodplain level, a flood the size of the 1996 flood could destroy it. As noted above, an impact may be "significant' if the probability of its occurrence is low, but the impact would be severe. In this case, the impact would certainly be severe. Findings of fact Nos. 1, 6, 8, 10 & 22. The fact that the proposed WSP is an improvement over current dairy practices and is consistent with U.S.D.A. guidelines does not change the analysis. Findings of fact Nos. 3-5, 9; WAC 197-11-330(5). The Appellants have met their burden of proof. The County's decision to issue an MDNS was clearly erroneous, and an EIS should be required.
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Based upon the preceding Findings and Conclusions, the appeal of the May 25, 1999 MDNS issued in conjunction with Hank Doelman's request for a Shoreline Substantial Development Permit is approved, and the matter is remanded to the Department of Development Services for the purpose of requiring an EIS prior to the issuance of any permits to construct an animal waste storage facility at 11641 183rd Avenue SW, Rochester, Washington. Because additional environmental review is required, there is no decision on the request for a SSDP.
Decided this 1st day of September, 1999.
James M. Driscoll
Hearing Examiner for Thurston County
Findings, Conclusions & Decision
Hearing Examiner of Thurston County
Hank Doelman, Nos. SSDP-98-0075, AAPL 98-0075
Page 13
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1 In the Environmental Checklist, the Applicant answered "No" in response to question 3(a)(6) (asking whether the proposal involves any discharges of waste materials to surface waters); "None' in response to question 3 (b)(2) (asking for a description of waste material would be discharged into the ground from agricultural sources); and "No" to question 3(c)(2) (asking whether waste materials could enter ground or surface waters). Exhibit 7, Attachment c, Environmental Checklist.
2 RCW 70.94.640:
Odors caused by agricultural activity consistent with good agricultural practices on agricultural land are exempt from the requirements of the Clean Air Act unless they have a substantial adverse effect on public health
Exhibit 1, Staff Report, page 3.
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