recent articles

							Recent Articles

New on 11/22: More Proof WSDOT didn’t Drain to Park before I-405 work



New on 11/21: Why Bellevue Won’t Admit Adverse Impacts to Park



New on 11/17: Modeling Still a Fatal Flaw in WSDOT ‘Addendum’, Basin Transfer to
Coal Creek Bigger than Reported; Still Nothing to Show WSDOT Discharged to Park in
Pre-project Condition



New on 11/16:WSDOT: Snub of Feds with Ignoring Permit Commitments for ESL,
Unauthorized Use of 4(f), 6(f) Protected Park, Ongoing Violations of Clean Water Act
and Corps Wetlands Protection



New on 11/15:DOE Found WSDOT Compliant without seeing Test Results of Multiple
Exceedances for Heavy Oil, Diesel Contamination
New: Nov. 22, 2011

More Proof WSDOT didn’t Drain to Park before I-405 work

A feature of the recent multiple WSDOT “Addendum 1” versions to its 2009 “Final
Hydraulic Report” for the 112th Ave. S.E. to I-90 segment of the South Bellevue
Widening Project is the contention I-405 discharged to Newcastle Beach Park in the
pre-project condition but there is no evidence to show WSDOT drained to the park in
advance of the recent work. Among this evidence are emails between the City of
Bellevue and WSDOT obtained in a public information request show WSDOT storm
water the stream did not drain to the park in the pre-project condition and that both
WSDOT and the City of Bellevue knew only City of Bellevue storm water did.

The 2007-2009 work has resulted in I-405 runoff collected and conveyed to four “Cross
Drains” (“CDs”) that drain to Newcastle Beach Park streams and wetlands with none of
the storm water facilities WSDOT committed to in permitting.

The park is just 350 feet downstream from I-405 at what has been described by
WSDOT as one of the most congested section of freeway in the state with an “ADT”
(average daily traffic) of 141,000 trips a day.

It contains the City of Bellevue’s most popular swim beach with up to 1,000 visitors a
day and protected shoreline habitat for threatened and endangered species.

Tests of water quality and soil and sediments in the park for the known highway
contaminants of heavy oil and diesel were “non-detected” in spring and fall 2007
baseline tests for the city done by The Watershed Co.

Now, tests done by the city and for the city by Otak, an outside consultant, show
multiple exceedances of heavy oil and diesel in the park over Model Toxic Cleanup
Levels (“MTCA”) in the discharges to the park streams and wetlands, including at the
shoreline; every test of ten tests for water quality showed heavy oil and diesel detected
in the park. Other exceedances include the known highway contaminants dissolved
copper (from brake pad wear) and dissolved zinc (from tire wear) when copper and zinc
were also “non-detected” in baseline pre-project testing of the park stream and beach.
Total Suspended Solids (“TSS”), considered a general indicator of pollution in a stream,
measured a high of “13.5 ug/L” in the park stream, known as the Newcastle Beach Park
Creek, in the baseline testing of 2007 done by Watershed; TSS measured on March 29,
2011 in Newcastle Beach Park Creek in non-first flush conditions (the baseline testing
employed first flush, worst case scenario tests) found TSS at 120,000 ug/L. See “Tests”
and “2007 Adaptive Management Water Quality and Sediment Analysis Year End
Report, Dec. 2007” at the Document Library at www.savenewcastlebeachpark.com.

The City of Bellevue, in notices online and in the city newspaper “It’s Your Bellevue”,
and in a written report to the Bellevue City Council, “City of Bellevue Newcastle Beach
Park – Analysis and Review of Water Quality Sampling Data” and information presented
to the Council and public on Oct. 10, 2011, has refused to admit the findings of heavy oil
and diesel and other “Total Petroleum Hydrocarbons” (TPH) in the park as a result of
tests performed by the city and by Otak. See “Otak on Park Water Quality: It’s What’s
Omitted that Counts” at www.savenewcastlebeachpark.com.

WSDOT has contended in its Addendum to address “deviations” from the 112th Ave.
S.E. to I-90 work (when the “FHR” was supposed to be the final stamped and signed
documentation of all engineering changes in the as-built condition) it “decreased”
highway runoff drained to the park as a result of its recent work due to “diverting” water
discharged to one CD, CD 9.88, in the park “threshold drainage area” (“TDA”) and City
of Bellevue Lakehurst Basin to CD 9.96, which drains to the Coal Creek TDA and the
city’s Coal Creek Basin. The claim in the Addendum is this “diversion” accomplished a
“reduction” in the overall WSDOT water discharging to the park in the as-built condition
compared to the pre-project condition, thus eliminating the need for the “minimum
requirements” for storm water it committed to in permitting, including “Minimum
Requirement 5 Runoff Treatment” and “Minimum Requirement 6 Flow Control, required
by its “HRM”.

However, the extensive pre-projects tests of 22 parameters in first flush conditions in
spring and fall of 2007 in the park in anticipation of obtaining a “baseline” in advance of
WSDOT work upstream show “no” highway runoff profile in the park stream or at the
beach.

The park, just 350 feet downstream and down steep slope from the 141,000 “ADT”
highway would have shown “some” highway runoff profile in its 2007 baseline testing,
but showed known highway runoff pollutants now known to be in the park “non-
detected” when there has been no other upstream work between the time of the 2007
tests and recent tests by the WSDOT expansion and improvements that can be shown
by inspection in the field and the use of City of Bellevue storm water grid maps to be
discharging as a result of the work to CDs 9.55, 9.60, 9.69 and 9.75 which lead to
and/or convey Streams 08.LW-9.7 and 08.LW-9.8 which converge inside the park to
become the Newcastle Beach Park Creek, and Wetlands 9.8L, 9.82L also known as the
park’s Upper Wetlands and Newcastle “B”, a Category II wetland, and the park’s Lower
Wetlands also known as Wetland “A”, a forested shoreline Category I or II wetland. The
Watershed Co., considered the City of Bellevue’s steam habitat specialist, wrote in the
2007 report: “No hydrocarbons were detected in the water samples. Presently, little of
the water reaching the creek originates as road runoff. In the future, this may change if
runoff from an expanded I-405 is diverted through this stream rather than being routed
to Coal Creek as it presently is.”

If the WSDOT Addendum is to be believed, the recent tests should have shown “less”
highway contaminants in the park as a result of the “reduction” of runoff to the park
accomplished by the “diversion” of highway runoff collected and conveyed to CD 9.88 in
the pre-project condition out of the park TDA and to the Coal Creek TDA via CD 9.96 in
the as-built condition.

Instead, the opposite is true: known highway runoff contaminants not found or detected
in the pre-project condition are now present throughout the park in 10 or 10 tests of
water between March 29, 2011 and Sept. 19, 2011 – and not just “present” but at levels
that exceed MTCA cleanup levels (heavy oil, diesel) and/or State Surface Water or
Ground Water Quality Standards (dissolved copper, dissolved zinc, TPH). Also found in
the park for the first time in soils is PAHs: Polycyclic Aromatic Hydrocarbons – traveling
underground, in ground water and/or interflow, to the swim beach.

See “WSDOT: Snub of Feds with Ignoring Permit Commitments for ESL, Unauthorized
Use of 4(f), 6(f) Protected Park, Ongoing Violations of Clean Water Act and Corps
Wetland Protection” for more information on the park and its streams and wetlands at
www.savenewcatlebeachpark.com.

Emails

A public information request at the City of Bellevue shows communications of staff at
the City of Bellevue, WSDOT, what was then the state “IAC” and is now the state
Recreation Conservation Office (“RCO”) and the National Parks Services (“NPS”) that
suggest WSDOT did not drain to the park in the pre-project condition, as it has claimed,
and that this presented a problem for WSDOT to “use” the park for storm water
drainage since it has what is known as “Section 6 (f)” protection, which prevents the City
of Bellevue, who used federal Land And Water Conservation Act (“LWCA”) funds to
purchase and develop the park. A condition of applying for and accepting the funds,
administered by King County Forward Thrust, was an agreement by Bellevue to not
“convert” the park to any use other than that for which the funds were granted, which is
“public outdoor recreation”. The use of a “Section 6(f)” protected park for a use other
than that, or inconsistent with that, for which it received Department of Interior funds
under the LWCA is a “conversion” of the property to another use, which then requires
“compensation” by the owner of the property, in this case the City of Bellevue, for the
portion of converted use of the property to a different purpose.

The National Parks Service, which administers the program at the federal level, works
with the state RCO. Both communicated with Bellevue and WSDOT concerning the use
of Newcastle Beach Park for the Bellevue-Newcastle Beach Park Storm water Initiative,
which is a plan to divert all of the storm water between 112th Ave. S.E. to I-90 to the
park when remaining elements of the as yet unfunded WSDOT Renton to Bellevue
Project are constructed. The 112th Ave. S.E. to I-90 work done as part of the South
Bellevue Widening Project from 2007 to 2009 was originally a part of the Renton to
Bellevue Project but was removed from that project and “bundled” with the South
Bellevue Widening Project.

Communications seeking clarification on what would pose a “conversion” of the park
property by the future “Initiative” took place before the 2007 to 2009 112th Ave. S.E. to
I-90 work that resulted in discharges to the park. They show Bellevue staff and WSDOT
were aware WSDOT was not utilizing the park for storm water drainage at the time.

An email from a Bellevue staff attorney on Nov. 13, 2006, to what is now the RCO
states:

“I am currently trying to sort through the 4(f) and 6(f) issues implicated by WSDOT’s
proposed ‘Newcastle Initiative’ in which they are proposing to discharge highway storm
water into the stream channel at Newcastle Beach Park. . . I am concerned that this
proposed project triggers both 4(f) and 6(f). . . . My primary concern with 6(f) is that the
Right of Entry and Maintenance Agreement that WSDOT has proposed to the City of
Bellevue grants the same property rights as an easement, and easements trigger 6(f).
Although not called an “easement”, the actually language of the Draft Storm water
Management Agreement and the ROE grant the exact same property rights that a storm
water easement would grant because the rights are “in perpetuity”. It seems that this is
an attempt to avoid 6(f) by re-naming the mechanism granting the rights in the project
without changing the actual substance of the project. To me, this seems like mere
semantics and seems contrary to the intent of 6(f) which is to preserve public
recreational use. “ – Darcie Chinn, Assistant City Attorney, Bellevue

The Bellevue attorney wrote on Nov. 22, 2006:

“Please note the following issues for 6(f) that characterize their Right of
Entry/Agreement: -- the right to discharge storm water granted to WSDOT in perpetuity .
. . any subsequent easements affecting the park will be subject to WSDOT’s rights . . . “
– Darcie Chinn, Assistant City Attorney, Bellevue

What is now RCO wrote to Bellevue on Nov. 27, 2006:

“. . . we concur with your assessment and agree that the Right of Entry as proposed,
would constitute a conversion. Of particular note in line 415, it specifically states that the
City is granting to WSDOT . . . ‘ This is seemingly conveying a property right.” Darrel
Jennings, RCO

WSDOT attorney general office wrote to WSDOT staff apparently around this same
time:

“It is clear from the L&WCF statutes and regulations that conversion of a park from a
recreation purpose is not allowed without federal approval. I am certain that this
drainage easement would not amount to a conversion of the park from its recreational
purpose as there would be no change in use of the existing stream or drainage
challenge which is currently being used by the City. In fact, with the drainage easement
use of the land will continue unchanged. Everything about the purpose and use of the
park remains the same. The park will still be used for recreational purposes and in order
for that use to continue, surface water will continue to be channeled through the existing
stream bed to enable the rest of the park to be used for recreation. . . Heather
mentioned change in control via the easement. The easement can limit WSDOT’s
control by limiting the purpose of the easement to drainage way so long as the park
continues to use the stream in a like manner. WSDOT would have no control or
authority to change or effect the park’s current use of the stream . . . However, all that
said, there are several possible options t the easement which I can discuss with Allison
at a later date . . . “ -- Elizabeth Lagerberg, ATG-TPC

RCO staff states in an email Dec. 6, 2006, to WSDOT, concerning a “draft” proposal for
WSDOT to use the park:

“What WSDOT is proposing is better, but still not enough to avoid conversion. As I’ve
said to them before, the City needs to be able to terminate the agreement at will. . . With
the city being able to terminate the Agreement at will, then it will be clear that they have
retained their unquestioned control over the site which is the hang-up. – Darrel
Jennings, RCO

It is clear from these communications, which never mention an “existing” use by
WSDOT to drain its storm water to the park, that WSDOT did not drain its storm water
to the park stream in at the time, which is the pre-project time period for the 112th Ave.
S.E. to I-90 segment of work as well as the future proposed “Initiative” to be constructed
with the as yet unfunded remaining portions of the Renton to Bellevue Project.

It is clear from the words “. . . there would be no change in use of the existing stream or
drainage challenge which is currently being used by the City . . . “ that is was “only” the
Bellevue using the park stream at the time for storm water drainage, which supports the
comments of The Watershed Co. in its “2007 Adaptive Management Water Quality and
Sediment Analysis Year End Report, Dec. 2007”. The above emails can be viewed
under “6f Emails” at the Document Library at www.savenewcastlebeachpark.com.

Also not speaking to any “existing use” of the park for WSDOT storm water are City of
Bellevue documents titled “Concurrence Letter: Renton to Bellevue Project Water
Resources Initiative, March 28, 2007”; “I-405, SR 169 to I-90, Renton to Bellevue –
Wetland Stream and Drainage Improvement Plan at Newcastle Each Park Status
Report as of January 24, 2007”; and the “Draft for WSDOT Review Storm water
Management Agreement for I-405 Water Resource Initiative at Newcastle Beach Park”
and “Water Resource Initiative at Newcastle Beach Park Storm Water Use Permit and
Maintenance Plan” which can be seen under “Newcastle Beach Initiative Documents” at
www.savenewcastlebeachpark.com. The “Storm water Use Permit and Maintenance
Plan” states under “general”:

“The Initiative is an innovative and cost-effective storm water approach for the I-405, SR
169 to I-90 Renton to Bellevue Project, wherein STATE treated storm water will be
included in the CITY’s storm water system, and existing stream channel that discharges
to Lake Washington at Newcastle Beach Park.”

Under “Permit Terms and Conditions” is this wording:

“The STATE is permitted the right to discharge treated storm water into a stream
channel over and across the property only as allowed by this permit.”

It is clear WSDOT storm water was not already “included” in the “CITY’s storm water
system” and that no pre-existing use exists for the WSDOT water to be allowed “only as
allowed by this permit”.

The Storm water Management Agreement includes the following wording on its title
page:

“Whereas the INITIATIVE provides for conveyance of the STATE’s treated storm water
through an existing storm water system and stream channel”;
“Whereas the CITY’s storm water system includes a stream channel through Newcastle
Beach Park that discharges to Lake Washington at Newcastle Beach Park”;

Under “Consideration”, the “Agreement” states:

“Consideration shall consist of an exchange of mutual benefits, wherein the STATE
shall provide the storm water, park, and habitat improvements as specified in the Plan.
The STATE will provide payments to the CITY for vegetation maintenance, as defined in
the Storm Water Use Permit and Maintenance Plan, in response to receipt of the CITY’s
monthly bills for actual costs for vegetation maintenance activities . . . In exchange, the
STATE is permitted to discharge treated highway storm water into a stream channel on
the property and will be allowed property access for design, construction, maintenance
and monitoring of the storm water and habitat improvement . . .”

The wording makes it abundantly clear WSDOT did not already drain I-405 storm water
to the park in advance of the 112th Ave. S.E. to I-90 work. WSDOT did not admit its
discharges to the park in the 2007-2009 work; the discharges were to be in the “future”
project to be implemented in the “Initiative” with the remaining elements of the unfunded
Renton to Bellevue Project after signing of the pending Initiative documents and
acceptance of them by a vote of the City Council, which has yet to happen. There was
no “4(f)” or “6(f)” concurrence by Bellevue, as required, for the 112th Ave. S.E. to I-90
work, only a concurrence “letter” which does not suffice for the 112th Ave. S.E. to I-90
work done between 2007 and 2009. WSDOT only admitted its discharges to the park in
the “Addendum 1” to address “deviations” in the “FHR”, after a complaint by this website
to the state Department of Ecology concerning the lack of water quality treatment and
flow control – minimum requirements for the I-405 discharges to streams and wetlands
as identified in the WSDOT permitting commitments – that have resulted in adverse
downstream impacts to the park.

WSDOT discusses “existing” I-405 discharges to the park but produces no evidence of
this in its “WSDOT Newcastle Beach Park Wetland, Stream and Drainage Improvement
Plan” or in documents for its 112th Ave. S.E. to I-90 work which can be viewed at the
Document Library at www.savenewcastlebeachpark.com. The information appears to
have been “assumed” from the study of maps.

It’s possible WSDOT states it is draining in the pre-project condition – an established
use – because it knew, as the “6(f) Emails” above show, it would not be able to obtain
“4(f), 6(f)” clearance from the federal government for these federal protections for the
use of the park in time to use the park for drainage with its 112th Ave. S.E. to I-90 work,
already known, at the time of these emails, by WSDOT staff to be in the process of
being “bundled” with the South Bellevue Widening Project, which was what is termed
“shovel-ready”.

It’s possible WSDOT omitted its discharges to the park in its “FHR” since it did not have
the necessary “4(f), 6(f)” clearance for the discharges to drain to the park at the time of
the 112th Ave. S.E. to I-90 work, from June, 2007 to Dec., 2009; it never received “6(f)”
clearance for the use, and received “4(f)” clearance only for the use in the future as yet
unfunded Renton to Bellevue Project, and received that long after the start of the 112th
Ave. S.E. to I-90 work, on Nov. 20, 2008 – when half the 112th Ave. S.E. to I-90 work,
included the discharges to the park streams and wetlands – was already constructed.
Why Bellevue Won’t Admit Adverse Impacts to Park

The City of Bellevue won’t admit to adverse impacts to Newcastle Beach Park caused
by the WSDOT 112th Ave. S.E. to I-90 work just 350 feet upstream because its
potential liability for the polluted discharges, which are in violation of its NPDES permit.

Also, it’s unlikely Bellevue wants to admit to storm water violations while continuing to
deal with ongoing storm water litigation with the Newport Shores neighborhood and a
resident who have sued the city over storm water mismanagement.

The neighborhood and resident who lives at the mouth of Coal Creek sued Bellevue in
2003 alleging violations of the Clean Water Act arising out of mismanagement of storm
water and sedimentation facilities in the city’s Coal Creek Basin; the litigation resulted in
what is known as the 2004 Settlement Agreement. Newport Shores neighborhood and
the resident sued again in 2009 alleging the city failed to meet its obligations with failing
to adequately implement what is known as the “Coal Creek Stabilization Plan” and
failing to cooperate in the permitting of certain activities on the resident’s property,
including the establishment of a salmon hatchery at the mouth of the creek. The city
prevailed and was awarded $33,583 in costs and $410,070 in attorney’s fees. The
neighborhood and resident lost an appeal to the Ninth Circuit on most issues of the
litigation, but a part of the ruling concerning the phrase “salmon habitat enhancement
project” was remanded it back to federal court. Bellevue just lost a motion for summary
judgment on this issue on Nov. 11, 2011, with the court deciding there are genuine
issues of material fact to be decided.

