Hearing Examiner Ruling: How Best Available Science Disappeared from the Avista Decision (Part 1)

Part 1: Overview / Why it matters / What Council can do / What you can do

https://www.youtube.com/watch?v=VO3Vdid5x5A

2 min Explainer Video on Why it Matters for Citizens

Other Posts in the 3-Part Series

Part 2: Why the Exhibits Matter Part 3: Errors Made about Appellant Exhibit Admission Jan 12, 2026 Remand Letter Sent to the City of Blaine to Correct the Record

Takeaway: Ruling does not accept best available science and best management practices from credible experts, County engineering reports, UW research and state regulatory agencies

Part 1: Quick Overview. What Happened

The City Hearing Examiner Phil Olbrechts wrote his Ruling for Avista on January 5, 2026 and Blaine issued it on January 6, 2026. The City Council will most likely vote in favor of his recommendations to modify the City's conditions for the Avista developer to proceed. However, these modifications fall short of addressing 200+ public concerns raised in our SEPA appeal (see Community Report). The Hearing Examiner's recommendations contain serious record-level inconsistencies that we are working to correct before Council likely votes on January 26, 2026 at 6 pm PDT.** This post is not about whether you agree with the Hearing Examiner's viewpoint fairness, recommendations or conclusions. It is about whether the Ruling:

• contains an internal inconsistency about exhibit handling that City Council can verify directly from the administrative record before relying on it.

• excluded evidence to make factual statements or opinions that the Council relies on for duty of care in their decision-making.  

The City of Blaine’s SEPA process for excluding exhibits wasn’t just confusing, it was unfair to residents who contributed evidence and comments

• The process was not fair to the public.

• Key science, authoritative reports and maps were kept out of the official record.

• That made it easier to say there was ‘no evidence’ of the risks residents are worried about.

What Council can do: Record Accuracy

Before dismissing the 200+ citizen concerns and discounting excluded Appellant evidence because Appellants “didn’t produce the requested pdfs,” Council can exercise its duty of care by reviewing the Part 3 Posting, email chains and document‑room timestamps and clarify whether the issue was non‑production by Appellants or a breakdown in how exhibits were transferred into the City’s own document room and omitted for the record.

City Council should not adopt findings dependent on the “no admittable reference” premise. Here's what it can do to ensure fairness given the different handling of exhibits in the Ruling.

• We are asking Council to fix the record before voting action.

• We are asking Council for a limited remand to correct the admitted-exhibit ledger so the closed-record decision is based on an accurate record.

WPM's Jan 12, 2026 Remand Letter Sent to the City of Blaine to Correct the Record

Remand for a Hearing Examiner Rule 43 clerical/oversight correction and require a corrected final admitted-exhibits list explicitly listing W-15, W-8, W5A, W5B)

1. Issue a revised exhibit admission ledger showing what was tendered, cited, admitted, and excluded, including the W exhibits from the Appellant noted above (W5A. W5B, W8 mapping and the separately‑admitted W15). W15 was admitted for a limited purpose in the hearing transcript, but the final written exhibit list does not show W exhibits;

2. Correct any Examiner findings that are driven by procedural exclusion of the exhibits noted above (W5A, W5B, W15/A10 and W8).

What Citizens "You" Can Do Today*

Because Council review is closed record, the Council cannot consider new evidence or public testimony about the merits. If residents believe a remand for clarification is warranted, that request should be framed as reconciling internal record inconsistencies without adding new evidence or testimony.

1. Email Blaine City Council*:  Submit a short written comment via the City Clerk or Council’s designated email. Ask them to correct Avista record for our exhibits before vote. You can mention (template below):

   • The written decision says ‘no admittable reference’ / no W exhibits, but transcript and emails show W-15 admitted and W-8/W-5 cited.

   • Please correct these errors.

   • This is not new evidence, just reconciling internal record contradictions before closed-record action.

2. The City Clerk’s submission instructions are on the City of Blaine website, Council page:

   • City Council:  CityCouncil@cityofblaine.com

   • City Clerk Samuel Crawford: scrawford@cityofblaine.com

3. Share this story: Forward this blog to neighbors, HOA boards and local groups in Birch Bay, Semiahmoo, Blaine and Whatcom County.

4. Publicize:  Share your thoughts on Next Door, social media and the press.

Citizen Comment Template (Send to Blaine City Council before January 26, 2026 (likely vote date)

Summary: The Hearing Examiner's final ruling says Appellants didn't cite their exhibits, but his own emails and the hearing transcript show he admitted those exhibits.

Subject: Record Correction Required Before Any Council Vote (Avista SEPA Appeal)

Dear City Clerk and Council Members,

I am writing about the Hearing Examiner's January 5, 2026 ruling on the Avista project. A January 12, 2026 remand letter from Appellants shows the ruling has errors about which exhibits were admitted into the record. This is not about whether you like or dislike the project. It is about making sure the record you vote on is accurate.

