HomeMy WebLinkAboutMay Creek Drainage Improvement Project, 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 Grade/Fill Permit and CAO
Variance
LUAll-065, V-H, SP
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) FINAL DECISION
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Summary
King County has applied for a Special Permit for Grade/Fill and a variance to critical area regnlations
for a dredging project to May Creek designed to reduce the duration of one year flood events for
17 upstream properties. The permits are denied without prejUdice. There is insufficient evidence to
establish that the drainage project will not adversely affect downstream properties by increasing
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erosIOn.
Testimony
Jennifer Henning, Renton current planning manager, spoke on behalf of the City of Renton. She
noted that the hearing is a permit for grade and fill and also a variance to the critical areas
regulation in order to allow for some removal of vegetation along the stream. The area in Renton is
only 3.75 acres, composed of the dredging area as well as vegetation removal. Sediments, fines and
cobble will be removed. Vegetation that obstructs the channel, primarily canary grass, will also be
removed. The project site contains a Class III wetland. The City has five classes of wetlands.
Class III is the third most significant with a 25 foot buffer.
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Ms. Henning noted that May Creek River Mile 4.3 to 4.9 contains the entire project area. The
portion in Renton is only a small portion of the project, the western limit of the project area. Large
woody debris will be added to the stream as mitigation. A couple stream alcoves are added to serve
as fish habitat. The project involves a temporary access road for the equipment used to do the
dredging and mitigation. The project will improve the flood capacity of the area, which is flooded
during most of the year. The project will increase the flow capacity and will allow some use of the
land that is usually flooded. The dredging will remove accumulated sediment that will be spread
throughout the project site instead of transported off-site. Enhancement native vegetation will be
installed. The Department of Ecology has required fencing around the project area composed of
three strand barbwire, which is standard for areas along May Creek to keep livestock outside of the
stream buffers. There is some disagreement as to where to place the fence on one of the lots
affected by the project. The City's main interest is that sensitive area signs be posted and that the
fence doesn't obstruct wildlife movement. Ms. Henning smnmarized the mitigation required for the
project. Only 392 cubic feet of sediment will be dredged and obstructing vegetation removed. The
stream will be diverted during the dredging to prevent water quality impacts. Noise and dust
impacts will be temporary during construction only. On-site noise levels during construction will
reach dba, but this dissipates away from the site and there will be no work on weekends.
The variance from critical area regulations is necessary to remove vegetation and sediment within a
sensitive area and buffer -May Creek and the Class III wetland. The project site is fairly flat. The
project protects the public health and welfare because public access will be very limited. The
project will reduce flooding which promotes public safety. Staff concurs with the Applicant's
hydraulic analysis that there will not be adverse erosion impacts downstream and downstream
flooding. The project is consistent with the City's comprehensive plan because there is no change
in use of the land. The Applicant did review alternative courses of action and they determined that
the measure taken was the least disruptive of the sensitive areas and the most consistent with the
County's budget limitations. Wetland areas will be restored and invasive species removed.
Measures will be taken to prevent sediments from re-entering the stream. The project will not
create any net loss in stream function. The project involves one to one compensatory mitigation so
there is no net loss. The project was evaluated under Section 7 of the Endangered Species Act.
Exhibit 20 was admitted into the record as the ESA consultation for the project. The consultation
reveals that there will be no adverse impacts to endangered species. There were some comments
submitted from the Muckleshoot Tribe for the dredging project as a whole (Ex. 17). Best
management practices will be employed to protect ground and surface water quality. The
Washington State Department of Ecology ("DOE") has denied 401 certification without prejudice
only because DOE had a deadline to make a decision and King County is still working with DOE to
acquire certification approval. Project mitigation involves 10 years of monitoring.
The Examiner asked the King County representative, Doug Chin, whether a foot bridge was a
contributing factor to the flooding as alleged in some of the comment letters submitted on the
project. Mr. Chin clarified that the dredging is designed to alleviate one year flooding. The bridges
don't have any impact on the flows the project is designed to improve. The bridges affect larger
storm events.
