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commtech.us@gmail.com on behalf of Mark Rose <mark@markrose.org>
Monday, January 04,20L6 5:43 PM
David W. Johnson
Testimony concerning the FSEIS and UDC Amendment for Proposed Brinnon MPR
M LAO2-00014- MarkRoseSEPA-Appeal.pdf;
12.16.15.JeffCou nty,PIeasa ntHarborletter-L.pdf
January 4,2016
Mark Rose
687 Pulali Point Road
Brinnon, WA 98320
360-301-2600
In 2001 I argued an appeal before the SEPA Hearing Examiner on the Jefferson County plan for
commercial re-zoning in Brinnon, including a proposed MPR at Black Point. The determination
of the Jefferson County Hearing Examiner Irv Berteig is attached.
As the Hearing Examiner cites, the country-wide FEIS is a deeply flawed document that
basically says that any development anywhere in the County will have no environmental
impact. It was sobering to realize that Jefferson County had no understanding of the purpose
and process of SEPA review and there was no baseline to determine adverse environmental
impacts of development.
The ruling is instructional because it details to process for SEPA review and how it integrates
into all phases of a development project. I urge all county officials with any involvement in this
latest MPR proposal to read this document carefully.
1
Michelle Farfan
I have been a resident of Brinnon, WA for 16 years. This is my testimony concerning the matter
of Pleasant Harbor Marina and Golf Resort LLC Master Planned Resort Case Nos: MLA08-
00188, ZON08-0056. This concerns the FSEIS and notice of intent to amend the UDC.
Here we are again, 15 years later, and it is disturbing to see that Jefferson County officials
still do not understand the purpose and process of SEPA. The current MPR proposal at
Black Point in Brinnon by the Canadian developer has not been through the proper SEPA
review and is open to a highly credible legal challenge.
The current MPR proposal is much bigger than the 2001MPR plan. A proposal of this
magnitude has the potential to cause devastating, long-term, and possibly irreparable damage to
our fragile ecosystem.
I urge county officials to extend the comment and review period for the FSEIS at least 60 days
as requested by the Port Gamble S'Klallam Tribe in the letter dated December 16,2015.
Please, for the sake of all of us in Jefferson County, consult the Tribes, consult all the impacted
parties, and understand the baseline ecology and the potential impacts BEFORE you issue a
FSEIS or amend the UDC. At some point, Jefferson County needs to establish a credible
process to review the environmental impact of development proposals. We can't repeat the
same mistakes over and over again.
Sincerely,
Mark Rose
attached:
1. File No. MLA02-00014 before the Hearing Examiner For Jefferson County,l2ll2l200l
2. Letter from Jeromy Sullivan, Chair, Port Gamble S'Klallam Tribe, 1211612015
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Mark Rose
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BEFORE THE HEARING E]GMINER EOR JEEEERSON COUNTY
Irv Bertelg, Hearing Examiner
RE: Appeal by Mark Rose, Better
Brinnon Coalition, to the SEPA
Determination of Non-Significance
IDNS] issued on 12/12/200L by the
Jefferson County Department of
Community DeveJ-opment
File No. MLA02-00014
FTNDTNGS, CONCLUSTONS,
AI{D DECISION
BACKGROT'I{D INFORMATION
In November 1999 the Jefferson County Board of Commissioners
IBOCC] init.iated the Brinnon Subarea p]anning process and appointed a
citizen Brinnon Subarea Plannj-ng Group IBSPG or BPG] . The BSPG
recommended a draft plan to the BOCC on August 28, 2001. The BOCC, in
Lurn, forwarded the draft plan to the Planning Commission for their
consideration. Meanwhife, the Department of Community Development
IDCD] prepared an Environmentaf Checkl-ist and Staff memorandum
covering possible directions for State Environmentaf Policy Act ISEPA]
actions. A1 Scalf, DCD Director and SEPA Responsibl-e Official, issued
a combj-ned DNS and adoption of existing environmental documents. On
January 7, 2002, Mark Rose, Better Brinnon Coalition, filed a t,imely
appeal to the DNS issuance.
PROCEDI'RAI, INFOR}IATION
Open Record Appeal, Hearing Date: February 19, 2002.
The appeal hearing was opened at 1:00 p.m. in the Courthouse Eirst
Floor Conference Room. After the procedures and the Examiner's rol-e
were explained, testimony was accepted. A verbatim recording of the
public hearing was made. The tape is maintained in the Jefferson
Permit Center file.
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Participants:
Mark Rose,Appellant, and A1 Scalf, Respondent, met briefly with the
theExaminer in an administrative pre-hearing conference to discuss
number of parties each would ask to testify for them.
Josh D. Peters , Associate Planner
Mark Rose, Appellant
Peter Siefert, for the AppeIlant
Ted Labbe, Habitat Biolo gist, Port Gambfe S'Klallam Tribe, for the
Appe 1J- ant
WaIt Parks, for the Appellant
Nancy Dorgan, Pe ople for a Livab1e Community, for the Appellant
Other parties present:
Lori Beringer, PO Box 639, Brinnon, WA
George Sickel , Po Box 228, Brinnon, WA
Tom McNerney, 354 Point Whitney Road
Bud Schindler, 270 Rhododendron Lane
Kirie Pedersen 687 Pul-ali Pt Rd, Brinnon
Debbie Siefert PO Box 472, Brlnnon
The Hearing Examiner closed the public hearing at 4:40 pm, and
provided for the ability to re-open the record to obtain copies
of documents identified in the G!{A fj-Ie logs.
TABLE OF EXHIBITS:
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EXHIBIT DOCUMENT DATE
1 Staff Report to the Hearing Examj-ner together
wlth attachments noted on detail-ed logs:
2/77/2002
1-1 MLAO2-00014 File Log No date
r-2 Memo from C Hal-vorson, GMA File Cferk to HE 2/B/2002
1-3 GMA 2046 Comp Plan fife 1og for Brinnon 2/8/2002
l-4 GMA 2046e Comp Plan Pub]ic Comments file log 7/71 /2002
2 Mark Rose Written Testimony (28 pages),
together with Attachments (11,2 pages):
2/19/2002
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EXHIBIT DOCUMENT DATE
2-l WDFW (J Davis) letter to JeffCo DCD 12/24/2001
2-2 Four Tribes jolnt l-etter to JeffCo DCD 1.2 / 21/ 2001.
