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

Quick Overview: What Happened

The Hearing Examiner Olbrechts issued his ruling for Avista on January 5, 2026. The City Council will most likely vote in favor of his changes and the Blaine Planning report modifications. These modifications do not ensure public safety and water protection (see Community Report). The Hearing Examiner's recommendations contain serious record-level inconsistencies that we are working to correct before Council votes on January 12, 2026 at 6 pm PDT.

The Stakes

The Hearing Examiner's contradiction that must be corrected before Council action:

The City of Blaine, WA Council is about to vote on a recommendation that raises a record-handling question about what was treated as admitted vs. not admitted, especially web-linked, trusted scientific and regulatory sources. This matters because the excluded evidence includes Department of Ecology water quality maps showing polluted waters, University of Washington climate projections, and updated Whatcom County aquifer mapping.

This is not a disagreement about judgment; it’s a contradiction about what the record contains and what was admitted. Council should remand for correction/clarification before relying on findings that were influenced by exhibit exclusion.

By excluding or not adopting our exhibits in our 12-5-2025 Reply Brief as well as dismissing community concerns, the Hearing Examiner effectively dismissed the evidence and 95% of the top 10 mitigations expressed by Blaine and Birch Bay citizens*. These mitigations are based on over 200 public comments and expert witness testimony and technical reports (UW Ex.W8, Tetra Tech Ex.210, Future Shorelines Ex. A10).

*The City’s contracted Hearing examiner only admitted one condition based on our submission for wetland B, hydroperiod, which is the flooding of wetlands and forest above the spiritual center property. 

Here’s what you can do (Citizen comment template): Why It Matters: Factual error made by HE about our exhibit citations

The HE's ruling says we made “no admissible reference” to our scientific exhibits in our closing brief. That is incorrect. By excluding exhibits, evidence is excluded and its easy to dismiss our claims backed by best available science.

City and Applicant Behavior Pattern: Exclude Evidence. Multiple Attempts to Dismiss Community Appellant's Exhibits and Evidence.

On November 3 and 5th, the Avista Applicant law firm and the City of Blaine law firm (CDS) in an alleged coordinated effort, filed two motions to dismiss Appellant exhibit evidence during the appeal. During the hearing process we lost count of the number of times the two law firms interrupted our presentations and evidence with objections. During the summer 2025, the City stonewalled the Appellant's record requests resulting in a PRA lawsuit (See evidence in Community Report)

The Procedural Question

In the January 5 Recommendation, the Hearing Examiner states that Appellants made "no admittable reference" to their rebuttal exhibit list in the closing argument. The final admitted-exhibit list includes "Closing Brief pages 1-25" and six exhibits (A4, A5, A7, A22, A68, A83), but does not list any W-series website exhibits.

Yet the Examiner's November 25, 2025 email (confirming a November 24 ruling) says:

"Pages 1-25 of the remedied BWC closing are admitted as well as Ex W5, which appears to actually be Ex. W8 in BWC's exhibit list."

How can pages 1-25 and "Ex W5" be admitted (as the November 25 email stated) while the final Hearing Examiner Recommendation claim the closing argument contained "no admittable reference"?

Additionally, the hearing transcript shows the Examiner verbally admitting Exhibit W15 on the record during the hearing itself, yet the final admitted-exhibit list does not include W15.

What Was Excluded by the Examiner and Previously Accepted or Discounted

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

Department of Ecology (DOE) water quality maps showing Category 5 (303(d)) impairments in waters that receive the project's stormwater runoff. Category 5 waters are listed as polluted or impaired under the Clean Water Act and require cleanup plans. According to the HE, the citations for W5A and W5B were not properly integrated in closing brief. See final 12-5-2025 brief for citations.

The Dirty Water Impact:

The Examiner concludes there is "no proof" that Avista's runoff will worsen already impaired waters. 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 - Climate Data (W8):

The HE Ruling states states the Appellants did not present evidence that climate driven precipitation increases render current modeling ineffective. W8 supplies exactly that type of evidence.

