Board of Registration For Professional Engineers & Land ... · Board of Registration . For...

Board of Registration

For Professional

Engineers & Land

Surveyors

Board Meeting

February 6, 2019

Radisson Hotel SeaTac Airport

Seattle, WA

Board Meeting

Tab 1

Call to Order

STATE OF WASHINGTON BOARD OF REGISTRATION FOR

PROFESSIONAL ENGINEERS AND LAND SURVEYORS

COMMITTEE MEETING SCHEDULES &

SPECIAL BOARD MEETING AGENDA

DATE: Committee Meetings & Board Workshop – Tuesday, February 5, 2019 Special Board Meeting – Wednesday, February 6, 2019

TIME: February 5, 2019 11:00 a.m. February 6, 2019 8:00 a.m.

LOCATION: Radisson Hotel SeaTac Airport 18118 International Blvd Seattle, WA 98188

ATTENTION: All meetings are open to the public except when business calls for a Closed Session. During Closed Session all guests will be excused. Start times are subject to change by the Board or Committee Chair.

Guests may choose to join the board during meals, but meals will not be provided for guests.

COMMITTEE MEETING SCHEDULE

Tuesday, February 5, 2019

Committee Reports are given under the Special Board Meeting agenda item #2Committee Reports.

Exam/Qualifications Committee (EQ) (Alaska Room) 11:00 a.m. Review of exam related subjects, application eligibility, and policy review. Committee: Ms. Lund, PE, SE, Chair; Ms. Gnanapragasam, PE; Mr. Shrope, PE, SE, Board staff. Report under #2.1.

Practice Committee (PC) (Orcas Room) 11:00 a.m. Review of questions on scope of practice and policy review.

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Committee: Mr. Blaisdell PLS, Chair; Mr. VanDeWege, PE; Mr. Hendrickson, PE; Board staff. Report under #2.2.

Survey Committee (Alaska Room) upon completion of PC and EQ Committees Review and development of policy or rules on land surveying. Committee: Mr. Hendrickson, PE, Chair; Mr. Blaisdell PLS; Mr. Wengler, PLS, CFedS; Board staff. Report under #2.3.

Executive Committee (EC) (Orcas Room) upon completion of Survey Committee Review of budget, travel, and staffing issues. Committee: Mr. Wengler, PLS, CFedS, Board Chair; Mr. VanDeWege, PE, Vice-Chair; Mr. Shrope, PE, SE, Past Chair; Board staff. Report under #2.4.

WORKSHOP AGENDA

Tuesday, February 5, 2019 1:30 p.m.

Orcas Room, Radisson Hotel

1. Proposed amendments to RCW 18.43 & RCW 18.210

2. Complaint response – Quick response

3. Outreach and education

The full Board will reconvene for their Special Meeting at 8:00 a.m., Wednesday, February 6, 2019 in the Orcas Room.

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SPECIAL BOARD MEETING AGENDA Wednesday, February 6, 2019

OPEN SESSION .................................... 8:00 a.m.

1. Call to Order1.1. Introductions1.2. Order of agenda 1.3. Approval of draft minutes: December 6, 2018 1.4. Review communications 1.5. Public comment opportunity

2. Interagency Relations2.1. Legislation Process2.2. Interagency agreement BORPELS plan forward

3. Committee/Task Reports3.1. Exam/Qualifications Committee3.2. Practice Committee 3.3. Surveying Committee 3.4. Executive Committee 3.5. Outreach Education Task Force

EXECUTIVE SESSION: The chair will announce the purpose and estimated duration for Executive Session. No formal actions will be taken during Executive Session. Once Executive Session concludes, the Board will take a break to announce and invite visitors to Open Session.

OPEN SESSION RECONVENES

4. Disciplinary Activity4.1. New board orders4.2. Recommended closures

4.2.1. 2017-10-0005-00ENG 4.2.2. 2018-06-0002-00ENG 4.2.3. 2018-12-0008-00ENG 4.2.4. 2018-08-0003-00ENG 4.2.5. 2018-10-0007-00ENG 4.2.6. 2018-01-0006-00ENG 4.2.7. 2016-05-0001-00ENG

4.3. Disciplinary report

5. New Business5.1. Complaint Response- Quick Response

6. Old Business6.1. Review prior action items list

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6.2. Outreach and event calendar 6.3. DAINIS Update

7. Executive Director’s Report7.1. Program operations7.2. Financial Report 7.3. Travel 7.4. Other items

8. Assistant Attorney General’s report

9. Other Business9.1. Any other business9.2. Additional Public Comment 9.3. Action items from this meeting 9.4. Agenda items for next meeting

10. Adjourn Meeting

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STATE OF WASHINGTON BOARD OF REGISTRATION FOR

PROFESSIONAL ENGINEERS AND LAND SURVEYORS SPECIAL BOARD MEETING MINUTES

DATE: December 6, 2018

TIME: 8:00 a.m.

LOCATION: Radisson Hotel SeaTac Airport 18118 International Blvd. Seattle, WA 98188

BOARD MEMBERS James Wengler, PLS, CFedS, Chair Ivan VanDeWege, PE, Vice Chair Stephen Shrope, PE, SE Nirmala Gnanapragasam, Ph.D, PE Doug Hendrickson, PE Marjorie Lund, PE, SE Aaron Blaisdell, PLS

STAFF MEMBERS Ken Fuller, PE, Executive Director Jennifer Lingle, Administrative Assistant Jill Short, Investigations & Compliance Manager Elizabeth Lagerberg, AAG Advisor Meg McCann, Deputy Director Jennifer Clawson, Assistant Director Sieng Bonham, Budget Manager Beau Perschbacher, Policy and Legislative Director Rick Storvick, Board Staff Sarah Pittman, Board Staff Vonna Rakestraw, Board Staff

GUESTS Tom Barger, PLS, LSAW

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OPEN SESSION

1. Call to Order 8:00 a.m. 1.1. Introductions

Board members, staff, and guests introduced themselves.

1.2. Approval of Order of Agenda Recommendation to amend agenda to add 4.2.4 2018-08-0007-00ENG, 4.2.5 2018-05-0007-00ENG, and 4.2.6 2018-08-0013-00ENG.

MOTION: Mr. Blaisdell made a MOTION to accept the agenda as amended. Mr. VanDeWege seconded the MOTION and it passed.

1.3. Approval of Draft Minutes: October 18, 2018

MOTION: Mr. Hendrickson made a MOTION to approve the October 18, 2018 minutes. Ms. Lund seconded the MOTION; and it passed.

1.4. Review Communication None.

1.5. Public Comment Opportunity None.

2. Interagency Relations2.1. DOL Budget & Legislation Process

Ms. Bonham gave a presentation to the Board that included breakdowns for the Engineer and Land Surveyor budget for the current biennium. Justin Leppa, Budget Forecasting Officer, will attend the next board meeting to give more details to the board.

Ms. Clawson let the Board know that DOL is committed with sharing information and authority the Board needs. DOL is currently working on time studies and performance measures on how staff’s time is spent. DOL is wanting to work with the Board on what is needed in the position description for the Executive Director.

Mr. Perschbacher gave a legislation update on the RCW 18.43 suggested language changes on Professional Engineer requirements.

Ms. McCann re-introduced herself to Board as her new position with DOL as Deputy Director. She also let the Board know that DOL is in process of changing the Mission Statement to more of a Purpose State and to focus more on why we do what we do. She also agreed with Ms. Clawson on doing a better job working with the Board.

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MOTION: Mr. VanDeWege made a MOTION that the board finds the language in bill Z-0047.3/19 third draft acceptable. Ms. Gnanapragasam seconded the motion and it passed unanimously.

Action Item: Ms. Bonham will e-mail the presentation to the Board.