2-3 Nancy Dorgan fetter to .f Peters, DCD L2/24/200L
2-4 Email exchange: A Scalf and T Labbe L2/2r/2001
Z_ J Email from T Labbe to L Tudor 6/13/2001
2-6 Email from P Mackrow to L Tudor 6/L4/2001.
2-1 Emaif exchange: E Rodrick WSFW and K Pedersen 4/17/200].
2-B Email exchange: C Corrigan DOE and K Pedersen 4/10/200L
2-9 K Pedersen: Questions & Concerns Regarding
Brinnon Sub Area Plan
4/10/200t
2-70 K Pedersen: Shoreline Habitat in Jefferson
County - Attachment to Ex 2-9
No date
2-77 Email- from J Peters to BPG members 3/1/2001
2- rl K Pedersen - duplicate of Ex 2-9 4/72/2007
2-13 Email exchange: M Peter DOE and K Pedersen 4/25/2001.
a _1 I Email exchange: J We11s BSA and K Pedersen 5/27/2A0:.
a 1tr.- L J Emaif from K Pedersen to "Pfanners"5/L5/2001
2-76 Emaif from K Pedersen to J Peters 6/L3/2001
2-)_7 Web page: Brinnon's Wil-dl-ife & Habitat 70/1/200L
2-18 Email from M Rose to J Peters fwd J Marti DOE B/t5/2001.
2-19 Email from K Pedersen to R Kline 2 / 21/ 2001.
2-20 Letter from M Rose to A Scalf (7 pages)1.2/24/2001
2-27 Planning Commission Minority Report to BOCC
by T McGuire and D Wlpple
2/6/2002
Z-ZZ "Brinnon's Wil-dlife & Habitat" update 6/15/2001
2-23 Email from K Pedersen to R Kl1ne DCD 2/21 /200L
2-24 Emall- exchange: J Gorsl- j-ne and K Pedersen 3/2-t/2001
2-25 Email exchange: J Gorsline and K Pedersen 4/5/2007
z-26 Web site: Pleasant Harbor Golf 2/71/2002
2-21 North Olympic Safmon Coafltion "Canlefish"No date
2-28 Letter from H Bea1e,
Quality Action Team,
Puget Sound Water
to BOCC
Lt/22/1"999
2-29 Letter from G Schroer, Resouces Northwest to
Port Gamble S'Klallam Trlbe
5/7L/7993
2-30 "EIk in Olympic National Park: Will They
Persist Over Time?" Natura1 Areas Journal,
vol 10(1), 1990
1990
2-3r Email from M Rose to J Peters w/attach 1 /28/2007
Z_JZ Emaif from M Rose to J Peters w/attach '7 /t5/2001.
2-33 M Rose Comrnents submitted vi-a email -t /t5/2001
2-34 Comments from T Labbe to BSPG B/B/200:
2-35 "Teeing up resort in Bri-nnon" PT Leader 1/25/2001.
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EXHIBIT DOCUMENT DATE
2-36 "Putting Chinook, chum salmon habitat on map"72/5/2001
3 Peter R. Siefert SEPA Hearing Testimony 2/79/2002
4 Ted Labbe Testimony 2/1,9/2002
REVIEW CRIEERIA
AppJ.icabJ.e Plans, Envirorulental Documents, and Regulations:
o Jefferson County Comprehensi-ve Pl-an, adopted August 28, 1998
o Draft Jefferson County Comprehensive Plan EIS, February 24, ].99'7
o Final Jefferson CounEy Comprehensive Plan EIS, Ytay 27, 199'7
o Jefferson County Unified Development Code IUDC]
r Chapter 36.70B RCW, Local Project Review [a/k/a Regulatory Reform]
o Chapter 43.21C RCW, State Environmental Pol-icy Act
o Title 197-11 WAC, SEPA Rul-es
o PC & DCD Recommended Draft, Brinnon Subarea P]an, January 16, 2002
Scope of Review:
Appeals of SEPA Threshold Determinations for Type V Acti-ons are
reviewed de novo. The Examj-ner gives "...deference to and affords
substantiaT weight to the decision of the responsibl-e official."r The
Examiner can grant, modify or deny the appeal; however, the actuaL
proposed Brinnon Pl-an and UDC amendments are not before the Examiner.
Decision Organization :
The fol-lowing Eindings of Fact may incl-ude Conclusions, and the
Conclusions of Law may j-ncl-ude Findings. Both sections wilJ- contain
headj-ngs for the purpose of organizing subject matter.
I UDC B.L2.i Scope of Review
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FIIIDINGS OF FACT
I[trat is t]re Proposal?
1. Jefferson County proposes to adopt a Subarea Pl-an for Planning
Area #11 (Brinnon) as a chapter of the Jefferson County Comprehensive
PIan, and concurrently adopt associated amendments to the Unified
Development Code IUDC]. This is a nonproject action under SEPA.
2. The SEPA Responsible Official issued a DNS and Adoption by
reference of the Draft and Ej-nal Environmental lmpact Statements for
the 1998 Comprehensive P1an. The proposed actlon woul-d make five
elemental changes to the current policies and regulations of the 1998
Comprehensive Plan and UDC, described in the following tabl-e:2
ELEMENTAL CHANGE Comp Plan DEIS/FEIS Coverage
1-- Expanded Brinnon Rural
Village Center boundary.
The area is withj-n the 1994 zoning analyzed
in the Comp PIan DEIA/FEIS except a portion
of one parcel east of Hwy 1-01. DNS considers
the one parcel to not be an IMPACT.