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Andrew Duffus, neighboring property owner, asserted that the 9/22111 DOE letter was glossed over
as DOE running out of time. DOE asked the Applicant numerous times to ask for information that
hasn't been received. He noted that the project is an ill-conceived attempt to temporarily reduce
flooding to protect horse pastures. Downstream properties already experience numerous flooding
problems and can only access their properties through private bridges that are vulnerable to
flooding and erosion. The preliminary report to the Examiner is flawed with gaps in relevant
information. No reference is made to the 9/22 DOE letter. On 8115111 DOE released a memo from
its senior hydrologist, Dr. Patricia Olson, who had reviewed all of the County's documentation and
done a site visit. She questioned the lack of detail in the County's studies and design, the
effectiveness of the project and cost/benefits. Dr. Olson publishes articles on rivers, lakes and
groundwater issues and testifies as an expert witness. Her work was cited in the County's studies.
Her memo should have been referenced in the staff report. The document should be given
substantial weight. Mr. Duffus questioned the qualifications of staff to evaluate the application
given the conclusions of Dr. Olson. On 911/11 DOE informed King County that it would have to
deny the water quality certificate unless requested information was received by 9116/11. DOE has
repeatedly questioned the "effectiveness, purpose and need of the project". Just two weeks ago the
Muckleshoot Tribe submitted a comment letter to DOE requesting that King County exhaustively
consider alternatives before dredging May Creek. The wetland is a Class III wetland that is wet all
year round, chest deep in the summer. Additional alcoves and other measures may be necessary to
mitigate impacts. DOE and the Tribe are requesting larger planting buffers and other measures that
could have greater clearing and grading impacts than those assessed by the Renton staff. Mr.
Duffus asserted that machinery would be roaming all over the project site to place snags. In the
past the City has required cedar split rail fencing for critical areas, as demonstrated in LAU 05-83.
That plat was in a project adjacent to the project within the same open space corridor of the project.
Mr. Duffus also saw no broad public support for the project, which only benefits four horse pastures
at the expense of downstream property owners. He also questioned whether the project could pass
a costlbenefit analysis. There is a risk of liability for downstream enviromnental and property
damage. There are 7 properties adjacent to the project. One property is a wetland, another is an
undeveloped property that is also a wetland. A third property is not used for farming. The
remaining four properties have horse pastures with seasonal flooding. None of the homes on those
properties are in danger of flooding. Conversely between 148th and Coal Creek Parkway there are
18 properties and eight of those homes are close enough to the stream to be flooded.
Ex. 21 was admitted as the 9/22/11 DOE denial. Ex. 22 was admitted as the 10/3/11 letter from Mr.
Duffus. Ex. 23 was admitted as a September 15,2011 letter from the Muckleshoot Tribe. Ex. 24
was admitted as the joint notice from the Army Corps.
Tom Carpenter, community activist, noted that the DOE denial was without prejudice because DOE
was out of time and a permit is expected to be forthcoming. The cause of flooding in the project
area is well understood as resulting from development of the surrounding hillsides that has resulted
in the deposition of tons of silt into the project area. Stormwater mitigation in the 1960's was not
adequate to protect May Creek from these silt impacts. There has been a significant infestation of
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invasive reed canary grass into the valley. Unfortunately extension agencies recommended their
installation before realizing their adverse impacts. The deposition of sedimentation and the
proliferation of the reed canary grass have completely altered the natural retention/detention
functions of the valley and creek. The Stonegate Homeowner's Association is very excited about
the project because it will restore the hydrological functions to its predevelopment state extending
to before coal was discovered in the valley and it was first developed. The project site is limited to
the area where sediment has settled. The properties that benefit extend way up stream from the
project site. Currently those properties are flooded six months out of the year, which is not
consistent with the natural state of the valley. It is not correct to assert that only seven properties
will benefit. Wetland boundaries are far in excess of what they have been historically and these
standing bodies of water are caused by the loss of hydrological functions of the creek. Historically
there have only been two small wetlands on the entire seven mile stretch of the creek. One is in a
small area not close to the project site and the other is at the mouth of the creek.
