HEARING EXAMINER - Thurston County | Home · 2011-03-14 · Findings, Conclusions, and Decision...

COUNTY COMMISSIONERS Cathy Wolfe District One Diane Oberquell District Two Robert N. Macleod District Three

HEARING EXAMINERCreating Solutions for Our Future

2000 Lakeridge Drive SW, Olympia, Washington 98502 (360) 786-5490/FAX (360) 754-2939

BEFORE THE HEARING EXAMINER FOR THURSTON COUNTY

In the Matter of the Application of ) Plat/PRRD NO. 2004102027 ) Todd Hansen, ) On behalf of Hansen/LUFCO, LLC ) Keeneland Park PRRD ) For a Preliminary Plat and ) Planned Rural Residential Development ) FINDINGS, CONCLUSIONS, ) AND DECISIONS

SUMMARY OF DECISION A preliminary plat and planned rural residential development for the subdivision of 315.51 acres into ninety-eight (98) clustered single-family residential building lots on 46 acres and a 267.04-acre resource use parcel is GRANTED, subject to conditions. The approval is granted for property addressed as 8529 Ayer Street, SE Olympia, WA in unincorporated Thurston County.

SUMMARY OF RECORD Request Todd Hansen of Hansen/LUFCO, LLC (Applicant) requested approval of a preliminary plat and planned rural residential development (PRRD) subdividing 315.51 acres into ninety-eight (98) clustered single-family residential building lots and a 267.04-acre resource use parcel on property addressed as 8529 Ayer Street, SE Olympia, WA in unincorporated Thurston County. Hearing Date The Thurston County Hearing Examiner conducted an open record public hearing on the requests on July 14, 2008. The record was held open until July 21, 2008 to allow post-hearing submission of specified documents from parties of record. The Applicant was further given until August 4, 2008 to respond to the July 21 submissions. The decision due date was established on the record as August 18, 2008. However, on August 12, 2008, the Examiner received a request to reopen the record for the admission of additional evidence. The request was made by Counsel for Black Hills Audubon Society (a party of record) pursuant to Thurston County Hearing Examiner Rules of Procedure, Rule 9.4. The Examiner requested responsive comments from the Applicant and the County by August 20, 2008. On August 21, 2008 the referred to additional evidence was made part of the record, and, the decision due date was extended to September 3,

Findings, Conclusions, and Decision Thurston County Hearing Examiner Keeneland Plat/PRRD, No. 2004102027 page 2 of 49

2008. Pursuant to RCW 58.17.330 the Applicant agreed in writing to the extension. Testimony At the open record public hearing, the following individuals presented testimony under oath:

Gayle Zeller, Development Services Department Cynthia Wilson, Development Services Department Kevin Hughes, Roads and Transportation Department John Ward, Environmental Health Department Chris Maynard Perry Shea Lyndon Lee Kate Knox Linda Krippner Dennis Laine Sue Danver Kristal Tadlock Nelda Patton

Attorney Representation Heather Burgess, Attorney, Hansen Construction, Inc., represented the Applicant. Jeff Fancher, Deputy Prosecuting Attorney, represented Thurston County.

Exhibits At the open record public hearing, the following exhibits were admitted into the record: EXHIBIT 1 Development Services Planning & Environmental Section Report, dated July 14,

2008, with the following attachments:

Attachment a Notice of Public Hearing Attachment b Zoning Map Attachment c Site Map Attachment d Aerial Map of Subject Parcel Attachment e Preliminary Plat Application, received April 27, 2004 Attachment f Planned Rural Residential Development Application, received April 27, 2004 Attachment g Preliminary Plat Map dated April 2, 2008 (Sheets 1-3) Attachment h Environmental Impact Statement prepared by Skillings Connolly, Inc.,

dated January 2008 Attachment i Memorandum from Dale Rancour, P.E., Roads and Transportation

Services Department, dated January 14, 2008 Attachment j Environmental Recommendation prepared by Cynthia Wilson,

Development Services Department, including attachments, dated June 19, 2008

Attachment k Site Map of Subject Parcel and Patton Parcels


Attachment l Site Map of Patton Parcels with Contours Shown Attachment m Comment Letter from John Ward, Thurston County Environmental

Health Department, June 10, 2008 Attachment n Memorandum from Kevin Hughes, Roads & Transportation Services,

Development Review Division, dated April 18, 2008 Attachment o correspondence from the Tumwater School District, dated June 25, 2004 Attachment p ZONE.POL.802.00 Limiting the Residential Area of a Resource Use

Parcel Attachment q Comment Email from Nelda Patton, dated June 26, 2008 Attachment r Comment letter from Sue Danver, Black Hills Audubon Society, dated

June 23, 2008 & Email from Sue Danver, dated June 12, 2008 Attachment s Technical Letter Report prepared by Denis Erickson, LHG, Erickson

Groundwater Services, dated April 18, 2008 and May 15, 2008 Attachment t Technical Comments on the Keeneland Park Project Final EIS and

Supporting Documents prepared Paul Adamus, Ph.D. Attachment u Technical Comments prepared by Nancy Ettele, MSCE, dated April 22,

2008 Attachment v Briefing for Capitol Lake Management Plan, dated June 5, 2008, prepared

by Mindy Roberts, Washington Department of Ecology Attachment w Title 17.15, Thurston County Critical Areas Ordinance, Table 10 –

Standard Wetland Buffer Attachment x Photos 1-26 of subject parcel

EXHIBIT 2 Revised Development Services Planning & Environmental Section Report, dated July 10, 2008

EXHIBIT 3 Color Photo of Public Hearing Notice Posting EXHIBIT 4 Department of Ecology correspondence, dated June 18, 2008 EXHIBIT 5 Comment Email from Sally Bergquist and Mark Savage, dated July 2, 2008 EXHIBIT 6 Comment Letter from Black Hills Audubon Society, dated July 14, 2008 EXHIBIT 7 Addendum to July 14, 2008 Black Hills Audubon Society Comment Letter EXHIBIT 8 Full Size Site Plan EXHIBIT 9 Applicant’s Response to Staff Report, dated July 14, 2008, including the

following attachments:

1. TCC Chapter 20.30A 2. June 2, 2005 Comment Letter from Cynthia Wilson, Development

Services Department; January 20, 2006 Comment Letter from Cynthia Wilson, Development Services Department


3. June 12, 2007 Comment Letter from Cynthia Wilson, Development Services Department

4. January 18, 2008 Comment Letter re: Final EIS from Cynthia Wilson, Development Services Department; January 23, 2008 Robert Bergquist, Skillings-Connolly Response to Comment Letter re: Final EIS; January 22, 2008 Lyndon Lee and Kate Knox, WSP, Response to Comment Letter re: Final EIS

5. May 2, 2008 John Eliasson, Washington State Department of Health Comment Letter

6. May 7, 2008 Burt Clothier, Robinson Noble, Comments and Response to Denis Erickson Letter of April 18, 2008; July 11, 2008 Burt Clothier, Robinson Noble, Comments and Response to Denis Erickson Letter of May 9, 2008

7. Thurston County Policy entitled “Interpretation of Hydrogeological Reports”, issued August 14, 1995

EXHIBIT 10 Comment Letter from Dennis Laine, East Olympia Neighborhood Association,

dated July 10, 2008 EXHIBIT 11 Agency Comments from Steve Boessow, Department of Fish and Wildlife, dated

September 18, 2007 EXHIBIT 12 Comment Letter from Gary D. Thompson, dated July 14, 2008 EXHIBIT 13 Comment Letter from Chris Maynard, dated July 14, 2008 EXHIBIT 14 Resume of Perry Shea, P.E., Shea, Carr & Jewell EXHIBIT 15 Resume of Burt Clothier, L.HG., R.G., Robinson Noble EXHIBIT 16 Resume of Michael Piechowski, L.HG., Robinson Noble EXHIBIT 17 Curriculum Vitae of A. Kate Knox, M.S., WPIT, WSP EXHIBIT 18 Resume of Lyndon C. Lee, Ph.D., PWS EXHIBIT 19 Color Map Titled: Exhibit 3-4 Delineated Wetlands EXHIBIT 20 Applicant’s Power Point Presentation Printout EXHIBIT 21 Applicant Response to Nancy Ettelle Comments on RetroFAST, dated May 7,

2008 including the following attachments:

1. Notice to Occupant 2. Bio-Microbics Owners Manual 3. Bio-Microbics FAST Wastewater Treatment Systems


4. Excerpts from Chapter 246-272A WAC, Onsite Sewage Systems 5. Washington State Department of Health Wastewater Management Program,

List of Registered On-site Treatment and Distribution Products 6. Excerpts from Sanitary Code for Thurston County Article IV, Rules &

Regulations of the Thurston County Board of Health Governing Disposal of Sewage (Amended July 2, 2007)

EXHIBIT 22 Color Map Titled: Exhibit 10-1 Wildlife Corridor and Nest Buffers EXHIBIT 23 Resume of Linda Krippner, PWS, ESA Adolfson EXHIBIT 24 Color Map Titled: Drainage Basin Map and Wetlands, Proposed Alternative EXHIBIT 25 Thurston County Development Services Department Staff Report for the

Elwanger Plat, dated May 12, 2008 EXHIBIT 26 Elwanger Plat Hearing Examiner Decision, dated June 9, 2008 EXHIBIT 27 Transcription of Todd Hansen Testimony at May 12, 2008 Elwanger hearing,

submitted by Sue Danver, Black Hills Audubon Society EXHIBIT 28 Tumwater School District Comment letter re: Bus Stop Locations, dated May 6,

2008 EXHIBIT 29 Department of Ecology Comment Email from Mindy Roberts, dated July 14,

2008 EXHIBIT 30 Environmental Health Department Comments from John Ward on Revised Staff

Report (Exhibit 2), dated July 21, 2008 EXHIBIT 31 Roads and Transportation Department Clarification of Road Jurisdiction

Public/Private, dated July 15, 2008 EXHIBIT 32 Email from Mark Savage, dated July 21, 2008, with two attached comment letters EXHIBIT 33 Environmental Health Department Comments from Jim Goode re: Memo

Addressing Comments on Staff Report (Exhibit 2), dated July 21, 2008 EXHIBIT 34 Comment Letter from John & Nelda Patton, dated July 20, 2008 EXHIBIT 35 Comment Letter from Black Hills Audubon Society, dated July 21, 2008 EXHIBIT 36 Comment Letter from Black Hills Audubon Society correcting minor points in

testimony, dated July 21, 2008 EXHIBIT 37 Planning and Environmental Section Comments, dated July 21, 2008


EXHIBIT 38 Applicant’s Response to Public and Agency comments and proposed preliminary

plat conditions, dated August 4, 2008 EXHIBIT 39 Request to reopen record for submission of new material evidence from Bricklin

on behalf of Black Hills Audubon Society, dated August 12, 2008, with attachment:

EXHIBIT 40 Applicant’s Response to request to reopen record, dated August 20, 2008 EXHIBIT 41 Thurston County Development Services Department’s Response to request to

reopen record, dated August 20, 2008 EXHIBIT 42 Thurston County Environmental Health Department’s response to request to

reopen record, dated August 20, 2008 EXHIBIT 43 Decision of the Water Conservancy Board of Thurston County May 9, 2008 EXHIBIT 44 Correspondence from Washington Department of Ecology overturning Water

Conservancy Board, dated July 21, 2008 EXHIBIT 45 Applicant’s appeal to Washington State Pollution Control Board EXHIBIT 46 Document signed by Applicant extending decision making period for Hearing

Examiner [Applicant signed document pursuant to RCW 58.17.330.] Based upon the record developed at the open record hearing, the Hearing Examiner enters the following findings and conclusions.

FINDINGS Background and Site Description 1. The Applicant requests approval of preliminary plat and planned rural residential

development (PRRD) for the subdivision of 315.51 acres into ninety-eight (98) clustered single-family residential building lots and a 267.04-acre resource use parcel (RUP) on property addressed as 8529 Ayer Street, SE Olympia, WA in unincorporated Thurston County.1 The site is in Thurston County and is two miles from Olympia city limits and 1.5 miles from Tumwater city limits. Exhibit 1, Attachments e and f, Applications; Exhibit 9 (correct acreage/dimensions); Exhibit 1, Attachment h, Final Environmental Impact Statement (FEIS), issued January 25, 2008,page 1 and Figure “Exhibit 2-1, Vicinity Map”.

1 The subject property is a portion of the Sections 7 and 18, Township 17 North, Range 1 West, W.M.; also known as Tax Parcel Nos. 11707310000, 11707310100, 11718120102, 11718120200, 11718130000, 11718200000, and 11718320000. Exhibit 1, page 1; Exhibit 1, Attachments e and f


2. The subject property historically was used as a dairy farm that ceased agricultural operations in 2003. Between 1953 and 1980, on-site portions of Ayer Creek were channelized and ditched in order to convert wetlands onsite into grazing pastures. Large wetlands were also created along Ayer Creek through beaver damming. Sand and gravel have historically been mined from the site and logging occurred in the forested areas between 1980 and 1996. The Ayer Creek valley was a site for waterfowl hunting, evidenced by remnant hunting blinds and shell casings that are occasionally found on-site. Currently, the property contains five single-family residences (three of which are occupied), six accessory structures, and four barns. Three of the homes and two barns are included in the Thurston County historic resource inventory, although none is registered with the National Register of Historic Places or the Washington Heritage Register. Two barns and two outbuildings would be retained within the proposed resource use parcel; one residence and one accessory structure would be retained within proposed Lot 27. Exhibit 9, page 1; Exhibit 1, page 3; Exhibit 2, page 2; Exhibit 8; Exhibit 1, Attachment h, Appendix D, page 1.

3. Surrounding development includes a parcel commonly known as the Elwanger PRRD.

On the Elwanger site, located immediately to the north, of the subject property, a development is proposed, which upon construction will contain 18 single-family residential lots and an 84-acre resource use parcel. North of the Elwanger PRRD is the 54-unit Riverlea subdivision. East of the site, parcels are developed with rural residences. Timber and various agriculture operations exist to the south and west, and include forestry, bee keeping, beef production, hay, flower growing and a Christmas tree farm. The Olympia Airport is located 1.5 miles west of the subject property and Burlington Northern rail lines are east of the site. Both air and train traffic can be heard on-site. Exhibit 1, page 4; Exhibit 1 Attachments c, d, and h; Exhibit 1, Attachment h, Appendix D, pages 1-2.

4. A 35-foot-wide gas line easement encroaches into the site along its southern boundary

and partially encumbers proposed Lots 7 through 17. In addition, there are two private access easements held by the property owner to the south. These easements serve an existing timber operation on parcels adjacent to the south with logging truck access through the subject property to Ayer Street. Exhibit 1, page 4; Exhibit 8, Full Size Site Plan.

