09-0085 Appeal 052109t,.
M ~~' ~ 0 - SQLIAXII~I ISLAI~ID TRIBE
~~
~y~ ~uG `-
J ~R M~~
:.,~ .,. .... .. ::..,,.:~.... JYh~
21 May 2009
Yelm Hearings Examiner
City of Yelm
105 Yelm Ave W
Yelm, WA 98597
1 am writing on behalf of the Squaxin Island Tribe to appeal a mitigated determination of
nonsignificance {MDNS) for Case Number ENV-08-0397-YL, the State Environmental
Policy Act review of the allocation of new water for municipal use purposed by the City
of Yelm. We believe that the project as proposed will have a probable significant ad-
verse impact on the environment such that the MDNS was issued in error and should be
denied.
Our interest in this environmental review is primarily, but not exclusively, the Deschutes
Watershed (WRIA 13) including both the Deschutes River and Woodland Creek. This
geography is included in the usual and accustomed grounds and stations reserved for
fishing, hunting and gathering by the Squaxin Island Tribe at the signing of the Medicine
Creek Treaty with the U.S. Government in 1854. Any impact to streamflows that result
from new water withdrawals by the City of Yelm will diminish the property rights re-
served in the Treaty.
The State of Washington, in WAC 173-513-030, closed the Deschutes River #o new
consumptive appropriation on 6!24/80 because additional water diversions would harm
instream values. The State went on, in WAC 173-513-050, to also close the basin to
new groundwater withdrawals that have an adverse impact on surface water. It is in-
cumbent upon the City to demonstrate with certainty that their proposal will not impact
surface water before issuing a MDNS.
The City of Yelm and the Squaxin Island Tribe are in firm agreement that streamflows
will be diminished as a result of the proposed new water use. The numeric groundwater
model cited in Attachment A provides an estimate of the magnitude and timing of
streamflow depletion. Neither party disputes these findings.
One central concern of ours is the proposed mitigation ratios, implementation strategy
and margin of safety planned to compensate for the streamflow depletion. The inade-
quacy of all three components is what leads us to the conclusion that the proposed wa-
terwithdrawals will have a probable significant adverse impact on the environment.
Natural Resources Department / 2952 S.E. 0[d Olymptc Huy. / Shelton, UJA 98584
Fax (360J 426-397I / Phone (360J 426-9781
Specifically the plan proposes:
• A mitigation ratio of 1:1 for impacts on streamflow in the Deschutes River.
^ A mitigation ratio of 1.5:1 for impacts on streamflow in Woodland Creek.
^ No mitigation for streamflow diminishment that falls below the accuracy limi#s of
the groundwater model (< 1% of the baseline discharge).
^ No margin of safety far the Deschutes River and inadequate margin of safety for
Woodiand Creek.
t3y margin of safety, we are referring to a volume of water beyond the estimated dimin-
ishment that recognizes the potential for model error and environmental uncertain#y. It
provides overcompensation to counterbalance the potential error and environmental un-
certainty. I# will increase the likelihood of achieving no environmental harm.
The scientists who built, managed and ran the model relied on a "conservative ap-
proach" that they believe tends to overpredict deple#ions and thus, justify a 1:1 ar 1.5:1
mitigation ratio as adequate to compensate for environmental impacts. The City goes
further and states that depletions of < 1 % of baseline discharge are within the error
range of the groundwater model and will be ignored.
We believe there is more uncertainty associated with predictions of small impacts and a
"conservative" approach to modeling alone provides inadequate compensation and
mitigation. Further, ignoring impacts because they are too small increases the likeli-
hood of mitigation failure.
We argue that all impacts should be mi#igated and a larger margin of safety established
because smaller impacts are more difficult to predict. Wi#hout such, the mitigation has
an unacceptably high risk of being ineffective and the new water withdrawals diminish-
ing streamflows. That will harm both the Deschutes River and Woodland Creek resulting
in a loss of Tribal property rights and violations of state law.
Other elemen#s of the mitigation plan are vague and not ripe for consideration of their
value in making a MDNS determination. While the Squaxin Island Tribe and the City of
Yelm have discussed concepts for additional mitigation of our fisheries concerns, noth-
ing is certain. With no concrete plan, none of us can as yet estimate the mitigation
value of such actions and incorporate them into #his threshold determination.
For these reasons, we believe that the mitigation as proposed is inadequate environ-
mental compensation for the project and will lead to environmental harm. This leads to
the error of issuing the MDNS and it should be denied. The City must demonstrate with
a higher level of certainty that their proposal will not impact surface water before issuing
any threshold decision.
We believe that if the City of Yelm wishes to pursue the mitigation plan as proposed, a
full environmental impact statement is necessary to thoroughly understand the likely en-
vironmental harm. Alternatively, a revised mitigation plan with s#ronger, better-defined
environmental protections and a larger margin of safety may qualify for an MDNS in the
future.
Sin~erely,
~ -,.I.
o~n Konovsky
E"nwronmental Program Manager