Date: February 18, 2026
Subject: SKA-0196 Juanita Creek West Wetland Discovery — Internal Analysis and DRB Preparation
Responding to: LTR 343 (2/6/2026) — Request for Reconsideration, PCO 112 ($14,311)
Purpose: Documents WSDOT’s detailed analysis for internal use and DRB preparation. Contains reasoning, rebuttals, and strategic analysis not for external sharing.
The contract required the DB to independently verify all Sensitive Areas and submit a verification letter. The DB performed this obligation twice: BY-CRE-00366 (March 2024) assessed 32 wetlands and 9 streams and confirmed all consistent with the WSAR. When the Lower Juanita Wetland was subsequently discovered, the DB submitted BY-CRE-02512 (SAVL Addendum, Rev 01, June 2025) documenting the new wetland and UNT to Sammamish River.
The $14,311 is the cost of preparing the SAVL Addendum and associated JARPA updates. That is the verification obligation itself — not an additional or compensable service. Skanska’s own transmittal cover page for BY-CRE-00366 cites “SPEC SECTION: 2.8.5.4,” confirming this work was performed under the verification obligation.
This is the strongest argument because it is affirmative, not defensive. It doesn’t require interpreting the “subordinate clause” in 2.8.5.4.5 or addressing the 2.8.5.2.2 gap argument.
The provision creates two independent triggers joined by “or”: (a) known or previously unidentified Sensitive Areas impacted by a proposed change, or (b) previously unidentified Sensitive Areas impacted by the Conceptual Plans. The Lower Juanita Wetland satisfies trigger (b) — it is a previously unidentified Sensitive Area that would be impacted by the Conceptual Plans for the realigned stream channel and the proposed fish passage structure.
The DB is solely responsible for all site conditions discoverable from a reasonable site examination. The wetland was discovered by observing skunk cabbage — a surface-visible indicator species. The SAVL Addendum’s wetland determination form (SP1) records that precipitation was drier than normal in the three months preceding the April 4, 2025 field visit, yet the wetland was still readily identifiable (water table to surface, saturation to surface, Depleted Matrix F3 hydric soil indicator). If the wetland was identifiable in drier-than-normal conditions, it was a discoverable surface condition.
The Contract Price includes (b) performance of each and every portion of the Work, (c) the cost of obtaining all Governmental Approvals required by the DB, (d) all costs of compliance with and maintenance of Governmental Approvals, and (f) compensation for all risks and contingencies assigned to the DB. The SAVL/JARPA work falls squarely within (b), (c), and (d).
| # | DB’s Argument | Why It Fails |
|---|---|---|
| 1 | “Section 2.8.5.4.5’s Conceptual Plans clause is a ‘subordinate clause’ — it only activates when the DB proposes changes.” | The provision creates two independent conditions joined by “or.” Reading the Conceptual Plans clause as subordinate would render it surplusage: if the trigger required DB-proposed changes, there would be no need to separately address Conceptual Plans impacts on previously unidentified Sensitive Areas. The clause exists precisely to cover the scenario where the Conceptual Plans (not DB changes) impact a previously unidentified Sensitive Area. |
| 2 | “Section 2.8.5.2.2 doesn’t apply (no ATC/design change), so there’s a gap in cost allocation.” | There is no gap. Multiple provisions independently allocate costs to the DB: Section 2.8.5.4 (verification obligation), Section 2.8.5.4.5 (Conceptual Plans clause), GP 1-02.4 (discoverable surface conditions), GP 1-04.1(1) (Contract Price inclusive). The inapplicability of one provision does not create entitlement. |
| 3 | “Actual site conditions differ from WSDOT’s baseline documentation.” The WSAR and JARPA did not show this wetland. | The WSAR (E10b) is a Reference Document under GP 1-02.4 — not a guarantee. Section 2.8.5.4 exists precisely because the Contract anticipated pre-bid documentation might be incomplete. The DB performed this verification. Finding nothing in March 2024 does not exempt the DB from the April 2025 discovery. |