The ruling says Appellants made "no admittable reference" to their exhibits in their closing brief. However, the Hearing Examiner's own email from November 24 says he admitted pages 1–25 of that closing brief and the exhibits were cited in it. The hearing transcript also shows the Examiner admitted Exhibit W15 on November 8 for stormwater analysis (Avista transcript, p.440). The Examiner's November 25 email also confirms that Exhibit W8 (climate data) was cited in the admitted closing brief. So the statement that there were "no admittable references" contradicts the Examiner's own earlier emails and the transcript.

Also, the ruling's final exhibit list shows no W-series exhibits at all, even though the Examiner admitted W15 in the hearing, acknowledged W8 and W5 citations in his November 24-25 emails, and Appellants submitted W5A and W5B (Department of Ecology water quality maps) under the Examiner's cure instructions.

Thank you for ensuring the City acts on an accurate and legally defensible record.

Sincerely / Respectfully,

[Your Name]

[Your Address/Neighborhood/City]

*Note: In this quasi‑judicial SEPA appeal, Blaine City Council must follow Washington ex parte and appearance‑of‑fairness rules and avoid off‑record contacts about the merits once the record is closed. These limits do not prevent residents from seeking structural reforms to Blaine’s land‑use and stormwater systems or from reporting omissions and risks to state and county regulators such as the Department of Ecology and Whatcom County.

Why it Matters / Why Citizens Should Care

When City recordkeeping excludes cited exhibits backed by science and regulatory agency data, it's easy to dismiss concerns from citizens and the community. The public loses trust and ordinary residents lose their voice.   

The Hearing Examiner effectively dismissed the evidence and 9 out of the top 10 mitigations expressed by Blaine and Birch Bay citizens (see source here). These mitigations are based on over 200 public comments and expert witness testimony and technical reports (UW Ex.W8, Tetra Tech Ex.210, Whatcom Future Shorelines Ex. A10 ).

It means your voice is not heard or acted on by the City of Blaine

"Climate risk is not optional. Bigger storms, king tides, and rising seas change how fast ponds drain and how far water backs up. The City can’t keep using old numbers. Make the design pass today’s climate tests—or send it back." - Citizen comment about Avista admitted to the record

What the Ruling Says About Our Exhibits

The January 5, 2026 Hearing Examiner Ruling states the Exhibit Rejection

"Despite the third opportunity to present their exhibits and weblinked exhibits for admission in their closing brief and their second opportunity to admit web-based documents, the Appellants made no admittable reference to their rebuttal list in their closing argument." (p.10)

"In their reply brief and accompanying relevancy explanation the Appellants didn’t present any exhibits identified in their rebuttal exhibit list. Instead they presented an entirely new set of exhibits." (p.10)

The Appellants cite statistics in their closing brief showing an increase in precipitation over historical patterns. This information is not admitted into the record because its based upon studies that weren't included in the Appellants' exhibit list." (p.29)

What the Hearing Examiner Did Admit from the Community and Appellant (p.10 Ruling)

In the January 5 Recommendation, the Hearing Examiner states that Appellants made "no admittable reference" to their rebuttal exhibit list in the closing argument and that later briefing presented “an entirely new set of exhibits.” The final admitted-exhibit list to the Ruling includes "Closing Brief pages 1-25" and six exhibits (A4, A5, A7, A22, A68, A83), but no W-series website exhibits at all (See image 1).

Image 1: Appellant Exhibits, Community Comment Submissions

Sources: Hearing Examiner Ruling, Exhibits C.35 to C.49, (p.10),  Avista PUD webpage, City of Blaine, accessed 1.09.2026. #47 Tellman (reporter CDN),

So What did the Examiner Exclude that's Important for Supporting Community Comments?

• W15 or A10: 2025 Whatcom Future Shorelines Report (Citizen Submission C.235)

• W8: UW Climate Data for 2025 Whatcom Future Shorelines Report (2)

• W5A & W5B (web linked): Department of Ecology Water Quality Maps

Learn More: Why are there exhibit contradictions in the Hearing Examiner's Ruling?

What are the Avista Ruling Contradictions in the Exhibit Records?

Contradiction 1: Cure path for web exhibits but later treated as if never cured.

The told Appellants that web links weren’t acceptable as evidence unless they were turned into PDFs with parameters and cited.​ Appellants followed this direction in their November 19 remedied closing brief and December 5 reply (including W5A/B, W8, and W15/A10). Appellants later documented (emails/screenshots) that PDFs existed in the document room and W‑series exhibits were cited. But, the Ruling later treats these web‑based exhibits as if they were never properly presented.

