Bellingham Hearing Examiner

Day four of the Protect Mud Bay Cliffs SEPA appeal hearing continued with testimony focused on stormwater management and regulatory compliance for the proposed Woods at Viewcrest development. The session opened with a discussion about site visit logistics, with Hearing Examiner Rice indicating her intention to visit the project site during the writing period, though debate emerged about whether she should be accompanied by party representatives. The primary witness was Jason Porter, the City of Bellingham's Surface & Stormwater Manager, who provided extensive testimony about stormwater regulations, treatment requirements, and the preliminary stormwater plan review process. Porter, who has 25 years of experience in stormwater management and helped draft Bellingham Municipal Code 15.42, testified that the city found no probable significant adverse impacts from the proposed stormwater management approach. Central to the testimony was the question of flow control requirements. Porter explained that the project qualifies for an exemption from flow control measures because it discharges to Mud Bay, which is classified as a saltwater body under state regulations. This exemption means the project does not need to install detention structures to mimic pre-development flow conditions, as would be required for discharge to freshwater systems. However, significant questions emerged during cross-examination about the adequacy of information provided at the preliminary stage. Appellant attorney Claudia Newman challenged whether sufficient hydrologic modeling and flow analysis had been conducted to support the SEPA determination, noting that no modeling data exists to show the volume and velocity of stormwater that will enter Mud Bay. The session concluded with applicant attorney Tim Shermetzler beginning the applicant's case-in-chief, calling property owner Rogan Jones as the first witness to provide background on the family's long connection to the property, which was originally acquired from the historic Larrabee family.

No formal votes were taken during this appeal hearing session. The hearing examiner made several procedural rulings: - Overruled objections to admit appellant exhibits 45-48 regarding city NPDES permit compliance history - Sustained objections to several leading questions during cross-examination - Ruled to allow discussion of site visit logistics via email coordination

**Jason Porter, on stormwater regulations:** "For better or worse, stormwater management rules are fairly black and white. They're threshold based and they apply and required or they're not." **Hearing Examiner Rice, on site visits:** "I will not attend a site with members from fewer than all parties. So I'm making that statement now. I'll either go alone or we will, I'll go with my husband or we will coordinate mutually agreeable visit with all parties represented." **Jason Porter, on saltwater discharge exemption:** "In the simplest of terms, you can send as much water as you want, as fast as you want to the ocean or saltwater body and not realize those effects." **Claudia Newman, questioning modeling adequacy:** "We currently do not know what the flow duration and quantity of water will be coming out of that pipe and into Mud Bay, correct?" **Jason Porter, on preliminary vs. final plans:** "A preliminary stormwater site plan has been adequate for us to determine what's necessary at a preliminary plant level." **Rogan Jones, on family connection to property:** "I was born on the property at 350 Viewcrest... I lived my whole life there... We love that property, still do."

# Real Briefings — Day Four of the Woods at Viewcrest SEPA Appeal The fourth day of what has become a marathon hearing opened with procedural business and closed with testimony from the property owners themselves. This hearing before Hearing Examiner Ann Rice centers on the Protect Mud Bay Cliffs' appeal of the City of Bellingham's environmental determination for a proposed 26-lot residential subdivision on steep bluffs overlooking Mud Bay. ## Meeting Overview Day four began with Examiner Rice addressing an unresolved question about her planned site visit to the woods at Viewcrest property. The discussion revealed competing views about how the examiner should conduct her inspection of this challenging terrain. After settling that matter, the city called its final witness, Surface and Stormwater Manager Jason Porter, whose testimony dominated the morning session. The city then rested its case, turning the proceedings over to the applicants, who called property owner Rogan Jones to testify about his family's connection to the land. The hearing has been contentious from day one, with fundamental disagreements about stormwater management, environmental impacts, and the adequacy of preliminary planning documents to support major permit decisions. The appellant Protect Mud Bay Cliffs contends the city rushed to approve a project without adequate environmental review, while the city and applicants maintain they followed established procedures and that detailed engineering can wait until later in the permit process. ## Site Visit Planning Discussion The session opened with City Attorney Marcus Erb requesting discussion about the examiner's planned site visit. Having postponed a Sunday visit due to weather, Examiner Rice