BEFORE THE HEARING EXAMINER FOR THURSTON COUNTY · Attachment j: July 13, 2001 Letter from Shanna Stevenson, Thurston County Historic Commission Attachment k: July 16, 2001 Letter

BEFORE THE HEARING EXAMINER FOR THURSTON COUNTY

In the Matter of the Application of ) NO. SUPT/SSDP/SHCU 010492 ) Northwest Pipeline Corporation ) FINDINGS, CONCLUSIONS ) AND DECISION For Approval of a Special Use Permit, ) Shoreline Substantial Development Permit ) and Shoreline Conditional Use ) Permit. ) )

SUMMARY OF DECISION The request for approval of a Special Use Permit and a Shoreline Substantial Development Permit to construct and operate a 20-inch diameter natural gas pipeline from Northwest’s mainline pipeline located near Vail, Washington to the western Thurston County boundary south of State Route 8 is DENIED. A portion of the pipeline does not comply with the criteria for approval of a shoreline permit and, therefore, cannot be approved for a Special Use Permit or for a Shoreline Substantial Development Permit. Other portions of the proposed pipeline will comply with the criteria for approval established by the Thurston County Board of Commissioners with conditions of approval. The Shoreline Substantial Development Permit and Shoreline Conditional Use Permit are APPROVED, with conditions, for these areas. In addition to his decisions on the permit requests, the Hearing Examiner expresses concern about the need for the electricity proposed to be produced by Duke Energy at Satsop1 by burning natural gas supplied by the pipeline. A review of the need for the proposed pipeline was part of the Hearing Examiner’s consideration of the pipeline proposal under criteria established by the Board of Commissioners within the Thurston County Code. The Applicant submitted a “verification of need” that relies upon sales of power to an affiliate of Duke Energy based upon

1 The Satsop site is the site of the Washington Public Power Supply System’s Projects 4 & 5, terminated following a historic default on the payment of municipal bonds issued to fund those projects.

Thurston County Hearing Examiner Decision Northwest Pipeline Applications for Special Use Permit, Shoreline Conditional Use Permit & Shoreline Substantial Development Permit. SUPT/SSDP/SHCU 010492 Page 2

an analysis of the energy market completed by a contractor to Duke Energy.2 There may be significant energy policy and financial impacts if the energy produced cannot be sold within the region or if the sales price is below projections. However, the consequences of power sales outside the region or no power sales at all were not addressed by any party to the open record hearing and are therefore outside the scope of review of the Hearing Examiner.

SUMMARY OF RECORD Request: Northwest Pipeline Corporation (Applicant) requested approval of a Special Use Permit, Shoreline Substantial Development Permit and Shoreline Conditional Use Permit to construct and operate a 20-inch diameter natural gas pipeline from Northwest’s mainline pipeline located near Vail, Washington to the western Thurston County boundary south of State Route 8. Hearing Date: An open record hearing on the request was held before the Hearing Examiner of Thurston County on April 4 and 5, 2002. Testimony: At the open record hearing the following individuals presented testimony under oath: April 4, 2002 Public Testimony: 1. Hank Henry, Project Manager for Applicant 2. Aaron Clark, PIC Technologies, Inc. 3. Robert Smith, Thurston County Development Services 4. Gary Duvall, Thurston County Environmental Health 5. Cindy Wilson, Thurston County Development Services 6. Scott Davis, Thurston County Roads & Transportation Services 7. Jenny Deinlein, President Cougar Ridge Homeowners Association 8. Frank Mackin 9. Cliff Knitter 10. Donald Houston 11. Grant Jensen, NW Pipeline District Manager 12. M.A. Radwan 13. Shawn Rogers 14. Andrew Paik 15. Ron Blake 16. Rodney Gregory, Williams Pipeline

2 Duke Energy Grays Harbor contracted with Duke Energy Trading & Marketing (DETM) for 100 percent of the power produced at the Satsop facility. Duke Energy and Exxon-Mobil jointly own DETM. DETM commissioned an “independent review of commercially available supply and demand side resources” that was performed by Litchfield Consulting Group. Exhibit 21.


17. Scott Newton 18. Hilbert Haag 19. Donald Houston 20. Ron Blake 21. Frank Mackin April 5, 2002 Public Testimony 22. Dennis McVay 23. Earl Emerson 24. Jerry Dierker 25. G. Hastings 26. Mike Pelly 27. Hank Henry 28. Rodney Gregory 29. Cliff Knitter 30. Jenny Deinlein 31. Aaron Clark 32. Grant Jensen 33. Frank Mackin 34. Andy McNeil, Project Manager for Duke Energy in Grays Harbor Attorney Brian Knox of Preston Gates Ellis represented the Applicant during the hearings. Exhibits: At the hearing the following exhibits were admitted:

EXHIBIT 1 Development Services Department Staff Report for SUPT, with attachments:

Attachment a: Notice of Hearing

Attachment b: Site Map

Attachment c: Special Use Permit Application

Attachment d: Supplemental Application Information Attachment e: Project Description Attachment f: Project Route Maps Attachment g: Determination of Significance and EIS Scoping Notice dated August

31, 2001 Attachment h: March 7, 2002 Comment Memorandum from Thurston County Roads

and Transportation Services


Attachment i: March 19, 2002 Letter from Gary Duvall, Thurston County Environmental Health Department

Attachment j: July 13, 2001 Letter from Shanna Stevenson, Thurston County

Historic Commission Attachment k: July 16, 2001 Letter from Chris Carlson, City of Tumwater Attachment l: Comment Letters from Neighboring Property Owners and Other

Interested Parties

1. July 10, 2001 from Ron V. Blake 2. July 10, 2001 from Donald W. Huston 3. July 14, 2001 from Eric and Susan Gillett 4. July 14, 2001 from Kenneth N. Schnur 5. July 16, 2001 from Patricia Barber 6. July 16, 2001 from Terry Barber 7. July 13, 2001 from Darby and Leona Vixen 8. July 17, 2001 from the Cougar Ridge Homeowners Association 9. July 20, 2001 from Edward D. and Kari E. Richardson 10. July 20, 2001 from Leonard Woski 11. July 20, 2001 from Frank D. Mackin, Jr. 12. July 21, 2001 from Patrick M. Finney 13. July 21, 2001 from Mary Ann Veria 14. July 22, 2001 from Bill and LaVonda McCandless 15. July 24, 2001 from Myke Gable and Lori Grunenfelder 16. July 25, 2001 from Douglas L. Peters 17. July 25, 2001 from Fayette F. Krause of The Nature Conservancy 18. July 25, 2001 from Mr. & Mrs. Donald Long 19. July 26, 2001 from Davis K. Palmer of Cullen Law Office LLP 20. August 2, 2001 from the Cougar Ridge Homeowners Association 21. August 7, 2001 from Allen and Kathleen Rubin 22. August 14, 2001 from Jon Dunn 23. August 23, 2001 from Patrick, Jill and Brett Wilson 24. September 20, 2001 from W. Alex Brady, II of Cushman Law

Offices, P.S.

Attachment m: Cougar Ridge Subdivision Site-Specific Construction Plan dated March 19, 2002

EXHIBIT 2 Development Services Department Staff Report for SSDP/SHCU, with

attachments:

Attachment a: Notice of Hearing


Attachment b: JARPA Application Attachment c: Project Alignment Vicinity Map and Plans

Attachment d: SEPA Final Environmental Impact Statement dated March 2002 Attachment e: Project Description Attachment f: Description of HDD Construction

Attachment g: Geo-Hazards Report dated May 2001

Attachment h: Geotechnical Report for the Horizontal Directional Drill Crossing Plans dated May 2001

Attachment i: Supplemental Geotechnical Report for the HDD Crossings dated

October 2001 EXHIBIT 3 July 2, 2001 Letter to Cynthia Wilson and Michael Kain, Thurston County

Development Services from Carolyn Last, PIC Technologies, Inc. (reference to construction hours only)

EXHIBIT 4 April 3, 2002 Comment Letter from Gary Duvall, Thurston County

Environmental Health EXHIBIT 5 April 2, 2002 Comment Letter from Scott Davis, Thurston County Roads &

Transportation Services EXHIBIT 6 Public Comment Letter from M.A. Radwan dated March 31, 2002 EXHIBIT 7 Public Comment Letter from Hilbert Haag received April 3, 2002 EXHIBIT 8 Map of Black River MP 18.73 Horizontal Directional Drill Depicting Proposed

and Existing Pipeline dated January 10, 2001 EXHIBIT 9 April 3, 2002 Letter from United States Department of Interior, Nisqually

National Wildlife Refuge EXHIBIT 10 Public Comment Letters

1. Tracy A. Radwan dated April 4, 2002 2. M. A. Radwan dated April 1, 2002 3. M.A. Radwan dated March 31, 2002 4. Donald W. Houston dated April 1, 2002 5. Merlyn & Barbara Luhr dated March 26, 2002


6. Tom Chewhall (not dated) 7. Donald W. Houston dated April 5, 2002

EXHIBIT 11 Geodata Center/Interactive Maps Depicting Aerial of Deschutes River at HDD

Crossing Location; Deschutes River HDD Exist Point; Shoreline Jurisdiction based on Geodata 200’ Setback from Ordinary High Water Mark; FEMA 100 Year Flood Management Zone

EXHIBIT 12 Hearing Brief of Jerry Lee Dierker, JR. EXHIBIT 13 No Exhibit Submitted EXHIBIT 14 Natural Gas and Hazardous Liquid Pipeline Background Report produced by

Whatcom County EXHIBIT 15 United States of America Federal Energy Regulatory Commission Preliminary

Determination of Non-Environmental Issues dated November 8, 2001 – Docket No. CP01-361-000

EXHIBIT 16 Noise Measurements/Projections produced by Scott Bodwell, Licensed Engineer EXHIBIT 17 Aerial Photograph of Cougar Ridge Subdivision Depicting Proposed Pipeline and

Rights-of-Way dated December 3, 2001 EXHIBIT 18 Resume of Clifford Knitter EXHIBIT 19 April 1, 2002 Letter to the Federal Energy Regulatory Commission from Gary

Kotter, Williams Northwest Pipeline Corporation regarding Responses to the Environmental Data Requests in the Office of Energy Projects March 26, 2002 Letter

EXHIBIT 20 INGAA Natural Gas Pipeline Impact Study, 2001 EXHIBIT 21 October 30, 2001 Letter from Kevin R. Johnson, Duke Energy North America;

Electric Capacity and Energy Sales Agreement dated October 1, 2001; Site Certification Agreement Between The State of Washington and Energy Northwest/Duke Energy Grays Harbor, LLC for the Satsop Combustion Turbine Project

EXHIBIT 22 Comment Letter from Frank D. Mackin, Jr. dated April 18, 2002 regarding

Exhibit 20, INGAA Natural Gas Pipeline Impact Study


EXHIBIT 23 Comment Letter from Patrick Menendez dated April 19, 2002 regarding Exhibit 20, INGAA Natural Gas Pipeline Impact Study

EXHIBIT 24 Applicant's Response to Comment Letters by Mr. Mackin and Mr. Menendes

dated April 22, 2002 Upon consideration of the testimony and exhibits, the Hearing Examiner enters the following Findings and Conclusions:

FINDINGS

General Findings 1. Northwest Pipeline Corporation (Applicant) proposes to construct a 20-inch diameter

natural gas pipeline from its existing mainline located near Vail, Washington to the western Thurston County boundary south of State Route 8. Milepost 0 is located at the proposed tie-in to the existing natural gas pipeline. The line proceeds to milepost 32.73 at the western Thurston County boundary. Exhibit 1, Staff Report, Page 2.

2. The Special Use Permit application applies to the portions of the project in the rural

designated area of the County. These portions include milepost (MP) 0 to MP 13.6 and MP 17 to MP 32.73. Exhibit 1, Staff Report, Page 2.

3. Wetlands and streams are considered critical areas and are subject to standards of the

Thurston County Critical Areas Ordinance, TCC 17.15. The Deschutes River, the Black River, Dempsey Creek, and associated wetlands are within the jurisdiction of the Shoreline Master Program. Exhibit 1, Staff Report, Page 3.

4. The proposed pipeline will cross the Deschutes River, a Conservancy Shoreline; the

Black River and Dempsey Creek, Natural Shorelines; and McLane Creek. Horizontal Directional Drilling (HDD) will be used for these crossings. Other crossings include numerous smaller creeks and state, local, and private roads. These crossings will be accomplished using techniques other than HDD; “fluming” will be used for waterways, and either “open cut” or “boring” will be used for roadways. Exhibit 2, Attachment b, Appendix A, Page 36.

5. The proposed pipeline will cross several land use zones. These zones include the Rural

Residential Resource-One Dwelling Unit Per Five Acres (RRR1/5), the Rural Residential-One Dwelling Unit Per Two Acres (RR1/2), the Rural Residential-One Dwelling Unit Per One Acre (RR 1/1), Long Term Forestry Zoning District (LTF), and the Military Reservation District (MR). Exhibit 1, Staff Report, Page 2.