Contradiction 2: “No admittable reference” vs. Nov. 25 email.

The Ruling says the Appellants made “no admittable reference” to their rebuttal exhibit list in their closing argument (Ruling, p.10), and it characterizes later exhibits as “an entirely new set.”

But in a November 24, 2025, the Examiner emailed that pages 1–25 of the remedied closing brief, admits Ex W5, and writes:

“Pages 1‑25 of the remedied BWC  [Appellant] closing are admitted as well as Ex W5. The only BWC exhibit cited in the BWC closing brief was Ex. W5, which appears to actually be Ex. W8 in BWC’s exhibit list.”

In the follow-up November 25, 2025 email, the Examiner explains that he created a citation‑based cure path and confirms that at least one exhibit was cited:

“To shortcut this ordeal I authorized you to simply cite the exhibits of your exhibit list relevant to your argument in your closing brief. Integrating your exhibits into your closing argument would have made the relevance of each exhibit apparent. Instead of doing this, you only cited one of your exhibits in your closing brief and then appended numerous exhibits that you manufactured that weren’t in your exhibit list.” - November 25, 2025, 3:08 pm Olbrechts email

Put simply:

– The pages of the closing brief that cite W8 were admitted.

– The Examiner’s own email acknowledges that the one cited Appellant exhibit is W5, which he identifies as W8 in the exhibit list.

– Yet the final written exhibit ledger and Ruling treat all W‑series exhibits as if none were ever admitted or properly cited.

Contradiction 3: W15 admitted in the transcript, but no W exhibits on the ledger.

In the hearing transcript, the Examiner admits the 2025 Whatcom Future Shorelines report “as W15” for the limited purpose of testing storm‑event probability assumptions: “so it’s admitted as W15.” (Avista Transcript, p.440) That means at least one W‑series exhibit was clearly admitted into the record, even though the final written exhibit list in the Ruling (p.10) shows no W‑series exhibits.​

The Appellants’ remedied closing brief (11.19.2025) then cites W8, the UW Climate Impacts Group map for the Avista hydrology grid cell, alongside W15. In a November 24 email, the Examiner admits pages 1–25 of that closing brief and “Ex W5,” noting that this exhibit “appears to actually be Ex W8 in BWC’s exhibit list.”​

Taken together, the transcript and the November 25 email show that at least one W‑series exhibit (W15) was admitted and another W‑series exhibit (W8) was actually cited in an admitted brief. Whatever the procedural back‑and‑forth over four “opportunities” mentioned in the Ruling, the Examiner’s own email confirms that a W‑series exhibit (W8) was cited under his citation‑based cure path; the final Recommendation’s statement that there was “no admittable reference” to the rebuttal list cannot be squared with that admission.​

Yet the January 5 Ruling’s exhibit ledger on p.10 still lists no W‑series exhibits at all and repeats that Appellants made “no admittable reference” to their rebuttal list, without explaining how that squares with the earlier W15 admission and the November 25 recognition of the W8 citation.

Either the Examiner recognized at least one rebuttal‑list/W‑series citation in the admitted closing pages (as stated in his Nov 24 email), or the Jan 5 Ruling's statement of ‘no admittable reference’ needs clarification. Both cannot be true.

Learn More... Continue to other Posts in this 3-Part Series

Part 2: Why the Exhibits Matter and What the Ruling Excluded

Part 3: Errors Made about Appellant Exhibit Admission

Part 2: Hearing Examiner Ruling: How Best Available Science Disappeared from the Avista Decision

Related Posts

Part 1: Quick Overview / Why it matters / What Council can do / What you can do

Part 3: Errors Made about Appellant Exhibit Admission

WPM's Jan 12, 2026 Remand Letter Sent to the City of Blaine to Correct the Record

Part 2: Why the Exhibits Matter and What the Ruling Excluded (Technical Addendum for Record Rebuttal)

Public comment, City land development Hearings and SEPA appeals exist to ensure public concerns/voices are heard, acknowledged and acted upon. For council decision-makers, public comment ensures that reports paid for by developers are scrutinized by disinterested parties and citizens have oversight of planning department decisions. Without such scrutiny conflicts of interest arise and council members do not have complete information to exercise their duty of care to balance the interests of all of the community for responsible development as well as ensuring viewpoint fairness.

When scientific and technical evidence is disputed in its admission, the substantive review may be affected. The State Environmental Policy Act requires a "hard look" at environmental impacts; examining relevant scientific information, not just checking procedural boxes on the SEPA checklist or backfilling project gaps after the fact on SEPA MDNS determinations.

Before Council relies on the Avista Hearing Examiner Ruling, the record should be clear about what evidence was tendered, ruled on and relied upon. The record shows that important information was excluded and dismissed.

