Emersons’ wetland issue muddied by study dispute

Kelly Emerson - Contributed photo
Kelly Emerson
— image credit: Contributed photo

The long-simmering issue of whether there’s a wetland on Camano Island property owned by Island County Commissioner Kelly Emerson and her husband remains unresolved, even after the couple hired a second hydrogeologist to complete another study.

The Emersons’ attorney, Justin Park of Bellevue, sent Island County Planning Director Bob Pederson the second wetland study in January, which backs up the previous wetland report which concluded there’s no wetland or stream on the Emersons’ property. Parks demanded that the county dismiss the $37,000 in fines that were levied against the Emersons for violations of the county building code, critical areas ordinances and zoning ordinance.

But once again, the county’s wetland specialist and Department of Ecology staff identified what they believe are flaws in the study and concluded that the issue is still not settled. Pederson sent the Emersons a letter last week that lays out their options at this point. He wrote that they can allow Department of Ecology scientists or the county’s critical areas planner onto the property to make a final determination.

Or, he wrote, the Emersons could elect to have yet another scientist do a peer review or site investigation. But this time, Pederson wrote that the county would have to agree on the particular scientist.

In an interview, Emerson said she’s disappointed by the county’s response and isn’t sure how she and her husband will reply. She said it’s baffling that the Department of Ecology won’t accept the work of two state-licensed scientists. She claims that the county planning department is abusing its authority and she continually hears from other citizens with similar stories.

“We tried to expose this,” she said. “We were seeing this rampant abuse by the county.”


County, DOE not trusted


Emerson said she doesn’t trust the county or Department of Ecology staff to be fair and accurate if she would let them onto her property to make a wetland determination. She previously invited Ecology to the property, but cancelled at the last minute on advice from her attorney.

“They’re just going to image a wetland where they want to make it and a buffer where ever they feel like it,” she said.

Likewise, Ken Emerson has a long list of questions for the county about the fairness and legality of the process.

“What section of Island County Code gives the Planning Director or the Planning Department the authority to ‘order’ a wetland report from a property owner? At the property owners’ expense?” he wrote in an email.

Pederson said that the Emersons’ fines are a separate issue that will be settled once all the other issues are reconciled. A judge has already ruled that the fines are valid. Most of the penalties are a result of a $500-a-day fine for violation of the county’s critical areas ordinance. The Emersons were ordered to complete a wetland study within 30 days, but they responded with a lawsuit against the county, county employees and a former commissioner.

The entire saga began in the fall of 2010, before Emerson was elected as commissioner. A neighbor complained that the Emersons were building a sunroom without a permit, but county inspectors found there was also a deck and wall built too close to an area which may or may not be a stream, in possible violation of the county’s critical areas ordinance.

The Emersons filed a lawsuit over the issue, but lost. The couple hired Steven Neugebauer of the Duvall-based SNR Company to do a wetland analysis and submitted the report last summer, more than nine months after being ordered to do so.

County and state scientists, however, reviewed the report and concluded it was flawed.


County omitted in review choice


After rejecting it, Pederson offered the Emersons the option of having an independent peer review. He said in an interview this week that he assumed the Emersons would communicate with him to find an expert they could agree on. But instead, the Emersons hired Ed Kilduff, a hydrogeologist and geologist from San Juan County who works for Neugebauer as a contractor. He’s not exactly an independent peer, but neither county nor state officials faulted the report on that point.

Coincidentally, Kilduff worked for SNR Company in a high-profile case in San Juan County. A property owner hired a specialist to determine if there was a wetland on his property; the specialist concluded there were wetlands. The property owner didn’t like the answer, so he had SNR Company do a second report.

Kilduff, working as an SNR contractor, concluded there were no wetlands on the property. San Juan County asked the Department of Ecology to review the report, according to the Journal of the San Juans.

Emerson said Kilduff came highly recommended and has an outstanding resume.

Wetland staff members from the Department of Ecology noted in their report that the only legal and technical issue at hand is whether the Kilduff report followed the Army Corps of Engineers wetland delineation manual and regional supplement, as required by state law. On that score, the staff found the report lacking.

“The site-specific information required in the delineation manual to make a wetland determination is not provided in either the SNR report or in Mr. Kilduff’s letter to the Emersons,” the Department of Ecology review letter states. The letter gives several examples of omissions.


Both studies questioned


Jamie Hartley, the county’s critical areas planner, also analyzed the wetland reports and found a number of “troubling” discrepancies between the SNR and Kilduff reports which he states can’t be explained by differences in seasons. He also questioned Kilduff’s understanding of the science. He questioned, for example, Kilduff’s assertion that the wetland area is too steep to permit standing water.

“It is a popular misconception that an area cannot be a wetland if it does not have standing water during part of the year,” Hartley wrote. “While many wetlands do have standing water at some time of the year, the 1997 Washington State Wetland Identification and Delineation Manual does not require than an area ever be inundated. In addition, many wetlands in Western Washington occur partially or wholly on slopes.”

Steve Erickson of Whidbey Environmental Action Network studied Kilduff’s report and found what he believes are numerous problems.

“As with the Neugebauer report,” he wrote, “the author seems to claim that the standard interpretations used by the relevant regulatory agencies are wrong and that the standard methodology used by almost all competent experienced wetland professionals is also wrong. In short, Kilduff’s memo does not correct the deficiencies, errors, and problems with the Neugebauer report.”

In his report, Kilduff echoes Neugebauer’s assertion that only licensed hydrogeologists are authorized, under state law, to perform the kind of wetland identification study that was required to determine if there’s a critical area on the Emerson property. That would mean the wetland scientists and biologists at the Department of Ecology and the county --- as well as the majority of consultants hired to do wetland studies --- aren’t qualified to make such determinations.

In an interview, Kilduff claims that there’s a rift between geologists and biologists over the science of determining or identifying wetlands. He said it started out of a plant-based science, but has evolved into geology and hydrogeology.

“There’s a lot of confusion. The field is shifting in its dynamics,” he said. “I do think it’s becoming more accurate over time.”

Kilduff said the SNR study involved hydrogeomorphology, which wetland scientists at the county and state aren’t qualified to interpret.

On the other hand, the Department of Ecology strongly disagrees with Kilduff on this point. Gordon White, the manager of the Ecology’s Shorelands and Environmental Assistance Program, discussed the issue in a blog post.

“Identifying and delineating a wetland relies on three interrelated areas of science: botany, soils and hydrology,” he wrote. “Understanding geology (specifically hydrogeology) is one piece of the puzzle, but does not replace knowledge of wetland vegetation or wetland soils. In 2009, the state Geologist Licensing Board determined that wetland delineation is not the practice of geology.”

Kilduff, however, countered that the SNR report involved a hydrogeomorphic analysis related to wetland identification, not delineation. He also said he’s upset with the Geologist Licensing Board over some of its decisions. He pointed out that the National Association of Boards of Geology lists of “geological tasks” includes soils and hydrology.

Doug Kelly, Island County former and newly hired hydrogeologist, said he was surprised that any hydrogeologists or geologists are even involved in wetland studies. His expertise is in groundwater, but he said other hydrogeologists may have different skill sets.

The Department of Ecology’s review of Kilduff’s study concludes that his “inaccurate claims” about who’s qualified to do wetland studies has no bearing on the facts in the case.

“It is unfair to the Emersons to be embroiled in a dispute between Mr. Kilduff and the Geology Review Board,” the Ecology review states.


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