Request to withdraw re-issued SEPA DNS ignored at March 31st meeting

All government is a trust. Every branch of government is a trust, and immemorially acknowledged to be so - Jeremy Bentham.

Last Monday, Wendy Harris submitted the following testimony regarding the reissued SEPA Determination of Nonsignificance.

Why should regular citizens be concerned? Let's look at this from the neighborhood perspective -

Western Washington University needs additional parking for students. The City and WWU planning staff identify a section of the Happy Valley Neighborhood to site the parking lot. The Happy Valley Neighborhood Plan contains language that prevents parking lots in this section of the neighborhood.

Thanks to the amendments that will be adopted by the City on the 14th of April, the city determines that the parking lot project qualifies as an Essential Public Facility (EPF). (As a designated EPF, this project takes priority over the neighborhood and the City's Comprehensive Plan). With EPF exemptions, the neighborhood association will not be able to stop or even appeal the decision.

I realize that this is pithy material to digest - but try to wade through it.


PUBLIC COMMENT LIMITED TO SEPA ISSUES

To: City Council; Bellingham Planning Department; Mayor; Planning Commission
From: Wendy Harris
Via Email
Date: 3.31.08
Re: City of Bellingham Agenda Bills 017849, 017850, 017851 and 017852

Dear Members of City Council:

I am submitting my 2nd public comment with regard to SEPA issues on the 4 above referenced agenda bills currently under consideration. Reference is made to my prior SEPA comment, sent by email on March 26, 2008, which is incorporated herein. As established below, the re-issued DNS should be withdrawn and a new SEPA Determination of Significance issued, requiring an Environmental Impact Statement. I believe the significance of the issues warranted my time and commitment in drafting such a long and detailed public comment, and I respectfully request your time in reading this submission.

THE RE-ISSUED DNS SHOULD BE WITHDRAWN AND A NEW SEPA DS SHOULD BE ISSUED.

Legislative Proposals That Are The Subject Of SEPA Review Have Not Been Properly Defined In Violation Of WAC 197-11-060(3)

The first proposal noted under the procedurally invalid “re-issued” DNS states that the City of Bellingham Planning and Community Development Department wishes to amend BMC 20.17.020 to “create a list of City Essential Public Facilities as directed by the Bellingham Comprehensive Plan and the Growth Management Act. However, it fails to reveal that the proposed list exceeds the definition of an EPF under City, County and State law, as well as the laws of other Washington Jurisdictions, and thus, cannot be considered an actual list of EPFs.
The GMA requires all local comprehensive plans to include a process for identifying and siting essential public facilities. It also requires the state Office of Financial Management to maintain a list of essential state public facilities. RCW 36.70A.200.


The test for determining what constitutes an EPF hinges on whether the facility is difficult to site. As explained by CTED, “these facilities, while needed by society, often have real or perceived negative impacts on surrounding communities that may make them undesirable neighbors, and increase the complexity and difficulty of siting new facilities or expanding existing facilities.”

Reference in some form to siting hardship is normally included in the definition of EPFs found in Washington City and County codes. Many jurisdictions incorporate the state definition of EPFs in whole, or part, into their local definition. And, in fact, Bellingham currently defines EPFs based on a version of the state definition, which includes the primary criteria of difficulty in siting. BMC 20.17.010. Further, in determining whether a facility is an EPF under Bellingham law, one of the criteria is difficulty in siting. BMC 20.17.030, 060.

The below comparison chart shows the degree of uniformity found in the definition of EPFs in different Washington jurisdictions.

COMPARISION CHART

JURISDICTION
STATUTORY DEFINITION OF ESSENTIAL PUBLIC FACILITIES

Bellingham (current)
BMC 20.17.010: Essential Public Facilities include those facilities that are typically difficult to site, such as airports, state education facilities and state or regional transportation facilities as defined in RCW 47.06.140, state and local correctional facilities, solid waste handling facilities, and in-patient facilities including substance abuse facilities, mental health facilities, group homes, and secure community transition facilities as defined in RCW 71.09.020.
Washington State