Review bodies may give deference to discretionary determinations, but deference does not apply where the decision is based on a factual misstatement about what is in the record. If the HE Ruling says, “no admittable reference,” (Ruling, p.10) while the admitted brief contains explicit citations and the Examiner’s own email acknowledged those citations, the error must be corrected before Council acts.

When exhibits are excluded, what are the implications? Problem 1: This exclusion logic loop of the Hearing Examiner defeats SEPA's 'hard look.' Hard look means the City did its job in responsible development while addressing citizen concerns.  

Appellants [that's the community, WPM and BWC] complied, yet the Hearing Examiner ruling later treats the record as if Appellants did not even attempt to comply. A four step pattern appears in the Recommendation:

 Step 1 exclude scientific evidence

 Step 2 make no findings on the excluded evidence

 Step 3 declare “no credible evidence” exists

 Step 4 dismiss the SEPA issue on that basis

Problem 2: Fairness Asymmetry

The City and Applicant together introduced over 240 exhibits and thousands of pages (C1–C232, S1–S7, plus seven community letters). By contrast, Appellants ultimately focused on roughly ten core exhibits (A10/W15, W8, W5A/B, A68, etc.) in the closing and reply, exactly as the Examiner requested. Those exhibits were the ones cited in the remedied closing brief (11.19.2025) and the reply under the Examiner’s own citation‑based cure path.

After the close of testimony, the City was allowed to introduce a new 63‑page staff report with conditions, Exhibit A, which summarizes and interprets the City’s own record at a high level. Appellants’ attempt to submit rebuttal exhibits directly responding to Exhibit A (A10/W15, W8, W5A/B, A68) under the Examiner’s November 25 “unique and unusual” procedure was heavily contested and partially struck.

The January 5 Ruling then compresses this history into a finding that Appellants “didn’t even try” to have most exhibits admitted (p.8) and made “no admittable reference” to their rebuttal list (p.10), omitting both the later narrowing to ten core exhibits and the Examiner’s own November 25 email acknowledging a W‑exhibit citation in the admitted closing brief.

What Was Previously Accepted by the Examiner then Excluded or Discounted

These exhibits were submitted and "cured" to provide evidence supporting central arguments in the Appeal.

Image 2: Appellant Exhibits to Reply to City Exhibit A (11.19.2-24)

Source: Avista SEPA Appeal Appellant Brief (12.05.2025), p.5

Excluded Web linked- DOE Water Quality Maps (W5A and W5B):

W5A/W5B are Ecology 303(d)/EIM maps showing Category 5 impairments in receiving waters. Appellants cited these maps in the closing/reply briefing, but the Ruling's procedural findings treat the submitted W‑series materials as not properly admitted and the admitted‑exhibit ledger lists no W exhibits. Category 5 303(d) waters are listed as polluted or impaired under the Clean Water Act and require cleanup plans.

Image 3: Exhibit W5A Department of Ecology Map of Impaired waterways

The Dirty Water Impact:

The Examiner states the Appellants have provided "no evidence" that Avista's runoff will worsen already impaired waters (Ruling, p.14). We attempted to submit Department of Ecology Category 5 impairment maps (W5) to prove this risk, but the Hearing Examiner ultimately treats impairment from the build-out of 490 homes, streets, forest cuts and reduced wetlands as unproven in the admitted record. As a result, no additional pollution control analysis is required beyond the standard 2019 stormwater manual.

Excluded - 2025 Whatcom Future Shorelines Report Exhibit W15 or A10:

The 2025 Whatcom "Future Shorelines Report" came from informed local citizens. It was submitted in a November 3, 2025, letter to the City of Blaine Planning Department as part of the SEPA appeal hearing record.  

The Hearing Examiner admitted then excluded the report in the Ruling. The Examiner initially admitted County’s “Future Shorelines” report (W15 or A10) specifically so the public could challenge whether the developer's storm-event assumptions are accurate (see transcript below for narrow purpose).

Image 3: Hearing Examiner Avista Hearing Transcript mention of W15 Admitted

Source: Avista Transcript, (p. 439-440). November 8, hearing

The Shorelines report uses University of Washington (UW) Climate Impact Group (CIG) climate projections that discuss County 1% annual chance (‘100‑year’) flood scenarios.

Image 4: July 2025 Future Shorelines Report Mention of UW - CIG

Source: Ex. W15 / A10, Whatcom Future Shorelines Report, July 2025, p.27

The 2025 report was cited for CIG and localized (Avista longitude/latitude) UW atmospheric river data was referred to during cross-examination of the developer's witness for stormwater pond flow and duration assumptions in handling atmospheric rivers. For Ex.W8, we applied the same admitted UW‑CIG framework to the Avista location by adjusting coordinates. Yet, the City and Ruling later treated this evidence as if it didn’t ‘count.’ One admitted community comment says it well. 

