HomeMy WebLinkAbout028David W. Johnson
From: Mackie, Sandy (Perkins Coie) [AMackie@perkinscoie.com]
Sent: Monday, May 09, 2011 2:29 PM
To: David W. Johnson; Stacie Hoskins
Cc: Garth Mann; peckassoc@comcast.net; Rentz, Karen (Perkins Coie)
Subject: scoping
Attachments: PH-ComparisonOfAlternativesChart-Feb1-11-v19 (2).pdf; Doc3.doc
Craig asked the question whether the 2010 scoping letter (to follow in next e-mail) had been formally replaced. The
question is very important since the EIS is technically required to follow the scoping notice which is now out of date as the
2007 alternative referenced is no longer feasible as required by SEPA regulations (see memo above). I have not seen any
update.
Likewise the detailed set of alternatives I received last week also seem dated and not responsive to the feasibility
requirement do to the inclusion of options which cannot be built under the updated shoreline master program. While the
detail in the recent chart is very good start, I believe clarification is in order to make sure the no action alternative is
clarified (no reason to go beyond the no action alternative in the EIS already approved-- and the two alternates both be
buildable under current county shoreline rules to satisfy the feasibility requirement. With that done in an updated scoping
notice, it should both shorten and serve to better focus the pending SEIS draft.
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May 9, 2011
TO: Mr. David Wayne Johnson; Ms. Stacie Hoskins;
Garth Mann; Craig Peck
FROM: Alexander W. Mackie
RE: Statesman Scoping clarification.
Perkins
Coie
The County issued a scoping notice dated March 2010, and a subsequent listing with a prior
author addressing the scope of the Pleasant Harbor alternatives. Copies are attached to the E-
mail forwarding this memo.
I raised questions about the viability of an EIS written to the proposed scope primarily because
the "alternatives" did not meet the feasibility test because the 2007 proposal and one of the
alternates did not comply with the updated shoreline master program and as such would not be a
"feasible alternative". I have addressed both the no action alternative (covered in the original
EIS) and the preferred alternative (the basis for most of Garths reports) in a prior a -mail.
Cases make it very clear that a valid EIS must have valid alternatives. Two of the best known
cases are Opal and Weyerhaeuser. While both dealt with the choices dealing with public vs.
private projects, both set the clear requirement for feasible alternatives.
SEPA's administrative rules provide that *876 an EIS must consider as alternatives those
"actions that could feasibly attain or approximate a proposal's objectives, but at a
lower environmental cost or decreased level of environmental degradation." WAC § 197-
11-440(5)(b).
Under current administrative rules and case law, whether an EIS must include
consideration of offsite alternatives depends on whether the project is public or private.
An EIS for a private project on a specific site need only consider a "no action alternative
plus other reasonable alternatives for achieving the proposal's objective on the same site."
WAC X197 -11-440(5)(d); Weyerhaeuser, 124 Wash.2d at 39, 873 P.2d 498.
Organization to Preserve Agr. Lands v. Adams County 128 Wash.2d 869, 913 P.2d 793
Wash., 1996
"The adequacy issue raised at this time is whether the EIS contains sufficient discussion
of alternatives to the proposed project. RCW 43.21C.030 requires that an EIS contain a
detailed discussion of alternatives to the proposed action. The required discussion of
alternatives to a proposed project is of major importance, because it provides a basis for
a reasoned decision among alternatives having differing environmental impacts.
Pursuant to WAC 197-11-440(5)(b), the reasonable alternatives which must be
considered are those which could "feasibly attain or **505 approximate a proposal's
objectives, but at a lower environmental cost or decreased level of environmental
degradation".
Weyerhaeuser v. Pierce County 124 Wash.2d 26, 873 P.2d 498Wash.,1994.
If one or more of the alternatives covered in the EIS cannot be constructed under the current
regulatory regime, and the critical rules are not subject to review (in this case the Shoreline
update) the alternative is not feasible and the choice not proper for SEPA analysis.
Since the EIS is required to follow the scoping letter, and the scoping letter is required to cover
"feasible" alternatives, I believe it is important for the Environmental review official to issue an
amended Scoping notice:
1. No action alternative -the no alternative covered in the original EIS since it was
litigated and found appropriate.
2. The preferred alternative- which I assume is the third alternate in the chart developed
with Vicki attached to the FEIS, with clarification on the power alternative which seemed to be
at issue when the chart was developed.
3. The alternative which may be a combination of layout which may be achieved with the
present shoreline master program and the difference between code requirements and upgrades
planned for this project which would become conditions of approval.
Before we go too far, I believe it is important that the ERO update and clarify the scoping notice
to cover feasible alternatives under the present county rules.
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