Part 2: Hearing Examiner Ruling: How Best Available Science Disappeared from the Avista Decision
- Amy O.
- Jan 13
- 8 min read
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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)
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
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.
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.).
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