WSDOT recently admitted in several versions of its “Addendum 1” to address
“deviations” in its 2009 “Final Hydraulic Report” for the 112th Ave. S.E. to I-90 work
discharging new storm water runoff in two cross drains “CDs” that drain to the park.

In-field examinations and review of City of Bellevue storm water grid maps show there
are in fact five CDs that discharge WSDOT water to the park. City tests and tests done
by outside consultant Otak for the city show the water is polluted.

City testing shows contamination of the park.

Six of 10 tests between March 29, 2011 and Sept. 19, 2011 over MTCA (Model Toxic
Cleanup Levels) for heavy oil (lube oil) in the park or in WSDOT discharges draining to
the park, and three of nine tests over MTCA cleanup levels for diesel. Four of nine tests
for dissolved copper and two of nine tests for dissolved zinc exceed State Water Quality
Standards, and there are positive tests for PAHS (Polycyclic Aromatic Hydrocarbons)
and benzene (an additive in fuel) that appear over State Water Quality Standards and/or
Soil/Sediment Standards, including at the shoreline, with the city’s most popular swim
beach. None of these known highway runoff pollutants was detected in the park in tests
for 22 known highway pollutants in baseline testing of the park stream, Newcastle
Beach Park Creek, and the swim beach in spring and fall 2007 by city consultant The
Watershed Co.

The recent tests and Watershed baseline testing, in “2007 Adaptive Management Water
Quality and Sediment Analysis Year End Report” and “Otak on Park Water Quality: It’s
What’s Omitted that Counts” can be viewed at www.savenewcastlebeachpark.com.

City of Bellevue Utilities Director Nav Otal told the Bellevue City Council on Oct. 10,
2011 there were “no adverse impacts” to water quality in Newcastle Beach Park as a
result of the WSDOT upstream work, including no exceedances of water quality
standards or violations of the federal Clean Water Act, according to the findings of a
$50,000 “outside independent study” by Bellevue consultant Otak. She stated the state
Department of Ecology had “closed its investigation” for finding no problems with water
quality in the park or the WSDOT discharges to the park.

Director Otal and the Otak representative who appeared before the Council omitted the
Otak review of “flow data” in the park which showed WSDOT violated its own “Highway
Runoff Manual” in discharges to the park and the test data that shows the exceedances
for heavy oil, diesel, PAHs and benzene in the park or in discharges to park streams
and wetlands that have found their way all the way from I-405 to the Lake Washington
shoreline.

Director Otal did not tell the Council that Bellevue had not shared its flow or test findings
from DOE; a public information request to DOE shows DOE didn’t receive the study
findings until a week after Director Otal told the Council DOE had found no water quality
problems or problems with WSDOT discharges to the park.

Director Otal has not responded to questions why she omitted the findings of numerous
exceedances for petroleum products in the park in the wake of the WSDOT work
upstream. See “DOE Found WSDOT Compliant without seeing Test Results of Multiple
Exceedances for Heavy Oil, Diesel contamination” at
www.savenewcastlebeachpark.com.

At the same time, DOE found WSDOT compliant because of Bellevue’s apparent
finding of no problems, according to the public information request – without ever seeing
Bellevue’s data which shows the water quality exceedances, and heavy oil and diesel in
both surface water and ground water, above ground and below ground, stretching all
the way from the I-405 discharges to the 28-acre park’s 1,600-foot shoreline, which
includes the city’s most popular swim beach.

Deputy Mayor Conrad Lee asked Bellevue City Manager Steve Sarkozy for a report on
the omitted findings of the Otak study on Oct. 24, 2011; City Manager Sarkozy has to
report back to the Council on the findings omitted from the presentation of the Otak
study.

Also addressing the Council at the Oct. 10, 2011 meeting was Otak, which also omitted
any findings for heavy oil, diesel, PAHs or benzene findings in the park and in its written
narrative concerning the findings, “Otak on Water Quality: It’s What’s Omitted That
Counts” at www.savenewcastlebeachpark.com.

Otak was introduced to the Council as an “independent outside consultant”, however
documents from the City of Bellevue show Bellevue Utilities told Otak what to review,
what not to review, what tests to conduct, what tests not to conduct, where to conduct
tests and where not to conduct them, and, most concerning, disallowed the use of the
2007 baseline testing as a baseline, as it was intended to be used – insisting Otak use
baseline testing as part of a “composite” or “snap shot” composite of tests “over time”,
with no “starting point”. Otak was not an “outside independent consultant” but merely an
“outside consultant” required, under contract, to pursue only the data objectives outlined
by Bellevue Utilities.

Also addressing the Council concerning the findings was Rick Logwood, of the city’s
Transportation Department, whose salary and benefits is funded at least in part by
WSDOT under a “transportation coordinator” position at the city; Mr. Logwood did not
disclose this fact to the Council or public at the meeting. The purpose of the
“transportation coordinator” position funded by WSDOT is to facilitate the construction of
WSDOT projects in the city.

In addition to omitting the findings of the tests for heavy oil, diesel, PAHs and benzene
in the park to the Council and the public, the Oct. 10, 2011 presentation omitted the
Otak findings of the flow data that showed WSDOT did not adhere to its own “Highway
Runoff Manual” to guard against negative impacts downstream in the park; see “Otak
Review of Newcastle Beach Flow Data, July 22, 2011”, at the Document Library at
www.savenewcastlebeachpark.com. The report found WSDOT used the wrong
“modeling” to predict downstream impacts and failed to do a hydroperiod analysis for
discharges to streams and wetlands.
WSDOT did not admit its discharges to the park in its “Final Hydraulic Report” (“FHR”),
but only in response to an inquiry by the Department of Ecology review following a
complaint by this website. WSDOT has since admitted in multiple versions of its
“Addendum 1” to the “FHR” it is discharging new water in two cross drains (“CDs”): CD
9.69 and 9.75, although field observation and City of Bellevue storm water grid maps
show WSDOT discharging to the park in two additional CDs: CD 9.55 and 9.60. It has
admitted not providing “Minimum Requirement 5 (“MR 5”) Runoff Treatment” and
“Minimum Requirement 6 (“MR 6”) Flow Control” to its discharges, but does not admit to
failing to provide “Minimum Requirement 7 (“MR 7”) Protection of Wetlands”, all of which
were “triggered” by its upstream work.

Bellevue Potentially Liable Under NPDES Permit

The appearance is Bellevue is not admitting to the “petroleum” pollution of the park
because it can be directly related to the I-405 work, which failed to provide required
“minimum requirements” committed to in permitting. Under its NPDES permit, Bellevue
is liable for the pollution it allows into its system.

The city was obligated to protect the park from uses inconsistent with “public outdoor
recreation” under what is known as “Section 6(f)” protection. It was obligated as a result
of a covenant it agreed to with the acceptance of federal Land and Water Grand
Conservation Fund Act money in the 1970s to preserve the park for “public outdoor
recreation” uses “in perpetuity”. Bellevue allowed WSDOT to use the park for its new
discharges without a required vote of the Bellevue City Council for any use not having to
do with public outdoor recreation, and written agreement of the state and interested
federal agencies for such a use – a requirement to avoid what is known as “conversion”
of a “LWCA” property to a use different than that for which it was supposed to be
preserved.

The park is also protected under what is known as “Section 4(f)” of the Federal Highway
Administration Act of 1966, which requires express federal approval, in the form of a
“Section 4(f) Evaluation”, to use any significant public property for a “transportation
facility”, which requires WSDOT to avoid use of a “significant public property” unless
there is “no feasible and prudent alternative to the use of such land”. WSDOT is
required to “demonstrate that there are unique problems or unusual factors involved
with the alternatives that avoid the use of 4(f) land, such as findings that these
alternatives result in costs, environmental impacts or community disruption of
extraordinary magnitudes”. See “WSDOT: Snub of Feds with Ignoring Permit
Commitments for ESL, Unauthorized Use of 4(f), 6(f) Protected Park, Ongoing
Violations of Clean Water Act and Corps Wetland Protection” at
www.savenewcastlebeachpark.com.

In addition to these requirements, the City of Bellevue is required to adhere to its
“National Pollution Discharge Elimination System” (“NPDES” permit) for municipalities
(“MS-4s”) for discharge storm water to “waters of the state”. Compliance with an
NPDES permit Bellevue’s NPDES permit “assumes” compliance with state anti-pollution
laws and the federal Clean Water Act.

Bellevue is allowed to “rely” on another “entity” such as WSDOT to satisfy the
requirements of its NPDES permit, but in the end it is responsible for compliance with
the terms of its permit; it may rely on another entity to satisfy one or more of the
requirements of its permit, however under Section S3 B, Responsibility of Permittees:
“Permittees that are relying on another entity to satisfy one or more of their permit
obligations remain responsible for permit compliance if the other entity fails to
implement permit conditions.” Section S4, Compliance with Standard, and in
accordance RCW 90.48.520, the “discharge of toxicants to waters of the State of
Washington which would violate any water quality standard, including toxicant
standards, sediment criteria and dilution zone criteria is prohibited.” The permit does not
allow any discharge which would be a violation of the Washington State Surface Water
Quality Standards (Chapter 173-200 WAC), Sediment Management Standards (Chapter
173-204 WAC) or human health based criteria in the national Toxics Rule (Federal
Register, Vol. 57, No. 246, Dec. 22, 1992).”

Bellevue storm water from east of I-405 was already draining to the park in the pre-
project condition in WSDOT CDs 9.55, 9.60, 9.69, 9.77 and 9.88; WSDOT added “new”
“Onsite” PGIS (“pollution generating impervious surface” runoff) to the discharges and
existing PGIS and new ground water as a result of new wall drains, under drains and
footing drains installed as a result of the work and tied into the lengthened and sleeved
CDs which are not a part of the highway prism as compared to having inlets and outlets
in “grass ditches” that had no “highway exposure”, according to the WSDOT “Final
Hydraulic Report” (“FHR”) for the work. This “co-mingled” Bellevue’s “Offisite” water with
the new WSDOT “Onsite water, making both the city and WSDOT an “operator” of the
WSDOT CDs.

“Minimum Requirements” of both Bellevue’s NPDES permit and WSDOT’s NPDES
permit and WSDOT’s “HRM” were “triggered” by the modifications/changes to the CDs
and new PGIS; WSDOT is required to treat for the combined “total” of its water if “new”
PGIS is not kept separate from “existing” PGIS and unmitigated “Offsite” water,
requiring that “all” of the water in the “co-mingled” CDs discharging both Bellevue and
WSDOT water to the park be mitigated with “minimum requirements” for “Runoff
Treatment” (“Minimum Requirement 5 in the “HRM”, “MR 6” in the Bellevue Storm and
Surface Water Utility Code); Flow Control (“Minimum Requirement 5 in the “HRM”, “MR
7” in the Bellevue Storm and Surface Water Utility Code) and Protection of Wetlands
(“Minimum Requirement 7 in the “HRM”, “MR 8” in the Bellevue Storm and Surface
Water Utility Code).

Bellevue was required to “coordinate” the discharges and minimum requirements for the
discharges under Section S5, Storm water Management Program for Cities, Towns and
Counties, for “MS4s” – which includes WSDOT, since it has its own NPDES permit –
which are “interconnected”. Bellevue’s NPDES permit states: “Coordination mechanism
shall clarify roles and responsibilities for the control of pollutants between physically
interconnected MS4s permittees covered by a municipal storm water permit”; the
coordination was required to “coordinate storm water management activities for shared
water bodies among permittees to avoid conflicting plans, policies and regulations.”

Public Information requests to Bellevue and WSDOT show there was no “coordination”
between the two MS4s for the regulation of the “co-mingled” water that resulted, which
“triggered” the “minimum requirements” of both Bellevue’s WSDOT’s NPDES permits
and WSDOT’s “HRM”, which it had agreed to follow for the project.

The application of the “minimum requirements” is required under Section S5.C.4 of
Bellevue’s permit, and Bellevue is required to have a permitting process with plan
review, inspection and enforcement “for both private and public projects” to all sites that
disturb a land area of one acre of more. The WSDOT project disturbed 22 acres and
cleared 4 acres of mapped steep slope, according to permitting documents that can be
viewed at the Document Library at www.savenewcastlebeachpark.com. It
modified/changed CDs discharging to five Bellevue streams (Lakehurst, 08.LW-9.75,
08.LW-9.8 (which becomes with its tributary, 08.LW-9.75, what is known as the
“Newcastle Beach Park Creek), 08.CC-9.9 and Coal Creek and eliminated parts of
wetlands, including all of Wetland 9.8R which drained to Newcastle Beach Park in the
pre-project condition, and did in-water work in Coal Creek, re-channeled the discharge
of Stream 08.LW-9.75 and performed a “basin transfer” of water tributary to CD 9.88
which discharges forty feet upstream from Stream 08.LW-9.8 to stream 08.CC-9.9,
which conveys Stream 08.CC-9.9 to Wetland 10.0L and Coal Creek. Yet WSDOT
obtained no City of Bellevue Critical Area Use permits or a Bellevue Clear and Grade
permit; there is no Washington Department of Fish and Wildlife hydraulic permit for the
work, including in and to Coal Creek, a fish bearing stream, even though WSDOT
replaced a detention tank draining to Coal Creek with a new detention pond with no
“HPA” (“hydraulic project approval”) for Coal Creek.
WSDOT does not admit all of its discharges in its many versions of the “Addendum 1” to
the “FHR”, which addresses “deviations” on the job when the “FHR”, signed and
stamped in 2009, was supposed to be the final engineering accounting of all changes in
the as-built condition, and does not admit its discharges to the park are to streams and
wetlands. See “Modeling Still a Fatal Flaw in WSDOT ‘Addendum’; Basin Transfer to
Coal Creek bigger than Reported; Still Nothing to Show WSDOT Discharged to Park in
Pre-project Condition” at www.savenewcastlebeachpark.com.

It asserts the “basin transfer” from the park “TDA” (“threshold discharge area”) in the
city’s mapped “Lakehurst Basin” to the Coal Creek TDA in the city’s Coal Creek Basin
“reduces” overall discharges to the park, thus cancelling out the “triggers” for “minimum
requirements” of its and Bellevue’s NPDES permits and its “HRM”. However, the
analysis relies on “peak” flow modeling when “continuous simulation” modeling is
required by the “HRM”, and failed to downstream impacts to wetlands with failing to
conduct a hydroperiod analysis as required for discharges to wetlands.

Bellevue was required, both in its “acceptance” of the WSDOT discharges into its
“system”, defined as Bellevue streams, wetlands, piped conveyances, ditches, channel
and all other elements of the city’s drainage system, and as “co-operator” of the
WSDOT CDs with its water “co-mingled” with WSDOT water in the CDs, to “take all
reasonable steps to minimize or prevent any discharge in violation of this Permit which
has a reasonable likelihood of adversely affecting human health or the environment.”

Bellevue required no city permits for the WSDOT work, no “coordination” as required
between the two MS4s; it also required no “permit connection” from WSDOT when there
is nothing to demonstrate WSDOT discharged, as it claims it did, to the park in the pre-
project condition, and evidence exists to the contrary, to show it did not.

City of Bellevue Directors of Transportation, Parks, Utilities and Permit Services who
addressed the Bellevue City Council on April 4, 2011 on the issue stated Bellevue
permits were not required for WSDOT work in the WSDOT right of way, but the next
day, on April 5, 2011 – documents obtained from the City of Bellevue show WSDOT
applied for, and Bellevue processed, a WSDOT Critical Areas Use permit for WSDOT’s
current SR 520 work and earlier, in February, 2011, WSDOT applied for, and Bellevue
processed, the same permits for WSDOT’s upcoming Bellevue to Lynnwood Project.
WSDOT is not required to obtain “building permits” for construction of its highways, but
is required under Bellevue Code and state law regulated by the Growth Manage Act and
Shoreline Management Act to apply for local permits where necessary. For more
information on missing permits, see “City Directors Wrong on Facts Concerning
WSDOT Impacts to Park” and “Open Letter to City of Bellevue” at
www.savenewcastlebeachpark.com.

The same directors claimed there were no water increases to the park beyond “three to
four percent”, which the Otak report showed did not factor the new ground water
discharged to the park as a result of the 112th Ave. S.E. to I-90 work; in addition,
WSDOT relied on “peak” modeling to arrive at its numbers instead of the methods for
modeling required by the WSDOT “HRM” for projects in Western Washington. The
same directors stated there were no “adverse impacts” to water quality at the time of the
April 4, 2011 meeting when the city already had knowledge from its March 29, 2011
tests, made available to city staff by the time of the meeting, the presence of heavy oil in
the park stream over “MTCA” cleanup levels, together with a full highway runoff profile,
including diesel, not found in the park in the 2007 baseline testing.

Bellevue was required under its NPDES permit, Section S4, Compliance with
Standards, to notify DOE “in writing within j30 days of becoming aware on credible site-
specific information that a discharge from the municipal separate storm sewer owned
and operated by the Permittee is causing or contributing to a known or likely violation of
Water Quality Standards in the receiving water”. A public information request to DOE
shows Bellevue reported no violations or exceedances to DOE, as required.

Perceived Double Standard with Current Litigation

The WSDOT discharges to the park appear to be the result of litigation against Bellevue
over storm water issues by the Newport Shores neighborhood, and the resident who
lives at the mouth of Coal Creek.

During the 2004 Settlement negotiations, Bellevue wrote to WSDOT before agreeing to
a settlement clause that required it to participate in efforts to get WSDOT to improve
storm water detention and sediment problems at the I-405 Coal Creek Parkway
Interchange. A June 9. 2004 email from current Assistant City Manager Brad Miyake
discusses the WSDOT response to a city letter: “WSDOT had 3 concerns with working
with us: 1) the Coal Creek lawsuit. WSDOT does not want to assume liability for
ongoing problems prior to their involvement. 2) Community issues. WSDOIT is aware
there is intense citizen interest in public works projects within the Coal Creek area. They
would like some assurance that Bellevue and King County will be strong supporters of
any joint project. 3) Timing. Given WSDOT’s schedule, agreement would have to be in
place by October, 2004.”

