WSF MAINTENANCE FACILITY - DECISIONFINDINGS AND DECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Appeal of the Director's
Determination of Significance
WSF MAINTENANCE FACILITY
at Eagle Harbor SSDE13681
by the Washington State Department
of Transportation (WSDOT)
INTRODUCTION
The Director issued a SEP A Determination of Significance regarding a proposal by the
Washington State Department of Transportation for repairs and improvements at the
Ferry Maintenance Facility in Eagle Harbor, within the shoreline of the City of
Bainbridge Island. The Director's threshold determination was appealed by WSDOT. A
group of Bainbridge Island organizations and individuals sought and was granted
intervenor status.
The SEPA appeal hearing began on June 3,2006, and continued on August 3,4, and 17,
2006. Parties were represented at the hearing as follows: the Director, Department of
Planning and Community (pCD or Department), by Dawn Findlay Reitan, attorney for
the City of Bainbridge Island; the Applicant, Washington State Department of
Transportation (WSDOT), by Assistant Attorney General, Deborah L. Cade; and, the
Intervenor group (Intervenors) consisting of organizations (Reclaim Our Watemont and
Bainbridge Concerned Citizens) and individuals (Robert and Rachel Smith, R. G. and
Diane Meyer, and John Doreshuck), by Ryan Vancil, attorney at law [see Notice of
Appearance, Exh. 131. On August 18, 2006, the Hearing Examiner visited the site
accompanied by party representatives. Following receipt of post-hearing briefs from the
parties, the record was closed on November 8,2006.
After due consideration of all the evidence in the record, the following shall constitute the
findings of fact, conclusions of law, and decision of the Hearing Examiner. References
in brackets indicate some of the supportive evidence in the record; these references are
not intended to be comprehensive. Emphasis is added with underline; boldface is used
for formatting and does not denote emphasis. Washington State Ferries (WSF) is a part
of the Washington State Department of Transportation (WSDOT); "WSF" and
WSDOT" are used interchangeably in this decision.
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5. On November 21, 2005, WSF filed an application with PCD for a Shoreline
Substantial Development Permit Exemption (SSDE) [Application SSDE13681; see Exh 3
and 6]. The application describes the "proposal" as a rehabilitation project involving:
removal and replacement of existing structures with new structures" (including
foundation and other repairs for the Maintenance Building, Trask Pier, Yard Pier,
and Slip E, and seismic retrofit and remodel of the Maintenance Building). Much of
the proposed work would be in- and/or over-water (e.g., removing, stubbing, and/or
replacement of piles). The "Shoregang/Storeroom/Training Center" building, employee
parking and outdoor storage reconfiguration depicted in the "master plan" [Exh. 133] and
discussed at the pre-application conference, was not mentioned in the application. [See
also descriptions of "Proposal" below.]
6. PCD received many public comments regarding the shoreline exemption
application and the SEP A threshold determinations. These comments, having been
reviewed by the Director prior to making the subject decision, are part of the record in
this matter. Environmental issues/concerns cited in these comments included: potential
disruption to Superfund remediation caps; disposal of contaminated soil excavated from
the site; construction noise; adverse impacts to water quality (including those from
construction activities, use of ACZA-treated pilings, and stormwater outfall); light and
glare; and, adequacy of on-site fire and life-safety plans. [Doerschuk: Exh. 20, 60, 63;
Gilbert: Exh. 78, 84; Goldenberg, Exh. 27; Hey: Exh. 72; Lester: Exh. 16, 17, 18;
Robison: Exh. 25, 47, 54, 80; Smith: Exh. 35, 44, 46, 49, 61, 79, 81, 83, 86, 87, 88;
Reclaim Our Waterfront: Exh. 66, 69, 80; Association of Bainbridge Communities: Exh.
71]
7. Some public comments voiced long-standing concern about the status and future
use of "Area A" (as referred to in a 1974 Shoreline Hearings Board (SHB) decision; see
Finding 28). Several concerned citizens questioned WSDOT's treatment and plans for
the site relative to accommodating a publicly-accessible "haul out" facility within "Area
A" [see e.g., Testimony of Smith]. Interpreting or enforcing the SHB's order (and/or
associated covenants/dedications, court decisions, etc.) is not within the jurisdiction of
the Hearing Examiner and is not addressed in deciding this appeal of a SEP A threshold
determination.