6. Written notice of the public hearing was sent to all property owners within 500 feet of the

site on March 21, 2002. Notice was published in The Olympian and posted along the


proposed route on March 25, 2002. Exhibit 1, Staff Report, Page 4; Testimony of Ms. Wilson.

Findings on Need for Energy 7. An evaluation of the need for the pipeline is required to determine if the pipeline proposal

has an “overriding public benefit” such that substantial or unreasonable adverse impacts should be tolerated.3 An evaluation of the need for the pipeline necessarily involves a determination of the need for the energy facility at Satsop. During the Applicant’s testimony, the Examiner asked the Applicant to describe its determination of energy need. The Applicant deferred to a determination for energy need made by the Energy Facility Site Evaluation Council (EFSEC), and relied on a 30-year supply agreement with Energy Northwest and Duke Energy Grays Harbor (DEGH). The EFSEC determination is captured in a public document, Order No. 694, Council Order Recommending Site Certification, dated March 14, 1996. Within this document, a reference is made to an agreement between the Supply System and the Washington State Energy Office relating to verification of energy need.4 The Order states that “neither unit will be constructed unless the Supply System satisfies the requirements relating to verification of need set out in Supply System’s agreement with the Washington State Energy Office.” Energy Facility Site Evaluation Council, Order Recommending Site Certification, Public Document Order No. 694, page 22. Although the document referred to was not available at the hearing, the Applicant agreed to submit it by April 12, 2002. Representation of Mr. Knox.

In a letter dated April 11, 2002, the Applicant stated that he was “unable to track [the requested document] down.” Exhibit 21, Letter from Mr. Knox. However, the Applicant submitted two additional documents: a 2001 Site Certification Agreement (SCA) Between the State of Washington and Energy Northwest/Duke Energy Grays Harbor, and a letter to Allen Fiskdall, Manager, EFSEC, from Kevin Johnson, Director, Energy Northwest dated October 30, 2001. The SCA conditions approval on entering into “one or more power purchase agreements that provide in the aggregate for the purchase and sale of at least 60% of the design capacity.” Additionally, the SCA requires that “any purchaser entering into a power purchase agreement for more than 40% of the capacity of the generating unit must have reviewed commercially available supply and demand side resources, and that the Combustion Turbine project must be consistent with the priorities and principles expressed in the Northwest Conservation and Electric Power Plan.” Exhibit 21, Site Certification Agreement. To satisfy the first requirement, the Applicant stated “Duke Energy Grays Harbor has entered into a power purchase agreement with Duke Energy Trading and Marketing, LLC, to purchase 100% of the output of the Satsop CT Project for the first five years of operation.” Exhibit 21, Letter from Mr. Johnson. To

3Criteria for Review of Special Use Permit, TCC 20.54.040(3)(a). 4 The referenced “Supply System” is the Washington Public Power Supply System, which now operates under the name “Energy Northwest.” The State of Washington approved Duke Energy as a co-agreement holder on February 12, 2001. Exhibit 21, Site Certification Agreement.


satisfy the second requirement, the Applicant stated that it was “in the business of acquiring a variety of cost-effective resources” and that it had “specifically commissioned an independent review of commercially available supply and demand side resources with respect to a variety of factors including economics, ability to dispatch, reliability and environmental considerations.” Exhibit 21, Letter from Mr. Johnson.

The Applicant testified that energy need determinations for the proposed pipeline should be evaluated based on whether there is a need for the supply of natural gas. Stating that there was such a need, the Applicant emphasized its 30-year agreement with Energy Northwest and Duke Energy Grays Harbor for the supply of natural gas. Further, the Applicant testified that transportation of gas is not related to the ability to sell energy. In response to the Examiner’s question regarding the life expectancy of the proposed pipeline, the Applicant testified that it would be at least as long as the term of the supply contract. Testimony of Mr. Henry.

Findings on Environmental Impacts

Surface Water

8. Four Water Resource Inventory Areas (WRIAs) underlay the project area: the Deschutes Basin (WRIA 13), the Shelton Basin (WRIA 14), the Lower Chehalis Basin (WRIA 22), and the Upper Chehalis Basin (WRIA 23). The Deschutes River system is the principal drainage within the Deschutes Basin. Several of the drainages in this basin enter Puget Sound independent of the Deschutes River system. There are no major river systems within the Shelton Basin. All of the streams within the Shelton Basin are typical, lowland streams with their headwaters originating from natural springs and surface water drainage that ultimately flow to Puget Sound. The Lower Chehalis River Basin consists of the Chehalis River watershed with two major drainage systems (Humptulips and Hoquiam) and a number of minor independent drainages. Exhibit 2, Attachment d, Page 3-2.

9. The proposed action will cross a total of 37 water bodies (Exhibit 2, Attachment d, Table

3-1, Pages 3.5-3.6). Of the 37 water bodies, 23 are in Thurston County and 14 are in Grays Harbor County. Exhibit 2, Attachment d, Page 3-4.

10. The proposed pipeline project will have minor, short-term impacts on surface waters.

These impacts will occur as a result of in-stream construction activities or construction on slopes adjacent to stream channels. To minimize adverse impacts at water body crossings, the Applicant proposes to adopt and implement FERC’s Upland Erosion Control, Revegetation, and Maintenance Plan. Additionally, the Applicant proposes to adopt FERC’s Wetland and Water body Construction and Mitigation Procedures. Exhibit 2, Attachment d, Page 3-7.

11. For those streams that are crossed directly by the pipeline above the ground, construction

of the pipeline crossing will increase erosion adjacent to streambanks due to clearing of


vegetative cover and grading. Compaction of soils by heavy equipment near streambanks will accelerate erosion of the banks and the transportation of sediment carried by runoff water into the water bodies. During construction, the open trench created by crossing techniques may accumulate water either from groundwater intrusion or precipitation. The trench will need to be “dewatered” periodically to allow for efficient and safe construction. “Dewatering” will include pumping the water from the trench into vegetated upland areas through a straw bale structure or filter bag. Exhibit 2, Attachment d, Page 3-11.

12. Equipment fueling and storage of oil, fuel or other materials near water bodies will cause

an adverse water quality impact if a spill were to occur. Leaks from equipment and vehicles could also cause potential impacts to surface waters. To mitigate these potential impacts, hazardous materials, chemicals, fuels, and lubricating oils will be stored in upland areas at least 100 feet from water bodies. Exhibit 2, Attachment d, Page 3-11.

13. During construction of the pipeline, existing flow rates of streams will be maintained to

protect aquatic life and prevent the interruption of existing downstream uses. If water is present in the stream bed at the time of construction, the Applicant will flume crossings of all minor and intermediate water bodies consistent with the requirements of Section V.B.7 of FERC’s Wetland and Water Body Construction and Mitigation Procedures. Exhibit 2, Attachment b, Appendix A, Page 57.

14. Hazardous materials, chemicals, fuels and lubricating oils will not be stored nor will

concrete-coating activities be performed within 100 feet of any water body (whether flowing or not at the time of construction). The Applicant will not fuel construction equipment within 100 feet of any water body (whether flowing or not at the time of construction). Exhibit 2, Attachment b, Appendix A, Page 57.

15. If water is present in the streambed at the time of construction, only clearing equipment

will be allowed to cross water bodies before installation of an equipment bridge. The number of such crossings will be limited to one per piece of equipment. All other construction equipment will only cross water bodies with water in the streambed using equipment bridges. Bridges will be designed and maintained to withstand and pass the highest flow that will occur while the bridge is in place. Bridges will be maintained to prevent soil from entering the streams, and equipment bridges will be removed as soon as possible after permanent seeding. Exhibit 2, Attachment b, Appendix A, Page 57.

16. Sediment barriers will be installed immediately after initial disturbance of the water body

or adjacent upland. Sediment barriers will be properly maintained throughout construction and reinstalled as necessary until replaced by permanent erosion controls or restoration of adjacent upland areas is complete. Exhibit 2, Attachment b, Appendix A, Page 57.


Groundwater 17. Two aquifer systems will be impacted by construction of the proposed pipeline. The first

aquifer system is a major, unconsolidated-deposit aquifer. This type of system is the most widespread in Washington. The second aquifer system consists of water in pre-Miocene rocks, and is classified as a minor aquifer. These aquifers typically yield saltwater, and can contaminate overlying freshwater aquifers. Groundwater is the primary source of drinking water in the area impacted by the proposed pipeline construction. Exhibit 2, Attachment d, Page 3-19.

18. The closest sole-source aquifer is the Central Pierce County Aquifer. A sole-source

aquifer is one that the federal Environmental Protection Agency has determined is the principal source of drinking water for an area or region. The western edge of the Central Pierce County Aquifer is the boundary between Thurston and Pierce counties, which is more than six miles from the project area. The Scatter Creek Aquifer in Thurston County meets the geologic criteria for a sole-source aquifer,5 but it has not been designated as such and there are no county ordinances that specifically address this aquifer. Exhibit 2, Attachment d, Page 3-19.

19. The North Thurston County Groundwater Management Area (GMA) is located in the

project area. A GMA is a specific geographic area for which a groundwater management program is required. WAC 173-100; Exhibit 2, Attachment d, Page 3-20

20. Thurston County contains Areas of Groundwater Concern. These are areas where there is

un-glaciated bedrock with a limited supply of groundwater. Although these areas are currently not contaminated, there is concern for potential contamination to these areas because of the limited supply of groundwater. Exhibit 2, Attachment d, Page 3-20.

21. Thurston County Code establishes Wellhead Protection Areas in 17.15.855. A Wellhead

Protection Area means the surface and subsurface area surrounding a water well or well field, supplying a public water supply system with over one thousand connections, through which contaminants are reasonably likely to move toward and reach such well or well field within one, five and ten years. A designated wellhead protection area is an area for which the water purveyor has adopted a wellhead protection plan and the Washington State Department of Health has approved the plan. TCC 17.15.200. There are eight (8) Group A public water supply wells that are within 200 feet of the proposed pipeline. Group A supply wells are federally regulated public water supply wells that have 15 or more connections or service 25 or more people. There are five (5) Group B wells that may be within 200 feet of the proposed pipeline. A Group B well is a public supply well that is regulated by the State of Washington and includes all public water supply wells which are not included in Group A but have a least two connections. Exhibit 2, Attachment d, Page 3-21.

5 The criterion is “single aquifer underlain by impermeable bedrock.”


22. Approximately 1-¼ miles of the proposed pipeline will cross the Wellhead Protection Area associated with the City of Tumwater municipal water supply system. The City of Tumwater is 100% dependent on groundwater for its drinking water supply and approximately 75% of the drinking water supply comes from an area impacted by the proposed project. The portion of the wellhead protection area that will be crossed by the proposed pipeline is not within the City of Tumwater. The County has suggested to the Applicant that consideration be given to excluding aboveground facilities within a wellhead protection area. The County has also recommended that the same measures be applied in the wellhead protection areas that are applied in other environmentally sensitive areas. The Applicant agreed not to locate any aboveground facilities within wellhead protection areas. Additionally, the Applicant agreed to meet with Thurston County and the City of Tumwater to discuss recommended mitigation measures for construction within a wellhead protection area. The Applicant also stated that any natural gas leak would have far less impact than would a liquid gas leak in that a natural gas leak would not leach into the groundwater system. Exhibit 2, Attachment d, Page 3-32, 3-34.

23. Thurston County Code allows natural gas pipelines within Wellhead Protection Areas.

TCC 17.15.855. The proposed action crosses through four of the Wellhead Protection Areas established in TCC 17.15.850: the Longhorn Estates, the Mulford Estates, the Evergreen Shores, and the Cougar Ridge Wellhead Protection Areas. Exhibit 2, Attachment d, Page 3-21, 3-27.

24. Private groundwater wells and springs are located within 200 feet of the proposed

pipeline. These wells are likely located at one or more of the many residences located along the proposed route. Pre-construction surveys will be conducted to confirm the presence and location of the wells. A Groundwater Monitoring and Mitigation Plan will identify impacts to affected wells and a mitigation plan will be developed to protect the individual wells and springs. Exhibit 2, Attachment b, Page 3-34.

25. The proposed action crosses the North Thurston County GMA for a total distance of

15.32 miles. The Department of Ecology has not adopted regulations for the North Thurston County GMA. Thus, the Thurston County Code does not currently contain any regulations relating to the North Thurston County GMA. Exhibit 2, Attachment d, Page 3-21.

26. The proposed action crosses Critical Aquifer Recharge Areas for a total of 27.20 miles.

Pursuant to TCC 17.15.530, a hydrological report may be required if (1) there is insufficient groundwater information to perform an adequate review to assure aquifer protection; (2) the project is likely to possess, store, use, transport, or dispose of hazardous materials; or (3) if there is evidence of groundwater degradation, or known groundwater contamination, in the vicinity of the proposed project and the project would influence or be influenced by the water quality degradation. A report has not been required because the County found that there is no threat of groundwater contamination


during construction and operation of the project. TCC 17.15.530; Exhibit 2, Attachment d, Page 3-21.

