Declaration of Helen D. Kludt
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No. 726259
DECLARATION OF HELEN D. KLUDT
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Helen D. Kludt testifies as follows:
1. I reside at 17529 13th Avenue Southwest in Normandy Park, Washington. I am of legal age and sound mind. I am one of the parties plaintiff in an action titled Kludt et ux., et al. vs. County of King, the Port of Seattle, and the Washington State Highway Commission, Cause No. 726259. I am the designated representative of all the plaintiffs.
2. In partial settlement of the above described lawsuit I executed an instrument on behalf of said plaintiffs titled Stipulation and Order of Dismissal as to Defendant Port of Seattle with the Port of Seattle on October 12, 1972. This stipulated settlement agreement was filed in King County Superior Court under Cause No. 726259. A copy of that agreement is attached hereto, as Exhibit 1.
[Declaration of Helen D. Kludt - Page 1]
3. Attached to the aforesaid Stipulation and Order of Dismissal as to Defendant Port of Seattle (Exhibit 1 hereto) as Exhibit A, is a letter dated October 6, 1972 from Port of Seattle Chief Engineer Vern Ljungren. This letter describes the North Clear Zone Detention Pond which was constructed under the terms of the stipulated settlement agreement with the Port of Seattle:
The Port of Seattle Engineering Department will recommend to the Port Commission that the North Clear Zone Detention Pond be constructed during the summer of 1973. This recommendation will be made as soon as a preliminary cost estimate covering this work is completed. We anticipate that this will be no later than the November 14, 1972 meeting of the Port Commission. This detention pond will have minimum storage capacity of 13.5 acre feet of water (with 1.75 feet of freeboard). This storage capacity will be over and above the normal holding capacity of the pond. The detention pond will have a maximum discharge of 40 cubic feet per second. . . . [Footnote 1]
3. The Stipulation and Order of Dismissal as to Defendant Port of Seattle (Exhibit 1) dated October 12, 1972 records the terms of the settlement agreement whereby:
Plaintiffs and the Port of Seattle, through their undersigned attorneys, hereby stipulate and agree as follows:1. The Port of Seattle shall deliver to attorney for plaintiffs a letter in the form attached herein as Exhibit A.
2. Plaintiff's Amended Complaint shall be dismissed as to defendant Port of Seattle without prejudice.
[Footnote 1: Stipulation and Order of Dismissal as to Defendant Port of Seattle, Kludt et ux., et al. v. King County and State of Washington Highway Commission, No. 762259 King County Superior Court Oct. 12, 1972, Exhibit A.]
[Declaration of Helen D. Kludt - Page 2] 4. Plaintiffs hereby release the Port of Seattle from all claims for damages or injunctive relief now existing or arising before October 1, 1974 arising from any alteration of the water purity, water volume, water flow velocity or other flow characteristics of Miller Creek resulting from the construction or maintenance of the drainage retention facility as described in Exhibit A, or from the construction of additional facilities at Seattle-Tacoma International Airport which drain into Miller Creek through said facility PROVIDED HOWEVER that the effectiveness of this release is expressly conditioned upon completion by the Port of Seattle of the drainage retention facility as described in Exhibit A, and provided further that the effectiveness of this release is expressly conditioned upon maintenance in their present condition by the Port of Seattle, of the existing dike and to each culvert at 16th Avenue in the North Clear Zone of the Seattle Tacoma International Airport between the date of this Stipulation and the initiation of the drainage facility described in Exhibit A attached hereto.
DATED this 11th day of October, 1972. [Footnote 2] [Footnote 2 - Supra, pp. 1-2]
[Declaration of Helen D. Kludt - Page 3] 4. On February 16, 1973 Defendant King County presented a motion in King County Superior Court to set aside the trial date of February 26, 1973 for this case. The motion requested a delay of the trial date to allow completion of the study known as the "Sea-Tac Airport and Vicinity Master Plan". The Court granted this motion and issued an Order requiring "that periodic progress reports concerning the status and work product of the Sea-Tac Airport and Vicinity Master Plan shall be furnished by King County to the plaintiffs' attorney, and that said reports shall be furnished at not less than six week intervals during the period the study is in progress."