2.2. Interagency agreement BORPELS plan forward Mr. Fuller gave an update on the ongoing team meetings with DOL’s executive group, Mr. Wengler, Ms. Gnananapragrasam, and Mr. VanDeWege. He mentioned the team is discussing two options; One, remaining under DOL’s agency umbrella with an interagency agreement requiring certain authority over the budget and staffing; and, secondly, pursuing legislative action to amended RCW’s 18.43, 18.210 and 18.235, which will allow BORPELS to establish itself as a small agency. Mr. Fuller stated he is working with DOL on the possible language and action on the first option and DOL has agreed to at least remain neutral on the legislative option. Mr. Fuller committed to completing the BORPLES “ask” letter by the end of the week and transmitting it to Jennifer Clawson and DOL for their review and proposal. DOL has committed to a response and proposal by the end of the year.

MOTION: Mr. VanDeWege made a MOTION to eliminate confusion in authority, and establish control and accountability over; the engineers account (the 024 account), BORPELS staff, and the Executive Director’s position, the BORPELS will pursue the appropriate measures to establish itself as an independent state agency separate from the DOL. This will include but not be limited to acquiring an agency number and making appropriate RCW changes. The budget and HR functions for the Executive Director will be administered by DES Small Agency Financial Services. A contract or interagency agreement will be established with DOL to provide licensing, investigation, and administrative functions. The above activities will move forward to effect the changes required in the 2019 legislative session; however, if the Director of DOL provides a solution to issues previously raised by BORPELS by December 31, 2018, and the solution is approved by the BORPELS, BORPELS will cease the pursuit of a separate state agency at this time. Ms. Lund seconded the motion and it passed.

3. Committee Reports3.1. Exam/Qualifications Committee

Ms. Lund delivered the committee’s report.

Reviewed the following:

• WAC 196-26A-040 & WAC 196-30-030o Specified board information requestedo Attest to reading Chapter 58.09 RCW & WAC 332-130o Add 5yr expired requirement

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If expired 5 or more years a renewal application mustbe submitted and will be required to retake the law examand obtain a passing score.

o Adding professional development hours (PDH) for PLS &On site to 15 hours

Ms. Rakestraw and Mr. Fuller provided a report on the status of the R3 upgrade and the psychometrician.

Recommend approval of the On-Site cut score of 65/100 which resulted in 8 passing.

Recommending PLS 2hr exam only be given 2 times a year, until new exam is created

Staff & committee members are working on amending the On Site law review exam

MOTION: Mr. Shrope made a MOTION to accept the Exam/Qualifications Committee report. Mr. Blaisdell seconded the MOTION; and it passed.

3.2. Practice Committee Mr. Blaisdell delivered the committee’s report.

Total complaints received since the last meeting: 11

3 - Engineering Complaints

3 - Surveying Complaints

2 - Unlicensed Engineering Complaint

1 - Unlicensed Surveying Complaint

2 - Corporation Complaints

There are currently 3 individuals on compliance monitoring (Leigh McIntire, OS; Edward Snyder, PLS; and Bruce Studeman, PLS). All three individuals are currently in compliance with the terms of their board orders. Mr. Studeman has met the terms of his order and will be removed from compliance monitoring.

MOTION: Mr. VanDeWege made a MOTION to accept the Practice Committee report. Mr. Hendrickson seconded the MOTION; and it passed.

3.3. Surveying Committee Mr. Hendrickson delivered the committee report.

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Discussion was held regarding:

• Bellingham Technical College review. No further contact since Octobermeeting, the school is presently clarifying contact hours of students withlicensed Land Surveyors

• A land surveyor for Renton Tech was struck by a vehicle inOctober/November and other persons are working course contentdelivery at this time.

• Yakima Valley Community College is starting up a survey curriculum.

• Exam question development: On feedback from Danis in questiondevelopment, this committee recommends that board members refrainfrom positioning as question writers and remain in a position of vettingand approval.

• Monument Letter issuance: Status report indicates that of approximately20,000 electronic versions issued roughly 10% bounced back asundeliverable and about 30 generated questions of verification of validityof source (questioning if spam mail).

o Email addresses to be deployed to listserv.o Discussion of a letter from the County Road Administration Board

and a follow on meeting regarding a MOU with the counties andDNR for working around the specific requirements of theMonument recovery process. Further discussion and action in thefuture with the DNR taking lead.

• New issuance of RCW 64.90o Dealing with common ownership interest.o Conditions appear to allow Land Surveyor licenses to record

maps without seals and signatures required by survey law.o Basal issue of acceptance by counties of such maps as recorded

surveys.

3.4. Executive Committee Mr. Wengler delivered the committee report. Discussion was made regarding:

• Budget.

• Interagency Agreement.

3.5. Outreach Education Task Force Ms. Lund delivered the report. Discussion was made regarding:

• Goalso Finance for next bienniumo Mission

• Looking at 3 different groupso Licensing tracko Current stakeholderso Public

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EXECUTIVE SESSION: Mr. Wengler, Board Chair, announced the purpose and an estimated 20 minutes for Executive Session. At the conclusion of the 20 minutes the Board took a break, and reconvened open session.

OPEN SESSION RECONVENES

4. Disciplinary Activity4.1. New Board Orders

No business.

4.2. Recommended closures 4.2.1. 2017-11-0010-00ENG

Mr. Wengler recommended the case be closed.

MOTION: Ms. Lund made a MOTION to accept the case manager’s recommendation for closure. Mr. Hendrickson seconded the MOTION, and it passed. Mr. Wengler abstained.

4.2.2. 2017-12-0001-00ENG Mr. Wengler recommended the case be closed.

MOTION: Mr. VanDeWege made a MOTION to accept the case manager’s recommendation for closure. Mr. Blaisdell seconded the MOTION, and it passed. Mr. Wengler abstained.

4.2.3. 2017-03-0003-00ENG Mr. VanDeWege recommended the case be closed.

MOTION: Mr. Hendrickson made a MOTION to accept the case manager’s recommendation for closure. Ms. Gnanapragasam seconded the MOTION, and it passed. Mr. VanDeWege abstained.

4.2.4. 2018-08-0007-00ENG Mr. Shrope recommended the case be closed.

MOTION: Mr. Blaisdell made a MOTION to accept the case manager’s recommendation for closure. Mr. Hendrickson seconded the MOTION, and it passed. Mr. Shrope abstained.

4.2.5. 2018-05-0007-00ENG Mr. Blaisdell recommended the case be closed.

MOTION: Ms. Lund made a MOTION to accept the case manager’s recommendation for closure. Ms. Gnanapragasam seconded the MOTION, and it passed. Mr. Blaisedell abstained.

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4.2.6. 2018-08-0013-00ENG Ms. Gnanapragasam recommended the case be closed.

MOTION: Mr. Hendrickson made a MOTION to accept the case manager’s recommendation for closure. Mr. VanDeWege seconded the MOTION, and it passed. Ms. Gnanapragasam abstained.

3.3. Disciplinary Report Packet item only; no action.

5. New Business5.1. Complaint Response- Quick Response

Ms. Short gave information on how New Mexico handles their complaint process and what they do to speed up the process.

Action Item: Present steps on how we can expedite cases. Action Item: Present process on how New Mexico handles complaints at Board Workshop.

6. Old Business6.1. Review Prior Action Items List

Ms. Lingle reviewed the master action item list with the Board.

6.2. Outreach Calendar The Board shared upcoming outreach opportunities.

6.3. DANIS Job Task Analysis Survey Results Discussion was made during the Committee meetings.

7. Executive Director’s Report7.1. Program Operations

• Mr. Fuller informed the Board that he was meeting with new Pro-Temmember Dan Clark on December 17th.