Critical Areas 5. Development activities on-site near several natural features are regulated by the Thurston

County Critical Areas Ordinance (CAO). These include: Elwanger Creek; Ayer Creek; a 100-year floodplain of the Deschutes River; 12 wetlands on and adjacent to the site; geologic hazard areas; high ground water hazard areas; critical aquifer recharge areas; and priority habitat for protected species. Exhibit 1, Attachment h, FEIS.

6. A professionally prepared wetland delineation study identified 12 wetlands on and

adjacent to the subject property. [see Table 3-3 on page 63 of the FEIS for a complete list of the identified wetlands.] Of the identified wetlands, seven are not regulated by the


Thurston County CAO because of their isolation from other surface waters and/or size. The five regulated wetlands on-site are:

Wetland A 130.48 acres Class I Wetland AA 2,263 square feet Class III Wetland B 2.27 acres Class I Wetland E 10.46 acres Class I Wetland K 1.29 acres Class III2

Exhibit 1, Attachment h, FEIS, pages 62-63.

7. Wetland A is a large palustrine Class I wetland complex, dominated by trees, shrubs,

emergent plants, mosses, and lichens. It occupies the majority of the center of the site (approximately 130 acres) and is hydrologically connected to Ayer Creek. The portion of Wetland A that extends from the abandoned dairy southwards is considered a sloped wetland, which functions as the headwater area for Ayer Creek. From the abandoned dairy northwards, Wetland A is considered a riverine wetland, which includes the channel of Ayer Creek, the associated riparian wetlands, and portions of the 100-year floodplain of the Deschutes River. In the northeast corner of the subject property, Wetland A extends into a depressional area that is a former glacial kettle at the edge of the terrace. The depressional kettle area exhibits some bog characteristics, including highly organic soils, restricted outflow, sphagnum mosses, and other bog plant species. Erosion over time has connected the depressional area hydraulically to the riverine portion of Wetland A. If left undisturbed, the depressional portion of Wetland A would slowly revert to a condition more like the riverine portion. According to the wetland delineation report, Wetland A offers a high potential for erosion and flooding control functions and a moderate potential as wildlife habitat function. Large portions of Wetland A and the area around it have been adversely affected by agriculture, forestry, and mining operations on-site. Exhibit 1, Attachment h, FEIS, pages 63-67; Attachment h, Appendix G, pages 28-29.

8. Wetland AA is a 2,200 square foot Class III depressional wetland that is hydraulically

connected to Wetland A via groundwater. Wetland AA was once part of Wetland A, but sometime in the past it became isolated as a result of road construction. The wetland delineation report noted that Wetland AA has a high potential to serve water quality improvement functions, but moderately low potential to provide flood control or wildlife habitat functions. Exhibit 1, Attachment h, FEIS, page 67.

9. Wetland B is a large Class I depressional wetland adjacent to and encroaching a small

portion into the northeast corner of the site. Wetland B exhibits some characteristics of a ‘bog’, which is a rare, highly sensitive type of wetland. Bogs by definition are acidic and have low nutrient levels, resulting in a unique system for plants and animals adapted to

2 Because Wetland K is located off-site and its required buffer does not encroach into the proposed development envelope, it will not be further addressed.


such conditions. Bogs tend to have restricted water outlets. These factors make bogs susceptible to relatively minor changes in water levels and nutrient content. Wetland B was rated as having a high potential for water quality improvement and moderate potential for providing erosion control and wildlife habitat functions. Exhibit 1, Attachment h, FEIS, pages 67-68.

10. Wetland E is a large depressional Class I wetland, with features characteristic of bogs,

adjacent to and encroaching into the site’s northern and northwestern boundaries. (See Figure ‘Exhibit 3-4’, page 65, FEIS.) It was rated to have a high potential for water quality improvement, a moderately high potential to reduce flooding, and a moderate potential to provide habitat functions. Exhibit 1, Attachment h, FEIS, pages 67-68.

11. Topographically, the majority of the site is flat with slopes from 0 to 3%; however the

eastern portion of the site contains a terrace approximately 50 feet in height overlooking the floodplain of the Deschutes River. Several “glacial kettles” located along the toe of this terrace have steeply sloping sides between 15 and 30%.3 Exhibit 1, Attachment h, FEIS, page 47.

12. The Thurston County Critical Areas Ordinance (CAO) defines a “geologic hazard area”

as any area that, because of susceptibility to erosion, sliding, earthquake, or other geological event, is not suited for siting commercial, residential, or industrial development consistent with public health and safety concerns. Thurston County Code (TCC) 17.15.200(A)(41). Wetlands A, B, E, G, and AA each contain geologic hazard areas pursuant to the CAO definition, as does the 100-year floodplain of the Deschutes River which extends on-site into the northern portion of Wetland A. Exhibit 1, Attachment h, FEIS, page 47.

13. The CAO defines landslide hazard areas as regions with a vertical height of 15 feet or

more at risk of mass movement due to a combination of geologic, topographic, and hydrologic factors. Slopes of 30% or greater with impermeable subsurface material and springs and slopes greater than 50% are considered landslide hazards. TCC 17.15.200(A)(53). Some areas of 30-50% slopes exist on-site. A steep slope study and well log research were conducted on-site to identify landslide hazard areas within the subject property. The slope study conclusion was that the steep slopes on-site are stable. The site’s landslide hazard slopes are depicted in the record at Exhibit 1, Attachment h, Figure “Exhibit 3-3”. Exhibit 1, Attachment h, FEIS, pages 47-53.

14. As a means of maintaining groundwater recharge, preventing the degradation of

groundwater resources, and balancing competing needs for water while preserving essential natural hydrological functions, Thurston County regulates development in areas where ground water recharge occurs at a fast rate. The County classifies a Category I

3 A glacial kettle is a depression in a glacial outwash surface caused by flows from melting glacial ice during retreat of the glacier. Exhibit 1, Attachment h, page 47.


critical aquifer recharge area (CARA) as an area with extreme aquifer sensitivity that provides very rapid recharge with little protection due to coarse soil textures derived from glacial outwash materials. A Category II CARA is an area of high aquifer sensitivity” which provides slightly lower recharge rates than Category I, but still provides little aquifer protection from rapid recharge through course glacial deposits. TCC 17.15.505. The upland areas of the subject property were determined to be Category II CARAs, and the lowland areas are Category III CARAs (moderate aquifer sensitivity). Exhibit 1, Attachment h, FEIS, pages 71-2.

15. Three high ground water hazard areas were identified on-site: one located along the

channel of Elwanger Creek and two along Ayer Creek within Wetland A. Exhibit 1, Attachment h, Figure ‘Exhibit 3-7’, page 79. A high groundwater hazard area (HGHA) is an area that floods when surface conditions prevent recharge from infiltrating downward as fast as the ground becomes saturated. TCC 17.15.200(A)(48.5). Regulations require homes to be setback 50 feet from the edge of any HGHA and also require residential structures within 300 feet of an HGHA to be elevated a minimum of two feet above the known HGHA flood elevation. TCC 17.15.865. In the proposed alternative, all of the lots are more than 50 feet from the HGHAs, although seven of them are within 300 feet. However, all seven of the lots within 300 feet of the HGHAs are on the terrace and therefore would be able to comply with the requirement to be raised at least two feet above the flood elevation without special measures. These seven lots would be limited to a maximum of 35% impervious surface area each. Exhibit 1, Attachment h, page 115.

16. The Deschutes River is a shoreline of statewide significance subject to the jurisdiction of

the Shoreline Master Program for the Thurston Region (SMPTR) (see WAC 173-18-380). Those portions of the Deschutes River floodway within 200 feet of the river’s ordinary high water mark and associated wetlands are considered “shorelands of the state”. On-site, this area extends to the delineated boundary of Wetland A. All proposed development would be located outside of shoreline management jurisdiction. Exhibit 1, Attachment h, pages 77, 116.

17. The subject property is the headwater area for Ayer Creek, which is a tributary of the

Deschutes River with the confluence slightly west of the site. Approximately one mile long, Ayer Creek transects the site and is classified as a Type 3 stream documented to support anadromous fish species. It is on the Washington State 303(d) list4 and most likely does not provide spawning habitat, but anadromous fish likely over-winter there.

4 Section 303(d) of the federal Clean Water Act requires Washington State to periodically prepare a list of all surface waters in the state for which beneficial uses – such as for drinking, recreation, aquatic habitat, and industrial use – are impaired by pollutants. These are water quality limited estuaries, lakes, and streams that fall short of state surface water quality standards that are not expected to improve within the next two years. Ecology’s assessment of which waters to place on the 303(d) list is guided by federal laws, state water quality standards, and the Policy on the Washington State Water Quality Assessment. This policy describes how the standards are applied, requirements for the data used, and how to prioritize TMDLs (total maximum daily load), among other issues. For more information, review the Washington State Department of Ecology website.


Elwanger Creek is a small, degraded Type 3 perennial stream that is tributary to Ayer Creek, with the confluence in the center of the site. The channel of Elwanger Creek was heavily grazed during former cattle-related agricultural operations on-site. Exhibit 1, Attachment h, Appendix G, pages 17-18; Exhibit 8. Type 3 streams require a 100-foot buffer on both sides, pursuant to the CAO. TCC 17.15.935(A)(2)(a).

Wildlife: 18. The subject property contains five dominant wildlife habitat types for shelter, nesting,

and feeding habitat for a wide array of species. Several Thurston County “important species” were documented on-site and in the immediate vicinity (downstream), including: the Mazama pocket gopher; wood duck; hooded merganser; common goldeneye; great blue heron; mountain quail; osprey; pileated woodpecker; red tailed hawk; Beller’s ground beetle; bald eagle; chinook; coho; steelhead; and cutthroat trout. The beaver was identified as the dominant keystone species on-site because of its extensive habitat-creating impacts of activities in Ayer Creek. Exhibit 1, Attachment h, Appendix D, pages 12-57.

19. Of the identified important species, attention was given to documentation and

preservation of the presence and available habitat on-site for great blue heron, osprey and bald eagle. Studies documented a great blue heron rookery within 600 feet of the site in 2004, 2006, and 2007. The great blue heron is a state monitor species and an important species of Thurston County, and nesting habitat for the great blue heron is considered a state priority habitat. An osprey nest has been identified off-site.5 The heron rookery and osprey/eagle nest are located in the same area, which is off-site approximately 460 feet northwest of the northern cluster, within the adjacent Elwanger PRRD. Exhibit 1, Attachment h, Appendix D, pages 16-34.

Zoning and applicable development standards 20. The site has a zoning designation of Rural Residential Resource, One Dwelling Unit Per

Five Acres (RRR 1/5). Exhibit 1, page 3. Permitted uses in the RRR 1/5 zone include single-family residential development, agriculture, forestry, and other resource uses. Pursuant to the RRR 1/5 zoning basic density standards, the 315-acre site could be subdivided into 63 lots. Thurston County Code (TCC) 20.09A.020; TCC 20.09A.050(1)(b). PRRDs are permitted in the RRR 1/5 zone. TCC 20.09A.040.

21. The listed purposes of the Thurston County Code PRRD include: providing for

residential development in rural areas in a way that maintains or enhances the County’s rural character; retaining large, undivided parcels of land that provide opportunities for compatible agricultural, forestry and other rural land uses; protecting sensitive environmental resources; facilitating creation of open space corridors; and minimizing impacts of road and utility systems. TCC 20.30A.010.

5 In 2007 bald eagles were observed in the area and an eagle was photographed in the identified osprey nest.


22. The applications for preliminary plat and PRRD were submitted on April 27, 2004 and deemed complete on June 15, 2004, and thereby vesting to the PRRD regulations in effect prior to enactment of Interim Ordinance #13222 on November 30, 2004.6 Exhibit 1, page 3; Testimony of Ms. Zeller. At the time of the instant application, PRRDs were eligible for density bonuses in the RRR 1/5 zone.7 Development of PRRDs required a set aside of a minimum of 60% of the overall site area as a resource use parcel and in return Applicants were granted an automatic 35% density bonus. For each percentage that the resource parcel set aside exceeded the minimum 60% set aside, an additional one percent of density bonus was allowed up to a maximum bonus of 65%. The Applicant proposed to permanently set aside 85% of the overall site area for resource use, and thereby qualified the project for the 60% density bonus. The 60% density bonus allows 100 clustered PRRD lots with one residence permitted on the resource use parcel. Exhibit 1, Attachment h, page 25; Exhibit 1, page 5.

23. Resource use parcels may be used for resource purposes (agricultural, mineral, and

forestry), passive recreation, and/or critical areas preservation. The parcel can be owned by a homeowners’ association or an individual landowner. One single-family residence is allowed on a resource use parcel. Resource use parcels are required to be (to the maximum extent possible) contiguous parcels shaped to be compatible with the intended use and should not be bisected by roads if site conditions allow otherwise. The residential lots within PRRDs may not be designed in a linear configuration, unless physical site conditions dictate such an arrangement. TCC 20.30A.040; TCC 20.30A.070.

24. Pursuant to the State Environmental Policy Act (SEPA), Thurston County was designated

as the lead agency for review of the proposal’s environmental impacts. Due to the nature and extent of the proposed development so near the extensive on-site critical areas, the County Responsible Official issued a Determination of Significance (DS) on January 12, 2005 and an environmental impact statement (EIS) was required. The Final EIS was issued January 25, 2008. The alternatives examined included: the proposed alterative of subdivision of 99 clustered single-family residential lots and one 269-acre resource use parcel; 62 clustered single-family residential lots and a larger resource use parcel; 63 five acre lots with no resource use parcel; and no action. Of these, the 63 five-acre lot alternative was eliminated from consideration due to extensive impacts to critical areas. The Applicant proposed to develop modified proposed alternative consisting of 98

6 Interim Ordinance #13222 removed density bonuses from PRRDs in the rural resource districts. PRRDs as described in the excerpt Thurston County Code (TCC) Title 20.30A in the record at Exhibit 9, Attachment A were allowed in the RRR1/5 zone prior to its adoption. Exhibit 1, page 3. 7 “Vesting” is defined in the Revised Code of Washington (RCW) 58.17.033 as: “A proposed division of land … shall be considered under the subdivision … ordinance, and zoning or other land use control ordinances, in effect on the land at the time a fully completed application for preliminary plat approval of the subdivision… has been submitted to the appropriate county, city, or town official.”


clustered lots and a 267.04-acre resource use parcel.8 Exhibit 1, Attachment h, FEIS; Exhibit 1, page 4; Exhibit 9, page 2.