S. PCD deemed the SSDE application to be "complete" as of February 28, 2006
Exh. 40], but the "Notice of Application" for SSDE13681 was not published until March
8, 2006 [see Exh. 26 and 52]. The Notice states that environmental review is required
and notes that WSF would be the lead agency for that review.
9. As part of its review of the SSDE application, PCD requested that WSDOT
submit a SEPA Checklist and, if WSDOT chose to be the "lead agency", to make a
threshold determination. [Exh. 181; Testimony of Machen]
10. Despite having found the WSF Maintenance Facility proposal to SEP A-exempt,
WSDOT complied with the City's request [see above] for SEPA review documentation
Exh. 183; Testimony of Parriott]. On March 8,2006, WSDOT submitted a completed
SEPA Checklist [Exh. 53] to PCD. The SEPA Checklist describes the proposal as only
rehabilitation, as it had in the SSDE application.
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11. Also on March 8, 2006, as the SEPA "lead agency" [see Finding 42], WSDOT
issued a Determination of Non-Significance (DNS) [Exh. 51], concluding that the
rehabilitation proposal "does not have a probable significant adverse impact on the
environment given the time and duration of construction". March 22, 2006, is noted as
the last day for comments on the DNS.
WSDOT's DNS
12. In its DNS issued March 22, 2006 [Exh. 51], WSDOT's DNS describes the
proposal" as only rehabilitation, repair and improvement of existing structures:
Washington State Ferries (WSF) is proposing to improve the Eagle Harbor
Maintenance Facility on Bainbridge Island, WA. The planned improvements
will take place in two phases of construction described as follows:
Repairs or replacements of the existing dock facilities to make them
structurally sound and to the existing utilities to improve functionality.
Improvements to the existing maintenance building to make it structurally
sound, upgrade it seismically, and to improve functionality. This will
include the repair or replacement of existing utilities.
13. In a letter dated March 22,2006 [Exh. 75], PCD commented on the DNS issued
by WSDOT. The Director criticizes the DNS for being based on insufficient information
regarding adverse impacts associated with the proposed repair, removal, replacement of
existing structures within Superfund containment cap areas, utilization of ACZA-treated
replacement piles, net loss to benthic habitat, disposal of contaminated soils and creosote
piles, and the lack of specification of mitigation measures.
14. On March 22, 2006, the Bainbridge Island City Council also submitted
comments to WSDOT regarding the DNS [Exh. 74]. In these comments, the City
Council voiced objection to the DNS and called for it to be withdrawn due to what the
Council viewed as "an impermissibly narrow determination of the scope of the project".
Specifically, the DNS was criticized for not including upland projects (i.e., "building a
large warehouse and expanding. .. parking"), which Council considered an interdependent
part of WSF's "Eagle Harbor Maintenance Yard Project". Adverse impacts associated
with construction were also noted (e.g., noise, potential adverse water quality effects).
City's DS
15. On March 22, 2006, City gave notice to WSDOT of its assumption of SEPA
lead agency" status [Exh. 76] This Notice asserted that "the proposal described by
Washington State Ferries inappropriately fragments and piece-meals a larger project
planned by the agency" having four components: (1) the 2005 conversion of Slip B from
walk-on to drive-on; (2) and (4) rehabilitation, removal, replacement of existing
structures [see in Finding 5]; and, (3) construction of storeroom and training center. The
City's Notice states that these "phases" are parts of one project with "dependent and
interrelated functions" such that "their environmental impacts must be reviewed as a
single, larger project."
16. WSDOT petitioned the Department of Ecology (DOE) pursuant to WAC 197-
11-946, disputing the propriety of the City's assumption of lead agency [April 6,
2006, Exh. 93]. The City filed a response with DOE regarding WSDOT's petition [April
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14,2006, Exh. 96]. In their submissions, both parties assert that WAC 197-11-946 does
not control and DOE does not have the authority to make the lead agency determination
in this situation. In order to preserve potential remedies, each party includes in its
submittal an argument for why it is the proper lead agency. The parties agreed in the
request that DOE delay issuing a determination until April 27, 2006 [Exh. 94]. There is
nothing in the record of this proceeding to indicate that DOE has taken action on
WSDOT's petition or on the parties' contention that it lacks authority to do so.