• Mr. Fuller gave an update on the data package for the R3 clean-up.

• There have been some DOL staff changes within the Regulatory BoardsSection. Amairani Padilla and Troy Lincoln have left the agency. KeithPeterson is the new Investigator.

7.2. Financial Report The Financial Report was reviewed.

7.3. Travel Mr. Fuller and Mr. Shrope will attend the NCEES Regional meeting in Atlanta, GA in February 2019.

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Ms. Gnanapragasam, Mr. Wengler, and Mr. Blaisdell showed interest in attending Western Zone in Boise Idaho in May 2019.

7.4. Other Items No business.

8. Assistant Attorney General’s ReportMs. Lagerberg gave a brief update on the Shasta McKinnley and Tappel Fisherycases.

9. Other Business9.1. Any Other Business

No business.

9.2. Additional Public Comment None.

9.3. Action Items from this Meeting Action items were reviewed and will be added to the master action items list.

9.4. Agenda Items for Next Meeting

• DOL Budget Presentation

• Workshop

10. Adjourn Meeting: 1:33 p.m.

Next meeting: February 5, 2019 11:00 a.m. – Committee Meetings February 5, 2019 1:00 p.m. – Workshop February 6, 2019 8:00 a.m. – Special Board Meeting Radisson Hotel Seattle Tacoma Airport 18118 International Blvd. Seattle, WA 98188

Respectfully Submitted:

___________________________________________ Ken Fuller, PE, Executive Director

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AlexO.Sellman,PLSPOBox70//Lynden,WA98264|(360)318-8184//(360)223-8531cell|[email protected]

January 6, 2019

BoardofRegistrationforProfessionalEngineersandLandSurveyors

DepartmentofLicensing

POBox9025

OlympiaWA98507-9025

Dear Honorable Members of the Board:

Aquestionhasarisenregardingthelegalityofmyselfstampingacertaindocument,theparticularsof

whichfollow.

In2015,theWashingtonStateDepartmentofTransportation(WSDOT)executedContract#8824

whichwasapavingprojectinWhatcomCounty.SaidcontractconsistedofpavingInterstate5fromthe

NulleRoadinterchangetotheSamishWayinterchange.Intheprocess,twenty(20)monumentswere

buriedinplacewithtwo(2)rare-earthmagnetsontopofeachmonumenttoaidrecoveryshoulditbe

required.

Unfortunately,aDepartmentofNaturalResources’(DNR)“PermitToRemoveorDestroyASurvey

Monument”wasnotfiledpriortoconstruction;however,allofthefieldworktoperpetuatethepositions

oftheburiedmonumentswascompletedaswellasthedraftingworkforsaidpermit.Furthermore,the

licensedsurveyorwhosupervisedthisworkretiredfromWSDOTlastyear.Ioversawthefieldprocedures

fortyingoutthemonumentsandsubsequentdevelopmentofStatePlaneandWSDOTProjectDatum

coordinatesforsaidmonuments,butIwasnotlicensedatthetime.

OnOctober25,2018,IattendedaDNRSurveyAdvisoryBoardmeetingwhereKrisHorton,PLS,and

JohnGasche,LSIT,werepresent.IexplainedthesituationtoMr.Gascheaboutthisworkandthefactthat

thefilingofthispermitshouldhaveoccurred,butdidnot.

IhavespokenwithseveralofmyfellowlicensedsurveyorcolleaguesinWSDOTandthegeneral

consensusisthatsinceIamnowlicensed,Iwouldbetheoneinthebestpositiontostampthelong-

delayedPermitToDestroy.However,Iwasnotlicensedatthetimethefieldworkwasperformedand

becauseofthat,IamquitehesitanttoapplymystampifdoingsoisinfactaviolationofapplicableRCW’s,

WAC’s,andBoardpolicies.

Somyquestionis:mayIlegallystampthisPermitToDestroy,giventhecircumstances?

Ibelievethatthepublicisbeingpotentiallyharmedwitheachpassingdaythatthispermit/completion

reportisnotfiledsoifitispermissible,Iwouldliketostampthisdocumentandsubmititforpublic

record.

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Thankyouverymuch.Imayalsobereachedat(360)[email protected]

foryourinformation.

Respectfully,

Alex O. Sellman, PLS #55854

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WILLIAM M. LIDER 2526 – 205TH PLACE SW

LYNNWOOD, WA 425 776-0671

[email protected]

SNO-KING WATERSHED COUNCIL & WILLIAM LIDER, PE RESPONSE TO SNOHOMISH COUNTY'S MOTION TO DISMISS ISSUES FOR LACK OF JURISDICTION- 1

SHORELINE HEARINGS BOARD STATE OF WASHINGTON

SNO-KING WATERSHED COUNCIL &WILLIAM LIDER, PE

Appellants,

v.

SNOHOHMISH COUNTY, DEPARTMENT OF PLANNING AND DEVELOPMENT & SNOHOMISH COUNTY, PUBLIC WORKS DEPARTMENT; and

DEPARTMENT OF ECOLOGY

Respondents.

SHB No. 18-016

SNO-KING WATERSHED COUNCIL & WILLIAM LIDER, PE RESPONSE TO SNOHOMISH COUNTY'S MOTION TO DISMISS ISSUES FOR LACK OF JURISDICTION

I. NATURE OF ACTION

Appellants Sno-King Watershed Council and William Lider, PE (hereinafter collectively

referred to as Appellants) respond to Snohomish County’s (hereinafter referred to as SNOCO)

motion to dismiss issues raised by the Appellants and request that the Shoreline Hearings

Board (hereinafter referred to as the SHB) to allow all issues raised by the Appellants to be

orally argued before the SHB. One of the fundamental propositions in the Shoreline

Management Act, (SMA) Chapter 90.58 RCW is the appellant’s, “right to be heard.”

SNOCO seeks to deprive the Appellants of this right1.

1 Reference RCW 90.58 Finding—Intent—1990 c 201

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SNOCO bases its motion to dismiss on questions of jurisdiction by the SHB based on case

law that has been overturned by the legislature and erroneous assertions regarding SNOCO’s

Shoreline Management Plan, (SMP) approved by Ecology and adopted in 2012. The basis that

SNOCO provides for its motion to dismiss has no merit and must be dismissed.

Appellants agree with SNOCO that major sections of the Index-Galena Road, including

the milepost 6.4-6.9 section washed out in the Fall of 2006, but the Appellants contend that

any road that has been closed to vehicular traffic for over 12-years is a non-essential road.

The Appellants will show at Hearing that SNOCO’s failure to follow its own Drainage

Code SCC30.63A, its Shoreline Management Code SCC 30.67, its Ecology approved

Drainage Manual, and the requirements stipulated under its Municipal NPDES permit is

likely to adversely affect the shoreline of the North Fork Skykomish River by increasing

water pollution from roadway stormwater runoff that is inadequately treated for water quality

and flow control. This will result in long term harm to this shoreline of Statewide

significance.

Accordingly, the Appellants request that SNOCO’s motion to dismiss be denied and that

the issues raised by the Appellants be orally argued before the full SHB, prior to any decision.

II. STATEMENT OF FACTS

SNOCO disingenuously opines that the Index-Galena Road, which has been closed to

vehicular access for over 12-years, provides, “essential travel access” for a handful of

seasonal cabin owners, vacant lots, multiple seasonal campgrounds that are closed in winter,

recreational trails on the Mount-Baker Snoqualmie National Forest, as well as administrative

access for the U.S. Forest Service that does not require winter access to this area.

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If this road were indeed “essential” as is claimed by SNOCO, then why has this project

not even been advertised for competitive bids in over a decade? The fact of the matter is that

adequate access is already provided via a major US Forest Service Road 65 from Highway 2

near the town of Skykomish, much of which is paved, via Jack Pass. If Jack Pass is snowed

in, recreational access to hiking trails are also inaccessible.

