TUMWATER HEARING EXAMINER MINUTES OF MEETING April 12, 2017 Page 1

APPLICATION: Shoreline Substantial Development Conditional Use Permit – TIM-15- 1167, Tumwater Falls Hatchery Redevelopment

APPLICANT: State Department of Fish and Wildlife 600 Capitol Way North Olympia, Washington 98501

DESCRIPTION The applicant is requesting approval of a Shoreline Substantial OF PROPOSAL: Development Permit and Shoreline Conditional Use Permit to upgrade the existing fish hatchery facility at Tumwater Falls Park. The Shoreline Conditional Use Permit is being triggered for two elements of the project: 1) Installation of a new freshwater intake structure in the Deschutes River. Table 3.16 of the City of Tumwater Shoreline Master Program dictates that instream structures are allowed with a Shoreline Conditional Use Permit in the Urban Conservancy Shoreline Environment Designation. 2) A small portion of the proposed spawning shed on the south end of the proposed fish rearing ponds is located within the 100-year floodplain of the Deschutes River. In order to get the entire spawning shed above the 100- year floodplain elevation, approximately 9.5 cubic yards of clean fill material is proposed to be placed in the floodplain. Table 3.16 of the City of Tumwater Shoreline Master Program dictates that placement of fill is allowed in the Urban Conservancy Shoreline Environment Designation with a Shoreline Conditional Use Permit.

PUBLIC Hearing Examiner Andrew Reeves, Sound Law Center, convened the HEARING: public hearing at 7:00 p.m.

Examiner Reeves reviewed the proposal and the public hearing process. The hearing collects evidence in the form of exhibits and testimony to determine whether the proposal is consistent with the City’s Comprehensive Plan, zoning ordinances, Critical Areas Ordinance, Shoreline Management Act criteria of RCW 90.58, applicable Department of Ecology shoreline regulations in Chapter 173.26-27 of the Washington Administrative Code (WAC), the City’s Shoreline Master Program (SMP), and specific criteria for a Shoreline Substantial Development Permit under WAC 173.27.150 and a Shoreline Conditional Use Permit under WAC 173. 27.160. Because the project abuts the Deschutes River, many criteria must be met.

Examiner Reeves entered Exhibits 1-11 into the record:

1. Staff Report, date March 28, 2017 2. Site Aerial Photo Map 3. JARPA Application, date January 20, 2016 4. Preliminary Construction Plan Set 5. Certification of Public Notice 6. Environmental Checklist, date December 11, 2014 TUMWATER HEARING EXAMINER MINUTES OF MEETING April 12, 2017 Page 2

7. WDFW DNS, dated January 5, 2015 8. Critical Areas Report, date September 2, 2016 9. DOE Notice of Application Comments February 25, 2016 10. DOE SEPA Comments January 20, 2015 11. Tumwater Historic Preservation Meeting Minutes dated April 21, 2016 12. A series of draft documents prepared by the Tumwater Historic Preservation Commission

The hearing is recorded and all testimony is under oath. Under state law, RCW 36.70B, the Regulatory Reform Act, the hearing is the only opportunity for the applicant to present evidence on the application.

Examiner Reeves administered the oath to Chris Carlson, Permit Manager, Community Development Department, City of Tumwater.

CITY REVIEW Manager Carlson reported the applicant is requesting approval of a OF STAFF Shoreline Substantial Development Permit and Shoreline Substantial REPORT: Development Conditional Use Permit to upgrade the existing fish hatchery facility at Tumwater Falls Park. Tumwater Falls Park is located at 114 Deschutes Way, Tumwater. He displayed an aerial photo of the park and surrounding landmarks, and identified the location of the park located below Interstate 5 and adjacent to the Deschutes River

The site is privately owned by the Olympia Tumwater Foundation and is utilized as a public park. The Washington Department of Fish and Wildlife (WDFW) has an agreement with the Olympia Tumwater Foundation for fishery operations within the park. The Tumwater Falls Park is approximately 16 acres in size. WDFW currently utilizes 1.5 acres for adult collection, spawning, juvenile acclimation, and release. Three existing fish ladders are located along the west bank of the river from the lower falls to the upper falls.

The project includes a new surface water intake, adult fish holding and spawning areas, a mechanical building, increasing juvenile fish rearing capacity, installation of a clarifier pollution control system, stormwater improvements, repair work inside the existing fish ladder system, remodeling of the existing restrooms inside the Olympia Tumwater Foundation office building, and a new 235 square-foot restroom.