Proposed Alternative 25. The modified proposed alternative would create 98 single-family lots in two clusters.

The total development area would be 48.47 acres, approximately 15% of the total site area. Two clusters of development would be in upland areas; one in the northeast corner and one in the southeast corner of the site. The southern cluster (Lots 1-62) would connect to Ayer Street SE, while the northern cluster (Lots 63 through 98) would connect to a new road within the Elwanger PRRD that accesses public right-of-way at Rixie Road. The two clusters are separated by portions of Wetland A and its buffer. The density of the proposed alternative is one unit per approximately 3.2 acres. Permitted by the PRRD regulations in the RRR 1/5 zone, the proposed density is consistent with the RRR 1/5 zoning standards. The minimum proposed lot size is 12,500 square feet. Exhibit 1, page 5; Exhibit 8; Exhibit 2, page 5.

26. All of the area not part of the clusters would be included within the proposed resource use

parcel, approximately 85% of the gross site area. The Applicant proposes to continue agricultural practices on approximately 81 acres (26% of gross site area) of the resource parcel, including keeping two to six horses, personal-use hay production, and grazing. The remainder of the resource parcel (approximately 59% of gross site area, or 186 acres) would be set aside for critical area preservation. Although the location of a single-family residence within the resource parcel has not been identified, one could be developed in the future (subject to appropriate review) without exceeding the maximum allowed density on-site. Exhibit 1, page 6; Exhibit 8; Exhibit 2, page 2. Development Services Staff noted that the County issued a policy restricting residential uses in resource use parcels to a maximum area of 43,560 square feet (one acre), which must include the residence and any accessory structures other than the septic system, well, and/or well house. Any future proposal for a single-family residence within the resource parcel would be required to comply with ZONE.POL.802.00, effective as of June 22, 2000. Exhibit 2, Attachment p.

27. Sewage disposal would be individual on-site septic systems. In order to address the

potential impacts of septic effluent from 99 lots to the aquifer and adjacent critical areas, the Applicant proposed state- and County-approved enhanced septic treatment systems on each lot. Exhibit 1, Attachment b. The enhanced septic treatment device system that was proposed by the Applicant, the RetroFAST system, is on the Washington State Department of Health’s list of approved enhanced septic treatment devices. It is reported

8 With a resource use parcel comprising 85% of gross site area, the allowable density on-site is 101 residential units. Exhibit 2, page 6. The FEIS discusses a proposed alternative consisting of 99 clustered lots and a resource use parcel that may have a residence in the future, which would be a total of 100 units. FEIS, page 1. The site plan depicts 98 clustered lots and a resource use parcel that could, after future review, contain a residential unit (99 total units). Exhibit 8. For the remainder of this decision, the term “proposed alternative” will be used to describe the 99-unit project depicted on the site plan in the record at Exhibit 8.


to be capable of removing 50% more nitrate from septic effluent than standard septic treatment. Testimony of Ms. Knox; Exhibit 21.

28. The septic system applications and supporting materials were routed to Thurston County

Environmental Health Division (EHD) for review of compliance with County health regulations. EHD review, based on the proposed alternative site design, considered the fact that the development envelope contains both Class I and Class II Critical Aquifer Recharge Areas, which are subject to protection pursuant to the Thurston County CAO. Depth to domestic groundwater in the vicinity is estimated to be between 53 and 207 feet based on USGS information and DOE well log records. The well site for the proposed new Group A water system has been inspected and approved. Each lot would satisfy the County’s standard for minimum area required for use of individual on-site septic service with a public water supply (which is 12, 500 square feet). Test holes evaluated within the proposed development envelope confirmed adequate depths of permeable, unsaturated soils on each lot for properly designed septic systems. EHD determined that the project would not adversely affect groundwater or drinking water supplies because:

• No sanitary control areas for neighboring water supplies would be

affected. • All required setbacks from sewage systems to wells, stormwater facilities,

and surface waters would be satisfied or exceeded. • All stormwater facilities for the proposed development would be placed a

minimum from any well or surface water. • The proposed density of the project is considerably lower than the two

units per acre allowed by State and local health regulations where on-site sewage treatment is proposed with a public water supply.

• All proposed septic systems would be designed to exceed the minimum requirements of State and County health regulations for on-site sewage disposal.

• Conditions would require an integrated pest management plan (IPMP) to be approved and distributed to future residents.

• Hydrogeologic reports for the proposal demonstrated that the Proposed Alternative can satisfy the County Assimilative Capacity standard for nitrate contribution to the underlying aquifers for sewage disposal systems by incorporating nitrogen reduction technology for each system. Conditions of approval would ensure that nitrogen reduction technologies approved by the Washington State Department of Health are employed on each lot.

EHD recommended approval of the plat and PRRD subject to conditions that would ensure compliance with health code requirements. EHD further noted that all existing wells on-site would be decommissioned per DOE regulations. The project’s IPMP is in the record at Exhibit 1, Attachment h, Appendix J. Exhibit 1, Attachment m; Testimony of Mr. Ward.


29. The Applicant proposes to provide domestic water via a new Group A water system. The

well site for the new water system was inspected and approved by the County Environmental Health Division. The new well, drilled in 2007, is referred to as the Keeneland Park Well. The domestic water system would use two pumps (for redundancy) and store water in a 120,000-gallon tank. Multiple pumps would distribute water throughout the system. Exhibit 1, Attachments g and h (page 109); Testimony of Mr. Ward. The Applicant’s water right transfer has not been approved; however. Thurston County EHD recommended preliminary plat approval subject to conditions that require proof of domestic water availability at time of final plat approval. Exhibit 42. (Findings numbers 82-86 below, contain further discussion on the subject of potable water.)

30. Separate access would be provided to each of the two residential clusters. The northern

cluster would connect by a two-lane paved road to the Rixie Road/78th Avenue SE intersection. The southern cluster would have direct access to Ayer Street SE. Residents would use two entrances, which would have the effect of splitting project traffic into two separate patterns. Exhibit 1, Attachment h, Appendix G, page 8. The Applicant submitted a professionally prepared traffic impact analysis (TIA), in which a conclusion was reached that the proposed alternative would not result in any significant impacts to level of service at area intersections. The proposed alternative is forecasted to result in 64 new PM peak hour trips on Yelm Highway, which is currently the subject of a capital improvement project. The FEIS noted that a mitigation fee for the 64 new Yelm Highway trips may be assessed based on the ratio of the total cost of improvements to the project’s contribution to the future traffic volumes. Exhibit 1, Attachment h, pages 178-201.

31. The Applicant would be required to provide off-site frontage improvements on Ayer

Street from the plat entrance to the intersection of Ayer and 83rd. Improvements would include: construction of 11-foot lanes and six-foot paved shoulders within 40 feet of dedicated right-of-way; intersection improvements at Rixie Road and 78th Avenue SE; and a new road connecting the plat to the intersection of Rixie and 78th. Exhibit 1, Attachment h, page 201.

32. The proposed internal road system would include one public road connecting to Ayer

Street (identified on the plat map as Street B); and a road stub-out to the south (Street G) proposed as a private road. Roads and Transportation Services Staff noted that Street G is intended to provide access to the forestry operation to the south and has to be a public road. The rest of the internal roads would be private roads, maintained by the property owners’ association. While the plat map identifies portions of Street D and Street F as public streets; the County does not wish to accept dedication of any right-of-way other than streets B and G. Exhibit 8; Exhibit 31; Exhibit 1, Attachment i; Testimony of Mr. Hughes.


33. For emergency access the Applicant proposed retaining an existing, unpaved interior road that would connect the two residential clusters from Street D in the southern cluster to Street E in the northern cluster. The existing unimproved road would only be used for access to the resource use parcel and emergency vehicle access; it would be gated to prevent any other public access. The existing all-weather road currently passes through a segment of Wetland A. In order to minimize future impact to the critical area, the existing road would be maintained at the minimum possible width. Exhibit 1, Attachment h, Appendix G, page 8. A variance from Thurston County Road Standards Sections 4.17 and 4.19 was requested in order to use the existing road for emergency access. The Thurston County Fire Marshall reviewed the request and recommended approval. The Thurston County Engineer administratively approved the road standards variance on January 14, 2008. Exhibit 1, Attachment i; Testimony of Mr. Hughes.

34. Thurston County Roads and Transportation Services (Roads) reviewed the project’s

revised site plans, the FEIS and other information on file with the County for compliance with applicable roads and drainage standards. Roads determined that the project satisfied all preliminary requirements of the Thurston County Road Standards and the 1994 Drainage Design and Erosion Control Manual and recommended project approval subject to conditions, which were included with Development Services’ recommended conditions of approval. Exhibit 2, Attachment n; Testimony of Mr. Hughes.

35. Roads requested that the plat include a pedestrian path west of the drainage swale parallel

to Street B. Staff testified that this path would provide safe walking areas for school children from the potential use of Street B by logging trucks using Street B, the access easement favoring the neighboring forestry operation. Testimony of Mr. Hughes; Testimony of Ms. Zeller.

36. The proposed alternative would result in 8.88 acres of new impervious surfaces,

approximately 2.81% of the gross site area. About half of the new impervious surface would be rooftops, and the remaining runoff would be from roads and driveways. Exhibit 1, Attachment h, page 111. According to the preliminary drainage report, the site consists of ten natural drainage basins, referred to as Basins A through J. Stormwater from the site’s new roads and driveways would be captured and treated in grass-lined swales on both sides of proposed roadways, and conveyed either to detention basins for infiltration or to dispersion trenches (also known as spreaders). The one exception would be Basin H, which would discharge to a dispersion rock gallery. Runoff control structures would be used to reduce flow velocities. Stormwater treatment facilities are proposed to be located outside of critical areas and associated buffers (after averaging). Dispersion trenches are proposed at the upper edge of non-bog-like wetland buffers, outside of the proposed residential lots, in order to reduce potential contaminants from residential uses, keep dispersion trenches as far from critical areas as possible, and maintain wetland hydrology. No stormwater runoff would be directed to Wetlands B or E. Roof runoff would be directed to individual drywells within each lot. Exhibit 2, page 2; Exhibit 1, Attachments h (pages 82-83) and n; Appendix H, pages 1-12, Figure ‘Exhibit 3-9’; Testimony of Mr. Shea.


37. A ten-foot wildlife corridor is proposed along the northern property boundary. Five feet of the width of the wildlife corridor would be within the Keeneland Park project, and the other five feet of width would be dedicated by the Elwanger PRRD to the north. Although there is no code provision requiring a wildlife corridor, the amenity was suggested by Washington Department of Fish and Wildlife (WDFW) in order to preserve a connection between Wetlands A and B for terrestrial species, including small mammals and reptiles. The corridor would be fenced with a wood split rail fence with a single strand of wire at the bottom to exclude domestic dogs. Exhibit 8; Testimony of Ms. Krippner.

38. No development or placement of fill would occur within any regulated wetland on-site.

As proposed, Wetlands A, B, D, E, and AA would be protected by a buffer consistent with CAO requirements pursuant to permitted buffer averaging. The FEIS concluded that indirect impacts to critical areas could result from hydrological changes, including increased impervious surfaces which can lead to alterations in hydroperiod and in runoff volumes and velocities which if unmitigated could result in stream scour, sedimentation, and contamination from residential pollutants. Exhibit 1, Attachment h, Appendix G, pages 35-36.

39. The Applicant proposed mitigation and design features to avoid impacts from

development of the proposed alternative to the critical areas. Some of the features are:

Use of enhanced septic treatment systems for all 99 residences Use of an integrated pest management plan to be approved by the County

Environmental Health Division and administered by a property owners’ association

Use of best management practices in design of the stormwater treatment facilities Removal of all agricultural activities from Ayer Creek and provision of a 200-foot

minimum buffer adjacent to all portions of Elwanger Creek Use of vegetated buffers around all creeks and wetlands The total buffer area provided would be greater than the area provided by the

standard 200-foot buffer width and the reduced buffer areas would be enhanced with native vegetation

Compliance with an approved manure management plan Non-interference with beaver activity Proper pasture management practices in the 80 acres used for agricultural

purposes Exhibit 1, Attachment h, pages 116-17, 137. The FEIS concluded that with the above-proposed mitigation, the proposed alternative would not result in significant adverse impacts to the streams and wetlands in the vicinity or to groundwater quality or quantity. Exhibit 1, Attachment h, pages 137-38.

40. Per the Tumwater School District’s Capital Facility Plan, the school impact mitigation

fee for the proposed PRRD would currently be $3,464.00 per lot. The District requested


that the requirement to pay the per-lot mitigation fee be noted on the face of the final plat. The District also requested that a school bus waiting area be provided at an agreed location adequate to serve the projected number of students who would use it to wait for school buses. Exhibit 1, Attachment o. Based on the District’s request, an Applicant representative met with District personnel to design mutually agreeable bus stop accommodations. A 10- by 20-foot concrete pad along Rixie Road near the site entrance at the intersection with 78th Avenue SE would serve children in the northern residential cluster and a second 10- by 20-foot concrete pad located at the west side of the ‘Street B’ plat entrance off of Ayer Street would serve children in the southern cluster. The District requested the bus waiting areas be identified on the final plat. Exhibit 11; Exhibit 28; Testimony of Ms. Burgess.

41. The draft EIS materials were routed to both the Fire Department and Sheriff’s Office for

review and comment. Both agencies indicated that the proposed alternative would not result in an appreciable demand for their services. Exhibit 1, Attachment h, FEIS, pages 205-6.

Habitat Management Plan: 42. Because of the presence of the great blue heron rookery, osprey nest, and bald eagle

nesting behaviors in the osprey nest, the Applicant’s consultants and the Department of Fish and Wildlife (DFWD) staff and County personnel cooperated on the creation of a habitat management plan (HMP) for the project. The HMP consists of a permanent, 600-foot no disturb buffer centered on the two known active nests in the heron rookery. No construction or disturbance of existing vegetation would be allowed within this 600-foot-radius circle. A 1,000-foot-radius zone was identified (which extends 400 feet beyond the 600-foot radius) in which no outdoor construction would be allowed during the primary nesting season from February 15th through June 30th if birds are observed nesting on-site. In addition to these protections, an 800-foot radius was identified, also within the heron rookery, in which no mature conifers may be removed. The 800-foot protection zone is for the benefit of potential bald eagle nesting activities in the area. Exhibit 1, Attachment h, Appendix E; Exhibit 22; Testimony of Ms. Krippner.