Private property in-holders with cabins or campers on mostly vacant lots deep within the

national forests cannot expect the same level of emergency services that individuals enjoy in

the Puget Sound low lands. There is no telephone service or cell phone service to the Galena

area. Even if the MP 6.4 – 6.9 repair were to be completed, property owners would still need

to drive into the Town of Index, to summon emergency services from Snohomish County Fire

District 28, a volunteer fire department with one paid staff. It is reported2 that Fire District

28’s staffing is:

Firefighting Personnel Full-Time Paid Firefighters: 0 Part-Time Paid Firefighters: 0 Volunteer Firefighters: 17 Non-Firefighting Support Personnel Non-Firefighting Paid Staff: 1 Non-Firefighting Volunteers: 2

A response to an emergency in Galena will take much longer than the typical emergency

response in the Puget Sound lowlands. The tradeoff that these property owners receive in lieu

of rapid emergency services is the peace and solitude afforded by limited access to this semi-

wilderness, remote area. In turn, property owners who are in-holders in the national forests

2 Reference https://www.firedepartment.net/directory/washington/snohomish-county/index/snohomish-county-fire-protection-district-28

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do have the opportunity to sell their land back to the US Forest Service, should they so

choose.

Per SNOCO’s own December 28, 2017 press release, the cost of re-opening this half mile

stretch of road is estimated at $20-million, of which $16-million will be funded by Emergency

Relief (ER) funded by the Federal Highway Administration (FHWA). Chapter V, Section I of

the FHWA’s EMERGENCY RELIEF MANUAL, (Federal-Aid Highways), Updated May 31,

2013, states:

I. Construction Start Deadline (Time Extensions)ER funds are allocated to assist the States and other agencies or organizations in conditions ofemergency. Consequently, after approval of programs and allocation of funds, all projects shouldbe completed promptly. Failure to advance an approved ER project to completion within areasonable period of time could result in withholding of funding for that project. Emergencyopening work should be accomplished within one month of accessibility to the site under normalcircumstances.

Unless there is satisfactory justification for project delay to warrant its retention, projects for permanent repairs that have not advanced to construction obligation by the end of the second fiscal year following the year in which the disaster occurred will not be advanced [23 CFR 668.104(h)]. Justification for such delay and request for time extension must be submitted to the FHWA Division Administrator for approval. Time extensions are granted in one-year increments. Such delays may be caused by the need for extensive environmental evaluation, litigation, or complex right-of-way acquisition.

In certain situations the delay of permanent work may be as much as two to three years. Permanent restoration work, for example, could be deferred to permit study of a serious slide condition, thereby allowing sufficient time to adequately design a permanent correction. (Emphasis Added).

The Federal Highway Administration (FHWA) has mismanaged the federal funding for

the Index-Galena Road by not requiring SNOCO to commence construction by the end of

second fiscal year following the year in which the disaster occurred (September 30, 2009); nor

has the FHWA or SNOCO been able to produce documentation for the required justification

for each 1-year increment time extension required under 23 CFR 668.104(h) in past public

records requests by William Lider. In turn, SNOCO has tied up $16-million dollars of

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emergency relief federal funds for over a decade that could have been used on other federal

road restoration projects like hurricanes Michael or Florence, or the hundreds of other natural

disasters that have occurred in the last decade to truly essential roadways. SNOCO could

have used local funds to reconstruct the Index-Galena Road if were truly essential as claimed,

but instead chose not to construct this new roadway until Emergency Relief and other federal

funds were made available by the Federal government.

There is absolutely no excuse for not commencing construction within 2-years after the

end of fiscal year when the disaster occurred, other than it has not been a priority for SNOCO

to reopen this non-essential road. In turn, SNOCO is using its lack of funding to justify not

constructing and not maintaining water quality controls and placement of fill within the

Channel Migration Zone (CMZ) that would otherwise be mandatory on any other County road

that project necessary to protect the shoreline of the North Fork Skykomish River. The CMZ

discussed in the project’s NEPA Environmental Assessment (EA) was based on the 50-year

channel migration event rather than the 100-year channel migration event for land adjacent to

the current river channel that is at high risk of occupation by the channel within the next 100

years, as required by County Code3. The Finding of No Significant Impact (FONSI) was

based on the flawed EA; and SNOCO’s Determination of Non-Significance (DNS) was based

on the flawed FONSI4 and must be revised. Review of SNOCO’s DNS is within the

jurisdiction of the SHB under Bellevue Farm Owners Ass’n v. State of Washington Shorelines

Hearings Board.5

3 Reference SCC 30.91C.067 4 Reference June 27, 2017 e-mail Crilly Ritz to William Lider (to be submitted as SKWC Exhibit 43) 5 Bellevue Farm Owners Ass’n v. State of Washington Shorelines Hearings Bd., 100 Wash.App. 341 (2000).

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The Mile Post 6.4-6.9 road project repair is entirely on US Forest Service Land that

SNOCO is under no legal obligation to maintain.

The North Fork Skykomish River is a meandering river with a braided channel and has the

greatest rainfall average (~135 inches/year) in the upper Skykomish watershed, and the

greatest range (90 to 170 inches per year) (USFS 1997). Storm events in the NF Skykomish

watershed can be very intense; the 10-year, 24-hour maximum storm event averages just over

6.5 inches of precipitation in the SF Skykomish. The surface runoff affects channel conditions

in the NF Skykomish and downstream in the mainstem Skykomish River6. The project

proposes to place roadway embankment fill within the North Fork Skykomish River’s

Channel Migration Zone (CMZ)—a recipe for disaster in the next major storm. Failure to

adequately design the road’s water quality and flow control on steep slopes will result in

detrimental erosion to not only the North Fork, but downstream mainstem of the Skykomish

River and its population of threatened Bull Trout and Chinook salmon. This appeal most

certainly falls within the purview of the SHB and the Appellant’s are due the right of oral

argument under the Shoreline Management Act.

Reference is made in SNOCO’s dispository motion to Permit Disposition, pg. 5-6,

Findings 4-7 and pg. 6, Findings 5-87. Exhibits A & B allegedly attached to SNOCO’s

motion to dismiss were not properly served to the SHB, Appellants, or Ecology. Proof of

Service is required under Civil Rule CR4(g); specifically, Ms. Nicole Magill did not provide

County’s threshold determination of non-significance did not preclude the Shoreline Hearings Board’s independent review of association of property owners permit application for a shoreline substantial development permit to build a 345 foot dock over partly public tidal mudflats. 6 Reference NOAA/NMFS Endangered Species Act Section 7 Formal Consultation and Magnuson-Stevens Fishery Conservation and Management Act Essential Fish Habitat Consultation for the Index-Galena Milepost 6.4 - 6.9 Road Relocation Project, Snohomish County, Washington, December 15, 2016, Page 11. 7 Reference SNOCO Motion to Dismiss, Page 3, Lines 1—13.

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the required Proof of Service or affirm under penalty of perjury that Exhibits A & B were

properly provided to all the parties.

The Appellants have the due process right to receive and review all documents submitted

by SNOCO to the SHB to verify their accuracy and completeness. SNOCO has not met its

obligation to do so. The Appellants are therefore unable to adequately respond at this time,

pending receipt of exhibits that were actually provided by SNOCO; and the Appellants

respectfully request the SHB to stay SNOCO’s motion to dismiss, pending the full hearing in

February when all exhibits are properly submitted and the Appellant’s oral arguments may be

fully heard.

