County denies mining company’s road proposal near ‘Washougal Pit’

The proposal received more than 80 public comments from residents, who voiced their strong concerns about the impact of the redesignation.

“I think it’s absolutely ridiculous that we are (considering) putting a corporation’s best interest ahead of the environment of the Columbia River Gorge, as well as the safety of the (people) that reside on 356th Avenue,” Southeast 356th Avenue resident Bryce Condon said during the July 16 meeting. “Unless there’s some other entirely separate hearing where all the people in favor of Zimmerly and in favor of this petition are going to speak, I don’t think there’s any question where the public’s opinion lands.”

A report compiled by Clark County Public Works Director Ken Lader recommended the Council deny Zimmerly’s request.

“Acceptance of the dedication of this private road for establishment of a public road is premature,” Lader told the Council during the July 16 meeting. “The appropriate time for this process is post-reclamation of the ‘Washougal Pit.’ Conversion of the road will require a full land use review, and due to current land ownership, successful establishment of the public road is unlikely without condemnation. Alternatively, the petitioners could submit the request through the standard application process for private to public road conversion.”

According to the FCG, the petition asked Clark County to:

• Assume all liabilities and responsibilities for the proposed mining-haul road, including maintenance costs and other expenses, “placing an unfair and costly financial burden on taxpayers”;

• Invest significant taxpayer dollars to widen, relocate, realign or redesign the road to comply with public road standards and requirements because “sections of the proposed road are too narrow to serve as public roads”; and

• Fix multiple existing violations within the proposed public right-of-way, including unpermitted drainage ditches and underground utility lines that were previously installed to serve mining at the site, “thus (possibly) saddling the taxpayers with even further costs.”

Lader’s report states that the petition is rife with issues and that the standard practice for conversion of a road from private to public would require, at a minimum, land-use and Washington State Environmental Protection Act (SEPA) review; legal establishment of right-of-way boundaries; examination of existing easements; and establishment of any needed easements, typically requiring a review of a variety of land use and related code sections.

“The County engineer has determined that establishment of the road is possible,” the report states. “However, the conditions and ownership issues identified in this report must be resolved prior to establishment. Approval of this petition to establish the road will require … staff to resolve these conditions and property ownership issues.”

Parcels underlying the current alignment of Southeast 356th Avenue include five independent landowners, two of which are the petitioners. The dedication of right-of-way solely from the petitioners would not provide full public access along the current roadway alignment. The petitioner posits that a shift in roadway alignment could resolve this issue, keeping the road solely on existing Zimmerly parcels. The examination determined that the road could be realigned and operable solely on Zimmerly parcels, but “such realignment would require permitting and mitigation for any impacts.”

The County did not include the road in its six-year Transportation Improvement Program and has no plans to develop the road.

There is no current or future circulation or volume of traffic benefit to the County road system that would result from this road establishment.

“Reviewing the road conversion separately from the operation of Washougal Pit and its land-use application would be an unusual step,” the report states. “Because trip generation, concurrency and safety concerns are directly tied to approval and use of Washougal Pit, the road establishment itself, outside of the standard process, has no means to examine these aspects of a new public road.”

James Howsley, Zimmerly’s attorney, said during the July 16 meeting that Lader’s report contains “some factual inaccuracies, omissions and gaping holes,” but respond to a The Post-Record’s request for more information.

Rachel Grice, a resident of Southeast 356th Avenue, told The Post-Record that “it made no sense at all for the County to accept the road from a cost and work aspect” and “there seemed to be no benefit outside of the fact that the mine (operators are) saying that they could provide aggregate.”

“This road goes absolutely nowhere,” Southeast 356th Avenue resident Paul Akers told the Council. “It’s a quarter-mile of asphalt that leads to a fence, into a pit, with all kinds of foliage on the side. If the County were, in fact, to have to maintain this road, crews are going to have to be out here (all the time). I don’t see the benefit to the citizens of Clark County to have to maintain this road.”

Southeast 356th Avenue resident Karen Streeter stated in an email to the County that “Zimmerly is very clearly trying to get around noise requirements by pulling this little trick on the County.”

“I find this entire proposal to be a sad effort by mine owner Zimmerly to circumvent the legitimate conditional-use permitting process that Clark County has in place,” she stated. “As a part of the SEPA appeal for the land-use permit for the mine, we watched Zimmerly and Nutter present multiple noise reports about the impact of their mine and mine trucks on the local community. More than 10 reports by professional consultants who specialize in noise reduction were prepared and submitted for review (and) approval. However, in the end, none of them could sufficiently prove that several hundred dump trucks per day did not make a lot of noise; imagine that. So, instead of trying to meet your County and Washington State’s requirements, they hatched this ridiculous plan to ‘give’ the road to the County, with the hope and expectation that the noise requirements for the roadway would be lowered if it were a County road.”

Zimmerly stated in the petition that accepting the proposed dedication would reduce noise restrictions on the land use related to the operation of Washougal Pit.

Baker, however, said that if the road were to be redesignated as public, the noise limits would be determined by SEPA and the County hearing examiner’s conditional-use permitting process.

“We don’t believe that changing (the road to public use) would necessarily change the noise restrictions,” he said. “There could end up being even more restrictive noise limits if it becomes a public road. It was like, ‘Be careful what you wish for.’ They were asking for the road to be public for that reason, but they might’ve ended up with stricter noise limits instead.”