The result was a clause of the Aug. 9, “2004 Settlement” that reads: “WSDOT
Cooperation”: “The parties shall work cooperatively and in good faith to have the
Washington Department of Transportation (“WSDOT”) allocate monies to improve storm
water detention and/or sediment capacity at the I-405/Coal Creek Parkway exchange in
conjunction with WSDOT projects which may impact Coal Creek.” The Miyake email
can be viewed under “Start of Bellevue-WSDOT Newcastle Beach Park Storm water
Initiative” at the Document Library at www.savenewcastlebeachpark.com.

Newport Shores and the resident who lives at the creek mouth sued in 2003, claiming
the city was “mismanaging storm water and silt, and discharging sediment into Coal
Creek and Lake Washington”, according to a Seattle Times article and court documents
which can be viewed at “Coal Creek Issues and Media Coverage” at the Document
Library at www.savenewcastlebeachpark.com.

The neighborhood and resident sued in 2009 alleging the city had failed to increase
sediment capture volume at or near the existing I-405 city detention pond and other
issues, including the city failing to cooperate with the resident’s attempts to obtain
permits for various improvements, including a “salmon habitat enhanced project”. The
city counterclaimed the resident had violated code and land use violations, including
constructing a “salmon hatchery” instead of a “salmon enhancement project” with a
permit for enhancing “salmon habitat” and prevented the resident from occupying a new
home on his property, which the resident claimed was retaliatory.

Bellevue staff emails show WSDOT and the city were developing what would become
known as the city-WSDOT “Newcastle Beach Park Storm water Initiative” even before
the 2004 Settlement Agreement was signed in June, 2004; see “Bellevue Staff Emails”
at www.savenewcastlebeachpark.com. The city and WSDOT identified one of the
options for storm water facilities for the Renton to Bellevue Project between 112th Ave.
S.E. and I-90 continuing the “conventional” method of discharging at the I-405 “sag”
point of Coal Creek, which would have required expansion of the existing detention
pond and was described as costing up to $19 million in WSDOT’s “Newcastle Beach
Park Conceptual Wetland, Stream and Drainage Plan”, which can be seen at the
Document Library at www.savenewcastlebeachpark.com. The other option identified
would avoid Coal Creek and its storm water issues with “diversion” of flows from Coal
Creek to the park, saving money with “direct discharge” to the park stream through CDs
9.75 and/or 9.88 to unnamed Streams 08.LW-9.75 and 08.LW-9.8 which converges to
become what is known as the Newcastle Beach Park Creek. The “Initiative” would
require City of Bellevue Code “exceptions” for “MR 4” Site Drainage, which requires
drainage to the tributary location and flow control. This option was described as costing
WSDOT only $4 million, with the attractive bonus to the city of taking some of the city
flows that otherwise would flow to the Coal Creek detention pond. WSDOT promised
the increased water would create a “fish friendly habitat” and that, in exchange for the
use of the park, provide other park improvements. City staff emails at the time state:
“Existing runoff that was tributary to Coal Creek would be diverted from the stream to
the new bypass pipeline. This will reduce flows through Newport Shores.” Also: “City of
Bellevue can participate in the pipeline provided the COB flows receive water quality
treatment prior to discharge to the new bypass pipeline. And: “ . . . Supporting this
option could be viewed as the city watching out for flood prone residents in NS (PR
bennies) . . . “ In answer to a question from one staff member, another staff member
wrote: “Flows are being diverted from Coal Creek and that is a good thing.”

WSDOT pursued, and the city supported, exceptions to Bellevue Code. Documents
submitted to the Bellevue Hearing Examiner by WSDOT and the city show the Hearing
Examiner was told only of the “benefits” of the exceptions, and not of the underlying
cause for the diversion: the Coal Creek litigation.

The exceptions were granted, qualified by the Bellevue Hearing Examiner on mitigation
promised in the “Conceptual” Report being provided, and on a signed agreement
between the city and WSDOT, accepted by a vote of the Bellevue City Council. See
Bellevue Hearing Examiner Decision at the Document Library at
www.savenewcastlebeachpark.com.

The “Initiative” agreements were not available for the 2007-2009 work, however. No
agreement was signed or voted on, nor the conditioned mitigation provided for the work,
which was originally part of the Renton to Bellevue Project but was removed from that
project and “bundled” with the South Bellevue Widening Project, which was “shovel
ready” at the time. The “Initiative” was announced as an option for the future planned
implementation of the remaining elements of the Renton to Bellevue Project.

However, new WSDOT PGIS runoff and runoff from existing WSDOT PGIS and
WSDOT ground water, all features of the WSDOT water to be discharged to the park
with the “Initiative”, were discharged to the park as a result of the 2007 to 2009 work, as
the various versions of the WSDOT Addendum admit.

There was no required federal “Section 4(f) evaluation” approval for the use, nor the
requirements of “Section 6(f)” protection, for the use of the park for the new WSDOT
drainage, now admitted to, which may be “why” WSDOT omitted discharging to the park
in its “FHR” and may be why WSDOT continues to not admit the full extent of its
discharges in its multiple “Addendum 1” versions, and also why it insists it drained to the
park in the pre-project condition, when it offers no evidence to demonstrate this. See
“Open Letter to Bellevue City Council” and “Modeling Still a Fatal Flaw in WSDOT
‘Addendum’, Basin Transfer to Coal Creek Bigger than Reported; Still Nothing to Show
WSDOT Discharged to Park in Pre-Project Condition”, “WSDOT Violations of Highway
Runoff Manual a Long List”, “DOE Fails Technical Argument in Not Enforcing Against
WSDOT” at www.savenewcastlebeachpark.com.

WSDOT stated in press releases it hoped to implement remaining portions of the
Renton to Bellevue Project with funds from the failed “RTID” Initiative submitted to
voters in fall, 2007.

This gives the appearance is WSDOT “jumped the gun” and, not wanting to add, with
Bellevue, to the “sediment load” in Coal Creek, expecting to mitigate for the work with
the follow-up Renton to Bellevue elements that would be paid for by the RTID initiative.

This may be why WSDOT has under-reported the full extent of its discharges to the
park in the four CDs actively discharging to the park in the as-built condition (CDs 9.55,
9.60, 9.69, 9.75; 9.99 is “diverted” to the Coal Creek Basin in the as-built condition), and
has under-reported the volume of water discharged to the CDs as well, failing to
describe the new “ground water” collected and conveyed to the park and omits the fact
it discharges to the park’s streams and wetlands, which “trigger” minimum requirements
that were not provided.

WSDOT appears, with Bellevue, to have been more intent on steering clear of the storm
water litigation issues and observing the requirements of the 2004 Settlement than
observing permit requirements, and the requirements of both Bellevue’s and WSDOT’s
NPDES permits and WSDOT’s “HRM” with storm water discharges arising from the
2007 to 2009 work.

For all its trouble, the city didn’t avoid a new claim in the ensuing 2009 litigation, brought
by the Newport Shores Yacht Club neighborhood and same resident which claims the
city violated the Settlement Agreement to remove more sediment from Coal Creek.

A news article stated Bellevue refused to let the resident at the mouth of Coal Creek
involved in the earlier action move into a new home he’d built at the mouth of the creek
because the resident had “disturbed 150 percent more land than permitted, or 10,000
square feet of property instead of the 4,000 allowed” and “failed to do mitigation
required for disturbing wetlands on the property and did not maintain a flood-control
berm required by the previous settlement” Another article states the federal judge in the
case found the city had managed storm water and sediment in the Coal Creek Basin
according to the terms of the earlier agreement and that the “private salmon habit built
by the homeowner . . . did not comply with the settlement terms.” The federal court
judge found the city had “taken steps” to put a required additional sedimentation
removal in place. See “Coal Creek Issues and Media Coverage” at the Document
Library at www.savenewcastlebeachpark.com.

Ironically, the “diversion” of new PGIS runoff from CD 9.88, which WSDOT claims in the
Addendum discharged to the park in the pre-project condition and now discharges to
Coal Creek is the as-built condition, the “removal” of water from the park TDA to the
Coal Creek TDA eliminating the “trigger” for the “minimum requirements” of its “HRM”,
results in some 9.38 acres of runoff in a “basin transfer” from the park TDA, in the city’s
Lakehurst Basin to the Coal Creek TDA in the city’s Coal Creek Basin – all without the
same “minimum requirements” required for the WSDOT discharges to the park and
outside of the “Coal Creek Stabilization Plan” goal of reducing sedimentation and
flooding and improving water quality in Coal Creek.

In not requiring city permits for the WSDOT work, including in Critical Areas, and
including a Clear and Grade Permit for the permanent removal of four acres of steep
slope and overall disturbance of 28 acres by the WSDOT work, and the absence of any
Washington Department of Fish and Wildlife hydraulic permits, all required under its
Storm and Surface Water Utility Code which incorporates the city’s NPDES permit,
which “assumes” compliance with the Clean Water Act, the city might be concerned with
exhibiting a “double standard” with requiring the resident at the mouth of Coal Creek to
adhere to Bellevue Code as it affects Critical Use areas and permit requirements. Also,
it may be concerned about being shown to not reduce sediment capture at Coal Creek
with the “diversion” of the WSDOT water WSDOT claims drained to the park in the pre-
project condition to Coal Creek in the as-built condition, amounting to a transfer to Coal
Creek of 9.38 acres of non-mitigated water from the city’s Lakehurst Basin, if WSDOT is
to be believed. See “Modeling Still a Fatal Flaw in WSDOT Addendum, Basin Transfer
to Coal Creek Bigger than Reported, and Still Nothing to Show WSDOT Discharged to
the Park in Pre-Project Condition for more information, at
www.savenewcastlebeachpark.com.

It could be the liability for Bellevue’s own violations of its NPDES permit, and potential
liability for WSDOT’s violations, both as “co-operator” of the WSDOT CDs and for
allowing non-mitigated WSDOT water into the Bellevue storm drainage system, that
explains Bellevue’s omission of the exceedances for heavy oil and diesel over MTCA
cleanup levels in the park, and the finding of heavy oil and diesel in all 11 city and Otak
water tests in the park between March 29, 2011 and Sept. 19, 2011, in reports to the
Bellevue City Council on Oct. 10, 2011, and in the Otak report on water quality, “City of
Bellevue Newcastle Beach Park – Analysis and Review of Water Quality Sample Data
Sept. 29, 2011”, which can be viewed at the Document Library
www.savenewcastlebeachpark.com. The exceedances are documented in the “data” in
the attached “tables”.
Modeling Still a Fatal Flaw in WSDOT ‘Addendum’, Basin Transfer to Coal Creek
Bigger than Reported; Still Nothing to Show WSDOT Discharged to Park in Pre-
project Condition

WSDOT’s latest version of its “Addendum 1” to the Final Hydraulic Report to address
“deviations” in its Final Hydraulic Report (“FHR”) on the 112th Ave. S.E. to I-90 segment
of its 2007-2009 South Bellevue Widening Project has the same fatal flaws of its earlier
versions, all of which seek to defend not providing minimum requirements for water
quality treatment and flow control discharges to Newcastle Beach Park.

The latest of four versions (August 2011, Revised October 2011) written to address a
state Department review of its stormwater facilities after a complaint from this website
WSDOT did not provide the stormwater facilities for discharges to the park it committed
to providing in the permitting process, uses the same faulty data that estimates only
“peak flows”, which is not supposed to be used for determining potential impacts on
streams and wetlands.

WSDOT and the state Department of Ecology require what is known as “continuous
simulation modeling” to project downstream impacts of a project in Western
Washington; the WSDOT Highway Runoff Manual (“HRM”) requires the use of
continuous simulation because it “captures the back to back affects of storm events that
are more common in Western Washington. These events are associated with high
volumes of flow from sequential winter storms rather than high peak flow from short
duration events . . .” ; “HRM” 2-7.

WSDOT admits erroneously establishing “threshold discharge areas” (“TDAs”) which
failed to apply “Minimum Requirement 5 Runoff Treatment” (“MR 5”) and “Minimum
Requirement 6 Flow Control (“MR 6”) for its new discharges to Newcastle Beach Park.

It failed to admit any discharges to the park in its Final Hydraulic Report (“FHR”) and in
the latest version of the Addendum repeats another fatal flaw: admitting discharges only
to two Cross Drains (“CDs”) to the park, CDs 9.69 and 9.75, instead of the total of its
CDs discharging to the park, which also include CDS 9.55 and 9.60.

None of the discharges is treated for “MR 5” or “MR 6” although the mitigation was
“triggered” by the I-405 expansion and improvements just 350 feet upstream from the
park. WSDOT repeats yet another fatal flaw of its earlier Addendums with failing to
address “Minimum Requirement 7 Protection of Wetlands” (“MR 7”), which required
mitigation for discharges to the park’s streams and wetlands which outlet through the
Newcastle Beach Park Creek in the park’s Lower Wetlands also known as Newcastle
“A” to Lake Washington. WSDOT committed at the I-405 Corridor level to provide
“enhanced treatment” -- a step above “basic treatment”, which removes more
contaminants – for all its discharges to Lake Washington.

The Addendum makes the same excuse of the earlier versions: that three CDs
discharged to the park in the pre-project condition, CDs 9.69, 9.75 and 9.88, and only
two discharge to it in the as-built condition, CDs 9.69 and 9.75. CD 9.88 is “diverted” in
the as-built condition away from the park “TDA”, which is in the mapped City of Bellevue
Lakehurst Basin, to the Coal Creek TDA, in the city’s Coal Creek Basin, to the north.

It erroneously applies the faulty data from the two CDs it admits to discharging to the
park and its use of the peak flow Rational Formula to suggest there was not “trigger”,
due to the diversion of water from one basin to the other and thus “less” water draining
to the park in the as-built condition, for “MR 6” flow control. This argument fails not only
for the faulty data, but due to the “HRM”s requirement that flow control mitigation take
place in the “particular” TDA -- not through the use of, or across, multiple TDAs. The
Addendum also misquotes the “HRM”. It states: “The WSDOT Highway Runoff Manual
specifies that Threshold Discharges Areas in which the peak runoff from the 100-year
return interval rainfall event increases less than 0.1 cfs are not subject to flow control
requirements.” In fact, the “HRM” asks, “For western Washington, through a
combination of effective impervious surfaces and converted pervious surfaces, does the
particular TDA cause a 0.1 cfs or more increase in the 100-year recurrence interval
flow?” The application is in the “particular” TDA, not accomplished with a “diversion” or
basin transfer from one TDA to another. Also, the “HRM” never uses the words “peak
runoff from the 100-year-storm interval”; it requires the 0.1 cfs threshold to be defined
by “recurrence interval flow”.

The Addendum needed to admit all its discharges to the park, and it needed to apply
the continuous simulation flow modeling to determine impacts to wetlands and streams
in Western Washington.

In addition, it needed to apply flow control to the “particular TDA”, not across multiple
TDAs. Even when using its faulty modeling, the “trigger” for flow control as described by
WSDOT is “triggered’ when considering flow control for the “particular” TDA, in this case
the park TDA, with the input from CD 9.88 removed to the Coal Creek TDA, where the
Addendum admits to having “diverted” it in the as-built condition.

The Addendum also misapplies but the “HRM” use of the concept of “net new” for
defending its failure to provide “MR 5” water quality treatment to the park discharges. It
states: “Because there is a net reduction of 0.58 acres PGIS (“pollution generating
impervious surface”) area, there is a reduction in calculated pollutant loading within the
Newcastle Beach Park drainage system.

The “HRM” defines the concept of “net-new impervious surface” does not fit with the
Addendum’s definition. The “HRM” definition: “The total area of new impervious surface
being added to the TDA minimum the total area of existing impervious surface being
removed from the TDA. The concept of ‘net new impervious surface applies only to
Minimum Requirement 6 (Flow Control) and is applied at the threshold discharge area
level.” Thus, there is not concept of “net new” for avoiding the trigger for “MR 5” runoff
treatment, and the “HRM” is specific: it must be applied “at the threshold discharge area
level”, not across multiple TDAs.

Clearly, the “theme” of the “HRM” is to thwart just such an effort as WSDOT mounts in
its Addendum, to get around the minimum requirements with “diverting” or “transferring”
to another basin discharge area. Clearly, the writers of the “HRM” foresaw the
temptation to abuse the “no net new” concept and thus have made its application
specific to the TDA level to prevent the temptation to “move water around” instead of
treating it for the minimum requirements designed to protect downstream uses.

Other mistakes in the latest version of the Addendum are serious.

WSDOT retreats from earlier versions that admitted the “diversion” or basin transfer of
9.38 acres of runoff to Coal Creek.

Its figures (not subject to error by the Rational Formula) in the “FHR” and Addendum
both showed CD 9.88 to be discharging 9.38 acres of WSDOT onsite new and existing
PGIS “co-mingled” with offsite unmitigated City of Bellevue water from its mapped
Onsite Basins N and P and the city Offsite Basins J and K. This total is then mixed with
new “ground water” from new wall d rains, under drains and footing drains all tied into
lengthened and sleeved cross drains with new inlets that are now a part of the highway
prism instead of their previous location in grass ditches with “no highway contact” to be
conveyed in CD 9.88 not to the park, as the Addendum claims CD 9.88 discharged to in
the pre-project condition, but to Coal Creek. It is “diverted’ through CD 9.96, which
conveys Stream 08.CC.9.9 to Wetland 10.0L and ultimate drainage to Coal Creek.

In the latest version of the Addendum, WSDOT asserts only its new PGIS and is
diverted to Coal Creek via the diversion of CD 9.88 to CD 9.96. It claims only “Onsite N”
is diverted, when in earlier additions it admitted “both” the Onsite and Offsite
contributions to CD 9.88 of Onsite N and Offsite J and K were diverted to Coal Creek.
The “exhibits” attached to the latest version of the Addendum make the claim as well –
implying Offsite Basins J and K somehow manage to flow uphill away from CD 9.96 and
CD 9.88 to CD 9.75, where it accesses the park TDA. The storm drain system is gravity
driven, so this is not possible.

There is also the suggestion with a “dotted line” on an Addendum map that the “Offsite J
and K” City of Bellevue water somehow crosses CD 9.88 from east to west when the
“Onsite N” water that has been diverted to the north, to CD 9.96, doesn’t.

This is not possible, given the “Onsite N” WSDOT contribution and “Offsite J and K” City
of Bellevue contribution are “mixed” before they cross the highway prism; if CD 9.88 is
“diverted” in any form, it necessarily includes both the Onsite and Offsite contributions
that are “co-mingled” upstream of the highway prism and the new groundwater inputs
from the wall drains, under drains and footing drains tied into the system as a result of
the recent work.

An in-field examination of CD 9.88 at its outlet east of I-405 where the Addendum
suggests the Offsite City of Bellevue water from J and K still drain shows “no”
substantial water draining from the CD in the aftermath of a rain event on Nov. 16.
2011.

