BEFORE THE SHORELINES HEARINGS BOARD

STATE OF WASHINGTON

 

ROSARIO GEOSCIENCE                           )          

ASSOCIATES,                                               )

                                                                        )

                                    Appellant,                   )           SHB No. 93-50

                                                                        )

            v.                                                         )           FINAL FINDINGS OF FACT,

                                                                        )           CONCLUSIONS OF LAW AND

CITY OF ANACORTES and                        )           ORDER

PORT OF ANACORTES,                             )

                                                                        )

                                    Respondents.             )

____________________________________)

 

            The Shorelines Hearings Board (“Board”) heard this case on July 25, 26, and 27, 1994.  The first day of the hearing was in Anacortes, the remaining days of the hearing were held in the Board’s hearing room in Lacey, Washington.

            The appellant was represented by its principal Ross O. Barnes.  The Port of Anacortes was represented by its attorney Leslie A. Johnson.  The City of Anacortes was represented by its attorney Stephen Mansfield.

            The Board was comprised of Robert V. Jensen, Richard C. Kelley, James A. Tupper, Jr., Bobbi Krebs-McMullan, Martin Carty and Judith Barbour.  Mr. Tupper presided.

            Court reporting services were provided by Gene Barker & Associates of Olympia, Washington.

            On the first day of the hearing the Board conducted a site visit.  The Board thereafter considered the prehearing brief filed by the Port of Anacortes, testimony and exhibits offered by the parties.  Based on this review, the Board enters the following

FINDINGS OF FACT

I.

            This case involves modest improvements to the South Harbor Park in Anacortes, Washington.  The park is owned by the Port of Anacortes (“Port”).  It is located immediately south of the Cap Sante Marina.  Development of the park was anticipated as part of the Port's comprehensive plan for the marina basin adopted in 1984.  The park was officially dedicated and opened to the public in 1986.  Revisions to the comprehensive plan adopted in 1990 contemplate further development of the South Harbor Park.  The park is one of the few public access points to the shoreline of Fidalgo Bay in Anacortes.  The proposed improvements will also establish the only small boat launch facilities on Fidalgo Bay.  The Port has proposed to make the launch facilities accessible to handicapped boaters.

II.

            The park is located on the site of a former timber mill.  Like much of the town of Anacortes fronting Fidalgo Bay, the site had been used from the turn of the century for a variety of milling operations.  The shoreline and uplands at the park consist of fill and waste from that industrial use.  The park site is approximately 650 wide from north to south.  The shoreline meanders with a point of land approximately in the center.  On either side of the point are two pocket beaches.  The fill material consists of old piling, wood planking, sawdust, scrap metal and bricks.  The beach fronting the point dominated by a layer of brick, cobble and wood planking.  This is not an attractive beach.  Much of the beach is covered with large size cobble, bricks and wood waste.  A portion of the beach north of the point contains black staining from leachate further described below.  The nature of the fill is also exposed from the beach looking back to sheer edge of the fill.  Environmental  site assessments conducted on behalf of the Port have found pockets of petroleum contamination and some limited contamination of soil with heavy metals and organic compounds.  With the exception of petroleum contamination, all of the soil contamination found is below industrial cleanup standards under the Model Toxics Control Act.  WAC 173-340-745.  The Port is currently developing an independent cleanup plan for submission to the Department of Ecology that will address soil contamination.

III.

            On March 30, 1993, the Port applied to the City of Anacortes (“City”) for a shoreline substantial development permit.  The proposed use under the application includes the construction of a public access float for handling small craft and mooring buoys for transient boaters.  The float will be anchored to the shore by a concrete pad that is protected by rip rap.  On March 30, 1994, the Port also issued a Determination of Non-Significance (“DNS”) under the State Environmental Policy Act ("SEPA").  RCW 43.21C.031.  The DNS was based on a checklist that disclosed that the site had been previously operated as a mill and that some form of erosion control was required to support the concrete pad for the float.  On may 26, 1993, the City granted the application and issued Substantial Development Permit No. 208.

IV.

