SEPA

The FPAB was asked to address whether a watershed analysis done under the Forest Practices Act complied with SEPA, specifically whether DNR had considered future forest practices in reviewing the watershed analysis and in making the SEPA threshold determination. In this instance, the FPAB found it acceptable for DNR to assume that all landowners within the watershed would harvest all available timber within the watershed, rather than requiring a list of specific future harvests. The FPAB reasoned that to require the actual list of future harvests might be too changeable given market conditions, and thus not as reliable a predictor of environmental effects. Kettle Range Conservation Group and the Lands Council v. Department of Natural Resources, FPAB Nos 98-33, 99-18 &00-006 (2000).

Water Rights and Water Quality.

One of the more visible opinions issued by the PCHB in 2000 involved the proposal to construct the Crown Jewel Gold mine in Okanogan County. Okanogan Highlands Alliance, et al v. Department of Ecology and Battle Mountain Gold Co., PCHB Nos. 97-146, 182, 183, 186, & 99-019 (2000).
The Crown Jewel Mine was proposed to be developed near the summit of Buckhorn Mountain. It would have resulted in the creation of an open pit mine approximately 116 acres in size and approximately 800 feet deep, extending 350 feet below the existing water table. During mining, a series of wells and pumps would keep groundwater and surface water out of the pit. At the conclusion of mining, the pit would begin to fill with water and create a lake. Water from one of the creeks would be pumped into the pit until it was filled. Once filled, the lake would discharge into one of the creeks to fulfill water rights and as part of the proposed mitigation.
The company applied for numerous water rights, changes to existing water rights and reservoir permits. Analysis indicated the proposed appropriation of water would result in streamflow depletions in several of the watersheds. Because this might lead to impairment of senior rights and reduced flows necessary for fish and instream resources, a mitigation plan was developed which relied on pumping and storing waters for release to all affected basins. The PCHB found the mitigation plan failed to account for all streamflow depletion during several critical stages and contained too much uncertainty to adequately protect existing rights and instream flows. Additionally, the PCHB found that Ecology had failed to consider the cumulative impacts of granting these water rights in light of the concurrently planned or reasonably foreseeable future actions, such as the ability of local water supplies to accommodate anticipated increases in population growth. The PCHB found that the mitigation plan substantially underestimated the likely streamflow depletions and required mitigation quantities.
On the issue of water quality, the PCHB found that the modeling to support the �401 permit was conducted over too short a timeframe and with an inadequate number of samples. The board was also concerned about relying on the construction of a water treatment plant with its requirement for perpetual maintenance and upkeep. Especially troubling was the failure to address what would happen to water quality during the construction of the treatment plant.
The PCHB was also concerned about the proposed waste rock facilities. The PCHB found that Ecology had not obtained sufficient information to provide reasonable assurance that water quality standards would be protected from leachate discharging from the waste rock facilities.
Finally, the Board found that the mine would result in direct and indirect effects on wetlands. The offsite mitigation was deemed to be insufficient to compensate for the impacts to wetlands. Most of the mitigation provided for the protection of existing already protected wetlands.
In summary, the PCHB found that the proposed mine would have resulted in the increased consumption of water and in a permanent shift in the hydrogeologic divide between two watershed basins, both of which had been closed to new appropriations. The pit lake was projected to violate state water quality standards from metals leached from the exposed rock walls. The waste rock piles were also predicted to leach pollutants and not meet state water quality standards. The proposed mitigation was deemed not legally sufficient to meet the criteria for approval of the water right applications or provide reasonable assurance for the �401 Certification. The mitigation and the permanent engineering solutions were viewed as highly speculative and uncertain. The PCHB was troubled that the only real assurance provided for protecting the environment was the bonding that the state might need to rely on to enforce environmental laws in the future.
As a result, the PCHB reversed the water right reports of examination and vacated the �401 certification.