5. The Sea-Tac Airport and Vicinity Master Plan, subsequently named the Sea-Tac Communities Plan, involved an effort by the Federal Aviation Administration, the Port of Seattle, King County, and local citizens. The principal goal of the plan was to attain maximum compatibility between Sea-Tac airport and surrounding communities. George Buely and George Saito of the FAA obtained a grant of approximately $600,000 which paid two-thirds of the cost of the Sea-Tac Communities Plan. The Port of Seattle and King County contributed about $100,000 each in services to the plan. To accomplish its goals, the Sea-Tac Communities Plan recommended the implementation of drainage and water quality improvements, park and recreation improvements, the establishment of comprehensive noise remedy programs, and an agreement by the Port and King County to fulfill the staff and budgetary needs of implementing the plan. I was asked to be a member of the Citizens Committee that was created to participate in the Sea-Tac Communities Plan and assisted as a citizen member on the plan's Water Quality and Drainage Study Committee.
6. In November 1973 the Sea-Tac Communities Plan: Six-Month Summary Report was completed. A copy is attached hereto as Exhibit 2. The major findings of the Sea-Tac Communities Plan were identified in the plan's Phase I conclusions:
[Declaration of Helen D. Kludt - Page 4] The Airport site has adequate capability to accommodate foreseeable air traffic demand. No major expansion of the site is required.
Noise exposure has peaked and, although expected to decrease with time, will remain a significant environmental problem in certain areas.
Overall size of the study area population, some 137,000 in 1970, has generally stabilized; only minor increases are expected during the next 20 years.
Employment in the area, especially at the Airport or as related to Airport activities, is increasing.
No insurmountable problems relative to air and water quality have been identified to date. [Footnote 3] 7. I attended many meetings and discussions with Port of Seattle and King County representatives in conjunction with the Sea-Tac Communities Plan concerning water quality and drainage problems existing in the Miller Creek Basin. One of the issues which arose in the course of these committee discussions was a proposal which contemplated the rechannelization of Miller Creek in order to extend highway 509. In a November 30, 1973 memorandum to the Chairman of the Sea-Tac Community Plan's Policy Advisory Committee, Urban Development Sub-Committee member Bruce Mecklenburg stated "the Water Quality & Drainage Task Force, is compelled to document its feeling on this." He. noted the Plan's Phase I technical consultant had concluded that the Miller/Walker Creek drainage system "... is presently inadequate to handle the runoff." Mr. Mecklenburg wrote "[t]he wetland East of Des Moines Way between South 168th and South 176th is a critical element in the streams' drainage system ..." and commented on the Washington State Department of Highway's announced intention "to shortly begin construction on a highway 509 extension from South 160th the south 168th ..."
[Footnote 3: The Sea-Tac Communities Plan: Six-Month Summary Report, November 1973, Summary] [Declaration of Helen D. Kludt - Page 5] 8. Mr. Mecklenburg noted "In as much as both Miller Creek and Walker Creek are already over burdened with storm drainage, the addition of 10 acres of nearly impervious paving and 29 acres of nearly impervious grassy slopes cannot be tolerated without some positive assurances that this increased storm runoff will be completely controlled." Finally, his memorandum stated "the contemplated rechannelization of Miller Creek into some 400 feet of culverting is totally unacceptable essentially precluding any subsequent resortation [sic] of the creek into a natural streambed as part of our overall program to achieve a continuous pedestrian recreational footpath along the creek." A copy of this memorandum is attached hereto as Exhibit 3.
9. Numerous meetings of the Water Quality and Drainage Study Committee took place during 1973 and 1974. During these meetings and discussions related to the Sea-Tac Communities Plan representatives of the Port of Seattle stated that one of the purposes of Sea-Tac Communities Plan was to adopt land use planning for the communities affected by Sea-Tac Airport which would enhance the residential areas around Sea-Tac airport and prevent them from deteriorating. At these meetings Port officials emphatically stated to citizens who participated on the committees that the second runway was the last expansion project at Sea-Tac airport. I particularly remember that Port of Seattle Commissioner Paul Friedlander stated "This is enough. We cannot ask these communities to take any more." The assumptions set forth in the Sea-Tac Communities Plan provided the basis for the stipulated settlement agreements which were reached with the Port of Seattle and King County on behalf of the residents in the Miller Creek basin.