In any event the alleged traffic safety on the closed Index-Galena Road is a non-issue, as

even SNOCO admits that even when this road is open, the traffic volume is very low with

Average Daily Traffic (ADT) less than 400 vehicles8; and with the Road closed there is no

traffic to be concerned about.

Mitigation proposed for the nearly one mile of new road consists of decommissioning of

abandoned roadway and is insufficient mitigation and does not meet the flow control and

water quality treatment for the new pollution generating impervious surface (PGIS) from

reconstructed 0.9-mile new road9. It is estimated that SNOCO left approximately 1,000 feet

of asphalt roadway or over 600-tons10 of petroleum laden asphalt rubble in the North Fork

Skykomish River CMZ to be washed down stream into threatened species habitat. If SNOCO

were truly concerned about the environment, it would have removed the asphalt concrete

8 Reference Index-Galena Road Milepost 6.4-6.9 DNS, dated June 7, 2017, page 1 9 Reference SCC 30.63A.530-Minimum Requirement 6: Runoff treatment & SCC 30.63A.550-Minimum Requirement 7: Flow control requirements for new development or redevelopment. 10 Estimate based on 1,000ft x 24ft x 0.33ft x 150lb/ft3 x 1/2000 ton = 594 ton ≅ 600 tons.

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rubble from the river that washed-out road over a decade ago. Instead, SNOCO has allowed

much of the petroleum asphalt to be washed downstream, left in flowing water, or in locations

susceptible to further washout.

SNOCO incorrectly states as fact that it may use the Washington State Department of

Transportation (WSDOT) Highway Runoff Manual (HRM)11 as the applicable regulations

governing the design of the stormwater drainage plan for the relocated roadway. However,

the clear fact is that SNOCO’s Municipal NPDES permit12 explicitly forbids the use of

multiple stormwater manuals. Under the supremacy clause of the Washington State

Constitution, SNOCO codes and ordinances cannot supersede State laws and regulations. In

fact, the Appellants will demonstrate as a part of our oral arguments and cross examination of

SNOCO’s witnesses before the SHB, that that the HRM is not equivalent to SNOCO’s 2016

Drainage Manual, as revised in 2017, if we are allowed to fully present our case.

Lastly, SNOCO incorrectly claims as fact that it may use “preliminary” drawings that are

not signed, sealed, or dated by the engineer of record as final permit approval. There is no

ambiguity WAC 196-23-020(1); final documents are, “those documents that are prepared and

distributed for filing with public officials”. Actions taken by both SNOCO and Ecology to

use preliminary drawings for final agency approvals is expressly prohibited under WAC 196-

23-020(1). As a plan reviewer, it is impossible to determine if these are correct permit

drawings prepared under the direct supervision of the engineer of record, or simply an

unknown review drawing that was incorrectly printed out by a non-engineer Computer Aided

11 SNOCO does not state in its motion to dismiss which edition of the HRM it proposes to use. For the purposes of this Response, it is assumed to the February 2016 supplement. 12 Reference SNOCO’s 2016 Phase I Municipal Stormwater Permit, Section S5.C.5.ii , page 16 of 75.

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Design (CAD) operator. This issue of incorrect drawing sealing is a simple fix that has been

brought to SNOCO Planning and Development Service’s attention on multiple occasions in

the past, yet SNOCO has failed to correct this deficiency in their permit approval process and

not used the standard level of care required under the law.

III. REQUESTED RELIEF

1. The Appellants request the SHB to stay SNOCO’s motion to dismiss and allow the

Appellant’s to present their case in full before the full Board for the reasons stated

herein.

2. In the event that the SHB is not willing to stay SNOCO’s motion, the Appellants

request that oral arguments be heard by the SHB prior to the dismissal of any of

the issues raised in its appeal.

IV. LAW AND ARGUMENT

A. Subject Matter Jurisdiction of Board: SNOCO falsely asserts that issues of Critical

Area protection within Shoreline Management Areas (SMA) are not under the jurisdiction of

the Board. Assertion A cites the SHB case of Wagenman v. Stevens County, SHB No. 10-

018, Findings of Fact, Conclusions of Law and Order dated April 7, 2011, to support its claim

that the Board is limited in its subject matter, that the issues that appellant has raised are

outside the scope of the board. Road construction and placement of fill within a highly active

channel migration zone of a significant state shoreline is subject matter appropriate for SHB

review. While SNOCO’s argument begs credulity, for the sake of responsive analysis,

Appellants provide the following answers.

1. SNOCO cites inapplicable legal standards to support its motion. To start, the specific

citation used as a basis for Wagenman, by the SHB of Kailin v. Clallam County, 152 Wn.

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App. 974,983, 220 P.3d 222,226 (2009), may have been applicable to specific circumstances

of Wagenman, but represents a muddle of case law, and as applicable here, was abrogated by

the legislature.

In short, Kailin represented a weak and contrary opinion to Futurewise v. W. Wash.

Growth Mgmt. Hearings Bd., 164 Wn.2d 242 (2008), which established Shoreline

Management Act (SMA) jurisdiction over the Growth Management Act (GMA) for critical

areas managed through properly adopted and Ecology-approved shoreline master plans.

Kailin also contradicted another opinion based on Futurewise, the case of Kitsap Alliance of

Property Owners v. Growth Mgmt. Hrgs. Bd., 152 Wn. App. 190 (2009). These lower

appellate decisions gave jurisdiction of critical areas within shoreline management areas to

the SHB, i.e., the Growth Management Act (GMA) would not apply in these areas. To

resolve the contradictions the legislature passed ESHB 1653 (Ch. 107, Laws of 2010), which

is what the SNOCO should have referenced in its motion. It is in fact perplexing why SNOCO

would use Wagenman, which is a model of the exception proving the rule.

ESHB 1653, (which is retroactive to 2003), amended the laws under RCW 90.58 to

recognize that critical areas (as identified by local jurisdictions under GMA) occur within

shoreline management areas, even though not all areas within a shoreline are “critical areas.”

It clarified “that development regulations adopted under this chapter [RCW 90.58] to protect

critical areas within shorelines of the state apply within shorelines of the state” (exceptions

not applicable). As further detailed below, the criteria for SHB jurisdiction was that a county

adopt an SMP that incorporated its CAR under approval of Ecology. Where Waganman

demonstrated Stevens County as a model of failure to meet the criteria, SNOCO provides a

robust model for meeting the criteria of SHB jurisdiction in this case.

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Unlike the circumstances in Wagenman, SNOCO’s critical areas and drainage code are

both incorporated into its Shoreline Master Plan, approved and adopted by Ecology in 2012.

In Wagenman, the county was Stevens, which had no Shoreline Master Plan approved by

Ecology. It is remarkable that SNOCO officials present no familiarity with the facts available

on their own website:

“The County and Ecology worked for several years to prepare the 2012 Update to the County’s SMP. The comprehensive update was approved by Ecology on July 13, 2012 and became effective on July 27, 2012.”13 (Emphasis Added)

The SMP developed by SNOCO clearly incorporates its critical areas regulations (CAR)

for equal protection, and more, within shoreline areas. The Policy document for the 2012

SMP, Section 3.1.2.1 states in part:

3.1.2.1 Requirements for Critical Area Protection RCW 36.70A.480 establishes the relationship between the Growth Management Act and the Shoreline Management Act with respect to critical areas.

The SMP provides a level of protection for critical areas located withinshorelines of the state that is at least equal to the protection providedby the county’s critical area regulations [RCW 36.70A.480(4)].