WRC 36.70A.020: Essential public facilities include those facilities that are typically difficult to site, such as airports, state education facilities and state or regional transportation facilities as defined in RCW 47.06.140, state and local correctional facilities, solid waste handling facilities, and in-patient facilities including substance abuse facilities, mental health facilities, group homes, and secure community transition facilities as defined in RCW 71.09.020.
Whatcom County


WCC 16.16.800: “Essential public facilities” means those facilities that are typically difficult to site, such as airports, state education facilities, state or regional transportation facilities, state and local correctional facilities, solid waste handling facilities, and inpatient facilities including substance abuse facilities, mental health facilities, and group homes.
City of Seattle


Municipal Code 23.84.010:"Essential public facilities" means airports, sewage treatment plants, jails, light rail transit systems, monorail transit systems, and power plants.



City of Vancouver
Municipal Code 20.150.040: Essential Public Facilities. Public facilities and privately-owned or operated facilities serving a public purpose that are typically difficult to site. They include but are not limited to: airports, state education facilities, state or regional transportation facilities, prisons, jails, other correctional facilities, and solid waste handling facilities. These facilities are of state-wide and regional significance, as opposed to facilities which only serve Clark County. Therefore, local transit service is not considered an essential public facility. Essential public facilities will be allowed in locations appropriate for the services provided and the people served.



City of Edmond
Municipal Code 20F.40.80-010:Essential public facilities are defined in RCDG 20A.20.050, Definitions. Examples include schools, water transmission lines, sewer collection lines, fire stations, hospitals, jails, prisons, airports, solid waste transfer stations, highways, and storm water treatment plants. Secure community transition facilities as defined in RCDG 20A.20.190 are also included.



Mill City
Municipal Code 14.01.030:"Essential public facilities" means structures that are typically difficult to site, such as airports, state education facilities, state or regional transportation facilities as defined in RCW 47.06.140, state and local correctional facilities, solid waste handling facilities, and in-patient facilities including substance abuse facilities, mental health facilities, group homes, and secure community transition facilities, as defined in RCW 71.09.020.



City of SeaTac
Municipal Code 15.10.249: Essential Public Facility:A facility providing public services, or publicly funded services that is difficult to site or expand and which meets any of the following criteria: meets the Growth Management Act definition of an essential public facility (EPF), at RCW 36.70A.200, as now existing or hereafter amended, is on the State, King County or City list of essential public facilities; serves a significant portion of the County or region, or is part of a county-wide or multi-county service system, and is difficult to site or expand. Essential public facilities include, but are not limited to, the following: airports; State and local correction facilities; State educational facilities; State and regional transportation facilities; landfills; solid waste handling facilities; sewage treatment facilities; major communication facilities and antennas (excluding wireless telecommunications facilities); and in-patient facilities, such as group homes (excluding those facilities covered by the Washington Housing Policy Act), mental health facilities, Secure Community Transition Facilities (SCTF), and substance abuse facilities.



City of Spokane
Municipal Code 11.19.0314: “Essential public facilities” include those facilities that are typically difficult to site, such as airports, state education facilities and state or regional transportation facilities as defined in RCW 47.06.140, state and local correctional facilities, solid waste handling facilities, and in-patient facilities including substance abuse facilities, mental health facilities, group homes, and secure community transition facilities.

The actual list of “EPFs” proposed by the Planning Department was not attached to the re-issued DNS, a copy of which I obtained from a Department of Ecology employee. However, the proposed “EPF” list as referenced in the proposed legislation includes items that are clearly beyond the definition of an EPF under any standard.

Non-EPF proposed list items includes “parks and trail facilities”, “local road, bicycle and pedestrian improvement projects” and libraries. These are not facilities that are considered difficult to site nor has the Planning Department ever alleged this fact. It is clear that the proposed list was drafted not with reference to the definition of an EPF, as asserted, but instead, to include the City’s projected works projects for the next six years, as well as additional work projects reflected within chapters of the City’s comprehensive plan. Thus, the proposal has not been properly defined as required under WAC 197-11-060(3).

The full extent to which this is true can only be realized through review of the proposed “EPF” list. In the below table, I have attempted to determine the specific facilities that would be included in the proposed “EPF” list. The list is poorly drafted, making it difficult to sometimes make this determination. This lack of clarity is obviously troubling. However, the sheer volume of those items that can be specifically identified is overwhelming, and clearly exceeds Bellingham’s statutory definition of an EPF.