17. On April 19, 2006, acting with the lead agency status that the City had assumed
on March 22, 2006 [see Finding 16], the Director issued a SEPA Determination of
Significance (OS) [Exh. 95]. The DS concludes that the "additional phases of
construction" (i.e., the upland "planned improvements" in addition to repair, removal,
replacement of existing structures) "is likely to have a significant adverse impact on the
environment" and that an Environmental Impact Statement (EIS) is required. The DS
identifies eight areas for discussion in the EIS: Earth; Air; Water and Wildlife; Noise;
Aesthetics; Light and Glare; Transportation and Access; and, Public Services.
18. During the City's EIS scoping process, PCD received a number of public
comments [Breiner, 121; Doerschuk: Exh. 118; Gilbert: Exh. 106, 109; Hey: Exh. 112;
Lester: Exh. 120; Meyer: 111; Robison: Exh. 114; Smith: Exh. 102, 115; Association of
Bainbridge Communities: Exh. 108]. Issues of concern were similar to those raised by
the public prior to the Director's threshold determination [see Finding 6].
19. WSDOT appealed the Director's DS [Exh. 129]. The appeal reiterates
WSDOT's contention that the work it was proposing (repair, removal, replacement of
existing structures) is categorically exempt. [Testimony of Parriott]
SITE DESCRIPTION
20. WSF operates the Eagle Harbor Maintenance Facility on Bainbridge Island. The
Maintenance Facility site, addressed as 497 Harborview Drive in Winslow, is an
irregularly-shaped parcel located on the north-central shore of Eagle Harbor, southwest of
the Ferry Terminal. The Application gives the lot area as 7.22 acres (Assessor's Parcel
Number 262502-3-113-2003; Kitsap County Section 26, Township 25N, Range 2E).
Access to the site is by Olympic Drive which connects the Ferry Terminal with Winslow
Way. [Exh. 6]
21. The site has a 100+ year history as a shipyard. Originally built in 1902, the
shipyard was operated by the Griffith family from 1917 to 1947, employed over 2,000
workers during WWII, and operated under various ownerships after WWII. The shipyard
was purchased by WSDOT in 1959. [Exh. 95, page 27; 127 and 208; Testimony Parriott]
22. The WSF Maintenance Facility at Eagle Harbor is the "hub" for ferry
maintenance serving 19 terminals and 28 vessels. Over 100 highly skilled workers and
crafts persons (in eight different trades) provide both routine and emergency
maintenance. [Exh. 10; Testimony of Parriott]
23. The Maintenance Facility is generally in a deteriorated condition, in need of
repair and modernization. Existing structures [see site maps in Exh. 3, 122, 154, and
photos, Exh. 197] include the large, two-story (46-ft. high) Maintenance Building which
houses various repair shops (machine shop, steel metal, electrical shop, etc.) and material
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storage for the shops' operations. North of the Maintenance Building, in the upland part
of the site, is the "Shoregang Building", a one-story, rectangular building aligned parallel
to the eastern property line. There are also a few small structures with specific functions
e.g., welding shop and tool shed). The site is paved and fenced. Outdoor storage (parts,
life-safety and operational equipment, etc.) occupies the northern one-third of the site and
the area west of the Shoregang Building is striped and used for employee parking.
