Evidence of Bias in City of Blaine’s Avista SEPA Appeal
by Geoffrey Baker
Contributing Editors: Tina Erwin and Oliver Grah
Part 1
State Environmental Policy Act (SEPA) decisions are making headlines in Whatcom County from Salish Sea LNG terminals to estuary protection (Mud Bay Cliffs). This story looks inside the City of Blaine’s land-use tactics during a three-month SEPA appeal in late 2025.
In January 2026, the Blaine City Council denied the citizen appeal and approved the 181-acre, around $0.5 billion, 490-unit Avista at Birch Point development above and north of Birch Bay, one of the largest in Whatcom County today. Crucially, the City Attorney (CSD Law) framed the council vote as a binary choice (approve or deny), effectively sidelining a formal request to admit missing evidence for council decision-making.
The appeal drew over 200 written comments, five days of testimony, and hundreds of pages of exhibits. Their top concerns: worsening flooding in Birch Bay Village, cumulative stormwater pollution impairing shellfish beds, wetland shrinkage, protection of Critical Aquifer Recharge Areas that keep the bay clean, frequently flooded areas, traffic, and shifting infrastructure costs onto existing homeowners through higher utility bills.
With so much tax revenue at stake, the city and developer (Semiahmoo LLC) spent thousands of dollars on a small army of seven lawyers and paralegals to rebuff the “Pro Se” community volunteers (Appellants).
Tactic 1: Slow Walk Appellant Public Record Act (PRA) Requests
A fitful start …
Early on, the City of Blaine omitted or selectively posted Avista records (i.e., documents, public comments and communications on the website/document center). When Water Planning Matters (WPM) Appellants filed the Public Record Act (PRA) request on July 18, 2025, to advance preparation efforts, the City of Blaine clerk said it would take until August 27, 2027, almost two years beyond the hearing close date “to review 26,000 emails.” This appeared unreasonable and out of scope. Delays in PRA requests also disadvantaged citizens needing time to pour through technical documents and prepare evidence as the pre-hearing of October 2, 2025 approached.
Given these hurdles, the Appellants filed a Public Records Act (PRA) complaint in Whatcom County Superior Court (August 8, 2025). This was later withdrawn (September 5, 2025) when the Blaine Hearing Examiner affirmed the challenges faced by the Appellants and ordered discovery on the City of Blaine to overcome these “obstacles” (October 4, 2025). By October 15, 2025, the City of Blaine had released over 100 previously withheld files, including important Department of Ecology (Ecology) concerns about frequently flooded areas, unmaintained ponds that flooded Birch Bay Village, disturbed and unprotected wetlands used for contaminated stormwater, polluted streams and project engineering correspondence.
Tactic 2: Vanishing Science
One of the clearest procedural failures in the Avista SEPA process involved the admission, exclusion and selective omission of evidence into the Blaine Hearing Examiner’s record for ruling on mitigating conditions for responsible development.
On Day 4 of the Avista appeal hearings (Nov. 12, 2025), an exchange occurred that would later drive a formal Blaine City Council remand request to restore admitted evidence, initiate state compliance and trigger a forensic audit of Blaine’s examiner and administrative record process for bias. In quasi-judicial rulings, only “admitted” evidence is considered. That is why disputes over exhibit status mattered: if climate, water quality, or shoreline materials disappeared from the admitted record, they also disappeared from the decision-making framework.
It began with the Blaine Hearing Examiner considering whether to admit the Appellant’s 2025 Whatcom County Future Shorelines Report, a technical study as evidence. The report references the University of Washington Climate Impacts Group (CIG) projections for 100-year flood events in Birch Bay. These events are expected to increase dramatically by the 2040s and beyond with continued climate change. CIG projections are vital for stormwater planning, used by seven large cities and counties in the state to stress test stormwater frequency, intensity and duration events in hydrology models for stormwater ponds.
2012 (Outdated) Hydrology Model
For example, the Avista developer’s stormwater management plan is based on an outdated version of Ecology’s Western Washington Hydrology Model (WWHM 2012) assumptions for rain duration, frequency and intensity that do not account for climate change.