2- New 17-acre light
industrial (LI) district
north of Dosewallips Road
wlthin proposed RVC.
The proposed LI district was not withln the
al-ternatives in the Comp Plan DEIS/FEIS. DNS
consi-ders standards at UDC 4.22 lo control
any IMPACT.
3- New Small--scaIe
Recreational & Tourist
Use (SRT) overlay
district at WaWa Point.
SRT uses were included in alternatives of
Comp Plan DEIS/FEIS, although sil-ent on the
creation of SRT overlay districts. WaWa
Point is in the Comp Pl-an as an exi-sting
SRT. Proposal would be an intensification
and expansion.
4- Elimination or
relaxation of regulations
of home business and
cottage industry under
UDC new Remote Rural Area
(RRA) overlay dj-strict.
DNS considers these as nearly identical to
standards for the West End. The Comp Plan
discusses need for measures for South County
economic development. DNS contends UDC
amendments not an IMPACT.
5- Recommended Master
Planned Resort (MRP) at
Black Point.
DNS consj-ders MRP only as a recommendation
A fut.ure application would go the review
process, incJ-uding project action, site-
specific SEPA review.
2 MLA02-00014 Fj.le Log GMA 2046 #120c. Mj-nor paraphrasing to fit table.*IWACT" is used in the table to represent the phrasel. probable sigmificant
adverse envirowrental iryact.
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3. On January 30, 2002t the Responsibfe Official submitted a SEPA
Addendum to the Threshold Determinat.ion for the Proposed Brinnon
Subarea PIan, a non-project action. The Addendum incorporates by
reference the fol-lowing items:3
1-Minutes from a January 22, 2002 public neeting in Brinnon
concerning the potential environmental inpacts of the proposed
BSAP.
2-A col-l-ection of nine composite naps depictinq environmentaTTy
sensj.tive areas at BTack Point, Brinnon FJats, and WaWa Point.
3-The Final SupplementaT Environmentaf Inpact Statement (FSEIS) for
the Gl-en Cove/Tri-Area "SpeciaJ Study," which discusses the
distribution of commerciafly and industrially zoned acres to a
provisionaf urban growth area, with surp-lus acres aLfocated to
rural centers, such as Brinnon.
A_A conpiTation index of previous devefopment proposals that
underwent SEPA project action review in Planning Area #11, as an
example of how SEPA review has influenced development in the
Brinnon area in the past and is likely to infLuence development in
the Brinnon area in the future.
5-SEPA threshold determination (Determination of Significance and
Adoption of an Existing Environmentaf Docunent) published
November 74, 2007 for the year 2001 Conprehensive Plan amendments,
which incl-uded a mechanism for approving master planned resorts in
Jefferson County in addition to the existing Port Ludlow MPR.
6-A connitnent to update a data sharing agreement with the
Washington State Office of Community Developnent for use of
archeologicaL and cul-turaf site information in the review of
deveTopnent proposaLs in Jefferson County. The State infornation
wifl be suppLemented with infornation provided by the member
Tribes of the Point-No-Point Treaty CounciT,
4. The Department completed a SEPA Environmental Checklist, signed
by Josh Peters, Associate Planner, on December 10, 2001,.4
a. The proposed action is identifj-ed as: Brinnon Subarea Plan
(hereinafter referred to as "BSAP"), a chapter of the Jefferson
County Comprehensive Pfan, and associated amendments to the
Unified Developnent Code (UDC).6
3 MLA02-00014 File Log Gl4A 2046 #150 and 151
a Environmental Checklj-st, MLAO2-00014 File Log
6 rd. at 1, #A.1.
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The Checklist identifies the Comprehensive Pl-an DEIS/fntS,
and "impJ-ementing regulations" for the Comprehensive Plan.6
c. Virtually aII qu estions regarding B.Env i r o nme nt a l- E l- eme nt s
are answered with a statement similar to: N/A. Future
development proposals to be reviewed as project actions under
SEPA.
d. A Supplemental Sheet for Nonproject Actions was completed.T
Generally, the responses note that the proposals "may resuTt
in increased number and density of buiTdings" and "Any impacts
wi7l be evaluated per project action, site-specific SEPA and UDC
regulations to developnent proposafs."
Regrarding the Appeal. Doeuments:
5. On January 7, 2002, Mark Rose, on behalf of the Better Brinnon
Coalition, submitted a timely appeal to the SEPA DNS. In filing the
appeal, Appellant Mark Rose cited reasons for the appeal. summarized:E
b
?he Dtr/S does not
impact
impact
inpact
impact
inpact
inpact
inpact
inpact
impact
:m^-^+Ltrlru v u
6 rd. at 2, +A.8.
7 rd. at 10-11
8 MLA02-00014 FiIe Log GMA 2Q46 #728a
adequately address impact to water quaJity.
to salnon habitat.
to the Brinnon floodplain.
to wetlands.
to native foliage,
of stormwater runoff.
to na t j. rze species,
to shorel-ines.
to acceptabfe noise fevefs,
to quality of fife.
on roads, education and servjces.
?he DNS does not adequately address the Shorefine Managenent Act
of 1971.
address the Executive Order 11990, May 24, 1997:
Protection of tletl-ands.
address the Executive Order 11988, May 24, 1977:
F loodp la in Manaqement .
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address The Endangered Species Act of 1973, As Anended
address The Fish and Wildlife Coordination Act.
?he DNS does not compJy with the county's Draft EnvironnentaL
Impact Statement and Finaf Environmental Impact Statenent,
conpanion docunents (DEIS/FEIS) .
6. The appeal documents and testimony focused on the el-ements of the
County's proposal listed below. Exhibils 2, 3 and 4 contain rel-evant
testimony and information.
. Brinnon Rural Village Center IRVC]
o WaVia Point Convenience Crossroads ICC]
o Black Point, Rural Commercial- and future Master Pfanned Resort
. Home Business and Cottage Industries
Regarding the Environrnental Docr:nents in Adoption Notice:
7. The Department simultaneously adopted environment documents with
the DNS, and later submitted an Addendum to the Threshold
Determination that incorporated six items by reference. The Department
first asked procedural questions from t,he proper authorities in DOE.
