By Kirk Kirkland
At the final public hearing held in the Dupont City Council Chambers, over 70 people filled the room. For a Friday morning, this is a significant number. The proposal for mine expansion prompted a record of over 85 written responses to be submitted.
The hearing began at 10 o’clock in the morning, with a three-hour presentation of the Staff Report, a 51 page document. At noon, many people left after having waited for two hours, realizing that testimony would be delayed until the afternoon. Don Russell was among them. He said that he was leaving due to the “mind-numbing” reading of the Staff Report. After a break, about 55 people remained.
When the Staff Report had been read, the Director of Planning surprised everyone with an “Errata Sheet”. It amended key parts of the Staff Report. And it also made a substantial change to the Final Environmental Impact Statement’s conclusion.
The “Sheet” altered the estimate of how much damage dewatering the aquifer would inflict on the mine and the surrounding wetlands and streams. The original conclusion had been that dewatering would have “significant unavoidable adverse impacts” on the surrounding wetlands.
Now, the Staff Report was revised to state that dewatering would only cause “minor impacts”. State law prohibits such a major change without a public notice and supporting scientific justification.
State law regarding the Final Environmental Impact Statement requires advance public notice and a Supplement Environmental Impact Statement with supporting scientific studies for each change.
To clarify how substantial of the change in the Staff Report is, here is the original text on pages 10-11:
“However, no mitigation is provided for the significant unavoidable impacts to the surface water bodies located to the south of Sequalitchew Creek (Wetland 1D; Pond Lake; Wetlands #8, #9, #10, and #11; and Old Fort Lake). (Emphasis added.)
“While the EIS finds that the natural seasonal fluctuations in water levels may make it difficult to observe changes to these water bodies, these impacts do not align with the Dupont Comprehensive Plan policies for protection of the long-term integrity of the natural environment.”
The conclusion of the FEIS also showed the following on FEIS Page 3.3-40 (Groundwater Impacts):
“The Vashon Aquifer water table would significantly decrease in the vicinity of the proposed mine. Groundwater levels beneath Edmond Marsh, the closest marsh to the site, are predicted to decrease by up to 0.87 feet near its center (at MW-EM-2S) and remain up to 0.84 feet lower following completion of the Proposed Action. At the west end of the marsh (MW-EM-1S), long-term groundwater level declines of up to 8.73 feet could occur.”
“Implementation of the Restoration Plan would likely not mitigate these impacts.” according to Final EIS Page 3.4-29.
After the ‘Errata Sheet’ was presented, it was after 2 p.m.when public testimony began. Those making statements included the city staff, their expert, and even CalPortand’s attorney, who were not prepared for such a change. The Hearing Examiner was among those confused.
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At Transcript Timestamp 30:41-31:03, Hearing Examiner Olbrechts asks for staff to explain previous testimony:
“I thought one interesting comment that was made by Miss Norris was that the Staff Report states that there’s going to be some unmitigated impacts. Maybe you could address that and clarify what that meant in the Staff Report.”
In addition, at 2:17:03 in the Hearing Transcript, the Hearing Examiner asked Ben Lee: “if you’re permanently reducing the water levels of a wetland, is it possible then to have mitigation with those lower levels that retains ecological function?”
City water expert Ben Lee first gave an evasive response to the hearing examiner, and then concluded: “I’m not sure if I can comment on no net loss in particular right now.”
This admission is contrary to the Dupont Municipal Code, which requires “no net loss of wetland function” (Hearing Transcript, 1:31:05-1:31:13). Lee is the City’s retained expert specifically for addressing hydrology and wetland functions.
Chris Wright testified at Hearing Transcript timestamp 32:24-34:32. As the city’s wetlands specialist, he made multiple comments about impacts that dewatering the aquifer would have on the wetlands. “We don’t understand at this point what the extent of that impact is.” When asked if impacts could be fully mitigated, he said “Not knowing the extent of what the impacts are, I cannot say that they could be fully mitigated.” (emphasis added)
Prior to being amended, Staff Report had concluded: “The significant unavoidable impacts to the impacted off-site surface waters would likely not be mitigated” or implemented by “the proposed Restoration Plan.” And the plan is “not in alignment with the Comp Plan policies.” (emphasis added) (Hearing Transcript, 50:09-50:22)
Towards the end of the hearing, CalPortland attorney Steve Roos’ comment revealed that the City had initiated the Errata Sheet and that he, too, was surprised: “We do anticipate a chance to respond to some of the information that we received in the PowerPoint and the Errata Sheet from the city that we’re just digesting.”
Several court cases demonstrate that such eleventh hour changes to FEIS and a Staff Report have been challenged, such as this one Juanita Bay Valley Community Ass’n v. City of Kirkland, 9 Wn. App. 59, 510 P.2d 1140 (1973), which mandated adequate notice and opportunity for public comment when agencies make material changes to environmental determinations.
In addition, according to the FEIS, an 8-foot decrease in groundwater levels and an 83% creek flow reduction constituted “significant unavoidable adverse impacts” The Errata Sheet clearly contradicts this when it reclassified these “significant impacts” as “minor” without providing any new evidence.
Reclassifying environmental impacts in the Errata Sheet from “significant”, “unavoidable”, and” adverse” to “minor” without any scientific justification violates RCW 43.21C.030(2)(b)
Only 14 people remained at the hearing as it neared its conclusion. People were very upset by the change. The news about the Errata Sheet spread quickly. And a new deadline for comments was extended for a week. As a result the city planning staff had to compile all of the 600 public comments in a file that contained over 4,515 pages.
In response to the comments, the Director of Planning wrote a rebuttal to the questions raised in the public testimony and comments and concluded: “City staff have considered the comments and believe that the Staff Report is comprehensive and provides the required information, code analysis and conclusions.”
The Environmental Coalition responded to the Errata Sheet by filing a Motion to the Hearing Examiner requesting that he hold another public hearing to decide whether a Supplemental Impact Analysis needs to be prepared in order to comply with RCW 43.21C.030(2)(b) which requires “objective, detailed environmental analysis.”
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Our motion calls for holding a public hearing after the Nisqually Tribe’s Appeal Hearing of the FEIS. At that hearing, the Hearing Examiner could inform the city staff and the Tribe if he is going to require a Supplemental Impact Statement in order to meet requirement for analysis.
He could also decide on the validity of the “Errata Sheet” and whether the Director’s Rebuttal suffices as en explanation of how the Staff Report can revise all the findings in the FEIS and determine that the dewatering of the aquifer actually will have only “minor” impacts on Sequalitchew Creek and the surrounding listed wetlands.
Nowhere in all of these documents — the FEIS and its 2,429 pages, the initial Staff Report with its 51 pages, the 600 comment letters totaling, and the Rebuttal Statement of just 6 pages — is there any mention of the simple fact that the initial operator of the mine, in the original 1994 agreement, agreed not to reduce the level of the aquifer in such a way as to affect the flow of Sequalitchew Creek.
Thirty years later, here we are — trying to prevent something from happening that was agreed upon in a 1994 court settlement — not to dewater the aquifer.
First mine operator agreed to buffers, limits on the dock’s light and noise and agreed not to dewater the aquifer and preserve Sequalitchew Creek in Original court settlement of 1994
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