Meanwhile, an in-field examination of the outlet for CD 9.96 shows significant, flooding
drainage from what WSDOT described pre-project as an “intermittent stream”. See I-
405 Renton to Bellevue Project Fish and aquatic Resources Discipline Report, Revised
Oct. 2008, which WSDOT used for environmental clearance for its 112th Ave. S.E. to I-
90 work.

It is clear all of the inputs to CD 9.88, Onsite N and City of Bellevue J and K, have been
transferred to CD 9.96 in the as-built condition.

Instead of the “1.27 acres” the latest version of the Addendum claims is diverted away
from the park to the Coal Creek TDA , the true amount that can be derived from the
“FHR” and earlier Addendum versions is 9.38 acres WSDOT and City of Bellevue “co-
mingled” water, with an unknown amount of ground water. With the 1.84 acres of
WSDOT new PGIS and existing PGIS tributary to CD 9.96 with City of Bellevue offsite
water, the overall input to CD 9.96 in the as-built condition is 11.22 acres. This
compares to 1.42 acres in the pre-project condition. All of this water “misses” the water
quality and flow control facilities constructed for the project located south of the
southbound Coal Creek Parkway onramp to I-405. The water diverted to CD 9.96 and
tributary to CD 9.96 passes south and west of the facilities and mixes, without receiving
minimum requirement treatment, with Coal Creek.

A “basin transfer” that involves an increase of water must be confirmed by the City of
Bellevue City Council, according to the Bellevue Storm and Surface Water Code. Coal
Creek is subject to the Coal Creek Stabilization Plan, which is a basin planning effort to
prevent increased sedimentation and impacts to water quality.

The City of Bellevue hired outside consultant Otak to review flow inputs to the park and
found WSDOT had erred in utilizing the “peak” method for flow modeling in addition to
failing to account for the new inputs of ground water; also, it failed to conduct required
hydroperiod studies of wetlands.

WSDOT apparently saw a copy of this report, which can be viewed at the Document
Library under “Review of Newcastle Beach Flow Data, July 22, 2011” because one of
the additions to the latest version of the Addendum is the inclusion of “Table 3.2 –
Newcastle Beach Park MGSFlood Model --- Contributing Drainage Areas” and “Table
3.3 Newcastle Beach Park MGS Flood Model – Peak Flow Summary”.

The Addendum states the MGSFlood model was to “document pre-project and post-
project peak flows to the City of Bellevue culvert under the Newcastle Beach Park
entrance road.” It states: “Table 3-2 summarizes the pre-and post-project contributing
drainage areas and Table 3-3 summarizes the model results.” It claims “Peak flows are
reduced in the as-built condition for all return intervals. No modification is required of the
2009 FHR assessment that downstream conveyance capacity is not limited.”

There are multiple fatal flaws with this “use” of MGS Flood Modeling.

The inputs are the incorrect inputs from its peak flow modeling and although the MGS
Flood Modeling has a ground water component and ground water discharge to the park
was increased as a result of the 112th Ave. S.E. to I-90 work, WSDOT does not utilize
the ground water component of the program. This results in an “increase” devoid, at the
very least, of the ground water that had to be considered.

In order to apply “MR 6” flow control to new and replaced PGIS as required – the two
together known as “effective PGIS” – WSDOT had to “separate” or “bypass” mitigated
water from unmitigated water. It is allowed to do this. However, in its 112th Ave. S.E. to
I-90 work WSDOT “co-mingled” its onsite new PGIS and existing unmitigated PGIS with
unmitigated offsite City of Bellevue water, mixing the whole with new ground water,
requiring the “total” be treated if not bypass option is chosen. This is a requirement of
the “HRM” and appears in a “technical memorandum” for I-405 corridor work where
onsite and offsite flows are often mixed.

The Addendum tables cannot be applied to the minimum requirements WSDOT was
required to apply to “MR 5” and “MR 6” for the total combined new flow to the park due
to missing inputs.

In addition, determining the capacity of the culvert with respect to new flows is not only
irrelevant, but faulty in other ways.

The Addendum admits discharges to CDs 9.69 and 9.75 to the park, but only CD 9.75
discharges to the water that passes under the park entrance road in the culvert. CD
9.69 discharges to a part of the park that is south of this park entrance road.

In addition, there are “outlets” to the CD 9.75 discharges that occur “before” the culvert
under the park entrance road present in the as-built condition that did not exist in the
pre-project condition. These include:

1) A 500-foot-long infiltration swale at the park’s north boundary constructed when the
park was developed to drain the park’s parking lot; a 185-foot, 12-inch pipe 90 feet short
of the shoreline that once collected only parking lot drainage has been connected to the
“overflow parking” catch basin system which receives flooding/overflow from the Upper
Wetlands. The “swale” was a passive drainage system located 90 feet west of the lake
in the pre-project condition. When flooding water from the Upper Wetlands collected in it
in the as-built condition, the City of Bellevue piped it through the additional 90 feet to the
park shoreline, where it now outfalls in an area of sandy beach at the park’s northwest
corner and is referred to by the city as the “open swale” drainage.

2) A failed and abandoned City of Bellevue stormwater pipe which outlets not far from
where the “open swale” outlets that a city camera video study shows is “invaded’
through its drops, cracks, breaks, etc. by water from the Upper Wetlands for discharge
in the as-built condition to the lake.

These two “new” outlets often drain more of the waters that are designed to flow to the
Newcastle Beach Park Creek than the creek; sometimes only the City of Bellevue pipe
drains water when the “swale” and creek outlet flow is compromised, as it frequently is,
by the lake raised to full pool elevation, becoming “higher” than the park discharges, or
against prevailing wind and waves out of the southwest which push up sand at the
shoreline in the winter months.
Additional outlets of water from the Upper Wetlands can be viewed throughout the park,
including at the swim beach, when “interflow” from the Upper Wetlands appears above
ground and perches along the park’s north boundary, meadow and recreation area at
the beach. This groundwater or “interflow” can be viewed in photos and videos in the
Document Library at www.savenewcastlebeachpark.com.

Still missing in the latest version of the Addendum is any mention by “name” of the
park’s streams and creeks; it is a requirement of the “HRM” that streams and wetlands
in the project area are identified in the “FHR” but WSDOT failed to mention the park at
all in the 1,500-page “FHR”, much less its streams and wetlands and continues the
same in its newest 115-page Addendum – electing to refer to any water in the park as
the “park’s drainage system”.

This underscores WSDOT’s – and the Addendum’s – awareness there is not
“argument” it can apply with its “diversion” or basin transfer and the concept of “no net
new”, also yet another erroneous concept espoused in the latest version of the
Addendum known as the use of an “equivalent area” to meet minimum requirements.
The “equivalent area” concept applies to substituting one area of treatment for another
when the two drain to the same water body, not to different water bodies; it cannot be
used with the “diversion” of water from the park TDA to the Coal Creek TDA given the
park drains to the Newcastle Beach Park Creek, a different water body than Coal Creek.

WSDOT openly admitted in its permitting documents, including its JARPA (“Joint
Aquatic Resource Permit Application” with its attached “Conceptual Stormwater
Concept” and Local

Agency Environmental Classification Summary and its “No Effects” Letter, all of which
can be seen in the Document Library at www.savenewcastlebeachpark.com, it intended
to use the park for its 112th Ave. S.E. to I-90 discharges.

Yet in the “FHR”, it states the discharges are to the Coal Creek Basin, and only in the
Addendum versions, required by DOE in answer to questions from this website, has
WSDOT admitted to discharging to CDs 9.69 and 9.75 to the park, which is short, as
noted above, of the total number of CDs it is discharging to the park in, which also
include CDs 9.55 and 9.60.

“Minimum Requirement 7 Protection of Wetlands” requires “MR 6” flow control for all
discharges to streams that lead to wetlands or wetlands that outlet to streams.

The CDs the Addendum admits to discharging to – CDs 9.69 and 9.75 – both meet this
requirement. CD 9.69 discharges to the park’s Lower Wetlands, also known as
Newcastle “A”, a forested shoreline Category I or II wetland, which outlets to Newcastle
Beach Park Creek and the lake. CD 9.75 which now includes the headwaters of Stream
08.LW-9.7 in the re-channeled, as-built condition compared to its former roadside
drainage route now outlets to Wetland 9.8L where it converges with a channel of
Stream 08.LW to drain down steep slope to Wetland 9.82L also known as the park’s
Upper Wetlands and Newcastle “B”, a Category II wetland.

The CD it “diverted” from – CD 9.88 – discharged 40 upstream from Stream 08.LW-9.8.

The CDs the Addendum continues to not acknowledge discharging to the park in, CDs
9.55 and 9.60, drain in an enclosed City of Bellevue storm drainage system to the park,
where the water is discharged in an undefined channel in the park’s Lower Wetlands,
the Newcastle “A” Category I or II wetlands that comprise that sole remaining forested
wetland on Lake Washington between I-90 and the Cedar River.

All of the Addendum arguments – in every version – are rendered “moot” by the fact the
WSDOT discharges to the park drain either directly or indirectly to streams that drain to
wetlands or wetlands that outlet to streams -- which required “MR 6” flow control, and
“MR 7”, protection of wetlands, including a continuous simulation model that included a
wetland hydroperiod study, which is absent from the WSDOT discharges to the park.
“MR 5” runoff treatment is triggered by the “new” PGIS draining to the park – with or
without the diversion – that meets the threshold for providing water quality treatment
which is based on the amount of new PGIS in the TDA.

The only concept in the “HRM” of “removal” of PGIS from consideration of minimum
requirements is through a concept known as “reversion”, which would have required a
“permanent” removal accomplished through infiltration of water to an area permanently
removed from development and replanted with trees.

The Addendum addresses the question of whether WSDOT drained to the park in the
pre-project condition.

The issue has been raised because of the flooding, erosion, dead trees and other
adverse impacts observed in the park in the wake of the WSDOT expansion and
improvements just 350 feet upstream, which can be viewed in photos and video at the
Document Library at www.savenewcastlebeachpark.com.

It is also raised in view of recent test results by the City of Bellevue and its consultant,
Otak, which found numerous exceedances of heavy oil and diesel in the park over
MTCA (“Model Toxic Control Act) cleanup levels, and dissolved copper (from brake
wear) and dissolved zinc (tire wear) over State Water Quality Standards in tests
conducted between March 29, 2011 and Sept. 19, 2011. These test results can be
viewed under “Tests” at the Document Library at www.savenewcastlebeachpark.com;
See also “Otak on Water Quality: its What’s Omitted that Counts” and “Park Degraded
by WSDOT Discharges Upstream”.

All tests for heavy oil, diesel, copper and zinc were “non-detected” in 2007 spring and
fall “first flush” baseline testing of the park stream and beach in anticipation of WSDOT
work upstream.

It’s not just the signs of flooding and inundation, dead and/or nonviable trees (70
“tagged” by this website in the Upper Wetlands alone, another 14 out of reach for
tagging), erosion and sedimentation, including at the shoreline, together with the new
“outlets” of water in the “open swale” and Bellevue stormwater pipe that suggest an
increase in water discharged to the park – it’s the baseline testing which included no
“fingerprint” or ‘DNA’ that suggested a highway runoff profile.

Were the Addendum assertion that “less” water is discharged to the park in the as-built
condition from I-405 with its 141,000 ADT (“Average Daily Traffic) just 350 feet
upstream true, it is likely at least one of the known highway runoff pollutants would have
been found and not come up “non-detected” in the “first flush” conditions in which the
park was tested by The Watershed Co. for the City of Bellevue in spring and fall in
2007.

If anything, it seems likely there would be “less” water, and less pollutant loading to the
park, as WSDOT asserts there is in the Addendum.

The appearance is the facts are as The Watershed Co. described to the city in its “2007
Adaptive Management Water Quality and Sediment Analysis Year End Report, Dec.,
2007”, which can be viewed at the Document Library at
www.savenewcastlebeachpark.com. Watershed stated in its report: “No hydrocarbons
were detected in the water samples. Presently, little of the water reaching this creek
originates as road runoff. In the future, this may change if runoff from an expanded I-
405 is diverted through this stream rather than being routed to Coal Creek as it present
is.”

Even if WSDOT were discharging to the park in the pre-project condition, the “grass
ditches” shown in the “FHR” and described as having “no highway contact” did not
collect and convey discharge in the same manner it does at present – through
lengthened and sleeved CDs with new outlets that are no longer located in grass
ditches beyond the shoulder but are part of the new highway prism, connected to new
wall drains, under drains and footing drains to receive both Onsite unmitigated WSDOT
water and Offsite unmitigated City of Bellevue water, the total mixed with new ground
water and all funneled by artificial means and efficiently to the park just 350 feet
downstream.

If, as Watershed states, the park creek received little if any water from I-405 in the pre-
project condition – which the many tests conducted on the park and discharges to the
park vicinity in 2007 compared to the testing done between March 29, 2011 and Sept.
19, 2011 suggest – then it’s not the small amount of “new” water the latest version of
the Addendum suggests is discharged to the park in CDs 9.69 and 9.75 and then
“reduced” from the pre-project condition as the Addendum also suggests – it is the
combined total of new and “existing” PGIS and ground water added to the City of
Bellevue water that is “new”.

This would mean not a “reduction” of 1.20 acres of runoff as the Addendum argument
advances, but “no” reduction, given the park didn’t “drain” CD 9.88 in the pre-project
condition, and an increase of 1.38 acres runoff for just the two CDs it admits to
discharging in to the park: CDs 9.69 and 9.75. But this understates the total, given it
leaves out CDs 9.55 and 9.60 which in field location and use of City of Bellevue
stormwater maps show drains to the park as well. The true “total” of new PGIS
discharged by WSDOT to the park from the 112th Ave. S.E. to I-90 work if in fact it
received no or little WSDOT discharge in the pre-project condition is more likely 9.69
acres.

This represents 3.83 total WSDOT Onsite acres for CDs 9.69 and 9.75 and 5.82 total
WSDOT Onsite acres for CDs 9.55 and 9.60.

If The Watershed Co. is right, and recent tests back up, the park has had no overall
“reduction” is WSDOT discharges as a result of the recent work, but a 1.20 acre
WSDOT reduction that leaves only the “9.69 acres” it is draining to the park in the as-
built condition versus the 9.69 acres “plus” the 1.20 acres the Addendum “reduced” in
the diversion of CD 9.88 to Coal Creek.

This would likely explain the flooding and inundation, erosion, tree death, new routes of
water, etc, together with the proven adverse impacts to water quality in the park in the
wake of the 112th Ave. S.E. to I-90 work that WSDOT failed to mitigate as required,
producing one Addendum after another years after the 2009 “FHR” was supposed to be
the final accounting of engineering decisions and changes on the project to avoid
responsibility for permit requirements and its environmental commitments documented
at www.savenewcastlebeachpark.com.

For more information on WSDOT’s failure to provide minimum requirements to its
discharges to the park and the results that have occurred downstream, see “DOE Fails
Technical Argument in Not Enforcing Against WSDOT” “DOE Found WSDOT Compliant
without seeing Test Results of Multiple Exceedances for Heavy Oil, Diesel
Contamination” and “WSDOT: Snub of Feds with Ignoring Permit Commitments for
ESL, Unauthorized Use of 4(f), 6(f) Protected Park, Ongoing Violations of Clean Water
Act and Corps Wetlands Protection” at www.savenewcastlebeachpark.com
New: Nov. 15, 2011

WSDOT: Snub of Feds with Ignoring Permit Commitments for ESL, Unauthorized
Use of 4(f), 6(f) Protected Park, Ongoing Violations of Clean Water Act and Corps
Wetlands Protection

WSDOT admitted to federal agencies in permitting that it would discharge new runoff
from its 2007-2009 $20 million 112th Ave. S.E. to I-90 segment of the South Bellevue
Widening Project to Newcastle Beach Park, but promised that it would “treat” the
stormwater to remove pollutants and provide flow control.

WSDOT provided neither water quality treatment nor flow control for the three cross
drains it admits to discharging PGIS (pollution generating impervious surface) runoff to
that drain to the park wetlands and streams and ultimately to the Newcastle Beach Park
Creek, which drains to Lake Washington, according to the 2009 Final Hydraulic Report
for the work, and as confirmed in multiple versions of the “Addendum 1” to the “FHR”.

WSDOT committed to the water quality treatment and flow control when seeking a
finding of “No Effects” on Endangered Species Act listed species from the Federal
Highway Administration (FHWA). It needed a “No Effects” determination for federal
environmental clearance for the project. The work had originally been in the still as yet
unfunded portions of the Renton to Bellevue Project but was removed from that project
and “bundled” with the Bellevue Nickel, after that known as the South Bellevue
Widening Project, under a “Documented Categorical Exemption” (“DCE”) clearance,
when the rest of the Renton to the Bellevue Project was subject to a “Finding of No
Significant Impact (“FONSI”); the “DCE” is a means to shortcut the environmental
review process which is supposed to be used for minor projects with no environmental
impacts. A finding of “No Effects” on endangered species is required for a “DCE”.

WSDOT admitted in the “No Effects” letter, dated June 7, 2006, to Steven Boch of the
Seattle office of the FHWA, it would be discharging to the park.

It did not admit this later in its 2009 Final Hydraulic Report (“FHR) which is supposed to
be the “final” as-built record for engineering decisions and changes on the job. It
admitted the discharges to the park would be to a stream in the park and other
unnamed streams, which was not admitted in the “FHR”.

WSDOT has admitted it did not provide the water quality treatment and flow control
required under its “Highway Runoff Manual” (“HRM”) which it told federal and state
permitting agencies it would go by after this website obtained a copy of the “FHR” and
made a complaint to the state Department of Ecology.

It has since compiled several versions of its “Addendum 1” to its “FHR” to document
“deviations” on the job that do not explain why it did not provide Minimum Requirement
5 (“MR 5”) Water Quality Treatment (“MR 5”) and Minimum Requirement 6 (“MR 6) Flow
Control to three cross drains it admits it uses to discharge new PGIS runoff to the park,
ignoring Minimum Requirement 7 (“MR 7”) Protection of Wetlands, which was also
“triggered” by the work since the admitted discharges are to wetlands and streams that
ultimately drain through Newcastle Beach Park Creek to Lake Washington.

The Addendum merely makes the argument why WSDOT should not be found
“noncompliant” for the failure to provide “MR 5”, “MR 6” and “MR 7”, all of which were
“triggered” by the work.

In all versions, the latest of three dated August, 2011 and revised Oct., 2011 – none of
which admit to there being any stream or wetland in the park , or why it deviated from
the commitments not only in its “No Effects” letter to the FHWA but in its JARPA (Joint
Aquatic Resource Application Permit) to state permitting agencies, WSDOT asserts a
“diversion” of new PGIS runoff from one of three cross drains discharging to the park to
a cross drain discharging to Coal Creek results in less PGIS runoff discharged to the
park in the as-built condition compared to the pre-project condition, and, therefore,
under the “HRM”, “MR 5” and “MR 6” are not “triggered” due to not meeting the “net new
impervious surface” runoff requirement of an increase of .1 cfs for a one-hundred year
storm.

