PORT ANGELES — Lawyers defending the owners of the Little River Quarry say Clallam County staff and a hearings examiner did not apply the best available science when they determined that the rock quarry along the Elwha River is an erosion hazard.
Attorneys representing the county’s Department of Community Development and the Upper Elwha River Conservation Committee said the quarry is an erosion hazard per Clallam County code because it’s on a 40-percent slope and has unconsolidated rock.
No action was taken after the Clallam County commissioners heard oral arguments on the long-debated quarry in a closed record appeal hearing Tuesday.
The three-member board will consider the oral arguments and a stack of paperwork before making a decision Monday at 1 p.m.
Deliberations will be held in the commissioners’ board room (160) at the Clallam County Courthouse, 223 E. Fourth St., Port Angeles.
Storm management plan
Clallam County Chief Civil Deputy Prosecuting Attorney Doug Jensen and Toby Thaler, the lawyer representing the citizen’s group Upper Elwha River Conservation Committee, said quarry owners Mike and Susan Shaw and George and Patricia Lane shouldn’t be allowed to operate their quarry without a stormwater management plan because it falls under the county’s critical areas ordinance.
The Shaws and Lanes were told by the state Department of Natural Resources in March 2008 that they could no longer operate their quarry under the Forest Practices Act, under which the quarry operated without county approval in 2007 and 2008.
A permit was granted in 2007 under the Forest Practices Act to allow exploratory mining on 40 acres of private land near Olympic Hot Springs Road about a mile north of Olympic National Park.
Clallam County Hearing Examiner Pro Tem Lauren Erickson ruled in June 2009 that the quarry is an erosion hazard.
The ruling matched a staff recommendation from the county’s Department of Community Development.
Review allowed
But attorneys Craig Miller and Larry Freedman argued on Tuesday that the county’s own code allow for a review of the quarry site.
“I would submit that your ordinance, 27.12, is very much an ordinance that deals with site-specific designations of critical areas,” Miller said.
Reports from two geologists and one engineer have determined that the site in not an erosion hazard, Miller said. He said the ordinance, as it is written, provides for more analysis of whether the site should be considered a critical area.
“You can’t have it both ways,” Miller said.
“The ordinance creates site-specific possibilities, and those site-specific possibilities have to be applied. And if there is best available science — in the case it’s the only available science — that says it’s not a critical area, then it’s not a critical area.”
George Lane and Mike Shaw cited discrepancies in the county code when the board of county commissioners, which acts in a quasi-judicial role in the appeals process, held an initial closed record appeal last September.
Related matter
In a related matter, the commissioners in that hearing said they did not have the legal jurisdiction to rule on the hearing examiner’s decision, and Jensen filed a motion to dismiss the quarry owner’s appeal.
But in February, Clallam County Superior Court Judge George L. Wood signed an order denying the county’s motion to dismiss the appeal and ordered the commissioners to take action. Any decisions made by the commissioners can be appealed to Clallam County Superior Court.
Some neighbors have voiced opposition to the quarry since it was proposed in 1998.
Eighteen protesters gathered near the site with signs before blasting began in March 2007.
Some said the Elwha River would be subjected to more sediment runoff because of the quarry, which was originally planned to produce gravel for the Elwha River dam removal project, in which two dams will be taken down beginning in 2011.
Jensen on Tuesday said the process used to designate a critical area is legislative and not site specific.
“The best available science is what the local jurisdiction says it is, based on the use of experts and scientific information,” Jensen said.
He said the Growth Management Act, which guides county planning, is a map-driven process with specific standard.
He said the quarry site was designated as an erosion hazard, and therefore a critical area, based on guidelines in the county code.
Jensen cited staff reports and the hearing examiner’s decision that outline the methodology used to designate the quarry as a critical area “both for slope issues and for consolidated rock issues.”
Thaler, who participated in Tuesday’s hearing by phone, said the evidence in the record clearly shows that erosion occurs at the site.
“Future activity that they [Lane and Shaw] propose is highly likely to result in even more erosion,” Thaler said.
“We have fish in that river, and we want to ensure that the environmental review is conducted over time within the framework that the county’s ordinance properly sets up.”
He added that Lane and Shaw produced no evidence for the commissioners to overturn the hearing examiner or planning staff.
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Reporter Rob Ollikainen can be reached at 360-417-3537 or at rob.ollikainen@peninsuladailynews.com.