43. While the majority of the land area included in these three concentric protection zones is

off-site to the west, the 600-foot permanent no-disturb buffer extends partially into lots 73 and 74. The 800-foot bald eagle conifer retention radius affects lots 71, 72, 73, 74, 75, 76, and 78. The 1,000-foot no-outdoor-construction zone includes lots 70, 77, and 80. Exhibit 22. No wetland buffer averaging is proposed in the area affected by the HMP. Testimony of Ms. Wilson.

Wetland Buffer Averaging Proposal: 44. The Thurston County Code defines a “buffer” as an “area which surrounds and protects a

critical area from adverse impacts to the functions and values of that area.” TCC 17.15.200. The primary functions that wetland buffers are intended to protect are water quality maintenance and plant and animal habitat. Vegetated wetland buffers improve


water quality by capturing sediments, nutrients, and bacteria from surface flows before they reach the wetland.9 Exhibit 1, Attachment h, FEIS, page 122;

45. Wetland buffer width standards are established in TCC 17.15, Table 10. Table 10

identifies Class I, Class II, and Class III wetlands; Class I wetlands require the widest buffers and Class III require the narrowest. Table 10 also addresses the intensity of the proposed land use adjacent to buffers, distinguishing high intensity land use from low intensity land use.10 Table 10 defines high intensity land uses as active recreation, commercial, industrial, and residential development in any zone permitting a density greater than one unit per five acres. Low intensity land uses are defined as: agriculture, forestry, passive parks and preserves, and “residential (density equal to or less than one unit per five acres including clustered lot and their density bonus)”. TCC 17.15, Table 10.

46. The CAO requires a standard 200-foot buffer between low intensity development and

Class I wetlands. TCC 17.15, Table 10. However, the CAO allows wetland buffers to be reduced in width through a process called “buffer averaging” only if: the averaged buffer is not less than 50% of the standard buffer in any location; the total area contained within the wetland buffer after averaging is no less than that contained within the standard buffer without averaging; and that averaging will increase or enhance the wetland functional values. TCC 17.15.940(F).

47. The proposed alternative includes a buffer averaging scheme involving buffer reduction,

enhancement, and replacement of the buffers for Wetlands A and E. Both are Class I wetlands requiring a standard buffer width of 200 feet. As proposed, standard buffer widths would be reduced in five locations adjacent to lots:11

Buffer Reduction Regions: Adjacent to: Region A 0.81 acres reduction Lots 28, 29, 30 Region B 0.37 acres reduction Lot 31 Region C 1.18 acres reduction Lots 63-72 Region D 0.13 acres reduction Lots 72-73 Region X 0.33 acres reduction emergency access road

Exhibit 1, Attachment h, Appendix L, Figure 4. The buffer averaging plan would reduce standard buffer width adjacent to Lots 28, 29, 30, 31, 63, 64, 65, 66, 67, 68, 69, 70, 71,

9 For a thorough discussion of the purpose of wetland buffers, refer to pages 120-123 of the FEIS. 10 For example, a 300 foot buffer must be provided between high intensity land uses and Class I wetlands, while only 200 feet of buffer is required between Class I wetlands and low intensity land uses. 11 The FEIS includes proposed buffer reduction Region E, adjacent to the northern access road near Wetland B. A buffer reduction was approved in the Elwanger PRRD decision on June 9, 2008, and this part of the buffer averaging proposal is no longer at issue in the instant applications. Exhibit 1, Attachment h, Appendix L, December 3, 2007 WSP letter, Figure 4; Exhibit 38; Exhibit 26.


72, 73, and 74. Without buffer averaging each cited lot would be encumbered by standard wetland buffer. Exhibit 1, Attachment h, page 129; Exhibit 1, Attachment h, Appendix L, January 17, 2008 Memorandum, Figures 1 and 2.

48. None of the proposed buffers would be narrower than 100 feet. In buffer reduction

region A, the buffer would be reduced to 100 feet in several locations adjacent to the proposed well site and near proposed Lot 30; smaller unspecified reductions are proposed adjacent to Lots 28 and 29. Buffer reduction region B would reduce the Wetland E buffer to 110.07 feet adjacent to proposed Lot 31. In buffer reduction region C, the narrowest points of the proposed averaged buffer would be 122.7 feet adjacent to Lot 63 and 139.6 feet next to Lots 71 and 70. Exhibit 1, Attachment h, FEIS, page 118, 127-31; Exhibit 1, Attachment h, Appendix L, Figures 1 and 2.

49. The proposed buffer averaging scheme includes buffer enhancement on a total of 10.3

acres. The Applicant’s wetland consultant testified that enhancement activities are proposed to occur over a five-year period, the most degraded areas slated earliest for enhancement and the least degraded areas done last. It is not clear from the materials submitted whether enhancement is proposed along all reduced buffer widths. Both the text of the plan and the consultant in his testimony speak broadly of enhancement in reduced width buffer areas, the figures included in the record appear to limit enhancement actions to buffer enhancement regions F, G, and H which are not located in the reduced buffers between the proposed residential lots and the bog-like portions of Wetlands A and E. Exhibit 37, page 4; Exhibit 1, Attachment h, Appendix L, January 17, 2008 WSP Technical Memorandum; Figures 1 and 2 – See Legend; Appendix L, WSP December 3, 2007 WSP Technical Memorandum, Figure 4; Testimony of Dr. Lee.

50. Buffer averaging approval criteria require that the total area of the averaged buffer not be

less than the area required by the standard buffer widths. TCC 17.15.940(1). The total area of standard buffer width to be impacted (reduced) by the buffer averaging proposal includes approximately 3.1 acres. The Applicant’s plan would add 9.66 acres to the buffer of Wetland A along Elwanger Creek in areas strategically selected to maximize benefits to the wetland ecosystem and “improve wetland hydrological, biogeochemical, plant community and faunal support functions.” A buffer replacement at a 3:1 ratio would result. Exhibit 1, Attachment h, FEIS, page 131. Elwanger Creek flows into Ayer Creek, which flows through Wetland A before entering the Deschutes River. In 2002 and 2004, Elwanger Creek was listed on the Washington State 303(d) list for dissolved oxygen, fecal coliform, and pH. It was determined that the impacts to the Creek were caused mainly as a result of past cattle grazing practices within the creek bed. The enhancement actions of the buffer averaging plan are intended to convert what has become compromised pastureland to a riparian mixed conifer forested area, which would remove the existing pollutants and support habitat functions. Exhibit 1, Attachment h, FEIS, page 127-31.


51. The Applicant’s wetland delineation report refers to some of the larger depressional wetlands on-site as having ‘bog’ characteristics (including Wetlands B, E, and the depressional feature of A) and repeatedly calls them bogs or bog systems. Exhibit 1, Attachment h, Appendix G. At hearing, the Applicant’s wetland science expert testified that these features are more accurately characterized as fens, because they receive their dominant flow from shallow subsurface vectors. Testimony of Dr. Lee. However, no analysis of how fens and bogs differ was offered.

County Position on Buffer Widths: 52. Thurston County Development Services Department (Department) argued that a more

cautious approach to development adjacent to Class I wetlands is warranted than that in the Applicant’s proposed buffer averaging scheme. The CAO defines Class I wetland as:

Class I wetlands can be described as the cream of the crop. Generally, these wetlands are not common and would make up a small percentage of the wetlands in the state. These are wetlands that: (1) provide a life support function for threatened or endangered species that have been documented, and the wetland is on file in databases maintained by state agencies, (2) represents a high quality example of a rare wetland type, (3) are rare habitat type within a given region, or (4) are relatively undisturbed and contain ecological attributes that are impossible to replace within a human lifetime. Class I wetlands are: 1. Those that have a documented occurrence in the wetland of a federal or state

listed endangered, threatened plant, animal, or fish species; or 2. High quality native wetland communities which qualify for inclusion in the

Natural Heritage Information System; or 3. Documented as regionally significant waterfowl or shorebird concentration areas;

or 4. Wetlands with irreplaceable ecological attributes which are impossible to replace

in a human lifetime, such as bogs.

TCC 17.15.920. 53. Notwithstanding acceptance in the FEIS of the 99-lot proposed alternative with its buffer

averaging, the Department’s environmental review staff recommended that buffer averaging not be allowed and that buffers even greater than the standard 200-foot buffer width be required for the bog-like wetlands on-site. Staff noted that part of the reason for the more than three year delay in publication of the FEIS was the inability of the County and the Applicant to reach a mutual understanding about the necessary buffer widths adjacent to the bog-like wetlands on-site. Exhibit 37, page 3; Exhibit 1, Attachment j, September 18, 2007 letter. The environmental review staff recommended that approval of the PRRD be granted only for FEIS Alternative 1 (62 lots plus resource use parcel) or for a modified proposed alternative incorporating a new 250-foot buffer for Wetlands A and E, which would require reconfiguration of the proposed lot layout. Exhibit 1, Attachment j; Testimony of Ms. Wilson. The environmental review staff stated that


“unless additional best available science information is submitted that reasonably argues to the contrary, the Department will recommend that the minimum Category I wetland buffer for the subject project be set as 250 feet.” This recommendation would exceed the allowed width standard by 50 feet. Exhibit 2, pages 6-9; Testimony of Ms. Wilson.

54. Department staff made the recommended 250-foot buffer for Class I wetlands, in part,

based on comments and publications prepared by Washington Department of Ecology (DOE). Department staff submitted that information and materials in Wetlands in Washington Volumes I and II would discourage buffer reduction for the bog-like wetland on-site, noting that bogs and fens are considered the most valuable and irreplaceable types of wetlands and that they are particularly sensitive to changes in water quality through sedimentation and nutrients in runoff. Regarding buffer averaging, Wetlands in Washington Section 8.C.2.6 supports the premise that wider buffers should be required adjacent to higher-functioning areas or more sensitive portions of the wetland; that reduced width be allowed only adjacent to lower functioning or less sensitive portions; and that averaging should not reduce the buffer at its narrowest point to less than three-quarters of the standard required buffer width. The DOE publication suggested buffers of at least 250 feet for “land uses with high impacts; 190 feet for moderate impacts; and 125 feet for low impacts.” Regarding buffers for bogs, the DOE document supports that a minimum of 197 foot buffer is required for removal of nitrogen and 253 foot buffer as the minimum required for removal of phosphorus. Exhibit 1, Attachment j, citing Wetlands in Washington, Section 8.C.2.6.

55. The overall density of the proposed cluster development would be one dwelling per three

acres. Staff characterized the minimum lot size of 12,500 square feet as being more similar to high intensity land use than low intensity land use. Exhibit 1, Attachment j.

56. The County’s recommendation to increase the required buffer area is based in part on the

fact that Ayer Creek drainage is listed on the Washington State 303(d) list for dissolved oxygen, temperature, and pH. The Deschutes River is also considered a “hot spot” for the same three pollution conditions, in addition to nitrate loading. Testimony of Ms. Wilson; Exhibit 29; Exhibit 1, Attachment v.

57. The Department environmental planning staff questioned the consultant’s position that a

buffer adjoining a sensitive bog-like wetland could be reduced to half its standard size and still provide improved or enhanced functions. A staff representative testified that buffer width reduction, as proposed, is inconsistent with functional improvement based on best available science. The staff representative, Ms. Wilson, has a degree in fisheries and zoology and has worked for the County for 14 years. She has had training from the U.S. Army Corps of Engineers regarding wetland delineation and participated in the development of the rating system. Based on her professional experience and judgment, her assessment was that the standard buffers would be sufficient to protect wetlands if fully functional, and that a larger buffer may be required to protect a sensitive wetland if existing standard buffer were in a degraded condition. Testimony of Ms. Wilson.


58. Department staff noted that the proposed mitigation plan (six pages) included a review of the enhancement of the reduced buffer widths immediately adjacent to proposed lots. However staff contended that the review was not exhaustive and was short on detail. Figures submitted with the enhancement plan show only one area of buffer enhancement (area F) adjacent to the reduced buffer width. Staff argues that the buffer enhancement/mitigation plan in the record (FEIS, Attachment L, January 2008 WSP letter) does not contain performance standards, monitoring and maintenance criteria, timelines, planting plans, or any other details by which the County could evaluate compliance or success. Exhibit 37, page 4. The Applicant’s post-hearing submittal, submitted on August 4, 2008 per a schedule established by the Hearing Examiner at the hearing, included a proposed condition of approval that would require the Applicant to submit a detailed mitigation plan within 90 days of project approval. The proposed condition provided: 125% irrevocable assignment of funds; five year mitigation installation timeline; annual maintenance and monitoring to be performed in perpetuity by the property owners’ association; compliance reporting to Thurston County Development Services; and a note on the face of the final plat regarding the mitigation plan.12 Exhibit 38.

Public Comment on Buffer Averaging: 59. The Black Hills Audubon Society (BHAS) submitted public comments asserting that

buffer averaging is not consistent with best available science and that groundwater under the project would be contaminated by septic effluent and stormwater runoff. Supporting their concerns about septic effluent contamination, BHAS submitted comments from Paul Adamus, PhD, a wetland scientist, who reviewed Appendix L of the FEIS. Dr. Adamus submitted that the buffer averaging that would narrow a buffer adjacent to the most intensive new development and/or adjacent to the highest functioning portions of critical areas may not be supported by best available science. He stated: “Even if buffer widening tends to increase or enhance functional values in one part of a wetland, that effect does not automatically offset all damage that may occur to the same or different functions in other parts of the wetland as a result of their buffer being narrowed.” Exhibit 1, Attachment t, page 1.

60. Dr. Adamus’s comments questioned the Applicant’s consultant’s characterization of

portions of the standard buffer to be reduced in the averaging scheme as degraded, contending that ‘degraded’ is a subjective term. Dr. Adamus noted that the reliance on nitrate reduction through use of enhanced septic treatment technologies is not supported in the record with evidence on the likely tolerances of the characteristic bog plants to long term chronic nitrate loading at the levels projected, assuming those levels are accurate. He recommended that no portion of the bog wetland buffers be narrowed. Exhibit 1, Attachment t, page 1. Dr. Adamus did not attend the hearing and was not

12 The proposed condition assumed approval of the buffer averaging concept.


available for cross-examination. He did not review the entire record or visit the site. 13 Exhibit 1, Attachment t, page 1.

Applicant’s Evidence in Support of Buffer Averaging: 61. The Applicant commissioned technical reports prepared by professional wetland

scientists. The Applicant’s consultants concluded that

[T]aken in context, standard buffer widths recommended by the County provide minimal quality habitat for wildlife…. [B]est available science shows that if the buffer width is decreased, but the quality and ability of the buffer to function increases significantly through use of new technology and focused restoration, the wetland ecosystem will not be detrimentally affected. … Best available science shows that width is only one aspect determining the effectiveness of buffer functioning… . An improvement in plant community conditions in the buffer combined with increased surface structure/roughness (creating microtopography and placing large wood to slow water and cycle nutrients) will counteract the small decrease in buffer width that is proposed. … [T]he proposed restoration along Elwanger Creek provides optimal circumstances for improvement of plant community and habitat/faunal support functions for the wetland ecosystem. Large, remote, contiguous buffer areas provide better habitat than narrow bands maintained within a portion of the landscape. The Elwanger Creek restoration also will provide benefits to water quality for the entire wetland complex as it is located in a critical area where agriculture can have a detrimental effect to water quality.