While not all shorelands within the county’s shoreline jurisdiction are considered critical areas, many areas within the shorelines of the state meet the GMA definition for “critical areas” and have been designated as such by the county. These areas include, but are not limited to, marine waters and critical saltwater habitat, streams and rivers, lakes, wetlands, habitat for critical wildlife species, geologically hazardous areas and channel migration zones, flood hazard areas and critical aquifer recharge areas. Since RCW 36.70A.480(4) requires a level of protection for critical areas in the shoreline master plan at least equivalent to the protection provided under the GMA, the county relies on the locally adopted critical area regulations to protect critical areas both inside and outside of shoreline jurisdiction, ensuring that the level of protection is exactly equal. (Emphasis added)

13 Reference: https://www.snohomishcountywa.gov/1445/Existing-SMP

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SNOCO has not only adopted its critical areas rules within its SMP, it has

amended earlier critical areas rules to reflect more stringent Shorelines rules, as noted

on page 41 of the SMP Policy Document:

3.1.2.4 Snohomish County’s Critical Area Regulations The county’s critical area regulations (CAR) were developed in coordination with the updates to the SMP. (Emphasis added).

2. RCW 90.58.356(1)(c) states:

c) "Replacement" of any existing transportation facility means to replace in a mannerthat substantially conforms to the preexisting design, function, and location as the original except to meet current engineering standards or environmental permit requirements. Maintenance or replacement activities do not involve expansion of automobile lanes, and do not result in significant negative shoreline impact. (Emphasis added)

The Shoreline Permit approved by SNOCO fails to meet current engineering standards for

due diligence and compliance with WAC 196-23-020. As such this does fall within the

jurisdiction of the SHB under RCW 90.58.180.

B. Issues Raised by Appellants Does Relate to Compliance with SMA or SMP: Good

engineering design, following prescribed code design requirements are essential to protecting

the shorelines of the State from harm. In this case, SNOCO has failed to use an appropriate

standard of care in its design, by allowing drawings potentially not prepared under the direct

supervision of the Engineer of Record for Shoreline Permit approval. Designs not providing

water quality and flow control measures prescribed by SNOCO’s one and only approved

Drainage Manual will increase the potential of damaging stormwater runoff from the

proposed road relocation and injure the shoreline.

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1. Issue 1A-1C-Compliance with WAC 196-23-020: SNOCO clearly erred when it

issued this project’s Shoreline Permit without requiring the design drawings to be signed,

sealed, and dated by Engineer of Record. Without the engineer’s signature across their seal, it

would be possible for any person or CAD operator with access to the drawings, to

inadvertently print out incorrect versions of the drawing. SNOCO fails to provide a

reasonable standard of care to protect the public and environment by allowing improperly

sealed engineering drawings to be used for approval of water quality treatment design,

approved under the Shoreline permit approvals issued by SNOCO and Ecology.

SNOCO chooses to cherry pick the language from WAC 196-23-020, taking its text out of

context in a misleading fashion. Final documents are, “those documents that are prepared

distributed for filing with public officials, use for construction, final agency approvals or use

by clients.” Issuance of Shoreline permits can only be done by a public official and issuance

of a Shoreline Permit constitutes a, “final agency approval,” e.g. permit issuance.

SNOCO has circulated multiple versions of un-dated “preliminary” permit drawings

including the un-dated drawings submitted to and approved by Ecology. It is difficult to keep

track of all the preliminary drawings and readily determine which is the most current drawing

version or which iteration of the preliminary drawings was used by Ecology as their basis for

approval of the Shoreline Permit.

Sealing and signing of engineering documents is a routine matter done every day in

thousands of engineering offices around the country. The issue of improper sealing of permit

drawings had been brought to SNOCO’s attention multiple occasions in the past, yet SNOCO

and its PDS have resisted complying with the law.

See WAC 196-23-020; Legal Issue No. 1 B, Prehearing Order.

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Again, SNOCO incorrectly quotes from Wagenman v. Stevens County. As discussed

earlier in this response, it is an inapplicable model. There is no basis in fact to deny

jurisdiction under the rationale of Wagenman. To the contrary the standard has been fully met

to support SHB review.

SNOCO continues to incorrectly assert that compliance with a Department of Licensing

(DOL) administrative argument is not within jurisdiction of the SHB. Unfortunately, the

DOL does not have any enforcement authority over SNOCO’s or Ecology’s incorrect use of

unsealed drawings for final agency approval; rather, the DOL only has enforcement authority

over individual licensees. However, the SHB does have explicit authority under RCW

90.58.140(5)(b)(ii) to conclude that the project or any element of the project is inconsistent

with the goals and policies of the shoreline management act or the local shoreline master

program. Final permit drawings that require professional engineering expertise to prepare, yet

are undated, unsealed, and unsigned, are inconsistent with goals and policies for good

shoreline management.

RCW 90.58.900 exempts the Board and RCW 90.58 from the rule of strict construction;

and allows SMA to be, “liberally construct[ed] to give full effect to the objectives and

purposes for which it was enacted”. This gives the SHB broad authority to protect our

shorelines by mandating final Shoreline Permit drawings be sealed by the engineer of record.

Therefore, because the SHB does have jurisdiction over shorelines, it must assure the public

that permit drawings requiring engineering expertise to prepare for final agency approvals

meet the minimal standard of care spelled out in WAC 196-23-020.

SNOCO opines that the drawings submitted for permit approval are in their opinion 90%

review drawings. Yet none of the preliminary drawings make any claim as to what

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percentage complete the design is at. The term, “percent complete” of a drawing set is a

matter of qualitative opinion and can vary greatly from one engineer (or one agency) to

another. Significant, last minute design changes can hugely alter the impact of a project on a

shoreline.

There was no Certificate of Service or proof of service for Mr. Larry Brewer, PE letter

referred to as Exhibit A. Indeed, SKWC and William Lider received a copy Mr. Brewer’s

letter via a second-hand e-mail. Without proof of service under penalty of perjury, the SHB

must reject from consideration for the purposes of SNOCO’s motion to dismiss all of Mr.

Brewer’s letter, SNOCO Exhibits A & B. If SNOCO so chooses, it may have Mr. Brewer

testify under oath on this matter at hearing scheduled for the week of February 11, 2019 and

submit his letter as a formal exhibit at that time.

SNOCO contends that simply because their permit checklist does not require the

Shoreline Substantial Development Permit (SSDP) drawings be sealed and signed by the

engineer of record, that they do not need to comply with WAC 196-23-020. This is simply a

fallacious argument and is without merit.

The Shoreline Permit issued by SNOCO and affirmed by Ecology is the basis for the

water quality treatment as well as fill placement within the Cannel Migration Zone (CMZ).

As such, these drawings are the basis of Ecology’s final review and approval for this project

and must therefore be sealed, signed and dated by the engineer of record.

2. Issue 2A-2D- Compliance with Phase I Municipal Stormwater Permit: SNOCO

misrepresents the Appellant’s argument. Again, SNOCO quotes from Wagenman as discussed

throughout, an inapt model under the authority of ESHB 1653.. As discussed earlier in this

response, that has since been superseded by ESHB 1653.

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SNOCO does not dispute Appellant’s argument that under its 2016 Phase I Municipal

Stormwater Permit, that it may only adopt one stormwater manual under Section S5.C.5.ii of

its NPDES permit. Again, under RCW 90.58.900 and a liberal interpretation of the law, the

SHB does have jurisdiction to compel SNOCO to comply with State and Federal regulations

to have only one stormwater manual. The fact that SNOCO adopted a local ordinance

permitting it to use multiple stormwater manuals does not supersede the supremacy clause of

the State constitution that requires it to comply with State law.

3. Issue 3 - WSDOT Manual Not Equivalent to County Manual: The Appellants have a

due process right to be heard before the full Board to present its case that WSDOT’s HRM is

less stringent that SNOCO’s Drainage Manual. Specifically, WSDOT allows natural

dispersion on slopes greater than 15%, where SNOCO does not. SNOCO Drainage Manual

has design provisions specifically for road construction, which it must use in preparation of

any Shoreline Permit drawing. The issue of the Land Disturbing Activity (LDA) permit is a

separate matter that will be addressed at some later date.