The “HRM” does not allow the use of a basin transfer, or mitigation accomplished by
multiple “TDAs”, to avoid triggering “MR 5” or “MR 6”; see the “HRM”, Section 4-3.6.1:
“Application of the ‘net-new impervious surface concept only applies to Minimum
Requirement 6 at the TDA level.” Thus, the concept of “no net new” applies to “MR 6”
flow control only, but in a single “TDA”, not over/across multiple TDAs. In addition, the
HRM identifies only one method of “removing” new PGIS runoff to remove triggering the
increase of .1 cfs per hundred year storm that “triggers” flow control”: “When applying
the net-new impervious approach, the pavement permanently removed by the project
needs to be reverted to a pervious condition per the guidelines in Section 4-3.6.1.”
These guidelines do not allow for a “permanent” basin transfer. The “HRM” does allow
for an “equivalent” area to be treated for “MR 5” runoff treatment – but it must drain to
the same water body. The park discharges drain to Newcastle Beach Park Creek; the
Coal Creek “TDA” discharges drain to a different water body: Coal Creek.
The Addendum leaves out the “trigger” for “MR 5” and “MR 6” that is “triggered” by the
work’s discharge of PGIS to the park streams and wetlands, which in itself is a trigger
for “MR 7”, which requires “MR 5” and “MR 6” to “be applied for discharges to wetlands”,
and requires “In addition, a hydroperiod analysis must be performed and must show that
the discharge will not adversely affect the wetland hydroperiod.” Section 3-3.7.2 of the
“HRM” states: “Minimum Requirement 7 applies to “stormwater discharges to a wetland,
either directly or indirectly, through a conveyance system”. “MR 7” is in fact addressed
in the text for “MR 6”: “If the discharge is to a stream that leads to a wetland, or to a
wetland that has an outflow to a stream, both this requirement and Minimum
Requirement 7 apply.”

Thus, the Addendum in all versions neglects that “MR 5” and “MR 6” do not fall under
the “no net new” concept that is applicable only for “MR 6” and then only at the “TDA”
level and that arguments for avoiding providing both “MR 5” runoff treatment and “MR 6”
flow control for discharges to the park are in fact moot for being trumped by “MR 7”
protection of wetlands – which appears to be the reason why the Addendum (115
pages) does not mention, in any of its version, the existence of wetlands and streams or
of the Newcastle Beach Park Creek, referring only to the park “drainage system”.

The State Department of Ecology (“DOE”) has admitted it initially found WDOT
noncompliant in its discharges to the park but has since found WSDOT “compliant” due
to the “new information” in the Addendum. WSDOT paid DOE “liaisons” with their
positions funded to “streamline” WSDOT permitting for its projects, who are funded by
WSDOT at the current time and/or at the time of the 112th Ave. S.E. to I-90 permitting
and/or work were allowed to make the determination WSDOT is compliant with its
discharges to the park, according to information obtained in a public information
request. The liaisons advance the argument never made by WSDOT that “site
constraints and limited right of way” were the cause of the basin transfer and diversion
of water now being asserted by WSDOT in its Addendum to meet minimum
requirements but WSDOT never recorded this in its “FHR” nor sought any of the
remedies described in the “HRM” to relieve it of providing minimum requirements which
must be addressed in an “Engineering and Economic Feasibility” (EEF) assessment
and recorded in the “FHR”; such an “EEF” might have resulted in allowed deviations
known as an adjustment, variance, exemption or exception, although WSDOT would
still have been required to show, based on available data, the discharges that are not
mitigated would not cause adverse impacts downstream. This is known as the
“demonstrative” approach, versus the “presumptive approach” for compliance which is
“assumed” if WSDOT applies the “HRM” minimum requirements as required. The DOE
finding of compliance apparently based on the demonstrative fails, just as the
Addendum itself fails, both for not following the requirements of the “HRM” in order to
make the demonstrative approach (an “EEF” assessment), but also due to the
Addendum’s use of “models” to make its apparently demonstrative approach claim of no
adverse impacts to the park. Instead of obtaining data in the field, including test results
of its discharges to the park and measures in flow increases to the park wetlands and
streams, WSDOT relies on modeling for peak flows only; modeling of peak flows is not
sufficient to determine the potential impacts of the WDOT project on streams, according
which is not the private consultant Otak, hired by the City of Bellevue to review WSDOT
flow data, states in “Review of Newcastle Beach Park Flow Data” in a letter to Mike
Graves of the City of Bellevue Utilities Department. The review, which contains other
criticism of the WSDOT work, can be found at the Document Library at
www.savenewcastlebeachpark.com. The latest version of the WSDOT “Addendum 1”
can be found at the same location, as can the WSDOT “No Effects” letter to the FHWA.




WSDOT applies “MGSFlood” modeling in its Addendum (p. 6) to “Table 3.2 – Newcastle
Beach Park MGSFood Model – Contributing Drainage Areas” and to “Table 3.3
Newcastle Beach Park MGS Flood Model – Peak Flow Summary” to “document pre-
project and post-project peak flows to the City of Bellevue culvert under the Newcastle
Beach Park entrance Road.” The Addendum states: “Table 3.2 summaries the pre-and
post-project contributing drainage areas and Table 3.3 summarizes the model results.
The model documentation file is included in Appendix 4. Peak flows are reduced in the
as-built condition for all return intervals. No modification is required of the 2009 FHR
assessment that downstream conveyance capacity is not limited.”

A review of the documentation file shows the same fatal flaw WSDOT has included in all
of its efforts to justify not providing “MR 5” and “MR 6” – while ignoring “MR 7” – to the
work: failing to account for “effective” PGIS, which is both new and replaced PGIS, as
required by the “HRM”, and failing to account for the new ground water collected and
conveyed to the park discharges as a result of lengthening and sleeving cross drains
formerly not part of the highway prism, located in grass ditches with what the “FHR”
describes as “no highway exposure” (see Downstream Analysis), incorporating them as
a result of the 112th Ave. S.E. to I-90 work in the highway prism where they now are
tired into wall drains, under drains and the highway’s footing drains, from which they
receive not only “effective” PGIS but unmitigated existing PGIS and offsite City of
Bellevue water, the total mixed with the new WSDOT ground water for conveyance by
the cross drains to discharge, in the new configuration with water collection both above
ground and below ground, in the new efficient system, to the park.

The “HRM” requires “MR 5” and “MR 6” be applied to the “total” of the discharge, which
in this case would include unmitigated existing PGIS, the offsite City of Bellevue water
and the new ground water, which is “co-mingled” in the new system – if the “effective
PGIS” cannot be separated from the unmitigated water.

Since WSDOT “co-mingled” its “effective PGIS” with its unmitigated PGIS and offsite
City of Bellevue water and mixed the total with new ground water for its discharges, the
entire amount was subject to “MR 5” and “MR 6”, which, in any case, was always
required because the discharges are to streams and wetlands in the park, ultimately
discharging through the Newcastle Beach Park Creek, “triggering” runoff treatment and
flow control under “MR 7”.

The “MGSFlood” modeling for the WSDOT Addendum shows “nothing” under the input
for “ground water”, rendering the modeling, for the WSDOT work that was known to add
ground water, incomplete and otherwise irrelevant as a measure of downstream
impacts from increased flows to the park as a result of the 2007-2009 work.

Another fatal flaw is the Addendum’s continued refusal to acknowledge additional
“effective PGIS” discharges as a result of the work to more than the three CDs it
identifies. In addition to discharging to CDs 9.69 and 9.75, which WSDOT admits to in
the Addendum, and the diversion of “effective PGIS” in CD 9.88 to the Coal Creek
Basin, which otherwise discharges existing PGIS to the park, WSDOT discharges to the
park in CDs 9.55 and 9.60. These cross drains discharge to City of Bellevue storm
drains that outlet in an undefined channel in the park’s Lower Wetlands, also known as
Newcastle “A”.

The MGSFlood modeling” done by WSDOT for the Addendum, which records flows not
including ground water under the park entrance culvert, where the water, incidentally, is
known as the Newcastle Beach Park Creek, is also fatally flawed for the single location
of its incomplete flow monitoring.

Only two CDs – 9.75 and 9.88, with the latter carrying no new “effective PGIS”
according to the Addendum – discharge to water that flows to the culvert location that
conveys Newcastle Beach Park Creek under the park entrance road. The other CD
WSDOT admits in the Addendum is in the park, CD 9.69, drains south of this location
and thus would not impact the subject flows in the culvert.

Then, of the two CDs 9.75 and 9.88 that discharge water north of this location and thus
with the ability to enter the culvert and pass under the park entrance road as Newcastle
Beach Park Creek to what is known as the park’s Lower Wetlands or Newcastle “A” with
outlet to the lake, not “all” the water discharged by WSDOT to CDs 9.75 and 9.88
“reaches” the culvert.

The discharge to CD 9.75 includes Stream 08.LW-9.75 in the as-built condition, after
WSDOT re-channeled the stream so that its outlet and headwaters is inside a pipe, and
drains to Wetland 9.8L, where in the as-built condition it converges with a channel of
Stream 08.LW-9.8, which receives the WSDOT runoff from CD 9.88 (some of it diverted
due to Coal Creek due to the basin transfer described by WSDOT in its Addendum) and
drains in multiple rivulets, as Stream 08.LW-9.8 does, downhill west of the BNSF
Eastern Rail Corridor to Wetland 9.82L, otherwise known as the parks Upper Wetlands
or Newcastle “B”, where the two unnamed streams converge for the final time and
become known as the Newcastle Beach Park Creek before draining in the culvert under
the park entrance road to the Lower Wetlands, Newcastle “A”, and the lake. However –
two “other” outlets exist for the water to drain from the Upper Wetlands to the lake,
never accessing the culvert under the park entrance road in the wake of the 2007-2009
WSDOT work. In the pre-project condition, the only outlet was through the culvert under
the park entrance road. But the City of Bellevue “piped through” an infiltration swale that
in the pre-project condition received runoff from the park parking lot for infiltration
purposes only an additional 90 feet to the lake. It connected catch basins in the overflow
parking lot, which was being flooded by the Upper Wetlands after the WSDOT work, to
the main parking lot, where a 12-inch, 185-foot pipe carries previously only parking lot
water to infiltration swale, which is 500 feet in length along the park’s north boundary.
Now called the “open swale” – opened as a response to too much water collecting in the
swale in the wake of the WSDOT work upstream – the swale drains the Upper Wetlands
through the connected catch basin system and 185-foot, 12-inch pipe to the swale, now
opened the final 90 feet to the park shoreline. In addition, a city camera study shows a
12-inch city storm drain pipe not active for many years now is infiltrated in its failed
condition by water from the Upper Wetlands, to outlet to the lake north of the swale.
Water quality tests on both the swale and the City of Bellevue stormwater pipe show the
same known highway contaminants (oil and grease, copper, zinc) at high levels, just as
they are found in testing in the Upper Wetlands. The exceedances at the swale outlet
includes “diesel”, which demonstrates the exceedances are from the Upper Wetlands,
which receives the new runoff, and not from the park parking lot, since “diesel”, from
truck fuel, would not be found in the park parking lot.

The “MGSFlood Modeling” utilized by WSDOT for the latest version of its Addendum
therefore “misses” the new PGIS drained in streams to Wetland 9.8L and the Wetland
9.82L, also known as the park’s Upper Wetland and Newcastle “B”, which is drained to
the newly “open swale” and/or the city stormwater pipe and therefore would not record
“all” of the new PGIS drained to the park. In addition, recent City of Bellevue testing
shows heavy oil (lube oil), diesel, copper and zinc at the beach in water collected in a
well for ground water analysis; this is yet another “outlet” for the WSDOT PGIS
discharged to the park which does not drain to the culvert under the park entrance road
where the MSGFlood monitoring for new PGIS was done, all to advance an argument
with the over reaching fatal flaws of 1) ignoring the minimum requirement that subjects
new discharges to streams and wetlands to “MR 5” runoff treatment and “MR 6” flow
control, as required by “MR 7”, protection of wetlands; and 2) excluding ground water,
which is part of the “co-mingled” total of new water collected and conveyed to the park
as a result of the WSDOT work just 350 feet upstream which had the option to separate
(“bypass”) unmitigated water, but didn’t elected to do so and thus had to treat for the
combined total, not just “new PGIS”.

Even had WSDOT properly applied MSGFlood Modeling to determine the increase of
water, both increased PGIS and ground water to the park (which would have required
monitoring all five CDs discharging to the park) and even had it offered an “EEF” in the
Addendum and/or admitted all its discharges to the park, the “demonstrative” approach
the DOE liaisons actively seek to advance in the place of WSDOT advancing it in the
Addendum fails for the data that is available that shows 6 of 10 tests in the park or in
discharges to the park between March 29, 2011 and Sept. 19, 2011 over MTCA (Model
Toxic Control Act) cleanup levels for heavy oil; 3 of the 9 are over MTCA levels for
diesel. There are four exceedances in 9 tests for dissolved copper and two for dissolved
zinc over State Water Quality Standards. All of these known highway pollutants were
“non-detected” in the park in pre—project baseline testing by The Watershed Co. for the
City of Bellevue in expectation of I-405 expansion and improvements upstream. “TSS”
(total suspended solids), considered a reliable indicator for highway stormwater runoff
since it is an indicator of erosion and both heavy metals and “TPH” (total petroleum
hydrocarbons) attach to particles increased from 13 ug/L in the baseline testing done in
the spring and fall of 2007 to 120,000 ug/L in City of Bellevue testing done March 29,
2011. All of these test results, and the Watershed report, can be viewed at
www.savenewcastlebeachpark.com.

The City of Bellevue has refused to discuss, or allow its consultant, Otak, to discuss the
results for heavy oil, TPH and PAHs (Polycyclic Armomatic Hydrocarbons, from
petroleum combustion) found in the park over State Water Quality Standards and
omitted the findings from the written report by Otak to the city and in a report to the
Bellevue City Council on Oct. 10, 2011; the results, as well as WSDOT noncompliance
with its “HRM”, are discussed in “It’s What’s Omitted that Counts”, “DOE Found WSDOT
Compliant without seeing Test Results of Multiple Exceedances for Heavy Oil, Diesel”
and “DOE Fails Technical Argument in Not Enforcing Against WSDOT” at
www.savenewcastlebeachpark.com.
Bellevue is a “co-operator” of the WSDOT CDs that carry the “co-mingled” new WSDOT
onsite water blended with offsite City of Bellevue water, the total mixed with the new
ground water; its NPDES permit specifies it is “responsible” for any new discharges it
allows into its system. The park streams and wetlands are considered part of the
Bellevue system, as are the storm drains, including the storm drains that receive
WSDOT discharges from CDs 9.55 and 9.60, which entered the city’s piped system
before being discharged in the absence of defined channel in the park’s Lower
Wetlands also known as Newcastle “A”.

In addition to the adverse impacts found in the City of Bellevue testing and testing by
Otak for the city in discharges to the park and/or park vicinity that drain to the park, the
Addendum fails in all arguments for relying on an absence of any data to show WSDOT
discharged its water to the park in the pre-project condition. The Watershed Co.
reported in 2007 “very little” of the water in the park stream originated as highway
runoff, and the baseline tests shows “non-detected” not only for heavy oil, diesel, copper
and zinc but for other known, key highway runoff pollutants. Were WSDOT discharging
to the park in the pre-project condition, testing in advance of the WSDOT work on a
30,000 “ADT” (average daily trip) highway described by WSDOT as the most
“congested” in the state would have exhibited similar amounts of known highway runoff
contaminants. If the Addendum argument were true, there would be “less” detected. In
fact, heavy oil, diesel, copper and zinc and other known highway runoff pollutants, “non-
detected’ in the pre-project condition, are now not only found in the park – in all tests –
but found over MTCA cleanup levels in a majority of the tests for heavy oil and in three
of nine tests for diesel, or found over State Water Quality Standards.

This illustrates yet another fatal flaw in the WSDOT Addendum argument: the absence
of reliable documentation to show WSDOT discharged to the park in the pre-project
condition; this makes “all’ of the WSDOT discharges to the park “new”, not just the
discharges from the “effective PGIS” added as a result of the 2007-2009 work, which
would explain how testing for known highway runoff contaminants could go from “non-
detected” in extensive baseline testing over two seasons in first flush conditions and
then exceed levels and standards four years later with no other upstream work save the
WSDOT work done upstream.

The pre-project discharge, had WSDOT been discharging to the park, would also have
been untreated, just as the as-built discharges are, indicating the tests performed in the
park should not have differed significantly in the pre-project condition to the as-built
condition unless other significant factors were changed.

The WSDOT Addendum discusses errors in the “FHR” which incorrectly located the
park in the Coal Creek “TDA” and which incorrectly showed CD 9.69 not discharging to
the park according to the “general topography” that WSDOT states it relied on, but to
the park “TDA”. It is clear from these admissions WSDOT did not conduct a survey of
the flowpath from its discharges for one-quarter mile downstream as required by the
“HRM”; this resulted in failing to assess streams and wetlands in the park TDA and
provide the “hydroperiod analysis that must be performed” on wetlands, according to the
“HRM”, 3-3.7. WSDOT failed to ensure its discharges to wetlands “maintain the wetland
hydrologic conditions (particularly hydroperiod), hydrophytic vegetation and substrate
characteristics that are necessary to maintain existing wetland function and values”,
“HRM”, 3-3.7.2. Had WSDOT done this, it would “know” the amount of water directed to
the park TDA, including its wetlands, in order to account, with meaningful data, for the
amount of new ground water discharged to the park streams and wetlands and,
ultimately, to Newcastle Beach Park Creek.

As it is, it has the in-field stream observances by a consultant and the subsequent
modeling of the stream described in the WSDOT “Newcastle Beach Park Conceptual
Wetland, Stream and Drainage Plan”, to measure as-built flow against pre-project flow.
Both WSDOT and the City of Bellevue have refused requests to measure current in-
stream flow against this recorded flow and flow modeling done pre-project in 2004 and
2005.

Endangered Species Act ‘No Effect’ Commitments Ignored

To obtain its “No effects” letter finding from the FHWA, WSDOT conducted a “Biological
Assessment” that based the finding of “No effect” on Endangered List Species
specifically on the mitigation the 112th Ave. S.E. to I-90 work would provide to “ensure”
against any effect. This included 1) no in-water work; 2) no increase in pollutant loading
to receiving water bodies; 3) flows in receiving water bodies not be altered and
stormwater detained prior to discharge to the creeks; 4) no large trees cleared.

WSDOT ignored these commitments with “reneging” on all of them.