WWHM uses the 1948–2009 Blaine rain gauge record, a 77-year historical dataset that predates more frequent and intense atmospheric rivers and flooding now hitting Whatcom County almost every year.
DOE has recommended cities and counties use climate-adjusted multipliers for precipitation scenarios in WWHM even when cities like Blaine vest developers to lower standards (outdated stormwater manuals and pollution standards [AKART]). [All Known, Available, and Reasonable Treatment (AKART) standards for polluted waters.] (1)
The risks of faulty or overly aggressive assumptions are not theoretical. If contributing water areas (FFAs [Water Quality Indicator: FFA levels are measured to assess contamination in surface waters, often indicating oil/grease pollution or biological degradation], pond capacity, conveyance systems, wetland buffers, or forest cover are mischaracterized or miscalculated, the consequences flow directly downhill to Birch Bay. Homes in Birch Bay Village flood, property values decline, homeowners lose affordable insurance coverage (2), and shoreline recreation, shellfish harvesting, fishing and beaches become contaminated.
One of our exhibits for local Birch Bay CIG impact shows that the 100-year, 24-hour storm in the 2040s is projected to be approximately 31.7 percent more intense than the 1981–2010 baseline with some models projecting increases up to 78 percent.
The CIG analysis is one example of best available science (BAS) exhibits initially admitted as evidence then dismissed by the Blaine Hearing Examiner. This is not a peripheral matter. It goes to the core environmental questions SEPA is designed to address and directly contradicts Washington’s “best available science” mandates for critical areas protection.
Tactic 3: Material Omission
Example 1: The Creek That Vanished From the Record. A key example of this bias-through-omission is the treatment of Wetland C on the Avista site, a hydrologically connected feature that drains into a state-listed 303(d) impaired, fish-bearing stream flowing into Birch Bay. WA Department of Ecology (DOE) maps showing this impairment were admitted into the record, but vanished from the Blaine Hearing Examiner’s findings. Instead of applying stricter buffers and All Known, Available, and Reasonable Treatment (AKART) standards for polluted waters under RCW 90.48, the ruling treated the stream as a mere “private ditch,” shrinking buffers from a potential 225 feet to just 95 feet; a 19.84-acre deficit that boosts buildable land for the developer.
This omission wasn’t accidental; a remand letter flagging the maps was blocked from the Blaine City Council review, ensuring the correction never factored into the final decision.
Example 2: Best Available Science. The Blaine Hearing Examiner’s 58-page ruling is conspicuously silent on the city’s statutory duty to apply Best Available Science under RCW 36.70A.172 and Blaine’s municipal code (BMC 17.82.055). The phrase “best available science” appears zero times as an affirmative obligation that the City of Blaine was required to meet. It surfaces only once when the Blaine Hearing Examiner uses it to discredit the Appellants and community citizens who testified, including a retired engineer familiar with historical flooding issues from unpermitted Avista ponds downstream from the project. Citizen letters about flooding from unpermitted ponds were also summarily dismissed.
Instead of enforcing this mandatory code, the Blaine Hearing Examiner used two procedural trapdoors to make science vanish:
- The “Vesting” Trap: He ruled the City of Blaine was “bound” to the 2019 Stormwater Manual because the application was vested, effectively ruling that bureaucratic dates trump the physical reality of climate change.
- The “Finality” Trap: He ruled that the Critical Areas Determination (CAD), which relied on outdated 1996 data, could not be challenged because it wasn’t appealed earlier. This allowed a “final” administrative decision to stand even though it violated the BAS code by ignoring modern aquifer maps.
By prioritizing Vesting and Finality over the BAS mandate, the Blaine Hearing Examiner created a legal loophole where the City of Blaine is shielded from knowing what its own staff know.
When the Appellants’ certified wetland scientist highlighted best practices for this highly disturbed site, including ditches draining wetlands, historical clear-cutting, removal of 30 – 40 acres of red alder canopy, and construction of unpermitted ponds, the City Planning Director had clear authority to reopen the CAD under Blaine Municipal Code BMC 17.82.250(b) … to investigate the documented concerns. He refused. Instead, the City of Blaine and Applicant discounted DOE’s frequently flooding areas and wetlands concerns, used hearsay to dismiss Avista’s location in Whatcom County Critical Aquifer Recharge Areas’ (CARA) aquifer maps, and ignored an impaired creek deserving of protection for fish and lagoons in Birch Bay Village, primarily on procedural grounds, choosing to approve the project in a vacuum of missing facts and outdated city maps.