Planning Department Proposal for EPF List

(Items in smaller, bold type reflect my attempt to determine with specificity what projects and facilities are included in the proposed EPF list.)
The following list shall constitute the City’s adopted list of essential public facilities:
1. local road, bicycle and pedestrian improvement projects on the City’s adopted “Six Year Transportation Improvement Program” and/or the Transportation chapter of the Bellingham Comprehensive Plan
a. There are 120 bicycle and pedestrian improvement projects listed in the Transportation chapter of the CP, Chapter 2, page T-4; and Chapter 4, pages T-31 through T-66.
2. The potable water distribution and treatment facilities as identified in the Capital Facilities chapter of the Bellingham Comprehensive Plan
a. There is no section in the Capital Facilities chapter of the CP directly corresponding to “potable water distribution and treatment facilities” so it is unclear what this specifically refers to. Chapter 5, Part 2 of the CP, includes a discussion of water supply, but does not specifically list City owned water facilities. This may be a reference to the 15 water projects necessary to maintain LOS during the 2004-2022 planning period. Pages CF-8, 9. However, 23 public works water projects are shown in Map CF.3., covering the same period. Finally, 26 water public works projects are listed in the Capital Facilities Plan summary chart. Chapter 5, page CF-86, 87.
3. The sanitary sewer distribution and treatment facilities as identified in the Capital Facilities chapter of the Bellingham Comprehensive Plan
a. Again, there is a discussion of City sewage treatment in Chapter 5, Part 2 of the CP, but no specific list of “sanitary sewer distribution and treatment facilities.” There are 15 sewer projects listed as necessary to maintain LOS during the 2004-2022 planning period. Chapter 5, pages CF-13, 14. The Capital Facilities Plan summary chart includes 20 water public works projects. Chapter 5, page CF-88.
4. The stormwater distribution and treatment facilities as identified in Capital Facilities chapter of the Bellingham Comprehensive Plan
a. Again, there is a discussion of City stormwater management in Chapter 5, Part 2 of the CP, but no specific list of “stormwater distribution and treatment facilities.” Thus, it is unclear what the Planning Department is referencing. There are 21 stormwater public works projects listed in the capital facilities plan. Chapter 5, pages CF 89, 90.
5. Parks and trails facilities as identified in the Parks, Recreation and Open Space chapter of the Bellingham Comprehensive Plan
a. Identified facilities within this Chapter, which list City, County and State facilities, include:
i. 31 park walking trails,
ii. 59 existing and proposed day hiking trails,
iii. 30 existing and proposed backcountry hiking trails,
iv. 16 existing or proposed shoreline walking trails,
v. 35 existing or proposed freshwater access points,
vi. 34 existing or proposed saltwater access points,
vii. 35 existing or proposed hand carry launch sites,
viii. 9 existing or proposed powerboat launch sites,
ix. 19 existing or proposed marinas,
x. 73 picnic tables,
xi. 25 existing or proposed picnic shelters,
xii. 9 existing or proposed campgrounds,
xiii. 68 existing or proposed bicycle routes,
xiv. 14 existing or proposed off-road mountain bike trails within parks,
xv. 42 existing or proposed day biking trails,
xvi. 25 existing or proposed backcountry off-road mountain bike trails,
xvii. 17 existing or proposed horseback riding trails,
xviii. 24 County and State horseback trails,
xix. 18 on and off lease existing or proposed dog parks and trails,
xx. 56 existing and proposed playgrounds
xxi. 7 existing or proposed skateboard parks
xxii. 45 existing or proposed basketball parks
xxiii. 12 existing or proposed volleyball courts
xxiv. 12 existing or proposed tennis courts
xxv. 9 existing or proposed football and track fields
xxvi. 22 existing or proposed soccer fields
xxvii. 28 existing or proposed baseball/softball fields-youth
xxviii. 8 existing or proposed baseball/softball fields-youth and adult
xxix. 19 swimming pools
xxx. 1 ice rink
xxxi. 27 existing or proposed gymnasiums,
xxxii. 22 existing or proposed physical conditioning facilities
xxxiii. 3 climbing walls
xxxiv. 5 existing or proposed arts and crafts facilities
xxxv. 143 existing or proposed meeting and training rooms
xxxvi. 13 existing or proposed auditorium or theater facilities
xxxvii. 49 existing or proposed daycare and child nursery
xxxviii. 24 before and after school programs and teen centers
xxxix. 1 senior center
xl. 7 existing or proposed museums
xli. 10 nature interpretive centers
xlii. 6 golf courses
xliii. 1 rifle range
xliv. 3 existing or proposed operations facilities
xlv. 44 existing or proposed restrooms
xlvi. 95 existing or proposed environmental conservancy sites,
xlvii. 48 existing or proposed historical conservancy sites
xlviii. existing or proposed railroad conservancy sites
xlix. 54 existing or proposed multi-purpose trails
l. 28 existing or proposed streetscapes
li. 21 artwork trails