The Conditional Use elements of the Shoreline Permit pertain to the instream structure for the new freshwater intake, which requires a Shoreline Conditional Use Permit. Additionally, a small portion of the spawning shed located on the south end of the rearing pond near the river is located within the 100-year floodplain of the Deschutes River also requires a Shoreline Conditional Use Permit. TUMWATER HEARING EXAMINER MINUTES OF MEETING April 12, 2017 Page 3

On the east side of the proposed rearing ponds is a pollution abatement system, as well as a proposed maintenance road on the east side of the facility. The access road would be constructed of pervious materials to maintain environmental functions of the area.

WDFW was the lead agency for public notice for the application. WDFW issued a Determination of Non-Significance in January 2015 for the project. The City of Tumwater issued a notice of application for the project and the application was deemed complete on January 20, 2016. The notice was published in The Olympian, posted on the project site, and sent to property owners located within 300 feet of the boundaries of the site. The hearing notice was published in The Olympian on March 28, 2017 and sent out to the City’s notification list on March 27, 2017.

Examiner Reeves reported Exhibit 5, Certification of Public Notice, includes different information than the Staff Report in terms of the notice of application posted in 2014 and published in 2014. Manager Carlson responded that the dates are typographical errors. The public hearing notice was sent on March 27, 2017 and published in The Olympian on March 28, 2017. The application was determined to be complete on January 20, 2016. The notice of application was issued on January 26, 2016 and published in The Olympian on January 27, 2016.

Manager Carlson reported two comments received to date were from the Department of Ecology pertaining to the freshwater intake and toxic cleanup, and the requirement for a Section 404 Permit through the U.S. Army Corps of Engineers for water quality certification. Additionally, the applicant must secure Coastal Zone Management Certification from the Department of Ecology.

In terms of regulatory requirements, the project site is located within the City’s Brewery District of the Tumwater Comprehensive Plan. The use is consistent with the Tumwater Comprehensive Plan. Consistency with the Tumwater Parks, Recreation and Open Space Plan was evaluated. Although the park is privately owned by the Olympia Tumwater Foundation, WDFW has a lease agreement with the Olympia Tumwater Foundation for the hatchery. The City has plans to construct the Deschutes Valley Trail, with part of the trail bisecting the site.

The site is located within the Historic Commercial zone within the Tumwater Zoning Code. The zone district permits fish hatcheries. A small portion of the project site is located in the City’s Floodplain Overlay zone. Zoning allows for those types of facilities within the overlay zone.

The project requires the removal of 14 trees within the proposed project’s footprint. To mitigate the removal, WDFW developed a landscape plan TUMWATER HEARING EXAMINER MINUTES OF MEETING April 12, 2017 Page 4

and a riparian buffer enhancement plan for the project to meet conditions in the City’s Tree Protection and Replacement Ordinance. The plan includes planting of 28 trees within the project footprint.

The project site is located in the Urban Conservancy designation of the City’s Shoreline Master Plan. The proposed use is permitted within that zone. Staff reviewed the proposed project against numerous goals, policies, and regulations within the Shoreline Master Plan to include environmental impact mitigation, critical areas and shoreline, vegetation conservation, public access, water quality, flood hazard reduction, parking, signage, historical and archeological resources, and scientific and educational uses. The Staff Report includes information on the analysis of the applicable sections, policies, regulations. Staff determined the project was consistent with all the sections of the Shoreline Master Plan with conditions as outlined in the Staff Report.

The property is also located on the National Historic Register and is of cultural resource interest to the Squaxin Island Tribe. The applicant is working with the Tribe on the fisheries aspect of the proposed project, as well as on potential cultural resources impacts. A condition was included for a stop work requirement should any cultural resource be discovered.

Under the chapter on Shoreline Modification Policy and Regulations, staff analyzed the applicable sections of chapter. Since the freshwater intake is located below the ordinary high water mark, no further shoreline stabilization is required. The structure is a concrete metal box that is self- stabilizing.

Staff reviewed the section on dikes, levies, and instream structures and found that since the freshwater intake is below the ordinary high water mark, it is considered as an instream structure.

Staff reviewed dredging policies and regulations and determined that the installation of the freshwater intake would require some limited dredging (50 cubic yards) in the river, which requires a temporary coffer dam to enable the construction of the facility.

Under Chapter 6, staff evaluated restoration and enhancement. The applicant submitted a Critical Areas Summary Report to include information on the trees and a small Category 3 wetland adjacent to the shoreline of the Deschutes River. The riparian section under Chapter 16.32 of the Tumwater Municipal Code (TMC) regulates allowed uses within the riparian buffer. The entire project is located within the 250-foot buffer. The fish hatchery is an allowed use within the riparian habitat buffer.

