2010-04-07 HEX# 10-002 Hearing TranscriptCITY OF FEDERAL WAY
TRANSCRIPT OF HEARING
April 7, 2010
BP: Bio Park, Hearing Examiner
MH: Matt Herrera, Associate Planner
KM: Ken Miller, Deputy Director Public Works
BN: Bruce Nebbitt, WSDOT
BP: Good afternoon, my name is Bio Park. I will be serving as the Hearing Examiner Pro-
Tem for the City of Federal Way today. Today is Wednesday, April 7, 2010. It's 2:00
pm. We are gathered here at the City Council Chambers at Federal Way City Hall to
consider WSDOT's application for Triangle Project. Federal Way file no. 09-104380-00-
UP. Staff, is staff ready? Is the applicant present? Okay, let's get started.
MH: Thank you Examiner Park, my name is Matt Herrera, Department of Community
Development Services. Before I begin with the summary of the staff report, I would like
to enter into the record, the staff report with the attached exhibits A through N, as in
Nancy, as well as the Power -Point presentation
BP: Okay, Mr. Herrera, um I received the exhibits in advance, I'm missing one exhibit, I
think its exhibit L or M.
MH: Oh, correct. Exhibit L was withdrawn, before.
BP: It is L.
WSDOT Hearing Transcript Page 1
MH: It is L and that was withdrawn.
BP: It's withdrawn?
MH: It is withdrawn.
BP: Okay. Do you have an exhibit list on the staff report?
MH: It is page 17 of 17.
BP: Okay, it does note here that it's withdrawn. Alright, thank you.
MH: Okay. The Washington State Department of Transportation Triangle Project will rebuild
Interstate 5 and the State Route 18 interchange by replacing the NW and SE Clover -leaf
Ramps with Fly -over Ramps. This is the NW Clover -leaf here, and the SE Clover -leaf
here. In addition to those improvements, WSDOT will provide a direct connection from
West Bound State Route 18 to State Route 16, and that is this flyway here, on down.
Procedural summary for this project begins on May 11, 2007 Department of
Transportation issued a determination of non -significance. On December 17 of 2009, the
City issued a Process IV Letter of Complete Application. On March 20, 2010, the City
issued a notice of Public Hearing and as of today no written comments have been
received regarding the Process IV application. The Triangle Project will require work in
and around designated critical areas, and those areas include a stream relocation, which
requires a Process IV Land Use Approval. Culverts, which require a Process III Land Use
Approval. Intrusion into stream setbacks requiring Administrative Director Approval.
Improvements within a regulated Wetland, requiring a Process IV Land Use Approval.
And improvements within a regulated Wetland Buffer, requiring Administrative Director
WSDOT Hearing Transcript Page 2
Approval. Staff has consolidated the entire proposal to be considered under Process IV
Hearing Examiners Decision.
BP: Mr. Herrera what's the difference between a Director Approval and a Process Three
Approval?
MH: A Process Three is also an Administrative Approval, a decision handed down by the
Director of Community Development but it's a formal land use application whereas the
Director Approval is not a formal land use application, it's just a written administrative
decision.
BP: Okay. Thank you.
MH: Now construction activities will require some alteration of tributary 16A, which runs
along the West Side of I5 here, and it's also a tributary to the Hylebos Creek. The City
has designated the tributary as a Major Stream. WSDOT has provided evidence of
permanent natural fish blockages within the construction area that would preclude fish
from inhabiting this particular stretch. Staff has agreed with their analysis and we have
reclassified this stream as a Minor or Non -Fish Bearing Stream.
BP: And that, and that has been an official reclassification by the City?
MH: Yes.
BP: Okay. And not just for this, purposes of this project.
MH: No, from this point forward this stretch of stream will now be considered Minor.
BP: Okay, thank you.