27. The nearest known and identified contaminated site is the Restover Truck Stop, which is

located about 1/3 mile from the proposed pipeline. Two members of the public testified about concerns relating to the existence of another contaminated site along the proposed route. Their testimony alleged that property along the proposed route contains soils contaminated by the disposal of “millions of gallons of hazardous liquids.” Testimony of Mr. Dierker and Mr. Huston. The County responded that there was no evidence to support the allegations. Testimony of Ms. Wilson. The Applicant responded by stating that they were “surprised” by the allegations because periodic aerial inspections and consultations with the Department of Ecology have not revealed any hazardous waste disposal sites. Testimony of Mr. Clark. Although the Applicant does not anticipate crossing any areas of known groundwater or soil contamination, if any groundwater or soil contamination is observed during construction, sampling will be conducted by the Applicant. The Applicant will then notify the Department of Ecology Environmental Report Tracking System Coordinator at the Southwest Regional Office within 24 hours of discovery. Exhibit 2, Attachment d, Page 3-27.

28. Clearing of vegetation, excavation and dewatering of the trench, soil mixing and

compaction, and fuel and lubricant handling may have the most significant impact on groundwater. The Applicant proposes to mitigate impacts from these activities by compliance with the FERC’s Wetland and Water Body Construction and Mitigation Procedures. Exhibit 2, Attachment d, Page 3-34.

29. As a result of blasting, temporary changes in water level and turbidity may affect

groundwater quality and well systems along the proposed route. In order to mitigate the possible impacts of blasting, the Applicant proposes to limit rock fracture to the immediate vicinity of detonation. If impact does occur, mitigation will be provided as described in the Groundwater Monitoring and Mitigation Plan. Exhibit 2, Attachment d, Page 3-35.

30. Groundwater contamination could occur from an inadvertent spill of fuels, lubricants and

other materials used during construction. Implementation of proper storage, containment and handling procedures will minimize the chance of such releases. The Applicant has adopted a Spill Prevention, Containment and Countermeasure Plan to prevent and control inadvertent spills of hazardous materials. Exhibit 2, Attachment d, Page 3-36.

31. One individual testified concerning possible impacts to the peat underlying areas where

the proposed pipeline would be trenched, and his concern that water channels within the peat may close up due to drilling impacts. Testimony of Mr. Huston. The Applicant’s representative testified that drilling would go deeper than the level of the peat in most areas. Testimony of Mr. Clark.


Wetlands 32. Ninety-eight (98) wetland systems were delineated along the proposed route. Five (5)

Category I wetlands, thirty-one (31) Category II wetlands, forty-eight (48) Category III wetlands, two (2) Category IV wetlands, and twelve (12) Riverine systems without category types were delineated.6 Exhibit 2, Attachment d, Page 3-43.

33. Impact to wetland areas will be temporary, long-term, or permanent depending upon the

wetland area. Temporary impacts will result in areas where vegetation will regenerate quickly and water movement throughout the wetland will not be altered. Long-term impacts will result in areas where recovery will require greater time because of more intense impacts or more sensitive areas. The only permanent impacts will occur within the pipeline easement. These areas will be maintained for the life of the project as emergent/shrubby communities to facilitate corrosion and leak surveys. Impacts to wetlands were avoided or minimized during routing of the proposed pipeline by paralleling or looping the Applicant’s existing pipelines to the maximum extent possible. By following the existing pipeline, a majority of the construction-related disturbance would occur to wetland areas that have been previously disturbed by past pipeline installations. In addition, where the proposed pipeline crosses wetlands, the construction right-of-way has been reduced in width from 75 feet to either 50 or 55 feet to minimize impacts. To further minimize wetland impacts, the Applicant will implement the mitigation measures contained in FERC’s Wetland and Water Body Construction and Mitigation Procedures Manual. Exhibit 2, Attachment d, Page 3-50.

34. After construction, permanent erosion control devices - including slope breakers and

vegetative cover - will be utilized on adjacent upland areas to minimize long-term sedimentation of the wetlands. All disturbed areas within wetlands will be returned to their pre-construction contours to the extent practicable to maintain the wetlands’ hydrologic characteristics. Excess backfill will be spread over adjacent upland areas and stabilized during cleanup. Trench plugs will be installed at the entrance and exit of the trench through the wetland where there is a potential for drainage along the pipeline to

6 "Class I wetlands" can be described as the cream of the crop. Generally, these wetlands are not common and make up only a small percentage of the wetlands in the state. These are wetlands that: (1) provide a life support function for threatened or endangered species that have been documented, and the wetland is on file in databases maintained by state agencies, (2) represents a high quality example of a rare wetland type, (3) are rare habitat type within a given region, or (4) are relatively undisturbed and contain ecological attributes that are impossible to replace within a human lifetime." Class II wetlands" occur more commonly than Class I wetlands. These wetlands are those that: (1) provide habitat for very sensitive or important wildlife or plants, (2) are either difficult to replace, or (3) provide very high functions and values, particularly for wildlife habitat. "Class III wetlands" occur more frequently throughout the state than do Class I and Class II wetlands. Generally these wetlands will be smaller, less diverse and/or more isolated than Class II wetlands. Wetlands, which were converted to agriculture and where agriculture is existing and ongoing, will normally be included in this wetland class. Hydrologically isolated wetlands identified as a "Category IV wetlands" under the State Wetland Rating System will also be included in this wetland class. TCC 17.15.920.


maintain the hydrologic integrity of the wetland. In addition, where the pipeline trench has the potential to drain a wetland, the trench bottom will be sealed as necessary to maintain the original wetland hydrology. Exhibit 2, Attachment d, Page 3-49.

35. Twelve (12) inches of topsoil will be salvaged in all unsaturated wetlands over the

trenchline and returned to the top of the trench after construction. This will promote reestablishment of wetland species by preserving the vegetative propagules in the soil. Fertilizer or lime will not be used in wetlands. Monitoring of wetland and riparian revegetation will occur annually for the first five years following construction. Exhibit 2, Attachment d, Page 3-51.

36. The Applicant will replace Palustrine scrub shrub and forested wetlands affected by

construction of the pipeline project. Temporary short-term impacts to Palustrine emergent wetlands will be replaced at a ratio of 1:1, meaning that the disturbed wetland will be restored in place and in kind. A wetland mitigation agreement to address the impacts from the pipeline project must be in place with Thurston County prior to any construction activity. Exhibit 2, Attachment d, Page 3-52.

37. All temporary extra work areas will be located at least 50 feet away from wetland

boundaries, except for the temporary extra work areas and the pullbacks associated with the Deschutes River HDD. Exhibit 2, Attachment b, Page 61.

38. The duration of construction-related disturbance within wetlands will be minimized and

construction equipment operating in wetland areas will be limited to that needed to clear the right-of-way, dig the trench, fabricate and install the pipe, backfill the trench and restore the right-of-way. All other construction equipment will use access roads located in upland areas to the maximum extent practicable. Where access roads in upland areas do not provide reasonable access, the Applicant will limit all other construction equipment to one pass though the wetland using the right-of-way. Exhibit 2, Attachment b, Appendix A, Page 61.

39. Grading and tree stump removal will be limited to those wetland areas that are directly

above the trench line. The root systems of wetland vegetation will not be disturbed in areas that are not directly above the trench line. Exhibit 2, Attachment b, Appendix A, Page 61.

Vegetation

40. There will be short and long-term impacts to vegetation resulting from construction and operation of the project. Exhibit 2, Attachment d, Page 3-59.

41. There are small pockets of deciduous woodlands dominated by Oregon white oak that

occur along the construction right-of-way. Where oak trees are cut, the Applicant will provide Thurston County, or a designated recipient, with replacement trees or dollars to


mitigate for oaks impacted by the project.7 Additional long-term impacts will occur within the permanent easement where vegetation will be periodically mowed to allow inspection of the pipeline during the life of the project. Exhibit 2, Attachment d, Page 3-59.

42. Short-term impact will occur where vegetation is cleared, crushed and otherwise

disturbed within the construction right-of-way and temporary work areas. The Applicant will follow conservation procedures as prescribed in FERC’s Upland Erosion Control, Revegetation, and Maintenance Plan. Exhibit 2, Attachment d, Page 3-62.

43. One of the affected vegetation species will be the white-topped aster. This species is a

Washington State Sensitive Species.8 Where the species is found within the construction right-of-way, the Applicant will reduce the width of the construction right-of-way to the extent practicable to minimize impacts to these species. If impracticable, the species will be removed, stored, and replanted after construction. Exhibit 2, Attachment d, Page 3-62.

Fisheries

44. Several water bodies that support various species of fish will be crossed. Equipment moving through a steam and the trenching of a water body can physically damage fish. Additionally, spillage of fuels into the stream will increase toxicity levels and harm fish. In-stream construction over an extended period of time can delay or prevent fish from reaching spawning sites or can delay downstream movement of smolts. In-stream structures for equipment crossings can similarly impact fish. Short-term habitat impacts will occur with trenching at the crossing sites. Additionally, sediment stirred into the water column may be re-deposited on downstream habitats. Long-term degradation of habitat patterns can occur if the stream contours are modified in the area of the crossing, the flow patterns are changed and if erosion of the bed, banks or adjacent upland areas introduces sediment into the stream. Exhibit 2, Attachment d, Pages 3-71.

45. The Applicant will implement the Spill Prevention, Containment and Countermeasure

Plan to prevent hazardous materials from reaching water bodies. In addition, as part of the Groundwater Monitoring and Mitigation Program, the Applicant will implement a spring and seep monitoring program. Finally, sediment control measures will be installed, maintained and inspected to minimize off-site sedimentation impacts. Exhibit 2, Attachment d, Page 3-72.

7 The FEIS states that the mitigation amount will be determined through negotiations with the County. 8 Plant species designated as “Sensitive” by the Washington Natural Heritage Program (DNR) are vulnerable or declining and could become endangered or threatened in the state without active management or removal of threats.


Wildlife 46. One individual testified about his concern for impacts to wildlife in the areas impacted by

the proposed pipeline. Testimony of Mr. Hastings. For example, breeding habitats for at least 116 bird species are likely within the three-county area (Thurston, Grays Harbor, Mason). Exhibit 2, Attachment d, Page 3-79.

47. Upland habitats are the most extensive in the proposed project area. Blue Grouse, band-

tailed pigeon, Canada geese, ducks, ruffed grouse, ring-necked pheasants, and turkeys are all present in the area that will be impacted by the proposed pipeline. Exhibit 2, Attachment d, Page 3-80.

48. Four Game Management Units (GMU) will be crossed by the lateral pipeline. Within

these, WDFW manages harvests for Columbian black-tailed deer and Roosevelt elk. Evaluation of populations reported for 1998 indicated that deer in the region were declining while elk appear constant. Mink, pine marten, black bear, beavers and cougar harvests are managed in the proposed project area. Exhibit 2, Attachment d, Page 3-80.

49. Three vegetation communities classified by WDFW as priority wildlife habitats are

located in the area: oak woodlands, prairies and riparian communities. Exhibit 2, Attachment d, Page 3-80.

50. The proposed pipeline will cross the Black River Unit of the Nisqually National Wildlife

Refuge. The Black River Unit encompasses extensive riparian deciduous tree and shrub habitats. Species of concern located in the area include amphibians (Van Dyke’s salamander, western toad, Cascades frog), birds (northern goshawk, olive-sided flycatcher, Oregon vesper sparrow) and mammals (long-eared myotis, long-legged myotis, Pacific Townsend’s big-eared bat, western pocket gopher). Some of these species have been identified as threatened or endangered. Exhibit 2, Attachment d, Pages 3-80 and 81.

51. Some species might be directly impacted by construction if construction vehicles

traveling to and from construction sites kill them. Other species will be displaced from habitats that are cleared of vegetation and from areas adjacent to construction sites. Exhibit 2, Attachment d, Page 3-81.

52. Construction of the proposed action through upland forests will necessitate removal of

deciduous and coniferous trees and will remove those habitat features for the long-term. Conversion of these areas to shrub-dominated cover over the short term will likely benefit some species that characteristically inhabit brushy habitats. Construction through existing shrub-dominated habitats will produce short-term habitat loss. Maintenance of the permanent easement will be a long-term loss of all vegetation types due to periodic right-of-way moving. Wildlife is likely to be further impacted by increased vehicular traffic, noise, and human presence. Exhibit 2, Attachment d, Page 3-81.


53. Construction of the proposed pipeline will result in habitat fragmentation by creating a new pipeline corridor through previously contiguous forests. The EIS states that these lands are likely to be cut for timber, and that the presence of the pipeline corridor would only lead to fragmentation until timber is harvested. Habitat fragmentation allows predators access to breeding sites used by birds along newly created corridors, and contributes to higher rates of nest predation in grasslands. Exhibit 2, Attachment d, Page 3-81.

54. Timing construction during summer and fall will minimize impacts to most wildlife

species. This will avoid bird interfering with breeding and the influx of wintering waterfowl and other species. The Applicant will use similar mitigation techniques to fisheries as well as those specified in the FERC Procedure and Plan manuals. Additionally, HDD crossing techniques will be used to cross the Deschutes, Black, and Chehalis Rivers, and McLane Creek. The Applicant will conduct a raptor nesting survey prior to construction to determine if nests of red-tailed hawks or other species would be affected. If so, WDFW will be notified and consulted for recommendations on timing and spatial restrictions to apply during active pipeline construction. Exhibit 2, Attachment d, Page 3-82.