It identified needing to protect Bald Eagle, Chinook salmon, Chinook Salmon Critical
Habitat, Bull Trout, Bull Trout Critical Habitat, Puget Sound Steelhead (which appeared
about to be listed) and Essential Fish Habitat.

It claimed there would be no effect, or no adverse effect, on any of the above, including
any effect on the Pacific Salmon Fishery, due to the absence of conditions (no in-water
work, no large trees cleared) and mitigation (no increase in pollutant loading to receiving
water bodies and flow control in discharges to creeks).
It performed “in-water” work without Washington Department of Fish and Wildlife
hydraulic permits (“HPAs”) to remove a detention vault at Coal Creek, a fish-bearing
stream, and build a new detention pond and in the “basin transfer” of water from CD
9.88, which discharges 40 feet upstream from Stream 08.LW-9.8 to CD 9.96, which
conveys Stream 08.CC-9.9 to Wetland 10.0L, to Coal Creek south and west of the new
detention pond and water quality treatment structures provided for the new discharges
to Coal Creek.

Large trees were cleared in the second-growth mixed forest on mapped City of Bellevue
hazardous slope (4.4 acres), including Douglas fir, maple, madrona, cedar and other
meeting the City of Bellevue requirement of a “significant tree”, without a City of
Bellevue Critical Areas Use permit or a City of Bellevue Clear and Grade permit. A
recent in-field examination of the park Upper Wetlands found 70 trees, mostly red alder
or black cottonwood but also included maple, all “significant” by City of Bellevue
standards, dead or non-viable with an addition 14 trees seen but not tagged. Many
more trees have died in the Lower Wetlands and along the park shoreline, which
features, at both its northwest corner and southwest corner (in tall cottonwoods) winter
perching/roosting by Bald Eagle and spring/summer foraging; for a photograph of four
eagles in a single tree at the park’s northwest corner in January, 2011, and for
photographs of the dead trees in the Upper Wetlands and along the park’s shoreline,
including videos of the latter, please see “photos” and “videos” in the Document Library
at www.savenewcastlebeachpark.com.

WSDOT admits in the Addendum not providing “MR 5” water quality treatment and “MR
6” flow control to its discharges to the park, which ultimately drain to Newcastle Beach
Park Creek. The pollutant loading increases in the creek can be seen under “Tests” in
the Document Library and discussed in “Otak on Park Water Quality: It’s What’s
Omitted That Counts” and in other articles and library documents at
www.savenewcastlebeachpark.com; baseline testing shows these conditions did not
exist in the pre-project condition with no other work having occurred in the interim
upstream.

In its “No Effects” determination, WSDOT wrote:

“Existing freeway stormwater runoff is currently discharged into various water bodies in
the action area without treatment. Stormwater treatment for this project has been
designed to treat a catchment area that is greater than the new highway pavement
added and will result in no net change or a net decrease in average annual pollutant
loads in each basin within the action area. Ecology embankments will provide enhanced
water quality treatment. Treated stormwater will be discharged directly to Lake
Washington through existing outfalls at Lakehurst Creek, an un-named tributary to Lake
Washington, Newcastle Beach Park, Coal Creek and Mercer Slough. Water will be
detained for flow control prior to discharge to creeks in the action area and will not have
an adverse impact on creek flows. The flow control design is based on methods
described in the WSDOT HRM. Flow control is required such that the project area
discharge rates and durations for the various storm events match existing conditions. . .
. Flow peak and duration control will be used where discharge to Lake Washington is
through the Newcastle Beach Park and Coal Creek natural stream channels.”—Michelle
Steinmetz, Biology Program Manager for the WSDOT Urban Corridors Office

None of the WSDOT water discharged to the park as a result of the 112th Ave. S.E. to I-
90 work received the “treatment” described above, nor has flow detained, as promised;
the work was not based – as the deviations described in the Addendum and thus far
allowed by DOE – on the “HRM”. There is no flow control “based on methods described
in the HRM” and no effort made to ensure the “project area discharge rates and
durations for the various storm events match” pre-project conditions. In addition, there is
none of the above provided to CDs 9.96 and 10.00, the former carrying Stream 08.CC-
9.9, which discharge to Wetland 10.0L and ultimately to Coal Creek. Adverse impacts
from too much water have been observed in this area in addition to the park vicinity and
can be viewed in photos and video in the Document Library at
www.savenewcastlebeachpark.com.

Given the impacts to the Upper and Lower Wetlands in the park, trees at the park’s
shoreline and in the north boundary of the park where the longtime infiltration swale was
piped an additional 90 feet to the shoreline to relieve flooding in the wake of the
WSDOT work upstream, there has been a clearly observable impact to both trees in the
park and to “riparian vegetation”. Sections of the park loot trail in the Lower Wetland
have eroded, the Lower Wetlands has greatly expanded and trees lie along the
shoreline here they have dropped into the water at the eroding shoreline with root balls
still attached. Bellevue Parks has ‘cut up” and “removed” many of the fallen and dead
trees outside the park’s wetlands that do not include the shoreline.

Protection of Park Under Section 4(f) of the Department of Transportation Act of
1966, Section 6(f) of Land and Water Conservation Fund Ignored




Newcastle Beach Park, admitted by WSDOT to be significant public park, enjoyed
protection of its resources from being incorporated for use by transportation projects
unless there is a finding of “no feasible and prudent alternative” and “all possible
planning to minimize harm” have been documented and supported, according to the
FHWA Section 4(f) Policy Paper, March 1, 2005. The intent of the law and policy of
FHWA is to “avoid the use of significant public parks . . as part of a project unless there
is no feasible and prudent alternative to the use of such land”. In order to “demonstrate
that there are unique problems or unusual factors involved with the alternatives that
avoid the use of 4(f) land, such as findings that these alternatives result in costs,
environmental impacts or community disruption of extraordinary magnitudes” must be
addressed in a 4(f) evaluation. Incorporating the park into a highway’s storm drainage
facility is considered a “use” of a 4(f) protected property. To that end, WSDOT provided
a “Programmatic Section 4(f) Evaluation” for its future planned use of Newcastle Beach
Park to drain even more stormwater to the park with the as yet unfunded portions of I-
405; this future project, known as the Bellevue-WSDOT Newcastle Beach Park
Stormwater Initiative, grew out of litigation against the City of Bellevue for sedimentation
and water quality issues concerning Coal Creek, resulting in a 2004 Settlement
requirement that the city work with WSDOT in future projects that could impact Coal
Creek to reduce the problems in Coal Creek. A public information request with the City
of Bellevue shows Bellevue contacted WSDOT during the settlement negotiations over
this issue. The result was the city-WSDOT “Initiative”, which is outlined in the WSDOT
Newcastle Beach Park Conceptual Wetland, Stream and Drainage Report which can be
viewed in the Document Library at www.savenewcastlebeachpark.com. The ‘Initiative’
required WSDOT to obtain “exceptions” to Bellevue Code. The Bellevue Hearing
Examiner allowed exceptions to Bellevue Code, but conditioned them on meeting the
mitigation in the ‘Conceptual’ report, and the acceptance of a signed agreement
approved by the Bellevue City Council. There are pending documents for the ‘Initiative’,
but the City Council has yet to approve the plan and the ‘Initiative’, intended for
implementation with the remaining portions of the Renton to Bellevue Project, remains
unfunded and unscheduled by WSDOT.

WSDOT obtained a “Letter of Concurrence” from City of Bellevue staff signed April 3,
2007 that spoke to a future “memorandum of Agreement” and “Stormwater Use Permit”
that would allow WSDOT to discharge WSDOT runoff from the Coal Creek Basin, and
as far away as I-90, “co-mingled” with City of Bellevue offsite water from as far away as
Factoria, through the park, increasing the volume in the park stream by up to ten times.

The letter addressed not only the park’s 4(f) protection status, but its “6(f) protection
under the Land and Water Conservation Fund (“LWCF”). Bellevue used “LWCF” funds
administered locally by what was known as King County Forward Thrust, to both
purchase and develop the park under the covenanted agreement the use of the park –
in this case for the “sole purpose of public outdoor recreation” would not be “converted”
to any other use “in perpetuity”, according to the grant documents found in City of
Bellevue Archives. Bellevue and WSDOT corresponded between 2005 and 2007 with
the federal National Parks Service, which administers protection of 6(f) protected lands
through the state’s Recreation Preservation Office (“RCO”). Those communications,
obtained from Bellevue under a public information request, showed Bellevue and
WSDOT were informed by the “RCO” it could not grant to WSDOT any legal right to the
property or any permanent use of the park or for any use for which it could not end “at
will”; there was to be no use that interfered with the park’s purpose of public outdoor
recreation. These email exchanges can be seen under “Bellevue-WSDOT 6(f)
Communications” at the Document Library at www.savenewcatlebeachpark.com.
Nonetheless, the pending documents for the Bellevue-WSDOT ‘Initiative’, which also
can be seen at the Document Library, discuss an arrangement that grants WSDOT a
ten-year use of the park that can be renewed, allows permanent changes to park
property with a use that could, in the opinion of Bellevue consultant The Watershed Co.,
result in a potential public health hazard due to the stormwater constituents that would
be introduced into the park and with the historical evidence of sediment in the
Newcastle Beach Park Creek drifting north, to the swim beach. See “Draft Assessment
of Proposed Highway-Related Stormwater Impacts: Newcastle Beach Park” at the
Document Library at www.savenewcastlebeachpark.com.

Bellevue staff wrote to establish a letter of concurrence for WSDOT – necessary to
enable the FHWA to act on a 4(f) property in a jurisdiction:




“The purpose of this letter is to demonstrate the City’s concurrence that Section 4(f) of
the Department of Transportation Act . . . is not triggered by this Initiative and to set
forth the parameters upon which the City bases its concurrence. This letter also serves
as evidence that the City concurs that Section 6(f) of the Land and Water Conservation
Fund Act is not triggered by the Newcastle Initiative. Likewise, it establishes the
parameters upon which the City bases its 6(f) concurrence.”

The letter concludes:

“We look forward to implementing the Initiative through a partnering opportunity to
create an improvement to the benefit of the environment, WSDOT and the City of
Bellevue.” – Bellevue Parks Director Patrick Foran and (then) Transportation Director
Gorman Sparrman

WSDOT obtained the federal acceptance for its “Finding of No Significant Impact” for its
future unfunded portions of the Renton to Bellevue Project and its “Programmatic
Section 4(f) Evaluation” on Nov. 20, 2008 – for the remaining work between 112th Ave.
S.E. and I-90 that is not yet funded or scheduled.

It obtained no 4(f) Evaluation for its use of the park with the 2007 to 2009 112th Ave.
S.E. to I-90 segment “bundled” late in the planning process with the Bellevue Nickel, the
project later becoming known as the South Bellevue Widening Project, that discharges
new “PGIS” runoff “co-mingled” with existing PGIS and offsite City of Bellevue water,
the total then mixed with new WSDOT ground water as a result of the new wall drains,
under drains and footing drains connecting to lengthened and sleeved cross drains that
in the pre-project condition were not a part of the highway prism, as they are now, but
were located in grass ditches with “no highway contact”.

WSDOT admitted it would use the park in both its “No Effects” letter to the FHWA but
denied it would use the park in its “Local Agency Environmental Classification
Summary”, which is also made available to the FHWA. Under “Environmental
Considerations” concerning “4(f)/6(f) lands”, when asked to “identify any property within
the project limits and, if any are present, describe impacts to properties present”
WSDOT indicated the presence of Newcastle Beach Park subject to both 4(f) and 6(f)
protection but wrote it would “not be affected project construction or operation.”

Concerning 6(f) protection for the park, the staff directors who signed the letter of
“concurrence” had no authority to concur with any use of the park not related to its sole
use of public outdoor recreation according to Bellevue’s acceptance of the terms of the
“LWCA” funds through King County Forward Thrust. Any use not related to the park’s
sole function of public outdoor recreation had to be voted on, and agreed to, by the
Bellevue City Council; written permission is required from any federal agency with
interest according to City of Bellevue Resolutions 1699 and 2100.

The Bellevue Council did not vote on the use of the park for draining WSDOT I-405
water either for the 2007 to 2009 work or in the future as yet unfunded work known as
the city-WSDOT ‘Initiative’ that is planned for the remaining portion of the Renton to
Bellevue Project between 112th Ave. S.E. and I-90.

As a result, there is “no” 4(f) approval for use of the park that can be applied to the 2007
to 2009 work and no use that can be applied to the future work given that the Bellevue
staff directors who signed the “concurrence letter” were not authorized to do so under
the terms of the “LWCF” funds that were used for purchase and development of the
covenanted park.
Too, there is “no” 6(f) approval for use of the park for either project – the 2007 to 2009
112th Ave. S.E. to I-90 work or the remaining improvements and expansions planned
for the remaining elements of the Renton to Bellevue Project.

The park’s protection was not observed and it was utilized by WSDOT without regard
for its federal protection in the recent work which has resulted in adverse impacts 350
feet downstream from the WSDOT completed improvements and expansion in the park.

Bellevue Parks Director and the new Bellevue Utilities Director, Nav Otal, claim there is
no evidence of adverse impacts in the park as a result of the 112th Ave. S.E. to I-90
work completed in 2009; Ms. Otal withheld from the Bellevue City Council, and public,
the test results obtained between March 29, 2011 and Sept. 19, 2011 that show the
presence of heavy oil and diesel in every water test in the park and exceedances over
MTCA cleanup levels in 6 of 9 tests for heavy oil and 3 of 9 tests for diesel as well as
exceedances of dissolved copper and dissolved zinc over State Water Quality
Standards, including in wetlands and at the shoreline. See “Otak on Park Water Quality:
It’s What’s Omitted That Counts” and test results under “Tests” at the Document Library
at www.savenewcastlebeachpark.com.

Another member of the Bellevue staff member who claims there are no adverse impacts
to the park as a result of the recent work is funded – the same way the DOE staff who
found WSDOT compliant – by WSDOT money, in this case provided to the City of
Bellevue for “Project Coordinator” positions instead of the DOE “liaison” designation,
although with the same purpose: to facilitate WSDOT projects. The Bellevue “project
coordinator” was one of a three-person panel that told the City Council at meeting on
Oct. 10, 2011, WSDOT was “compliant” with its 112th Ave. S.E. to I-90 work impacts on
Newcastle Beach Park, as found by the city and as found by DOE.

All the support, thus, for finding WSDOT compliant with discharging its new “PGIS” to
the park without the minimum requirements “triggered” by the project and required by its
“HRM”, which it was obligated to follow, are DOE staff funded now or at the time of the
project by WSDOT to “streamline” WSDOT permits or City of Bellevue staff funded by
WSDOT or Bellevue staff directors who gave their “concurrence” for the use of the park
when they had no authority to agree to its use by WSDOT; only the Bellevue City
Council, and, ultimately, the “RCO” and “NPS” and any other interested federal agency,
did. In addition, the federal government was required to publish its agreement WSDOT
could use the park as it published the “Programmatic Section 4(f) Evaluation” for future
use of the park if and when the city-WSDOT ‘Initiative’ is enacted with the remaining as
yet unfunded relevant portion of the Renton to Bellevue Project.
Clean Water Act, Section 404 Permit Terms Ignored

WSDOT committed in its application for its U.S. Army Corps Nationwide Permit required
for “Activities required for the construction, expansion, modification, or improvement of
linear transportation crossings . . . in waters of the U.S., including wetlands . . .” to the
terms the terms of a “Nationwide Permit 14” but ignored the general requirements to
protect water quality with “stormwater management that minimizes the degradation of
the downstream aquatic system, including water quality” and engaging in activity, with
failing to provide promised water quality treatment and flow control and therefore the
protection of wetlands with its discharges that is like to “jeopardize the continued
existence of threatened or endangered species” or “which will destroy or adversely
modify the critical habitat of such species”. It failed to act on another requirement of its
Section 404 Permit: the “delineation of any affected special aquatic sites, including
wetlands” in not including wetlands it discharged to in the “project” or “action” area.
Among the wetlands WSDOT failed to appropriately identify for the Army Corps were
Wetlands 9.68L, 9.75L and 9.8L, all in the vicinity of CDs 9.69, 9.75 and 9.88, which
discharge to the park streams and wetlands and ultimately through the Newcastle
Beach Park Creek to the lake.

The I-405-112th Ave. S.E. to I-90 “Project Wetland/Biology Report” answers “No” to in
Table 4-1 to whether the wetland is associated with a stream.

CD 9.69 drains to Wetland 9.68L and 9.75L, which drains to the Newcastle Beach Park
Creek in the park’s Lower Wetland, also known as Newcastle “A”, a Type I or Type II
forested shoreline wetland.

CD 9.75 conveys Stream 08.LW-9.75, which drains to Wetland 9.8L where it converges
with a channel of Stream 08.LW-9.8, which receives discharge forty feet downstream
from CD 9.88; the two unnamed streams drain in multiple rivulets to Wetland 9.82L also
known as the park’s Upper Wetlands and Newcastle “B”, a Type II wetland, where they
converge for the final time and become known as the Newcastle Beach Park Creek
before passing under the park entrance road in a culvert to the Lower Wetlands and
outlet to the lake.

All of these wetlands are observable in the field, year-round; the streams are perennial
streams with observable increased flow in the as-built condition compared to the pre-
project condition with the WSDOT work upstream.

In addition, CDs 9.55 and 9.60, which discharge to an enclosed City of Bellevue
stormwater system drain outside of an enclosed system to the park’s Lower Wetlands
for outlet to the lake.

The WSDOT “Joint Aquatics Resource Permit Application” (“JARPA”) stated it would
provide “mitigation” to impacts to “jurisdictional ditches” in the area, which are water
drainages that meet the requirements for protection. It stated: “The most common
impact to jurisdictional ditches will be fill associated with road widening. Mitigation for
these impacts will be provided by replacing the ditches with ecology embankments or
ecology ditches. Ecology embankments and ecology ditches will provide the same
stormwater conveyance and water quality treatment functions as the jurisdictional
ditches, and the project is considered to be self-mitigating for those functions. No
additional compensatory mitigation is proposed for jurisdictional ditches.”

WSDOT provided no “ecology embankments” and/or “ecology ditches” for the identified
jurisdictional ditches upstream of CDs 9.55, 9.60, 9.69, 9.75, 9.88, all of which drain to
the park or for CDs 9.96, which conveys Stream 08.CC-9.9 to Wetland 10.0L, and
10.00, which also drains to Wetland 10.0l, and eventually to Coal Creek.

WSDOT also described Wetland 9.8R has having “no” association with a stream, but all
of the water that drained in the area of this wetland between CDs 9.75 and 9.88 drained
to the park, forty feet upstream from Stream 08.LW-9.88; WSDOT in its “Renton to
Bellevue Environmental Assessment”, used for environmental clearance for its 112th
Ave. S.E. to I-90 work, states Streams 08.LW-9.88 and 08.LW-9.75 cross under I-405 in
culverts. It states the same in its “JARPA” application, which can be viewed at the
Document Library at www.savenewcastlebeachpark.com. Whether the unnamed
streams cross under I-405 or not, the eliminated 9.8R wetland which was upland of both
CDs 9.75 and 9.88 in the pre-project condition was associated with both in the pre-
project condition with both CDs.