Jeff Walker, an upstream property owner, noted that Mr. Carpenter had already covered much of
what he was going to say. He added that his property has been used for agricultural purposes for
over 100 years and that much of this property can't be used because of the flooding. He
emphasized that the County are unbiased and that property owners and that there is a high vested
interested in the project by numerous upstream property owners. He noted that the stream is a
valued recreational corridor as well that will benefit from the project.
Roger Coates, testified he was concerned that no one has proven that erosion to downstream
properties won't occur. He is concerned that the increase in stream velocity will increase erosion
on his property.
Jean Rollins submitted a summary of citations from scientific experts demonstrating that 9 of the 10
variance criteria haven't been met. She noted that the project is desib'lled to benefit horse pastures
at the expense of downstream properties. The County doesn't know what will happen downstream.
Dr. Olson states that the hydraulic analysis is inappropriate. Experts conclude that it is incorrect
that the project will not create downstream erosion. Experts believe that the project will harm the
stream and wetlands. The project serves private property, not public need. Better alternatives have
been ignored. The 0.04% in flood reduction is not worth the project cost and impacts. Dr. Olson
disagrees with King County conclusions on downstream erosion impacts and deposition of
sediment. Dr. Olson concluded that the existing transport modeling needs independent review.
Compensatory flood storage is not provided. Fish species are jeopardized as Green Creek is home
to Chinook, Sockeye and Coho. Green Creek is close to the wetland. The 401 certificate was
denied because King County could not demonstrate that water quality standards had been met. The
9/22111 DOE letter shows that King County has not provided information necessary to approve the
permit. There was no "time crunch" as DOE had requested needed information over an extensive
amount oftime. The Army Corps and DOE have repeatedly questioned the need and purpose of the
project. Dr. Olson wrote that the channeling project is akin to trying to channel a bathtub that has
more inflow than outflow. The scientific studies used for the project has been invalidated by
scientific authorities. The long marsh creek plan is not a mitigation plan. Compensatory flood
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storage has not been provided. The alcoves are insignificant. If the alcoves fill with sediment fish
will not be able to access the site. There is no monitoring plan for the dredging of the project. The
Examiner should take a no risk approach to the project pursuant to RMC 4-9-25(F).
Jim Bonwell, owner of the first downstream private bridge, noted that the County comes up with a
different plan at each hearing. He was bom near the creek and his parents live near the headwaters
of the creek. His grandfather told him they used to dredge the creek so it's inaccurate to say that the
project will retum the creek to natural conditions. There are dredge materials on his property that
he discovered 25 years ago when he acquired his property. He overheard some County consultants
walking the creek stated it was classic Coho habitat. He understands that upstream properties are
flooding but this is what the Valley properties are designed to do. On his property there is a rock
vein that serves as a high water mark and this is the reason for the flooding and that's not going to
be changed by the dredging.
Jerri Wood has lived in May Valley her entire life. Part of the flooding is due to overdevelopment.
Her concem on the dredging and mitigation is that there are experts on both sides. The experts
opposed to the project validate her experiences and those of her mother in the valley. The City has
failed to follow its urban separator regulations. Her mother's neighbor repeatedly channels storm
water onto her property in violation of Renton standards but Renton won't enforce those standards.
If you dredge May Creek her mother will lose her backyard and septic system. With the erosion
already happening, the removal of the sediment by the project will destabilize shoreline trees that
will fall onto her mother's home. The City of New Castle is also responsible for the
overdevelopment. The creek as whole should be considered and impacts to persons such as her
mother should be considered. A more collaborative process is needed to solve these problems.
Julie Bonwell testified that dredging can't be good for an environmentally sensitive wetland and
salmonid stream. Up until 22 years ago the project area was an overused, overgrazed horse pasture
and it has taken years to be restored. The wetland is doing its job in filtering water and serving as
an aquifer recharge area. The stream level rises by several feet during major storm events. Woody
debris flowing down the stream causes property damage. She is concemed that the woody debris
proposed for mitigation won't be sufficiently anchored and will wash out her bridge, which is the
only way she can access her home.