            The Port received three comment letters on the DNS.  Two of those letters came from the present appellant.  The concerns raised in that letter, and asserted at the final hearing, may be categorized under two issues:  (1) the threat to human health posed by exposure to hydrogen sulfide; and (2) the impact of the proposed rip rap on the shoreline.

V.

            Hydrogen sulfide present at the site results from the decomposition of wood waste.  In significant concentrations, 50 to 500 ppm, hydrogen sulfide can cause nausea and headaches.  In high concentrations, 500 to 2000 ppm, hydrogen sulfide may cause paralysis and death.  In small concentrations, however, the chemical is characterized by a rotten egg smell and is relatively harmless.  Hydrogen sulfide depends on anaerobic conditions.  When brought into contact with oxygen, in either air or water, the substance rapidly breaks down to non-toxic materials.  In the words of the appellant, "hydrogen sulfide is rapidly destroyed in the presence of oxygen."  Hydrogen sulfide is also dependent upon pH.  In water with a pH of 8 up to 94% of any hydrogen sulfide will ionize to a less toxic bisulfate form.  Marine sediments in Puget Sound typically have a pH of 8.

VI.

            Hydrogen sulfide is present at the park site underlying the wood waste fill.  Leachate seeps from the woodwaste at the upper levels of the beach contain hydrogen sulfide.  This is in part evident from staining on the beach from a black leachate.  These seeps are only present during periods of low tide.  During high tide any hydrogen sulfide in the leachate would dissipate upon contact with salt water.  Even during low tide any hydrogen sulfide in the leachate would break down from contact with air, saltwater and marine sediment.  Ambient readings of hydrogen sulfide at the park taken by representatives of the Northwest Air Pollution Authority and the Port's consultant have never exceeded 1 ppm.  At the appellant's request, readings were taken immediately above wood waste from holes dug into the material.  Hydrogen sulfide concentrations from these readings reached and may have exceeded 10 ppm.  There is no indication, however, that these readings reflect potential ambient air conditions on the beach and thus a threat to human health.  Further, there is no indication that the hydrogen sulfide found at the park is atypical of other beaches along Puget Sound where hydrogen sulfide results from the decomposition of wood waste and other organic material such as algae.

VII.

            A report authored by the appellant, estimating concentrations of hydrogen sulfide at higher levels, is contradictory and simply speculative.  For example, Dr. Barnes claims that under "real conditions" concentrations of sulfide in the boundary layer of air in contact with the leachate could reach 5.8 ppm.  This conclusion assumes a leachate pH  of 8.  Earlier in the report, however, Dr. Barnes assumes that at pH 8 there would be almost no hydrogen sulfide.  Dr. Barnes’ ultimate conclusion is that measurements by the NWAPA and the Port's consultant verify his calculations.  The testimony of the Port's consultant was that hydrogen sulfide at those concentrations did not pose a significant threat to human health or the environment.  Appellant did not present any challenge to this testimony other than work place safety regulations which are not applicable to an unconfined open air setting of a public park.  There is no indication, in any case, that Dr. Barnes is qualified by experience or training to opine on the matters set forth in his report.  We do not find his testimony and report credible or reliable.

VIII.

            We next address the appellant's concerns about shoreline stability.  Appellant argues that the water-ward point of land at the beach is a "feeder bluff" that is dynamically linked to pocket beaches on either side.  Over the course of the past thirty years this point has eroded land-ward approximately 110 feet.  Appellant argues that the rip rap, as depicted in the design drawings accompanying the permit application, will be subject to undercutting as the point is subject to further erosion.  According to the appellant, this design will fail and accelerate erosion on the point and in the pocket beaches.  The testimony and exhibits introduced by appellant on this issue are not persuasive.

IX.

            The more compelling testimony came from representatives of the Department of Ecology.  We find that there is no significant down cutting of the beach level from erosion as assumed by appellant.  This is evident from the large amount of cobbles, brick and lumber found on the beach at the point.  This material forms a barrier to down cutting of the beach.  It is also doubtful that the future will bring further erosion of fill at the point.  While the shoreline may have retreated an average of four feet a year in the past, there is no reason to assume that it will continue to erode at that rate.  Nor is the point of land properly described as a feeder bluff.  Feeder bluffs are typically glacial deposits of sand and gravel.  Fill material, at a relatively shallow level, does not constitute a feeder bluff.  Moreover, there is no indication that fill material eroded from the point is deposited in the pocket beaches as opposed to deeper water.  As such, the appellant has failed to show any meaningful dynamic relationship between the pocket beaches and the point.

