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Why the Fairhaven Highlands Draft EIS violates SEPA law

By On

No confidence. That’s right. NO CONFIDENCE! I have no confidence in the Fairhaven Highlands EIS… and neither should you.

And it’s not for the obvious reasons. Sure, all draft environmental impact statements are bound to have errors and omissions. Certainly, the long-awaited Fairhaven Highlands DEIS has its share.

But for the authors to violate an essential and fundamental principle of the State Environmental Policy Act (SEPA) is not a simple error or omission. Did the authors fail to grasp the purpose of SEPA? Or did they intentionally violate SEPA and knowingly understate the actual environmental impacts of this project? Either way, how can anyone have confidence in this process now?

A primary purpose of SEPA is “to promote efforts which will prevent or eliminate damage to the environment and biosphere.” A key element of SEPA is the environmental impact statement, or EIS, which must disclose significant environmental impacts of the proposed project.

SEPA is potent law. “The policies and goals of SEPA supplement the existing authority of all government agencies and give officials the discretion to deny projects based on negative environmental impacts disclosed by an EIS… Our courts have repeatedly stated that SEPA is not a substitute for local zoning ordinances, but overlays local ordinances and must be enforced even where a particular use is allowed by local law or policy.” [Victoria Tower Partnership v. City of Seattle (59Wn. App.592)] (Emphasis added)

SEPA is not limited by the State’s vested rights doctrine. When disclosing the environmental impacts of a particular project, the EIS must disclose adverse impacts using current scientific information, regardless of whether a project may be “vested” under obsolete laws that reflect outdated science.

The Fairhaven Highlands draft EIS fails to comply with SEPA in this regard. The EIS confuses legal impacts with environmental impacts, and, by doing so, fails to adequately disclose the true adverse impacts to the 16 wetlands that cover the 82-acre Chuckanut Ridge site.

The importance of wetlands has long been established. According to the Environmental Law Institute’s Guide to Wetland Buffers, “wetlands help control flooding and reduce damage from storm surges. They trap sediments and pollutants that otherwise might enter waterways. They help to recharge groundwater in some areas, and in tidal zones they provide nurseries for shellfish and fish. They also serve as habitat for birds, amphibians, and other wildlife and provide scarce natural areas in urban and suburban environments…

“Attention to these functions is essential to governance of the community’s land uses, public health, safety, and welfare. But these functions cannot be sustained without care for the uplands adjacent to wetlands - wetland buffers.” (Emphasis added)

Yes… wetland buffers!

The significance of wetland buffers is highlighted in Table 1-1 of the draft EIS, which presents a “Summary of Development Alternatives” for Fairhaven Highlands. This executive summary indicates the extent to which wetlands are filled and buffers are developed upon. For example, the DEIS claims that Alternative 1C will fill 3/4 acre (34,000 square feet) of wetlands and directly impact 6 acres (263,000 square feet) of wetland buffers.

We can all agree that permanently destroying 6 acres of wetland buffers will be devastating to the long-term health of these wetlands; however, what if the real impact is the destruction of 10 acres or more?

In other words, the 6-acre calculation is bogus and violates SEPA’s requirement to adequately disclose the true environmental impact of the proposal. This calculation is based on the obsolete wetland rating system and obsolete wetland buffer requirements under a law that was deleted from the Bellingham Municipal Code four years ago when the city adopted its Critical Areas Ordinance (CAO).

The draft EIS violates SEPA because it confuses legal impacts with environmental impacts. While the EIS discloses the legal impact based on the law in effect when the application was submitted in 2005, it fails to disclose the actual environmental impacts - based on best available science - of building adjacent to wetlands.

So, what are the actual environmental impacts? I admit that I don’t know. In order to determine the actual area of wetland buffers that will be destroyed, you need a GIS system that can draw the true, scientifically-based buffers and calculate the acreage impacted.

The problem with the DEIS is that nobody knows the true impacts because the DEIS fails to disclose them, and by failing to disclose them, violates a key tenet of SEPA. The true environmental impacts have not been disclosed to any of the 17 public agencies currently reviewing the DEIS, including the Dept of Ecology. Nor have the true environmental impacts been disclosed to the hundreds of local residents who are in the process of preparing comments on the DEIS.

That’s why I have no confidence in the DEIS. If the authors have failed to disclose the true impacts on wetlands and wetland buffers, what else have they failed to disclose


About Larry Horowitz

Posting Citizen Journalist • Member since Jan 16, 2008

Comments by Readers

Tip Johnson

Oct 18, 2009

The on-site impacts are just the tip of the iceberg. The stormwater plan in the DEIS shows that another 7 acres of publicly owned wetlands, Hoag’s Creek, the lower reach of Chuckanut Creek and Chuckanut Bay tidelands will be used as the project’s private storm sewer.

O.K., the DEIS does admit that “significant adverse environmental impacts” are likely to occur if the project’s water quality systems don’t work as advertised. But the study is silent on the specifics. So what does it mean?

