City of Bellingham v. Ecology, CLN LLC, Gordon & Carol Iverson, and Christopher and Nancy Secrist
Appeal of Construction Stormwater General Permit issued for proposed road construction
This case involved two appeals of a decision to issue coverage under the Construction Stormwater General Permit to CLN, LLC for stormwater discharges during construction of a road to access 26 existing 20-acre lots. The Appellants, City of Bellingham and Squalicum Valley Community Association, were primarily concerned with potential water quality impacts to Lake Whatcom, an impaired water body. The parties identified 9 issues for this consolidated case. Ecology and CLN moved for summary judgment.
On summary judgment, the Board concluded the review of the SEPA threshold determination, which was issued by the County along with the County grading permit required for the project, should be reviewed along with the grading permit in Skagit County and not by this Board. The Board also concluded that Ecology correctly relied on the County’s SEPA threshold determination under WAC 197-11-600(3) and was not required to duplicate the County SEPA process. Further, the Board concluded based on the plain language of WAC 197-11-390, that Ecology was not required to wait to issue a decision on the coverage application until the conclusion of all judicial review of the County’s SEPA determination had been completed. On the other issues in the case pertaining to impacts to water quality, however, the Board concluded there were contested issues of fact, and held these issues over to hearing.
The Board conducted a two day evidentiary hearing on May 24 and 25, 2012. The Squalicum Valley Community Association did not participate in the hearing. The Board heard testimony from several expert witnesses regarding CLN’s plans for controlling potential stormwater discharges during the construction of the road. The Board also considered the requirements of the Construction Stormwater General Permit. The Board concluded that the General Permit limits discharges into a 303(d) listed water body to a turbidity of 25 NTUs or less. Lake Whatcom is a 303(d) listed water body. The Board went on to conclude that discharges from this site, if any even occurred, were very unlikely to exceed this standard. The Board based this conclusion on the combination of the conditions on the permit restricting construction activities to the dry season, the proactive use of BMPs, and resort to dispersion through the available forested acres on the site if necessary. Therefore, the Board concluded that Ecology’s decision to issue coverage under the General Permit was appropriate and the Board affirmed Ecology’s decision.