Threatened and Endangered Species

55. The federal Fish & Wildlife Service states that five (5) species of concern are located on the proposed pipeline construction area: the bald eagle, the marbled murrelet, the northern spotted owl, the bull trout, and the golden paintbrush. The National Marine Fisheries Service lists the Chinook and Coho Salmon as potentially affected threatened species. The State of Washington lists the Mardon Skipper, the Oregon spotted frog, and the peregrine falcon as endangered species that potentially may be impacted. It lists the Olympic mud minnow as a potentially impacted threatened species. Exhibit 2, Attachment d, Page 3-86.

56. Bald eagles winter along the Chehalis and Deschutes Rivers, and nest in the vicinity of

the proposed pipeline project. However, none of the active or inactive nest sites are within ¼ mile of the pipeline. Nesting surveys by local biologists will be conducted prior to construction to ensure that no new nest sites within ¼ mile of any of the project facilities are occupied in the year prior to construction. Exhibit 2, Attachment d, Page 3-94.

57. No known marbled murrelet nesting occurs in the vicinity of the project. Given the

absence of suitable old-growth forest nesting habitat, future nesting in the project area is not expected. The lateral pipeline will pass through two stands of timber in Capital State Forest that have been identified by Department of Natural Resources as potential habitat for marbled murrelets. The Applicant has relocated the pipeline to avoid impacting potential habitat. Further, the construction right-of-way has been narrowed to 50 feet. Exhibit 2, Attachment d, Page 3-94.


58. Chinook Salmon have been reported in the Deschutes River and in McLane Creek. The only potential impact is from the release of drilling mud into the water body through fractures in the substrate that are encountered by the drill (“frac-out”). Exhibit 2, Attachment d, Page 3-95.

Impacts on Land Use in the Vicinity

Timber Areas

59. The primary land use affected by lateral pipeline construction will be forestry activity in the Capital State Forest and on private lands. Timber will be removed with the consent of the owner and following the payment of compensation. The lateral pipeline also crosses an active gravel pit. The Applicant will negotiate with the gravel pit operator to install the lateral pipeline adjacent to the existing Olympia to Shelton line. Exhibit 2, Attachment d, Page 3-132.

Residential Areas

60. The lateral pipeline will cross through a number of areas where residences and other buildings have been constructed in relatively close proximity to the Applicant’s existing lines. The Applicant has narrowed the construction right-of-way to save mature trees and landscaping. The Applicant will attempt to leave mature trees along the edge of the construction right-of-way where safe operation of equipment and protection of construction personnel can be guaranteed. Exhibit 2, Attachment d, Page 3-138.

61. All trenching 25 feet or closer to any residence will be done as a tie-in section and a tie-in

crew will install all piping. The ditch will be excavated while all welding is completed in another location prior to placing the pipe in the ditch. After placing the pipe in the ditch, the final tie-in welds will be completed. As much ditch as possible will be backfilled prior to ending the day. Safety fence will be installed around open trench and chain link panels placed over the ditch. Exhibit 2, Attachment d, Page 3-138.

62. Landowners will be notified by the Applicant prior to commencing work. Where access

to residences will be restricted, the Applicant will coordinate with the landowner to assure that the landowner’s needs are accommodated. The Applicant will maintain traffic flow or identify alternate routes where traffic flow must be temporarily interrupted. Exhibit 2, Attachment d, Page 3-138.

63. Easements will be specific to the parcels crossed and will be negotiated on an individual

basis with each landowner. Easements have already been negotiated with 90 of the 132 individual landowners along the pipeline route. Exhibit 2, Attachment d, Page 3-138.

64. The primary residential neighborhood impacted by the proposed pipeline is the Cougar

Ridge Subdivision. The proposed pipeline will parallel the existing pipeline through the center of the subdivision, and an open area of the subdivision will provide a staging area for the horizontal directional drilling (HDD) crossing of McLane Creek. The existing


pipeline was installed prior to the development of the Cougar Ridge Subdivision. The pipeline easement is incorporated into a greenbelt area of the subdivision and used as a common area for recreation. Testimony of Mr. Gregory and Ms. Deinlein. The Applicant considered using HDD to cross below the Cougar Ridge Subdivision, but the use of HDD would not be feasible due to the curves of the easement area within the subdivision. Thus, the primary impacts of the pipeline in the Cougar Ridge area will be from the staging of an HDD rig to cross under McLane Creek. The Applicant proposes to operate the HDD rig 24 hours a day for 30 – 45 days. This will result in noise and light impacts on residences in the area. Testimony of Mr. Knitter.

65. The Applicant testified that the contractor for drilling intends to comply with state noise

regulations found in WAC 173-60 and that, if requested, noise monitoring would be provided. The WAC’s Environmental Designation for Noise Abatement (EDNA) designates the Cougar Ridge subdivision as “Class A.” WAC 173-60-030. “Class A” EDNAs are limited to receiving no greater than 60 dBA of noise. WAC 173-60-040. The Applicant provided noise data from similar projects in Maine. These projects included HDD equipment that was operated with similar engines and produced similar noise levels. The Applicant’s Site Specific Construction Plan states that for the McLane Park HDD construction project the distance from the drilling rig to the closest residence will be approximately 700 feet. The exhibit submitted by the Applicant shows noise levels in excess of 60 dBA at locations within 1,120 feet of the drilling rig. Noise levels exceeding state limits would impact residences within 700 feet with a predicted level 65.5 dBA, based on extrapolations from data in Exhibit 16. The HDD will operate 24 hours a day, seven days a week. The McLane Park construction project will take approximately 30-45 days to complete. Testimony of Mr. Clark, Exhibit 1, Staff Report, Attachment M; Exhibit 16, Noise Measurement projections; Exhibit 17, Aerial Photo of Cougar Ridge Subdivision.

Impacts During Construction Including Drilling

66. The Applicant proposes to use horizontal directional drilling (HDD), a trenchless construction technique, in three locations: the Black River, the Deschutes River, and McLane Creek.9 The HDD construction method is used to install pipelines beneath obstacles where conventional construction techniques would result in unacceptable resource impacts. Exhibit 2, Attachments b, d, and f.

67. The HDD process involves four main steps: pre-site planning, drilling the pilot hole,

expanding the pilot hole by reaming, and pulling back a pre-fabricated steel pipe string. Exhibit 2, Attachment f.

9 The Black River will be crossed at MP 18.74. This crossing will traverse under the confluence of the Black River and Dempsey Creek. Thus, potential impacts may affect both water bodies. The Deschutes River will be crossed at MP 11.63. McLane Creek will be crossed at MP 21.79. Tributaries of McLane Creek will be crossed by the same McLane Creek HDD project at MPs 21.80 & 21.95. Exhibit 2, Attachment b.


68. Pre-site planning determines the feasibility of the HDD construction technique in a specific location. This process includes both technical feasibility, primarily determined by the capabilities of existing tools and drill pipe, and geological feasibility, primarily determined by the capabilities of the soil. Exhibit 2, Attachment f.

69. The components of HDD machinery include a drill rig, mud rig, crane, power unit, pipe

rack and control tower. All HDD equipment is transported to and from the site on specialized trucks or trailers. A 50-foot trailer will be required to transport the drill rig for this project. Additionally, transportation equipment will be necessary for related components. Thus, access for such equipment must be available for each HDD project site. Exhibit 2, Attachment f; Testimony of Mr. Knitter.

70. Temporary work areas of 175 feet by 250 feet must be cleared and graded at HDD entry

and exit points to allow for safe operation of the drill rig and related components. At entry points, the additional space is required for operation of the drill rig and control unit, pipe rack, drilling fluid tank and other storage. At exit points, the additional space is required to allow for reversal of the drill direction if necessary and placement of drilling fluid tanks, pumps, and pipe handling equipment. In places where the pipe string does not align with the construction right-of-way, additional temporary work areas for prefabrication are required for at least the length of the pipe string plus 200 feet. Exhibit 2, Attachment f.

71. Once the drill rig is in place, a drill bit is attached to the drill stem to bore the pilot hole.

The drilling tool consists of a positive displacement (“mud motor”) which generates torque and rotation at the drill bit from the flow output of a mud pump. Behind the drill bit is an attached probe that aids in tracking and steering the down hole drill assembly. During the boring process hundreds of liters per minute of drilling fluid is injected ahead of the advancing bit. This fluid is generally composed of water and bentonite, a naturally occurring organic clay nitrate. The drilling resembles a cutting action. As the drill cuttings are circulated back to the surface in the drilling fluid, the cuttings are settled out and the fluid is recycled to a usable viscosity and then recirculated. The bentonite and drilled spoil that is displaced throughout the drill process is collected in large holding tanks or tank trailers at the site. The spoil is then disposed of at off-site locations. Exhibit 2, Attachment f; Testimony of Mr. Knitter.

72. Once the horizontal directional drilling breaks the surface at the exit location, the drill bit

is removed from the drill string and replaced with a back reamer. Back reaming is the process by which the borehole is progressively enlarged to a diameter that will allow successful pullback of the prefabricated pipe string. Typically, the borehole is enlarged until its diameter is one and a half times the diameter of the pipe that is to be pulled through. Exhibit 2, Attachment f.

73. On the exit side of the drill, pipe is welded into one “pipestring,” coated with corrosion

and abrasion resistant coatings and hydrostatically pressure tested to insure line integrity.


Once the borehole has been enlarged to a sufficient size, the pipestring is advanced into the open hole. When the pipestring appears at the original entry point, the HDD is complete. Exhibit 2, Attachment f.

74. Members of the public voiced concern regarding potential vibration impacts of the

proposed HDD crossings. There was a suggestion that the Applicant use vibration monitors during construction to ensure that vibrations do not adversely impact the environment. The Applicant testified that although vibration is noticeable at the HDD entry and exit points, it becomes less noticeable as the drill enters the ground.10 The mud motor enters the ground with the drill bit, and the soil dampens the vibration. The HDD crossings have been designed to avoid bedrock, and no explosives will be used. Testimony of Mr. Mackin; Testimony of Mr. Blake; Testimony of Mr. Knitter.

75. Each HDD will require constant machinery operation (24 hours per day) until completed

(30 to 45 days). Twenty-four hour operations are necessary to ensure that the bentonite mud does not dry. The remaining construction activities will be conducted between 7:00 a.m. and 8:00 p.m. when within 1,000 feet of residences, except that construction within the Cougar Ridge subdivision will be between 7:30 a.m. and 5:30 p.m. Testimony of Mr. Henry; Testimony of Mr. Clark; Testimony of Mr. Knitter.

76. Lighting will be required to illuminate HDD work areas during evening hours. The

purpose of the lighting is safety. In order to control light spillover, the lights will be shrouded and directed toward the work areas. Testimony of Mr. Knitter; Exhibit 1, Attachment m.

77. HDD installations have several risks that are not encountered in conventional pipeline

installations. These include the risk that unconsolidated soils or other materials collapse into the borehole and prevent the pipe string from being pulled through; the risk that unexpected obstacles such as boulders, buried stumps and cobble pockets are encountered; and the risk of inadvertent drilling returns or “frac-out.” Frac-out occurs when the pressure of drilling fluid within the borehole fractures brittle strata and seeps to the ground surface. The risk of frac-out is highest near HDD entrance and exit points, where the soil cover is shallow. The risk of frac-out is slight in the areas directly beneath rivers and streams due to the depth of the soil cover. For the proposed HDD crossings, the depth of the soil cover will vary from approximately 50 feet for the Deschutes River crossing to approximately 100 feet for the Black River crossing. If seepage of drilling fluid is detected in upland areas, the mud pumps will be stopped and the fluid will be contained and cleaned up using hand tools such as brooms or shovels. If necessary, a temporary berm will be constructed around the seepage area. Materials for the berm including sandbags, hay bales and silt fencing will be available at each of the HDD sites.

10 The Applicant did not specifically review vibration impacts prior to the hearing and did not have any vibration studies available. Testimony of Mr. Knitter.


If large volumes of drilling fluid are present, containment may require the deployment of powered ditching and earth-moving equipment, pumps, and/or vacuum trucks. If seepage of drilling fluid is detected in river and wetland areas, the drilling will continue, but the drilling fluid pressure will be reduced. After completion of the pilot hole, the fluid levels will equalize. The drilling fluid, which is a solution of bentonite and water, will be pH neutral, contain no other additives and will only be mixed with the returns of the native soil found in the drill path. Water for the drilling mud will be obtained from municipal or private sources. Exhibit 1, Attachment f; Exhibit 2, Attachment d, Page 2-24, Attachment f, Attachment i; Testimony of Mr. Knitter.