Abandonment of Water Rights

In PUD No. 1 of Pend Oreille County v. Ecology, 97-177, 98-043 & 044 (2000), the PCHB was faced with determining whether a Public Utility District (PUD) had abandoned its 1907 water rights and whether instream flow conditions imposed in its �401 certification were appropriate.
From 1910 to 1956, the dam and reservoir in question were owned by two cement companies in Metaline Falls who stored waters for later release through a bypass wooden flume and canal system to a powerhouse where power was generated. In 1956, the PUD acquired the facilities which had ceased power production. In 1958 and 1959, the predecessor to the Federal Energy Regulatory Commission (FERC) issued a license for the storage and release of waters in Sullivan Lake and contemplated the re-establishment of hydroelectric power in the Sullivan Lake Project. In 1994, the PUD filed an application with FERC to amend its earlier license. In conjunction with the FERC application, the PUD filed two applications with the Department of Ecology to change the point of diversion for two of its water rights. Additionally, they applied for a water quality certification under �401 of the Clean Water Act. Ecology denied the change application for one of the water right applications on the basis that the rights had never been perfected. Ecology denied the change application on the second water right finding that the water right had been abandoned. Ecology also imposed instream flow conditions in the �401 certification.
From 1956 until the present, the PUD had engaged in various applications and feasibility studies to redevelop the project under the FERC application. The department of Ecology contended, however, that the long period of non-use of the water rights established a presumption of abandonment under the standards set by the state Supreme court in O.W.L. v. Town of Twisp, 133 Wn.2d 769 (1997). Ecology also contended that the collapse of the water flume in 1956 and language in the non-generating license indicating that the Sullivan Lake Project had been abandoned, were further evidence of abandonment. Ecology argued that the PUD was simply trying to hold the water rights for future speculation.
Under Twisp, the two critical elements of abandonment are non-use coupled with an intent to relinquish rights in water use. The burden of proof rests with the party asserting abandonment, in this case Ecology. Where there is evidence of a long period of non-use, the burden may shift to the water right claimant to justify non-use. The PCHB concluded that there was questionable evidence to support a rebuttable assumption of abandonment. Further, if a rebuttable assumption applies, the PUD had shown that it did not intend to relinquish its 1907 water rights. The PCHB based its decision on the evidence showing the PUD’s continued efforts to explore options for changes and new licenses and the PUD’s payment of their annual power licensing fees. The PCHB distinguished the facts in this case from those in the Twisp case and from those in several out-of-state cases denying speculative water use ventures. The PCHB found that where the PUD was continuously engaged in some affirmative effort to put the diversionary water right to beneficial use, it was not speculation. The voluminous business records presented to the PCHB did not divine an intent to abandon.
On the water quality certification, the PCHB upheld the inflow flow conditions in the �401 certification as reasonably calculated to protect the existing fisheries habitat in Sullivan Creek within the bypass reach.
The PCHB had previously had entered summary judgment in 1998 resolving other issues in this appeal. Both the summary judgment and the final decision are on appeal to the Supreme Court.

Water Right Relinquishment

In Willows Run Golf Course v. Ecology, PCHB 00-160 (2001), order granting partial summary judgment, the PCHB was asked to determine whether the water right relinquishment statute applied to permits and certificates issued before the enactment of the relinquishment statute (1967). The appellants contended the statutory language limited relinquishment to only those water right appropriations which had received a certificate after the effective date of the statute. Both parties asserted that the statutory language was unambiguous, but then gave diametrically opposed interpretations as to its meaning. The PCHB found strong evidence of a legislative intent to render all water rights subject to relinquishment provisions. Given the legislative finding for a strong beneficial use requirement, the PCHB indicated that the relinquishment statute applies to the exercise or non-exercise of a water right after the effective date of the act, not to when a water right certificate was issued.

Collateral Estoppel

The PCHB (and the SHB) is often asked to rule on the preclusive effect of prior litigation involving a particular proposal. See Weyerhaeuser and CROWD v Tacoma-Pierce County Health Department, Land Recovery, Inc, and the Department of Ecology, PCHB No. 99-067 (2000). In this case, the appellants challenged the Tacoma-Pierce County Health Department’s modification of a solid waste permit issued to Land Resources, Inc (LRI). The underlying permit and associated conditional use permit issues were appealed at various levels to Superior court, state Supreme Court, US District Court and the Ninth Circuit Court of Appeals. The complexity of this proposal cannot be easily summarized in a paragraph.
At issue in this appeal was whether the health department had made a practicable alternatives demonstration on wetland impacts. The original permit expressly acknowledged a “successful demonstration” on practicable alternatives. The permit was appealed directly to Superior Court. While that matter was pending, the Army Corps of Engineers (Corps) ruled that the alternatives demonstration was not adequate. The Superior Court nonetheless affirmed the permit and determination made by the health department. There was no appeal of the Superior Court judgment.
In a subsequent appeal of the Corps’ ruling, the Ninth Circuit held that the health department determination on practical alternatives was controlling and that the Corps was without jurisdiction in the matter. The permit modification was simultaneously appealed to the PCHB and Superior Court. In that action the trial court issued a letter ruling that any challenge to the practical alternatives determination was barred under the doctrine of collateral estoppel. The PCHB similarly found that all the elements of collateral estoppel had been met and dismissed the case.
A dissenting opinion countered that the elements of the collateral estoppel doctrine were not met in this case because all the parties anticipated that the Corps would play a role in the “practicable alternatives” analysis, but was later ruled to be without jurisdiction. The dissent argued that an appellant can claim injustice under collateral estoppel and thwart its application. The dissent pointed to the injustice of losing a right to challenge given the reliance on the integral role anticipated for the Corps, prior to the Ninth Circuit ruling. What remained to complete this picture, according to the dissent, was a demonstration that LRI had rebutted the presumption of the existence of practicable alternatives, absent Corps involvement.
The summary judgment of the PCHB was not appealed.