SNOCO proposes to discharge stormwater onto recently placed fill dirt or riprap rock,

calling it natural dispersion (dispersion over native vegetation), which it is not.

The choice of SNOCO’s one approved manual is critical to the protection of the North

Fork Skykomish River’s shoreline and there must be considered by the SHB in its

deliberations as to whether to remand this permit back for revision as requested by the

Appellants.

Furthermore, SNOCO’s own Shoreline Management Program (SMP), approved by

Ecology July 13, 2012, Section 3.2.5.17 Transportation, Circulation and Parking Facilities

under Policies states:

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7. Require development and redevelopment with shoreline areas to managestormwater impacts consistent with the county’s surface water management programor current stormwater management manual.

Clearly in the case SNOCO decided incorrectly to obviate its own shoreline policy of only

using its current stormwater management manual for work within the shoreline. As such, the

SHB is obligated both by SNOCO’s Municipal NPDES permit and its SMP to stay this permit

and remand it back for re-design using only the County’s most current stormwater

management manual.

4. Issue 4- Interpretation of SCC 30.62B.330: It is SNOCO, not the Appellants that has

misinterpreted SCC 30.62B.330. SNOCO contends that the construction of nearly one-mile

of entirely new roadway is merely, “normal maintenance or repair of existing flood control

and bank stabilization structures, buildings, roads, bridges.” The Index-Galena Road project

is not “normal maintenance”:

Normal maintenance does not require a Shoreline Permit; Normal maintenance is not construction of nearly one-mile of new road on an entirely

different grade and alignment; Normal maintenance does not require construction of 15 new culverts, ranging in size

from 36-inches (the smallest) to 71-inch x 47-inch arch culverts (the largest); Normal maintenance does not involve the construction of an entirely new 180-foot

span bridge; Normal maintenance does not involve the excavation 100,000 cubic yards of earth and

placement of 165,000 cubic yards of earth fill; Normal maintenance does not cost over $20-million dollars; and Normal maintenance does not require over 12-years to years to complete a design.

Clearly replacement plans for the now historical road in no way meet specific SMP code

provisions defining normal maintenance or repair even by SNOCO’s own definition.

SCC 30.91N.095 Normal maintenance or repair Where the replacement structure is comparable to the original structure or development including but not limited to its size shape configuration, location and external appearance and the replacement does not cause substantial adverse effects to shoreline resources or environment.

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The Shoreline Management Act, RCW 90.58.356(1)(a) defines “Maintenance” as:

(a) "Maintenance" means the preservation of the transportation facility, includingsurface, shoulders, roadsides, structures, and such traffic control devices as arenecessary for safe and efficient utilization of the highway in a manner thatsubstantially conforms to the preexisting design, function, and location as the originalexcept to meet current engineering standards or environmental permit requirements.

This project is much, much more than just road surfacing, work on shoulders, roadsides,

structures, traffic control devices, etc.; rather this is entirely new road construction work.

Drawings that are not sealed, signed, and dated by the engineer of record do not meet current

engineering standards. SNOCO’s claim that this project is “normal maintenance” strains

credulity, is disingenuous on its face, and is misleading to SHB.

Furthermore, if SNOCO is claiming that this project is “normal maintenance” then this

project in ineligible for federal Emergency Relief (ER) funding under 23 CFR 668.105(j); ER

funds cannot be used for normal maintenance.

Placement of thousands of cubic yards of fill within the CMZ will have a negative impact

on shoreline and potentially endanger the entire $20-million road repair in the event of

another washout. The SHB is well within its jurisdiction to review and remand back to

SNOCO to re-design the project such that there is no fill placed within the CMZ in

accordance with SNOCO’s own development code and the protection of this shoreline of

Statewide significance.

5. Issues 6 and 8 - Compliance with County Drainage Code: SNOCO’s code is quite

clear that stormwater treatment facilities are not to be installed in the stream buffer and

especially the CMZ. In the case of the Index-Galena Road, almost all of the side slope

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embankment below the roadway is too steep to accommodate natural dispersion for flow

control and water quality treatment.

Rather than using dispersion, SNOCO could have elected to use other methods such as a

combination media filter drain and detention vaults to meet its stormwater treatment

obligations. Yet, in a spendthrift manner, SNOCO chose to ignore and exempt itself from its

statutory requirement to provide treatment of stormwater and minimize impacts to the

shoreline. The additional cost to provide treatment of stormwater runoff as proposed by Lider

was never estimated or a preliminary design prepared to investigate the cost of providing

stormwater treatment. SNOCO simply dismissed out of hand providing any stormwater

treatment that did not involve spilling the water over the roadside.

The SHB has a duty and obligation to require SNOCO to provide treatment so as to limit

the negative impacts to the shoreline.

Additional Rebuttal: The county’s Shoreline Management Program encoded in law at

SCC 30.67, incorporates both its CAR and drainage code, as a starting point for the most

stringent protection of ecological functions.

Critical area regulations are fully incorporated at SCC 30.67.060.

A. Drainage regulations of SCC 30.63A are incorporated at 30.67.350, specifically to

provide the greatest level of protection of shoreline ecological functions and as a guide for

alternative measures. No other option is provided. (Note the absence of provision for

WSDOT alternatives in the Ecology approved plan.) A careful reading shows that many of

the provisions of the drainage code would not be allowed within shoreline management areas,

if they do not meet the criteria of being “consistent with the shoreline policies for the

appropriate shoreline environment designation.” Specifically, the SNOCO code states:

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30.67.350 Water quality, storm water, and nonpoint pollution. Where chapters 30.63A or 30.63B SCC allow alternative measures or facilities to protect water quality, manage stormwater or prevent nonpoint pollution, the county will evaluate the alternatives based on the following criteria:

(1) The alternatives must be consistent with the shoreline managementpolicies for the appropriate shoreline environment designation insection 2.2 of Snohomish County Shoreline Management Program:Shoreline Environment Designations, Policies and Regulations; and

(2) The alternative that provides the greatest level of protectionof shoreline ecological functions shall apply. (Added by Amended Ord.12-025, June 6, 2012, Eff date July 27, 2012). (Emphasis Added)

A. SNOCO has failed to establish the appropriate environment designation for the project

in its location, to comply with SMP’s drainage criteria under section 2.2 of the Program.

Since the environment for the project meets the criteria for “Natural” no road building is to be

allowed. As noted above, neither does the project meet the definition of normal maintenance

or repair. Clearly, the WSDOT manual for general road building is not consistent with the

SMP.

B. The issue of fill is a listed subject under the SMP at SCC 30.67.535. Fill of any kind

is not allowed within Natural areas, at all, except as part of ecological restoration or

enhancement projects.

C. It is SNOCO that has overstepped its own jurisdiction by granting itself a substantial

development permit that does not meet the standards of the SMA. The SMA has no provision

for Land Disturbing Activity or any kind of hydraulic permitting within the Natural area

unless it is for fish enhancement. See 173-27-040 (2)(p)(iii)(A-C).

D. As Appellants have previously shown in this response, a plain reading of the

Snohomish County Code at SCC 30.62B.330(3)(a)(v) that prohibits all development activity

within a channel migration zone except to as provided, only applies to Normal Maintenance,

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[email protected]


which this project most certainly is not. Rather moving the roadway design upslope would

allow construction outside of the CMZ. This counters SNOCO’s unfounded protests.