6. Fire, police, library and other City government facilities as identified in Capital Facilities chapter of the Bellingham Comprehensive Plan
a. Chapter 5, Part 3 of the CP identifies 7 fire stations. Map CF.7. Assumedly, these are the fire facilities referenced in this provision. It is unclear if this also includes identified fire stations in Whatcom County that are located in Bellingham’s UGA’s and whether a distinction is made for rural stations that have a volunteer staff. It is unclear if this includes fire trucks, or Whatcom Medic One ambulances.
b. Chapter 5, Part 3 of the CP identifies one police station. Page CF-33. It is not clear if facilities include police equipment and automobiles. It is not clear if the Whatcom Sheriff’s Office is included with regard to Bellingham UGA areas. There are 25 police public works projects listed in the capital facilities plan. Chapter 5, pages CF 75. There are 3 police public works projects listed in the capital facilities plan. Chapter 5, pages CF 76.
c. Chapter 5, Part 6 of the CP identifies a main branch library and a Fairhaven sub-branch. Page CF-49.
d. It is unclear what “other City government facilities” are included, but the Capital Facilities chapter of the CP discusses the additional facilities:
i. Public School facilities
ii. Parks, Recreation and Open Space


iii. Museums
iv. Bellingham-Whatcom Public Facilities District


v. Depot Market Square


vi. City Public Parking Facilities
vii. City-Port Waterfront Redevelopment
viii. Public Waste Facilities

Another legislative proposal included under the re-issued DNS involves creating a “CAO exemption for Essential Public Facilities and includes performance criteria to examine alternatives and minimize impacts.” However, the CAO exemption proposal reveals the true reason the Planning Department is proposing an “EPF” list. These two legislative amendments, in conjunction, allow the Planning Department to proceed with its pre-existing development plans while effectively ignoring the requirements of the Growth Management Act. Thus, since the CAO amendment proposed, and listed within the re-issued DNS, involves exemptions for EPFs, and in fact, the Planning Department is attempting to exempt Non-EPFs, the proposal has not been properly defined as required under WAC 197-11-060(3).

In support of its proposed CAO amendment, the Planning Department has provided 4 examples of alleged similar CAO exemptions from other jurisdictions. In reality, there is no jurisdiction that even approaches the type of blanket exception for the siting of EPFs within Critical Areas that the Planning Department proposes. A simple, cursory review of the four examples indicates that each of these jurisdictions provide a much higher standard of protection, as follows:

Whatcom County: the County does not, as asserted, exempt EPFs. Activities exempted from the County’s Critical Area ordinance are listed in WCC 16.16.230, and EPFs are not included in this statute. Rather, the County treats EPFs as regulated activities under WCC 16.16.225. That means that EPFs may be sited within Critical Areas when other requirements of the Critical Area siting process, set out in Chapter 16.16, are met. (This is also the current status for siting EPFs within the City. EPFs may be sited within a Critical Area when the siting provisions of BMC Chapter 16.55 are met.) Further, as established above, the County’s definition of EPFs in much more limited than the “EPF” list proposed by the Planning Department.