78. A site-specific Spill Prevention Containment & Countermeasure Plan (the Plan) will be

prepared for each HDD crossing and submitted to appropriate agencies for review and approval prior to commencing any ground-disturbing action. One component of the Plan will be to place a seamless liner under the stationary drilling equipment and its associated power units. Thereafter, fueling will occur only in areas protected by the liner. To minimize ground disturbance, all drilling fluids will be mixed and stored aboveground in portable steel tanks. The Applicant proposes to place one full time environmental inspector at each of the HDDs to assist in monitoring for drilling fluid seepage. Further, the path of the drilled hole will be continually monitored aboveground for any inadvertent return of the drilling fluid to the surface. Exhibit 2, Attachment f.

79. After the drilling is complete, cleanup and site restoration will take approximately two

weeks. All disturbed areas will be restored to their original contours and re-vegetated in accordance with FERC’s Erosion Control, Re-vegetation, and Maintenance Plan. The total project time for each HDD is expected to be six to ten weeks. Exhibit 2, Attachment f.

80. After construction, the entire pipeline will be subject to hydrostatic testing. The purpose

of the testing is to establish the integrity of the pipeline before it is used to transport natural gas. The testing will require that the pipeline be filled with water, pressurized and inspected for leaks. Approximately four million gallons of water will be required to test the pipeline. The test water will be obtained from the Grays Harbor Public Development Authority at the Satsop Development Park. Although the pipeline will be tested in three sections, only two sections would be within Thurston County. Approximately 2,160,000 gallons of water will be required for the first section (mileposts 0.0 to 26.2) and 625,000 gallons of water for the second section (mileposts 26.2 to 33.8). Discharge of hydrostatic test water from the first section will be at milepost 26.2, and discharge from the second section will be at milepost 26.2 or milepost 33.8. Both locations will require temporary discharge permits from the Department of Ecology. Exhibit 2, Attachment d, Page 2-24; Testimony of Mr. Clark.


81. A total of approximately 255,000 gallons of water will be required for hydrostatic testing of the HDDs.11 Water for this hydrostatic testing will be provided by private and municipal sources. Exhibit 2, Attachment d, Page 2-24.

82. Clearing of vegetation, excavation and de-watering of the trench, soil mixing and

compaction, and fuel and lubricant handling may have the most significant impact on groundwater. The Applicant proposes to mitigate impact from these activities by use of standard construction techniques and compliance with FERC’s Wetland and Water Body Construction and Mitigation Procedures. Exhibit 2, Attachment d, Page 3-34.

83. The lateral pipeline will cross the Deschutes River at MP 11.63.12 The HDD will extend

for approximately 1,940 feet in an east-west direction running slightly north of the intersection of Rich Road Southeast and Old State Highway 99. The point of entry will be established on the west side of Old State Highway 99. The HDD will cross beneath the Deschutes River approximately 1,573 feet from the point of entry. The exit point will be approximately 300 feet east of the Deschutes River’s east bank. Exhibit 2, Attachment f.

84. The temporary work area for the point of entry will be set up primarily in a pasture within

the Applicant’s Olympia to Shelton Line cleared permanent easement. A 25-foot wide, 580-foot long temporary access road, which will run directly west of Old Highway 99, will provide access to the work area. A temporary work area for the point of exit will be located primarily within pasture and a wooded area on the north side of the existing pipeline. Access to the point of exit will be provided by construction right-of-way. Because the HDD alignment will not be parallel to the lateral pipeline alignment, additional temporary work area for a distance of 1,150 feet will be required at the point of exit to allow for pullback of the pipe string. Exhibit 2, Attachment f.

85. Borings were completed at four locations at depths from 70 to 101 feet along the HDD

path to determine geologic conditions. Ground penetrating radar was used to confirm the geologic conditions encountered in the borings and to trace the geologic units between borings. According to the data collected, the Deschutes River HDD will encounter medium dense sand, sandy gravel and dense sandy gravel. Although cobbles and boulders are expected in the sandy gravel units near the entrance and exit points, they are not expected to present a problem because such obstacles will be encountered near the surface. Exhibit 2, Attachment f.

11 This figure includes water used for HDDs located in Thurston and Grays Harbor Counties; figures were not available on a per-county basis. 12 The Deschutes River crossing is located in the South ½ of Section 19, Township 17 North, Range 1 West, W.M.


86. The design of the crossing is intended to reduce the possibility of frac-out. For this crossing, a minimum of 20 feet of cover will be maintained over the pipeline to prevent frac-out. Hydraulic analysis results indicate that the final 100 feet is the most susceptible to frac-out because the HDD loses ground cover as it approaches the exit point. Exhibit 2, Attachment f, Figure C-1. For this project, the final 100-foot portion is approximately 175 feet from the east bank of the Deschutes River and associated wetlands. Mud pressure will be carefully monitored as the HDD nears the surface to prevent a frac-out at this location. If a frac-out does occur, mitigation measures outlined in this plan will be implemented immediately. Exhibit 2, Attachment f.

87. The lateral pipeline will cross the Black River and associated wetlands at MP 18.7.13 The

point of entry will be established approximately 900 feet to the southeast of the Black River. The HDD will extend in a northwest direction for approximately 4,025 feet across the river and wetlands. The HDD will exit approximately 3,100 feet northwest of the Black River. The HDD will exit on the north side of the Black River wetland complex approximately 150 feet north of the wetland boundary and 20 feet east of the Applicant’s existing Olympia to Shelton Line. Exhibit 2, Attachment f.

88. The HDD will cross the Black River at a minimum of 80 feet to prevent mud fractures,

seepage, and inadvertent returns. Despite this precaution, the HDD is still susceptible to frac-out in the final 500 to 700 feet. Frac-out during this section of the HDD might occur within the wetland complex. Exhibit 2, Attachment f.

89. Subsurface explorations revealed various soil types. The crossing will encounter medium

dense to dense gravelly sand and sandy gravel; loose to medium dense sand; and soft to stiff silty clay and clayey silt. Cobbles and boulders are expected in the sandy gravel units that will be encountered near the entrance point and possibly for the first 1,500 feet. From this location to the exit point, the HDD will be in loose sand to silty sand and then soft to stiff clay to clayey silt. The Applicant consulted with an HDD contractor to discuss the wide variety of conditions that will be encountered for this crossing. The contractor suggested that a drill casing be used through the cobbly gravel section at the entrance. Based on this recommendation, the Applicant will install drill casing after the first section is drilled. Exhibit 2, Attachment f.

90. The lateral pipeline will cross McLane Creek and associated wetlands at MP 21.8.14 The

point of entry will be established on the south side of the McLane Creek wetlands in vacant lots at the north end of Cougar Ridge subdivision. The HDD will extend in a north-south direction for approximately 4,172 feet across the creek, wetlands, and a

13 The crossing is located in the West ½ of Section 18, Township 17 North, Range 2 West, and the NE ¼ of Section 13, Township 17 North, Range 2 West, W.M. 14 The crossing is located in the West ½ of Section 36, Township 18 North, Range 3 West, W.M.


nature trail that is part of the Centennial Demonstration Forest. The HDD will cross beneath McLane Creek approximately 2,627 feet from the entry point and will exit on the north side of the McLane Creek wetland complex approximately 330 feet from the wetland boundary. Exhibit 2, Attachment f.

91. The HDD will require the temporary use of vacant lots at the north end of Cougar Ridge

subdivision as an entry point extra work area. For the exit point extra work area, the HDD will require temporary use of the existing easement for the Olympia to Shelton Line, along with adjacent areas, which are covered with deciduous trees and brush. The construction right-of-way will provide access to both temporary extra work areas. Exhibit 2, Attachment f.

92. The HDD will cross McLane Creek and associated wetlands at a minimum of 40 feet to

prevent mud fractures, seepage, and inadvertent returns. Despite this precaution, the HDD is still susceptible to frac-out in the final 100 to 200 feet. If frac-out were to occur in this area, it would most likely occur at least 100 feet from the wetland complex. Exhibit 2, Attachment f.

93. Subsurface explorations revealed various soil types. The HDD will encounter loose to

dense silty to gravelly sand and sandy gravel; very dense sand, and stiff to very stiff silty clay and clayey silt. Cobbles and boulders are expected in the sandy gravel units. Exhibit 2, Attachment f.

94. Equipment fueling and storage of oil, fuel or other materials near water bodies could

create a potential water quality impact. Leaks from equipment and vehicles could also cause potential impacts. Hazardous materials, chemicals, fuels and lubricating oils will be stored in upland areas at least 100 feet from water bodies. Restricted areas for storage of these materials will be clearly marked in the field. Fueling of equipment located within HDD temporary extra work areas will occur within 100 feet of water bodies. All hazardous materials will be handled in accordance with the Applicant’s Spill Prevention Control and Countermeasure Plan. Exhibit 2, Attachment d, Page 3-34.

95. Fluming will be used to cross water bodies that will not be crossed by HDD.15 The

primary purpose of fluming a stream crossing is to assure that in-stream construction activities comply with water quality standards for turbidity that have been established by the State of Washington to protect aquatic life and other beneficial uses. Detectable increases in turbidity are limited to installation and removal of the flume from the streambed. Exhibit 2, Attachment b, Appendix C.

15 A list of streams where fluming may be utilized is provided in Exhibit 2, Attachment b, Volume I, Appendix C, Table C-1.


96. The fluming procedure includes damming a water body at two locations approximately 75 feet apart. A temporary equipment crossing bridge is placed at the upstream dam to accommodate construction equipment. Two flume pipes are connected to each dam to provide access for water flow. A pump containment structure is placed on the stream bank and connected to a discharge hose to provide dewatering capability for the construction area. Exhibit 2, Attachment b, Appendix C.

97. The primary components of a flumed crossing include: flume pipe, sandbag/plastic dams,

spoil storage and staging areas, pumps and pump containment structures, a de-water structure, and erosion control structures and spill containment/cleanup materials. Exhibit 2, Attachment b, Appendix C.

98. Open-cut trenching will be conducted to a depth that is sufficient to allow at least three

feet of cover on top of the pipe in normal soils. Where possible, a minimum cover of five feet will be achieved at water body crossings. Crossing depths for roads and railroads will be determined by the managing agency/owner. The Applicant will bury the pipeline across agricultural areas at a sufficient depth to allow agricultural activities to continue. Exhibit 2, Attachment d, Page 2-23.

99. After open-cut trenching is complete, the pipe sections will be strung along the trench,

bent to fit the contour of the trench bottom, aligned, and welded together and placed on temporary supports along the edge of the trench. The pipe used for the pipeline will usually be mill-coated prior to stringing. All welded joints will be coated prior to final inspection. The entire pipeline coating will be electronically inspected to locate and repair any faults or voids. The pipeline will then be lowered into the trench by side-boom tractors, and the trench will be backfilled using a backfilling machine or bladed equipment. No foreign substance, including skids, welding rods, containers, brush, trees or refuse of any kind, will be permitted in the backfill. Exhibit 2, Attachment d, Page 2-23.

Findings Regarding Impact of Proposal on Property Values

100. Concern was raised that the proposed pipeline would adversely affect property values. One property owner, whose property is located on the existing pipeline, testified regarding difficulties in selling his property due to the proposed pipeline. Testimony of Mr. Blake.

101. The Applicant offered two studies in support of its contention that property values would

not be adversely affected by the proposed pipeline. The first was an October 2001 Whatcom County study - titled Natural Gas and Hazardous Liquid Pipeline Background Report - commissioned in the wake of two pipeline ruptures (the rupture of a Williams natural gas pipeline in 1997 and the rupture of an Olympic petroleum product pipeline in 1999) to address issues relating to the siting of natural gas and hazardous liquid pipelines. One topic addressed by the study was community impacts, including impacts to property values. The study presented three “anecdotal cases” comparing before and after sales


along the Olympic pipeline route, and did not indicate the full number of sales during the study period. In two sales the property values increased after the rupture (9.8% and 6.9%), and in one sale the property value decreased (3.5%). No comparison was made between those sales and sales within the larger community. However, the study noted that the County Assessor’s Office “found neither the frequency of sales nor market transaction resale values had been affected as a result of the pipeline explosion.” Exhibit 14, page 36.

102. The second study submitted by the Applicant was a 2001 study prepared on behalf of the

Interstate Natural Gas Association of America Foundation (INGAA).16 The study analyzed data from four communities across the country, including a community of medium-value rural homes in Medford, Oregon, a community of medium to high-value suburban homes in Katy, Texas, a community of high-value suburban homes in Newtown, Connecticut, and commercial properties in Irving, Texas. The study compared transactions on and off the pipeline to “provide a record of the behavior and tendencies of buyers in the respective markets.” Exhibit 20, page 11. Only bona fide, arm’s length transactions were considered, and sales missing essential data such as the property location and sales price were eliminated from the study. Exhibit 20, page 12. One of the overall conclusions of the study, considering all four communities, was as follows:

Most of the study results indicated minor differences (less than 5 percent) in adjusted sales price per square foot due to the location on the pipeline; however, most showed slight positive rather than negative impacts. Since the results indicate both positive and negative impacts, no systematic market pattern was identified. The only consistent finding of the adjusted price per square foot analysis was that there is no systematic impact on adjusted price per square foot resulting from the existence of a natural gas pipeline. Thus, we have concluded that there is no discernable and significant impact on the sales price of properties located along natural gas pipelines in the areas studied.