"Climate risk is not optional. Bigger storms, king tides, and rising seas change how fast ponds drain and how far water backs up. The City can’t keep using old numbers. Make the design pass today’s climate tests—or send it back." - Admitted Citizen letter Comment, 11.4.2025

Backward Looking:

Blaine City Planners and the Examiner do not recognize the submitted current science data and expert reports on atmospheric rivers and adaptation. They argue:

The city reviews stormwater plans based on "modeling that’s required" by the Department of Ecology (DOE), not based on "once in a century" outlier storms.  - Blaine Planning Department s The applicant [developer] has established that "[Avista] will not increase off-site flow rates within the parameters [1948-2009 gage] set by the DOE manual."  - Hearing Examiner

This contrasts with empirical evidence from expert research studies (2025 Whatcom Shorelines and the 2023 Birch Bay Watershed Report) and Whatcom stormwater division manager (Kraig Olason, Inverness PUD testimony)) that these outlier storms are increasing more frequently, including the November, 2021 atmospheric event that flooded Birch Bay Village. In December 2025, atmospheric river flooding occurred again in Whatcom County.

The Flooding Risk Danger for +1340 homes in Birch Bay (it's already happened): The approved stormwater system is based on a model using only 1948-2009 rainfall data. The decision approves infrastructure designed for climate conditions 17 years ago that have changed with 31.7% more atmospheric river events with longer rainfall duration and flow. The undersized water conveyances in Birch Bay are not equipped to handle Avista overflows and flooding.

Image 5: Flooding of Birch Bay, Simulated 100 year Event, Future and Existing Conditions, November 2021

Sources: 2023 Birch Bay Watershed (Tetra Tech) Report, Fig. 12, p.25 (Ex. 210 Admitted)

Disallowed - UW Climate Data (W8):

The HE Ruling states the Appellants did not present evidence that climate driven precipitation increases render current modeling ineffective. On p.29 for the Ruling, The Examiner states "This information is not admitted into the record because its based upon studies that weren't included in the Appellants' exhibit list."

W8 supplies exactly that type of evidence that was used to question the risks and validity of applicant's stormwater assumptions. During the hearing testimony, the UW climate evidence (W8) along with

• 2023 Birch Bay Subwatershed (Ex. A5),

• Shorelines (W15 or A10), and Kraig Olason's (Whatcom stormwater division manger) testimony (Ex. A22. Inverness PUD hearing transcript; adjacent development)

was used to question the developer's stormwater assumptions for

• outdated rain/hydrological data sets (1948-2009)

• rain duration (Nov. 2021 event with 6.1 inches of rain in 24 hours)

• peak flows (40-50% increase in run-off from developments into drainage watersheds of Birch Bay Village vs. assumption of 30% less flow after development)

• intensity (120% vs. 100% of the 100-year design standard for 2019 Stormwater manual; 20-22% more intense than assumptions provided by applicant) and

• frequency (1 x every 25 years vs. 1x every 100 years).

During the hearing, University of Washington Climate Impacts Group were presented and discussed to rebut the Applicant’s reliance on the 1948–2009 Blaine rain gage record. The Appellant's argued the data model used by the Applicant’s engineer was obsolete because it did not factor in the "CIG model from UW for atmospheric river frequency.

The UW Climate Impacts Group “Projected Changes in Extreme Precipitation” tool was run for the grid cell covering the Avista site (Lat 48.763, Long –122.86). For a 100‑year, 24‑hour storm in the 2040s, the model‑average intensity is about 31.7% higher than the 1981–2010 baseline, with some individual models projecting increases of up to about 78%.​

In the Remedied Appellant Closing brief, this uplift is applied to the 5.2‑inch design storm used in the Avista WWHM model, showing a climate‑adjusted requirement of about 6.85 inches and a remaining deficit of roughly 1.65 inches per event, about 3,267 cubic feet of unmanaged stormwater per impervious acre.

Image 6: UW Climate Impacts Group projection for the Avista/Birch Bay grid cell (Lat 48.763, Long –122.86). For a 100‑year, 24‑hour storm in the 2040s, the model‑average rainfall is about 31% higher than the 1981–2010 baseline, with some models projecting increases of up to about 78%

Dismissed as hearsay - Critical Aquifer Recharge Area Map (A68): Memo from Whatcom County Planning to City of Blaine Planning.

The memo included Whatcom County's 2025 Critical Aquifer Recharge Area map showing high aquifer susceptibility over most of the project site area with moderate susceptibility in the southeast.