Ex. 25, Jean Rollins written materials, was admitted. The Examiner inquired whether the County
wanted an opportunity to reserve objection until it had an opportunity to read it and the County
stated they had no objection and just wanted a copy.
The Examiner inquired whether King County had any rebuttal and noted that he was particularly
interested in any response to the Dr. Olson materials, since that represented credible scientific
evidence that he will take seriously. Mr. Chin noted that a biological evaluation on fish impacts
had been done for the proj ect and that the National Marine Fisheries Service concurred in the
evaluation. The Washington State Department of Fish and Wildlife has also approved a hydraulic
permit for the project. King County first received comment on the project from DOE on September
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1,2011. DOE gave King County until September 16, 2011 to respond to the comments. Part of
those concerns were based upon input from Dr. Olson, but Killg County had not seen her memo
until October 3,2011. King County responded to the DOE comments on September 16,2011. On
September 22, 2011 DOE notified the County they were up against the wall and had to meet the
statutory deadline and didn't have time to approve the permit so their only course of action was to
deny the permit with [sic] prejudice. The County will address all the questions raised by Dr. Olson
with DOE in a near term meeting that is being set up at this time. Mr. Chin asked to enter a
sediment transport study into the record, which is located at the Killg County website. The
Examiner stated that he could leave the record open for the County to supply the document, but that
the record would also have to be left open for public response and the County would then have an
opportunity to provide rebuttal to that response. Mr. Chin stated he was fme with that process.
Mr. Chin noted that the woody debris would be anchored into the ground and embedded with "what
is appropriate", which may be [inaudible]-filled anchors or whatever is necessary to keep the debris
in place. Mr. Chin also requested to submit a hydraulic analysis, which was admitted as Ex. 26.
He noted that the project will provide better flow to prevent one year storms. The buffers will be
replanted with native vegetation that should out compete the reed canary grass that will be removed.
The replacement of the reed canary grass will ensure longevity for the project. The long marsh
creek project is designed to prevent the deposition of sediment from long marsh into May Creek.
The long marsh creek project will trap sediment before it gets to May Creek, thereby maintaining
the functions of May Creek and extending the life of the project.
Jeff Burke, King County, acknowledged that 0.04% is a very insignificant change in the duration of
flooding. The project is designed to focus on flows between 6 and 50 cfs. Any storm goes
overbank into flood areas. No changes are being made to the flood are~ just to in-channel capacity.
This results in significant changes to flood duration in the flood areas of 20%. There will still be
flooding. The duration of flooding for small storms will change.
Mr. Burkey testified that there will be more conversations with DOE on the Olson memo. The
0.04% change in duration of 50 cfs referenced in the Olson memo is only a 7 hour difference per
year. As to her comments on stream power, stream power is based on time not just magnitude. The
change in duration of the stream power is only on the order of a few hundredths of a percent.
Duration is a major component of erosion impacts. Mr. Burke is a hydrologist with King County
and has served in that capacity for over 20 years. He has also done contract work for DOE.
Lindsey Miller, King County Enviromnental engineer, is a wetland ecologist by training. The
impacts to the wetlands are only temporary resulting from wetland enhancement designed at
suppressing canary grass. The work in the wetlands is limited to replacing non-native canary grass
with native species, which is an enhancement project. There will be no change in flood storage or
extent of flooding in the wetlands. The project will also further mitigate impacts from upstream
development.
Don Althauser, engineer of record for design of the project, testified on the private downstream
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bridges. There are two private downstream bridges, one owned by Duffus and Rollins and the other
by Bondwell. The changes in hydrology are small and well within the capacity of the bridges. He
can't testify as to the condition of the bridges. The second bridge doesn't appear to have any
exposure to erosion. The Bondwell bridge does appear to have some exposure. He can't propose
upgrades to private bridges. He does not see that the project will create any adverse impacts to the
bridges. The Coates property was inspected. It is eroding and unstable. Bioengineering
stabilization measures would probably stabilize the property. The project will not further
destabilize the property. The project was designed to assure no increase in downstream erosion.