King County: The blanket exemption applies only to “linear alteration” of Critical Areas, which is defined as something that connects to, or is an alteration to a public roadway, public trail, a utility corridor or other public infrastructure owned by a public utility (i.e., the road or facility already exists), or is required to overcome limitations due to gravity. For nonlinear alterations, the exception to Critical Areas does not include wetlands, (unless allowed under K.C.C. 21A.24.070.A.2.h), aquatic areas and wildlife habitat conservation areas, Critical Area setbacks and Critical Area buffers, and salmnoid spawning areas. Moreover, the nonlinear alteration must not require modification of a Critical Area development standard.



City of Mill Creek: The exemption is limited to streets and utilities proposed by a public agency¸ and the proposal must include measures to compensate for impacts to Critical Area function and values consistent with the City’s Critical Area Ordinance. Further, as established above, the City’s definition of EPFs in much more limited than the “EPF” list proposed by the Planning Department.



City of Tukwila: No EPF is exempted from the mitigation requirements of the City’s Critical Areas Ordinance set out in Muncipal Code Chapter 18.45. With regard to essential utilities, additional protections require restoration to pre-project configuration, and prohibitions against erosion, uncontrolled stormwater or groundwater movement, slides, pollution, habitat disturbance, loss of flood carrying capacity and storage capacity, and excavation or fill detrimental to the environment. Similar levels of protection apply to the different types of EPFs discussed in the Municipal Code.

These clear violations of WAC 197-11-060(3) indicate that not only should these legislative proposals be soundly defeated upon City Council vote, but that the misleading re-issued DNS be withdrawn and a new SEPA DS submitted that accurately reflects the nature of the proposals.

The Environmental Information Considered For The Re-Issued DNS Is Inadequate For Determing Adverse Environmental Impacts In Violation Of WAC 197-11-158(2)(D)

The re-issued DNS cites 4 documents as the environmental information considered: Part D of the DNS checksheet; the July 1, 2004 FEIS for Bellingham, its UGA and Whatcom County urban fringe Sub-area; the 2006 Bellingham Comprehensive Plan, and the City of Bellingham Critical Area Ordinance.

As discussed above, the information in the re-issued DNS is materially misleading and has not been properly defined. Moreover, as set-out in my March 26, 2008 SEPA public comment, this document is procedurally invalid and should not be relied upon for any official purposes.

The 2004 Bellingham FEIS is general in its terms and was not drafted to cover the legislative proposals and related public works actions at issue herein. The FEIS states that, “this is a non-project, programmatic environmental impact statement. Additional environmental analysis will be required as specific development projects are proposed and supplements may be necessary for some of the unanticipated UGA and development regulation changes.” (Last page of FEIS posted on City website.)

It is clear that the legislative change proposed to the City’s CAO, which will have wide sweeping application in conjunction with the proposed “EPF” list, has not been considered within the FEIS. Additionally, the re-issued DNS lists 2 pages of future City essential public facility projects with Critical Area constraints (attachments 2-11 and 2-12), including waste water treatment plant expansions, multi-modal arterial connections and 2.5 million gallon water reservoirs that would be exempted under the proposed legislative changes, none of which was reviewed in the FEIS.

Both the 2006 Bellingham Comprehensive Plan and the Bellingham Critical Area Ordinance are part of the proposed legislative changes, which indicates that environmental impacts resulting from the proposed legislative changes have not been reflected in these documents. This violates WAC 197-11-158(2)(D). Thus, these documents are not an appropriate resource for determining the environmental impact of the proposed legislative changes, nor do they specifically address the connected public works projects discussed above.
As a result, the Planning Department has not done an adequate review of the environmental impact that will result from the proposed nonproject actions and connected project actions. Accordingly, the re-issued DNS does not comply with SEPA requirements and should be withdrawn so that a new DS can be filed and an EIS completed.

The Cumulative Impacts Of The Legislative Proposals Have Not Been Addressed In Violation Of SEPA Rules

Lead agencies are responsible for considering probable significant adverse impacts of planning actions such as adoption and amendments to development regulations. If plans or regulations proposed allow activities to occur that are likely to have significant adverse impacts, those cumulative impacts must be addressed in the environmental review of the planning action.

WAC 197-11-055(2)(a)(i) states that, “the fact that proposals may require future agency approvals or environmental review shall not preclude current consideration, as long as the proposed future activities are specific enough to allow some evaluation of their probable environmental impacts.”