Critical Areas by the City (Blaine’s mapping does not show any Critical Aquifer Recharge Areas in the proposed UGA expansions). However, County’s mapping includes Critical Aquifer Recharge Areas covering the entire proposed UGA expansion areas (see attached map) - Matt Aamot, Senior Planner, Whatcom County

Image 6B: Critical Aquifer Recharge Area for Avista denoted as High for majority of property (shaded light red) with Southeast Corner of Avista site as moderate (yellow). Bald eagle nest sites shown.

Source: Ex. A68, Matt Aamot memo 9.29.2025, p.2

While the exhibit was admitted, it was dismissed by the Examiner because he believed the "hearsay" opinion of the developer's stormwater/civil engineer witness carried greater weight than the County planning office evidence.

The Examiner also deferred to the SEPA agency official (Director of Blaine planning) who relied on a 1996 study that excluded West Blaine in a CARA study. In sum, the decision gave greater weight to the City's older mapping and treated challenges to it as unsupported opinion.

The Ruling discounts the County’s written CARA memo (A68) as hearsay while effectively accepting the Applicant’s engineer’s unsupported oral assurances about CARA and groundwater as if they were stronger evidence.

Reduced Water Protection Standards:

Erasing CARA protection reduced environmental protection for Birch Bay shellfish, salmon and water recreation (waiver of hydrological study, infiltration stricter AKART etc.).

Read the post:

Part 3: Factual error made in the Ruling about our exhibit citations

Part 3: Hearing Examiner Ruling: How Best Available Science Disappeared from the Avista Decision

Other Related Posts: Part 1: Quick Overview / Why it matters / What Council can do / What you can do

Part 2: Why the Exhibits Matter

Takeaway: Ruling does not accept best available science and best management practices from credible experts, County engineering reports, UW research and state regulatory agencies

Part 3: Factual error made in the Ruling about Appellant Exhibit Admissions

Backdrop: Dispelling and Dismissing Evidence

The Ruling covers the confusion over the timing and format of the Appellant’s exhibits (pp. 8-10). During the hearing, there were two motions made by the attorney teams to dismiss the Appellant’s exhibits. Preceding the hearing in summer, the City stonewalled the Appellant's record requests, resulting in a PRA lawsuit (Read evidence in Community Report). The Avista transcript also reflects repeated objections and interruptions over exhibit handling. .

This is partly why the Hearing Examiner pushed the parties toward a citation-based exhibit approach rather than taking hours to walk through every Appellant exhibit live.

Authorized Cure Path for Exhibits Created by Examiner and then Disregarded

The chronology below documents how the Hearing Examiner created a cure pathway for web‑based exhibits, acknowledged at least one W‑series citation in the closing brief, and later issued a Ruling stating Appellants made "no admittable reference" to their exhibit list, a statement that directly conflicts with the Examiner's own transcript admission of W-15 and his November 24-25 emails recognizing W-series citations in the admitted closing brief.

Chronology: Findings of Fact

• Oct 4, 2025: Discovery Order

Following ongoing disputes over incomplete City production (including prior PRA litigation), the Examiner issues an Order Partially Granting Discovery, requiring the City to deliver all remaining Avista‑project documents by Oct 17, 2025, in addition to the permit record the City had already produced on September 26.

• Oct 21–23, 2025: Late City Exhibit Additions

City adds Ex. 220–225 (CDS Director admits City "accidentally omitted" updated materials), signs Voluntary Mitigation Agreement (Ex. 232), and issues SEPA Appeal Staff Report (Ex. 230) one day before Appellants' deadline. Examiner allows these late exhibits, stating they will "not be excluded as untimely."

• Oct 24, 2025: Appellants file no list, expecting to file what they believed was a rebuttal exhibit list on Oct 27. In the Ruling, the Examiner later labels this “Failure to provide an initial exhibit list.”

• Oct 27, 2025 (6:48 PM): Examiner sends email stating "Late admission accepted" after the Sunday deadline. Appellants had submitted their rebuttal exhibit list with "W" website exhibits at 4:52 pm, and a "document room" access link email at 10:02 pm with W‑series web exhibits. The Examiner adopts the 10:02 pm list for numbering.

Image 7A: Oct 27, 2025, 6:48 PM, Olbrechts email and Document Room Link

Asymmetric Enforcement: The Examiner accepted the City's multi-day late additions (Oct 21-23) as "not untimely" while later characterizing the Appellant's one-day Sunday delay as "Failure to provide an initial exhibit list" (Jan 5 Ruling, p. 8) using it as the first procedural allegation against Appellants despite having accepted the late submission on Oct 27 with "Late admission accepted."

• Nov 6–10, 2025: Examiner Creates Cure Path, City Fails to Execute Transfer

The parties adopt the “W” numbering convention; W‑15 is admitted on the record for stormwater probability evaluation. The Examiner then instructs Appellants to convert key W‑exhibits to PDFs and establish relevance by citing them in their closing brief, a specific cure path for the earlier link‑only problem.