Overwater structures include the Trask Pier, Slip E, and the Yard Pier (all slated to be
rehabilitated). [Exh. 53; 95; Testimony of Parriott]
24. A century of industrial use (Wyckoff creosote plant, shipyard, etc.) caused
contamination of sediment, fish, and shellfish in Eagle Harbor. In the mid-1980's,
Wyckoff /Eagle Harbor was designated as a priority site due to accumulations of chemical
contaminants hazardous to human health and the environment. Eagle Harbor "Superfund
Site" remediation included excavation, removal and/or stabilization of contaminated
soils. Contaminated soil "hot spots" were capped and the entire upland area of the site
was paved with asphalt. The WSF pier and slips are underlain by a "thin cap" and some
areas have a "thick cap". The Superfund remediation agreement limits site use to
Industrial", requires on-going monitoring, and any construction within the capped areas
including piling) must meet standards noted in the Operation, Maintenance, and
Monitoring Plan [Exh. 124, Sections 1-3] and have the approval of the Environmental
Protection Agency (EPA). [Exh. 123; Testimony ofPatmont; McKenzie]
25. The Superfund remediation included a "Tidal Barrier" (constructed in 1997) in
the northwestern part of the subject site where the Ravine Creek discharges into Eagle
Harbor. Seepage at the southern end of the barrier was first observed in the annual EPA-
approved monitoring in 1999. Samples of this low volume, intertidal seepage showed
elevated concentrations of copper and zinc. A remediation plan to address/correct the
seepage problem was developed by the EPA and WSDOT; the prescribed remedial work
was completed in August 2006. [Exh. 123; 124, Sections 2.2 and 3.2; 190; 210;
Testimony ofPatmont]
26. The site has a "Water-Dependent Industrial" (WD-I) zoning and Comprehensive
Plan designation; the shoreline designation is "Urban". Neighboring property to the east
Eagle Harbor Condominiums) is zoned "Residential" (R-14), has the Comp Plan
designation "Urban - Multi-Family" (UMF), and the "Urban" shoreline designation. To
the west (across the Ravine Creek Estuary) is the City's Waterfront Park, with "Mixed
Use Town Center - Central Core" (Core) zoning and Comp Plan designation, and the
Natural" shoreline designation. Undeveloped property to the north has the "Mixed Use
Town Center - Gateway" (Gateway) zoning and Comp Plan designation, and the
shoreline designation "Natural". [Exh. 6; 208]
27. In 2005, anticipating "improvements and developments" to be proposed for the
WSF Maintenance Facility, WSDOT requested that the City Council amend the shoreline
designation of the site, from Natural to Urban. This amendment to the Shoreline Master
Program (SMP) was approved by the City Council (and DOE) in 2005; the SMP
submittal to DOE acknowledges that the designation change "will allow expanded
permitted and conditional uses on the property". [Exh. 208]
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Pier (6), and Slip E (3). Permanent replacement piles would be different materials
depending upon structural compatibility with the existing structures: ACZA-treated wood
46), steel (17), and concrete (20). [See Table 1, Exh. 53] Some existing piles would be
stubbed" (i.e., cut off at the mudline) and replaced. Several hundred linear feet and
several thousand square feet of untreated, decaying wood caps and decking would also be
removed and replaced. Some concrete support structures would be removed and replaced
including some cast-in-place concrete).
37. At hearing, WSDOT provided estimated the numbers of piles to be removed,
stubbed and/or replaced as 81 creosote-treated piles removed and 46 ACZA-treated
piles installed. [Exh. 168; Testimony of Parriott].
38. A total of 42 existing lights [Exh. 135] would be removed from Trask Pier and
would be replaced with six "cut-off shoebox" fixtures. The Checklist indicates that these
proposed lights, pole-mounted approximately 15 ft. above the deck of the pier, would
direct "almost no light above 90 degrees." [Exh. 53, page 25-26; Testimony of Parriott]
39. The Maintenance Building would be remodeled to improve functionality of the
lay-out. [Exh. 53; Testimony of Parriott]
40. WSDOT believes a catchbasin located just north of the Maintenance Building is
broken. The catch basin would be repaired as part of the rehabilitation of existing
structures. [Exh. 122; Testimony of Parriott]
SEPA THRESHOLD DETERMINA nON
41. The City has adopted specific sections of the SEPA Rules [Washington
Administrative Code (WAC) Chapter 197-11], for the administration of the
environmental policies and procedures in BIMC 16.04. One of the adopted sections is
WAC 197-11-330, which has a description of the threshold determination process that
includes the following.
An EIS is required for proposals for... major actions significantly affecting the quality of
the environment. The lead agency decides whether an EIS is
required...
as described
below.
1) In making a threshold determination, the responsible official shall:
a) Review the environmental checklist...
i) Independently evaluating the responses. . . and
ii) Conducting its initial review of the environmental checklist and any
supporting documents without requiring additional information from the applicant.
b) Determine if the proposal is likely to have a probable significant adverse
environmental impact, based on the proposed action, the information in the
checklist...and any additional information furnished under WAC 197-11-335 and 197-
11-350; and
c) Consider mitigation measures... the applicant will implement as part of the
proposaL.. required by development regulations, comprehensive plans, or other existing
environmental rules or laws.