Exhibit 1, Attachment h, Appendix L, December 3, 2007 WSP letter, page 12.

62. In support of its position, the Applicant’ consultant submitted a report that assessed the

current condition of the proposed buffer reduction regions. Exhibit 1, Attachment h, Appendix L, January 18, 2008 WSP memorandum. The memorandum was accompanied by photographs showing existing vegetation and at measured distances from the wetland edges. Overall, the memorandum characterizes the buffer reduction regions as structurally and functionally degraded in many places due to historic forestry, livestock, mining, and mowing practices. These practices, which halted as of 2003, opened the area to domination by non-native species (primarily Himalayan blackberry, reed canary grass, and American holly), which currently provide a moderate level of buffer functioning to protect the wetland from adjacent land use impacts. Specifically, existing vegetation in the proposed reduction regions was field-studied along six transects, with observations paraphrased as follows:

Transect 1: Willow and alder dominate within 43 feet of wetland edge, after which tree canopy becomes sparse; one Douglas fir and some broadleaf maples, but dominated by Himalayan blackberry (>75%) between 43 feet and 200 feet from wetland edge

13 The Applicant argued that Dr. Adamus’s comments were not timely received and should not be considered as a basis of SEPA substantive authority because they are not included in the environmental documents of the FEIS. Exhibit 38.


Transect 2: Sparse (30%) canopy within 30 feet of wetland edge; between 30 and 170 feet from wetland edge, shrubs and herbs dominate, including primarily blackberry, bracken fern, reed canary grass; outer 30 feet of standard buffer width is developed with gravel road Transect 3: Willow and alder dominate from 0 to 65 feet from wetland edge, but are intermixed with blackberry and American holly; one large big leaf maple and one 20-foot-tall western red cedar occupy area at approximately110 feet from wetland edge, providing isolated canopy; between 157 feet and 200 feet from wetland edge, blackberry, bracken fern, reed canary grass dominate Transect 4: The first 19 feet from wetland edge are occupied by dense alder stand; between 19 and 63 feet, blackberry and grasses dominate; between 63 feet and 200 feet a dense alder stand with a trailing blackberry understory; no conifers Transect 5: 0 to 57 feet from wetland edge dominated by willow, alder, big leaf maple; from 57 to 80 feet from wetland edge is Himalayan blackberry; 80 to 92 feet is occupied by gravel road; 92 to 135 feet contained alder, Himalayan blackberry, and American holly; between 135 and 200 feet from edge, blackberry with little to no tree canopy Transect 6: From 0 to 56 feet from wetland edge, there is tree canopy; between 56 and 200 feet from edge, the area was mined for gravel and the topsoil has been removed

According to the Applicant’s consultants, only proposed buffer reduction region B contains contiguous native forest habitat, which is the preferred form of vegetated buffer. Based on these assessments of site conditions, the Applicant’s consultants imply that enhancement in even a reduced width buffer could improve buffer functioning. Exhibit 1, Attachment h, Appendix L, January 17, 2008 WSP Letter, with photographs 1-24, Figures 1 and 2; Testimony of Dr. Lee; Testimony of Ms. Knox.

63. The buffer enhancement plan includes the following measures: removal and control of

noxious weeds; increase in topographic variation where appropriate and as directed by a wetland ecologist; installation of large woody debris; native species plantings; and implementation of a maintenance and monitoring plan. No time line or planting plan is provided with the plan. The proposed planting along the depressional wetland buffer reduction regions includes five species of native tree (cedar, hemlock, fir, spruce, and maple) and nine species of native shrub (including vine maple, red huckleberry, and others). The Applicant’s consultants submitted that the proposed buffer enhancement plan would improve the ability of the remaining buffer width to provide habitat and faunal support functions, nutrient retention and pollutant capture, and establish a native plant community which would maintain or increase wetland functions. Exhibit 1, Attachment h, FEIS, page 127; Exhibit 1, Attachment h, Appendix L, January 17, 2008 WSP Technical Memorandum.


64. In discussing the impacts of the proposed alternative on the depressional wetlands, Dr. Lyndon Lee stated that his first choice would be zero septic effluent in order to prevent any nitrogen from entering the essentially closed wetland systems. However, because the County does not currently include zero effluent systems in its approved septic management practices and because the proposed density is allowed by applicable zoning regulations, Dr. Lee testified that the best alternative would be the enhanced nitrogen removal technology proposed by the Applicant. Testimony of Dr. Lee.

65. Dr. Lee testified that narrowed buffers adjacent to Class I wetlands can be located next to

residential development without detrimentally affecting wetland functions and values. He stated that width is only one consideration and a buffer is not a literally linear situation. Nitrates and phosphorus are taken up by fine root biomass, by microbes, and by other active functions of an intact, forested buffer. Sediments are captured and removed by roughness of the buffer terrain. Testimony of Dr. Lee. He further submitted that the strategic selection of buffer reduction areas where degraded conditions currently exist, buffer enhancement in the remaining buffer width conducted in a hierarchical manner (worst condition restored first), and enhancement of the Elwanger Creek system would address potential degradation that could result from the residential development. He stated that it would result in overall improvement in terms of buffer area, functions and values for on-site wetlands. The Applicant’s consultant noted that standard width buffers tend to be left undisturbed and are not enhanced or maintained. Narrower buffers with more active management practices can provide similar or better functions, according to Dr. Lee. Testimony of Dr. Lee.

66. Dr. Lee did not agree with the County that a 250-foot buffer was needed. He stated that

from geochemical perspective, the first 160 to 200 feet from the source is where the pollutants are removed and that the selection of a buffer width between 200 and 300 feet would be arbitrary and not supported by the general conclusions from the Wetlands in Washington compendium, which is not intended to supplant site-specific review data. Testimony of Dr. Lee.

67. Dr. Lee stated that the proposed alternative would result in no significant adverse impacts

to the wetlands from pesticides, nitrate loading, or phosphorus. Testimony of Dr. Lee. 68. Wetland wildlife habitat functions are more effective with larger tracts without

fragmented sections. Testimony of Dr. Lee. According to the Applicant the proposal to replace the reduced buffer width on the west side of Wetland A, away from the residential lots and consolidate it with the streambeds, would improve habitat functions more dramatically than a standard 200-foot buffer around the wetland edges. Testimony of Dr. Lee. A benefit of clustering homes on the east side and focusing buffer replacement on the west side of Wetland A is that it would create a larger contiguous area of wetlands and streams with a connection to the Deschutes River. The Applicant’s wildlife consultant testified that clustering the lots and providing buffer replacement in Elwanger Creek would be more beneficial for wildlife. The buffer averaging enhancement proposal, which would jumpstart the replacement of invasive species with


native forest habitat, would increase vertical habitat and be a net improvement for wildlife habitat with residential development. It would be more effective than a series of 250-foot buffers around wetlands with no restoration to Elwanger Creek and no buffer enhancement adjacent to residential clusters. The Applicant’s wildlife consultant opined that the proposed enhancement would provide a greater level of habitat function and that the buffer averaging proposal would have significant adverse impacts to habitat. She noted that the proposed restoration includes planting conifers within the 800-foot conifer retention zone established for eagle habitat management, as well as within currently degraded portions of the 600-foot no disturb radius. Testimony of Ms. Krippner; Exhibit 22.

69. With the plat design, the Applicant considered the anticipated surface and subsurface

flows as part of the design around each wetland’s hydrology. The Applicant’s proposed mitigation and stormwater system design were based on the assessment of runoff directions towards wetlands. In order to avoid impacts to the unique bog-like wetlands on-site, stormwater systems would divert all discharge away from these locations and towards the more resilient riverine portions of the on-site wetlands. Site design intentionally reduced the quantity of new impervious surfaces in the vicinity of the bogs, in order to avoid impacts to their hydrology. Exhibit 1, Attachment h, Appendix G, page 37; Testimony of Dr. Lee; Exhibit 24.

70. Having reviewed the anticipated effluent from enhanced on-site treatment for the specific

number of lots that should drain to each affected bog-like wetland, the Applicant’s consultant concluded that the total nitrate load to each wetland under the proposed alternative – as mitigated by the proposed buffering averaging enhancement scheme – would be small. The Applicant’s consultant calculated anticipated nitrate-loading to each wetland as follows: 23 total lots draining to Wetland B, providing 12,725 estimated liters per day of flow; three lots draining to Wetland E, providing 1,660 estimated liters per day of flow; and 78 total lots draining to Wetland A,14 providing 43,155 estimated liters per day of flow, at a nitrate-N concentration of 9.1% assuming use of enhanced septic systems on 99 lots in Keeneland Park and effluent traveling through buffers as reduced. Exhibit 1, Attachment h, Appendix L, December 3, 2007 WSP letter, Table 3; Testimony of Ms. Knox; Testimony of Dr. Lee.

71. There are no County, State, or Federal standards that regulate nitrate or phosphorous

loading into regulated wetlands, nor has the County adopted phosphorus-loading or fecal coliform standards for surface waters. Testimony of Ms. Wilson.

72. A buffer width of 250 feet was not considered in the alternatives reviewed in the FEIS

and is not established as a buffer width standard in the Thurston County Code. Testimony of Ms. Wilson; TCC 17.15, Table 10.

14 The lots assumed to be draining to Wetland B include 12 lots from the Elwanger PRRD and the lots assumed to be draining to Wetland A include 7 Elwanger lots. FEIS, Appendix L, December 3, 2007 WSP letter, Table 3.


73. The project would be required to apply for and receive approval of a National Pollutant Discharge Elimination System (NPDES) permit prior to construction. The NPDES permit would address such issues as erosion control and spill prevention to ensure no polluted discharges are allowed to enter nearby aquatic resources. Exhibit 1, Attachment h, Appendix G, page 37.

Impacts to Ground and Surface Waters: Quality: 74. BHAS submitted written comments on the proposed RetroFAST enhancement septic

treatment systems. Nancy Etelle, an engineer, submitted that while the technology of the RetroFAST system appears to be sound for removing half of the influent concentration of nitrogen it does not address phosphorus controls. Further the witness submitted in her written document that the average homeowner is likely to disregard maintenance requirements pertaining to limited use and prohibited substances that can disable the systems; and that failure to follow prescribed maintenance can render the system ineffective. Exhibit 1, Attachment u.

75. BHAS also submitted written comments from a hydrogeologist named Denis Erickson,

questioning the adequacy of the hydrogeological information as submitted by the Applicant. After reviewing several, but not all of the EIS documents, Mr. Erickson concluded that the groundwater beneath the project is susceptible to contamination from surface sources via the recessional outwash aquifer. He contended that the surface sources were not adequately analyzed by the Applicant. Mr. Erickson submitted that nitrate loading to the wetlands and creeks, and eventually the Deschutes, had not been adequately reviewed and more study was required. 15 Exhibit 1, Attachment s. .

76. The Applicant submitted hydrogeologic assessments analyzing potential impacts of the

proposed alternative to the regional water supply. The assessments addressed the increased use (quantity) and potential groundwater quality impacts from the proposed development (quality). A pre-developed condition of the site demonstrates that water recharges the upland portion of the site through rain and groundwater inflow. The flows are from west and north directions before discharging through springs. The flows then seep directly to Ayer Creek and the on-site wetlands. Water from the underlying aquifer system discharges laterally and vertically to the Ayer Creek and the Deschutes River. Exhibit 1, Attachment h, FEIS, page 72; FEIS, Appendix C. Thurston County Environmental Health Division (EHD) reviewed the Applicant’s hydrogeological reports and accepted them as meeting the hydrogeologic study requirements required by County Code. Exhibit 1, Attachment m; Exhibit 9, page 6; Exhibit 9, Attachments F and G.

15 The Applicant argued that Mr. Erickson’s comments were not timely received and are not included in the project’s environmental documents and that therefore they do not properly constitute a basis for SEPA substantive authority for conditioning the project. Exhibit 38.


77. The subject property is not located within an area of the County that has been previously recognized to have elevated groundwater nitrate levels. Exhibit 1, Attachment h, FEIS pages 72-73.

78. As part of the regulation of nitrates in drinking water supplies, Washington State

sanitation requirements establish a maximum contaminant level (MCL) of 10 milligrams per liter (mg/l). Applicable Thurston County sanitation standards prohibit development that would result in increased nitrate concentrations in the receiving unit (in this case, the aquifer) greater than 10% of the difference between the MCL and ambient background level. The ambient background nitrate concentration level is 1.6 mg/l, as measured through industry standard methods.16 For this site, the maximum nitrate concentration increase allowed in the aquifer would be 0.84 mg/l. The increase was calculated to be 0.776 for the 99 new residential lots of the proposed alternative with its standard septic treatment. No party to this proceeding provided calculations that result in a different maximum increase for the proposed alternative. Exhibit 1, Attachment h, FEIS pages 72-73; Testimony of Mr. Ward; FEIS, Appendix C, April 14, 2008 Robinson Noble Saltbush Technical Letter.

79. EHD reviewed the Applicant’s hydrogeological reports and their consistency to the

County’s assimilative capacity standard for nitrate loading from on-site sewage systems. EHD determined that the data was in conformance with County standards. The reviewing EHD hydrogeologist determined that, with the use of approved enhanced nitrate removal technologies, the proposal would satisfy the assimilative capacity standard for nitrate loading. Testimony of Mr. Ward.

80. The County does not require any specific manufacturer of enhanced septic treatment

devices. However, the County requires that technologies approved by Washington State are to be utilized for enhanced septic treatment. Testimony of Mr. Ward. The proposed RetroFAST system is approved by the state for up to 360 gallons per day of effluent, The equivalent of a three-bedroom house. A new larger system by the same manufacturer (Biomicrobics), called MicroFAST, which can accommodate between 500 and 3,000 gallons of effluent per day for larger or multiple residences was recently added to the list of Washington State approved enhanced treatment systems. Both RetroFAST and MicroFAST are rated to remove up to 50% of nitrogen from the effluent stream. Testimony of Ms. Knox; Exhibit 21; Exhibit 9, Attachment E.