• Nov 6, 2025: City Attorney Demands Exclusive Record ControlCity Attorney Schermetzler argues:

"We need a clean record. We need to know what the exhibits are... That's the city's responsibility."— City Attorney Tim Schermetzler, Day 2 Transcript (Nov 6, 2025)

Hearing Examiner accepts this argument, ruling the City holds ultimate responsibility for record maintenance.

• Nov 7, 2025 (3:00 PM): Appellants Upload PDFs to Shared Document Room

Appellants uploaded W-series PDFs to the shared document room as instructed by the Hearing Examiner. The City-controlled document room system required that these exhibits be transferred from the shared room to the official permit record for public posting and Examiner access.

• Nov 8, 2025: Hearing Examiner Admits W15 on the Record

During hearing, Examiner states regarding 2025 Whatcom Future Shorelines Report:

"This document's going to be admitted for the limited purpose addressing the accuracy of assessing stormwater probability so it's admitted as W 15."— Hearing Examiner, Transcript pp. 439-440

• Nov 10, 2025 (9:42 AM): Examiner States PDFs Not Received:

The Hearing Examiner emailed stating: "Mr. Pointer did not contain pdfs," indicating he had not received the PDF files as email attachments or in his official record materials.

• Nov 10, 2025 (9:55 AM): City Attorney Fails to Forward All Appellant Exhibits

City attorney (CSD Law) forwards some Appellant exhibits (W5A/W5B) to the Hearing Examiner while excluding others (W15), despite W15 having been admitted in the Nov 8 hearing transcript. These are City-controlled failures to provide all Appellant documents, yet the ruling attributes them to Appellant "non-compliance."

• Nov 10, 2025 (10:10 AM): Appellant replied to the 9:42 AM Examiner email with screenshots and timestamps proving the November 7 upload to the shared document room, stating:

"The City did not move our exhibits into their document room. We cannot be responsible for the City's untimely posting of our PDFs." — Appellant email (Nov 10, 2025)

This exchange shows a gap: Appellants uploaded files on Nov 7 (documented by timestamp/screenshot), but by Nov 10 morning, the Examiner had not received them. The discrepancy is whether the City's document room system completed the transfer from shared access to official record.

• Nov 19, 2025: Appellants Submit Remedied Closing Brief

Appellants submitted their Remedied Closing Brief (pages 1–25), which references multiple W‑series exhibits, including W5, W‑8 (UW Climate Impacts Group precipitation data), and W‑15 (Whatcom Future Shorelines Report). However, on November 24, the Examiner's email acknowledged only one exhibit citation: "The only BWC exhibit cited in the BWC closing brief was Ex. W5, which appears to actually be Ex. W8 in BWC's exhibit list." This discrepancy between the exhibits Appellants referenced in the brief and which citations the Examiner recognized is part of the exhibit-numbering confusion Council should clarify.

• Nov 24, 2025 (2:27 PM): Examiner Admits Brief and Acknowledges W5/W8

Examiner emails:

"Pages 1–25 of the remedied BWC closing are admitted as well as Ex W5. Pages 29–49 are not admitted. The only BWC exhibit cited in the BWC closing brief was Ex. W5, which appears to actually be Ex. W8 in BWC's exhibit list."

• Nov 25, 2025: Examiner Reaffirms and Creates Final Opportunity

Examiner emails referencing "As previously ruled yesterday at 2:24 pm..." and gives final opportunity for rebuttal exhibits with relevancy explanations.

• Jan 5, 2026: Ruling States "No Admittable Reference"

The January 5 Ruling states Appellants made "no admittable reference to their rebuttal list in their closing argument," and no W‑series exhibits appear in the final admitted‑exhibits ledger (Ruling, p. 10).

Take away:

The January 5 Ruling's statements about Appellants’ exhibits are not just incomplete, they directly conflict with the Examiner’s own transcript admission of W‑15 and his November 24 email recognizing a W‑series citation (W5/W8) in the admitted closing brief. Also, inconsistent W-series numbering across different lists creates confusion about which documents correspond to which exhibits.

City of Blaine Council should require an exhibit-admission ledger clarifying what was tendered, admitted, and excluded before voting.

The Details In his November 10, 2025 email, the Hearing Examiner stated that Mr. Pointer [Appellant] had not supplied the required PDFs in the form of email attachments, and he set a cure path:

“Mr. Pointer can just have the required pdfs referenced in his closing argument and supplied concurrently with that argument.” - November 10, 2025, 9:42 am, Olbrechts email

Image 7B: November 10, 2025, 9:42 AM, Olbrechts email

In the same email, the Hearing Examiner wrote that “Mr. Pointer was asked to supply pdfs of his web linked exhibits by 3 pm on 11/7. The list he sent me did not contain pdfs” The Ruling went on to later state the Appellants “didn’t produce the requested pdfs.” However, the Appellant document room for Exhibits had been updated for access on Nov 7 given the number of documents and size could not be sent via email. The City attorney was responsible for moving exhibits into their "permit" of record. However this had not been done.