X.

            The proposed rip rap is not intended to stabilize the shoreline of the point except to protect the toe of the concrete pad that will anchor the float.  The design concept has the approval of the Department of Ecology because it will not require any filling below the line of the  ordinary high water mark.  In fact, the design will require some down cutting of the upland area to obtain the proposed slope of the rip rap.  Another feature of the design important to representatives of the Department of Ecology is the intention to bury the toe of the rip rap and back fill with cobbles similar in size and grade to  what is currently found on the beach.  It appears that there is little likelihood of this design failing except in extreme storm events.  Given the design, however, there would be no difficulty in maintaining the toe protection by laying in new rip rap and cobble.  We find that the appellant has failed to show that the proposed rip rap will in anyway be a detriment to the shoreline environment.

XI.

            In the end, the Board is confronted with a proposal for modest improvements to a somewhat unpleasant little beach.  The sum of the proposal, as it directly impacts the shoreline, is to construct a concrete pad to anchor a small boat float.  This proposal will not create or exacerbate any problem with hydrogen sulfide.  If anything, it will promote additional monitoring and protection of whatever limited threat to human health there may be from use of the beach.  Nor will the proposal significantly impact the dynamics of the beach or shoreline.  If there is any threat to shoreline from erosion, it would be to the stability of the proposed concrete pad.  As designed, however, this is doubtful and easily dealt with if necessary.

XII.

            Any conclusions of law deemed to be  conclusions of  law are hereby adopted as such.

 

            Based on these findings of fact, the Board hereby enters the following conclusions of law.

CONCLUSIONS OF LAW

I.

            The Board has jurisdiction over this matter under RCW 90.58.180

II.

            Appellant raises a number of legal issues that may be considered in four categories: (1) compliance with SEPA; (2) consistency with the City of Anacortes Shoreline Master Program; (3) consistency with the policies of the Shoreline Management Act; and, (4) violation of other state laws and regulations.  At the time of the hearing appellant withdrew his contention that the City or Port violated the appearance of fairness doctrine.

III.

            Appellant's contentions relating to SEPA revolve around the adequacy of disclosures and alleged misrepresentations in the environmental checklist and appropriateness of the DNS determination.  Appellant contends that the checklist should have more thoroughly disclosed the nature of waste material on the site and the fact that the site was previously used for industrial activity.  We conclude that while the checklist is oblique as to these issues, it does provide sufficient information to place the public on notice that the site was formerly used as a mill and contained fill material from the operation of various mills at the site.  We further conclude that the Port and City had no relevant information at the time of the determination that would have varied the information disclosed in the checklist or should have led to a different determination.

IV.

            Appellant's first issue with respect to the City's master program is the failure to hold a public hearing on the shoreline permit application.  Section 11 of the master program provides:

 

                          As part of the substantial development permit review process, the                                            planning commission may, at their discretion, provide for a public hearing                                    on the application...

City of Anacortes Shoreline Master Plan (“CASMP”) , sec. 11.  Under this provision it is entirely discretionary as to whether the City conducts a public hearing.  There is no evidence that there was any abuse of discretion.  Moreover, the appellant was specifically allowed to testify at the Planning Commission meeting where the permit application was approved.

V.

            Substantively appellant has cited a number of provisions of the City's master program violated by the permit.  Some of these may be summarily disposed of as inapplicable to the permit at issue.  These include use activity regulations for solid waste and landfills.  The proposed use while located at a site containing fill, does not involve the disposal of solid waste or landfill.  Thus those provisions of the local regulations are not applicable.  Appellant also cites the conservation element of the master program goals and objectives and use regulations relating to shore defense work and recreation.

VI.