indicated she still intended to visit the property during the writing period once her back recovered enough for outdoor activity. Erb advocated for an accompanied site visit with designated representatives from all parties. "Having recently conducted a site visit personally, it might be beneficial for you to have one designated representative from each party with you," he said, explaining the value of having someone who could orient the examiner to where roads and building lots are proposed and which sections would remain undisturbed. The examiner expressed hesitation about accompanied visits. "It had been my intention to go unaccompanied on a site visit, both for the purpose of not having any possibility of expert communication, but also because with the instructions I got from Mr. Taishi, I feel like I could find the site entrance and could then orient myself." Appellant attorney Claudia Newman strongly opposed an accompanied visit. "I am reluctant to agree to having people accompany you," she said. "It really complicates everything. Because then if we have to have someone, I don't know if I can go or if a lawyer would go and then it gets complicated if it's a member of the group, and what the conversations are going to be." She worried about providing evidence and discussion off the record when not all parties are present. Applicant attorney Joe Ray suggested a compromise: allowing appellants to provide written guidance similar to what Mr. Taishi had already provided, letting the examiner maintain independence while ensuring all parties' concerns are addressed. The examiner made clear she would either go alone or with all parties represented, never with fewer than all three parties. She also noted the importance of consulting tide charts since accessing the shoreline would require timing the visit properly. After some back-and-forth about GPS coordinates and wayfinding assistance, the parties agreed to continue the discussion via email and provide the examiner with written guidance about points of interest each side wants her to observe. ## Jason Porter's Expert Testimony on Stormwater Management The city's final witness, Jason Porter, delivered extensive testimony about stormwater regulations and the preliminary stormwater plan for Woods at Viewcrest. Porter has worked for the city since 2002, spending over two decades focused on stormwater management. He currently serves as Surface and Stormwater Manager and FEMA-designated floodplain administrator. ### Porter's Background and Qualifications Porter described his evolution from field technician to manager overseeing the city's compliance with federal stormwater requirements. "I've been with the city since 2002, but starting in 2005, I was hired as the stormwater utility technician where I actually started my career of doing development review, permitting and compliance with the city's development regulations," he testified. His responsibilities include ensuring compliance with the National Pollution Discharge Elimination System (NPDES) Phase 2 municipal stormwater permit, managing water quality projects for Lake Whatcom, and overseeing capital construction projects. Significantly, Porter helped draft Bellingham Municipal Code 15.42, the city's stormwater development regulations. "I reviewed hundreds and hundreds of stormwater site plans," Porter said of his decade as the city's surface and stormwater utility engineer from 2006 to 2016. "These are for larger scale projects similar to what this is described." ### The Purpose of Stormwater Regulations Erb walked Porter through the purposes of BMC 15.42, which include minimizing water quality degradation, protecting habitat, reducing runoff and erosion impacts, and promoting construction practices consistent with natural conditions. Porter confirmed these regulations implement the federal Clean Water Act through state requirements. "Our development regulations have been found to be in compliance with the Clean Water Act and the Washington State Department of Ecology's NPDES phase two permit requirements," Porter testified. ### Preliminary vs. Final Stormwater Plans A central issue in the appeal emerged in Porter's explanation of preliminary stormwater planning. He distinguished between preliminary stormwater site plans used for pre-application conferences and SEPA review versus final plans required for construction permits. "It is not uncommon for us to receive preliminary stormwater site plans," Porter explained. "In that, what we're looking for are the major design elements, not the engineering or specific, we'll say sizing of pipes, but it's the overall stormwater management strategies, including the rules and regulations or minimum requirements that would apply to a project." When asked what he reviews preliminary plans for, Porter said: "That the applicant has a strong understanding of the regulations that would apply to the project and that they've done thoughtful considerations for how they will meet and comply with those minimum requirements." ### Flow Control and the Saltwater Exemption A crucial technical issue involves whether the Woods at Viewcrest project must provide flow control—stormwater detention to mimic pre-development conditions. Porter explained that flow control requirements aim to prevent the "flashiness" of stormwater that causes flooding and erosion in receiving