Within Chapter 7 of the Shoreline Master Program, staff examined General TUMWATER HEARING EXAMINER MINUTES OF MEETING April 12, 2017 Page 5

Policies and aquaculture and recreation provisions and determined the project would be consistent with applicable policies and regulations.

Manager Carlson reported staff recommends approval of the Shoreline Substantial Development and Shoreline Substantial Development Conditional Use Permit with the conditions outlined in the Staff Report. Additionally, the applicant was required to complete another review process by the City, as the hatchery is located within the City’s Historic Commercial District requiring a Certificate of Appropriateness for the project. Exhibit 11 is the minutes from the Historical Preservation Commission meeting. The Commission issued the Certificate of Appropriateness with four conditions as outlined in the Staff Report.

Examiner Reeves asked whether the conditions issued by the Commission were included in the overall conditions or included in the Staff Report. Manager Carlson advised that the conditions were incorporated within the conditions as #9 on page 29 of Staff Report. The conditions are as follows:

1. WDFW must incorporate a replica section of the historic railway into the site design. 2. The roof on the rearing pond must replicate the mill that was originally on that site. 3. WDFW will do a one-time removal of woody debris that has accumulated on top of the upper Tumwater Falls. 4. WDFW will coordinate with Tumwater Parks Department to accommodate the routing of the Deschutes Valley Trail through the project.

Examiner Reeves asked whether the Tumwater Comprehensive Plan, Zoning Code, Shoreline Management Act, or other plans been amended or changed that might affect the application. Manager Carlson advised that there were no changes affecting the application.

Examiner Reeves asked whether the Tumwater Comprehensive Plan and Master Shoreline Program are available on online. Manager Carlson affirmed the documents are available on the City’s website. All policy documents and implementing regulations are published on the City’s website.

Examiner Reeves asked whether Exhibit 9, a letter from the Department of Ecology referencing the need to pass the Variance Criteria fund in WAC 173-27-170 was not required because he understood there is no variance associated with Conditional Use Permit criteria. Manager Carlson noted the reference was incorrect as staff completed a thorough review of the application. There is no requirement for shoreline variance.

TUMWATER HEARING EXAMINER MINUTES OF MEETING April 12, 2017 Page 6

Examiner Reeves asked whether staff applied the criteria adopted in the WAC. Manager Carlson affirmed the WAC was adopted into the City’s code by reference.

Examiner Reeves said that often with Shoreline Conditional Use Permits, the RCW requires construction not to commence until 21 days following the date of the approval decision to afford a window of time to the Department of Ecology. He noted that the condition would need to be added stating that requirement. Examiner Reeves cited the condition to be added:

“The Shoreline Conditional Use Permit requires approval by the Washington State Department of Ecology pursuant to RCW 90.58.145. Construction pursuant to this approval shall not begin or be authorized until 21 days from the date the permit decision is filed as provided by RCW 90.58.140-6; or until all review proceedings are terminated if the proceedings were initiated within 21 days from the date of filing as defined in RCW 90.58.140-6 except as otherwise provided in RCW 90.58.140-5. The permit may be rescinded pursuant to RCW 90.58-140-8 in the event the applicant fails to comply with the conditions of this permit.”

Manager Carlson affirmed the addition.

TESTIMONY OF Examiner Reeves administered the oath to Douglas Mackey. APPLICANT: Douglas Mackey, WDFW, introduced WDFW Assistant Director Tim Burns, WDFW Project Manager Michael DelaCruz, and WDFW Regional Fish Program Manager James Jenkins.

Mr. Mackey displayed a photograph of the cover of the City’s Shoreline Master Program depicting Tumwater Falls and the hatchery rearing ponds and offices, which is the location of the proposed project. The photograph also depicts the location between the National Historic Register district and the area of the City’s Historic Commercial District. The federal jurisdiction of the National Historic Register site is the southern edge of the fish ladder in the area of the trail bordering the edge of the Deschutes River. Areas in the photograph located to the south near the edge of the property and to the parking lot are located within the City’s Historic Commercial District.

The project is also consistent with the four guiding principles of the Shoreline Management Act. The project supports six significant elements of the act:

1. Recognizing the protection of statewide interests over local. 2. Preserving the natural character of the shoreline. 3. Results in long-term over short-term benefits. TUMWATER HEARING EXAMINER MINUTES OF MEETING April 12, 2017 Page 7

4. Protects the resource and ecology of the shoreline. 5. Increases public access to publicly owned shoreline areas. 6. Increases recreational opportunities for the public in the shoreline areas.