2) In making a threshold determination, the responsible official should determine
whether:
a) All or part of the proposal, alternatives, or impacts have been analyzed in a
previously prepared environmental document, which can be adopted or incorporated by
reference.. .
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b) Environmental analysis would be more useful or appropriate in the future in
which case, the agency shall commit to timely, subsequent environmental review...
3) In determining an impact's significance... the responsible official shall take into
account the following, that:
a) The same proposal may have a significant adverse impact in one location but
not in another location;
b) The absolute quantitative effects of a proposal are also important, and may
result in a significant adverse impact regardless of the nature of the existing environment;
c) Several marginal impacts when considered together may result in a
significant adverse impact;
d) For some proposals, it may be impossible to forecast the environmental
impacts with precision, often because some variables cannot be predicted or values
cannot be quantified.
e) A proposal may to a significant degree:
i) Adversely affect environmentally sensitive or special areas...
ii) Adversely affect endangered or threatened species or their habitat.. .
iii) Conflict with local, state, or federal laws or requirements for the
protection of the environment; and
iv) Establish a precedent for future actions with significant effects, involves
unique and unknown risks to the environment, or may affect public health or safety.
4) If... the lead agency reasonably believes that a proposal may have a significant
adverse impact, an EIS is required.
5) A threshold determination shall not balance whether the beneficial aspects of a
proposal outweigh its adverse impacts. . .
42. Definitions in WAC 197-11-700 through 799, including the following, have also
been adopted by the City:
Action" [WAC 197-11-758] (1)... include: (a) New and continuing activities (including
projects and programs) entirely or partly financed, assisted, conducted, regulated,
licensed, or approved by agencies... (2)... within one of two categories:
a) Project actions...
decision on a specific project, such as a construction or
management activity located in a defined geographic area. Projects include and are
limited to agency decisions to:
i) License, fund, or undertake any activity that will directly modify the
environment, whether... conducted by the agency, an applicant, or under contract. . .
b) Nonproject actions...decisions on policies, plans, or programs...
iii) The adoption of any policy, plan, or program that will govern the
development of a series of connected actions. . .
Lead agency" [WAC 197-11-758] means "the agency with the main responsibility for
complying with SEPA's procedural requirements..."
Major action" [WAC 197-11-764] means "an action that is likely to have significant
adverse environmental impacts. . . "
Probable" [WAC 197-11-782] means "likely or reasonably likely to occur... more than
a moderate effect... used to distinguish likely impacts from those that merely have a
possibility of occurring, but are remote or
speculative.. .
not.. . a strict statistical
probability test."
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Significant" [WAC 197 -11-794( I )-(3)] means "( 1) a reasonable likelihood of more than
a moderate adverse impact on environmental quality... (2) Significance involves context
and intensity... does not lend itself to a formula or quantifiable test. The context may
vary with the physical setting. Intensity depends on the magnitude and duration of an
impact. The severity of an impact should be weighed along with the likelihood of its
occurrence. An impact may be significant if its chance of occurrence is not great, but the
resulting environmental impact would be severe if it occurred. (3) WAC 197-11-330
specifies a process... for determining whether a proposal is likely to have a significant
adverse environmental impact.
APPEAL AND HEARING
43. Where the City is the lead agency, the Director of the Planning and Community
Development Department (or the Director' s designee) is the "responsible official",
authorized to make SEPA threshold determinations [see BIMC 16.04.040]. Any person
may appeal a SEPA threshold determination, including the issuance of a
Determination of Significance (OS) [BIMC 16.04.170A.2]. WSDOT timely filed an
appeal of the City's DS [Exh. 129].
44. BIMC 16.04.170D directs that an appeal of a SEPA threshold determination
shall be heard and decided by the Hearing Examiner [see also BIMC 2.16.130A and
2.16.150].
45. The hearing was properly noticed [Exh. 130], began on June 3, 2006, continued
on August 3, 4, and 17, 2006, and all parties were represented at each session of the
proceeding. The hearing was properly conducted and all admissible evidence has been
considered.
46. BIMC 16.04.170E directs that the Hearing Examiner, after holding a public
hearing on a SEP A appeal, "shall enter findings of fact, conclusions of law, and a
decision giving substantial weight to the decision of the responsible official." The
Hearing Examiner may "approve, approve with modifications, deny or remand" the
Director's decision [see BIMC 2.16.100C and G].