waters. "Flow control is minimum requirement number seven," Porter said, describing how ecology's manual requires detention ponds or vaults with metering devices to store water and release it at engineered rates matching natural conditions. However, Porter testified that Mud Bay qualifies as a saltwater body exempt from flow control requirements. "There are a whole series of exempt receiving waters that are included in ecology's stormwater management manual. Those are typically large river systems, lakes, and saltwater bodies." The exemption exists because "the tidal influence is going to likely have a more significant effect on erosion and sediment transport and movement than stormwater flows from a portion of this development," Porter explained. ### Treatment Requirements and Emerging Contaminants Porter described treatment requirements for removing pollutants, particularly metals like copper and zinc. The project proposes modular wetland systems—"rain gardens in a box"—for treating stormwater before discharge. Extensive discussion focused on 6-PPD-Q, an emerging tire-wear pollutant toxic to salmon in freshwater. Porter explained that ecology is still developing treatment technologies and that requirements will likely apply to high-traffic developments discharging to freshwater systems. "Right now, in early conversations with the Department of Ecology, it is looking to likely be required under our next phase two municipal stormwater permit," Porter said. "But with that, is they're going to connect it and tie it to vehicle trip counts and freshwater discharge points." Currently, no jurisdiction requires treatment for 6-PPD-Q because approved treatment methods don't yet exist. ### Contentious Cross-Examination on Missing Information Appellant attorney Newman's cross-examination revealed significant gaps in the stormwater analysis. She established that the preliminary plan contains no hydrologic modeling showing actual flow quantities or velocities that would result from development. "The report doesn't contain any hydrologic assessment to estimate runoff qualities anywhere, right?" Newman asked. "Not that I'm aware of," Porter confirmed. Newman pressed on the practical implications: "Without a hydrologic assessment... you have no baseline to reliably size the treatment units, correct?" "Correct, we would require that information at the time of a public facilities contract or construction agreement," Porter replied. This exchange highlighted a fundamental disagreement about timing. The city's position is that detailed engineering can wait until construction permits, while appellants argue environmental review requires complete information about impacts. ### The Saltwater Exemption Controversy Newman challenged whether the project actually qualifies for the saltwater exemption, noting the outfall doesn't extend to the ordinary high water mark as required. The exemption requires that conveyance systems extend "to the ordinary high water line of the exempt receiving water." Porter acknowledged the outfall sits above the waterline on bedrock but suggested the city could grant a director's exception—a possibility not previously disclosed in any documents. "Any deviation from our stormwater management requirements may require a director's exception," Porter said, explaining this would be requested during final design. "That exception hasn't been requested yet." Newman expressed surprise at this new information, noting it was "the first I've ever heard of that." ### Lots 23-26 and Incomplete Planning A technical dispute arose over lots 23-26, which sit at lower elevations than the proposed treatment facilities. Newman established these lots can't drain by gravity to the modular wetland systems. Porter suggested these lots could use pump systems to lift stormwater uphill to the treatment facilities, though no specific plans exist. "Pumping stormwater from a single family residential home to the city's stormwater system is not uncommon," he said. The exchange revealed another gap in planning—no one knows exactly how stormwater from these lots will be managed, with Porter acknowledging "I currently do not have information showing how they will move water from those lots up to the public system." ### City's Compliance Record Newman introduced letters documenting the city's non-compliance with stormwater permit requirements, including failing to achieve required inspection rates for treatment facilities. Porter explained these were voluntary notifications to maintain permit compliance, not violations. "By submitting those G20 notices, telling Ecology we made a mistake, explaining how those mistakes won't happen again in the future, maintains compliance under our NPDES permit," Porter testified. ## Rogan Jones: A Personal Connection to the Land After the city rested its case, applicants called property owner Rogan Jones, who provided personal context often missing from technical testimony. Jones described being born on the property at 350 Viewcrest and living there his entire childhood. "I was born on the property at 350 Viewcrest. And then when my dad got multiple sclerosis, we moved to 354 Viewcrest. He needed to be on the first floor," Jones testified. "I was born and raised there. I lived my whole life there." The family inherited the property from Jones's grandmother, who had purchased it from the