Barbara Ritchie, DOE SEPA Unj-t Supervisor, in her 9/6/2007 email- to
Josh Peters suggests several questions that should be asked when
adopting existing environmental- documents. Three substantive
questions were:e
o What are the probabfe environmental- impacts of the current
proposaT?
. Have those impacts been adequateJy addressed in an existing
envi ronmenta L document ?
a If some impacts are not addressed and need additionaT review, are
the impacts TikeJy to be significant?
e MLA02-00014 Fire Log GMA 2046 #L14a
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8. In accordance with the three questions suggested by DOE, the
Examiner has reviewed each of the existing environmental- documents and
now makes the following observations:
a. 1998 Compretrensive P1an DEIS:
PAGE Observations
1-1:
L-2:
1-3:
The EIS is a "phased environmental- review" and framework
for future community p1ans, development regulations and
proj ects .
Community Pl-ans will fol1ow Lo come into conformance with
the overall PIan and consistent with GMA requirements.
The Preferred Alternative recommends four "vi7lages" of
Port HadLock, Port LudTow, Quifcene and Brinnon as Ruraf
Community Centers - and that they are not to be regarded asfuture urban growth areas.
1-4: The No Action Alternative was the Comprehensj-ve Pl-an 1n
3-3
effect prior to the GMA pIan.
Preferred Al-ternative for Rural- Community Centers is
described as: The type and intensity of future commercial-
growth within the business district zone boundaries ...
w111 be strictly regulated so as to allow for on1y "infi11"
development.
3-4: No Action Alternative eval-uated was that in effect pri-or to
adoptj-on of interim regulations in the course of complying
with GMA requj-rements.
3-4 to Each of the Alternatives was illustrated with a fuII page
3-9: mdp, with t.he Preferred Alternative mapped in color. There
was no map for the No Action Al-ternative.
4-3:
4-73:
4-77 :
4-160:
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The chapter on Affected Envj-ronment, Impacts and
Mitigat.ions incl-udes a sectj-on on Alternatives for each
topic. The first topic, Seismic Areas, statesz However,
each al-ternative, except the no action, can incorporate
appropriate mitigating policies to avoid inappropriate
deveTopment in these hazard areas. See pages 4-9, 4-10, 4-
23, 4-28, 4-51, 4-60, 4-7'7, 4-142, and 4-145.
Under the category of Land Constraints, Brinnon is noted as
havJ-ng the most constraints, and areas on the Quimper
Peninsul-a as the Ieast constrained.
The County worked with population growth forecasts prepared
by the Watterson West Group-updated in 1995. The Watterson
Forecasts did not address whether each Subarea actually
possessed the capacity to accommodate the allocated growth,
Regarding sewers, the DEIS states that no additional
sanitary sewers are planned j-n the rural areas.
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b. 1998 Comprehensive PJ.an FEIS:
PAGE Obseruations
The Phased Review comment of the DEIS 1s repeated.
The j-ntent to strlctly regulate the Brinnon RVC to only
"inflll" and not to be regarded as future urban growth
areas i-s repeated from the DEIS
WaWa Point is identified as one of Rural- Crossroads,
Black Point is not listed.
to Lloyd Calhoon, General Mgr, Port of Port Townsend, writes
regarding the 1eve1 of detail appropriate detail and
adequacy of the alternatives (WAC 197-l-1-440 (5) (b), The
Department's response at 2-25 was to explain that ". , . the
County eJ-ected to proceed with an overall county plan
framework approach and to then revisit the community plans
and nake them consistent with the overall vision."
Peter Bahls, Habitat Biologist for the Port Gamb1e
S'Klalfam Tribe made the summary comnent: "Zhe Port Ganbl-e
S'Kl-aLLan Tribe and other Point No Point Treaty Councif
Tribes have treaty-reserved resources within eastern
Jefferson County that will be severeJy inpacted by
inplementation of the proposed Conprehensive Pfan. The
DEIS does not fu77y address many of these impacts, nor
propose adequate nitigating measures, "
Bruce Freeland, Port Townsend BCD Dlrector, noted that the
DEIS "falIs short" with alternatives i-nconsistent with the
GMA, lack of quantification and analysis, infrastructure
needs not adequately addressed, and "...no discussion of
how afternative contribute to or detract fron the success
of existing or potentiaL urban growth areas, " This issue
wiII be addressed further,
Linda Tudor, whil-e arguing that commercial zonj-ng at Black
Point should be reinstated, commented regarding natural
constraints at other locations within the Brinnon Subarea
Planning area.
c. Proposed Amendments to the UDC:r0
1-1:
1-5:
1-6
2-L9
2-26
2-27:
2-31
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to
2-Lt6
uDc s Observations
3.6'L2 Home-based business section wou]d exempt number of non-a. resident employees, types of on-slte retail sa.Ies and hours
of operation.
3.6.L2 Cottage industries secti-on woul-d EXEMPT number of non-b' resident employees, prohibition of specific occupations,
indoor use and retalI sales, hours of operatj-on, and
outdoor storage/parking provisions.
r0 Labefed as "Consistent with the Recommendations of the B/28/07 Draft
Brinnon Subarea Pl-an" and a copy contained in MLA02-00014 File Log GMA #120
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uDc $Observations
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4.35
Cottage industries prohibition of specific occupations
EXEMPTED incLude 1- Auto, truck or heavy equipment repair
shop; 2- Autobody work or paint shop; and :- Large-sca1e
furniture stripping; provided direct access to Hwy-1-01-.
Home business EXEMPTED from size permitted in 53.6.1-2,
which refers to RCW 36.70A.070(5)(d) (j-ii)-which in turn
refers to the siting of isolated smalI-scafe businesses.