ENVIRONMENTAL IMPACTS AND MITIGATION
47. In the Determination of Significance (OS) [Exh. 95; see also Finding 17], the
Director concluded that WSF's planned improvements comprised one action in four
phases", including future construction of a new, large building. Understanding that this
proposal, in addition to rehabilitating existing structures, would expand the Maintenance
Facility's capacity and reorganize its operations, the Director found that it "is likely to
have a significant adverse impact on the environment" and, consequently, an
Environmental Impact Statement (EIS) is required. The DS, which included a request for
comment on the scope of the EIS, identifies eight areas of potential significant
environmental impact to be included in the EIS:
1. Earth
2. Air*
3. Water & Wildlife
4. Noise
5. Aesthetics *
6. Light and Glare
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7. Transportation and Access*
8. Public Services*
48. PCD's comments/criticisms of WSDOT's DNS [see Exh. 75] described some of
the adverse environmental impacts of concern to the Director. The City's notice of
assumption of lead agency status [Exh. 76] also has a listing of potential adverse impacts.
These documents help to understand the DS. Several of the elements of the environment
that the DS requires to be discussed in the EIS [marked with asterisk * in Finding 47], are
related to "full build out", not the rehabilitation, repair and replacement of existing
structures described in the SSDE application [Exh. 6].
49. The likelihood of adverse impact from rehabilitation, repair and replacement
of structures in and/or over water was a major consideration for the Director's
threshold determination. Unless carefully done, with appropriate and effective mitigation
measures incorporated into the construction methods, these activities could have
significant adverse environmental impacts (including: dispersionlre-suspension of
contaminants from the existing creosote-treated piles and/or sediments; and, injury or
disturbance to fish and marine habitat). [Exh. 59; 75; 76; Testimony of Machen; Best].
50. The SEPA Checklist details construction methods to be employed in pile removal,
stubbing and replacement, and other in-water work, but mitigation measures are not
addressed with a commensurate level of specificity. [Exh. 53; 55] The Checklist [pages
15-16] asserts that requirements of existing water quality management plans and the
utilization of Best Management Practices (BMPs) could prevent or reduce adverse
impacts. Some construction BMPs are noted in the Checklist and WSDOT would use
contract provisions to make contractors responsible for employing appropriate mitigation
measures. The information presented at hearing is helpful in understanding some of the
mitigation that WSDOT assumes would be employed (e.g., as standard practice). This
information is not, however, sufficient to conclude there would be effective mitigation of
the direct, indirect, and cumulative impacts reasonably anticipated given the extensive in-
and overwater construction described in the Checklist. [Exh. 139; 140; 141; 142; 145;
147; 170; 175; 180 Testimony of Machen; Parriott; McKenzie]
51. When making the DS, the Director knew that the Washington Department ofFish
and Wildlife (WDFW) had approved the proposed in-water work with the Hydraulic
Project Approval (HPA) issued in February 2006 [Exh. 22]. However, the National
Marine Fisheries Service (NMFS) did not issue its "concurrence" with WSDOT's
Biological Evaluation [Exh. 165] (i.e., agreeing to the project's non-significant effect),
until after the issuance of the DS. [Exh. 166; 167; 174; 175, and, 204; Testimony of
McKenzie] Also, the finding by the US Environmental Protection Agency (EP A)
Exh. 164] that the rehabilitation project would not be inconsistent with the Superfund
remedial actions and "would not adversely impact protection of human health or the
environment", was not completed until after the DS was issued. [Exh. 143; Testimony of
Patmont]
52. ACZA (Ammoniacal Copper Zinc Arsenate) is a widely-used wood preservative
for marine environments. WSDOT is proposing here to replace a sizeable number of
creosote-treated piles with those treated with ACZA. The primary chemical of concern in
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ACZA is copper; in creosote, P AH (polycyclic aromatic hydrocarbons) is the primary
contaminant of interest. [Exh. 186; 187; Testimony ofPatmont; Best]