The sediment transport study for the project found that the flow rates necessary to create erosion
indicate that the flows are well above 75 cfs and may be as high as 200 cfs. The project will only
increase flows by 6 cfs, which is well below the range of concern.
Mr. Chin noted there were a number of senior level biologist, ecologist, geologists and consultants
worked on the project and provided their expertise.
Jennifer Herming introduced a few more exhibits. Ex. 27 was admitted as the 2/9/22 Sediment
Assessment Report. Ex. 28 was admitted as the HP A approval. Ex. 29 was admitted as the 2111
May Creek Drainage Improvement Biological Evaluation. Ms. Herming identified some
administrative permits required for the project. She referenced RMC 4-3-110, which identifies the
urban separator map and shows that the project area is not in the urban separator. Within the
separator area there's a requirement for no fencing to allow for the passage of wildlife. This
requirement doesn't apply to the project area, where fencing is allowed. She clarified that the
Olson memo was not submitted to the City by DOE as their comment on the project application. It
was provided by Mr. Duffus.
Exhibits
Exhibits 1-17 of the exhibits identified at Page 2 of the staff report were all admitted
into the record with no objections from the public. Ex. 1, the "project file" will be limited to
the staff report, since the exhibit title otherwise does not provide notice to the public of what
documents are specifically included. The following exhibits were admitted during the hearing:
Exhibit 18: Vicinity Map with project location highlighted in yellow.
Exhibit 19: Wetland and Riparian Mitigation vicinity map, Sheet 14 of 18
Exhibit 20: 3/10111 ESA Consultation
Exhibit 21: 9/22/11 DOE Section 401 denial
Exhibit 22: 10/3/11 comment letter fr A. Duffus
Exhibit 23: 9/15111 Muckleshoot comment letter
Exhibit 24: Army CorpslDOE Joint Public Notice, NWS-2010-158
Exhibit 25: 10/4111 comment letter fr Jean Rollins
Exhibit 26: 12117110 Hydraulic and Hydrologic Analysis
Exhibit 27: 2/9111 Sediment Assessment
Exhibit 28: 123184-2 Hydraulic Permit Approval
Exhibit 29: 2111 Biological Evaluation
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Exhibit 30: Landscaping Plan
Exhibit 31: Sediment Transport Study
Exhibit 32: Two 10/13/11 emails fr Debra Rogers re transport study
Exhibit 33: 10/13/11 email from Jim and Julie Bonwell re transport study
Exhibit 34: 10/13111 email fr Gary Amundson re transport study
Exhibit 35: 10/14/11 email from Wayde Watters re transport study
Exhibit 36: 1 0114/11email from Doug Chin re transport studyl
FINDINGS OF FACT
1. Applicant. King County Water and Land Resources Division
2. Hearing. A hearing was held on October 4, 2011 at 1 :00 pm at the Renton City Hall City
Council Meeting Chambers. The Examiner left the record open for submission of the sediment
transport study (Ex. 31). Mr. Chin was given until Thursday (10/6/11) to supply the report (or a
weblink) to the City. The public was given until a week from Friday (10114/11) to supply written
comment on the report and the County was given until the following Wednesday (10119111) to
reply. Emails were received after the October 4, 11 hearing questioning whether comments were
limited to the transport study. The Examiner stated both during the hearing and at the end of the
hearing that the purpose of leaving the record open was to provide an opportunity for the public to
review the transport study, because the transport study was not available during the hearing for
review and response. All other exhibits were presented for review during the hearing. The
Examiner provided an opportunity for all hearing participants to review all other exhibits and to
object to their admission. No requests to leave the record open on any exhibit were made during the
hearing and the Examiner only left the record open for comment on the transport study. King
County did not reply to the transport study comments submitted by the public. The Examiner
confinned with staff that the public comments had been forwarded to the County along with
confirmation that the reply deadline was October 19, 20 II.