Mr. Mackey displayed several demonstrative slides describing the main purposes of the facility to rear fish. Fish are introduced to the facility during different stages of life for eventual release. Eggs are spawned at other hatchery facilities for the rearing process and returned to the Tumwater facility for release at Tumwater Falls.

Mr. Mackey described the proposed facility at Pioneer Park. Both projects have been funded. The Pioneer Park facility includes an educational facility and salmon hatchery facilities.

The proposed project at Tumwater Falls Park includes new adult holding and rearing ponds, pollution abatement pond, new surface water intake, and modification to the fish ladder to enable the intake structure to feed water into the adult ponds and provide a public fish viewing area. The proposed Pioneer Park facility would bring incubation, rearing ponds, and other components needed to rear the fish prior to release. The capital budget for the Pioneer Park facility is moving forward this year.

Project design was completed and is comprised of 123 construction drawings. As part of the process with the City’s Historic Preservation Commission, WDFW is initializing the interpretative plan overlay. Mr. Mackey submitted a series of draft documents prepared by the Historic Preservation Commission.

Examiner Reeves entered the draft documents as Exhibit 12.

Mr. Mackey said completion of the final design would occur when the U.S. Army Corps of Engineers participates in a conference call on April 27 with the Department of Archeology and Historic Preservation, Squaxin Island Tribe, Tumwater Historic Preservation Commission representatives, and others to finalize interpretative historical features of the project. The interpretative period encompasses 1845 to 1906 within the Historic Commercial zone district, which includes early tribal presence, gristmill and saw mills, and water-powered streets cars in the late 1800s transporting tourists to view wildlife in fenced areas managed by Hazard Stevens. . All permits for the project have been submitted. WDFW is currently working with the Department of Natural Resources on aquatic area lease conditions. WDFW is currently working on the easements with the property owner with some soil concerns to be addressed.

TUMWATER HEARING EXAMINER MINUTES OF MEETING April 12, 2017 Page 8

Mr. Mackey reviewed the landscape plan and the mitigation plan for the riparian area and the shoreline zone.

Mr. Mackey described the historic interpretative added features incorporated within the project to include interpretative panels describing the replica of the gristmill and the lumber mill, and Native American life in the area. He pointed out the area for the replica of the railroad line and the addition of the restroom.

Examiner Reeves asked whether the permitting submittals include Section 401 and 404 Permits. Mr. Mackey affirmed those permits were in process. The U.S. Army Corps of Engineers indicated the permit would be issued as a Nationwide Permit. Under the current Nationwide Permit conditions, the Department of Ecology 404 Permit conditions would also be included.

Examiner Reeves inquired about issues surrounding water rights associated with the intake facility. Mr. Mackey reported that the current authorization is 50 cfs allocated to the facility serving the fish ladder and the intake for the existing hatchery. The location would be split because the intake would be located at the exit at the upper part of the fish ladder and moved by 112 feet to a new location as identified in the drawings. The water right description encompasses both locations eliminating the need for WDFW to apply for a change in the diversion site.

Examiner Reeves inquired about the timing of original construction of the facility. Mr. Mackey said the fish ladder was completed in 1953. The ponds were developed in the mid-1960s and the building was constructed in the early 1990s.

Examiner Reeves asked about any advantage or reason hatchery water would be used as reclaimed water for irrigation or groundwater recharge instead of discharging to the river. Mr. Mackey advised that there are no plans for irrigation or alternate use projected in the plans.

Examiner Reeves asked about the source of soil contamination. Mr. Mackey replied that an erroneous reference by the Department of Ecology refers to an earlier letter that was filed when responding to the SEPA. The letter references a brewery site across the river. He spoke to the Department of the Ecology about the issue. A Model Toxic Control Act site was designated and discovered during LOTT Clean Water Alliance’s installation of a 2009/2010 conveyance pipe. During excavation, soil sheen was discovered with some of the excavated soils inadvertently consolidated. Testing revealed high quantities of lead. As excavation continued, some limited quantity of petroleum was discovered. The site has a lower ranking of 2. The site is near the location of the vault for the stormwater filter system proposed for the site. WDFW also assisted the landowner to explore areas of concern. Future plans include addressing TUMWATER HEARING EXAMINER MINUTES OF MEETING April 12, 2017 Page 9

the pollution by moving and treating the soils as appropriate.

Examiner Reeves asked whether the applicant agrees with the proposed conditions to include the additional condition concerning the 21-day waiting period. Mr. Mackey said staff is very familiar with the requirement. He has reviewed all the conditions with Manager Carlson. He thanked Manager Carlson for his assistance. WDFW accepts the conditions.