WSDOT provided “compensatory wetland mitigation” at the WSDOT Kelsey Creek Park
Wetland Mitigation Bank for eliminating Wetland 9.8R but provided no onsite mitigation
to impacts downstream owing to the loss of this “slope” wetland despite the finding in
the “Wetland/Biology Report” the eliminated wetland had provided a “sediment removal”
function and that, in addition to compensation at the Kelsey Creek Park wetland
mitigation program, it would “ . . . also implement drainage system improvements to
provide stormwater treatment and detention in the project area.”

It did not provide this “stormwater treatment and detention” in the streams and wetlands
downstream from the eliminated 9.8R wetland and downstream of CDs 9.75 and 9.88,
in the park and in the park streams and wetlands, which had benefitted from flood
storage and the “sediment removal”.
WSDOT I-405 Urban Corridors Deputy Director Denise Cieri described “ground water”
in the vicinity of the eliminated 9.8R Wetland driving the contractors “bonkers” on the
project; WSDOT was sent a warning notice by DOE for failing to manage water
construction stormwater in the area. DOE photos of the problem can be viewed at the
Document Library at www.savenewcastlebeachpark.com.

In summary, WSDOT did what was required to obtain some of the permits for its 112th
Ave. S.E. to I-90 work despite missing other permits, including state WDFW “HPAs” and
City of Bellevue Critical Areas Use permits for work in hazardous slope area, wetland
and stream buffers, a Floodplain and Shoreline permit for work within the buffer for Coal
Creek and a Bellevue Clear and Grade permit for its disturbance to 22 acres, with over
four acres of second growth mixed forest hazardous slope cleared permanently – and
ignored federal law that would have protected ESL, use of the park unauthorized by the
City of Bellevue City Council and clear violations of the Clean Water Act, both in failing
to provide the minimum requirements of its “HRM” as it stated it would to protect
downstream beneficial uses and the existing hydroperiod of impacted wetlands and in
degrading the water quality in the park vicinity as is demonstrated by the City of
Bellevue testing and tests done by Otak for the city between March 29, 2011 and Sept.
19, 2011. In addition, it ignored the protection of wetlands in the minimum requirements
of its “HRM” with failing to provide required “MR 5” runoff treatment, “MR 6” flow control
and “MR 7” protection of wetlands, including the hydroperiod analyses required by the
“HRM” for wetlands and in neglecting to survey in-field flow paths of its discharges that
would have shown the CDs that drain to the park “TDA” drain to wetlands.

WSDOT signaled its intentions to “hurry up” the 112th Ave. S.E. to I-90 work when it
removed it from its original location in the Renton to Bellevue Project to be constructed
on short notice with its Bellevue Nickel, the two later known as the South Bellevue
Widening Project -- utilizing not the “FONSI” required for the Renton to Bellevue Project,
under which the 112th Ave. S.E. to I-90 work was reviewed, but a “Documented
Categorical Exemption” (“DCE”)which is to be utilized for minor projects. Under a
“Memorandum of Understanding” with FHWA, WSDOT determines what projects meet
the qualifications of a “DCE” without review by the FHWA for compliance with the
qualifications; WSDOT polices itself for compliance with only random auditing by the
FHWA.

The type work allowed under a “DCE” but only with documentation that “significant
environmental effects will not result” includes adding auxiliary lanes, which the FHWA
defines as “parking, weaving, turning, climbing”.
Also allowed under a “DCE” is “Bridge rehabilitation, reconstruction . . .”

WSDOT describes the work it did in the 112th Ave. S.E. to I-90 segment as including
“one of the new I-405 northbound lanes between 112th Ave. S.E. and I-90, the new I-
405 bridge structure carrying the I-405 southbound lanes over I-90” and a ramp meter at
the 112th Ave. S.E. interchange and a noise wall in the Nov. 20, 2008 “FONSI” for the
Renton to Bellevue Project, in describing the project elements that had been removed.

The new, 2-mile-long northbound lane does not meet the FHWA definition of an
“auxiliary lane” and the “new bridge” over I-90 (three lanes) does not meet the “DCE”
requirement of bridge rehabilitation or “reconstruction”. The only “bridge rehabilitation,
reconstruction or replacement” of a bridge was the reconstructed bridge (which was
widened) over Coal Creek Parkway.

Based on the definition provided, the 112th Ave. S.E. to I-90 work did not meet the
definition of projects that qualify for a “DCE” and thus did not qualify for a “DCE”, and, if
it had, may not have had the appropriate environmental clearance for a “DCE” due to
environmental documentation for its impacts being part of the Renton to Bellevue “EA”,
which did not receive a “FONSI” (“Finding of No Significant Impact”) until Nov. 20, 2008
– a year and a half after the 112th Ave. S.E. to I-90 work started.

This may explain why WSDOT did not obtain WDFW “HPAs” for its 112th Ave. S.E. to I-
90 work or City of Bellevue permits, including a Clear and Grade permit: it didn’t have
the necessary “FONSI” the WDFW and City of Bellevue require for environmental
review in order to process permits.

WSDOT is on the record stating it had expected its “FONSI” for the Renton to Bellevue
Project by July, 2007 – which would have been close to the time the 112th Ave. S.E. to
I-90 work started – but it didn’t receive it until a year and a half later, well into the work,
when the work was already in contract as of Feb., 2007 and a delay would have been
costly.

The appearance is WSDOT made every effort to “hurry up” its 112th Ave. S.E. to I-90
work” with a “DCE” and, when that didn’t work, forged ahead anyway, including cutting
corners with federal agencies with requirements and conditions it was obligated to and
had committed to observe.
DOE Found WSDOT Compliant without seeing Test Results of Multiple Exceedances
for Heavy Oil, Diesel Contamination

The Water Quality Department of DOE, with responsibility to enforce the state’s anti-
pollution laws, closed its review of WSDOT’s failure to provide water quality treatment
and flow control to its discharges to Newcastle Beach Park without ever seeing the
$50,000 worth of test results done by the City of Bellevue which show multiple heavy oil
and diesel exceedances in the park’s streams and wetlands and at the shoreline where
children play.

The City of Bellevue has refused to acknowledge the contamination but the test data
obtained by Otak, a city consultant, found the exceedances in tests done between July
25 and Sept. 19, 2011, in the park or the WSDOT discharges that drain to the park’s
streams and wetlands. Testing in “Table 1” and “Table 2” of the Otak results show 5 of 9
tests over the MTCA (Model Toxics Control Act) cleanup level for heavy oil (lube oil)
and 3 of 9 test over the cleanup level for diesel. These test results can be viewed at the
Document Library at www.savenewcastlebeach park.com.

Deputy Mayor Conrad Lee has asked the Bellevue City Manager to report on the
information that was omitted in the report staff made on the test results to the City
Council on Oct. 10, 2011. City Manager Steve Sarkozy stated at the Oct. 24, 2011 City
Council meeting he would report back to the Council on the test results that were not
shared with the Council and public at the Oct. 10th meeting.

Bellevue Utilities Director Nav Otal stated at the meeting: “There is no indication of
adverse impacts to the park as a result of this project.”

By “project”, she meant the 2007-2009 $20 million 112th Ave. S.E. to I-90 segment of
the South Bellevue Widening Project. The work was done just 350 feet upstream from
the park. In permitting documents WSDOT committed to provide water quality treatment
and flow control in discharges of new PGIS (pollution generating surface) runoff to the
park. This website discovered through a public information request WSDOT failed to
provide the promised facilities for discharges to the park. The park has sustained
flooding and widespread tree death and erosion, including of the park loop trail, in the
wake of the WSDOT work upstream.

As a result of a complaint made by this website, WSDOT addressed “deviations” from
its Final Hydraulic Report for the project, which was supposed to be the as-built, final
record for all changes on the job. It has since provided several “Addendums” to the
“FHR”, none of which measured flow increases or pollutant loading to the park, but
relied on “modeling” to make the claim a “diversion” of water from the park to Coal
Creek resulted in “less” water being discharged to the park by WSDOT in the as-built
condition.

The City of Bellevue hired Otak to review the Final Hydraulic Report and perform testing
of the WSDOT discharges to the park as well of testing of the park streams, wetlands,
the meadow and shoreline, including the swim beach.

DOE’s Water Quality Department also conducted an investigation of the WSDOT
stormwater discharges to the park. It accepted “modeling” by WSDOT to make the case
it was discharging “less” water to the park in the as-built condition compared to the pre-
project condition without ever requiring WSDOT to perform flow tests of the park stream
to compare with WSDOT’s own measures of stream flow done pre-project in 2005. It
also accepted “modeling” for WSDOT’s claim it had “reduced” pollutant loading to the
park with the diversion of water (a basin transfer) to Coal Creek.

It accepted WSDOT’s “modeling” in the Addendum after conducting no tests of the
stream flow in the field of its own and no tests of pollutant loading to the park in the
Cross Drain discharges to the park and “closed” its investigation on Oct. 10, 2011,
stating:

“Bob Nolan, an Ecology engineer who routinely reviews stormwater treatment systems,
concluded the I-405 South Bellevue Widening project has met applicable stormwater
requirements. His conclusions are included as an attachment. WSDOT provided
required treatment of stormwater for the project, although they deviated from one
stormwater design standard. They diverted new highway runoff from the Newcastle
Beach basin to the Coal Creek basin treatment system. Bob Nolan found runoff
treatment installed by WSDOT to be adequate to meet their Highway Runoff Manual
requirements. These requirements for stormwater treatment apply to new pavement
only. Before this project was built, WDOT designers proposed varying from Highway
Runoff Manual requirements for the Newcastle Beach area. They faced difficulty
meeting the required flow control and pollutant removal requirements above Newcastle
Beach Park. They noted competing objectives between stormwater treatment, highway
safety during and after construction, and avoiding taking property along I-405. Given the
design constraints, directing the runoff from new pavement above Newcastle Beach
Park to the treatment system in the neighboring basin was a reasonable and an
environmentally sound variation from manual requirements.” – Kelly Susewind, DOE
Water Quality Manager

Bob Nolan is a DOE staff member whose salary and benefits are paid now and/or at the
time of the project by WSDOT to act as a “WSDOT liaison” to “streamline” WSDOT
permits. A public information request shows Mr. Nolan and Gerald Shervey, another
DOE staff member who is also WSDOT liaison funded now and/or at the time of the
project to streamline WSDOT permits

In addition to failing to construct the promised stormwater facilities for discharges to the
park and also for discharges to a stream and wetland that is tributary to Coal Creek, the
112th Ave. S.E. to I-90 work is missing requirement permits.

Among the permits missing are HPAs (hydraulic permits issued by Washington
Department of Fish and Wildlife) for work involving five streams, including Coal Creek, a
fish bearing stream, as well as required City of Bellevue Critical Areas Use permits,
Shoreline permits and Floodplain permits in addition to a Bellevue Clear and Grade
permit. The project footprint of 22 acres cleared mapped Bellevue steep slope
containing second growth mixed forest, eliminated wetlands and performed the
mentioned basin transfer which in addition to an HPA required under Bellevue Code
requires consensus from the Bellevue City Council. WSDOT is not required to obtain a
“building permit” for its highway construction or reconstruction work, but is required
under the Growth Management and Shoreline Management Acts, which local
jurisdictions enforce, to obtain other city permits. WSDOT has since obtained Critical
Areas Use permits and Shoreline use permits for its work on SR-520 and for its
Bellevue to Lynnwood Project.

DOE does not address in its notice of closing its investigation of WSDOT this website’s
complaints concerning the missing permits. The permits would have been in addition to
the U.S. Army Corps and other permits WSDOT did obtain for the work, and would have
provided local oversight of mapped City of Bellevue critical areas; the HPAs would have
required inspection of streams and noted WSDOT failed to construct required water
quality treatment and flow control for its new discharges to unnamed Streams 08.LW-
9.75 and 08.LW-9.8, which converge inside Newcastle Beach Park to become what is
known as the Newcastle Beach Park Creek, and Stream 08.CC-9.9, which is tributary to
Coal Creek.

This website complained to Ecology Director Ted Sturdevant on Aug. 1, 2011, after
learning DOE staff who work as WSDOT liaisons to streamline WSDOT permitting were
participating in the DOE enforcement process against WSDOT. This website raised the
issue of an appearance of a conflict of interest. The Northwest Office of DOE has
received more than 2.6 million in WSDOT funding to streamline its permits since 2004,
this website has learned. This raised a concern for the Northwest Office ability to
objectively review the WSDOT work. Specifically, the Northwest Office houses what is
known as the “MAP” (multi agency permitting) Team, all of the members, including Mr.
Nolan and Mr. Shervey, charged with streamlining permitting for WSDOT projects.
Since Mr. Nolan, Mr. Shervey and others on the MAP Team were aware, or should have
been aware, of the missing stormwater facilities for discharges to the park and in a
stream that is tributary to Coal Creek, together with the other missing permits, it was this
website’s concern staff on the MAP Team who work as WSDOT liaisons would be, in
part, investigating their own work.

A public records request shows the response to this website’s complaint, above, was
not written by the person who signed it, Mr. Sussewind, but by the WSDOT liaisons.
See this record request at the Document Library at www.savenewcastlebeachpark.com.

Concerning meeting “applicable stormwater requirements”, please see “DOE Fails
Technical Argument in Not Enforcing Against WSDOT” at
www.savenewcastlebeachpark.com.

If WSDOT encountered difficulties that required they “deviate from one stormwater
design standard” to one that required so significant a deviation as to not provide the
promised facilities for discharges to the park streams and wetlands and to the Coal
Creek tributary which WSDOT committed to in the permitting process, WSDOT was
required under the HRM (Highway Runoff Manual” referenced to conduct an
“Engineering and Economic feasibility (EEF)” assessment to determine if constructing
the stormwater management facilities within or adjacent to the highway was difficult, if
not impossible.

WSDOT did not conduct an EEF or even so much as note in its Final Hydraulic Report
any difficulty in constructing the stormwater management facilities required under the
HRM for discharges to streams and wetlands that met the thresholds on the project as a
whole as with the WSDOT discharges to the park, including with the “diversion” of water
from one Cross Drain, CD 9.88, to Coal Creek.

The only ability for WSDOT to obtain an “adjustment”, “variance”, “exemption” or
“exception” to the requirements for the “minimum requirements” known as “MR 5” runoff
treatment, “MR 6” flow control and “MR 7” protection of wetlands depended on WSDOT
providing an EEF and other requirements of the HRM, all of which was required to be
documented in its Final Hydraulic Report.

The DOE staff who work as WSDOT liaisons to streamline WSDOT permitting are
familiar with this process, as is shown in “DOE Fails Technical Argument in Not
Enforcing Against WSDOT”, which can be seen at www.savenewcastlebeachpark.com.
And yet these same DOE staff who work as WSDOT liaisons accepted the “diversion”,
which the HRM does not allow and which was subject to approval by the City of
Bellevue City Council and to the Coal Creek Stabilization Project basin planning
instituted in 2007, found WSDOT’s failure to provide the “minimum requirements” of the
HRM for its discharges to the park and to the Coal Creek tributary meeting “applicable
stormwater requirements” and the “runoff treatment installed by WSDOT to be
adequate”.

The DOE MAP Team staff, who are WSDOT liaisons now and/or at the time of the
project wrote to each other in preparation to closing the DOE investigation of WSDOT’s
failure to provide water quality treatment and flow control to its discharges to the park.
Mr. Nolan wrote to Mr. Shervey:

“I have found the project to be in compliance with the requirements of the Highway
Runoff Manual. The Environmental Assessment documentation and the FHR mistakenly
combined two TDAs as basin W-3, which in reality separately drain to Newcastle Beach
Park and to Coal Creek. The addendum corrects this mistake and shows the project is
providing the required treatment and detention for each TDA and for the project as a
whole. Within basin W-3, the project added 1.40 acres of impervious cover, provided
enhanced treatment to 3.34 acres of impervious, and provided 1.15 acre-feet of flow
control storage volume. Due to site constraints and limited right-of-way within the
corridor, the project transferred 1.27 acres of highway (0.77 acres impervious and 0.50
acres grass) formerly draining to Newcastle Beach Park into the Coal Creek drainage.
This transfer reduced the overall impervious and pervious area draining to Newcastle
Beach Park so that not treatment or flow control was required for that TDA.” – Robert
Nolan

The HRM referenced has specific thresholds for “each” basin or “TDA” (threshold
discharge area), and the 112th Ave. S.E. to I-90 new WSDOT discharges to the park
met the requirements for “MR 5”, “MR 6” and “MR 7” – water quality, flow control and
protection of wetlands – with, or without, the “diversion” of water that constitutes a
“basin transfer” from Newcastle Beach Park to Coal Creek. The “size” of the new PGIS
discharging to the park, with or without the diversion, was enough to “trigger” water
quality treatment, and the “removal” of water to avoid the “trigger” for flow control
requirements does not allow a diversion to another TDA or basin transfer of water – the
“removal” must return “existing” PGIS to “pervious” surface inside the same TDA, which
in this case would have required WSDOT to return the PGIS runoff it diverted to Coal
Creek to rely to return the surface to “grass” inside the area still draining to the park
inside the park TDA. There is nothing in the HRM, or “Manual”, as it is called, that
allows a reversion, basin transfer or any other “deviation” to avoid water quality and flow
control treatment for discharges to a stream that drains to a wetland or wetland that
drains to a stream. In this case, the cross drains that discharge WSDOT PGIS runoff to
the park all drain to streams and wetlands in the park. CDs 9.69 and 9.75 – the only
CDs that WSDOT admits in the Addendum to drain to the park – drain to Streams
08.LW-9.75, which is a tributary of Stream 08.LW-9.8, in Wetland 9.8L, then drains to
Wetland 9.82L, also known as the park’s Upper Wetlands, where the two streams
converge for the final time and become known as the Newcastle Beach Park Creek
before draining in a culvert under the park’s entrance road to the park’s Lower
Wetlands, also known as Newcastle “A”. Two cross drains WSDOT continues to deny
drain to the park, CD 9.55 and 9.60, drain to the park’s Lower Wetlands and the
Newcastle Beach Park Creek before discharge to Lake Washington. The Coal Creek
tributary, Stream 08.CC-9.9, is conveyed with diverted water from CD 9.88 in CD 9.96
to Wetland 10.0L and Coal Creek south and outside of all water quality treatment and
flow control provided in new facilities located at the southwest corner of Coal Creek
Parkway and I-405. Thus, there is no water quality treatment or flow control as required
in all instances for Stream 08.LW-9.75, 08.LW-9.8, 08.CC-9.8, Wetland 9.8L, Wetland
9.82L (also known as the park’s Upper Wetlands and Newcastle “B”) and the park’s
Lower Wetland (also known as Newcastle “A”) and Wetland 10.0L. The minimum
requirements in the HRM are the same minimum requirements in most city’s, including
Bellevue’s, NPDES permits and in the WSDOT NPDES permit; WSDOT was required to
go by its HRM and its NPDES permit when discharging to another “permittee”, as it did
in discharging to the Bellevue system, which includes streams, in the 112th Ave. S.E. to
I-90 work. The DOE staff who work as WSDOT liaisons, who were allowed to participate
in the DOE Northwest Office Water Quality enforcement process – and in fact decide
that process – ignore the requirements of the HRM for deviations from the minimum
standards and ignore the requirements, altogether, for discharges to streams and
wetlands.