Substantive:
3. Description of Proposal. King County requests a Special Pennit for Grade/Fill and a variance
to critical area regulations in order to improve in-stream flow conditions along the reach of May
Creek between approximate River Mile ("RM") 4.3 and 4.9. The project would result in the
removal of approximately 392 cubic yards of accumulated sediment from approximately 162 lineal
feet of the May Creek Channel, and the removal of obstructive vegetation (reed canary grass and
willow branches) for approximately 540 lineal feet of river channel. The project is located in May
Valley on the south side of SE May Valley Road near the cities of Newcastle and Renton. The
1 Mr. Chin's email does not address the transport study directly. However, it does indirectly argue that the Olson
memo criticizing the transport study may not be the official position of DOE and that King Connty will resolve any
concerns raised by Dr. Olson sbould her memo become the official position of DOE.
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project within Renton would occur on a parcel that is approximately 3.75 acres. The project site
contains a Category 3 wetland and a Class 2 salmonid stream (May Creek). As mitigation for
removing sediment and vegetation, 15 feet ofriparianlwetland vegetation would be planted on both
sides of May Creek, and also outside City limits. Enhancement would include approximately 0.24
acres of off-channel alcoves, reed canary grass suppression, planting with native vegetation and
large woody debris placement. All dredged materials will be deposited on site, eliminating the
need for truck export. Additional vehicular access during project installation within the wetland
and floodplain will be provided using rubber tired or tracked equipment. The project is expected
to commence during the first approved fish window after receiving the permit, likely in 2012.
SEP A environmental review was conducted by King County as lead agency.
4. Adverse hnpacts. King County has failed to demonstrate that its project will not harm
downstreanl properties tlnough increased erosion. The impacts to downstream properties were of
significant concern and anxiety to downstream property owners. The owners were concerned
about impacts to footbridges, septic drainfields, flooding and eroding away of stream banks. The
concerns of the property owners were confmned by Dr. Patricia Olson in an August IS, 2011
internal DOE memo (Ex. IS). Dr. Olson is a PhD hydrologist employed by DOE to assess water
quality impacts of projects such as that proposed by King County. She reviewed the project and
wrote the memo as part of DOE's Clean Water Act Section 401 certification review for the project.
There is no question that Dr. Olson was both highly qualified and unbiased in her assessment of
downstream impacts resulting from the project. In her memo, Dr. Olson raises several concerns
over the County's analysis of the project. She wrote that it did not appear that the author of the
sediment transport study, Ex. 31, was "well versed in fluvial geomorphology and channel
response". She notes that County studies fail to identifY the volume of additional sediments that
will be transported downstream and where they will be deposited. She identifies several reasons
why the methodology used to assess the potential for erosion is flawed and may underrepresent the
potential for sediment transport. She concluded that she cannot make a determination concerning
bank erosion of downstream properties given the flaws in the transport and hydraulic studies. She
also disagreed with hydraulic study conclusions that flood frequency would be insignificant and
noted that an increase in flood frequency increases the potential for erosion due to associated
increases in stream power.
At the hearing King County provided some verbal rebuttal to the concerns raised by Dr. Olson.
Jeff Burke, a hydrologist, testified that the change in duration of the stream power is only on the
order of a few hundredths of a percent and that this will have no significant impact on erosion
potential. Don Althauser, project engineer, testified that in his professional opinion the project
would not destabilize or erode the support of downstream bridges and that the project would not
increase downstream erosion. He noted that the flow rates necessary to threshold sediment
transport are well above 75 cfs and may be as high as 200 cfs and that the project will only increase
flows by 6 cfs2 .
2 It doesn't appear that Mr. Althauser identified the mean flow rate for May Creek in his testimony, but the hydraulic
26 study (Ex. 26) sets the rate as 9 efs.
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During the hearing and also in its written connnent on the transport study (Ex. 36), King County
discounts the issues raised by Dr. Olson because her connnents may not represent the position of
DOE and, if her comments do represent the position of DOE, they will be addressed at a later date.
Those facts are largely irrelevant. Dr. Olson has provided a qualified and credible scientific
opinion that the studies prepared for the project are flawed and incomplete. The fact that Dr.