V. CONCLUSION

All issues raised by appellant, relate to the issuance of the substantial development

permit in this matter, to ensure that standards of the SMA have been met, as adopted,

managed and approved by SNOCO and Ecology. The cases brought forth as basis for a

motion to dismiss - Wageenman, Kailin, (and Corey) have no relevance in fact. It is SNOCO

that has failed to demonstrate it has credible rationale to dismiss any of the appellant’s

arguments. Nor has the county provided adequate facts to justify the permit it issued to itself

in this process. The Appellants case has merit for all the reasons set forth herein.

Finally, it must be noted that Ecology chose not to join in SNOCO’s dispository motion.

The Appellants respectfully request the SHB to stay all portions of SNOCO’s motion to

dismiss and allow the Appellants to fully present its case to the SHB at the hearings scheduled

for February 11—14, 2019.

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[email protected]


VI. APPELLANT’S STATEMENT

I declare under penalty of perjury under the laws of the State of Washington that the

foregoing is true and correct to the best of my knowledge.

DATED this 11th day of January, 2019.

__________________________ William M. Lider, PE, CESCL Member of the Board Sno-King Watershed Council

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WILLIAM M. LIDER 2526 – 205TH PLACE SW LYNNWOOD, WA 98036

[email protected] 425-776-0671

CERTIFICATE OF SERVICE- 1

SHORELINE HEARINGS BOARD STATE OF WASHINGTON

SNO-KING WATERSHED COUNCIL,AND WILLIAM LIDER, PE

Appellants,

v.

SNOHOMISH COUNTY DEPARTMENT OF PLANNING AND DEVELOPMENT SERVICES, and SNOHOMISH COUNTY DEPARTMENT OF PLANNING AND DEVELOPMENT SERVICES; and

WASHINGTON STATE DEPARTMENT OF ECOLOGY

Respondents,

SHB No. 18-016

CERTIFICATE OF SERVICE

The undersigned certifies under penalty of perjury under the laws of the State of

Washington that on January 11, 2019 I caused service to each of the following parties

listed below by the methods as noted, the following documents:

1. SNO-KING WATERSHED COUNCIL & WILLIAM LIDER, PE RESPONSETO SNOHOMISH COUNTY'S MOTION TO DISMISS ISSUES FOR LACK OFJURISDICTION; and

2. THIS CERTIFICATE OF SERVICE.

Shoreline Hearings Board PO Box 40903 Olympia WA 98504-0903 [email protected]

E‐Service Agreement

via U.S. Mail(1‐orginal & 3‐copies)

via E‐mail

via Overnight Mail

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WILLIAM M. LIDER 2526 – 205TH PLACE SW LYNNWOOD, WA 98036

[email protected] 425-776-0671

CERTIFICATE OF SERVICE- 2

Brian Dorsey, Deputy Prosecuting Attorney 3000 Rockefeller Avenue Everett, Washington 98201 [email protected]


via U.S. Mail

via E‐mail

via Overnight Mail

Cheerful Catunao, Assistant Attorney General Leslie Hummel State Attorney General, Ecology Division PO Box 40117 Olympia, WA 98504-0117 [email protected] [email protected]

[email protected]


via U.S. Mail

via E‐mail

via Overnight Mail

DATED this 11th day of January, 2019.

_______________________ William M. Lider, PE Member of the Board Sno-King Watershed Council

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Board Meeting

Tab 2

Interagency Relations

Board Meeting

Tab 3

Committee/Task Reports

Board Meeting

Tab 4

Disciplinary Activity

Case Manager PLS ENG

ENG

Corps

/LLC OSW Daily Intake Investigations

Case

Manager

Review

Charging

Documents

Being

Drafted BAP

AAGs

Office

Aaron Blaisdell 10 0 2 0 0 2 9 0 0 1

DANIEL B CLARK, PLS 4 0 0 0 0 0 4 0 0 0

Douglas Hendrickson 0 2 1 0 0 3 0 0 0 0

Ivan VanDewege 0 3 1 0 0 0 2 0 0 2

James Wengler 2 0 2 0 0 0 0 1 0 3

Marjorie Lund 0 3 0 0 0 0 2 1 0 0

Nirmala Gnanapragasam 0 2 0 0 0 0 2 0 0 0

Sara Marks 5 0 0 0 0 0 3 0 0 2

Stephen Shrope 0 0 1 0 0 1 0 0 0 0

Totals as of: 10 Jan 2019 21 10 7 0 0 6 22 2 0 8

Recent Case History 2018 2017 2016 Recent Case History 2018 2017 2016

ENG Beginning 22 22 12 PLS Beginning 26 28 19

ENG Opened 1 44 35 PLS Opened 1 23 23

ENG Closed 0 44 25 PLS Closed 0 25 14

ENG Total 23 22 22 PLS Total 27 26 28

ENG Corp/LLC Beginning 7 13 4 OSW Beginning 2 3 4

ENG Corp/LLC Opened 0 19 27 OSW Opened 0 0 1

ENG Corp/LLC Closed 0 25 18 OSW Closed 0 1 2

ENG Corp/LLC Total 7 7 13 OSW Total 2 2 3

Professional Engineers & Land Surveyors Board Disciplinary Report

Total cases Case Status

Daily Intake0%

Investigations16%

Case Manager Review

58%

Charging Documents

Being Drafted5%

AAGs Office21%

Open Case Status

Typical Complaint Process (Open Case Status)-- Staff receive complaint (Daily intake)-- Staff evaluate complaint (Daily intake)-- Staff assign to Case Manager (CM) (CM Review)-- CM review; determine whether to investigate (CM Review)-- Staff investigate complaint (Investigations)-- If no evidence supports allegation, CM recommend closure (CM Review)

PLS55%

ENG26%

ENG Corps /LLC19%

OSW0%

Types Of Cases

Civil70%

Mechanical6%

Structural6%

Unlicensened18%

ENG Types

(cont.)-- If no evidence supports allegation, CM recommend closure (CM Review)-- If evidence supports allegation, CM determine sanctions (CM Review)-- Staff use BAP if appropriate (BAP)-- Staff drafts charging documents (Charging Documents Being Drafted)-- Board Attorney reviews charges, moves forward with prosecution (AAG review)-- Following Prosecution / Disposition decision (Compliance Monitoring)

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Board Meeting

Tab 5

New Business

Board Meeting

Tab 6

Old Business

Board Meeting

Tab 7

Executive Director’s Report

2017-2019 Professional Engineers' Account Budget Summary

Current Revenue Data based on Actuals Projected Revenue Data based on Ten-Year Plan

Beginning FY 19 Fund Balance 1,810,515$ Fund Balance 1,823,244$

Add: Current FY Revenue to Date 1,007,799$ Add: Projected Revenue Remainder FY19 1,720,344$ Less: FY Expenditures to Date 995,070$ Less: Projected Expenditures Remainder FY19 882,455$

Less: R3 Payments BIEN To Date 73,797$ Current Fund Balance 1,823,244$ Less: R3 Commitment Remaining 1,406,523$

Estimated Fund Balance End FY19 1,180,813$

Fiscal Year-to-DateRevenues

License, Permits, and Fees 1,007,799$

Expenditures TotalA - Salaries and Wages 503,914$ B - Employee Benefits 192,364$ C - Professional Service Contracts 21,462$ E - Goods and Services 252,988$ G - Travel 21,012$ J - Capital Outlays 2,738$ N - Grants, Benefits & Client Services 592$ S - Interagency Reimbursements -$T - Intra-Agency Reimbursements -$

Total Expenditures 995,070$ Excess of Revenues Over (Under) Expenditures 12,729$

Fund Balance As Previously Reported (Beginning FY18) 1,810,515$ Fund Balance - Ending 1,180,813$

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Board Meeting

Tab 8

Assistant Attorney General’s

Report

Board Meeting

Tab 9

Other Business

Board Meeting

Tab 10

Adjourn Meeting

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