[Declaration of Helen D. Kludt - Page 6] 10. A stipulated settlement agreement of the lawsuit with defendants King County and the Washington State Highway Commission was reached in October 1974. The agreement titled Stipulation and Agreement for Settlement was filed in King County Superior Court under Case No. 726259. A copy of this agreement is attached hereto, as Exhibit 4. Provisions of this stipulated settlement agreement prohibit changes made to Miller Creek and the Miller Creek Basin. Certain provisions prohibit increasing the quantity of water flow in Miller Creek. Other provisions require improving water quality in Miller Creek and prohibit any future channelization of Miller Creek: WHEREAS, it is understood by all signatories that breach of this settlement agreement may result in a refiling of the lawsuit;
THEREFORE, in consideration of the promises exchanged herein, the parties agree as follows;
1. King County and the Washington State Highway Commission recognize that serious flooding and drainage problems have existed in Miller Creek drainage basin for a number of years, that such problems will increase in the future as development increases, and King County agrees that corrective programs and drainage facilities are required and should be implemented as promptly as possible.
2. King County Department of Public Works, Division of Hydraulics, pledges the use of $65,000 in remaining revenue sharing funds for further planning and design study in the Miller Creek basin. Said funds will be expended upon completion of the RIBCO Urban Run-off and Basin Drainage Study and the Sea-Tac Communities plan. The Division of Hydraulics anticipates that such further planning and design studies will take place during 1975. [Declaration of Helen D. Kludt - Page 7] 3. King County agrees that it has abandoned the total channelization of Miller Creek and agrees that it will not in the future attempt the channelization of Miller creek except in limited amounts in connection with retention facilities.
4. Plaintiffs acknowledge and recognize there are numerous possible methods of maintaining the character and quality of Miller Creek and further recognize that there are other residents and property owners in the Miller Creek basin whose views as to project design and implementation will also be considered equally by King County. Plaintiffs also recognize that the King County council will have final approval as to the design, location, scope and nature of any project in Miller Creek Drainage basin. The division of Hydraulics will, however, recommend to the King County Council and will use its best efforts to achieve the programs, concepts and agreements contained herein.
5. King County acknowledges the long term and sincere concern of numerous citizens in the Miller Creek Basin in maintaining the quality and integrity of the creek and guarantees continued solicitation of citizen input in the final selection of a design solution.
6. King County Surface Water Utility Board, created by Council Motion 1478, will present to the Council during October 1974 its report calling for the creation of a county-wide surface water utility pursuant to the terms of the County Services Act, RCW 36.94, and requesting initial funding of $1 million. The creation of such an utility requires comprehensive sub-basin planning of detailed surface water management solutions and would permit the levying and collecting of service charges within each sub-basin in which a solution is planned and initiated.
7. Upon completion of the planning and design studies for the Miller Creek basin as provided herein, the surface water utility will prepare a sewerage general plan for the Miller Creek basin. The surface water utility will use its best efforts to obtain approval of said plan by the King County Council, the requisite review committee and any other governmental agencies having authority or jurisdiction over the plan area. [Declaration of Helen D. Kludt - Page 8] 8. Upon completion of the Miller Creek sewerage general plan, the surface water utility will proceed as soon as practicable with implementing the necessary financing so that work pursuant to the plan may be initiated. Without limitation of any appropriate method of financing, King County will impose the necessary charges on all property owners within the Miller Creek Basin and will consider the levying of rates and charges based on impervious surface areas.
9. The Washington State Highway Department will recommend to the Washington State Highway Commission that the Washington State Highway Department pay any assessment levied by King County based upon the assessments levied upon other property owners in the Miller Creek basin in accordance with the impervious surface area of state highways (SR 509 and SR 518) owned by the Washington State Highway Department in the Miller Creek drainage basin as such drainage projects implemented by King County benefit those highway systems.
10. Upon approval of the sewerage general plan and obtaining the necessary financing, King County will proceed with the construction of appropriate facilities, as set forth in said plan which will:
a. improve the water quality of Miller Creek;
b. prevent surface water from being collected and discharged into Miller Creek in excess of its natural capacity;
c. maintain or improve the present character and appearance of Miller Creek.
16. King County will attempt to design and construct future public works, subject to technical considerations, and regulate private projects in the Miller Creek Drainage basin so that such projects will not adversely affect the present character of Miller Creek or increase the quantity of water which flows into Miller Creek.
17. In the event this agreement is not implemented, plaintiffs may refile said action, and defendants agree not to raise any defenses based on the
statute of limitations.
[Declaration of Helen D. Kludt - Page 9] 19. A schedule of planned implementation of this agreement shall be provided to plaintiffs within five days of the date of the agreement by King County and King County shall use its best efforts to follow said schedule and shall advise the plaintiffs concerning any possible changes in said schedule and reasons therefore. [Footnote 4] 10. In November 1974 the King County Council adopted a motion "relating to comprehensive surface water planning and management, water shed protection, and providing for the development of a Surface Water Utility in King County." A copy of this motion is attached hereto as Exhibit 5.