MH: So some of the construction activities that are going to take place on this tributary are the
realignment of the stream, which will involve abandoning, filling and relocating a portion
WSDOT Hearing Transcript Page 3
of the stream near the I5 and S 356th intersection. There's going to be three, a total of
three culvert extensions. Two near the Interstate 5 and State Route 18 interchange and
one near an intersection of SW, or S 356th and Interstate 5, and there's going to be one
new culvert under S 356th Street near the Interstate 5. Construction activities will also
include 1.28 acres of temporary stream back intrusions to accommodate the construction
work and 4.64 acres of permanent stream back, stream setback intrusions for a new road
way and appurtenances. Our various wetlands along the corridor will also be impacted
by the Triangle Project. Those impacts include temporary buffer intrusions in the amount
of .6 acres to accommodate construction activities. Permanent buffer intrusions in the
amount of 1.05 acres to accommodate new roadway and appurtenances. Now those, it's
tough to see here, but those temporary and permanent intrusions will be in Wetland K,
North of the State Route 18 area here, Wetland P at the north -end of the project limits,
Wetland U inside the SW clover -leaf and Wetland AB at the south -end of the project
area. There will also be permanent wetland intrusions in the amount of .23 acres to
accommodate new roadway facilities. And, those permanent wetland intrusions will be in
Wetland M, as in Michael, here north of State Route 18, and Wetland N, as in Nancy
North of State Route 18. Those two wetlands combined will be a total of .23 acres. Now
in order to mitigate the permanent impacts to Wetlands M and N along State Route 18,
the applicant has acquired two single-family residential parcels within the Hylebos Creek
Basin to be used as compensatory mitigation. The mitigation site is located at 933 S
364th Street, which is between Pacific Highway South and 12th Avenue South. Now the
applicant proposes to mitigate wetlands on the Corrington site using a combination of
WSDOT Hearing Transcript Page 4
creation and enhancement. Wetland creation will total .32 acres. Wetland enhancement
will total 1.37 acres, and staff finds the proposed mitigation ratios will result in not net
loss of wetlands within the Hylebos Creek Basin. Following the review of the Process IV
application staff has determined that the applicant meets the following decisional criteria;
stream relocation, culverts, intrusion into setbacks, improvements within regulated
wetlands, improvements within regulated wetland buffers, and the overall Process IV
Hearing Examiner decision criteria. Staff recommends approval of the Process IV
application.
Now items 1 through 4 in section 15 of the staff report titled "Recommended conditions
of approval" are meant to highlight particular Code Based requirements and performance
measures of the City's Critical Area Regulations. Those four highlighted areas are;
• a written inspection report verifying the relocated channel complies with the
approved stream mitigation plan;
• a phasing plan specifying time of year for all phases of the stream relocation;
• monitoring of the compensatory site for at minimum of 5 years;
• and written monitoring reports of the compensatory site submitted to the City for
a minimum of 5 years.
Staff would also like to provide clarification of Condition 5. The applicant shall obtain a
an engineering permit for grading activities on the Corrington stream location and stream
culverting areas. Now the extent of the City review would be of temporary erosion
control and sedimentations plans, review of the haul route, City inspections and an
WSDOT Hearing Transcript Page 5
overall cost of the review not to exceed five thousand dollars. And that concludes the
summary of staffs report.
BP: Mr. Herrera, back to condition 5, under what Code Provision, Federal Way Code
Provision, umm, is the City authorized to impose this condition.
MH: Umm, it would be under our Clearing and Grading Ordinance. I have to get back to my
Code to give you the specific code citation.
BP: That's fine. Clearing and Grading. Um, in your staff report you also note in a part, in a
section as far as categorizing a certain wetland that the City and the applicant has a
disagreement on the category of the wetland. Has that issue been resolved?
MH: Umm, it has not been resolved but it came to not be applicable because that portion of the
wetland will not be affected.
BP: Okay. Alright.
MH: So we left it there.
BP: Agreed to disagree?
MH: Agreed to disagree.
BP: Okay. Thank you.
MH: Thank you.
BP: Next if the applicant would like to add anything to the record.