Tactic 4: Passing the Buck
Use Selective Framing and Plausible Denial to Exempt the Developer and City from Practicing Best Available Science.
The Blaine Hearing Examiner’s ruling relies on Selective Framing: selectively omitting and conflating minimum code compliance with substantive safety. By arguing that, because the 2019 Stormwater Manual (replaced already by 2024) doesn’t force the City or Applicant to check for climate impacts, they cannot do so, the City of Blaine creates an outcome of perceived compliance.
This ignores SEPA’s “Hard Look” and the city’s statutory duty under (WAC 197-11-660) and the Growth Management Act (RCW 36.70A.172) and the city’s own ordinances (BMC) to use Best Available Science (BAS) to prevent actual harm.
The City’s Claim
The Reality & Legal Rebuttal:
I’m not “aware of any jurisdiction that has as yet attempted to impose more than required by its stormwater standards through SEPA on the sole basis of climate change.” (Blaine Hearing Examiner, p. 3, footnote 3)
Demonstrably False. Multiple Washington jurisdictions already voluntarily use CIG climate data for stormwater planning (Thurston, King County and Tacoma) “Lack of awareness” is not a defense for ignoring BAS. WAC 197-11-080 requires obtaining essential risk info (e.g., flooding) if feasible.
“WWHM (Western Washington Hydrology Model) 2012 time period cannot be modified … such modification lacks precedent.” (Blaine Hearing Examiner, p. 28)
Factually Incorrect. WWHM explicitly includes “precipitation multiplication factors” (0.8–2.0) for this purpose (WWHM User Manual v4.3.2; SWMMWW Appendix III-B). The tool exists; the city refuses to use it.
For atmospheric river events, “once in a lifetime” and “designing for such events is not how we review stormwater.” (City Planning Director, Staff Report, Oct. 2025)
Junk Science. Uninformed, Fails SEPA “Hard Look.” Climate change isn’t an “outlier”; it’s a shifted baseline. Using 1948–2009 data designs for a climate that no longer exists, resulting in undersized infrastructure. The Director’s statements are directly contradicted by Whatcom County proactively planning for increased drainage flows; modeling 22 percent increases in water-flows from the Avista project basin. (3)
“… the SEPA checklist does not reference ‘climate’ as … subject to SEPA review.”
(Public Works Director, Staff Appeal Report, 10.15,2025)
Legal Misdirection. The SEPA Checklist is a floor, not a ceiling. Substantive Authority empowers the City to mitigate any proven adverse impact, regardless of a checkbox.
This is classic framing that treats the vesting of the application to the 2019 Stormwater Management Manual as a legal shield against climate science. The City of Blaine’s vesting argument, in other words, may close the SEPA record, but it does not determine whether the approval meets best available science standards for state permitting purposes.
Tactic 5: Marginalize: Evidence Exclusion, Vanish, Discredit and Dismiss Process
What we experienced with the CIG/Shorelines exhibit exclusion happened repeatedly with procedural blockages and motions to deny exhibit admission. While we struggled under tight deadlines as “Pro Se” Appellants to get the right formats for submission, there was a larger pattern at play. Excluding evidence was not an isolated incident. There appeared to be concerted efforts by Applicant and City of Blaine to exclude consequential information that might affect the buildable footprint or higher costs relating to mitigating flooding, pollution or wetlands damage risks.
Next Month:
Tactic 6: Signal a Future Judge With “Near Bulletproof ” Case — we’ll learn how bias appears in subtle but consistent patterns. And, what other complications and indignities the community volunteers (Appellants) experienced during the process.
To learn more, the graphics and educational video to go with this article will be here: https://www.waterplanningmatters.org/judicial-bias
Endnotes
- AKART (All Known, Available, and Reasonable methods of prevention, control, and treatment) is a performance-based legal standard under RCW 90.48 for treatment and monitoring for discharges to 303(d)-impaired Birch Bay waters, including contaminants such as 6PPD-quinone.
