Miles Protests Critical Areas Review Requirement

In the last few weeks, both Skagit County Planning and Development Services (PDS) and Miles Sand and Gravel have taken significant actions on Miles’ Grip Road gravel mine special use permit application. 

In our last update in May, we noted that in response to comments submitted by the public and representatives of local Indian tribes and state agencies, PDS had withdrawn the mitigated determination of non-significance (MDNS) it issued for the proposed mine on April 25, 2021.   Subsequently, on June 17, PDS sent a letter to Miles requiring an assessment of critical areas associated with its internal mine haul road.  The letter cited PDS’ own critical areas site visit, which had determined “the likelihood of the presence of steep slopes, wetlands within 300 feet, and stream areas within 200 feet of the proposal.”  An attached map showed the locations of 18 wetlands, two streams, and one area of steep, unstable slopes associated with the mine haul road.

On June 24, Miles responded by submitting an appeal to the Hearing Examiner of PDS’ decision to require additional critical areas review.  The appeal argued that the Hearing Examiner should overturn the decision for the following reasons:

  1. That since the Hearing Examiner had issued a decision on an earlier appeal by Miles that declared the mine special use permit application complete and ordered PDS to move ahead with processing the application, PDS could not require Miles to submit substantial new information, and
  2. That Miles’ internal mine haul road is actually a “forest road” regulated by the state Department of Natural Resources under the Forest Practices Act and therefore exempt from county critical areas review. 

In response to Miles’ June 24 appeal, the Hearing Examiner issued a memorandum on July 6 stating that it appeared the issue could be resolved based on review of legal briefs submitted by the two parties, and set deadlines for submittals. 

On July 28, PDS submitted its response to the appeal, in which it argued the following:

  1. That since Miles had already provided substantial new information to PDS (including a full traffic impact analysis) subsequent to the Hearing Examiner’s earlier decision declaring the application complete, Miles had essentially waived its right to proceed directly to a hearing on the merits of the application without additional information being required by PDS, and
  2. That Miles use of its internal road system for hauling product from the mine constituted a clear change in use from a “forest road”, and
  3. That the change of use to a mine haul road was by definition part of the proposed development and thus subject to critical area review requirements under county code. 

In its August 11 reply, Miles essentially repeated the arguments from its appeal.

So, as concerned community members, where does all this legal back and forth leave us?  As has so often been the case, that remains somewhat unclear at this point.  While we appreciate that PDS has belatedly gotten around to addressing at least some of the issues we have been demanding that they address for the last 5 ½ years, it is late in coming.  We keep asking why PDS didn’t just do its job in the first place and why we have had to essentially do it for them.  In the case of this appeal, however, we have no legal “standing”.  The Hearing Examiner denied our request to intervene in Miles’ previous appeal and at that time he basically said that the public can have its say when the project goes to hearing. 

The Hearing Examiner’s decision on this latest appeal is expected at the end of this month.  If the Hearing Examiner upholds Miles’ appeal, there are still several steps in the permit process.  A key one is that since the county has withdrawn both of its previous State Environmental Policy Act (SEPA) threshold determinations, a new determination is still required.  The county could still require much more stringent mitigation requirements for both traffic safety and critical areas, or even require Miles to conduct a full environmental impact statement (EIS).  If the new threshold determination still doesn’t adequately address the impacts of the proposed mine, it can be appealed by community members.  And, of course, Miles can also appeal if they don’t like it.

Whatever happens with the current appeal and the SEPA threshold determination, the permit application will eventually go to a hearing on its merits.  If either CSVN or Miles appeals the new SEPA determination, the Hearing Examiner will hear the appeal at the same hearing as the permit application.  Under that scenario, CSVN will have the opportunity to present testimony and evidence from qualified expert witnesses during the SEPA appeal phase of the hearing if that happens; however, this can be quite costly. 

During the permit application phase of the hearing, anyone who wishes will have the right to comment for up to three minutes.  It will be extremely important for as many concerned local residents as possible to attend that hearing.  This may well be the crux of the process as far as getting the Hearing Examiner to listen to our concerns, but if he ignores public concerns and approves the permit without adequate environmental review and mitigation, we will have the opportunity to appeal the decision to the Board of County Commissioners.  If the Commissioners decide against us (and provided we can marshal the large amount of money needed to do so), we can then appeal to a higher body.

We will keep you posted as this unfolds.

The full appeal documents can be found at this county website:  https://skagitcounty.net/Departments/PlanningAndPermit/gravelmineappealPL210348.htm

All of the mine permit application documents can be found here:
https://skagitcounty.net/Departments/PlanningAndPermit/gravelmine.htm

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