Exhibit 20, page 121.

103. The bulk of the study results indicated minor differences (less than 5%) in days on

market due to location on the pipeline, with many showing positive rather than negative impacts. The study found that:

16 One of the citizen objections to the INGAA study was that it was biased. Exhibit 23. However, the study was not prepared by INGAA. The study was prepared by Allen, Williford & Seale, Inc., which certified that the report was prepared in accordance with the Uniform Standards of Professional Appraisal Practice and that compensation for the report was not based on achieving a favorable result for the client. Exhibit 20, page 125; Exhibit 24, page 3.


The only results indicating significant differences in exposure time were statistically weak due to relatively small sample sizes. Since the results indicated both positive and negative impacts, no systematic market pattern can be identified. Similar to the adjusted price per square foot results, the only consistent finding was that there is no systematic impact on demand for properties located along natural gas pipelines. Thus, we have concluded that there is no discernable impact on demand for properties located along natural pipelines in the case study areas.

Exhibit 20, page 122.

104. Although there was citizen objection to the INGAA study because it did not consider

market conditions in Thurston County, the INGAA study did consider a neighborhood in Medford, Oregon that consisted primarily of residential and rural residential uses. Sales within four separate subdivisions were considered, as well as sales of large, vacant rural parcels. The four subdivisions were located adjacent to either 10-inch or 6-inch natural gas pipelines that were constructed in 1963. The results were that for two of the four subdivisions analyzed, the marketing time for residences along the pipeline was slightly longer than for residences off the pipeline, but for the remaining two subdivisions, the marketing time for residences along the pipeline was shorter. For all four subdivisions, the average price per square foot of properties along the pipeline was slightly higher (but not significantly higher) than that of properties off the pipeline. The results of the vacant land portion of the study were consistent with the subdivision portion of the study. Exhibit 20, pages 45-83.

105. Neither the Applicant nor members of the public provided specific data regarding

property sales in Thurston County, whether on or off a pipeline. Exhibit 14; Exhibit 20; Exhibit 22; Exhibit 23. In addition, the Applicant did not provide an analysis comparing the communities studied in the INGAA report with the Thurston County communities that would be impacted by the proposed pipeline. See Exhibit 22. However, the INGAA report analyzed a range of residential and non-residential land uses. Exhibit 20.

Findings Related to Shoreline Applications

106. Of the 33 miles of new pipeline to be constructed within Thurston County, approximately 85% would parallel existing natural gas pipelines constructed in the 1950s and 1960s (Olympia to Shelton Line). The new pipeline would deviate from the existing pipeline corridor in three places, including the Black River/Dempsey Creek and Deschutes River HDD crossings.17 The Black River, Dempsey Creek and the Deschutes River are under

17 The pipeline would cross the Black River at its confluence with Dempsey Creek. Because the crossing of both waterbodies would be accomplished with a single HDD, they are analyzed in the project submittals as a single crossing (Black River crossing). Exhibit 2, Attachment b; Exhibit 2, Attachment i, Figure B-1.


the jurisdiction of the Shoreline Master Program for the Thurston region (SMPTR).18 Testimony of Mr. Henry; Testimony of Ms. Wilson; Exhibit 2, Attachment c.

107. The Black River and the Deschutes River are designated Shorelines of the State by the

SMPTR. SMPTR, Section 5(V)(B). No “Substantial Development” may be undertaken on a Shoreline of the State without approval of a Substantial Development Permit (SDP). Substantial Development is defined as any development that exceeds $2,500.00 in total cost or fair market value. SMPTR, Section 1(II)(A). The total cost of the proposed pipeline is approximately $75,000,000.00. Exhibit 2, Attachment b.

108. The jurisdiction of the SMPTR extends 200 feet from the ordinary high water mark

(OHWM) of the designated rivers and their associated floodways. None of the HDD entry and exit points would be located within 200 feet of the OHWM of the rivers; however, the Deschutes River HDD would be located within the floodplain adjacent to the east side of the river. Testimony of Ms. Wilson.

109. The pipeline would cross a portion of the Deschutes River that is designated a

Conservancy Environment. Exhibit 2, page 1. The purpose of the Conservancy Environment designation is “to protect, conserve and manage existing resources and valuable historic and cultural areas in order to ensure a continuous flow of recreational benefits to the public and to achieve sustained resource utilization.” SMPTR, Section 2(VII)(B). Utility transmission lines are allowed in the Conservancy Environment upon approval of a Shoreline Conditional Use Permit. SMPTR, Section 3(XX)(D)(3).

110. The pipeline would cross portions of the Black River and Dempsey Creek that are

designated a Natural Environment by the Shoreline Master Program for the Thurston Region (SMPTR). The purpose of the Natural Environment designation is “to preserve, maintain or restore a shoreline as a natural resource existing relatively free of human influence, and to discourage or prohibit those activities which might destroy or degrade the essential, unique or valuable natural characteristics of the shoreline.” SMPTR, Section 2(VII)(A). Utilities such as the one proposed are not permitted in the Natural Environment. SMPTR, Section 3(XX)(D)(4); Exhibit 2, Staff Report, Testimony of Ms. Wilson.

18 Although the County environmental officer testified that Dempsey Creek is under the jurisdiction of the SMPTR the Shoreline Jurisdiction chapter of the SMPTR does not list Dempsey Creek as a Shoreline of the State (see SMPTR Section 5(V)(B)). Testimony of Ms. Wilson. Because the Applicant agreed with the County’s interpretation of shoreline jurisdiction, the Hearing Examiner will assume that Dempsey Creek is regulated by the SMPTR. The issue is of little consequence because the crossing of both the Black River and Dempsey Creek would be accomplished with the same HDD. The restrictions on development within the Black River shoreline would apply to the HDD even if Dempsey Creek were not jurisdictional. Exhibit 2, Attachment b.


111. The Olympia to Shelton line, which crosses the Black River northeast of the confluence with Dempsey Creek, was constructed prior to the effective date of the current SMPTR (1990) and is thus considered by the County to be a legal nonconforming use.19 Exhibit 2, Attachment i, Figure B-1 (depicts location of original line); Exhibit 2, Staff Report, page 2 (date of original line).

112. The County submitted that the segment of the pipeline crossing the Natural Environment

should be permitted as an intensification of a nonconforming use pursuant to Section 1(V)(E)(3) of the SMPTR. That section reads as follows:

Expansions of Nonconforming Uses. The expansion of a nonconforming use is prohibited. An intensification of use is permitted and occurs when the intensified use is contained within the existing structure, or area that has been in use, and is not different in kind from the existing nonconforming use. Exhibit 2, Staff Report, page 7.

113. At its farthest point, the HDD crossing of Black River/Dempsey Creek would be approximately 470 feet southwest of the existing pipeline. Despite the distance, the Applicant submitted that existing easements in the Black River area would likely allow the proposed pipeline route because they are “blanket” easements describing entire quarter-quarter sections of land.20 Testimony of Mr. Clark; Exhibit 2, Attachment i, Figure B-1 (depicts distance between proposed and original line). Blanket easements do not define a specific pipeline route. Testimony of Mr. Gregory.

114. The entry and exit points for the Black River/Dempsey Creek HDD would be outside of

the jurisdiction of the SMPTR. The entry point would be approximately 900 feet from the Black River and the exit point would be 3,000 feet from the Black River. The HDD would cross the existing pipeline approximately 900 feet south of the exit. Exhibit 2, Attachment f, page 10; Exhibit 2, Attachment h, Figure D-1; Exhibit 2, Attachment i, Figure B-1.21

19 Thurston County’s earliest Shoreline Master Program (1975 Program) became effective in 1976. It is unclear when the Black River was designated a Natural Environment or when utilities were deemed a prohibited use. Because the original pipeline was established prior to 1976, it would be nonconforming under any version of the SMPTR. SMPTR, page iv. 20 Easement information contained within these findings is based on the testimony of the Applicant’s expert witnesses but not the argument of the Applicant’s attorney. The Applicant did not submit copies of the easements for the record. The easement information is noted only for its possible relevance to the nonconforming use issue. The Hearing Examiner does not have jurisdiction to interpret any easements or define the property rights of any party. These findings should therefore not be construed as a decision on easement issues. 21 Although Exhibit 2, Attachment f references figures contained in Exhibit 2, Attachment h (AMEC Geotechnical Report for the Horizontal Directional Drill Crossings Plans), the Hearing Examiner will also reference figures contained in a later document titled Supplemental Geotechnical Report for the HDD Crossings, prepared by Golder


115. The purpose of the deviation from the existing pipeline in the Black River area is to accommodate the limitations of the HDD. Because the HDD is capable of achieving only wide-radius curves, and because the pipe must align with existing right-of-way on both sides of the crossing, it would not be technically feasible to parallel the existing pipeline. Testimony of Mr. Clark; Testimony of Mr. Knitter.

116. The County submitted that the proposed pipeline location should be considered the same

“area” as the existing pipeline for purposes of Section 1(V)(E)(3) of the SMPTR because it is not “excessively” out of alignment and the deviation is justifiable. Testimony of Ms. Wilson.22 The Applicant agreed with this analysis and further argued that it would be an absurd result to disallow the crossing route most protective of the shoreline. Argument of Mr. Knox. Public comment on the issue was that the County’s analysis of the expansion/intensification issue was too subjective. The concern was that “feasibility” is creating an entirely new pipeline area. Testimony of Mr. Mackin.

117. Of the shoreline crossing techniques identified in the JARPA (open-cut, flume, HDD),

the HDD technique is most protective of shorelines. As stated in the Applicant’s JARPA, the HDD technique is used where conventional construction techniques would result in unacceptable resource impacts. Some of the benefits of HDD include “greatly reduced” impacts on the environment and “no effect” on water body hydraulics or navigational or recreational usage. Exhibit 1, Attachment b.

118. For the proposed HDD crossings, there would be no equipment placed in or directly

adjacent to the rivers. No equipment bridges would be required. The riverbanks would not be disturbed. Testimony of Ms. Wilson; Testimony of Mr. Clark.

119. For the Deschutes River crossing, no trees would be disturbed within the area of

shoreline jurisdiction; the HDD work area would be within an un-treed pasture area. Testimony of Mr. Clark; Testimony of Ms. Wilson.

120. Methane gas is not water-soluble and will not adversely impact water quality in the event

of a release of natural gas into surface or ground water. Testimony of Mr. Duvall.

Associates. The written testimony contained in Exhibit 2, Attachment f appears to be consistent with the later diagrams. 22 Ms. Wilson also noted in her testimony that she consulted with the DOE regarding her interpretation. She did not provide any of the details of the conversation, such as the name of the person she spoke to, nor did she support her testimony with any written documentation. There were no representatives of the DOE at the hearing. Therefore, Ms. Wilson’s testimony regarding DOE’s approval of her interpretation will not be considered in the Hearing Examiner’s decision on the nonconforming use issue. It should be noted that while the DOE does not have approval authority over Shoreline Substantial Development Permits, it will have the opportunity to review and appeal the Hearing Examiner’s decision. Argument of Mr. Knox.


CONCLUSIONS Jurisdiction

The Hearing Examiner is granted jurisdiction to hear and decide applications for Special Use Permits pursuant to Chapter 36.70 of the Revised Code of Washington and Chapter 20.60 of the Thurston County Code. Chapter 36.70 RCW authorizes the Hearing Examiner to hear and decide cases in the manner determined by County ordinances and consistent with state law. The Thurston County Board of Commissioners requires the Hearing Examiner to conduct an open record hearing and render a decision based on the record. The decision must be consistent with the general and specific criteria for review set forth in Chapter 20.54 of the Thurston County Code. The Hearing Examiner is granted jurisdiction to hear and decide applications for Shoreline Substantial Development Permits and Conditional Use Permits pursuant to Chapter 36.70 of the Revised Code of Washington, Washington Administrative Code Section 173-14-080 and Thurston County Code Section 19.04.010(c). The proposed project has been classified as an “interstate pipeline facility”. As such, it is regulated under the federal Natural Gas Act and the Pipeline Safety Act. The U.S. Supreme Court has determined that those acts provide the Federal Energy Regulatory Commission (FERC) with exclusive jurisdiction over the transportation of natural gas through an interstate pipeline. Although FERC will consider the decision of the Thurston County Land Use Hearing Examiner in its decision process, any attempt to prohibit or unreasonably delay the natural gas pipeline must yield to the FERC determinations.23

Criteria for Review in County Code

Review of Special Use Permit Application The Hearing Examiner may approve the application for a Special Use Permit only if the following findings can be made based on the evidence presented at the hearing: 1. The proposed use at the specified location must comply with the Thurston County

Comprehensive Plan and all applicable federal, state, regional, and Thurston County laws or plans.

2. The proposed use must comply with the general purposes and intent of the applicable

zoning district regulations and subarea plans. Open space, lot, setback and bulk requirements shall be no less than that specified for the zoning district in which the proposed use is located unless specifically provided otherwise in this chapter.

