Property owners say city of Olympia has been dumping dirty stormwater on their land
When Jon Pettit and Terry Ballard think about the densely forested piece of land they own in southeast Olympia, they have big ideas.
Ballard, the primary owner, has had the 5 acres of land at 2400 Morse Road SE for just a few years. It sits between two established neighborhood developments, and there’s one house on the property now that he rents to a family.
Ballard and Pettit say they want to contribute to the affordable housing market in the area. They want to clear the land and add as many houses as the property can hold.
But the property just behind the existing house is a bowl, what Pettit believes to be a kettle formed by glaciers thousands of years ago. But once you’re in the bowl, it becomes relatively flat. They’ve cleared the area before to make way for construction, but plants quickly grew back. Something was wrong.
Walking around the property, Ballard and Pettit found that the two housing developments on either side appear to have stormwater systems that carry rain off roofs, driveways and other hard surfaces. But the water doesn’t pour into the sewer or a catch basin — it has cut into the earth, creating a stream that dumps into the middle of their property.
The water has made it difficult to develop the land, and Pettit said there’s no way the land hasn’t been contaminated by the chemicals found in stormwater.
They say the city of Olympia has been neglectful of the neighboring developments’ stormwater and have left them to clean up the damage.
“Nobody really signs up to take care of somebody else’s stormwater,” Pettit said.
A problem for decades
According to public documents provided by Pettit, in 1991 the city of Olympia signed an agreement with the Fairwood Community Association, which makes up about a dozen houses to the right of Ballard’s property. The agreement is for upkeep and maintenance of the stormwater facilities for the neighborhood, so long as the residents pay for it.
The facility consists of a rock bed that’s supposed to catch stormwater from a system of pipes that run under the houses and nearby roads. The entire system runs downhill with the neighborhood.
According to a list of stormwater detention facilities in the Indian/Moxlie Creek Drainage Basin, a more than 5,000- cubic-foot pond exists for the neighborhood, too. In reality, the pond is Ballard’s private property.
The 1991 agreement states that the city will maintain the stormwater “pond” by dredging the sediment as needed and taking care of vegetation in wet ponds.
Even if the pond had existed, Ballard and Pettit said the city hasn’t performed any maintenance on it. And an agreement doesn’t exist between the property owners and the city for them to drain stormwater onto the property.
At some point the 4.25-acre of the property was deemed a wetland/floodplain.
According to a 2001 letter from the city Public Works Department to the previous owner of the property, William Porter, the city and Sonrise Church had made an offer to purchase the “wetland” portion of property to be used to infiltrate stormwater. The city offered Porter $25,500.
In response Porter wrote to the city saying a walk-through of the property would easily show it isn’t a wetland, that the water is coming from nearby developments. He offered some alternatives to their plan, most including giving him a right of way to build more housing and access city utilities.
“Then the pond area would be designated wetland and/or green belt area and given to the city to maintain,” he wrote. “And would then make it legal what was done when Morse Court was developed and allowed for their water retention ponds to drain over onto the Porter’s property without gaining permission.”
Porter and the city never struck a deal, and the forest continued to fill with water.
Fast forward to 2017, when Ballard became the owner of the property. He and Pettit purchased the five acres for about $308,000, which included the house and shop building on the property. Pettit, with a background in real estate, saw it as a good investment.
But they weren’t aware of the extent of the stormwater problems at the time. They knew the water was there, but not that it could be dangerous. It wasn’t until Pettit was involved that they started investigating the damage with professionals.
He again presented the city of Olympia with the issue, which had only gotten worse. He said water stands in the area for months, with sediment and rocks making it impossible for it to soak into the ground. Anytime they’ve cleared the property of trees and vegetation, more water-loving plants grow in their place.
Tim Smith with the city wrote to Ballard in December 2017. The letter states that the city “used a variety of resources to determine that a wetland may be present, including National Wetland Inventory data, aerial photographs, and contour data.”
Smith referenced several other documents supporting claims that a wetland was present on the property and told Ballard that the only land that can be developed on it is where there’s already a house — and the house’s backyard.
Ballard and Pettit were advised to speak with a wetland biologist to make the final determination, and so they did.
Wetland reconnaissance
In the same month, Ballard and Pettit contracted with Alexander Callender, a wetland scientist with Land Services Northwest LLC. His report calls the wetland in question “suspicious.”
“It wouldn’t have developed that look unless you were pouring water and sediment onto it,” Pettit said.
Callender said there were wet-adapted species of trees and other vegetation that wouldn’t regularly be growing there. He noted that water was entering quickly, but not from a natural source.
During his walk-through, he found that stormwater to the west from the adjoining neighborhood was being directed from an off-site catch basin onto Ballard’s property using a culvert pipe.
He went to the adjoining neighborhood and found stormwater infrastructure that wasn’t up to standard and not controlling the overflow of water.
“This stormwater system is relatively new and discharges directly to the subject property,” he wrote.
Callender determined it wasn’t a natural wetland, despite Thurston County geodata listing one on the property that year. Instead, it only had the conditions of one because the city was using it as an infiltration pond even though it wasn’t engineered as one.
He recommended the city work with Ballard on either giving them a legal easement or right to use the property, or have the city purchase it to use as a stormwater infiltration pond.
A chemical analysis was done on the property in 2018 by Dragon Analytical Laboratory. Soil and water samples came back with BTEX, a group of compounds found in crude oil, as well as gasoline, cadmium, magnesium, lead and zinc.
One week later, the city of Olympia wrote Pettit and Ballard again, recognizing that stormwater is being discharged onto their property. Smith responded that the wetland environment at the bottom of the depression is not a regulated wetland pursuant to Olympia Municipal Code 18.32.505 because it’s man made.
Smith said that the wetland situation may be the result of unintentional actions and was not intentionally created, but he gave no explanation as to how the water got there.
Taking responsibility
In December 2021, the city of Olympia presented Ballard with a real estate purchase and sale agreement. An offer of $440,000 was put on the table for the 4.89 acres, which includes the house on the property.
Ballard and Pettit don’t want to give up the land. They want the city to recognize the issue and clean up the water and polluted soil so they can build more houses.
Along with the agreement, the city of Olympia drew up maps for Ballard and Pettit showing a road and right-of-way on the west side of the property for the city to access the stormwater pond. But after Ballard and Pettit said no to what they called a low-ball offer, they said the city denied them right-of-way to build around the flooded depression.
Now the two are showing up at City Council meetings to voice their concerns. They don’t want the city to continue using it as a stormwater pond. They allege the city owed more than $143 million in accumulated stormwater fees and have polluted their soil.
City communications director Kellie Braseth said no official can comment on the issue because the property owners have indicated they may sue the city. She said the two have submitted a claim in the past, but that one was denied.
“It’s not just water flowing on our property, it’s polluted water,” Pettit said. “I’d be happy to give you a drink if you think it’s clean water. The city may say it’s okay, but I know it isn’t.”
This story was originally published June 14, 2022 at 5:00 AM.
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