Provj-des for an except.ion to UDC Table 3-1 for uses in
"Sma11-scale Recreation and Tourist (SRT) overlay districts
as estabfished in adopted Subarea p1ans. "
9. On January 30, 2002t the Department issued an Addendum to the
December 12, 2001 'SEPA" Threshold Determination for the Brinnon
Subarea Pfan. The Addendum incorporated by reference a series of
documents and maps, which the Examiner has reviewed and now makes the
following observatj-ons :
a. Brinnon Community Meeting L/22/20O2 Minutes:
PAGE Observations
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b Nine Sensitive Area Maps for B1ack Point,
WaWa Point:
Brinnon Flats and
c
PAGE Observations
Memo Three maps cover 1- Landslide, erosion and seismic hazards,'
plus 9 2- Fish and wildlife habitat areas; and 3- Streams,
maps wetland, frequently flooded areas, and susceptibJ-e aqulfer
recharge areas-for B1ack Point, Brinnon RVC, & WaWa Point.
Final Supplemental EIS for GIen Cove and .Tefferson County
Comprehensive Plan 1999 Amendnents :
PAGE Observations
1 page The Notice contains a hand wrj-tten statement:
Note, The FEIS, including maps and addendum, is
approximately 240 pages,
d. Index of previous SEPA project reviews in Area #11:
PAGE
4 The Index contains summary descriptions of 39 projects that
pages had SEPA Review. The projects, according to file number
dates, appear to span the period 1991 through 2000.
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The purpose of the meeting was the review of the Brinnon
Subarea Plan and specifically the environmental impacts of
that plan.
The minutes reffect an extensive discussion. Generally,
the staff described thelr actions and participants
responded with questions, informatj-on and observations.
Observations
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e SEPA Threshold Determination (DS e Adoption of an
Environmental Document) for the 2OOL Coryrehensive Plan
Amendments:
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ldentifies two suggested policy amendments by Jefferson
County that could affect the Brinnon planning area.
ldentj-fies one proposed site-specific amendment requesting
a land use designation change.
The DS adopts the DEIS/FEIS for the 1998 Comprehenslve Plan
and states: "The DEfS/FEIS are not subject to a pending
appea 7 . "
Commitment to update a data sharing agreement with the
Washington State Office of Community Development for use of
archeological and cuJ.tural- site information.
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CONCLUSIONS OF I.AW
Plans, Regiulations and SEPA in Context:
1. Planning, as we know it in this county, strives to put order to
the vari-ous forces on the environment in order to ensure that certain
sets of goals are achieved. A system of plans, policies, regulations,
and procedures was devefoped into a hierarchy that is reflected in the
l-aw. 11
This hierarchy can be il-l-ustrated in its traditional form
IComprehensive Plans-Zoning-Subdivision-Building Permitsl as fo]-l-ows :
Comprehensive Planning looks at all elements and functions of the
environment.Gomprehensive Plans
Zoning
Zoning is the regulation of land use and its application to the individual parcel. Zoning must be
consistent with the Comprehensive Plan (sometimes stated as to "not be inconsistent").
Subdivision
Subdivision governs the division of land into parcels. Subdivision must be
consistent with Zoning (and by definition is therefore also consistent with the
Comprehensive Plan).
Building Permits.Building Permits are governed by the Uniform Building Code, which is a
regulation on the construction of buildings. The buildings (and their
intended uses) must be consistent with both Zoning and Subdivision.
The hierarchy remains when SEPA is applied; however, SEPA al-one
is unique because it applies to all of the above levels of the
hierarchy from comprehensive plans to buil-ding permits.12 This
fundament.al system of planning remains inviolate. When
int,erpretatj-ons or acLions conflict with this hierarchy, it is usually
11 Durocher v. Kiqg !eurr!y, 80 Wn.2d 739 (1,91 2\See also Convention Center
Seatt fe 107 Wn,2d 370t '730 P.2d 636 (1986) . An enactment by a 1ocal
Iegislative body is legislative in nature if it sets out a new policy or
pIan. It is administrat.ive if it executes an existing policy or p1an.
12 West Main Associates v. Be11evue, 49 Wn App. 5l-3. 525, 't42 P,2d 1266 (1987).
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a sign that something is bej-ng taken out of context or that these
relat.ionships are simply not understood.
In 1995 the Legisl-ature enacted revisions to the Regulatory
Reform Act with an objective of interrelating SEPA, GMA, SMA and the
permit review process.rB SignificanL to the case at hand are the
Iegislative directions given to reduce duplication and repetition in
SEPA reviews. The Legisl-ature recognized that the environmental
reviews during the plan adoption stage should not be re-analyzed at
the project stage for questions of types of land use, density of
development, and availability/adequacy of public faci.Iities.la
The SEPA Review Process:
2. Reading Chapters 41.23Ct 36.70A and 35.70B together with an
understanding of the planning hierarchy described above, the hierarchy
holds with the Comprehensive Pl-ans (including Subarea Pl-ans) providing
the basis for future environment.al analysis. SEPA policies encourage
agencies to integrate the requirements of SEPA with the agency's
planning processes.16 Hence, t.he Jefferson CounLy Comprehensive Pfan
was accompanied by a Draft Environmental Impact Statement IDEIS] and a
Final- Environmental Impact Statement IFEIS], foffowed now by a
proposed Subarea Plan as a Chapter of that Comprehensjrze Pfan. A
purpose of the Subarea Plan j-s to formul-ate a new level of detail for
the planning of the Brinnon area, which will give guidance for future
l-and use project applications.
l8 Laws of 1995 Chapter 347
14 RCW 43,27C.240 The Legislature stated their intent in 1"995 c 34'7 S 202.
See also Citizens for Responsible ,
105 Wn.App. 753,'762, 2l P.3d 304 (2001).
16 RCW 43.21-C.010 and WAC 197-11-030
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3. The 1995 Iegislative reforms were addressed in a recent Court of
Appeats publj-shed decision involving SEPA, GMA and Regulatory Reform.16
AJ-thoug h Moss v. City of BeJJinqham involved a project (an 80-acre,
1-'l2-Lot residential subdivision in an environmentally sensitive area)
as opposed to a nonproject Subarea p1an. the Court's rationale in
applying the 1995 reform legislation is usefuf. The streamlining of
SEPA and regulatory processes was upheld in Moss because Bellingham
had prepared a more comprehensive environmentaf analysis in their
plans and in their programmatj-c environmental- impact statements.lT The
Moss Court found that Bell-lngham had properly prepared the
environmental anafysis at the earlier nonproject plan stage.