BN: Thank you, Hearing Examiner Park. My name is Bruce Nebbitt with the Washington
Department of Transportation. I want to say for the record that we've been very
appreciative of all the support that we've gotten from the City Of Federal Way on this
project, and with the exception of Condition 5 we've resolved the differences here. For
WSDOT Hearing Transcript Page 6
Condition Five we maintain that we are working within WSDOT right-of-way within that
we will be administrating a construction contract and we will have full time dedicated
inspectors that will be seeing that the contractor follows the temporary erosion sediment
control plans, they will be reviewing the haul road, essentially administering anything
related to environmental issues associated with this project, that we will be ensuring the
contractor follows the requirements of the project. For the issue of, the one point that I'm
aware with the City that there is concern that possibly the Wetland Mitigation site is not
considered WSDOT right-of-way. In a lot of cases for our mitigation sites we have that
outside kinda the footprint of the highway. The reason for that is, one we don't want to
mitigate within our traditional right -of way because if we do widen the road way in the
future and impact that we've essentially wasted money. The other thing is a lot of these
mitigation sites we have to have certain criteria so that we can have a successful wetland
mitigation site. So, that's why we chose the Corrington site here. But we maintain that
that is part of WSDOT right-of-way and that through our standard specs and special
provisions on the contracts we will see that the contractor follows all the requirements of
the project.
BP: Now, your comments regarding Condition 5 are you saying that WSDOT will self
regulate, umm, you now as far as erosion control, sediment and haul route and
everything?
BN: Yes.
BP: Now it that a provision in the WAC or Statue that permits WSDOT to, in lieu of City
requirements to self -police that?
WSDOT Hearing Transcript Page 7
BN: I am not aware of a WAC that's worded the way your phrased it. What we do is have a
contract with a contractor...
BP: Right.
BN: ..and that we ask him to follow our standard specifications and special provisions of the
contract.
BP: Sure, but if the City's Clearing and Grading Ordinance requires applicants to follow these
conditions, Condition 5 that the City is imposing, I need something that supersedes that
permits WSDOT to be exempt from the application of the Ordinance. And my question is
is there something in the WAC or the RCW that I should be aware of that provides that
authority?
BN: So, the one RCW that gives authority to the Department is RCW 47.01.260.
BP: Can you repeat that please? 47.
BN: 47.01.260, it talks about the department is authorized to acquire property as provided by
law and to construct, maintain, thereupon any buildings or structures necessary or
convenient for the planning, design, construction, operation, maintenance, and
administration of the State Highway System and to acquire property and construct and
maintain building structures appurtenances, and facilities necessary and convenient to the
health and safety and for the accommodation of persons traveling on state highways.
BP: Okay.
BN: So, the other thing is my understanding is that the City is not opposing additional permit
requirements on us over and above what we have established within our standard specs
and general special provisions, so essentially the way we look at is what is being
WSDOT Hearing Transcript Page 8
proposed here is essentially City or third party oversight on DOT for our inspection, but
again my understanding is there is not additional requirements being imposed on us.
BP: Okay. Anything else?
BN: That's about it. Thank you.
BP: Thank you. Is there a City response to that Mr. Herrera.
MH: Examiner Park, Deputy Director Ken Miller, Public Works.
KM: Good afternoon, Ken Miller. Ahh, the City's concern is essentially this Corrington site
and the easements are really not part of Right -of -Way as you have heard the DOT say or
the traditional right-of-way, Federal Way's NPDES Phase II permit holder and therefore
we are responsible for the water that comes from Federal Way. So therefore, we are
responsible to review and inspect these, uh, permits you see here, these activities. We uh
think that the cost will not exceed $5,000 and we do understand that, uh, the DOT does
have regulations and specifications in place in their contract to take care of these, but the
Hylebos area that they are working in is a very sensitive area in Federal Way, we also
tend to take the questions because people will not realize that the project is a Washington
State Department of Transportation project. It will viewed as a City of Federal, you know
a project in Federal Way. The particular Corrington site is off of a private road on a very
kind of rural type area, and, umm, we did receive the RCW that, uh the DOT quoted
yesterday or the day before yesterday, very recently. We did not really have, uh, enough
time to, uh, to analyze it completely, and we are not sure really that it does relieve
them of a permit duty here.
BP: Okay.
WSDOT Hearing Transcript Page 9
KM: Like I said, Federal Way being the NPDES Phase II Permit holder is the water, err the
quality of the water our responsibility?
BP: Either Mr. Miller or Mr. Herrera can you show me where this Covington site is on the
map?
MH: The Corrington site is at 933 S 364th street, it's in between Pacific Highway South
KM: South 364th street really isn't a street it's a 10 foot gravel road, it's, it's, it's a private
road.
BP: Okay.
KM: And as you can see it's quite a ways, it's a ways off the main road, and this road here is
just a rural two lane, uh, road going into the High Schools right up here, Todd Beemer
High School.