historic Larrabee family—the original developers of the Edgemoor neighborhood. "They owned all of Chuckanut and all of Bellingham east of Fairhaven," Jones said of the Larrabees. Jones's brief testimony provided human dimension to a highly technical proceeding, though his full testimony will continue when the hearing resumes. ## Unresolved Technical and Legal Questions Day four highlighted the central tensions in this appeal. The city maintains its approach follows established procedures—preliminary stormwater plans are adequate for SEPA review, with detailed engineering required only at construction permit stage. Porter testified he has never required complete stormwater site plans for preliminary plat approval. Appellants argue this approach violates both state environmental review requirements and ecology's stormwater manual. Newman's cross-examination revealed gaps in critical information: no flow modeling, no hydraulic analysis, no demonstration that treatment systems will be adequately sized, and no specific plans for managing stormwater from some lots. The saltwater exemption remains contentious, with questions about whether the outfall location actually qualifies and whether the city can grant exceptions not disclosed during environmental review. These technical disputes reflect broader questions about when environmental review should occur. Should SEPA analysis rely on preliminary concepts with final analysis deferred to construction permits? Or must environmental review examine specific, engineered proposals to meaningfully assess impacts? The hearing continues with more applicant witnesses expected to address engineering details and environmental analysis. With both sides having presented extensive technical testimony, Examiner Rice faces complex questions about the adequacy of environmental review for this challenging development site. ## What's Ahead The applicants will continue their case with additional expert witnesses before appellants present rebuttal testimony. All parties will then submit written closing arguments during a several-week writing period, after which Examiner Rice will conduct her site visit and issue a written decision. The stakes remain high—the appeal could require additional environmental analysis, modify permit conditions, or potentially deny the permits altogether. After four days of detailed testimony, the technical and legal questions remain as complex as the steep terrain the project proposes to develop.

## MODULE S1: STUDY GUIDE **Meeting ID:** BEL-HEX-2026-01-15 ### Meeting Overview The Bellingham Hearing Examiner conducted day four of a SEPA appeal hearing for the Woods at Viewcrest project on January 15, 2026. The city presented testimony from stormwater manager Jason Porter while discussing site visit logistics for the appeal. ### Key Terms and Concepts **SEPA Appeal:** A legal challenge to the State Environmental Policy Act determination made by the city, in this case regarding the Woods at Viewcrest development project. **MDNS:** Mitigated Determination of Non-Significance - the city's finding that the project will not have probable significant adverse environmental impacts with mitigation measures. **TDA (Threshold Discharge Area):** Separate drainage areas on a development site that drain in different directions and don't rejoin within a quarter mile, each requiring independent stormwater analysis. **Flow Control:** Stormwater management technique using detention ponds or vaults with metering devices to store water and release it slowly to mimic pre-development conditions. **6-PPD-Q:** An emerging tire wear pollutant (6-PPD-quinone) that forms when tire preservatives react with ozone and has been shown to be acutely toxic to coho salmon in freshwater. **Modular Wetland System:** A proprietary stormwater treatment device described as a "rain garden in a box" - precast concrete structures with filters for water quality treatment. **NPDES Permit:** National Pollutant Discharge Elimination System permit that regulates stormwater discharges under the Clean Water Act. **Mud Bay:** The saltwater receiving body adjacent to the project site that is exempt from flow control requirements under state regulations. ### Key People at This Meeting | Name | Role / Affiliation | |---|---| | Hearing Examiner (Speaker 1) | Bellingham Hearing Examiner conducting the appeal | | Mr. Erb (Speaker 2) | City of Bellingham attorney | | Ms. Newman (Speaker 3) | Attorney for appellant (Protect Mud Bay Cliffs) | | Mr. Ray (Speaker 4) | Attorney for appellant | | Mr. Shermetzler (Speaker 5) | Attorney for applicant | | Jason Porter (Speaker 4 in testimony) | City of Bellingham Surface and Stormwater Manager | | Rogan Jones (Speaker 6) | Property owner/applicant | ### Background Context This hearing represents day four of an ongoing SEPA appeal of the city's environmental determination for a residential development project called Woods at Viewcrest. The appellants, Protect Mud Bay Cliffs, are challenging the city's finding that the project will not cause significant environmental harm. The project involves developing lots on a steep, geologically complex site that drains to Mud Bay. Key environmental concerns center around stormwater management, impacts to the marine environment, and the adequacy of environmental review. The hearing examiner must determine whether the