81. At the time of preliminary plat review, lots are reviewed to determine if they contain

acceptable soils to provide septic treatment. After preliminary plat approval, during build out, each septic system is reviewed for compliance with sanitary code-required setbacks and design standards prior to issuance of each septic permit. As an additional safeguard, a condition of approval was recommended by the court requiring the property owners’ association to retain a single, certified septic service provider to oversee maintenance and monitoring for all of the project’s septic systems. Testimony of Mr. Ward.

16 This ambient concentration was accepted by the Thurston County EHD and not disputed by any party.


Impacts to Water Quantity: Domestic Water Rights: 82. The Applicant submitted two professionally prepared technical papers, Impact Analysis

of the Proposed Ground Water Withdrawal at Keeneland Park PRRD (2005) and Discussion of the Hydrogeologic Setting of the Keeneland Park Well (2007). Both papers concluded that transfer of surface water rights to ground water rights associated with the proposed action alternative would not impair or impact any water rights of record or nearby domestic wells. Exhibit 1, Attachment h, page 110; Attachment h, Appendix K.

83. A Certificate of Surface Water Right was issued for the subject property in August 1950

(Certificate #3750), granting the property the use of 0.60 cubic foot per second from Ayer Creek for domestic supply and irrigation of 60 acres. On June 21, 2004, the Applicant submitted an application for transfer of water right to the Water Conservancy Board of Thurston County (Board), (file number THUR-04-04). The Applicant subsequently amended the transfer request so it would provide only domestic water (no irrigation rights retained). The Board made a recommendation to the Washington State Department of Ecology (DOE), the agency with jurisdiction, that the water right transfer should be approved. At the July 14th PRRD land use hearing, the application was still pending. Exhibit 1, Attachment h, FEIS, pages 60-61; Exhibit 4; Exhibit 11.

84. On July 21, 2008, The DOE reversed the recommendation of Board and denied the

request for change of the water right. Exhibit 44. The Applicant timely appealed DOE’s decision to the Pollution Control Hearing Board and opposed the denial of the preliminary plat based on DOE’s July 21, 2008 decision. Exhibits 40 and 45. Although the record had closed, an interested party (BHAS) requested it be reopened to admit the DOE denial and that the PRRD be denied based on lack of potable water source. Exhibit 39.

85. In response to BHAS request to admit DOE’s July 21, 2008 decision the Applicant noted

that if the disputed water right transfer is not resolved favorably, there are other potential sources of domestic water available to the proposed plat. These include service by extension of the East Olympia Municipal Water System. Moreover, the Applicant acknowledged the requirement to provide potable water prior to final plat approval and requested to proceed with preliminary plat approval, arguing that the County EHD recommended conditions are consistent with the preliminary plat requirement to make adequate provisions for potable water supplies. TCC 18.12.090; Exhibits 38, 40, and 45; Testimony of Ms. Burgess.

86. The July 21, 2008 DOE decision to reverse the Water Board did not change the Thurston

County EHD recommendation of preliminary plat approval subject to conditions requiring proof of connection to approved water system prior to final plat approval. Exhibit 42.


87. Written notice of the public hearing was mailed to all property owners within 1,000 feet of the site and those who requested notice, published in The Olympian and The Nisqually Valley News, and posted on-site on or before July 3, 2008, at least ten days prior to the hearing. Exhibit 1, Attachment a; Exhibit 3.

88. The County received public comments from the neighboring forestry operators to the

south, the Pattons. Ms. Patton testified that the parties were negotiating an agreement relating to the existing access easement rights encumbering the southeast corner of the subject property, specifically proposed Lots 1 through 7. The Pattons also requested that the Applicant be required to fence the lots that border the easement in order to enhance safety for the plat’s residents and to prevent trespass and dumping. They requested a six-foot solid wood fence as a condition of plat approval. The Pattons also submitted that their forest lands, logging operations, and nearby Sheehan Lake would act as attractive nuisances to residents of the plat. Exhibit 1, Attachment q; Testimony of Ms. Patton.

89. Streets B and G were designed to accommodate the neighboring logging operation on the

assumption that the easement would be released. If the parties do not reach an agreement for release of the existing easement, it may be necessary to reconfigure lots to accommodate logging truck access. A recommended condition of approval would require the Applicant to apply for a plat amendment to reconfigure lots and the road system in the event that the easements are not released, extinguished, or abandoned. The Applicant’s representative acknowledged this requirement. Exhibit 2, page 10; Exhibit 1, Attachments g, h, and q; Testimony of Ms. Burgess.

90. Additional public comment expressed concerns about: lack of confirmed domestic water

right; impacts to existing domestic water supplies; traffic safety and adequacy of road width on Ayer Street; bus stop safety; impacts to rural character; and impacts to pristine wildlife habitat. Members of the public urged the decision maker to err on the side of protecting the critical areas. Testimony of Mr. Maynard; Testimony of Mr. Laine; Testimony of Ms. Tadlock; Testimony of Mr. Thompson; Testimony of Ms. Danver; Exhibit 1, Attachment r; Exhibits 5, 6, 7, 10, 32, 34, 35, and 36.

91. The Applicant submitted comments to the public testimony and letters. The proposal

would include widening Ayer Street south of 83rd Avenue SE pursuant to Thurston County road standards to a modified 6-D collector road. While the Applicant has received approval of a variance to reduce the right-of-way width for this section from 60 to 40 feet, the improvement would result in the same pavement width as a 60-foot right-of-way. The school bus stop locations have been selected and approved by Tumwater School District. The proposed density is consistent with the density allowed pursuant to the RRR 1/5 development standards in effect on the date the applications were deemed complete and is by definition considered rural development pursuant to the applicable zoning code. The Applicant objected to the construction of a fence along the Patton property and/or along the pipeline but agreed to post ‘no trespassing’ signs along the shared boundary. The Applicant asserted that issues of the water right transfer appeal are outside the scope of the land use hearing examiner’s authority. The Applicant submitted


professionally prepared hydrogeologic studies that indicated that the proposed Group A well would not adversely impact adjacent domestic water supplies. The County accepted the Applicant’s hydrogeologic studies. Final plat approval and building permit issuance will not be granted until the Applicant’s proposed Group A water system receives State Department of Health approval, or until another source of domestic was is provided and approved. The PRRD as proposed would permanently set aside approximately 186 acres for critical areas preservation, and additional protections for wildlife would be provided by the WDFW approved habitat management plan. Exhibit 38; Exhibit 28; Comments of Mr. Fancher; Exhibit 8; Exhibit 1, Attachment h, Appendix E; Exhibit 22.

CONCLUSIONS

Jurisdiction The Hearing Examiner is granted jurisdiction to hear and decide applications for preliminary plats and planned rural residential developments pursuant to RCW 36.70.970, TCC 2.06.010(A), and TCC 18.12.090.

Criteria for Review PRRD Criteria for Review In review of a Planned Rural Resource Development, the Hearing Examiner considers the proposal with the requirements established in TCC 20.30A.040 and 20.30A.070. Criteria that are applicable to this proposal are as follows:

PRRDs located within RRR 1/5 districts must contain a resource use parcel comprising at least 60 percent of the proposed subdivision. TCC 20.30A.040(1)(d).

The resource use parcel must, to the greatest extent possible, be a single contiguous parcel

and be shaped to be usable for resource uses. TCC 20.30A.070(5)(b). Roads or easements shall not bisect resource use parcels that are used for agriculture, forestry

or sensitive resource protection where the physical conditions of the site would allow otherwise. TCC 20.30A.070(5)(c).

Where consistent with other provisions of this chapter, the resource use parcel shall be contiguous with any abutting resource use parcel, open space, greenbelt, agricultural lands, commercial forestry lands, public preserves, parks, or schools. TCC 20.30A.070(5)(d). The subdivision shall be designed, to the extent consistent with other provisions of this chapter, to maximize the visibility of the resource use parcel and open space areas from adjoining collector roads, arterials, or state highways. TCC 20.30A.070(5)(e).


Native vegetation must be retained in the resource use parcel to the extent that it is compatible with the intended use of the parcel and does not pose a risk to public safety. TCC 20.30A.070(5)(f).

The configuration and size of the lots within the subdivision must be varied and blend with the natural features of the site. TCC 20.30A.070(6)(a).

Windfirm trees must be retained where they would screen residences from collector roads, arterials or state highways, unless they would unduly impede site development, be incompatible with the intended use of the resource use parcel, or pose a risk to public safety for motorists on those roadways. TCC 20.30A.070(6)(b).

Residential lots must be grouped and not assembled in a linear configuration, unless unusual site conditions, such as wetlands, steep slopes, shorelines, or very narrow lots warrant a linear configuration. TCC 20.30A.070(6)(d).

Preliminary Plat Criteria In addition, the following preliminary plat criteria in Thurston County Code 18.12.090 must be satisfied:

1. Appropriate provisions are made for the public health, safety, other public ways, transit

stops, potable water supplies, sanitary wastes, parks and recreation, playgrounds, schools and school grounds and all other relevant facts, including sidewalks and other planning features that assure safe walking conditions for students who only walk to and from school; and

2. The public use and interest will be served by the platting of such subdivision and

dedication.

Other Applicable Regulations SEPA Rules: The range of alternative courses of action considered by decision makers shall be within the range of alternatives discussed in the relevant environmental documents. However, mitigation measures adopted need not be identical to those discussed in the environmental document. Washington Administrative Code (WAC) 197-11-655(b). The range of alternative courses of action discussed in EISs shall encompass those to be considered by the decision maker. WAC 197-11-402. SEPA substantive mitigation measures shall be based on policies, plans, rules, or regulations formally designated by the agency as a basis for the exercise of substantive authority in effect when the DEIS is issued and shall be related to specific, adverse environmental impacts clearly identified in an environmental document on the proposal. The document (EIS) shall state


the mitigation measures, if any, that will be implemented as part of the decision, including any monitoring of environmental impacts. WAC 197-11-660(a) and (b). Thurston County Critical Areas Ordinance: The findings, conclusions and recommendations of a special report prepared by such a qualified consultant shall be given substantial weight by the county staff reviewing such report. The rejection of parts or all of the special report shall be based upon either factual errors or omissions in the special report; or judgments based upon observable data, and accepted scientific or technical criteria. TCC 17.15.300. Conclusions Based on Findings 1. Neither the County’s request to increase Class I wetland buffers to 250 feet nor the

Applicant’s buffer averaging proposal are approved. A buffer of at least 200 feet shall be provided for Class I wetlands on-site. This requirement will reconfiguration of the lot layout.

a. Pursuant to expressly stated provisions of the County’s SEPA substantive authority

provisions, the County may attach conditions to a permit or approval for a proposal so long as such conditions are necessary to mitigate specific probable adverse environmental impacts identified in environmental documents prepared pursuant to this chapter. TCC 17.09.150 (emphasis added). In recommending an increase over the standard buffer width, the Department did not cite evidence of any probable significant adverse impacts, nor evidence that a 250-foot wetland buffer would mitigate a probable significant adverse environmental impact. The Department did not provide sufficient support or evidence for the increased buffer beyond the standard buffer width. According to the Applicant’s consultants, some nitrogen would reach the wetlands. The resulting adverse impacts alleged by the County are not identified with specificity. The ‘best available science’ offered from the Wetlands in Washington as justification for increasing buffer width is theoretical information rather than scientific data. It is more appropriately relied on when establishing local government standards than when crafting site-specific development proposal conditions. Neither the Thurston County critical areas ordinance nor the published FEIS contemplate a 250-foot buffer for any critical area on-site. The ‘sensitive nature of bogs’ theory is not sufficiently based in evidence to justify more than the established County standard buffer width. The Examiner agrees with the Applicant’s consultant’s statement that such a buffer width, without site-specific data supporting the selection of that number, would be arbitrary. Findings Nos. 44, 45, 46, 51, 52, 53, 54, 55, 56, 57, 58, 66, 70, and 72.

b. At the same time, there’s no dispute in the record that bog/fen type wetlands are rare

and irreplaceable and can be damaged by minor alterations to their nutrient regimes. At least 16 septic systems are proposed in or adjacent to the area that would be protected by the standard 200-foot buffer.


• The Applicant’s consultant opined that the best-case scenario would be no septic effluent to the bog-like wetlands. However, according to Applicant’s Exhibit 24, the effluent from these 16 septic systems (and potentially others) would drain directly towards the bog-like wetlands.

• The Applicant’s expert testified that 160 to 200 feet is the buffer width required to remove nitrogen. As proposed, the buffer averaging scheme would provide only110 feet of buffer width between Wetland E and Lot 31, and the buffer between Lots 63 through 72 and the bog-like feature of Wetland A would be as narrow as 122.7 feet.

• The Applicant’s consultants report that some nitrogen would be added to the wetlands, but they do not identify what the resulting impacts would be. Nor do the Applicant’s experts state whether the proposed buffer enhancement (noxious weed removal, native species planting, etc) is sufficient to prevent the increased nitrates from damaging the bog wetlands’ nutrient regimes.

• TCC 17.15.940(F) requires that the averaging scheme result in an increase or enhancement of the wetland functional values. The strongest statement made by the Applicant consultant about reduced buffer widths is that with buffer enhancement the wetlands would not be detrimentally affected. No experts submitted any evidence or opinion that the buffer averaging scheme could result in an improvement to bog/fen functions or values.

• Despite the fact that the Applicant’s wetland delineation report repeatedly refers to Wetlands A and E as “bogs”, the impacts of the proposed nitrate load increase on the functions and values unique to bog-like wetlands were not adequately addressed in the submitted materials, constituting an omission of necessary scientific information per TCC 17.15.300, which supports the instant decision not to defer to the Applicant’s experts.

Although the Applicant’s consultants credibly argued that the proposed buffer averaging mitigation plan would be a net benefit in terms of wildlife habitat for the overall site, they do not establish the key issue in this matter--- that the proposed buffer averaging would result in improvement of wetland functional values in the bog-like wetlands immediately adjacent to the reduced buffer widths. The Applicant has failed to satisfy the burden of proof necessary to be granted buffer averaging approval. Further, the maximum density that could be allowed by density bonus calculation is not guaranteed. The number of lots approved in a given development is subject to the Thurston County critical areas requirements. It is noted that even if the requirement to provide a 200-foot buffer results in the loss of some density bonus lots, the project would still benefit from a density bonus for setting aside what is undevelopable land. Findings Nos. 44, 45, 46, 47, 48, 49, 50, 51, 58, 59, 60, 61, 64, 66, 68, and 70.

