On Tuesday, January 21, 2025, at 3:30 p.m., the Thurston County Board of County Commissioners is set to decide whether to adopt policy language to carry out the state’s UGA swap law. Click here to see highlighted language. The policy language could have a detrimental effect on rural lands. The policy language was written by two developers who are hoping it will enable them to avoid having to comply with a new law meant to prevent urban growth areas from becoming one big parking lot.
BAR Holdings is a proposed mini-city development in which developers Rob Rice and Mike Brewer are using political influence to try to get approval from Thurston County Commissioners. It is a test case under a new law called the UGA swap law. UGA stands for “urban growth area.” If the developers succeed, it will set a precedent that endangers farmlands and forestlands everywhere.
If you want to attend the January 21st hearing and publicly comment on the swap policy, you can attend in person or on Zoom. Each person gets three minutes to speak. Attending in person has the most powerful effect. The location is the glass atrium in the lobby.
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In person at the Thurston County Atrium, Suite 110, 3000 Pacific Ave SE, Olympia (kitty corner from the Olympia Food Co-op).
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By Zoom, registering in advance at the BoCC’s Meetings & Hearings Webpage.
The main message you can give for the public hearing:
The phrase “annual review” means that a jurisdiction must review its comprehensive plan every year. The 2024 swap law is clear in stating that no UGA swap is allowed to increase a UGA’s development capacity. In the draft UGA swap policy 2.6, subsection d was inserted by the developer’s attorney to allow subversion of the UGA swap law. Leaving it in allows UGA swaps to increase development capacity inside the UGA. By law, UGAs are supposed to include greenbelts and open spaces. The swap law was never intended to remove unbuildable lands from UGAs. The 2024 swap law is also clear in its intent to protect groundwater. The draft policy does not achieve this protection. Please include a section that states that no UGA swap may result in a net increase in a higher-level classification of critical aquifer recharge area inside the UGA |
Visit BAR Holdings’ Forestland in Person
If you want to see the BAR Holdings parcel in person, you can attend a 1-mile forest walk and history talk on Saturday, January 25, at 1:00 p.m., at 9606 Sheldon Road SE, Olympia. Please RSVP.
What is a UGA?
An Urban Growth Area is like a belt around a city. The belt holds in development so that it doesn’t spill into the rural areas and become urban sprawl. The purpose of a UGA is to keep urban sprawl from paving over rural lands and creating endless strip malls.
A county and city are generally not allowed to expand the city’s UGA, or belt, until it has run out of land to accommodate population growth projections for the next 20 years.
What is a UGA swap?
A UGA swap is an exception to the rule that UGAs cannot be expanded unless they’ve run out of room. A UGA swap is supposed to allow minor adjustments in one situation only: where one area of the UGA is built out and there is no more available land in that part of the UGA, while another part of the UGA is not getting built out and there is plenty of land in that area.
In those cases, if all the other swap law criteria are met, the county can expand the belt in the area where it’s tight by putting new land into the UGA. But it can do this only if it then tightens the belt in the other area where it’s loose by taking land out of the UGA. After the swap of those two parcels, there can’t be more land inside the UGA than there was before the swap.
That’s how it’s supposed to work. But the law is new. New laws take time for elected officials to understand them. Before that happens, unethical developers can try to spread false interpretations of a law to try to get their developments approved.
In the case of the UGA swap law, some Thurston County elected officials may be getting duped into thinking that a UGA swap is a way to address the housing crisis. But current UGAs, by design, have enough land to accommodate housing for the next 20 years. There’s already a mechanism to address when the UGA runs out of land for new housing: expansion of the UGA. That mechanism was built into the Growth Management Act (GMA) from the start in 1990.
In the case of BAR Holdings, the proposal doesn’t qualify for a swap. Yet developers are arguing that it’s needed because of the housing crisis.
The Spoils of War: a Unique Parcel
The current story begins in 2018. That’s the year Rice and Brewer paid $400,000 to buy 33 acres of forestland from Tom Grover just outside the Tumwater UGA boundary along 93rd Avenue at Old Highway 99. The property was so cheap because it’s outside the UGA. Only 6 houses at most can be built on it under current the current zoning. Grover had previously logged the mature timberland in 2011 and recently told the author that he had replanted it immediately without using herbicides or burn piles, both of which can harm the ecology of a newly replanted forest.