University of Washington Climate Impacts Group precipitation projections showing increased storm intensities by the 2040s. On p.29, 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." This information was submitted into the record as submission of July, 2025 Whatcom "Future Shorelines Report" in a citizen letter to the City of Blaine Planning Department before the hearing as part of the record. The Report mentions the UW CIG data, p.4, Ex.A10). During the hearing,

UW CIG projections 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. Namely, UW CIG projections for the 2040s show a 31.7% increase in 100-year, 24-hour storm intensity.

 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. - Alex Wenger, Director 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." - Phil Olbrechts, Hearing Examiner

The Flooding Risk Danger for +1340 homes in Birch Bay (its 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% 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. Sources: 2025 Whatcom FutureShorelines, 2023 Birch Bay Watershed (Tetra Tech) Report.

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.

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 Baine 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.

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.).

Authorized Cure Path for Exhibits Created by Examiner and then Disregarded

The SEPA appeal record contains specific evidence about the procedural pathway (see full chronology here):

• October 27, 2025: Appellant provides rebuttal exhibits with "W" website exhibits

• November 6, 2025: CDS Law Schermetzler (City attorney) and HE Olbrechts adopt "W" labels for Appellant web-based materials during the hearing. The Examiner states “Five W five. Yeah, W five. Okay. W five.” Also mentions admitting Exhibit W15 on the record. [01:55:16–01:55:33 Avista Hearing Transcript]

• November 10, 2025: The Examiner emailed instructions to convert web linked exhibits to PDF and reference them in the Appellant Brief.

• November 19, 2025: The Appellant Remedied Closing Brief cites multiple W-series exhibits (W5, W8, W15).

• November 25, 2025: The Examiner emailed that "Pages 1-25... are admitted as well as Ex W5, which appears to actually be Ex. W8..."

• January 5, 2026: The Examiner reverses course on Appellant evidence. The Hearing Ruling states "no admittable reference" to the rebuttal list. The final admitted-exhibit list does not include any W-series exhibits.

Need More Proof? Further Detailed Evidence Here (Dates, Correspondence, Emails and Transcript)

This exclusion logic loop of the Hearing Examiner defeats SEPA hard look

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

Takeaway: Hearing Examiner Does not Accept Best Available Science from Blaine's own municipal code

The “clearly erroneous” standard does not protect record misstatements

Why This Matters

Environmental review processes exist to ensure decision-makers have complete information. When scientific 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.

Before Council relies on the Avista Hearing Examiner Recommendation, the record should be clear about what evidence was tendered, ruled on, and relied upon.

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 admissible reference,” while the admitted brief contains explicit citations and the Examiner’s own email acknowledged those citations, the error must be corrected before Council acts.

What Residents Can Do*

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.

What You Can Do Today

1. Email Blaine City Council (1) before the January 12, 2026 vote, submit a short written comment to the City Clerk for inclusion in the public record asking Council to review the admitted closing brief exhibit citations (City Council email addresses and meeting agenda are available on the City of Blaine website, Council page)

2. Contact state and county regulators (Ecology, Whatcom County Council, Army Corps) using the talking points below (contact information provided in the Action Steps section)

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 before January 12, 2026)

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

Dear City Clerk and Council Members,

I submit this comment for the public record regarding the January 5, 2026, Hearing Examiner Recommendation in the Avista at Birch Point SEPA appeal.

The Recommendation contains a record-level inconsistency that Council can verify from the official record before voting.

In the January 5 Recommendation, the Hearing Examiner states Appellants made "no admittable reference" to their exhibit list in the closing argument and characterizes later exhibits as "an entirely new set."

However, in the Hearing Examiner's November 25, 2025 email, he admits pages 1-25 of the remedied closing brief and states: "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."

Council should not rely on a Recommendation that contains an unresolved inconsistency about what was cited and how exhibits were handled.

I respectfully request a limited remand before any vote to:

1. Issue an exhibit-admission ledger showing what was tendered, cited, and admitted (including the W-series); and

2. Correct any findings that rely on "no evidence" conclusions produced by the procedural exclusion of these primary sources.

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

Respectfully,

[Your Name] [Your Address/Neighborhood]

*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.