4. A purpose of SEPA j-s to examine environmental- factors at the
earliest possible stage, a position taken by the State Supreme Court
on a nonproject action, involving GMA, SEPA, and the Boundary Review
Board [BRB] Act.r8 This case focused on the King County BRB approval
of two proposed annexations to the City of Black Diamond. The Court
upheld the reversaf of the BRB's approval with respect to SEPA, and
remanded the matter for preparation of an EIS. The Court's analysis
is particularly parallel to the issue at hand, and excerpted here:re
Decision-naking based on complete discTosure wouTd be thwarted if
fuL7 environmentaJ review couTd be evaded simpTy because no land
use changes would occur as a direct result of a proposed
qovernment action. Even a boundary change, like the one in this
case, nay begin a process of government action which can
"snowball-" and acquire virtually unstoppable adninistrative
inertia. ... Even if adverse environmentaT effects are discovered
Later, the inertia generated by the initial government decisions
(nade without environmental inpact statements) may carry the
project forward regardTess. L(hen government decjsions may have
such snowballing effect, decision-makers need to be apprised of
the environmental consequences before the project picks up
momentun, not after. [Emphasis in decision]
16 Moss v. City of Bellrnghem, 109 wn. App. 6 D ? (2 0 01)
Id. at 15
King County v. Boundary Review Board, L22 wn.2d 648, 663, 860 P.2d 1024 (1993)
Id. at 664
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The Court injected a footnote comment i '4. . . (the risk of postponing
environmental- review is "a dangerous incremental-ism where the
obligation to decide is postponed successiveJy whife project momentum
buil-ds ",),20 and then concluded:21
We therefore hold that a proposed Land use reLated action
is not insu-lated from fuLl environnental- review sinply
because there are no existing specific proposals to develop
the fand in question or because there are no lnnediate fand
use changes which wilf flow from the proposed action.
Instead, an EIS shoufd be prepared where the responsibfe
agency deternines that significant adverse environmental-
impacts are probabLe fol-lowing the qovernment action,
The Departmantts Choice to Defer SEPA Analysis:
5. In simplistic terms, the Department chose to defer SEPA analysis
to a future project stage, and rel-ied on the Comprehensive PIan
DEIS/FEIS and the UDC regulatj-ons to support a DNS.22 The Department's
concept of deferral conflj-cts with SEPA, as noted in Conclusions 2
through 4 above, and therefore, is in error.
Regarding Procedural Questions to Departaent of Ecology:
6. The DepartmenL asked procedural guestions from the proper
authorities in DOE, namely, Barbara Ritchie, SEPA Unit Supervisor.
After describing the need to f.irst ask several questions, Ms. Ritchie
concluded: ",Sol yes it is possibLe to do what you suggest, it is just
a qaestioa whetllez a77 i-rytaets have beea evaluated and, if not, how
significant are the remaining impacts." [Emphasis added]
Although Ms. Ritchie qualified her answer with the substantive need
for det.ermining the potential impact, the Department only acted on the
procedural- answer .23
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Id. at 554
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Were the Existinq SEPA Docuaer2ts Adequate?
1. The question is not whether the DEIS/FEIS were adequate for their
original purpose in adopting the 1998 Comprehensive P7an. That issue
is not before the Examiner. The issue here is whether the adopted
existing environmental- documents are adequate to support the Brinnon
Subarea Pl-an DNS under appeal.
B. The adopted documents are extensive, with many internal
references to other documents. In spite of the volume, there J-s a
great deal of repetition, long on descriptions and short on analysis.
The DEIS/FEIS supported the adoption of the 1998 Comprehensive P7an,
but l-acks substantlve guidance for a Subarea plan, as identj-fied in
Finding 8 a. and b., above.
Doee the "}{o Action" Alternative provide guidance?
9. A "No Action" alternative is mandated for a SEPA EIS, and must be
evaluated and compared to other alternatives.24 There are a number of
issues related to the No Action alternative for the DEIS/FEIS because
of the GMA inconsistency of Jefferson County's pJ-ans and regulations,
as ruled by the Central Puget Sound Growth Management Hearings Board
in 1994-before the 1998 Comprehensive PIan was drafted.26 Although the
SEPA Rules define "reasonable alternative" to mean actions that could
feasibly attain the proposed objectives at a l-ower environmental
cost,26 the "no action" al-ternati-ve can be used as a benchmark. The
"reasonabfe alternatives" have some flexibility in their J-egal status
according to a recent Washington Supreme Court. decision.2T
24 i,{AC 1,9-7_71_440(5) (ii)
26 Einding 8.b. FEIS at 2.3L, Bruce
Port Townsend v. Jefferson County
10, 1994) .
26 t,\]AC 791-77-440 (5) (i) and (11i)
27 Kj-ng County v. Centr. Puget Sound Bd., 138 Wn.2d 1,61,, 184-5, 979 P.2d 3'74
(1999)
Freeland's comments,
WWGPHB No. 94-2-00061
See al-so City of
(Fina1 Order, August
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10. An issue before the Examiner is whether the "No Action"
al-ternative used for the 1998 Comprehensive Pl-an DEIS/FEIS is now
applicable for the Brinnon Subarea Pl-an DNS. The 1998 Comprehensive
PLan and UDC have been adopted and now govern the current stat,us. Eor
instance, the previous commercial zoning at Bl-ack Point was ellminated
and existing commercial uses were placed in a non-conforming status
because it was cfear that such commercial zoni-ng was in conflict. with
the GMA. If an EIS or Supplementaf EfS for the Brinnon Subarea PIan
were required, the "No Action" scenario changes dramatically.