The trees are now 40-feet tall.
November 15, 2024, view of BAR Holdings’ forest from an eagles’ nest platform on the southern border. Photo courtesy of Ray Gleason.
The property has many noteworthy features. It is a wildlife corridor that is only 260 feet from the Deschutes River. It would connect the Olympic Mountains with the Cascades if wildlife crossings were built over I-5. There are 770 acres of permanently preserved lands in this wildlife corridor, which is remarkable considering it so close to the Tumwater UGA. The preserved lands include 430 acres owned by OlyEcosystems across the river to the north from BAR Holdings.
Map markups by Ronda Larson Kramer.
The property also has one of the last unpaved remnants of the Cowlitz Trail/Oregon Trail. The Cowlitz Trail was an ancient trading route (likely at least 9,000 years old) that later became a spur of the Oregon Trail.
Map created by Ronda Larson Kramer using February 11, 1854 survey plat map of Township 17N Range 2W, from the General Land Office Records from the U.S. Department of the Interior Bureau of Land Management. (Public domain)
The property is in the historic territory of the Nisqually people. After the Medicine Creek Treaty took the land from them without their permission by forging Chief Leschi’s “X” on the treaty, the first non-Indian to own the land was former Thurston County sheriff’s deputy William H. Mitchell. He obtained the property eleven years after he kicked the pin from the trap door on the gallows to execute Chief Leschi (the chief was later exonerated). Mitchell later in life callously boasted of sending Leschi to “the happy hunting grounds.”
The property is entirely classified as a critical aquifer recharge area-extreme (“CARA I”) because of the highly pervious soils and extremely high water table. It sits on an aquifer that according to a county hydrology report feeds the Deschutes River.
Retired Thurston County Water Resource Manager Gordon White worked on studies of the Deschutes River years ago. And these studies revealed that groundwater was the most important source of maintaining instream flows of the river during spring, summer and fall. The term “instream flow” simply means the volume of water flowing in a river. A trickle is a really low instream flow. A deluge is a really high instream flow.
White recently told the author that impervious surfaces (i.e., paved developments) in the southern portion of Tumwater’s UGA will have a negative impact on private wells and drinking water systems within that aquifer, in addition to reducing the Deschutes River’s instream flows. Ecology classifies the Deschutes Watershed as high risk.
The Two Swap Laws
As mentioned, under current zoning, BAR Holdings developers cannot build more than six houses on this 33-acre forested parcel that sits just outside Tumwater’s UGA. They are asking for permission to use the UGA swap law to put the parcel into Tumwater’s urban growth area. That would enable them to reap millions of dollars in profit because once the parcel is inside the UGA, they can build a mini-city on it and sell it.
Because the UGA swap law is new, the county first must put in place a policy to carry out the new law. But in fact, there are two new laws. One was passed in 2022 and the other was passed in 2024. They are very similar. The 2024 law has all the same requirements as the 2022 law plus more. The 2024 law added stronger protections for the environment, farmlands, and groundwater. (To see a comparison of the two swap laws, click here).
Unlike the 2022 UGA swap law, the 2024 UGA swap law says that a swap cannot happen if it would result in an increase in development capacity. The county’s hydrology report has found that the BAR Holdings swap would result in an increase in development capacity. In other words, the BAR Holdings swap would violate the 2024 swap law.
The 2024 swap law also says that after the swap, the UGA cannot have more critical aquifer recharge area in it than it had before the swap. Although the BAR Holdings swap would not result in more critical aquifer recharge area (“CARA”) in the Tumwater UGA than before the swap, it would result in a net increase in the most valuable type of CARA in the UGA.
The BAR Holdings parcel is CARA-extreme, meaning it requires the highest protections of groundwater because it is so important to aquifer recharge. In contrast, the parcel that would be swapped out of the UGA up near Black Lake is CARA-moderate, meaning it requires the least protections of groundwater because the aquifer is deep and rainwater does not absorb well into the soils. By swapping those two parcels, the result is a net decrease in groundwater protections, which is the opposite of what the 2024 swap law intended.