            The conservation element calls for shoreline development to "preserve, protect, and restore shoreline areas needed for the support of aquatic and terrestrial wildlife..."  CASMP, Goals and Objectives, VI.  The proposed improvements are not contrary to this goal. The proposed concrete pad and supporting rip rap are located above the line the ordinary high water mark.  There will be no adverse impact on wildlife as a result of the project.  There is no question that more could be done to restore this  shoreline.  Given the limited scope of the proposed project, the Board is not inclined to condition the permit by requiring the Port to undertake further restoration efforts.  It is hoped that the Port will work with the Department of Ecology and the Department of Fish and Wildlife to improve shoreline stability across the site, enhance habitat opportunities and address the aesthetic limitations on recreational use of the beach.

VII.

            The shore defense use regulations, CASMP 20.12,  require that the effects of the proposal on adjacent shores be reviewed and determined before construction.  In this case the Port has solicited and obtained the review by the Department of Ecology, Department of Fish and Wildlife and its own engineers on this issue.  There is no evidence that the proposed rip rap will adversely impact adjacent shorelines.

VIII.

            The recreation use regulations in the City’s master program require that recreational developments "be located, constructed, and operated so as not to be a hazard to public health and safety."  CASMP 20.17.  The only issue in this regard raised by appellant was hydrogen sulfide.  Consistent with the foregoing findings, we conclude that there is no violation of this provision by granting the permit.  The recreational use regulations also require that all soils disturbed by use activities which are erodible be stabilized.  We conclude that the design of the concrete pad and rip rap are consistent with this requirement.

IX.

            We similarly conclude that the permit is consistent with the policies of the Shoreline Management Act set forth at RCW 90.58.020.  A fundamental goal of the SMA is to promote public use and access to shorelines of the state.  The proposal is a modest but laudatory step towards achieving this goal within the City of Anacortes.  If there is any fault, it lies in the lack of effort to undertake further work to restore the beach or enhance recreational opportunities at the site.  Given the scope and impact of the project, however, this is not a case where the Board may properly condition the permit by requiring additional work that is unrelated to the proposed use.  It is hoped, however, that the Port will follow through on statements at the hearing that it intends to continue working towards improvement of the site consistent with the policy of the SMA favoring restoration of shorelines of the state.  RCW 90.58.020.

X.

            Appellant contends that the subject permit violates other state laws and regulations.  We conclude that the appellant failed to establish any violation of the other state laws by virtue of existing site conditions or the proposed use.  Among the statutes cited by appellant is the state Water Pollution Control Act, RCW 90.48.010 et seq.  Under this statute appellant alleged violations of ground water quality standards, sediment management standards and water quality standards.  The appellant failed to introduce any evidence that there were violations of any of these regulations.  Appellant also raised an issue during the hearing as to whether the hydrogen sulfide conditions at the site violate the Hazardous Waste Management Act, RCW 70.105.010 et seq.  The HWMA does not apply to the park site unless the Port undertakes to collect and dispose of the material.  Otherwise, the conditions relating to hydrogen sulfide would be regulated by water quality standards or the Model Toxics Control Act. The definition of solid waste subject to the jurisdiction of the HWMA requires some process that produces the material or intent to accumulate, treat or dispose of the material.  WAC 173-303-016.  The decomposition of wood waste and resulting hydrogen sulfide is not within the jurisdiction of the statute.

XI.

            We accordingly conclude that this appeal should be denied.

XII.

            Any finding of fact deemed a conclusion of law is hereby adopted as such.

            Based on the foregoing findings of fact and conclusions of law this Board enters the following

ORDER

            The appeal brought by Rosario Geoscience Associates is hereby DENIED and the issuance of Shoreline Substantial Development Permit No. 208 by the City of Anacortes to the Port of Anacortes is hereby AFFIRMED.

            DONE this 23rd day of September  1994.

 

                                                            SHORELINES HEARINGS BOARD

                                                            ROBERT V. JENSEN, Chairman

 

                                                            RICHARD C. KELLEY, Member

 

JAMES A. TUPPER, JR., Member

 

                                                            BOBBI KREBS-McMULLEN, Member

 

                                                            MARTIN CARTY, Member

 

                                                            JUDITH BARBOUR, Member