53. Due to understandable concern about the harmful effects of contaminants, the
City's Shoreline Master Program (SMP) [BIMC 16.12.340C] prohibits use of in-water
structures that are treated with "biocides such as paint or pentachlorophenol", and the use
of "arsenate compounds or creosote-treated members is discouraged." BIMC 16.12.340C
further provides that "in shallow embayments with poor flushing characteristics,
untreated wood, used pilings, precast concrete, or other nontoxic alternatives shall be
used." Consistent with SMP policies, the PCD comments regarding WSDOT's DNS
included the recommendation that replacement piles be wrapped with "an impermeable
membrane and high density plastic shell". [Exh. 75; 189; Testimony of Best; Machen]
54. Information proffered in the SEPA Checklist [Exh. 53, pages 5-10] and
corroborated at hearing [Exh. 125; 126; 170; 184; 185; 186; 187; 188; Testimony of
McKenzie], indicates that, unlike creosote-treated piles, chemicals leach from ACZA-
treated piles only briefly (a matter of days or weeks), at low rates and short distance, and
that they could (in some circumstances) be a reasonable alternative to creosote-treated
piles. Also, it was credibly established at hearing that Eagle Harbor has "moderate" or
average", rather than "poor" flushing characteristics. [Exh. 171; 172; 189; 205;
Testimony ofPatmont; McKenzie; Parriott]
55. It was not unwarranted for the Director to have concern about adverse impact
from the use of ACZA-treated piles. The Washington Department of Fish and Wildlife
WDFW) and the National Marine Fisheries Service (NMFS), also had reservations about
their use. Although evidence in the record suggests that the use of ACZA-treated piles
might be appropriate (and could be adequately mitigated) in this situation, the Director's
concern is prudent, not arbitrary. [Exh. 12; 59; 177; Testimony of Machen].
56. Noise from construction activities, particular pile driving, has the potential for
adverse "temporary and intermittent" impact. The Checklist [Exh. 53, pages 19-22] notes
that the use of heavy equipment during construction "may disrupt the local
community... as well as wildlife..." By vibrating replacement piles, rather driving them
with an impact hammer, WSDOT expects it could eliminate or mitigate most of the
adverse noise impact. The Checklist does not describe the expected noise impacts or
mitigations in terms of decibel levels, duration, or distance. It does note that during last
year's installation of 104 piles, WSDOT received only one complaint about noise and
that was regarding a "squeak" from a crane, not the pile driving. Limiting the hours
allowed for construction could also be expected to provide mitigation. [Testimony of
McKenzie; Parriott]
57. Evidence presented at hearing indicates that noise impacts to surrounding
properties from removal and installation of piles, to a large extent could be mitigated by
applicable regulations, construction methodologies and the use of Best Management
Practices. [Exh. 159; 160; 163; Testimony of McKenzie; Parriott]
58. Sound pressure from pile driving can be so high as to injure or kill juvenile
salmon. Effective sound attenuation is necessary to mitigate underwater noise impact.
WSDOT's proposed mitigation [Exh. 53] includes avoiding periods of juvenile salmon
migration and using a "bubble curtain". The "bubble curtain" can be effective in
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reducing the sound pressure levels of pile driving. [Exh. 55; 158; 173;179; Testimony of
McKenzie; Parriott]
59. Operational noise from the Maintenance Facility is a major concern for some
Bainbridge Island citizens. The heavy equipment used in the ferry repair work done at
the Maintenance Facility can be very noisy. Much of the work is done outside and, as the
sound travels readily over the waters of Eagle Harbor, the noise can disturb residents on
the south shore of the Harbor [see e.g., in Exh. 39; Testimony of Meyer]. A sound survey
conducted at the Maintenance Facility in 2005 [Exh. 128] revealed that two pieces of
equipment produced extremely loud noise levels. The "Three-finger Jack" and
Growler", produced levels of 112 and 108 dBA respectively. At the Meyer residence
across the harbor, the measured levels were 65 and 63 dBA, exceeding the 60 dBA
maximum for a residential receiving property and an industrial source. WSDOT
eliminated the use of the "Three-finger Jack" and "Growler" in response to the sound
survey results.