Olson's opinion mayor may not represent the position of DOE only has marginal relevance to the
accuracy of her position. The fact that King County intends to address her concerns at a later date
does absolutely nothing to support a finding in this case that downstream impacts will be fully
mitigated as required by the permitting criteria for the applications under review by the City of
Renton. Permits are not approved based upon assurances from applicants that impacts will be
addressed at a later date.
Mr. Burke and Mr. Althausen did a fme job in responding to some of the issues raised by Dr.
Olson. They take the position that the flows generated by the project are far below the thresholds
for sediment transport identified in the transport study (Ex. 31) and the hydraulic study (Ex. 26).
However, Mr. Burke and Mr. Althausen did not address Dr. Olson's issues with the accuracy of
those much higher threshold points. Given the numerous and significant alleged flaws in the
studies identified by Dr. Olson, there is no way of knowing from the record before the Examiner
whether the threshold flows are indeed much higher than those generated by project. It is both
alarming in the truest sense of the term and even suspect that King County is unable to defend the
accuracy of its studies when alleged flaws are so clearly identified by Dr. Olson. Why were pebble
counts used? Why weren't more data samples necessary? Why were pebble counts done on the
channel instead of bars? Why weren't subsurface pebble counts done? Why wasn't any
volumetric sediment sampling done? King County should be able to answer these questions.
Apparently it cannot.
King County was fully apprised of the significance of the Olson memo from both the exmniner and
the public. King County had ample opportnnity to respond to the Olson memo. The Examiner
advised King County during the hearing that the Olson memorandum raised significant issues and
that he needed the memo to be addressed. The King County response was primarily limited to the
verbal testimony from Mr. Burke and Mr. Althauser. King County did not request additional time
to respond to the memo. 1n point of fact, King County was given another opportunity to respond to
the memo in the reply it was afforded for connnents on its transport study. Many of the public
connnents on the transport study referenced Dr. Olson's critique ofthe study. King County could
have used the reply to address those Olson connnents. Instead, King County didn't submit any
reply, despite having received the public connnents and a reminder from staff that the County
could reply to them.
Given the circumstances above, the Examiner has no choice but to find that the evidence is not
sufficient to conclude that, more likely than not, the project will not adversely affect downstream
properties with erosion. Despite multiple opportunities to assure the Examiner and the public that
its methodology in assessing erosion impacts was not flawed as asserted by a qualified hydrologist,
SPECIAL GRADE/FILL PERMIT AND
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King County simply let the allegations stand, raising serious doubts as to the credibility of the
studies. Substantial evidence in the record, the uncontested conclusions of Dr. Olson, establishes
that the studies are flawed and CaIIDot be relied upon to assess downstream impacts.
The assessment of adverse impacts is limited to erosion impacts since that was the most significant
issue raised during the hearings and all that is necessmy to deny the grade/fill and variance
applications. In any reapplication King County should fully address all issues raised by Dr. Olson
as well as all other issues pertinent to project approval.
Conclusions of Law
Procedural:
1. Authority of Hearing Examiner. RMC 4-9-080(F)(2) provides that the hearing examiner is
responsible for granting special permits for fill and grade. The code section provides that a special
permit is required for the depositing of minerals or materials such as sand, gravel and rock. The
proposed dredging will involve the deposition of dredged materials on site, so a special use permit is
required and subject to review by the Examiner.