A Policy that Circumvents the Law
Because of these problems with BAR Holdings’ proposed swap, developers know that the 2024 swap law is not their friend. And so they simply wrote a policy that would allow them to evade the 2024 swap law (see page 2 here). Their consultant, David Toyer, or more likely, their attorney, Heather Burgess, used legal hocus pocus to make it look like the 2024 swap law does not apply to all swaps in all years.
Their proposed policy misleads the reader into believing that there are two types of swaps: ones that occur during comprehensive plan updates and ones that occur during comprehensive plan amendments. But there are not two types of swaps.
It is true that the 2022 swap law applies solely to updates and not amendments. But the 2024 swap law applies to any type of swap during any year. And the 2024 swap law contains all the same provisions of the 2022 swap law plus two more that are intended to protect the environment: UGA groundwater protections and UGA greenspace protections.
Thus, the more robust 2024 swap law subsumes the weaker 2022 swap law. In legalese this means the 2024 swap law “supersedes” the 2022 swap law. As such, we can simply ignore the 2022 swap law because it doesn’t do anything more than the 2024 law does. The more robust 2024 swap law has taken over and governs any swap during any year.
BAR Holdings’ proposed policy language, which the Board of County Commissioners will consider at the public hearing on January 21st, tries to obfuscate the fact that the 2024 law superseded the 2022 law. This obfuscation gives the developers an opening to build a dense mini-city on land intended for only 6 dwellings in the most important type of critical aquifer recharge area the county has. It would open the door to paving over that aquifer recharge area, which would further reduce instream flows of the nearby Deschutes River and would impact wells and drinking water.
Moreover, the developers’ own consultant agrees with the county hydrologist that the land the developer proposes to swap out of the UGA near Black Lake is heavily constrained for any type of building. So, the development capacity of the swap-out parcel is not equivalent in any way to that of the swap-in parcel. This is another violation of the swap law.
If the County Commissioners approve the developers’ proposed language, it will open the door to illegal UGA swaps getting approved. That will only lead to litigation, not more housing being built. If commissioners want to see more housing being built, they need to put the county’s resources into proposals that aren’t built on a house of cards.
Flawed State Environmental Policy Act Review
Aside from the flawed policy language, there is also now a flawed environmental review of the policy language. On December 23rd, Thurston County planning staff performed the environmental review that ended up with a “not applicable” for virtually every question on the “SEPA checklist.” The final result was a “determination of nonsignificance” or DNS.
What should have been done was an EIS (environmental impact statement). Such deep dives allow elected officials (as well as the public) to have the full picture of future environmental impacts before making a decision.
As retired water resource manager Gordon White wrote to the author, the county hydrology report on BAR Holdings is an excellent description of the impacts any further paved developments will have on the Deschutes River, private wells and drinking water systems within that aquifer. It is a great example of why a DNS on the proposed UGA swap policy is in error.
A DNS also flies in the face of a Washington Supreme Court decision from September 2024: King County v. Friends of Sammamish Valley. That case said even if the issue being looked at doesn’t involve an actual development project (e.g., the issue is on paper, like a policy update), if it will lead to environmental impacts, you need to evaluate the environmental impacts and do an EIS, not a DNS.
A UGA is a defensive wall against sprawl and damaging development. It is a boundary that protects a lot of resources. Because of this, the county must do an environmental assessment for any policy that allows a breach of that defensive wall. Because a UGA swap policy will allow a breach in that wall, an EIS is required.
The county set a January 23rd deadline for public comment on the flawed DNS. If you are interested in submitting comment on that specific item, please email your comment to Andrew.Boughan@co.thurston.wa.us.
But the more important public comment opportunity is the January 21st hearing in front of the Board of County Commissioners. If we succeed in having a large enough turnout to oppose the flawed draft policy, we can stop BAR Holdings dead in its tracks. Please consider showing up in person or on Zoom and making your voice heard.
If you would like to submit a comment but do not want to spend time crafting it, please contact the author, as I will be happy to send you some language to use: rlarsonkramer@gmail.com.
Ronda Larson Kramer is a local attorney and small forest landowner with a Masters in Urban Planning.
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