60. The DS anticipates that the fixtures proposed [Exh. 136; Finding 38] to replace
the existing "cobra head" lights [Exh. 135] on the Trask Pier, could have light or glare
impacts. Information presented at hearing indicates that the proposed lights (having no
direct light visible to observers onshore and only to observers on the water who are very
near the pier), would not be likely to have adverse impact. [Exh. 134; 209; Parriott;
McKenzie]
61. The DS [Exh. 95] does not anticipate adverse impact relative to archaeological
or cultural preservation. The Checklist and other evidence in the record notes the high
probability that sites could exist on the subject property deeply buried under old fill and
Superfund caps. WSDOT is required by Executive Order to consult with affected tribes
and to cooperate with the State Historic Preservation to identify and document
archaeological resources. Construction contracts would be required to include
appropriate mitigation if artifacts are uncovered. [Exh. 53; 70; 148; 149; 150; Testimony
of Parriott; McKenzie]
62. Adverse impact could not reasonably be anticipated as a result of WSDOT's
proposed repair of a part of the existing stormwater drainage system [see Finding
40]. There is no increase in impervious surface proposed (under any definition of
proposal") and the stormwater system requirements for the site (e.g., oil/water separator;
see Exh. 177), exist separately from this proposal. [Exh. 122; Testimony of Parriott].
63. The DS anticipates impact relative to transportation and access from "full build-
out of the site" [Exh. 76]. However, construction activities associated with the
rehabilitation of existing structures could also potentially have adverse impacts. With the
number and variety of construction activities, anticipated continue for 24 months, the
likelihood of increased traffic (e.g., construction trucks and workers traveling to and from
the site), should be considered. WSDOT asserted at hearing that there would be no
traffic impacts because most construction materials would be transported to the site by
barge. No information was presented as to the expected number of truck, barge, or
worker trips to support this contention. [Testimony of Machen; Parriott]
64. The proposed rehabilitation of existing structures involves little (if any) exterior
change that could have an adverse impact on public views. Aesthetic impact ("on public
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agency's definition of the scope ofa proposal in a threshold determination is a legal issue
rather than a factual one) and, as the local agency does not have expertise for legal
interpretation, it is not entitled to deference by a reviewing court. The Hearing Examiner
is not a reviewing court and the Municipal Code unequivocally directs the City Hearing
Examiner to accord the Director "substantial weight". The Hearing Examiner does not
have the authority to be selective about when Director is or is not entitled to "substantial
weight" .
CONCLUSIONS
1. The Hearing Examiner has jurisdiction to hear and decide appeals of SEP A
threshold determinations pursuant to BIMe 16.04.170, which authorizes this jurisdiction
and requires that the Hearing Examiner accord the Director's decision "substantial
weight". The correct standard for the Hearing Examiner's review of this DS appeal is
arbitrary and capricious" [see Finding 68].
2. The Director, using the information and descriptions promulgated by WSDOT,
authentically reached the conclusion that the rehabilitation efforts described in the
Application and the Checklist were a part of a "master plan" that involved future new
construction and could increase operational capacity. WSDOT made it difficult for the
Director to discern the true scope of the present proposal by providing ambiguous
descriptions [see Findings 31-33] and including of the "Maintenance Annex" in its own
project analyses (e.g., budget presentation, geotechnical review for foundations, fire
exiting plans, visual analysis - see respectively: Testimony of Parriott, Exh. 153; Exh.
155, 161, 162; Exh. 31; Exh. 198]. However, the facts and circumstances in this record
compel the conclusion that the proposed rehabilitation of existing structures is a "stand
alone" project: it neither facilitates, nor is a prerequisite for the "Maintenance Annex"
and other upland "planned improvements" envisioned in the "master plan".
3. Even when viewed as the proposal, the proposed rehabilitation of existing
structures [see Findings 35-37] can rationally and reasonably be considered a major
action which, unless effectively mitigated, could have a probable significant adverse
environmental impact. There is considerable information in the record regarding
construction methodologies and other measures that could eliminate or avoid some of the
adverse impacts anticipated by the DS. Indeed, the record does not sustain Director's
finding of significance for some parts of the rehabilitation project (i. e., replacement lights
and repair of an existing catchbasin). For other parts, however, particularly the extensive
in- and over-water construction and use of ACZA-treated piles, the Director's judgment
of significant adverse impact has not been shown to be "arbitrary and capricious". The
inclusion of effective mitigating measures, given range and seriousness of potential
impacts, has not been addressed sufficiently to conclude that the Director's view (i.e.,
that there would be unmitigated significant adverse impacts) is unwarranted or
unsupported.
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