BP: The city's okay with the site, the location, that's not the issue here.
KM: Correct. Yea, we are okay with the location.
BP: ....how the mitigation is going to be performed...
KM: Correct.
BP: Thank you. Okay now, um, member of the public if you would like to comment on this
project, this is your chance, if anyone out there in the public want to submit comments?
Either written or oral? Going once, Going twice. Alright. Um any final concluding
remarks by the city other than what has already been submitted into the record?
MH: Examiner Park, in light of the RCW that was brought forward, um, we were not aware of
this RCW...
BP: ...okay...
WSDOT Hearing Transcript Page 10
MH: Um ... this was brought to our attention yesterday via email at 11, approximately I Iam, I
can enter that into the record, and we haven't had time to analyze it, really look at it to
see if it applies. Um, we would like to continue the hearing and have WSDOT provide
us some interpretation of why this RCW supersedes City Of Federal Way policy.
BP: Now are you requesting us to, are you requesting me to continue the hearing to another
date or just leave the record open?
MH: I would like the record to stay open.
BP: Just for this limited purpose right?
MH: Correct.
BP: For them to supplement the record as to why this cited RCW would supersede the
authority of the City to impose such conditions.
MH: Correct, and we would like the opportunity to respond to that.
BP: Okay. I think that's reasonable.
MH: Thank you.
BP: Um, WSDOT do you have any final comments or concluding remarks? Since WSDOT is
the applicant in this case, you can have the last word. Can you come to the mic so that
every thing you say is captured.
BN: Um, again just in conclusion my understanding is this does not center around additional
permit conditions, it centers around the interpretation of highway right-of-way or State
right-of-way and again I, we maintain the entire project is within WSDOT right-of-way,
that whether it's a little bit offside from the highway footprint, um, its still right-of-way,
we own this property and fee the title is in WSDOT's name and it is, ah, designated as a
WSDOT Hearing Transcript Page 11
wetland mitigation site the end perpetuity and uh, the other thing is we would request that
you don't grant the continuance because we would like to advertise this project for
construction and move forward with selecting a contractor, awarding it and having a full
construction season ahead of us for this project. So that's my conclusion.
BP: Thank you.
BN: Thanks.
BP: I do think it's wise since you have a dispute here as far as the conditions are concerned
and if the City has clear authority to impose this condition as the applicant you have the
burden to show that you are exempt from this condition. Um, from application of the
ordinance. Its not necessary that you respond to the City, I'm not going to force the
applicant to respond, but, um I do need to give the City sufficient time to respond to your,
to the RCW that you indicated, that you claim that exempts WSDOT from Condition
number 5. So therefore, if you have anything, if you'd like to provide more information
on this RCW you can do so by this Friday and to get things moving along, whether you
do it, do provide it or not, I'd like a response from the City by a week from today, by
Wednesday. Is that doable Mr. Herrera or do you need more time than that? And please
consider the applicant's position here also, that they would like, I mean I would have
what ten days after the record is closed to issue a decision and all that. And the
construction season and all that.
MH: The City would respectfully request two weeks, so one additional week.
BP: From?
MH: So two weeks from today.
WSDOT Hearing Transcript Page 12
BP: Two weeks from today?
MH: Yes.
BP: Is there a reason why you need two weeks?
MH: Ah, its just, ah, its staff time to research this. Examiner Park, my apologies, a week is
fine.
BP: Okay. Well than a week, it is then. And again, um, like I said the burden here to, to,
show, provide that the applicant qualifies for the exemption is on the applicant, okay. So
with that, um, request again, to repeat what I said the applicant will submit all the info
necessary regarding RCW by this Friday to the City, and the City will have until next
week, Wednesday, to respond and provide information to the Hearing Examiner.
Anything else Mr. Herrera?
MH: My apologies Examiner Park I just wanted to get back to that specific Code provision
that you asked for. It is Federal Way Revised Code 19.120.020 subsection 2.
BP: 19.120.020 subsection 2?
MH: Correct.
BP: Okay, and that might be good information for you, for the applicant as well to look into
that section. Anything else? Anybody need to add any final thoughts? All right, thank you
very much for coming.
WSDOT Hearing Transcript Page 13