2. As conditioned, the proposed PRRD satisfies the requirements established in TCC

20.30A.020, 20.30A.040, and 20.30A.070 and satisfies applicable zoning development


standards. PRRDs are permitted uses in the RRR 1/5 zone. The PRRD ordinance in effect at the time of complete application allowed density bonuses and the proposal qualifies for bonus density up to 101 lots. The proposed 267.04-acre resource use parcel would exceed the required PRRD minimum (60%) set aside for permanent resource use, representing 85% of the gross site area. The resource use parcel is essentially a single contiguous parcel well suited to the proposed limited agricultural use and critical areas protection. It abuts currently undeveloped adjacent parcels that will be maintained in forestry or critical areas preservation uses. The proposed layout of the clustered lots in two clusters is consistent with PRRD standards in that: it is not linear and it minimizes the overall footprint of the development envelope and is designed around site topography. The PRRD does not maximize the allowed density on-site, proposing two fewer lots than are allowed. Conditions of approval would ensure permanent retention of on-site agricultural areas for resource use in addition to extensive critical areas preservation. Findings Nos. 20, 21, 22, 23, 24, 25, and 26.

3. With conditions, appropriate provisions will be made for the public health, safety,

public ways, potable water supplies, sanitary wastes, schools and school grounds and all other relevant facts.

a. The internal road system would be built to County private road standards and

provided with a paved path for pedestrian access along Street B. The Applicant would be required to provide off-site improvements connecting the site access to the Rixie Road and 78th Avenue SE intersection as well as along Ayer Street to its intersection with 83rd Avenue. The new private road system would provide access to all internal lots. A variance allowing emergency access to be provided by an existing gravel road through Wetland A was administratively approved and recommended for approval by the Fire Department. Conditions would ensure that the plat would provide adequate access for the forestry operation adjacent to the south in the event that the existing access easement is not released, extinguished, or abandoned. Findings Nos. 30, 31, 32, 33, 34, and 35.

b. As proposed and conditioned, the stormwater management system would comply with County development regulations. Findings Nos. 34, 35, and 36.

c. County Environmental Health Staff approved the well site for the proposed new

Group A water system; however, the property’s existing water surface right has not been approved by the DOE from irrigation to domestic use. While the Applicant is not required to demonstrate potable water supply prior to receiving preliminary plat approval,such a demonstration is required prior to final plat approval. A condition of approval is required to ensure that domestic water would be available to all lots prior to final plat approval (Revised Code of Washington (RCW) 58.17.110) and to each lot prior to building permit issuance (RCW 19.27.097). Findings Nos. 29, 82, 83, 84, 85, and 86.


d. As conditioned, individual on-site enhanced septic systems would comply with all County requirements. A condition of approval would ensure that the property owners’ association retains a single certified monitoring specialist to maintain and track maintenance for the enhanced septic treatment systems to be installed on each lot. Findings Nos. 27, 28, 74, 75, 76, 77, 78, 79, and 80.

e. Conditions of approval would ensure that school impacts are mitigated. Children

would be bussed to area schools. Conditions would ensure that a paved pedestrian path would provide safe walking to an off-site bus waiting area. The proposal would not result in adverse impacts to public services. Findings Nos. 35, 40, and 41.

4. With conditions of approval, the public use and interest will be served by the

platting of the subdivision.

a. The density of this project is consistent with the PRRD use as allowed in the RRR 1/5 zoning district on the date the applications for land use vested. Pursuant to applicable Washington law, the Applicant is entitled to development consistent with the regulations in effect as of the date of complete application. In setting aside 85% of the gross site area for resource use, the project qualifies for a 65% density bonus. The proposed density comports with applicable zoning development regulations and is considered a rural residential low intensity development. Findings Nos. 20, 21, and 22.

b. The proposed project design creates a large, contiguous resource parcel and prohibits

all development activity outside the floodplain of the adjacent Deschutes River and outside of the required buffers for Ayer and Elwanger Creeks. Findings Nos. 22, 23, and 26.

c. Pursuant to current Washington State land use law, the County can only condition the

plat to mitigate problems created by the development itself. The County does not have authority to require the Applicant, as a condition of permit approval, to provide fencing to protect off-site forestry operations from speculative general trespassing. The Applicant has objected to a fencing requirement but has agreed to post ‘No Trespassing” signs along the shared boundary of the southern residential cluster with the forestry operation to the south. Exhibit 38; RCW 58.17.110; Isla Verde Int’l Holdings v. City of Camas, 146 Wn.2d 740 (2002).

d. The proposal contributes to a permanent 600-foot no-disturb buffer around the location of the active heron rookery and osprey/eagle nest site, as reviewed and approved by the WDFW. All outdoor construction activities would be restricted within 1,000 feet of the heron rookery during active nesting between February 15 and June 30. This seasonal restriction would be subject to amendment based on results of field inspections conducted by WDFW and/or Thurston County, consistent with the WDFW-approved habitat management plan for the project. All habitat management and critical area buffers would be signed and fenced. Conditions of approval provide


for property owners’ association authority to maintain buffer fencing and signage. The project provides a vegetated wildlife corridor between Wetlands A and B for terrestrial species, fenced with a four-foot split rail fence with a single wire strand to exclude domestic animals. Findings Nos. 18, 19, 37, 42, and 43.

e. With conditions, the project would be consistent with the County’s assimilative

capacity standards for nitrogen in drinking water supplies, increasing the ambient level of nitrates less than 10% of the difference between the existing ambient levels and the State’s MCL of 10 mg/l. As proposed, the project would provide enhanced septic treatment on each lot, which is anticipated to reduce nitrates in septic effluent by approximately 50% over standard septic treatment, thereby reducing potential impacts to the adjacent critical areas as well as ground and surface waters. An IPMP has been drafted for the project and a condition of approval would ensure that it is approved and distributed as required to all future homeowners. Future property owners would be notified of critical area restrictions by a note on the face of the plat and by information in the project’s covenants. Findings Nos. 27, 28, 76, 77, 78, 79, 80, and 81.

DECISION

Based on the preceding findings and conclusions, the plat and PRRD applications are GRANTED, subject to the following conditions:

A. The plat map shall be revised to provide a 200-foot buffer around all bog-like features on-site including Wetlands E and A. This would result in an amended lot layout and possibly in a reduction in the number of residential lots.

B. The proposed roadway shall conform in concept and design to the 1999 Thurston County

Road Standards and development guidelines.

C. Pursuant to TCC Chapter 18.24, prior to final submittal the Applicant shall execute an agreement and provide a financial security to assure successful operation of the required improvements (i.e., roads, sidewalks, illumination, landscaping, etc.). Improvements not covered by this agreement are water, sewer, and stormwater facilities. These are addressed either by separate county ordinance or, in the case of the water and sewer utilities, by the utility purveyor.

D. The stormwater management system shall conform to the 1994 Thurston County

Drainage Design and Erosion Control Manual and Title 15.05, Thurston County Code.

E. A two-year operation and maintenance agreement and financial security for stormwater shall be executed prior to final submittal.

F. Prior to final submittal, a maintenance agreement found in Appendix K of the Drainage

Design and Erosion Control Manual must be prepared for this project and recorded.


G. A property owners’ association shall be formed. The document creating the Property Owners’ Association shall at a minimum make provision for the following:

1. Members of the property owners’ association shall be responsible for maintenance of

storm drainage facilities as described in the maintenance plan (See Section 3.3);

2. The agreement shall include by reference the maintenance manual prepared by the Project Engineer in accordance with Section 3.3; and

3. Power to assess fees to maintain storm drainage facilities and sanctions in the event

that jurisdiction takes action to maintain facilities. Refer to Appendix E, Section E.2 of the Drainage Design & Erosion Control Manual for sample language.

H. The extension of Ayer Street SE (identified on the plat map as Streets B and G) shall be

dedicated to Thurston County as public roads. All other roads created by the Keeneland Park PRRRD shall be private roads, maintained by the property owners’ association.

I. The Applicant shall complete construction of proposed widening to Ayer Street SE and

associated intersection improvements at Ayer Street SE and 83rd Avenue SE prior to final plat approval. The intersection improvements shall include lighting consistent with Thurston County Road Standards Section 8.05. A complete set of construction drawings for the intersection improvements shall be submitted to Thurston County for review and acceptance prior to commencement of construction.

J. The Applicant shall complete the construction of the proposed improvements to the

intersection of Rixie Street SE and 78th Avenue prior to final plat approval. The intersection improvements shall include lighting consistent with Thurston County Road Standards Section 8.05. A complete set of construction drawings for the intersection improvements shall be submitted to Thurston County for review and acceptance prior to commencement of construction.

K. Due to potential adverse impacts to critical area associated with vehicle, pedestrian, and

pet traffic, the existing gravel road linking the two residential clusters shall be restricted to emergency access only. Breakaway gates or similar devices approved by the fire department shall be installed at each end of the access road. The gate locations and a note stating “Emergency Access Only” shall be placed on the face of the final plat. The Applicant (or successor in interest) shall maintain the emergency access road consistent with applicable federal, state, and local regulations governing maintenance activities due to the location of the road within a critical area.

L. Proposed utility work within Thurston County right-of-way shall conform to the 1999

Thurston County Road Standards and Title 13.56, Thurston County Code. These standards do not address specific City design requirements, but rather items such as restoration of the County right-of-way and traffic control.


M. Placement of utilities within the County right-of-way requires a Franchise Agreement with Thurston County pursuant to Title 13.56, Thurston County Code. This agreement shall be executed with Thurston County prior to final plat submittal.

N. Please note all utilities placed parallel to and within the pavement structure are required

to rebuild a minimum of half the road, to include grinding and replacement of a minimum 0.20’ of asphalt concrete pavement.

O. The proposed grading or site work shall comply with Appendix J of the International

Building Code, Title 14.37 of the Thurston County Code, and the 1994 Drainage Design and Erosion Control Manual.

P. Permanent survey control must be placed to establish all public street centerlines,

intersections, angle points, curves, subdivision boundaries and other points of control.

Q. All stormwater shall be treated and retained onsite. Release shall be metered at pre-existing rates. There shall be no discharge of sediment laden or contaminated water runoff to the wetlands, streams, or floodplain.

R. Prior to final plat submittal, the new Group A public water system for this subdivision

must be completed and receive final construction approval from the Washington State Department of Health, Office of Drinking Water. Written confirmation of final water system approval must be received from the Washington State Department of Health prior to final plat submittal.

S. A copy of a signed, notarized, and recorded declaration of covenant form (public water

supplies) must be received by this department along with a scaled site plan prior to final plat submittal.

T. Prior to final plat submittal copies of signed, notarized, and recorded restrictive covenant

forms (non-public) along with scaled site plans must be submitted for each of the neighboring wells that are located within 100 feet of this property.

U. Prior to final plat submittal a finalized Integrated Pest Management Plan (IPMP) must be

submitted for this subdivision. This finalized IPMP must be approved and a proposal for the method of IPMP distribution to future property owners must be submitted and accepted prior to final plat approval. [Typically, this is done by including the IPMP into the covenants and restrictions (CC&R’s) for the subdivision; however other methods of distribution will be considered.]

V. Prior to final plat submittal, all existing wells on this property (excepting the existing

well for the new public water system) must be decommissioned per WSDOE regulations and standards by a licensed well driller. Copies of the well driller’s decommissioning reports (well logs) must be received by Thurston County Environmental Health Division.


W. All existing on-site sewage systems on this property must be abandoned per the requirements and standards of Article IV of the Thurston County Sanitary Code prior to final plat submittal. An abandonment permit is required for each sewage system (no fee if associated with a subdivision application). Thurston County Environmental Health Division must receive appropriate abandonment documentation, prepared by a licensed septic pumping company, for each system that is abandoned.

X. The Applicant proposes enhanced treatment technologies that are approved for use and

registered with the Washington State Department of Health for nitrogen reduction. The project as proposed meets the Thurston County assimilative capacity requirements for nitrogen loading to ground water. The following conditions shall be placed in a note on the face of the final plat map:

• Nitrate treatment devices registered by the Washington State Department of

Health shall be incorporated for each on-site sewage system design. The property owners’ association for this plat shall be responsible for hiring a single certified monitoring specialist to monitor and maintain the on-site sewage systems within the subdivision. Sewage system service contracts between each lot owners and the property owners’ association certified monitoring specialist will be required prior to sewage system permit issuance. Operation and maintenance certificates, which specify the maintenance and monitoring requirements of each sewage system, will be required at the time of sewage system final construction approval, and shall be renewed in accordance with the provisions of Article IV.

Y. The final design of this subdivision and future development of lots shall conform to all

minimum standards of the Zoning Ordinance (i.e. lot size, lot dimension, setbacks, etc.) and the Platting and Subdivision Ordinance in effect on the date of vesting.

Z. Prior to final plat submittal, if the access easements located in the southeast portion of the

subject parcel are not released, extinguished, or abandoned by the Pattons, the Applicant will be required to apply for a plat amendment to remove the lots affected by the location of easement or to reconfigure the lots and potentially the road system.

AA. All stormwater facilities shall be located outside all critical areas and associated buffers.

This includes retention/detention ponds, treatment swales, and dissipation trenches. Based on site plans received to date, this may require reconfiguration of lots through a plat amendment to allow room for stormwater facilities outside the wetland buffers. Wet pond treatment and infiltration is the preferred stormwater design to minimize water quality impacts to the wetland (TCC 17.15.900).

BB. Prior to issuance of a Thurston County grading permit for the site, the Applicant shall

submit a copy of the NPDES permit issued by the Department of Ecology for construction of stormwater improvements associated with the project, including any TMDL requirements that may apply.


CC. Water quality in the Deschutes River and Ayer Creek is currently under study and review by the Department of Ecology. The Applicant shall grant Thurston County and the Department of Ecology access to the property to establish baseline water quality at Ayer Creek and to conduct ongoing water quality monitoring at the same point for a period of five years following completion of construction at the County or Department’s sole burden and expense.

DD. All wetland buffer locations shall be located and surveyed in the field. Field inspection

by Thurston County staff is required prior to any infrastructure work onsite.

EE. Construction fencing shall be located along the entirety of the development envelope prior to construction commencement. All protective fences must be in place before any stump removal and site clearing begins and shall only be removed after construction is complete.

FF. Proper and effective erosion and sediment control practices shall be used on the

construction site and adjacent areas to prevent upland sediments from entering the critical areas. All areas disturbed or newly created by construction activities shall be seeded, vegetated, or given some other equivalent type of protection against erosion. Proper disposal of construction debris shall be performed such that the debris cannot enter the wetland, stream or cause water quality degradation of State waters.

GG. Pursuant to TCC 17.15, prior to any clearing or construction on the site, the perimeter of

the critical area buffer that contains the Deschutes River, Ayres/Elwanger Creek, high functioning wildlife habitat management Areas, associated floodplain, associated high groundwater areas and buffers, steep slopes and buffers, wetlands and wetland buffers shall be permanently fenced and marked with metal signs that identify the area as a critical area.