Well, King County went back and reviewed 100 existing bio-swale filtration systems, such as are proposed for this project, and found that half of them didn’t work at all.  The other half didn’t work nearly as well as expected.  That means we will get all the water quality theory the Department of Ecology can define as Best Management Practices (BMPs), but there is no guarantee that publicly owned natural resources won’t be irreparably damaged.

Cutthroat and steelhead trout have been observed poking around these public wetlands that eventually drain to Chuckanut Creek, a salmon bearing stream.  Why would anadromous species battle their way up the tiny, obstructed Hoag’s Creek to find these wetlands?  Because the are teeming with tiny freshwater shrimp. Tiny, tasty shrimp!

This population of shrimp also supports juvenile salmonids in the downstream system.  However, these shrimp are extremely sensitive to pollution. What are the consequences if they do not survive? We can presume that many other populations dependent upon them will also suffer. What accountability is there for cascading damages to public resources?

None! At least, not as planned.  The proponents suggest a 5 - 10 year post-construction monitoring program for nutrients, metals and other indicators of pollution, such as turbidity and conductivity.  They also suggest a “limited” pre-construction baseline.  However, monitoring will occur only periodically and can often be done at times chosen to provide the most supportive results.  Like blind men describing an elephant, monitoring will provide limited snapshots of the stormwater systems’ performance, but won’t detail actual impacts or cumulative effects.

If an inventory of the populations of species in the public wetlands were required in the baseline data, we would be able to empirically determine if the BMPs actually work. Why is this important?

Because Horizon Bank can’t develop this project.  As Horowitz has already detailed the FDIC has enjoined the bank from developing multiple family housing and the bank is already over its mandated Tier 1 capital commitment for all speculative development investment. In today’s capital and housing markets, this development would break the already teetering bank. That means Horizon will likely sell the project once entitlements are secured.  Some bargain-hunting developer is going to think, as the proponents have repeatedly emphasized, that they are “buying density” and take every cost-saving measure possible to turn a profit. That bodes ill for the health of downstream systems.

The importance of including an actual populations inventory in the baseline data is three-fold. First, to better assess system performance.  Second, to allow the public to assess actual damages and assign liability in the event of failure. Third, to give prospective buyers doing their due diligence an honest picture of the long-term liabilities.

The proponent is rightly concerned about their private property rights.  Citizens and officials empowered to condition the project should be equally concerned about their public property rights. This is especially true given the peculiar nature of this project’s origin and tenacity.

Please ask officials to require the project to assemble baseline data that includes an inventory of species populations in our publicly owned wetlands.


Bob Aegerter

Oct 18, 2009

This is a Draft EIS and individuals may comment on the adequacy of the document as well as the content.

The more specific and well documented comments will carry the most weight.


Larry Horowitz

Oct 19, 2009


Thanks for your comment.  It?s true that this is a draft EIS and individuals may comment on its adequacy and content, there is a flaw in that logic.

When a draft EIS is published, there is a presumption that it generally complies with SEPA and that the environmental impacts are disclosed based on best available science.

There is only one opportunity to comment on a DEIS.  Once the DEIS comment period is over, the public does not have the opportunity to comment again.  The impacts to the wetlands and wetland buffers disclosed in this draft do not comply with SEPA; however, none of us will have the opportunity to comment on the actual environmental impacts if and when they are ever disclosed.  Not having the opportunity to comment on the actual impacts is a failure of this process.

Here?s a question for you:  City officials received the Preliminary Draft EIS more than four months ago and had ample time to review the PDEIS and comment on it.  How is it possible that no one in the city, including the city?s SEPA official, knew that SEPA is not subject to the State?s vested rights doctrine and that the EIS must disclose environmental impacts based on current scientific knowledge rather than outdated laws?


Christopher Grannis

Oct 19, 2009

I asked for a baseline study when the Planning Department held the Scoping hearing nearly two years ago. The following are part of my comments that were copied into the public record;

How many animals and plants on site and off site will be lost due to destruction of their habitat? Please prepare a baseline study so we know how many species exist now. How many are threatened or endangered?
What percent of bio diversity will be lost in the Hundred Acre Wood, and in the rest of SW Bellingham? What percentage of existing species will die due to the disruption of the natural flow of water into and out of the wetlands? How many will not survive the pollution from roads and landscaping chemicals? Will the development turn the wetlands into a chain of sterile ponds? What will be the effect on the Interurban wetland downstream to the east? How badly will the polluted runoff damage Paden creek and Chuckanut creek? What will be the effect on salmon and other fish? How much will this development contribute to the degradation of the Puget Sound?

This is the SEPA law:
WAC 197?11?400 Purpose of EIS.
(2) An EIS shall provide impartial discussion of significant environmental impacts and shall inform decision makers and the public of reasonable alternatives, including mitigation measures, that would avoid or minimize adverse impacts or enhance environmental quality.

There is no sign of a baseline study in the DEIS. How could anyone know what the impact might be if they don’t know what is there now? Instead the DEIS is an attempt to justify the Fairhaven Highlands Development without disclosing the environmental impacts. The DEIS is a sham, and it is clear that the Planning Director has no intention to require the consultant to obey the SEPA law.