23 The Natural Gas Act can be found at 15 U.S.C. §§ 717a-717z. The Pipeline Safety Act can be found at 49 U.S.C. §§ 60,101-60,503. See, Northern Natural Gas Company v. State Corporation Commission of Kansas; Schneidewnd v. ANR Pipeline Co.; 97 FERC ¶ 61,201 (2001).


3. No application for a special use shall be approved unless a specific finding is made that the proposed special use is appropriate in the location for which it is proposed. This finding shall be based on the following criteria:

a. Impact. The proposed use shall not result in substantial or undue adverse effects

on adjacent property, neighborhood character, natural environment, traffic conditions, parking, public property or facilities, or other matters affecting the public health, safety and welfare. However, if the proposed use is a public facility or utility deemed to be of overriding public benefit, and if measures are taken and conditions imposed to mitigate adverse effects to the extent reasonably possible, the permit may be granted even though the adverse effects may occur.

b. Services. The use will be adequately served by and will not impose an undue

burden on any of the improvements, facilities, utilities, or services existing or planned to serve the area.

Thurston County Code (TCC) Section 20.54.040. In addition to the general special use permit criteria, TCC Section 20.54.070 (20) requires that certain pipelines (including this proposal) be reviewed for “the need for the particular location” and for “the physical and economic impacts of such facilities” as well as “measures to mitigate those impacts.”

Review of Shoreline Substantial Development Applications To be approved by the Hearing Examiner, the proposal must be consistent with: (a) The policies and procedures of the Shoreline Management Act; (b) The provisions of applicable regulations; and (c) The Shoreline Master Program for the Thurston County Region WAC 173-28-150. Applicable Shoreline Master Program criteria and policies are set forth below. Regional Criteria (SMPTR Section 2(V)): B. Protection of water quality and aquatic habitat is recognized as a primary goal. All

applications for development of shorelines and use of public waters shall be closely analyzed for their effect on the aquatic environment.

G. Shorelines of this Region that are notable for their aesthetic, scenic, historic or ecological

qualities shall be preserved. Any private or public development that would degrade such shoreline qualities shall be discouraged. Inappropriate shoreline uses and poor quality shoreline conditions shall be eliminated when a new shoreline development or activity is authorized.


H. Protection of public health is recognized as a primary goal. All applications for development or use of shorelines shall be closely analyzed for their effect on the public health.

Utilities Policies (SMPTR Section 3(XX)(B)): 1. Wherever utilities must be placed in a shoreline area, the locations should be chosen so as

not to obstruct or destroy scenic views. Utilities should be placed underground, or designed to do minimal damage to the aesthetic qualities of the shoreline area.

2. Where construction connected with utility placement occurs on shorelines, banks should

be restored to their pre-project configuration, replanted with native species and maintained until the new vegetation is established.

5. Utility rights-of-way should be used for public access to and along water bodies where

feasible. 6. If utilities must be located over the water, they should be placed on bridge-like structures

rather than fill, and said structures should provide clearance for all marine vessels normally using the area.

7. New major transmission facilities should follow existing utility corridors unless

prohibited by the environmental designation and regulations. Utilities General Regulations (SMPTR Section 3(XX)(C)): 1. Applicants for permits to locate utility lines in the shoreline jurisdictional area shall

submit a location plan with their application, which shows existing utility routes in the vicinity of the proposed utility line. The proposed utility lines shall follow existing utility, natural drainage or transportation routes where feasible.

2. All utility facilities shall be located on lots or routes no larger than necessary. 3. The approved projects shall identify a method of reclamation, which provides for

revegetation and protection of wetland areas from erosion. At a minimum, this shall include the restoration of the affected area to pre-development elevation, replanted with native or pre-existing species and provisions for maintenance care for the newly planted or seeded vegetation until it is established.

5. Where feasible, utilities shall be placed underground unless such undergrounding would

be economically or technically prohibitive or significantly detrimental to the environment.

6. Utility facilities shall be designed for minimal environmental and aesthetic impact and

shall be coordinated with local comprehensive plans.


7. Underwater utilities shall be located at a depth sufficient to prevent interference between the utility and other shoreline use activities.

8. All utility facilities must provide safeguards to ensure that no long-term damage will be

caused to the adjacent or downstream environment should an accident occur involving the facility.

Environmental Designations and Regulations (SMPTR Section 3(XX)(D)): 3. Conservancy Environment. The following utility facilities are allowed in the

Conservancy Environment by Conditional Use Permit:

b. Utility transmission lines 4. Natural Environment. Utilities are not permitted in the Natural Environment, with the

exception of necessary utilities to single-family residences and public recreation facilities, in accordance with regulations for such utilities in the Residential Development section.

Nonconforming Uses (SMPTR Section 1(V)(E)): 3. Expansions of Nonconforming Uses. The expansion of a nonconforming use is prohibited.

An intensification of use is permitted and occurs when the intensified use is contained within the existing structure, or area, which has been in use, and is not different in kind from the existing nonconforming use.

Review of Shoreline Conditional Use Application

To be approved by the Hearing Examiner, the proposal must be consistent with the following criteria set forth in WAC 173-27-160(1): 1. The proposed use is consistent with the policies of RCW 90.58.020; 2. The proposed use will not interfere with the normal public use of public shorelines; 3. The proposed use of the site and the design of the project is compatible with other

authorized uses in the area and with uses planned for the area under the comprehensive plan and shoreline master program;

4. The proposed use will cause no significant adverse effects to the shoreline environment

in which it is to be located; and 5. The public interest suffers no substantial detrimental effect.

Conclusions Based on Findings The analysis of the consistency of the pipeline proposal with the criteria for approval established by the State of Washington and the Thurston County Board of Commissioners must be


completed in two parts: (1) that portion of the pipeline that is proposed to be constructed outside the area used by the existing pipeline and (2) the remaining portions of the pipeline that will parallel the existing pipeline. The reason a separate analysis is needed is that the proposed crossing of the Black River will be several hundred feet away from the existing pipeline crossing of the Black River. The Applicant and County argued at the hearing that this crossing could be authorized as an intensification of a nonconforming use. However, a thorough review by the Hearing Examiner of the law on nonconforming uses does not support the position of the Applicant and the County. Although the County suggested at the hearing that the Department of Ecology was in agreement with its position, no written waiver of the application of the Thurston County Shoreline Master Program was made available to the Examiner. It would be inappropriate for the Hearing Examiner to depart from the application of legal principles to this or any other application.

Nonconforming Use Analysis & Decision A portion of the proposed pipeline is an expansion of a nonconforming use and is therefore prohibited by Section I(V)(E) of the Thurston County Shoreline Master Program. In its analysis of this pipeline proposal, the County argues that the proposed Black River/Dempsey Creek crossing is a permitted intensification of a nonconforming use rather than a prohibited expansion of a nonconforming use, based on the County’s interpretation of “area”. The interpretation depends, in part, upon the description of the easement area. The Applicant seems to argue that it may include the entire parcel of land until the pipeline is actually constructed. The interpretation also relies, in part, upon a consultation by the County with the Department of Ecology that was not available as an exhibit or through testimony from Ecology personnel. The Hearing Examiner must reach his own interpretation as to the “area,” guided by the Shoreline Act, regulations adopted under that Act, and by judicial decisions. The key regulation adopted by the Thurston County Board of Commissioners is cited in the “Criteria for Review” section of this decision. A nonconforming use is specifically prohibited; an intensification of use is permitted if contained in an “area which has been in use” and if it is “not different in kind from the existing nonconforming use.” Section I(V)(E) of the Shoreline Master Program. The Hearing Examiner is guided by two cases when applying this shoreline regulation. In State ex rel. Miller v. Cain, 40 Wn.2d 216 (1952), the Washington Supreme Court held that the right to a nonconforming use does not entitle the property owner to a building permit for new and larger facilities to house the nonconforming use. Thus, under a zoning scheme that prohibited structural modifications to nonconforming uses except under limited circumstances, an Applicant was denied a building permit to tear down and replace a nonconforming gas station in a residential zone. In a later case, Keller v. Bellingham, 92 Wn.2d 726 (1979), the Supreme Court distinguished Miller and held that the modernization of a chlorine manufacturing plant, including the addition of six electrolytic “cells” to an existing 26-cell building, did not constitute a prohibited


“enlargement” of the nonconforming use, but instead was an “intensification” of the nonconforming use. In Keller, the chlorine manufacturing plant was a nonconforming use because it was constructed prior to a change in zoning that prohibited the use. Although the plant was specifically designed to hold 32 cells, only 26 cells were in place at the time of the zoning change. Years later, the manufacturer added six new cells to bring the facility to design capacity. The addition was expected to increase chlorine production by 20 percent. Although the court did not explicitly define intensification in its decision, the court summarized the applicable law as follows: 1. When an increase in volume or intensity of use is of such magnitude as to effect a

fundamental change in a nonconforming use, courts may find the change to be proscribed by ordinance.

2. Intensification is permissible, however, where the nature and character of the use is

unchanged and substantially the same facilities are used. 3. The test is whether the intensified use is “different in kind” from the nonconforming use

in existence when the zoning ordinance was adopted.

4. If a use is established in part but not all of a building prior to enactment of a zoning ordinance, the right to continue the use as “nonconforming” may not include the right to extend it to other portions of the building; however, such extension is permissible if the design of the structure indicates that at the time of the passage of the zoning restriction it was intended to dedicate the building, in its entirety, to such use.

The cases cited above make clear that there may be a prohibited expansion even when the proposed use is confined to the same parcel as the nonconforming use. In Keller, the significant factors supporting the Court’s holding that the chlorine manufacturer’s project was an intensification of a nonconforming use, rather than an expansion, were the design of the building and the location of the new cells within the building. Had the manufacturer constructed an addition to the building to house the new cells, the project would likely have been deemed a prohibited expansion. The Black River/Dempsey Creek crossing is not an intensification of a nonconforming use; it is an expansion. The proposed pipeline would not be in the same “area” as the existing pipeline; it would be located several hundred feet away from the existing pipeline. An entirely new pipeline corridor would be created to contain a new, larger pipe structure. Although the use of the pipeline for transporting natural gas would be the same as the existing pipeline, deviations with respect to size, location and impact can cause an identical use to be “different in kind” from the original use. The proposal is more analogous to the expansion prohibited in State ex rel Miller than the intensification allowed by Keller. Until there is clarification of the difference between “intensification” and “expansion” in the Thurston County Code – by amendments to the local ordinances, an Attorney General’s Opinion,


or a Memorandum from the Prosecuting Attorney – the Hearing Examiner must rely upon his best judgment to make a decision as to how to distinguish between the two concepts. As the section now reads, however, the proposed use is an “intensification” only when it is contained within the existing structure or “area which has been in use”. Since this portion of the pipeline will be located several hundred feet from the existing pipeline, it cannot be said to be an “intensification” of the use.

Special Use Permit Application

1. The proposed use at the specified location does not comply with all applicable federal, state, regional, and Thurston County laws or plans. The proposed pipeline location for the crossing of the Black River is outside the shoreline area and does not qualify as an intensification of use. It is proposed as an expansion of the use, outside of the area now used for pipelines. Thus, it may not be approved in that area for a Special Use Permit. All other portions of the proposed pipeline comply with applicable laws. Findings of Fact No.3,5,21,22 & 26.

2. The proposed use does comply with the general purposes and intent of the

applicable zoning district regulations and subarea plans. The proposed pipeline traverses many different zoning districts and subareas. As a utility proposal, it is embraced within the County Comprehensive Plan and Zoning Code as a special use that must be reviewed in a unique fashion since it is regional in scope. The need for the location proposed by the Applicant is primarily due to the desire to follow the existing pipeline. Inasmuch as the Major Energy Facilities section of the zoning code (Section 20.54.070 (20)) is intended to overlay all zoning districts and subarea plans, the proposed pipeline is consistent with the general purposes and intent of the code for the areas within which it is located, with the exception of the proposed Black River crossing. Findings of Fact No. 1 – 5,7,23, 55 - 57 & 107 - 119.

3. With conditions, the proposed special use could be appropriate in the location for

which it is proposed. Conditions of approval are needed to ensure that the proposed use does not result in substantial or undue adverse effects on adjacent property, neighborhood character or natural environment, as the proposed facility does not qualify as a utility with “overriding public benefit.” From the evidence in the record, the Hearings Examiner concludes that there will be no substantial or undue adverse effects if the Applicant complies with conditions of approval. The potential adverse effects that must be addressed with mitigation conditions are those resulting from increases in noise, impacts during construction to water wells, impacts to water quality from spills of hazardous substances, and impacts to water quality from grading and erosion. Findings of Fact No. 8 – 65, 74 - 98.

Although several neighboring property owners also expressed concerns about negative impacts on property values due to construction of another pipeline, there is insufficient evidence in the record from which to conclude that property values would be adversely affected. Although there was general testimony regarding difficulties in selling property


and the potential for property devaluation, Washington courts have established that community fears must be substantiated before they may be used as a basis for a land use decision. Department of Corrections v. City of Kennewick, 86 Wn. App. 521 (1997); Sunderland Family Treatment Services v. City of Pasco, 127 Wn.2d 782 (1995).24 No evidence was presented that the addition of a second pipeline along an existing pipeline corridor would create any new impacts with respect to property values. In contrast, the reports submitted by the Applicant, which were based on sales data from a variety of residential communities, strongly suggested that property values would not be adversely affected by the proposed pipeline. Moreover, the fact that adjacent property owners would receive compensation for easements and property damage suggests that any diminishment of property value would be mitigated.