1. The purpose of the fencing and signs is to inform property owners of the presence

and importance of the protected critical area, limit pet and human intrusion into the wetland and buffer areas in order to protect water quality, vegetation, and minimize impacts on wildlife; and provide a physical demarcation for clearing limits.

2. A template for critical area signs can be obtained from Thurston County

Development Services Department. The signs shall be attached to treated wood or metal posts or another material of equal durability. These signs shall be located at the point where lots intersect with the buffer, at corners where the buffer makes a change of direction, and/or within 50 feet of each sign whichever is less.

3. The fence, along with the signs, shall be constructed to help identify the edge of

the buffer in order to avoid disturbance and construction within these areas. Fencing shall be continuous and constructed to demarcate the buffer edge, provide visual openness to minimize intrusion into the buffer, and prevent pets from


accessing the wetland buffer and disturbing and harassing wildlife. The fencing and signs shall extend along the gravel road within the buffer that connects the two clusters to prevent future widening or disturbance and protect the existing buffer. As an alternative to continuous fencing of the entire road, eight-foot fencing sections with 20-foot gaps, or frequent signs (75 feet apart) along the road may be substituted for the continuous fencing within this area (TCC 17.15.300, 900). A fencing plan shall be submitted and approved by Thurston County prior to any work on the property.

HH. Areas within the wetland buffer have been impacted by current uses and will continue to

be impacted by proposed uses. This includes maintenance of the gravel road to the RUP and between the two clusters. It also includes the area of the recently constructed well and previous gravel mine. Impacts to the wetlands and buffers from existing and continued uses such as roads, the public well site, and removed structure areas shall be mitigated by implementing a mitigation/revegetation plan. The mitigation plan shall include mitigation measures including removal of road fill between wetland A and E, and, revegetation/restoration of disturbed areas adjacent to the well site, road access areas and when the existing structures are removed. It may also include enhancement of wetland buffers on the western portion of the resource parcel, if necessary. Proposed mitigation shall include a maintenance and monitoring plan which shall be submitted to the County for review and approval as a condition of preliminary plat approval. Implementation of the mitigation plan shall be complete prior to final plat submittal. A letter of credit for 120% of the mitigation value, including labor, monitoring and maintenance shall be submitted prior to final plat submittal (TCC 17.15.900).

II. Mitigation monitoring reports shall be submitted annually for a minimum of three years

from the date of planting. If revegetation is not successful, additional monitoring may be required (TCC 17.15.900).

JJ. All agriculture activities shall be located outside the critical areas and their buffers. Any

additional agricultural activities beyond those evaluated in the FEIS will require review and approval by Thurston County Development Services.

KK. The Applicant has defined several wetlands as unregulated by Thurston County Code

Critical Areas Ordinance (TCC 17.15). They include Wetlands C, D, F, H, I, J. However, State and Federal jurisdiction over the wetlands still may prevail. All delineated wetlands, including those identified above, shall be shown on all engineering plans, drainage plans, grading plans, and site plans prior to final plat submittal. Prior to any activity onsite that includes filling or impacting the wetlands, the Applicant shall obtain required permits from the Army Corps of Engineers or Washington State Department of Ecology. Prior to any clearing, grading, or building permit issuance that proposes to impact any wetland, evidence of said permits from, or consultation with, the appropriate state or federal agency shall be submitted to Thurston County.


1. If state/federal permits have not been issued at the time of final plat approval, all delineated wetlands shall be identified on the final plat map. Additionally, a condition recorded on the final plat map and associated lots, including the resource parcel, with the requirement that a state/federal permit, if required by law, shall be obtained prior to disturbance.

LL. Prior to final plat submittal, the Applicant shall submit an agreement with the Tumwater

School District that provides mitigation for the project’s impacts to school facilities. Based upon the District’s adopted capital facility plan, the mitigation fee per single-family unit will be $3,464.

MM. Prior to final plat submittal, “No Trespassing” signs shall be posted along the rear

property lines of cluster lots 7 through 17 and at the area where Street G stubs to the Patton’s parcel.

NN. A pedestrian path shall be installed on the west side of the swale running parallel to Street

B of the subject site. This condition can be satisfied with the provision of a six-foot paved shoulder.

OO. In order to protect the proposed wildlife corridor along the northern boundary of the

residential subdivision and limit intrusion by domestic animals, fencing shall be installed along the corridor prior to final plat approval. The required fencing shall at a minimum be low split-rail board or vinyl fencing at least three-feet in height or solid wood fencing. If open fencing is used, solid wire strands shall be included to inhibit dogs from entering wetland buffers. Signs shall be installed at the intersection of the wildlife corridor and the roadway, warning vehicles of the wildlife crossing. The signs shall state at minimum “Slow - Wildlife Crossing”. At least two informational signs shall also be installed for pedestrians stating that “human and domestic animal access is prohibited” and that the purpose of “the wildlife corridor is to allow free passage of wildlife, including small mammals and amphibians, birds etc. to travel between the wetlands on-site” (or similar language). These signs shall be installed so as to be visible from the proposed public roadway.

PP. Approval of the preliminary plat is effective for five years from the date of approval,

during which time a final plat must be submitted to the Board of County Commissioners for approval. A one-year extension period may be granted by the Development Services Department.

QQ. The final plat map shall note the following:

1. This subdivision was reviewed and approved based on standards and allowances of the Rural Residential/Resource One Dwelling Unit Per Five Acre Zoning District (RRR-1/5) (TCC 20.10) and the standards of a Planned Rural Residential Development. (PRRD) (TCC 20.30A).


2. This plat was reviewed through Project No. 2004102027, Folder Sequence No. 04 106260 ZJ.

3. In accordance with the Thurston County Comprehensive Plan policy related to

schools and the Washington State Growth Management Act, the Applicant shall mitigate the impact of additional students on schools serving the development. Mitigation for these impacts must be negotiated with the Tumwater School District. Prior to issuance of building permits for the individual homes, evidence shall be provided to the Development Services Department that school mitigation fees in the amount of $3,464 per single-family unit have been paid.

4. Buildings on individual lots adjacent to the wetland buffers and resource parcel

should be sited and constructed upland at a point where trees within the buffers areas will not be considered hazard trees. This will provide additional protection in order to keep the buffer zones intact.

5. Wetlands, marshes, bogs, and swamps are designated as "critical areas" per the

Thurston County Critical Areas Ordinance, TCC 17.15. All wetland buffer locations shall be located and surveyed in the field and shown on the Final Plat Map. Field inspection by Thurston County staff is required prior to any infrastructure work on site. As a condition of approval, the following note shall also be placed on the final plat map:

This property contains and is adjacent to wetlands, which are designated

as critical areas in Thurston County and protected under the Thurston County Critical Areas Ordinance 17.15. Due to the importance of these wetlands for wildlife habitat, pollution control, ground water recharge and flood water storage, no clearing, filling, grading, logging, native tree or vegetation removal or other construction activities shall be allowed within the wetlands or buffer areas except where exempted by and when prior authorization is obtained from Thurston County Development Services.

6. A single family home is proposed for the resource use parcel. Based on the extensive

critical areas, the preferred location for a new home site in the RUP should be in an area where the wetlands and associated buffers will not be impacted by the ingress/egress or utility easement. At time of permit issuance of the single-family residence located in the resource use parcel, the maximum area of the building envelope for the residence, uses, or accessory structures, excluding the septic system, well, or well house, shall not exceed 43,560 square feet in a block-sized configuration. The area may not be expanded by creating loops or odd shapes to manipulate the size of the building. Agricultural structures within the limitations of the FEIS criteria (2-6 horses, personal use haying in the upland areas) may be located outside the building envelope (Thurston County Policy No. ZONE.POL.802.00).


7. This property contains high groundwater hazard areas. These areas shall be shown on the final plat map along with the 50-foot no disturb setback and the 300-foot management area. Impervious area on lots within the 300-foot management area shall be limited to 35%. Impervious areas include paving, gravel and structures. All lots within the 300-foot area shall be identified prior to final plat submittal and the limitation of the 35% impervious recorded on each property as well as the final plat map.

8. The property contains highly valuable wildlife habitat including nesting areas for blue

heron, osprey, and the bald eagle. A habitat management plan has been prepared by WDFW. All elements of the final habitat management plans shall be implemented and adhered to during and after development of the site. This includes no construction or activity within the 1000-foot buffer from February 15 through June 30 of each year if warranted by required monitoring. Determination of activity allowance shall be made by Thurston County and WDFW using a precautionary approach to protecting wildlife habitat. Inspections for nest activity shall be coordinated with WDFW and Thurston County Planning staff. Additionally, a no disturb 600-foot buffer will be protected and enhanced with planting of additional trees.

9. The property owners’ association is bound to the requirements of the final habitat

management plan(s) included in the FEIS and shall include the reports as part of the covenants.

10. The final habitat management plan(s) shall be recorded with the Thurston County

Auditor’s Office prior to final plat submittal and shall be referenced on the final plat map with the Auditors File Number.

11. The proposal lies adjacent to the Deschutes River, and Elwanger/Ayer Creek which is

a shoreline within the jurisdiction of the Shoreline Management Act of 1971 (RCW 90.58) and the Shoreline Master Program for the Thurston Region (SMPTR). Approval of this project does not exempt the Applicant from meeting the requirements of the SMPTR or the Act pertaining to development within a Conservancy Shoreline Environment. The boundary of the shoreline jurisdiction is: (a) 200-foot horizontal distance from the edge of the ordinary high-water mark; (b) the edge of the 100-year flood plain based upon the Flood Insurance Rate Map; or (c) the edge of wetlands associated with the floodplain and the Deschutes River, whichever is greater. Therefore the following shall be depicted on the final plat map:

a. Those areas within the Shoreline Management Act jurisdiction, including, b. The extent of the 100-year flood plain. c. The extent of the associated wetlands

12. Wetlands, streams, floodplain, and geologic hazard areas are designated as critical areas in Thurston County. Due to the importance of these critical areas for wildlife


habitat, pollution control, groundwater recharge, and floodwater storage, no additional, clearing, homes, onsite septic systems, wells, grading, filling, logging or any other development or construction activities are allowed within the wetland, streams or their associated buffers without further review by the Thurston County Development Services Department.

13. Forestry and/or agriculture are anticipated within the resource use parcel and on the

adjacent parcel to the south. Potential homeowners shall have notice that there may be impacts from noise or dust during the logging or farming operations.

14. Critical area administrative review and approval by the Thurston County

Development Services Department is required prior to any agricultural activity within all critical areas and associated buffers, including and not limited to wetlands, floodplain, Type III streams, and any associated tributaries (TCC 17.15).

15. Portions of the property contain areas designated as steep slopes under the CAO

17.15. These areas and their 50-foot top-of-slope undisturbed buffer shall be identified on the final plat map. The following statement shall be included as a condition of approval:

This property contains steep slopes as defined under the CAO 17.15. These slopes require a 50-foot setback from the top of the slope. It appears that the majority of the steep slopes and their buffers are located within the wetland buffer areas. However, if that is not the case, the most restrictive buffer shall apply. There shall be no disturbance of the steep slope or the 50-foot setback.

16. The following notation shall be placed on the final plat map:

No clearing, grading, filling or other construction activities shall be allowed within the Shoreline Master Program jurisdiction except where exempted by and when prior authorization is obtained from Thurston County Development Services Department.

17. All future site development shall comply with the habitat management plan. All property owners are responsible for complying with the requirements of this plan.

18. This subdivision has been approved through the provisions of the Thurston County Zoning Ordinance, 20.30A. The resource use parcel is required by the ordinance and approved for use as critical area preservation, forestry and agriculture. These restrictions remain in force until the property is annexed to a city or town.

19. ATTENTION: Thurston County has no responsibility to build, maintain, or otherwise

service the private road or driveways within or providing access to property described in this plat. The building, maintenance, repair, improvement, operation, or servicing


of the stormwater facilities outside the county rights of way are the responsibility of the property owner(s).

20. Increased stormwater runoff from the road(s), building, driveway and parking areas

shall be retained on-site and shall not be directed to roadway ditches adjacent to Ayer Street.

21. If seasonal drainage crosses the subject property, no filling or disruption of the natural

flow shall be permitted.

22. Storage requirements for runoff from buildings and parking surfaces shall be shown on individual building lots, including drywell sizing or storm drain connection points.

23. Maintenance of the required landscaping within the public right of way is the sole

responsibility of the homeowners association within this subdivision. Thurston County has no responsibility to maintain or service said landscaping.

24. This plat is subject to the Stormwater Maintenance Agreement recorded under

Auditor’s File No. _____________. RR. The following features shall be shown on the final plat map:

25. The public well for this plat must be shown and clearly identified on the final plat map along with the 100-foot sanitary control radius and all water line and access easements throughout the subdivision.

26. The road to be abandoned must be shown on the final map and labeled as such.

27. All delineated wetlands shall be labeled (e.g., Wetland A, Wetland B) and shown on

the final map.

28. The bog/fen located in portions of Wetland A and Wetland B shall be labeled on the final map.

29. Elwanger Creek must be shown on the final map as it flows to the west and

Ayer/Elwanger Creek shall be labeled correctly. [There is no reference to Ayer Creek on the preliminary plat map.]

30. All existing, off-site wells that are within 100 feet of this property must be shown on

the final plat map along with their 100-foot sanitary control radii. 31. The wetland, Type III stream, floodplain, geologic hazard area boundaries, and

associated undisturbed vegetative buffers shall be surveyed and placed on the recording and construction documents.


32. The bus waiting areas as approved by the Tumwater School District shall be shown and labeled on the face of the final map.

33. Street addresses, lot size, and dimensions for each lot shall be shown on the final

map.

34. The natural gas line shall be shown to scale on the final map.

35. All public and private roads shall be clearly delineated and labeled on the face of tine final plat.

36. All waterline and access easements for the Group A public water service must be

shown on the final map. SS. This approval does not relieve the Applicant from compliance with all other local, state

and/or federal approvals, permits, and/or laws necessary to conduct development activity for which this permit is issued. Any additional permits and/or approvals shall be the responsibility of the applicant.

TT. All development on the site shall be in substantial compliance with the approved plat.

Any alteration of this site plan will require approval of a new or amended plat. The Planning and Environmental Section will determine if any proposed amendment is substantial enough to require Hearing Examiner approval.

DECIDED this 3rd day of September 2008.

HEARING EXAMINER - Thurston County | Home · 2011-03-14 · Findings, Conclusions, and Decision...

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Transcript of HEARING EXAMINER - Thurston County | Home · 2011-03-14 · Findings, Conclusions, and Decision...