11. The above described stipulated settlement agreements remain in full force and effect, and plaintiffs have not waived, nor has the court excused defendants from observing the said agreements, which include the following provisions:
a. prohibiting future channelization of Miller Creek; and
b. requiring that future projects located in the Miller Creek Basin watershed be designed to maintain and improve the water quality of Miller Creek; and
c. requiring that the King County Sewerage General Plan prevent flow rates in Miller Creek that exceed the creek's natural capacity; and
d. requiring that the King County Sewerage General Plan maintain or improve the present character and appearance of Miller Creek.
e. requiring that to the extent that the addition of new impervious surface areas and fill areas discharge water into Miller Creek in excess of its natural capacity, such new surface areas constitute a violation of the settlement agreements; and
[Footnote 4 - Stipulation and Agreement for Settlement as to Defendant King County and Washington State Highway Commission,Kludt et ux., et al. v. King County and State of Washington Highway Commission, King County Superior Court, Case No. 726259 dated October 1974.]
[Declaration of Helen D. Kludt - Page 10] f. requiring that the stormwater pollution prevention plan and erosion and sedimentation control plan in the Miller Creek Basin provide for the continued maintenance of the existing North Clear Zone Detention Pond described in Exhibit A of the Stipulation and Order of Dismissal as to Defendant Port of Seattle; and
g. requiring that the existing North Clear Zone Detention Pond facility described in Exhibit A of the Stipulation and Order of Dismissal as to Defendant Port of Seattle maintain a maximum discharge rate of 40 cubic feet per second; and
h. requiring that any action affecting the storage capacity and maximum discharge rate of the existing North Clear Zone Detention Pond as described in Exhibit A of the Stipulation and Order of Dismissal as to Defendant Port of Seattle constitutes a violation of the settlement agreements; and
i. requiring that drainage from additional facilities constructed at Seattle-Tacoma International Airport which causes the natural capacity of Miller Creek to be exceeded constitutes a violation of the settlement agreements.
12. At the time of settlement all parties agreed that the violation of any of the provisions of the above stipulated settlement agreements constitutes grounds for refiling of the lawsuit.
13. At the time of settlement all parties agreed that the provisions of the above stipulated settlement agreements inure for the benefit of the successors and assigns of the above named Plaintiffs and Defendants, including citizens, municipal corporations and public works facilities located in the Miller Creek Basin.
14. Finally, that at the time of settlement was reached, all parties agreed that the provisions of the Stipulation and Order of Dismissal as to Defendant Port of Seattle and the Stipulation and Agreement for Settlement with King County, inure for the benefit of all parties concerned with maintaining the provisions of the above stipulated settlements agreements.
[Declaration of Helen D. Kludt - Page 11] I declare under penalty of perjury that I believe the foregoing statements to be true and have personal knowledge of the facts stated herein.
Executed at Seattle, Washington this 30th day of December, 1995
s/s
_____________________
Helen D. Kludt
[Declaration of Helen D. Kludt - Page 12] Exhibit 1 Stipulation and Order of Dismissal as to Defendant Port of Seattle, Kludt et ux., et al. v. King County and State of Washington Highway Commission, No. 762259 King County Superior Court Oct. 12, 1972
Exhibit 2 Sea-Tac Communities Plan: Six Month Summary Report November 1973
Exhibit 3 Memorandum to the Chairman of the Sea-Tac Community Plan's Policy Advisory Committee, Urban Development Sub-Committee member Bruce Mecklenburg, November 30, 1973
Exhibit 4 Stipulation and Agreement for Settlement, King County Superior Court, Case No. 726259, October 1974
Exhibit 5 A MOTION relating to comprehensive surface water planning and management, water shed protection, and providing for the development of a Surface Water Utility in King County. November 1974
[Declaration of Helen D. Kludt - Page 13]
3. In the event that the Port of Seattle decides not to construct the drainage retention facility described in Exhibit A, or in the event that such facility, as constructed, does not have the storage capacity and maximum discharge characteristics outlined in Exhibit A, plaintiffs may commence an action against the Port of Seattle and the Port of Seattle stipulates that said action may be placed upon the trial calendar at the earliest available date, but not earlier than 60 days from the date of commencement of such action. No provision of this stipulation of Exhibit A shall be interpreted to create any cause of action or claim not now existing or available to the plaintiffs.
WHEREAS, the parties have reached agreement on the general direction and nature of future King County hydraulic planning and construction activity in the Miller Creek Drainage Basin;