Pesticide spraying for aquatic species

Several herbicide and pesticide cases were before the PCHB in 2000 and early 2001, one relating to spraying glyphosate (aka Rodeo�) to control the spread of Spartina in the waters of northern Puget Sound and one relating to spraying Carbaryl on commercial oyster beds in Willapa Bay to control burrowing shrimp. In both cases, the PCHB granted summary judgment to the applicators (respondents).
The PCHB has addressed the subject of Spartina control in several appeals over the past five years. Appellants have generally challenged the issuance of water quality modification orders or the need for a shoreline permit for the use of the chemical in the aquatic environment. In Ortman, et al v. Departments of Agriculture and Ecology, PCHB 99-115 &116 (2000), the appellants argued that a NPDES permit was also required. First, the PCHB found that RCW 90.48.445 prohibited the department from requiring a NPDES permit. The statute strictly limits the conditions that may be imposed on permits issued for aquatic noxious weed control. Second, the failure to require or issue a NPDES permit was not a matter within the jurisdiction of the PCHB. Third, the PCHB found that the application of an herbicide to control noxious aquatic weeds independent of a commercial or industrial operation does not constitute the disposal of waste within the meaning of RCW 90.48.160.
The dissenting opinion found that neither Ecology nor Agriculture had pointed to any federal or state NPDES exemption for aquatic herbicidal applications. The dissent also noted concerns about the potential cumulative environmental impacts from glyphosate, especially given the concerns noted in the EIS about the long-term impacts. Due to the legislative changes, the permit at issue in this case decreased the drying time for application, doubled the allowable wind-speed, and increased the rate of application significantly above that studied in the EIS. Because of these changes, uncertainties and the lack of studies recommended in the EIS, the dissent urged caution and diligence by the regulatory agency in granting water quality modifications.
Finally, the appellants asserted that the conditions of the permit had been violated. The PCHB reiterated that it does not have jurisdiction to consider enforcement matters absent an underlying enforcement action or order from the Department of Ecology. Although such an order was not present, the alleged violations were considered insofar as they might relate to whether there had been a substantial change in the proposal that would likely have a significant adverse environmental impact. The PCHB found no evidence that such a change had been made. As a result, the summary judgment was granted affirming the water quality modifications and dismissing the appeal. The decision of the board was not appealed.
In Ad hoc Coalition for Willapa Bay v. Dept. of Ecology and Willapa Bay- Grays Harbor Oyster Growers Association, PCHB 00-115 (2001), the PCHB granted summary judgment for the Oyster Growers due primarily to the failure of the pro se appellants to meet their burden of citing any statute or regulation being violated or of showing any facts supporting the alleged violations. Additionally, they failed to provide any analysis explaining how the facts might support finding a violation of applicable law. The PCHB noted the pro se status of the appellants, but declined for a variety of reasons to suspend the requirements they needed to meet to thwart the granting of summary judgment. The Oyster Growers were able to show that the spraying was monitored under the conditions of the order.
Of particular note in this case was the mootness argument. The Oyster Growers alleged the appeal should have been dismissed as all the spraying had already taken place and the permits had expired. The PCHB rejected this request, recognizing the public interest exception to the mootness doctrine. Under this exception, a matter is not moot where the issue is of a public interest, likely to recur, and an authoritative determination would provide future guidance to public officers. Carbaryl has been employed for many years in Willapa Bay to control burrowing shrimp. The Oyster Growers anticipate future orders authorizing the use of Carbaryl. If the PCHB were to apply the mootness doctrine, there would essentially be no effective right to appeal those future orders. On this matter, the PCHB did not grant summary judgment.

Pro se appellants

Several cases before the boards this year have been aimed at the responsibilities of appellants, especially pro se appellants. WAC 371-08-385 and 461-08-405 allow the PCHB and SHB respectively to waive any of their procedural rules, other than those relating to jurisdiction, for any party not represented by legal counsel. As noted above, the appellants in Ad hoc Coalition for Willapa Bay had practiced before the board and were assumed to know how to properly present issues, facts, and analysis. The PCHB declined to waive the procedural requirements. In Ziak v. Pacific County, SHB 00-024 (2001) the pro se appellant failed to respond to discovery and generally ignored deadlines set in the case. The SHB indicated that the appellant took on a public as well as private responsibility to participate competently and fully in the process. Failing to do so resulted in there being no material facts at issue. The case was therefore dismissed. And finally, in Miller et al v. Coutts and the City of Bremerton, SHB 00-030 (2001), the pro se appellants brought a motion for summary judgment. In the order denying the motion, the SHB urged the pro se appellants to work with an assigned Administrative Judge to better understand the SHB procedures for presenting their case at the hearing. For a variety of reasons, most notably the constraints of administrative practice, the pro se appellants decided to drop their case.