Image 7C: November 10, 2025, 10:10 AM email confirming upload of Appellant exhibits and City document room excluding these exhibits.

​How did W5A and W5B from the Department of Ecology, admitted back in October 27, 2025 as part of the Appellant's Rebuttal Exhibits Disappear from the record?

In a November 10, 2025, 9:55 AM email to the Examiner, the City Attorney (CSD Law) included the W5A and W5B DOE Water Quality Atlas exhibits yet excluded the W15 Shorelines Report as evidence, even though the Examiner had asked during the November 8 hearing that W15 be included.

Image 7D: November 10, 2025 email CDS Lawyer (City attorney) list with missing Appellant Exhibits submitted

The Ruling does not mention the challenges with document room control by the City and where and how the PDFs were supplied for admission. It treats the absence of PDF attachments on November 7 as a failure by Appellants to “produce the requested pdfs,” without addressing Appellants’ claim and screenshots showing that the PDFs had been uploaded to the shared document room and were awaiting the City’s transfer into its own record system.

The November 19 remedied closing brief explicitly cited Exhibit W8 (UW Climate Impacts Group precipitation projections), and the Examiner’s November 25 email acknowledged that the only BWC exhibit cited in the closing brief was “Ex. W5, which appears to actually be Ex. W8 in BWC’s exhibit list.

Image 8: Email with Exhibits sent to Examiner for Closing Brief (previously provided in document room on 11.7.2025)

Exclusion of UW CIG Climate Data Exhibit W8

The W8 climate data exhibit was included according to the Examiner's 11.24.2025, 2:27 pm email. Image 9: November 24, 2025, 2:27 PM PDT email from Hearing Examiner to Appellant and parties of record (developer, developer attorneys, City attorney and Blaine Planning)

However, The Remedied Brief submitted on November 24, 2025 (~1:00 pm) on page 7 refers directly to this included UW exhibit data exhibit W8. Image 10: Appellant Remedied Closing Brief, p.7 mention of CIG and exhibit included

Source: Appellant Remedied Closing Brief (11.19.2025), sent November 24, 2025, 12:59 pm

The Avista transcript also shows the Examiner admitting W15 for the limited purpose of evaluating stormwater probability assumptions (“it’s admitted as W 15”), so the record itself undercuts any suggestion that no W‑series exhibit was ever admitted.

Towards the Final Submission

Hearing Examiner’s Nov 24, 2025 email says something different. It admits pages 1 to 25 of the remedied closing brief, admits Ex W5, and then states:

“The only BWC [Appellant] exhibit cited in the BWC closing brief was Ex. W5, which appears to actually be Ex. W8 in BWC’s exhibit list.”

In the follow-up Nov 25, 2025 email, the Examiner explains why he created the citation‑based cure path and confirms that at least one exhibit citation was made:

Image 10: Hearing Examiner 11.25.2025, 3:08 pm PDT email with instructions for submission of exhibits in the Avista SEPA Appeal Appellant Brief (12.5.2025)

Compliance with Examiner Exhibit Requests

But Mr. Pointer [Appellant] had sent the exhibits on November 7, 2025 with a document room link and the City had not uploaded the Appellant’s exhibits. Some of the files were large and could not all be attached and sent by email.

Later that morning on November 10th, Appellant replied:

• Stating, “I did as you asked at approximately 3 pm… I also provided all the PDFs in the document room simultaneously. See evidence in screen shot below.”

• Showing screenshots of the Appellant’s secure cloud drive "Avista SEPA Appeal” folder showing the W‑series PDFs (W.1–W.8 and related files) present as static documents.

• ​Explaining, “The City did not move our exhibits into their document room. We cannot be responsible for the City's untimely posting of our PDFs. We have been following the procedure of the document room with no objection raised to my knowledge.”

Issues of Fairness

Questions of Fairness Arise when Using Expert Data to Question the City and Developer.

During expert testimony, Avista's Cascade Engineering relied on background/derivative reports inside their own stormwater submission to explain away the infamous “809%” exceedance as “not Avista’s flow rates.”​ - Osborn report exhibit on downstream stormwater model failure for Rogers Slough. If the developer can rely on derivative/background materials to defend its assumptions, why did the Hearing Examiner and City disallow use of derivative/background best available science materials from experts and UW to challenge those same assumptions?

Is this fair? The process becomes a one-way filter that protects the project and disenfranchises the public.