‘Trying to hit it from every angle’

Zimmerly acquired a land-use permit from the Gorge Commission in 1993, and mined the site for four years before stopping in the winter of 1996-97, when severe winter storms in Clark County caused landslides and other damage, including “catastrophic” offsite discharge of sediment-laden mining runoff from the Zimmerly property onto adjacent properties and into the environmentally sensitive Steigerwald Lake National Wildlife Refuge and Gibbons Creek, destroying nearly one mile of river salmon habitat, according to Baker.

As a result, the Washington State Department of Ecology fined Zimmerly and Nutter almost $200,000.

“And that’s essentially when mining stopped,” Baker said. “There was essentially no mining for 20 years, and because they stopped for more than one year, they lost their permit.”

Despite the lack of a permit, the Nutter Corporation started mining in the area again in 2017. Nutter’s double-loaded gravel trucks made more than 200 round trips each day, gouging deep ruts into Southeast 356th Avenue and other local throughways, spilling sediment into local waterways, and “terrorizing local residents with noisy and dangerous truck traffic,” according to the FCG.

“It was nonstop noise,” Rachel Grice told The Post-Record. “There were up to four (trucks) on the road at a time, and they’d be passing each other. And because it’s such a steep grade of a road, they would have to do something to their breaks. We could hear this big shifting and change of volume in the engine. A lot of them had squeaky brakes, (and made) this eerie, high-pitched squeal all the way down.”

In July 2018, one of the trucks, packed down with rocks and gravel, lost control of its brakes going down Southeast 356th Avenue and crashed onto the railroad tracks across Evergreen Highway.

“Thankfully, no pedestrians, buses or trains were hit,” Southeast 356th Avenue resident Audrey Grice told the Council. “Had this happened during the school year or just 20 minutes later, the outcome likely would have been much different, with trains running multiple times an hour, and school buses and traffic traveling Evergreen Highway at regular intervals. This was an especially unnerving event for our family.”

The trucks also caused health issues for some residents, according to Southeast 356th Avenue resident Matt Condon.

“They polluted the air,” Condon said during the Council’s July 16 meeting. “Their contents caused a layer of dust to settle on (the road) and our driveways every night. I’m an asthma sufferer, so having that dust in my own driveway caused my asthma to go wild. For months, I dealt with a cough. It’s a health issue for me. It’s a health issue for others.”

In August 2019, the Columbia River Gorge Commission voted 10-1 to reverse an August 2018 decision by Clark County Hearings Examiner Joe Turner that allowed mining at the Washougal Pit.

From 2020 to 2023, Zimmerly and Nutter applied several times for a new land-use permit from the County to resume mining at the site. In their application, they contended that mining is allowable at the Washougal Pit, and that mining, processing (including rock crushing), and hauling of materials has been occurring on the property since 2017.

“The Washougal Pit is one of the only reliable and readily available sources of aggregate within Clark County,” lawyers for Nutter and Zimmerly stated in a permit application. “Due to the ongoing aggregate shortage crisis, (Nutter) expects that loading and hauling will need to occur outside of normal hours of operation … The ongoing aggregate shortage facing Clark County constitutes an emergency, as the County desperately needs this aggregate for public and private infrastructure projects.

“Without the aggregate provided by the Washougal Pit, infrastructure and development projects will be delayed. This will further exacerbate the affordable housing shortage facing … and delay the County’s attempts to refresh its aging transportation infrastructure and facilities.”

The applications lacked “comprehensive environmental review required by law,” according to the FCG, and were denied by the County in 2023. The County’s decision is currently on appeal to the Gorge Commission.

In 2023, the FCG won 12 court cases, appeals and contested motions against Zimmerly and Nutter involving the property.

“It feels like (Zimmerly is dealing with) outstanding lawsuits all the time,” Rachel Grice told The Post-Record. “They’re just kind of trying to hit it from every angle. It felt like the road was just one more like, ‘Let’s just see if somehow we can get past this way.’ It feels like … they’re trying every angle possible instead of just putting their energy into getting permits.”

Clark County Council Chair Gary Medvigy said the situation has been “a tortured path” and that “a lot has changed” since Zimmerly began its mining operations in 2018.

“This is not going to be a public benefit,” he said about the proposed road redesignation. “It’s going to be too costly. There’s too much potential litigation surrounding it that’s still ongoing. There’s just too many gray areas.”

Councilwoman Karen Bornwerman expressed support for aggregate production in Clark County and her belief that people who purchase property near a mine should know in advance about “a formula for issues that are pretty well known in the future.”

“But on the other hand, I am not willing to vote for something that might lead to and is likely to lead to eminent domain,” she said. “And given the fact that there is an alternative that is available to the developers, and in hopes that it will be one that is appropriately developed, not to fly in the face of the testimony that we have received on the negative impact to the air, the noise, etc.”

Councilman Glen Young agreed with Bowerman about the aggregate, calling it an “absolutely critical resource.” But he, too, expressed his beliefs that the proposal came with more negatives than positives.

“This particular issue here to me, I don’t see as mining or not mining,” he said. “I really see it as a request to transfer a road from private ownership to public ownership, and the information that’s been presented to me does not show a true public benefit to warrant that change.”