11. The DEIS/FEIS describe the "No Action" alternative and then under
"environmental impacts" generally state that there woufd be greater
impacts with the "No Action" alternative, such as l-oss of forest and
agricuJ-turaL soiLs, increased erosion, potential risk of aguifer
contamination, Ioss of habitat, proliferation of wells and septic
systems, and continuation of urban sprawl in rural areas. The DEIS
contained maps for each aLternative-except the no action alternative.
12. The Department argued that based on the "No Action" alternative,
". . . nearly each element of the proposed BSP is within the range of
alternatirzes analyzed in the adopted environmentaT documents," To
paraphrase a recent case in Chelan County, the Department argues that
the proposa.I is consistent with pre-GMA Plans and regulations. But
lega1J-y the question is whether the proposals are consistent with the
Comprehensive Pian and GMA "... Not, have we done this before?"Z8 As
noted in Finding 8 a e b, there was no real analysis for the "No
Action" alternative. One could argue that the conclusory statements
were sufficient to serve as a benchmark-but not as analysis. The
Department. is in error in relying on the "No Action" alternative.
2E Citizens for Responsible & Organized PJ-anning v. Chelan County , 105 wn
App. '753t '760, 2L P.3d 304 (2001) .
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Were the DEIS/FEIS and other adopted environraental docaarents
suffi-cient to sup5rort the DNS?
13. The DEIS/FEIS and other adopted environmental documents did not
contain actual analysis. The EnvironmentaL Checkl.ist-especially the
SuppJementaL Sheet for Nonproject Actions-should have addressed the
manner in which the other adopted environmentaf documents contributed
to an understanding of possible adverse impacts. The Department does
not understand or misuses the statutory concept of "consistency
review. " Consistency review means analyzing types of l-and use,
density of development, and availabilit.y/adequacy of public facil-ities
at the pJ-anning stage.2e Then, when individual- apptications are
submitted, those el-ements are not to be re-analyzed. Under that
consistency revj-ew, the environmental analysis at the project
applrcation can be limited to site-specific examination given the
characterlstics of the proposed development.
Does the 7998 Cora;prehensive Plan provide sufficient analysis to
bridge to the future projects?
L4. The 1998 Comprehensive Pfan achieved compliance with the Growth
Management Act, and focused on reducing non-rural zoning and non-rural
land use areas in Plans. The PIan cal-l-ed for only limited "in-fiff"
in the Brinnon RVC and WaWa Point, and converted existing commerciaf
uses to nonconforming status at Bl-ack PoinL. Neither the
Comprehensive Pl-an nor its DEIS/EEIS provide guidance for future
expansions proposed in a Subarea p1an.
Do the Proposed Amendaents to the UDC exceed the Brinnon Area?
15. As del-ineated in Finding B c, portions of proposed amendments
woul-d apply outside the Brinnon Planning Area. If adopted as
2e RCW 43,21c.240 and Laws of 1995 c 34"1 S 202
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proposed, the resufting impacts could extend over a larger geographic
area-the extent of which was not determined or impacts analyzed.
Can the Deferral of Environmental Analysis ba Defended?
L6. No. The Department is relying on the Uniform Development Code to
remedy aII impacts-which essential-1y is the equival-ent of saying that
any land use development can go anywhere because the UDC wiJ-I protect
the environment. The premise fails in most instances because
development is incremental. The predominant envi-ronmentaf issue often
requires a broad analysis (if for no other reason than the cumulative
impact) beyond the financial capability of an individual property
owner.
L1. The County already has experience in coping with incremental-
development applications. A series of shoreline permit applications
for rj-verbank armament stimulated a Docketed Item, asking for
Shoreline Policy Guidance after the following experience:30
An applicatj-on for armament on the Duckabush River reveal-ed a
lack of applicable policy guidance from the Shoreline Master
Program. The case before me was not difficult to decide-even
the initial-Iy opposed neighbor across the river supported
approval, and both DOE and DE&W did not oppose even after
expressj-ng concern. The broad goals of preserving the natural
setting are in place-as are the confLicting goals of protecting
pubJ-ic and private property improvements. The easy cases can be
decided within the existing policies. My concerns are the future
applications which are getting incrementally more "gray" and
which in turn may set precedents. The solutions are outside the
30 See Quarters 2 & 3 1999 ReporL of the Hearing Examiner, October B, !999
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scope of the Examiner, and are better addressed by the Planning
Commission and Department plus help from DOE and Eish c Wildl-ife.
Does the record indicate that the DNS w'as clearly erroneoas?
18. "For the I4DNS to survive judicial scrutiny, the record must
demonstrate that 'environmentaf factors were considered in a manner
sufficient to amount to prima facie compliance with the procedural-
requirements of SEPAT t and that the decision to issue an MDNS was
based on information sufficient to eval-uate the proposaT's
environmental impact."3l Since the Department took the consistent
position that al-l- environmentaf anal-ysis was deferred to future
project applications, and since the environmental- discussions in the
record consists of descriptions of the proposals, general conclusions
without adequate explanation of the basis leading to such conclusions,
the Examiner is left with the cl-ear concl-usj-on the Department was in
error.
Sumnary Conclusions:
1-9. There has not been an analysis of likely adverse environmental
impacts. The Department's actions were to circumvent all
environmental- analysis at the Subarea plan stage.
20. A community meeting two weeks after the appeal, followed a week
later by an Addendum to the DNS did littl-e more than add to an already
vol-uminous record by reference and with l-ittle understanding.
2L. The precedent set by allowing this approach in itself warrants
decisive action.