| 4 | “The discovery occurred through no action or change proposed by the Design-Builder — the costs should be compensable.” | GP 1-02.4 assigns discoverable surface conditions to the DB regardless of whether the DB proposed changes. The verification obligation under Section 2.8.5.4 is a standing obligation — it is not contingent on the DB proposing changes. |
| 5 | “Administrative costs” for permit work should be compensable because the wetland was not in the baseline documentation. | The “administrative costs” are the cost of preparing the SAVL Addendum (BY-CRE-02512) and updating the JARPA — the exact deliverables Section 2.8.5.4 requires when new Sensitive Areas are identified. The Atlas invoices are coded to Phase 000008: “Sensitive Area Verification Letter.” This is the contractual obligation itself. |
| Admission | Risk | Mitigation |
|---|---|---|
| “Section 2.8.5.2.2… involves neither an ATC nor an alternative construction method and… cannot be attributed to a design change.” | Skanska could argue: if 2.8.5.2.2 doesn’t apply and the Conceptual Plans clause is “subordinate,” there is no applicable cost allocation provision. | Address Section 2.8.5.2.2 only to show there is no “gap.” Then pivot to provisions that independently control. Do NOT repeat the concession language. |
| “The newly discovered wetland was within the Project’s grading path.” | Skanska could argue the wetland was discovered in the course of the Project’s original design, not from any DB change — supporting entitlement. | Lead with Section 2.8.5.4 (verification obligation) — an argument that does not depend on this factual point. |
| “The Project’s Conceptual Design for the realigned stream channel would have impacted the newly discovered wetland.” | Skanska could argue WSDOT agrees the impact arose from WSDOT’s design, supporting the argument that costs should not fall on the DB. | This does not undermine any of the four independent defense legs. The verification obligation applies regardless of whose “fault” the impact is. |
| Item | Significance | Why Internal Only |
|---|---|---|
| Schuetze overlap | Same wetland scientist walked the Juanita Creek left-bank area during the original survey (found nothing) and identified it a year later. Confirms continuity of the verification process. | Could be characterized by Skanska as evidence the wetland was not discoverable during the original survey. Reserve for DRB cross-examination. |
| Wetland size discrepancy (12.5×) | LTR 175 estimated ~1,127 sq ft. SAVL delineation determined 14,176 sq ft (0.33 acres, Category II). Shows wetland was more significant than initially reported. | Could invite scrutiny of WSAR accuracy (“how did a 0.33-acre Category II wetland get missed?”). Use defensively at DRB if raised. |
| WSAR plant species list | E10b’s plant list does not include skunk cabbage (Lysichiton americanus). WSAR fieldwork was November–December 2019; skunk cabbage typically emerges February–April. | Raising this in the letter could be read as conceding the WSAR was inadequate. Reserve for DRB if Skanska argues the WSAR should have caught the wetland. |
| Billing attribution issues | ~$426 in clearly non-Juanita entries (e.g., Baker 3/25: “Home Depot water line TESC planning” $198.72; Harrison 4/4: “Finalize Seg 3 RFC” $227.14); ~$1,025 ambiguous. | Cross-examination material for DRB on quantum. Do not litigate quantum in the letter; deny on entitlement. |
| SL 9727-191 two versions | December 19 draft (EP:js, longer) contains “no merit” language not in the transmitted December 24 version (EP:rg). | If Skanska obtained or references the draft, could argue WSDOT’s initial assessment was more forceful than the transmitted letter. Not a significant risk. |
Option A — Issue Response to LTR 343 (Recommended): Issue a response letter affirming SL 9727-247. Lead with Section 2.8.5.4 (verification obligation) — the argument Skanska has not addressed. Follow with Section 2.8.5.4.5 (Conceptual Plans clause), directly rebut the “subordinate clause” reading, and close with GP 1-04.1(1). Inform Skanska that WSDOT’s response, together with SL 247, constitutes the Written Determination.
Option B — Decline to Respond (Not Recommended): Avoids any risk of additional admissions. Cons: Leaves the “subordinate clause” argument and Section 2.8.5.4 verification obligation argument off the record. If this goes to DRB, WSDOT would be introducing these arguments for the first time at hearing.
INTERNAL MEMO — SKA-0196 Juanita Creek Wetland — Prepared 2/18/2026