A requirement for an adjustment, variance, exception or exemption from minimum
requirements, in addition to an EEF, is being able to show with the best technical
information available, the project does not create adverse impacts downstream. In the
design stages of a project, modeling would be applicable as data from the as-built
condition cannot be obtained in the field. In the as-built condition, with abundant data to
be collected, observed, analyzed, etc., in the field, modeling is a poor substitute for the
actual results of a deviation.

DOE, including the DOE staff who work as WSDOT liaisons to “streamline permitting”,
allowed WSDOT, which never conducted an EEF or included any other documentation
of deviations or need for deviations in its Final Hydraulic Report completed in 2009, to
use “modeling” to answer where there were adverse impacts downstream in the park.
No monitoring of stream flow was required, and no tests of cross drain discharges was
required by DOE Water Quality to “close” its investigation.

DOE also did not review the Otak findings for the City of Bellevue, “Review of
Newcastle Beach Park Flow Data”, July 22, 2011, which can be viewed at the
Document Library at www.savenewcastlebeachpark.com. This review found the
WSDOT Final Hydraulic Report: failed to address minimum requirements for separate
TDAs, including failing to address the park TDA as a standalone TDA; failed to account
for increased ground water collected and conveyed to the park in a new under drain
system; used peak flow modeling only which his inadequate to determine potential
impacts of a project on streams (peak flow modeling) and is also not acceptable for
designing best management practices (BMPs) to meet runoff treatment, flow control or
wetland protection requirements; performed limited field reconnaissance when streams
are required to be followed one-quarter mile downstream and to upstream to a point
where any backwaters cease; failed to downstream analysis to show changes in peak
flow, flood duration, bank erosion, channel erosion and nutrient loading; and failed to
provide a hydroperiod analysis of impacted wetlands to document changes. Otak
concluded WSDOT did not meet the requirements of the HRM with its new discharges
to the park, believed to be in CDs 9.75 and 9.88. Since the report, the WSDOT
Addendum has identified the “diversion” of discharges to CD 9.88; it admits its
discharges to CDs 9.75 and 9.69 only. The Otak information applies to these discharges
the same as it applied to the review for discharges to CD 9.75 and 9.88.

DOE mentions the Otak flow report and testing in emails, but there is no indication it
bothered to look at either of these findings for Bellevue before closing its investigation.
There is no indication in public information requests at this time DOE objectively
evaluated or made use of, any of the information gathered by this website and provided
to DOE for its investigation.

Bellevue Utilities Director Otal stated at the Oct. 10th meeting of the City Council:

“ . . . between the work done by Otak for the city and the testing done by Ecology there
has been an unprecedented level of investigation. I’m not aware of any similar
investigation that we have done at any other site in the city. Bottom line there’s no
violation of State Water Quality Standards in the concentrations of compounds in and
around the park that would trigger any cleanup action. What we have learned after this
exhaustive testimony is the compounds and levels in the park are common and pose no
health threats. In summary there is no violation of the city’s NPDES permit and no
violation of Clean Water Act. Ecology has concluded their own review . . . and their
findings are included in the desk packet we distributed earlier. At this point Ecology’s
satisfied that there are no water quality or quantity issues in the park and they have
closed their investigation.” – Nav Otal, Bellevue Utilities Director

A public information request obtained from DOE by this website shows DOE did not see
the Otak results at the time it closed its case, and Bellevue did not provide the results to
DOE until Oct. 17, 2011 – a full week after Director Otal’s oral report to the Bellevue
Council, quoted above.

Ms. Otal stated “Ecology’s satisfied” knowing DOE had not seen the Otak results she
omitted, and Otak omitted, in its report to the City Council, which are also omitted in the
Otak’s written report, “City of Bellevue Newcastle Beach Park – Analysis and Review of
Water Quality Sampling Data”. See “Otak On Park Water Quality: It’s What’s Omittted
that Counts” for a review of the report at www.savenewcastlebeachpark.com.

The results showing widespread contamination in the park for heavy oil and diesel and
likely contamination of benzene and PAHs can be found in Tables 1 and 2 was not
“given” the Otak test results. Although these results are in the data of the table that was
included as an attachment to the Otak reports, neither Ms. Notal, the Otak hydrologist
who addressed the City Council on Oct. 10, 2011, nor the Otak written report, cited
above, mention these results.

The results are exceedances of the MTCA cleanup levels for heavy oil and diesel and
constitute violations of the Clean Water Act.

The exceedances of heavy oil, also known as lube oil, and diesel, and other I-405
stormwater contaminants are documented in the review of the Otak report at
www.savenewcastlebeachpark.com, range from the CDs that discharge WSDOT runoff
to unnamed Streams 08.LW-9.75 and 08.LW-9.8 outside of the park in the BNSF
Eastern Rail Corridor and Wetland 9.8L to the shoreline at the northwest corner of the
park, where children play.

None of the exceedances found in the park – which include exceedances of the MTCA
cleanup level for heavy oil, diesel, likely exceedances of benzene and PAHs, and State
Surface Water Quality exceedances of dissolved copper and dissolved zinc – was found
in the park in the 2007 baseline testing done for the city by The Watershed Co., in
advance of anticipated improvements and expansion upstream. All of these
contaminants was “non-detected’ in the baseline testing.

The comparison between what is found now, as a result of the Otak testing, to the
testing of many more parameters – 22 -- in the baseline testing, supports the comments
of The Watershed Co. in its “2007 Adaptive Management Water Quality and Sediment
Analysis Year End Report” for Bellevue in Dec., 2007, which stated no hydrocarbons –
contaminants from petroleum – “ . . . were detected in the water samples. Presently,
little of the water reaching the creek originates as road runoff. In the future this may
change if runoff from an expanded I-405 is diverted through this stream rather than
being routed to Coal Creek as it presently is.” The Watershed report is available at the
Document Library at www.savenewcastlebeachpark.com. WSDOT, in both its Final
Hydraulic Report and Addendum, have maintained the park drained WSDOT
discharges in the pre-project condition, although, as noted, none of the known highway
contaminants now found in the park at levels that exceed MTCA cleanup standards and
State Water Quality Standards was found in the park in the pre-project condition when
WSDOT asserted in its Addendum there would be “less” pollutant loading to the park
due to the “diversion” of runoff away from the park to Coal Creek, which relied on
“modeling” only, which DOE accepted in finding WSDOT compliant.

None, or “less” of these pollutants should be found in the as-built condition if the
WSDOT is correct in its Addendum and it is collecting and conveying “less” water to the
park in the as-built condition due to the diversion to Coal Creek when compared to the
pre-project condition.

In addition to the known highway runoff contaminants heavy oil (lube oil) and diesel,
likely exceedances of benzene and PAHs shown in the Otak tests, City of Bellevue tests
from March 29, 2011, July 14, 2010 and Oct. 15, 2010 show additional exceedances of
heavy oil and “oil and grease” and “TPH” (total petroleum hydrocarbons) in the park
stream or in water from the park’s Upper Wetlands that travels in a City of Bellevue
stormwater pipe to the Lake Washington shoreline.

This totals 6 exceedances in 10 tests for heavy oil, 2 exceedances in 2 tests for oil and
grease, 3 exceedances in 12 tests for diesel in the park and park vicinity together with
the exceedances for dissolved copper and zinc and other contaminants in the wake of
the 2007-2009 WSDOT 112th Ave. S.E. to I-90 work that didn’t provide minimum
requirements “MR 5” runoff treatment, “MR 6” flow control and “MR 7” wetland
protection for its discharges to the park.

This is in addition to findings for cobalt, barium, beryllium, molybdenum, antimony,
selenium, vanadium, aluminum sulfur, silicon, strontium, titanium, chromimium which
were “non-detected” in the baseline testing in the park stream (in non-first flush
conditions) all found in the park stream in the City of Bellevue March 29, 2011 test.
These parameters were not included in the recent Otak tests.
Also found in the extensive March 29, 2011 test of the park stream by the City of
Bellevue was

a dramatic increase in TSS – “Total Suspended Solids” – which is commonly used as a
way to gage stream pollution. In baseline tests, the highest TSS finding in first flush
conditions was 13 ug/L. The city test found TSS at 120,000 ug/L in a non-first flush
condition.

These indicators of stream pollution following the WSDOT work 350 feet upstream from
the park were made available by this website to DOE but were disregarded by the DOE
staff liaisons were WSDOT as “common” to urban runoff, including in Seattle, which
disregards the requirements in place for WSDOT for new construction and
reconstruction.

Emails obtained from DOE show DOE was aware the Otak tests may show
exceedances that required reporting to DOE. Russ Olsen of DOE’s Toxics Cleanup
Program emailed to others at DOE, including the DOE Water Quality staff and DOE
staff who are also WSDOT liaisons and investigating the WSDOT a copy of an email he
sent to the Water Quality Supervisor at the City of Bellevue on Sept, 13, 2011, stating:

“As we discussed yesterday on the phone if you feel you have samples that exceed the
standards of the Model Toxics control Act you should submit the results through the
Environmental Report Tracking System (ERTS). These results will then be referred to
the appropriate section or sections within the Department of Ecology. If the results are
referred to the Toxics Cleanup Program an Initial Investigation will be conducted to
determine if the results meet the definition of a site or suspected site in accordance with
the Model Toxics Control Act. If you determine there is an exceedance of Model Toxics
Control Act (MTCA) cleanup standards, appropriate measures should be taken by the
responsible party to mitigate the release of continued release of materials.” – Russ
Olsen, DOE Voluntary Cleanup Program Unit Supervisor

There is no indication the City of Bellevue did, in fact, report exceedances of heavy oil,
diesel, oil and grease, PAHs, benzene, dissolved copper or dissolved zinc to DOE, by
either the date of the Oct. 10, 2011 meeting where Bellevue Utilities Director Otal
omitted the findings of hydrocarbon (petroleum) contamination in the park (as Otak did
in its written report and its ins report to the Council with Ms. Otal) told the City Council,
and public, there were no adverse impacts to the park – or as of today’s date, Nov. 8,
2011 (Bellevue has refused to respond to this question as of this date).
City of Bellevue Utilities, which did not provide the Otak test results to DOE or the
reports the Otek report, “Review of Newcastle Beach Park Flow Data”, July 22, 2011, as
can be determined from the public information request, nonetheless asked DOE to
assist it in making its presentation, with Otek, to the Bellevue City Council. Bellevue
Utilities Water Quality Supervisor Mike Graves wrote in email to Kevin Fitzpatrick,
Section Manager of the DOE Northwest Office Water Quality, “I talked with Russ Olsen
today. We would like to ask for someone to help address the alleged WQ issues at
NCBP. Somoeone who can help interpret the various standards for TPH and metals.”
Fitzpatrick wrote back that he would attend the meeting. Fitzpatrick attended the
meeting along with Anne Dettelbach, also of the DOE Water Quality staff at the
Northwest Office and thus were present to hear Bellevue Utilities Director Otal tell the
City Council and others there were no adverse impacts to water quality in the park in the
wake of the WSDOT project. Email from Ms. Dettelbach to Mr. Graves at Bellevue on
Oct. 17, 2011 show DOE was still trying as of that date – one week after Utilities
Director Otal’s and Otek’s presentation on Oct. 10, 2011 that omitted all mention of the
TPH exceedances for heavy oil and diesel and other in the park which is also omitted in
the Otak written report – to obtain the “final Otak report re Newcastle Beach”. The report
was being requested by Ms. Dettelbach of the Northwest Office Water Quality.

After DOE received the Otak results, one of the DOE staff who is funded by WSDOT as
a liaison to streamline permits for WSDOT projects wrote in email to others at DOE on
Oct. 17, 2011:

“I attached the sample data summary we just received from City of Bellevue for
Newcastle Beach Park. Otak is an independent consultant hired by the city. The report
summary says the park has no significant health risks or water quality standards
exceedances in the streams on site. Some storm water sources exceeded standards at
levels typical for urban stor4mwater, but the receiving waters all met standards.” – Jerry
Shervey

The WSDOT liaison, even with the test data in hand, quotes from the “summary”, which
omits the TPH findings for heavy oil, diesel and other hydrocarbons, which are only in
the test data in Tables 1 and 2 and otherwise not discussed in the report just as they
were not discussed in the oral presentation to the city.

The result is the liaison “quoting” Otak, which omits comment on the findings of TPH,
just as the City of Bellevue Utilities Director, Ms. Otal, “quoted” DOE in stating to the
Bellevue City Council and public Ecology was satisfied there were no water quality
violations in the park vicinity – the two entities, DOE and the City of Bellevue, each
quoting the other to authenticate their positions with ignoring, entirely, the most
significant findings of the Otek tests: the heavy oil and diesel and other TPH
contaminating the park in the wake of the WSDOT work that neglected to provide
required water quality treatment and flow control to the park streams and wetlands –
and that every test done by the City of Bellevue with Otek, 10 in all, since March 29,
2011 – found heavy oil and diesel in every location it was tested, both above ground, in
surface water, streams and wetlands, and below ground, in ground water, including at
the swim beach – indicating TPH has been found park-wide and traveling both above
ground and below ground, including where children play, dig in sand, drop pacifiers,
swim, wade and where people walk their dogs and picnic when no TPH, including heavy
oil and diesel, was found in the park before the 2007-2009 WSDOT work upstream.

Concering Mr. Shervey’s email, the “point” of permitting new projecs, such as the
WSDOT 112th Ave. S.E. to I-90 work done as part of the South Bellevue Widening
Project, is to require “current” minimum requirements to protect water quality
downstream; results from new construction or reconstruction subject to the minimum
requirements in both the WSDOT HRM and its NPDES permit, and the City of
Bellevue’s and other municipal NPDES permits should not reflect what is “typical for
urban stormwater” but the removal, to within 90 to 95 percent, of heavy metals and TSS
and other pollutants from highway runoff. All of the contaminants found in the park
vicinity which were “non-detected” in the 2007 baseline testing would have been
removed to within 90 to 95 percent had the required stormwater facilities WSDOT
promised in permitting it would constructed been provided for its discharges to
Newcastle Beach Park streams and wetlands.

Concerning the use of the term “receiving waters”, the “receiving waters” in the park are
the streams 08.LW-9.75 and 08.LW-9.8, which converge and become known as the
Newcastle Beach Park Creek, and the wetlands, and discharges from the streams and
wetlands to Lake Washington. Therefore, “all” of the water tested in the park, which is
interconnected, is to the park’s “waterbodies” and, ultimately, to the lake.

There is no indication in the public information requests from DOE, which included
information through Oct. 21, 2011, that Water Quality staff at DOE’s Northwest Office,
or the DOE staff who are funded by WSDOT as liaisons to streamline permitting for
WSDOT projects, who found for WSDOT being compliant as a result of their
investigation, informed Ecology Director Ted Sturdevant, or others in DOE
administration Water Quality had “closed” its investigation of WSDOT without having
seen the Otak test data for themselves – or, for that matter, having seen the Otak
review that found the WSDOT work, as described in its Final Hydraulic Report,
noncompliant.
An email from administration to Mr. Fitzpatrick, the Section Manager for Water Quality
at DOE’s Northwest Office, states Director Sturdevant wants a letter drafted from him to
address the “unaddressed issues” that he was contacted concerning after DOE closed
its investigation when the Otak tests revealed exceedances parkwide that clearly
constitute a violation of the Clean Water Act, which DOE is required to administer.

Mr. Fitzpatrick did not tell Director Sturdevant the Water Quality Section staff at the
Northwest DOE office had never seen the Otak test results before closing its
investigation. Director Sturdevant was attempting to respond to a request to ‘re-open’
the investigation based on the Otak results.

Instead of informing administration, Mr. Fitzgerald wrote: “Most of the issues not
addressed are related to the continuing I & I being conducted by NWRO TCP. We will
need to coordinate this response with our colleagues in NWRO TCP.”

Thus, instead of re-opening the DOE Water Quality investigation that was decided by
DOE staff who are funded by WSDOT as liaisons to streamline permitting for WSDOT in
view of the test data obtained by DOE to show the park was contaminated as a result of
the WSDOT 112th Ave. S.E. to I-90 work upstream, Mr. Fitzpatrick, Section Manager for
the Northwest Office Water quality Section, informs administration the issues that are
the responsibility of his office (water pollution of state waters and anti-degradation of
state waters) will be addressed not for exceedances of State of Washington Surface
Water Quality Standards and State Ground Water Standards (which DOE TCP does not
address) but only for toxics cleanup by TCP.

This position leaves a bap between an exceedance and what constitutes a “site”,
allowing for not ability to regulate contamination and noncompliance “before” it is a
“site”, which the Water Quality Section is supposed to do.

A DOE news release from March , 2007, “Renton Project fined for discharging without
permit” cites a company fined $21,000 on a construction job for not having “stormwater
controls in place at the site”. Mr. Fitzpatrick is quoted in the new release as stating: “The
proper controls, required to be in place when under permit coverage, could have kept
water flowing off the site within state standards.”

DOE has not responded to questions concerning whether it is going to re-open its
investigation of WSDOT following the public information request that shows the Otak
tests were not considered before “closing” the DOE investigation of WSDOT compliance
with failing to provide stormwater facilities for its discharges to the park streams and
wetlands and to the unnamed Stream 08.CC-9.9 to Coal Creek, and that the decisions
that were made finding WSDOT compliant were made by DOE staff funded now and/or
at the time of the project, at least in part, by WSDOT to act as liaisons to streamline
WSDOT permitting for WSDOT projects.

The City of Bellevue, as of today’s date, Nov. 8, 2011, likewise refuses to respond to
questions concerning whether it has reported findings of contaminants over MTCA
cleanup levels to DOE.

The WSDOT discharges to the park, now proven to carry collect and convey
exceedances of heavy oil, diesel and other TPH to the park streams and wetlands,
shown to extend all the way to the shoreline – which could be removed with the runoff
treatment required but which was ignored by WSDOT – continue.