3l Moss v. City of Beflingham, 109 Wn. App, 6 )a
936 P.2dAnderson v. Pierce County, B6 Wn App.290,
quoting Pease Hill- v. County of Spokane, 62 Wn. App
P.3d - (2001) citing
432 (1997\, in turn
800, 816 P.2d 3't (1991)
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22. The Department's approach to the DNS was neither proper phased
review nor valid innovative zoning techniques.s2
23. To repeat from Conclusion 4, "the risk of postponing
environmentaL review is "a dangerous incrementafism where the
obligation to decide is postponed successiveJy whiLe project momentum
buil-ds. "
24, Consideration of the indlvidual complaints in the subject appeal
was not reached because of the fundamentaf error in the Department's
approach to the DNS. The appeal- must be granted and a proper
Envj-ronmental Impact Statement or Supplemental EIS prepared.
DECISION
Based upon the testimony presented at the Open Record Appeal Hearing,
the documents and exhibits admitted into the record, and the above
Eindings of Eact and Conclusions of Law, it is hereby the decision of
the Hearing Examiner that the appeal of the decision of the SEPA
Responsible Offj-ciaf to issue a Determination of NonSignificance and
adoption of existing environmental- documents is hereby GIIAIITED. The
matter is remanded to the Responsibl-e Official to prepare ei-ther an
Environmental Impact Statement or a Supplemental EIS for the proposed
nonproject actions.
DATED this 12th day of March 2OO2.
\T)"i1
Irv Berteig
,Jefferson CounEy Hearing Exa.minerib
32 King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., L42 Wn.2d 543,
560, 14 P.3d 133 (2000) .
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Transmj-tted by the ,Jefferson CounL Permit Center t.o theParLicipants listed above at page 2.
DATE TRANSMITTED:
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PORT GAMBLE S'KLALLAM TRIBE
31912 Little Boston Rd. NE - Kingston, WA 98345
December 16,2015
Jefferson Counfy Planning Commission
621 Sheridan Street,
Port Townsend, WA 98368
Email : PlanComm@co j efferson.wa.us
David Wayne Johnson
Pleasant Harbor FSEIS c/o Jefferson County DCD
621 Sheridan Street
Port Townsend WA 98368
Email: dwi ohnson@co jefferson.wa. us
Subject: Pleasant Harbor Final Supplemental Environmental Impact Statement,
December 2015, Case No's: MLA08-00188, ZON08-00056
Dear Planning Commission Members and Mr. Johnson,
With regard to the December 9 Notice of Availability of the Final Supplemental
Environmental Impact Statement (FSEIS) and Notice of Planning Commission Public
Hearing and Notice of Intent to Amend the Unified Development Code for the Pleasant
Harbor Marina and Golf Resort LLC Master Planned Resort, I am submitting this letter on
behalf of the Port Gamble S'Klallam Tribe (PGST). While we appreciate the February 18,
2015 meeting, the tribal consultation process is not yet finished. We understood that Jefferson
County DCD would work with PGST staff to address the concerns raised at the meeting and
in our comments. However, PGST staff were not consulted after the February meeting and
were not given any notification of the FSEIS prior to its release. In view of the incomplete
consultation process, and as stated in our January 5, 2015 letter, we continue to oppose this
project. We request a 60-day extension of the process in order to allow time to complete the
Tribe's consultation.
The Port Gamble S'Klallam Tribe is the successor in interest to Indian bands and tribes
signatory to the 1855 Treaty of Point No Point, 12 Stat. 933.r Today the Tribe retains deep
cultural and economic ties to the surrounding waters and to their fisheries in its usual and
accustomed grounds and stations (U&A). More than a century of federal court decisions have
fleshed out the components of the treaty right, including the right of access to places, the right
to a share of harvest to meet tribal moderate living needs, and the right to protection of fish
habitat in all areas of the Tribe's U&A. The proposed Pleasant Harbor project is located
within the Tribe's U&A, in an area where tribal members depend on fish, shellfish and
wildlife. We are concerned that the proposed project would jeopardize the Tribe's treaty right
to fish and hunt in the project area.
As stated in our previous comments in 2001, 2006,2007 and 2015 regarding this project and
at the February meeting, we are concemed about the potential for adverse impacts from
increased traffic, intensity of land use, and environmental effects. The proposed projeet would
I UnitedStatesv.llashington,45g F.Supp. 1020, 1039(W.D.Wash. 1978)(hereinafterBoldttl).
PORT GAMBLE S'KLALLAM TRIBE
3L912 Little Boston Rd. NE - Kingston, WA 98346
be located in an aquifer recharge area and the potential water quality and water quantity
impacts to local groundwater, streams and wetlands are significant. We are concemed about
the potential for significant adverse effects to fish habitat and the Tribe's fisheries as a result
of these impacts. Additionally, nLlmerous environmentally sensitive features are located
within the project area, including unique kettle ponds. We are concemed about the potential
adverse effects to these habitats from the proposed stormwater management system.
An elk herd forages within the forested uplands to the northwest of the project between the
Dosewallips and Duckabush river valleys. We are concerned about the development of highly
attractive elk and deer forage from the proposed project lawns and fairways and the risk that
the elk will cross the highway to get to the food. Couple that with the projected increase of
>4,000 vehicle trips per day on the highway and it poses a significant risk to the viability of
the elk herd. We are also concerned about the possible increase in recreational shellfish
harvesting frorn project residents, which would have the potential to impact shellfish habitat
and the Tribe's harvest. Tribal members harvest between 13,000 and 21,000 pounds of manila
clam and between 13,000 and 48,000 pounds of Pacifrc oyster from the Duckabush alone.
These issues were not satisfactorily addressed in the FSEIS. Although the document covers
potential environmental effects to some extent, we are concerned that it does not go nearly far
enough to resolve the potentially significant impacts to tribal treaty rights. In order to
adequately address the Tribe's concerns, we are requesting a 60-day period to work with
Jefferson County staff as needed to complete the tribal consultation process. We would
appreciate your consideration and timely response.
Thank you.
*ff,/t*
tdo*v(,r,,**
Chair, Port Gamble S'Klallam Tribe
2