HomeMy WebLinkAboutMay Creek Drainage Improvement Proect, Special Grade/Fill Permit and CAO Variance1
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BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON
RE: May Creek Drainage Improvement
Project
Special GradelFill Permit and CAO
Variance
LUAII-065, V-H, SP
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) DECISION ON RECONSIDERATION
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15 King County has requested reconsideration of the denial of its applications for a critical areas
ordinance variance and special grade/fill permit for the dredging of May Creek, Renton File No.
16 LUA11-065, V-H, SP. The request is denied.
17 Procedural Background
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1, On November 11, 2011 the Hearing Examiner issued a decision denying the above-
19 captioned permit application.
20 2. King County filed a timely Request for Reconsideration, received by the City of Renton on
November 17, 2011. In its request for reconsideration, King County pointed out that it had not
21 received copies of letters submitted into the record that were critical of the Anchor QEA, LLC
22 sediment transport study, Ex. 31.
3. By Order Authorizing Reconsideration dated November 28, 2011 the Examiner authorized
King County to provide new evidence in response to the written comments King County had not
24 received on the sediment transport study. The Order included a schedule for submission of
additional comments for all hearing participants.
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26 4. Several new exhibits were entered into the record as part of the reconsideration process,
SPECIAL GRADE/FILL PERMIT AND
CAO VARIANCE -1
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identified as follows:
Ex. 36:
Ex. 37:
Ex. 38:
Ex. 39:
Ex. 40:
11115111 King County Reconsideration Request
Order Authorizing Reconsideration
12/8/11 comment letter from Andrew Duffus
12/9111 comment letter from Jean Rollins
12/21/11 comment letter from King County
Analysis
The critical issue for both permit applications is the impact of dredging project on downstream
properties. Project opponents presented a compelling report by Dr. Patricia Olson, Ex. 15, from the
Washington State Department of Ecology ("DOE"), who asserted numerous flaws in the studies
9 used by King County to conclude that downstream properties would not be adversely affected. The
Examiner determined that Dr. Olson raised legitimate concerns and that King County did not
adequately refute them. As detailed in the procedural background above, King County was given
an opportunity to present new evidence in its request for reconsideration to rebut comments made
by the public regarding the accuracy and validity of the sediment transport study, Ex. 31. These
public comments primarily referenced the report provided by Dr. Olson, Ex. 15. The information
provided by King County in its reconsideration request still does not provide sufficient information
to determine that more likely than not downstream properties will not be adversely affected by the
project.
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In its reconsideration comments, Ex. 40, King County largely agrees with the concerns of Dr. Olson
regarding the accuracy of the sediment transport study. King County's primary defense is that it
didn't rely upon the flawed data, which comprises the bulk of the sediment transport study. As best
as can be discerned from King County's arguments, King County ultimately concluded that the
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17 project wouldn't increase downstream erosion because the flows that initiate sediment transport
observed at three monitoring stations significantly exceeded the extra flows generated by the
project. These relatively simple observations would have been readily apparent to Dr. Olson, who
still determined that further analysis was necessary. Corroborating Dr. Olson's skepticism is the
fact that King County also acknowledges that the transport thresholds at the monitoring stations
aren't representative of those that may occur downstream. Of further concern is that King County
also readily admits that it did not provide any detailed assessment of damage that may occur to
downstream properties. With this background, it is not possible to conclude with any reasonable
degree of confidence that downstream properties will not be adversely affected by the project.
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The points raised by Dr. Olson are more fully addressed as follows:
HEC-RAS Program. In Ex. 40 King County acknowledged that the HEC-RAS program should not
24 be used to evaluate erosion potential. It does appear that the conclusions of the sediment transport
25 study do not appear to use model results in determining the estimate of threshold motion, assessed
at pages 22-24 of the study. The HEC-RAS Program may have been used to input some values into
26 the formulas used to estimate critical shear stress, but that was not apparent from the text of the
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report.
Median Pebble Size: King County agrees with Dr. Olson that the median pebble diameter size
identified in the report may be inaccurately smaller than actual site conditions. King County
pointed out that its conclusions were not based solely upon median pebble size. The "estimate of
threshold motion" section of the study, referenced in the preceding paragraph, was expressly based
upon median pebble size. The only conclusions in the study made independently of median pebble
diameter appear to be the generalized empirical observations from high flow events at the three
monitoring stations. As previously noted these conclusions were that soil transport only occurs at
flow rates that significantly exceed those created by the project. In short, the bulk of the analysis in
the sediment transport study was not sufficiently accurate to support any reliable conclusions on
downstream property impacts.
