HEX rules county erred; EIS is needed for Orca Dreams dock project

San Juan County erred by focusing on "an imaginary 25-foot bubble" when it issued a Mitigated Determination of Non-significance (MDNS)  for Dave and Nancy Honeywell's project to build a dock, install a navigational buoy and a desalinization plant at the former Mar Vista Resort property on the west side of San Juan Island. County Hearing Examiner Gary N McLean wrote, "It is not too much to ask that a safari guide should inform her tour-group that there is a herd of elephants standing just over 25 feet away from a sleeping, cute and cuddly baby elephant that holds everyone’s undivided gaze and attention. In both situations, such a narrow focus can pose risks and result in unintended adverse impacts."



The MDNS, which meant an Environmental Impact Statement would not be required, was appealed by the University of Washington and a group of citizens. The project is next to the UW Friday Harbor Labs Preserve on False Bay. 

According to the HEX report: "Based on the entire record taken as a whole, the appeals are granted. Insufficient evidence was presented to prove that applying existing laws and regulations and narrow mitigation measures would reduce impacts to an insignificant level. The Examiner is left with a definite and firm conviction that a mistake has been committed. The matter is remanded to the Department for preparation of an Environmental Impact Statement."

The entire decision is posted on the county's website: http://sanjuanco.com/DocumentCenter/View/14801

Excerpts from the report's Findings of Fact: 

2. The scope of the biological assessment reports provided by the applicant, which formed the basis for almost all of the County’s analysis and recommended conditions reflected in the Staff Report recommending approval of the Shoreline application subject to conditions, failed to consider impacts to readily-identifiable public resources, protected wildlife, and the sensitive marine environment located just beyond an imaginary 25-foot bubble encompassing the project that was used as the carefully-crafted, narrow, focal point for analysis and discussion provided in the Fairbanks’ Biological Assessments and the Staff Report. It is not too much to ask that a safari guide should inform her tour-group that there is a herd of elephants standing just over 25 feet away from a sleeping, cute and cuddly baby elephant that holds everyone’s undivided gaze and attention. In both situations, such a narrow focus can pose risks and result in unintended adverse impacts.

4. The Fairbanks’ reports, and the Staff Report, all fail to consider the potential impacts on the False Bay Preserve. Such information is relevant and necessary for any decision-maker to reach an informed determination regarding the project in context with its location and sensitive areas affected by the proposal. The information is relevant in determining the cumulative impact on the surrounding marine environment, and the effectiveness of any proposed mitigation measures in avoiding, reducing, or otherwise mitigating impacts associated with the project. 

5. By way of example, and without limiting the eventual scope of the EIS required for the project, the Record now includes little or no information to determine if any of the fuel-spill response or clean-up measures are reasonable or capable of accomplishment. There is no meaningful discussion of restoration or recovery work, for marine life embryos that would be killed or grass beds that will be damaged, if and when the project is built and operating – caused by boats trying to use the dock but swinging around the area in less than ideal conditions, accidental fuel spills or leaks, or a catastrophic grounding or sinking of a boat using the dock; or caused by hyper-saline discharges from the desalination system into local waters at a point and time when currents are relatively shallow and calm, allowing the hyper-saline water to sink to the bottom, or move into False Bay, and remain for an unknown period of time before it is mixed and diluted by the changing tides, potentially damaging marine life, plants and other environmental features wherever the unmixed hyper-saline water comes to rest long enough to cause damage.

6. Virtually all of the recommended conditions address mitigation measures for the construction window, and very few cover “operational” aspects of the project, after construction. More information is needed to determine if other mitigation is necessary for such impacts, which the record shows will occur after the project is built. 

15. Again, on the Record made, even after reviewing the Record as a whole while according substantial weight to the challenged mitigated determination of non-significance, the Examiner is left with a definite and firm conviction that a mistake has been committed. The Examiner concludes that the Honeywell’s proposal is a major action significantly affecting the quality of the environment and that an Environmental Impact Statement should be prepared.

16. While most aspects of the proposed desalination system and the construction elements of the entire project appear responsible and sound for the most part, including numerous protection measures designed to protect the surrounding environment while construction activities occur, the Record is absent any meaningful analysis of the project’s operational impacts moving forward – when 4 boats will regularly be moored and operated from the new dock (where boats are not currently located for any extended period of time); and when the desalination system will discharge hyper-saline into the area waters during less than ideal mixing conditions (when tides might be slack, or waters might be very shallow, or currents might be carrying the heavier, unmixed hyper-saline discharges up near or into False Bay, where it may sink and rest for a period of time).

20. The appellants both satisfied their burden of proof to prevail in this appeal. Accordingly, the matter must be remanded to the Department for further review and preparation of an Environmental Impact Statement. Instead of denying the requested Shoreline Permit, which could be done based on the Record presented, the Examiner believes it is prudent to await preparation of the EIS and a new Staff Report recommendation that shall address the additional information the impact statement provides. The hearing on the merits of the requested shoreline permit should be continued until such time. 

The Hearing Examiner concluded: 

Based on evidence included in the record for the two appeals, both appellants satisfied their burden of proof. Accordingly, the pending appeals are granted, and the underlying shoreline project application is remanded to the San Juan County Community Development Department for the preparation of an Environmental Impact Statement. The shoreline permit application for the dock, desalination system, and navigation buoy are held in abeyance until the EIS is prepared and the County has reviewed the application(s) in light of the EIS, including any proposed alternatives or mitigation measures identified therein. When the EIS is complete, a new Staff Report shall be prepared and a recommendation shall be made reflecting the additional information the impact statement provides. The hearing on the merits of the requested shoreline permit is continued until then, at which time it will resume.

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