Docks

Numerous dock cases were decided by the SHB addressing navigability, appropriate length, availability of alternative moorage, mandatory joint usage agreements, protecting salmon and cumulative impacts. In Holley v. San Juan County, SHB 00-002 (2000), the SHB upheld the denial of a permit to build a recreational dock on the basis that alternative moorage, at a marina in Friday Harbor, was adequate and feasible for the appellant, even with a reasonable waiting period. For the SHB, cost for moorage was not controlling. The issue was availability of moorage.
In Close v. San Juan County, SHB 99-021, the SHB upheld the denial of a new dock also on the basis that adequate moorage was less than a mile away, and they had a mooring ball and moderately reasonable beach access for launching personal watercraft. The SHB felt the dock would also be a visual and physical barrier to the public attempting to access the shoreline and to kayakers along the shore.
In Bishop v. San Juan County, SHB 99-034 (2000), the appellants sought review of conditions imposed by San Juan County limiting the length of their dock to the +2.5 tide elevation and requiring the dock to be a multiple use facility. Because the island does not have ferry service, the SHB determined that a dock was necessary for year round access to the residence. The SHB found this dock did not intrude significantly into the shoreline environment, had a low profile and was generally compatible with other developments in the bay. There was significant concern about cumulative impacts. The SHB presumed that in the future it was very likely the owners of the remaining lots in the subdivision along this shoreline would want longer docks. The impact would result in the very “porcupine effect” that the County’s regulations sought to avoid. Multiple-use docks were therefore critical to limiting the proliferation of individual docks. The SHB determined that the dock could not be approved unless it was a joint-use facility, including a recorded deed restriction allowing for joint use by specific lots in the subdivision.
In Viafore v. Mason County, SHB 99-033 (2000), a neighbor challenged a shoreline permit for the construction of a 100-foot pier and floating dock in an area with virtually no other docks. The appellant contended the dock would have an adverse impact on salmon migration. In reviewing the literature on the effects of shading on salmon migration, the SHB concluded that the proposed dock would probably have no adverse impact on salmon migration. It did note the lack of definitive scientific knowledge on the subject, especially in the context of cumulative effects. The SHB also considered the proposal’s relation to potential future development of similar docks along this stretch of Puget Sound. The SHB found the dock would impact the views on an extensive shoreline with almost no dock development. The SHB was concerned about the precedent that would be set by authorizing this “first” dock and thus denied the permit.
Finally, the SHB took up the issue of protecting navigability in the cases of Harborview Marina v. Gig Harbor, SHB 99-013 (2000) and Mukai &. Parkshore Marina v. Seattle & Spinnaker Bay Marina, SHB 00-029 & 032 (2001). Both cases involved the maneuverability of boats between piers. In both cases, the SHB looked at balancing competing interests and determined that navigability, especially given NW winds and weather, had not been adequately protected. In Mukai, the SHB declined to accept the US Army Corps of Engineers’ determination as to what would adequately protect the public right of navigation. In both cases, the permits were remanded to the local government to better address navigability and maneuverability.

Non-conforming uses

The SHB had several cases involving non-conforming structures built or uses authorized before the adoption of the Shoreline Management act. In Ecology v. Lewis County and Cowlitz Timber Trails Association, SHB 00-027 (2001), the SHB was asked to address accessory buildings at a camping development along the Cowlitz River. An earlier Compromise and Settlement Agreement had determined that some of the structures and uses would be considered non-conforming. The issue before the SHB was whether these additional structures (gazebos, RV covers, and decks) were also “non-conforming” and what standards governed their authorization. The SHB determined that the proposed structures were an inappropriate expansion of a non-conforming use. Specifically, the proposed structures were inconsistent with the Lewis County Plan’s directive for a conservancy environment, notably allowing more than diffuse, low intensity, or non-permanent recreational activity.
In Fox v. Ecology, SHB 00-025, the SHB allowed a conditional use permit to enclose an overwater deck on a non-conforming small cabin. The SHB used a balancing approach to reach its conclusion, noting specifically that the enclosure would not increase the non-conformity. The balance looked at neighboring development, most of which were much further waterward and much larger. Also, there was no evidence of any environmental harm, and in reality, given the need to connect the cabin to septic, an environmental benefit to allow the project to proceed. The permit was conditioned on the applicants receiving an approved septic system. A dissenting opinion contended any expansion of an overwater residential development was specifically prohibited by the County’s master program, and it was inappropriate to rely on other non-conforming structures to justify the granting of a variance.