Monitoring Site Observations. Although the King County conclusions appear to be based almost
entirely upon observations from its monitoring stations as opposed to HEC-RAS modeling, King
County admits that the monitoring stations may not be representative of all portions of the stream.
In its reconsideration request it acknowledged that the erosion threshold at the Duffus property was
probably at the lower end of the range of 73 to 230 cfs. This low range is a significant departure
from the conclusion of the sediment transport study that the overall erosion threshold is 275 cfs.
Further, there's no indication in the record that the Duffus property even represents the lowest end
of the range. If the threshold has this much variability, it is difficult to understand how any single
threshold can be assigned to the stream as a whole. It would appear that a far more relevant inquiry
would be what the lower downstream thresholds would be and whether the increased flows
generated by the project would create cumulative flows that exceed them.
Site Specific Impact Analysis. The King County reconsideration request expressly stated that the
sediment transport study was not designed "to evaluate site specific issues and concerns of the
individual landowners at the specific location visited by Dr. Olson" and that the study "was not
designed to and did not conduct a detailed analysis of risk to any specific private infrastructure
elements". The Examiner recognizes that King County qualified its statements as not providing any
"detailed" analysis of site specific impacts. Under different circumstances King County could very
well support a finding of no downstream impacts with these types of generalized conclusions.
However, the generalized conclusions of this report are based upon inaccurate pebble data and
monitoring data that does not accurately represent the conditions of all downstream stream sections.
With flawed general conclusions and no site specific conclusions, it cannot be determined that more
likely than not that the project will not cause adverse downstream impacts.
Overall Conclusions. King County appears to be arguing that the shortcomings of its data and
analysis are of no consequence given the wide disparity between the nominal increased flows
generated by the project and flows necessary to trigger sediment transport. King County also takes
the position that any more precise analysis would not yield any more useful results, given this
disparity. One is left with the impression that King County has loaded the record with extensive
data and studies to support its position, only to subsequently argue that most of that data and
analysis was not used by the County in its decision making when tasked to defend it. The existence
of extraneous information is understandable in most cases. Anchor QEA was probably just
SPECIAL GRADE/FILL PERMIT AND
CAO VARIANCE - 3
1 demonstrating that it had done its due diligence and completed as much analysis as could be
reasonably expected within the limitations of sediment transport science. The problem in this
2 particular case is that a qualified expert, Dr. Olson, provided very compelling evidence that more
useful information could have been reasonably acquired. Almost all of Dr. Olson's conclusions on
the short comings of the studies were validated by King County. If she was correct on all these
4 issues, it reasonable to conclude that she was also correct in determining that more could have been
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done to assess downstream impacts.
DECISION
7 The gradelfill permit and the critical areas variance applications are still denied without prejudice.
8 All findings and conclusions of the November 11,2011 decision shall remain in place. In addition,
those findings and conclusions are supplemented by the exhibit list, findings and conclusions of this
9 decision on reconsideration as well as the exhibit list identified in the Order on Reconsideration.
For the reasons discussed above, there is insufficient evidence to conclude that the project will not
10 adversely affect downstream property owners. Should the County exercise its option to re-apply, it
is recommended that the City hire an independent third party reviewer to assess the validity of the
conclusions of King County. In the alternative, evidence that King County has resolved the
concerns of Dr. Olson would be equally persuasive. The County should also recognize that the
issues addressed in this reconsideration decision solely address erosion impacts. Potential flooding
impacts also need to e addressed in more detail.
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14 DATED this 9th day of January, 2012.
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~rechts
City of Renton Hearing Examiner
Appeal Right and Valuation Notices
RMC 4-8-110(E)(9) andlor RMC 4-8-11 O(F)(1) provides that the final decision of the hearing
examiner is final subject to appeal to the Renton City Council. RMC 4-8-110(E)(9) requires
appeals of the hearing examiner's decision to be filed within fourteen (14) calendar days from the
date of the hearing examiner's decision. A request for reconsideration to the hearing e examiner
may also be filed within this 14 day appeal period as identified in RMC 4-8-110(E)(8) and RMC 4-
8-100(G)(4). A new fourteen (14) day appeal period shall commence upon the issuance of the
reconsideration. Additional information regarding the appeal process may be obtained from the
City Clerk's Office, Renton City Hall-7th floor, (425) 430-6510.
SPECIAL GRADE/FILL PERMIT AND
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Affected property owners may request a change in valuation for property tax purposes
notwithstanding any program of revaluation.
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