city's environmental review was adequate and whether the project meets applicable regulations. ### What Happened — The Short Version The hearing began with discussion about whether the hearing examiner should conduct a site visit alone or accompanied by representatives from all parties. The examiner indicated intent to visit but expressed preference for an unaccompanied visit to avoid potential ex parte communication issues. The main testimony came from Jason Porter, the city's stormwater manager with 25 years experience. Porter explained the city's review of the preliminary stormwater management plan, including proposed treatment systems and outfall design. He testified that the project qualifies for exemption from flow control requirements because it discharges to Mud Bay, a saltwater body. Under cross-examination, Porter acknowledged that no hydrologic modeling showing actual flow quantities had been provided, and that complete stormwater site plans would be required later in the permitting process. The city concluded its case, and applicant's counsel called the property owner to begin their presentation. ### What to Watch Next - Site visit coordination and timing to be determined via email among parties - Continued testimony from applicant's witnesses in upcoming hearing sessions - Hearing examiner's final written decision on the SEPA appeal after all testimony concludes ---

## MODULE S2: FLASH CARDS **Meeting ID:** BEL-HEX-2026-01-15 **Q:** What is the Woods at Viewcrest project? **A:** A residential development project in Bellingham that is the subject of a SEPA appeal by Protect Mud Bay Cliffs. **Q:** What does TDA stand for? **A:** Threshold Discharge Area - separate drainage areas that don't rejoin within a quarter mile and require independent stormwater analysis. **Q:** How many TDAs does the Woods at Viewcrest project have? **A:** Three TDAs that drain in different directions from the development site. **Q:** What is Jason Porter's role at the City of Bellingham? **A:** He is the Surface and Stormwater Manager and FEMA-designated floodplain administrator with 25 years experience in stormwater management. **Q:** What is a modular wetland system? **A:** A proprietary stormwater treatment device described as a "rain garden in a box" - precast concrete structures with pre-filters and secondary filters. **Q:** Why is Mud Bay exempt from flow control requirements? **A:** Because it is classified as a saltwater body under Department of Ecology regulations, and saltwater bodies are exempt from flow control requirements. **Q:** What is 6-PPD-Q? **A:** An emerging tire wear pollutant that forms when tire preservatives react with ozone and is acutely toxic to coho salmon in freshwater. **Q:** What did Porter say about whether 6-PPD-Q treatment is currently required? **A:** No jurisdictions currently require treatment for 6-PPD-Q because approved treatment technologies are still being developed by the Department of Ecology. **Q:** What is "flashiness" in stormwater management? **A:** Rapid rise of water surface elevation and velocity when rain hits impervious surfaces instead of natural forest, potentially causing erosion and flooding. **Q:** What is the city's NPDES permit status according to Porter? **A:** The city is in compliance with its NPDES permit despite some G20 notifications to the Department of Ecology about minor violations. **Q:** What type of pipe is proposed for the stormwater outfall? **A:** High-density polyethylene (HDPE) pipe, which is flexible plastic with smooth interior walls and corrugated exterior. **Q:** What is the difference between preliminary and final stormwater site plans? **A:** Preliminary plans show conceptual design and major elements; final plans include detailed engineering, pipe sizing, and hydrologic modeling. **Q:** When would final stormwater site plans be required? **A:** At the time of public facilities construction agreement application, after preliminary plat approval. **Q:** What happens at low tide in Mud Bay according to the testimony? **A:** Mud Bay can drain significantly at low tide, but stormwater will still discharge from the outfall pipe during rain events. **Q:** What is Rogan Jones' connection to the property? **A:** He was born and raised on the property, inheriting it from his grandmother who purchased it from the historic Larrabee family. **Q:** What was the main disagreement about stormwater site plan timing? **A:** Whether complete stormwater site plans are required for preliminary plat approval or can be provided later during construction permitting. **Q:** What modeling has been provided for the project's stormwater flows? **A:** No hydrologic modeling showing actual flow quantities and duration has been provided in the preliminary plans. **Q:** What would happen if stormwater went to Sea Pines Road instead? **A:** It would require flow control structures and basin diversion due to discharge to the Chuckanut Village marsh wetland system. **Q:** What is the examiner's plan for site visit? **A:** Plans to visit the site during the writing period, potentially with representatives from all parties or alone with written guidance from parties. **Q:** How many stormwater projects has Porter reviewed in his career? **A:** Hundreds of projects, possibly close to 1,000, with dozens being preliminary plats over his 25-year career. ---