The authority of the Examiner to rule upon Critical Area Ordinance variance applications is not so
clear. RMC 4-9-250(8)(1) provides that the Community and Economic Development Administrator
or designee shall have the authority to grant variances "from the following development standards
when no other permit or approval requires Hearing Examiner Review". The requirement implies that
the Hearing Examiner shall review the variance request if an associated permit also requires
Examiner review, which in this case would be the special grade and fill permit. "[T]he following
development standards" that may be modified by a variance under RMC 4-9-250(8)(1) includes
those identified in RMC 4-9-2S0(8)(l)(c)(v), which are those "authorized to be requested as
variances in RMC 4-3-0S0(L)". RMC 4-3-0S0(L)(8)(d) authorizes administrative approval of
dredging activities provided that if applicable criteria are not met, a variance pursuant to RMC 4-9-
250(8) is required. The staff report does not identifY what Critical Area regulations are subject to
the variance request and what corresponding parts of the project trigger the need for a variance. The
dredging activity appears to meet the criteria for administrative approval by being necessmy for flood
hazard reduction purposes as required by RMC 4-3-0S0(L)(8)(d)(i)(a). The replacement of canary
grass with native vegetation and introduction of woody debris appears to meet the exemption criteria
of RMC 4-3-050(C)(5)(a)(ii). Project features that may trigger the need for a variance could
arguably be the stream alcoves and the tempormy access plan. However, these features could also be
interpreted as implied necessmy elements of an enhancement/dredging operation. If King County
reapplies, staff may be able to conclude that the variance request is not necessmy. In the altemative,
if staff still finds the variance application necessary it should provide a more detailed explanation of
why a variance is required.
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Substantive:
2. Aoolicable Staodards. RMC 4-9-080(F)(4) governs the criteria for special fill/grade permits.
RMC 4-9-250(B)(10) governs the criteria for the CAO variaoce. Only those criteria that address
erosion impacts will be quoted aod applied below since those standards on their justify denial of the
applications.
RMC 4-9-080(F)( 4): ... To grant a special permit, the Hearing Examiner shall make a determination
that .. the proposed activity would not be unreasonably detrimental to the surrounding area. The
Hearing Examiner shall consider, but is not limited to, the following: ... Size and location of the
activity ...
3. As discussed in Finding of Fact No.4, there is insufficient evidence to support a
determination that the amount of dredging proposed by the County will not create downstream
erosion that could adversely affect downstream properties. For this reason, there is not sufficient
evidence to determine that the proposed activity would not be unreasonably detrimental to the
surrounding area.
RMC 4-9-2S0(B)(l0): ... in lieu of the variance criteria of subsection B5 of this Section,
applications for public/quasi-public utilities or agencies proposing to alter aquifer protection,
geologic hazard, habit, stream and lake or wetland regulations shall be reviewed for compliance
with all of the following criteria:
a. Public policies have been evaluated and it has been determined by the Department
Administrator that the public's health, safety and welfare is best served; ...
e. The proposed activity takes affirmative and appropriate measures to minimize and
compensate for unavoidable impacts.
4. Since the evidence is insufficient to determine whether the project will generate erosion
impacts for downstream properties, King County has failed to establish that the public health, safety
and welfare is best served by the project. The absence of demonstrably credible erosion evidence
also makes it impossible to determine whether affirmative aod appropriate measures have been taken
to minimize unavoidable impacts. The project does not comply with RMC 4-9-250(B)(lO).
DECISION
The grade/fill permit aod the critical areas variaoce applications are denied. The permit applications
must comply with all applicable criteria and King County has failed to demonstrate compliaoce with
the permitting criteria identified in this decision. Since denial is based upon the failure to provide
necessary information, the denial is without prejudice in case King County cao produce the
information necessary to demonstrate compliaoce with applicable criteria
SPECIAL GRADEIFILL PERMIT AND
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DATED this 8th3 day of November, 2011.
Pilll A. Olbrechts
City of Renton Hearing Examiner
Appeal Right and Valuation Notices
RMC 4-8-11 0(E)(9) and/or RMC 4-8-11 0(F)(1) provides that the fmal decision of the hearing
examiner is final subject to appeal to the Renton City Council. RMC 4-8-11 0(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 examiner
may also be filed within this 14 day appeal period as identified in RMC 4-8-11O(E)(8) and RMC 4-
8-100(0)(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-7'h floor, (425) 430-6510.
Affected property owners may request a change in valuation for property tax purposes
notwithstanding any program of revaluation.
3 This .decision was initially mailed to the City of Renton on 11/2/11 with an incorrect signature date. The decision
hns been Te-issued with a correct signature date.
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