Although it is possible that the pipeline would have an adverse impact on the value of an individual parcel, recent court decisions suggest that in the context of special use permits, such impacts should be considered on a community-wide rather than individual basis. In Department of Corrections v. City of Kennewick, 86 Wn. App. 521 (1997), the Court of Appeals quoted with approval from a California decision addressing this concept, Lucas Valley Homeowners Ass’n v. County of Marin, 233 Cal.App.3d 130, 284 Cal.Rptr. 427 (1991). The Court’s summary of Lucas is as follows:

Lucas concerned a conditional use permit issued on an application to convert a residence into a synagogue. The court held there was no evidence, only general allusions; the synagogue would affect property values. It observed: “Suffice it to say that whenever a noncommercial assembly use locates next door to a family home, there is a potential for some real or imagined impact on the value of that home.” The court concluded: “The legislative determination that these uses are allowed by permit is tantamount to recognizing this phenomenon and, thus, the impact analysis should focus on the neighborhood as whole and the welfare of all persons residing there.”

Department of Corrections, 86 Wn. App. at 533. From a community-wide perspective, there is no evidence that property values would decrease as a result of the pipeline.

The Thurston County Code provides that project applications with an “overriding public benefit” may be granted despite the occurrence of adverse effects to property, neighborhood character or the natural environment. TCC 20.54.040(3)(a). The Applicant testified that the proposed pipeline provides an “overriding public benefit”

24 In Department of Corrections, the court found that community fears regarding a work release facility were unsubstantiated even in light of studies and reports, which although favorable to the Department’s request, nonetheless indicated that a small percentage of work release inmates fail to return to the facility and some commit additional crimes while at large. Department of Corrections, 86 Wn. App. at 526.


because it will supply natural gas to the energy production facility, which will supply energy to our “region.” The Applicant argued that “region” should be interpreted to include the western states and intermountain areas. Representation of Mr. Knox.

Findings of Fact No. 99 – 104 (for the four preceding paragraphs).

4. The use will be adequately served by and will not impose an undue burden on any of

the improvements, facilities, utilities, or services existing or planned to serve the area. No testimony presented by the County staff or any citizen of the County suggested there would be any burden on improvements, facilities, utilities or services existing or planned for the area. The proposed construction period is relatively short and will not place an undue burden on County services. Following construction, activity surrounding the proposed pipeline involves monitoring and maintenance, neither of which will draw upon County facilities or services. Findings of Fact No.34,35,39,42,43,52,64,65,75,79 & 98.

Shoreline Substantial Development Application

For those portions of the proposed pipeline outside the area of the Black River crossing, the following analysis applies: 1. With conditions of approval, the pipeline crossing of the Deschutes River is

consistent with the policies and procedures of the Shoreline Management Act. Chapter 90.58 RCW, the Washington State Shoreline Management Act of 1971 (SMA), establishes a cooperative program of shoreline management between the local and state governments with local government having the primary responsibility for initiating the planning required by the chapter and administering the regulatory program consistent with the Shoreline Management Act. RCW 90.58.050. The Shoreline Master Program for the Thurston Region (SMPTR) provides goals, policies and regulatory standards for ensuring that development within the shorelines of the state is consistent the policies and provisions of Chapter 90.58 RCW.

State shoreline policy, as set forth in RCW 90.58.020, is to “provide for the management of the shorelines of the state by planning for and fostering all reasonable and appropriate uses.” This policy contemplates protecting against adverse effects to the public health, the land and its vegetation and wildlife; and gives priority to uses that, among other things, “recognize and protect the state-wide interest over local interest” and “preserve the natural character of the shoreline.” In implementing shoreline policy “the public’s opportunity to enjoy the physical and aesthetic qualities of natural shorelines of the state shall be preserved to the greatest extent feasible consistent with the overall best interest of the state and the people generally.” Thus, preferred shoreline uses are those “which are consistent with control of pollution and prevention of damage to the natural environment, or are unique to or dependent upon use of the state’s shoreline.” Permitted shoreline uses must be designed to “minimize, insofar as practical, any resultant damage


to the ecology and environment of the shoreline area and any interference with the public’s use of the water.” RCW 90.58.020.

The Washington Court of Appeals clarified the purpose of the SMA in Overlake Fund v. Shorelines Board, 90 Wn.App. 746 (1998). The court explained that “[t]he SMA does not prohibit all development in the shoreline. Rather, its purpose is to allow careful development of shorelines by balancing public access, preservation of shoreline habitat and private property rights through coordinated planning.” Overlake Fund, 90 Wn.App. at 761.

The proposed pipeline crossing of the Deschutes River is consistent with the policies of the Shoreline Management Act because it will utilize technology designed to protect the natural character of the shoreline and its vegetation and wildlife. The proposal will minimize damage to the ecology and environment of the shoreline area insofar as practical, and will not interfere with the public’s use of the water. With these features, the proposal represents an appropriate balance between public access and preservation of shoreline habitat and private property rights. Findings of Fact No. 105 - 119.

2. With conditions of approval, the proposed pipeline crossing of the Deschutes River

is consistent with applicable shoreline regulations and the Shoreline Master Program for Thurston County. The Department of Ecology shoreline regulations are located in Chapters 173-26 and 173-27 of the Washington Administrative Code (WAC). Chapter 173-26 sets forth procedures and guidelines for local adoption of shoreline master programs that are not applicable to the Applicant’s permit request. Chapter 173-26 sets forth permitting procedures and permit criteria. This proposal is being reviewed under the criteria set forth in WAC 173-27-150 and 173-27-160.

A. The proposal is consistent with the Regional Criteria. The HDD technique is

generally protective of water quality, aquatic habitat, public health, and aesthetic and scenic shoreline qualities. For the Deschutes crossing, the riverbanks will not be disturbed and no trees will be removed from the area of shoreline jurisdiction. The primary water quality concern associated with HDD is the risk of inadvertent release of drilling fluid. However, the risk is slight for the portion of the HDD that will be directly beneath the river. Frequent inspection, as proposed by the Applicant, will ensure that any release is quickly identified. Containment and cleanup measures have been identified. After the pipeline is operational, there is not expected to be adverse effects to water quality. Methane gas is not known to combine with water. Findings of Fact No. 113 – 119.

B. The proposal is consistent with the Utility Policies. The pipeline will be

underground so as not to obstruct or destroy scenic views. The HDD will avoid the riverbanks. The portion of the floodplain affected by the temporary work area will be restored. Because the pipeline will be crossing private property through easements, use of the right-of-way for public access is not feasible. The pipeline


generally follows the existing utility corridor. The deviation from the corridor to cross the Deschutes River is necessary to accommodate the limitations of the HDD. Such deviation does not conflict with Conservancy Environment regulations. Findings of Fact No. 107 – 119.

C. The proposal is consistent with the Utility General Regulations. The project plans

identify the existing utility route and the proposed pipeline will follow that route where feasible. The proposed route is no larger than necessary to cross Thurston County. Revegetation and erosion control methods have been identified in the FEIS. The HDD technique will minimize the environmental and aesthetic impacts of the pipeline project. Because the HDD will be beneath the surface, there will be no interference with other shoreline uses. The types of accidents associated with the proposal include fuel spillage, inadvertent release of drilling fluid, and pipeline rupture. As described above, methane gas does not mix with water to degrade water quality. The Applicant has developed a Spill Prevention, Containment and Countermeasure Plan to address the potential for fuel spillage. The risk of frac-out directly beneath the river is slight, and the drilling fluid is a pH neutral solution of inert clay (bentonite) and water. However, mitigation measures in the event of release have been identified. Findings of Fact No. 107 – 119

Shoreline Conditional Use Application

1. The proposed pipeline crossing of the Deschutes River satisfies the criteria for a Conditional Use Permit. The proposed use is consistent with the policies of RCW 90.58.020, and will not interfere with the normal public use of public shorelines. The proposal is compatible with authorized land uses in the area, particularly the existing pipeline use. The HDD technique will minimize the potential for significant adverse effects to the Conservancy Environment. Significant adverse effects were evaluated in the FEIS and mitigation measures were identified. The public interest will suffer no substantial detrimental effect as a result of the Deschutes River crossing. Findings of Fact No.5, 107 -119.

DECISIONS

Based upon the above Findings and Conclusions, the Hearing Examiner issues the following decisions: 1. The request for a Special Use Permit is DENIED, for failure to comply with all

applicable laws, specifically the Shoreline Master Plan policy against expansion of nonconforming uses. If, however, the proposed Black River crossing is allowed by a superseding authority, the Hearing Examiner recommends that the following conditions be applied to mitigate unreasonable adverse impacts that would otherwise occur during implementation of the proposed pipeline:


a. Prior to or in conjunction with the issuance of any building permits and operation of the facility, all regulations and requirements of the April 2, 2002 Thurston County Roads & Transportation Services Department memorandum (Exhibit 5) and the April 3, 2002 Thurston County Public Health and Social Services Department memorandum (Exhibit 4) shall be met, including provisions related to prevention of spills, protection of wells and mitigation of impacts from erosion.

b. There shall be no construction within any Thurston County road rights-of-way

without a finalized franchise or license agreement with Thurston County.

c. All mitigation measures identified in the March 2002 Final Environmental Impact Statement (Exhibit 2, Attachment d) shall be instituted including, but not limited to:

• FERC’s Upland Erosion Control Revegetation, and Maintenance Plan

(Exhibit 2, Attachment d, Appendix B). This Plan shall be used for all non-wetland areas of the project. The intent of this Plan is to confine project-related disturbance to certified areas – such as construction rights-of-way, extra work areas, pipe storage yards, and access roads – and to minimize erosion and enhance revegetation in those areas.

• FERC’s Wetland and Water Body Construction and Mitigation Procedures

(Exhibit 2, Attachment d, Appendix C). This Plan shall be used for all wetlands and water bodies affected by a project. The intent of this Plan is to minimize the extent and duration of project-related disturbance of wetlands and water bodies.

• The Applicant’s Groundwater Monitoring and Mitigation Plan (Exhibit 2,

Attachment d, Appendix D). This Plan shall be used to identify ground water resources, determine the susceptibility of impacts, monitoring, and mitigation.

• The Applicant’s Spill Prevention, Control and Countermeasure Plan (Exhibit

2, Attachment d, Appendix E). This Plan shall be used to minimize the potential for a spill; in the event of a spill, contain the spillage in the smallest area possible; and to protect areas that are of environmental concern.

• Damage Mitigation Plan for Water Well and Septic Systems, prepared by

Golder Associates (Exhibit 2, Attachment d, Appendix F). This Plan focuses on preventative actions in the unlikely event that damage does occur. It outlines the actions required to prevent or mitigate adverse impacts to water wells and septic systems prior to, during, and after construction of the pipeline.


d. Noise emissions shall be monitored on a twice-daily basis during HDD construction. One measurement shall be taken between the hours of 7:00 a.m. and 10:00 p.m., and one measurement shall be taken between the hours of 10:00 p.m. and 7:00 a.m. Results from these measurements shall be submitted to the Thurston County Environmental Health Department every five days during the HDD construction period. Noise emissions during HDD construction shall comply with WAC 173-60-040. If permissible noise levels are exceeded, the Applicant shall immediately mitigate noise emissions by using such methods as:

• Placing primary noise emitting equipment within a canvas shelter; • Placing primary noise emitting equipment within a canvas shelter and treated

sidewall. 2. The request for a Shoreline Substantial Development Permit, for those areas outside the

proposed crossing of the Black River, is GRANTED, with the following conditions: a. All construction shall be in substantial compliance with reviewed and approved

project plans identified in the JARPA (Exhibit 2, Attachment b) and March 2002 EIS (Exhibit 2, Attachment d).

b. The Applicant shall obtain all required local, state and federal permits prior to

commencing construction. 3. The request for a Shoreline Conditional Use Permit, for those areas outside the proposed

crossing of the Black River, is GRANTED, with the following conditions:

a. All construction shall be in substantial compliance with reviewed and approved project plans identified in the JARPA (Exhibit 2, Attachment b) and March 2002 EIS (Exhibit 2, Attachment d).

b. The Applicant shall obtain all required local, state and federal permits prior to

commencing construction. Decided this 30th day of April 2002

THEODORE PAUL HUNTER, Hearing Examine25

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25 The Hearing Examiner wishes to acknowledge the assistance of Attorney LeAnna Drevecky and Legal Intern Sean Russell in preparation of this decision. Without their able assistance, the review of the massive record of exhibits and testimony as well as the research of applicable law could not otherwise have been accomplished in the short time period allowed for issuance of a decision.

Documents

BEFORE THE HEARING EXAMINER FOR THURSTON COUNTY · Attachment j: July 13, 2001 Letter from Shanna Stevenson, Thurston County Historic Commission Attachment k: July 16, 2001 Letter