PUBLIC Examiner Reeves administered the oath to Nancy Partlow. TESTIMONY: Nancy Partlow, 1841 Trosper Road, asked about the difference between the current tanks and the new tanks as vegetation mitigation speaks to the removal of 12,500 square feet of vegetation with 14,250 square feet of replacement vegetation, which appears to be a 1:1 ratio but should be more especially since the facility is located within the 250 foot riparian zone.

Examiner Reeves asked whether Ms. Partlow would like City staff and the applicant to address the concerns. Ms. Partlow reported the proposal speaks to large cement tanks located next to the river, which have been an eyesore since they were originally constructed. The proposal speaks to larger tanks with several large maple trees proposed for removal, which is concerning. Additionally, the plan for historic mitigation requested by the Tumwater Historical Preservation Commission would be completed by WDFW. The proposal speaks to fish and history but doesn’t speak to wildlife in the area. The Deschutes River watershed is large and extends into Lewis County. Many people visit Tumwater Falls Park and view the massive amounts of water as it flows down the river. Most visitors have no understanding of where the water originated. More educational components on the watershed and wildlife should be included. She has authored several stories about birds that use the park daily. American Dippers are the only aquatic songbirds in the United States. She has watched the birds hunt for caddisfly larvae near the area of the intake by the fish tanks. The birds feed their babies on logs. Interpretative information about wildlife in the park and the watershed has been a missing component in the park for a long time.

Ms. Partlow asked about the location of the Deschutes Valley Trail through the site. As the fish tanks are large cement tanks, she asked about any mitigation for aesthetics, such as vegetation along the tanks. Although she believes the planting plan is a good plan, she would prefer more variety in native plants as it attracts wildlife. She is also surprised that more mitigation was not required for the impervious footprint of the proposed project. At Pioneer Park, WDFW proposes to mitigate all impervious surface with a long swale. Similar mitigation appears to be lacking for the proposal.

TUMWATER HEARING EXAMINER MINUTES OF MEETING April 12, 2017 Page 10

Mr. Mackey responded to the concerns. The final text for many of the interpretative panels has not been completed. Text for the panels will be determined during discussion with the Department of Archeology and Historic Preservation to balance the natural history with human history. He thanked Ms. Partlow for the information on the American Dippers. In terms of the side panels of the fishway and rearing ponds, the proposal includes glass panels to enable viewing of fish as they enter the hatchery. Four glass panels are planned in the public area. Near the corner where the fish ladders turn to the adult ponds, two glass panels will be featured. He pointed out the features on several of the presentation photographs and on the artist rendering. Additionally, interpretative panels will be featured.

Examiner Reeves inquired about public comment opportunities for the interpretative panels. Mr. Mackey said two companies have been identified to produce the panels with final requirements pending from the Department of Archeology and Historic Preservation and the U.S. Corps of Engineers. Additionally, there are budget constraints to consider. He offered the opportunity for the public to provide suggestions but could make no guarantees.

Examiner Reeves administered the oath to James Jenkins.

Mr. Jenkins added that WDFW also plans to establish a community group comprised of schools and concerned citizens. WDFW has worked with the City for outreach to the community. Additionally, the City’s educational center at the new Pioneer Park facility would be integrated with the hatchery facility at Pioneer Park.

Mr. Mackey addressed concerns about the planting plan. Both WDFW and the Olympia Tumwater Foundation have requirements for native vegetation. He offered information on some native cedar shrubs that are low maintenance. The landscape addressed the inclusion in some of the plant selections.

Manager Carlson addressed the requirements of the planting area. The Cityaddresses vegetation requirements in two sections of the TMC. The project site includes a small Category 3 wetland adjacent to the shoreline with a 40-foot buffer requirement. He displayed an aerial photograph of the project site and identified the location of the small wetland. The wetland ordinance includes specific replacement ratios for disturbances of wetlands. However, the project is an allowed use and no specific mitigation is required under the Wetland Protection Ordinance. Replacement ratios vary between 1:1 to 6:1 dependent on the category rating of the wetland and the project scope. The City’s Fish and Wildlife Habitat Protection Ordinance in TMC 16.32 does not require specific replacement ratios. The proposed ratio is 1:1, which complies with the ordinance. TUMWATER HEARING EXAMINER MINUTES OF MEETING April 12, 2017 Page 11

Examiner Reeves addressed the opportunity for community involvement and a future community group. He encouraged WDFW to exchange information with the public concerning public involvement opportunities.

ADJOURNMENT: With there being no additional public testimony, Examiner Reeves closed the public hearing at 8:14 p.m.

Prepared by Meeting Services, [email protected]