In this case, the Planning Department has included a list of major public works projects that are linked to the proposed legislative amendments, and admits that the siting of these City EPFs could have some impact on natural resources. Moreover, as established above, the scope of public works projects impacted by the legislative proposals is enormous. Despite this, the re-issued DNS fails to address the cumulative environmental impacts of the legislative proposals.

The Planning Department’s failure to address cumulative impacts also violates WAC 197-11-060(3)(b), which requires proposals that are closely related to each other to be evaluated in the same environmental document. WAC 197-11-060(4)(c) states that, “agencies shall carefully consider the range of probable impacts, including short-term and long-term effects. Impacts include those that are likely to arise or exist over the lifetime of a proposal, or depending on the particular proposal, longer.” Under WAC 197-11-060(4)(d), “a proposal’s effects include direct and indirect impacts caused by a proposal, as well as the likelihood that the present proposal will serve as a precedent for future actions.” (It should be noted that the Bellingham Municipal Code has specifically adopted these SEPA rules in BMC 16.20.040.)

The re-issued DNS fails to comply with these SEPA rules because it does not address the cumulative environmental impacts that will result from the submitted nonproject actions. The re-issued DNS should be withdrawn and a new DS issued so that the EIS process can be initiated, allowing such cumulative effects to be addressed.
The Planning Department’s Proposed Mitigation Provisions Are Too Vague And Subjective To Be Effective

The proposed CAO amendment as drafted provides only the most basic description of mitigation standards and fails to define the meaning of the terms that are used. For example, the amendment states that the proposed alteration of the Critical Area must be the “minimum necessary to accommodate the essential public facility.” How this can be applied in specific and quantifiable terms is not addressed. As a result, there is no clear standard that can be reviewed and enforced and the sole discretion will be left to the Planning Director. The same is true of the requirement that the alteration of the Critical Area is the “minimum necessary to accommodate the essential public facility”, or that construction of the EPF “minimizes adverse impacts.”

The legislative proposals fail to address how these standards will be enforced and by whom. Does the City intend to use its own staff resources to inspect alteration of the Critical Areas? The City is already having fiscal problems, which is the very motivation for the legislative proposals under SEPA review. Further, since the projects resulting from these legislative proposals are public works projects, the City will be, in effect, policing itself, which could raise conflict of interest problems. Further, the City does not have a good history of enforcing its own regulations and ordinances.

The mitigation provisions fail to state how terms such as “no net loss” and “best available science” are to be defined. While one might expect that the common definition set out in the GMA is applicable, given the Planning Department’s unconventional interpretation of an EPF, as reflected in its legislative proposal, this can not be taken as a given. At a minimum, a clear and concrete definition of the mitigation terms used is necessary for enforcement purposes.

As a result of these problems, the proposed mitigation provisions are ineffective and do not offer an objective level of protection to the impacted Critical Areas. Under these facts, a DNS is clearly erroneous and should be revoked. A DS should be issued along with initiation of the EIS process.

The Re-Issued DNS Includes Unrelated Legislative Proposals That Require A Separate SEPA Review

The two legislative proposals that I have discussed in this public comment, creation of an EPF list and amendment to the CAO, are clearly related and thus, appropriate to include within a single SEPA review. However, the re-issued DNS also includes two unrelated legislative proposals that require separate consideration. The first such proposal involves amendments to the CAO and the SMP in order to allegedly comply with the SMA, and the second proposal amends the CAO with regard to measuring steep slopes and corrects typographical errors. These two proposals are not sufficiently connected to the other two proposals to justify the inclusion under a single SEPA review process.

CONCLUSION

The proposed legislation to create an EPF list and amend the exemptions to the CAO, conjunctively, will have significant adverse environmental impact that has not been considered within the re-issued DNS. The re-issued DNS should be withdrawn and instead, a DS should issued as an EIS is clearly necessary under SEPA rules. Unless an EIS in completed, the proposed legislation will effectively destroy the current protection provided to Critical Areas under Bellingham law, and will violate the policies reflected in the City’s Comprehensive Plan.

Thank you for your consideration on this matter and for the opportunity to present my public comment.

Sincerely,
Wendy Harris
Bellingham Resident