- Significant portions of Birch Bay Village, WA, are within a designated FEMA Special Flood Hazard Areas (SFHA) for high-risk zones. The specific designations can be found on the websites for WA state Flood Hazards and First Street Flood Risk Assessment (Zillow).
- 2023 Birch Point Subwatershed Drainage Study (Tetra Tech), p. 29. Whatcom County-sponsored.
Sources
- Whatcom County Public Works, Future Shorelines Project Story Map (2025)
- University of Washington Climate Impacts Group’s online “Projected Changes in Extreme Precipitation” tool for the Birch Bay, WA.
- On Epistemic Privilege & The Bias of Planning Boards: Einstein, K. L., Glick, D. M., & Palmer, M. (2019). “Neighborhood Defenders: Participatory Politics and America’s Housing Crisis.” Cambridge University Press. (Provides empirical evidence that local planning bodies systematically categorize public comments as “non-technical noise” to favor institutional developers).
- On Testimonial Injustice (The “Lay Discount” Rate): Fricker, M. (2007). “Epistemic Injustice: Power and the Ethics of Knowing.” Oxford University Press. (Defines the concept of wronging a speaker in their capacity as a knower by assigning a “credibility deficit” based on their identity as a layperson).
- On the Mathematical Weighting of Legal Arguments: “What About the Precedent: An Information- Theoretic Analysis of Common Law” (2021) by Josef Valvoda et al. The Role of Precedent in Computational Models of Law (Cambridge) by Josef Valvoda (2023)
- On “Lay Opinion” as Substantial Evidence: Georgetown Preservation Society v. County of El Dorado (2018) 30 Cal. App.5th 358. Comparative legal precedent establishing that lay testimony regarding observable environmental impacts — such as flooding or traffic — constitutes substantial evidence and cannot be categorically disregarded simply because the speaker is not an engineer.
- On Methodologies: Leslie, R., Jain, P. T., & Ghimire, S. S. A. (2025). “Data analytics in judicial decision making: Enhancing transparency or undermining independence?” GSC Advanced Research and Reviews, 15(3), 1–15.
Avista Public Record Documents
All factual claims in this article are drawn from the public records of Avista at Birch Point consolidated SEPA appeal and PUD hearing (City of Blaine File No. 2025042), including but limited to: the Blaine Hearing Examiner’s January 5, 2026 Recommendation (Ruling); the hearing transcript (454 pages, November 5–14, 2025); the Blaine Hearing Examiner’s November 10 and November 25, 2025 emails; the appellants’ closing brief (November 19, 2025) and reply brief (December 5, 2025); the City of Blaine’s Exhibit A revised staff report; the January 12, 2026 remand letter; the January 26, 2026 Blaine City Council meeting transcript; and the Washington Department of Ecology Technical Memorandum (February 11, 2026).
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Geoffrey Baker, MBA (also known as Otto Pointer), enjoys working at the intersections of technology, public health, compliance and sustainability. Having grown up overseas, Geoffrey respects diverse viewpoints, staying non-political and overcoming challenges with persistence. He has graduate degrees in healthcare and economics.
Tina Erwin CDR USN (Ret.), MM, spent 20 years in the Navy, working for the U.S. Submarine Force, as a terrorist expert, retiring at the Commander level. She also has a Master’s degree in management. Tina is currently the author of nine books on metaphysics.
Oliver Grah, M.S., C.P.W.S., is a watershed scientist and Certified Professional Wetlands Scientist with over 45 years of experience in hydrology, climate change adaptation and environmental policy including over 30 years in northwest Washington. He served as Water Resources Program Manager for the Nooksack Indian Tribe, directing glacier monitoring, stream flow, sediment and temperature modeling, and climate resilience planning for salmon habitat. He previously held the position of Natural Resources Division Manager for Whatcom County, where he oversaw Best Available Science integration in land-use and critical areas decisions. Oliver now works as an independent expert witness and consultant on SEPA, wetland science, aquifer protection and regulatory compliance.
