The following notes summarize selected cases heard by various Boards of the Environmental Hearings Office.    The cases represent the following important issues heard by the office:  Standing (Water Rights); Res Judicata (Water Rights); Statutory Construction (Water Rights); Self-incrimination; National Pollutant Discharge Elimination System (NPDES) Public Notice and Information; Permit Enforcement (Forest Practices); Finality and City Codes (SEPA and SMA); Shoreline Variance and SMA Rule-making.  These issues are discussed below.

            WATER RIGHTS

            The Pollution Control Hearings Board (PCHB) was asked to address the issues of standing, res judicata and statutory construction in various water rights appeals.

            STANDING

            Ironworkers Local 29 v. Ecology, PCHB NO. 01-007 presented the Board with the problem of determining whether a union organization, an individual citizen and a public interest group had standing to appeal Ecology�s approval of the City of Goldendale's water rights change application. 

            The City of Goldendale applied for the change of five water rights in October of 2000 due, in part, to a �boil water� advisory from the Department of Health.  Although Ecology did not grant the quantity of water right sought by the city, it did approve water rights in a reduced quantity (479.2 acre feet instead of 1,134).  These rights were changed from an �agricultural� purpose to �municipal-industrial� one.  The essence of the challenge from the citizen groups was the change in use.  They opposed the change in use and thought this, combined with the quantity changes, would have a detrimental effect on the watershed.

            The PCHB granted the motion to dismiss for lack of standing.  The PCHB determined the citizen groups did not meet the three-part test for standing under Core v. Olympia, 33 Wn. App. 667, 567 P.2d 790 (1983).   The PCHB held they did not show: 1) an injury in fact, 2) that falls within the zone of interests protected by the statute at issue, and 3) redress-ability.   Appellants have petitioned for Superior Court review.

            RES JUDICATA

The PCHB ruled on whether failure to appeal a prior order was res judicata in Lake Entiat Lodge v. Ecology, PCHB NO. 01-025.  The merits of this case presented, for the first time, the problem of quantifying water rights using the �pumps and pipes� method invalidated in Department of Ecology v. Theodoratus, 135 Wn.2d 582, 957 P.2d 1241 (1998).    The original water right application the Lodge operated under was submitted in 1968.   Construction delays resulted in the Department issuing five �due diligence� extensions between 1969 and 1976.   However, a water right certificate was issued in 1977 at 160 gallons per minute (gpm) and 256 acre feet based on the capacity of the pump and the piping system.

In 1998, because of water quality problems and health issues, the Lodge constructed new wells and applied for a change to their ground water certificate to add the new point of withdrawal.  Ecology approved the change in withdrawal in an expedited decision.  Yet, included in the �decision and order,� in an attempt to conform to Theodoratus, was a �recommendation� to rescind the prior ground water certificate and replace it with a superseding permit.   The Lodge failed to appeal this decision, which Ecology implemented two years later.  After this implementation, the Lodge appealed.

The Board issued a split decision.   One Board member, in determining the decision was not �final,� sought to reach the merits of the Theodoratus problem.  The other Board member determined the failure to appeal to be res judicata.  However, when there is a split decision, per Department of Ecology v. City of Kirkland, 84 Wn.2d 25, 30-31, 523 P.2d 937 (1974), the result is Ecology's original determination is upheld.

            STATUTORY CONSTRUCTION

            The PCHB was asked to interpret the �stockwatering� exemption in RCW 90.44.050 in Devries v. Ecology, PCHB 01-073.    Devries opened a new dairy in Yakima County with 2,261 cows.  It was estimated the herd consumed between 39,000 and 56,000 gallons of water per day (gpd).  Water was supplied from five wells and was used for human and animal drinking and other subsidiary purposes, which included for example, cleaning milking equipment.   When the herd reaches full strength (4,400 cows) the estimate for water consumption was in excess of 110,000 gpd.  Ecology issued a compliance order requiring the dairy to cease using groundwater in excess of 5,000 gpd. 

At issue was whether the stockwatering exemption to the groundwater permitting requirement was unlimited or limited to 5,000 gpd; whether all authorized uses under the exemption are limited to 5,000 gpd or whether each discrete use has a limit of 5,000 gpd; whether the term "stockwatering" includes the consumption of water for dairy cows; whether the term "stockwatering" includes water for the various subsidiary functions to operate a dairy farm; and whether the term "industrial" as a purpose contains the subsidiary functions necessary to operate a dairy farm.

In its Summary Judgment decision, the PCHB ruled that proper statutory construction required reading the entire section as a whole � including each proviso.  It held the exemption was limited to 5,000 gpd. It held the various uses should not be separated for calculation of the quantity limit.   It concluded the term �stockwatering� included water for a commercial dairy operation and its subsidiary functions.  However, the Board ruled the term �industrial� did not include the operation of a dairy farm.  Ecology�s compliance order was affirmed.  The parties have appealed this decision to Superior Court.

WATER QUALITY

Three important issues arose in water quality cases before the PCHB.  One unusual matter focused on constitutional protections against self-incrimination.  Another related directly to water quality standards in issuing National Pollutant Discharge Elimination System (NPDES) General Permits.  The third case addressed the issue of public notice and participation in the issuance of a NPDES permit modification.

SELF-INCRIMINATION

In Jerome Rosa d/b/a Jer-Rosa Dairy v. Ecology, PCHB No. 01-083, the appellant, Mr. Rosa asserted that proceeding with the hearing on his civil penalty appeal would threaten his Fifth Amendment protections against self-incrimination. 

Citizen complaints about a discharge from a manure lagoon into the South Fork of the Chehalis River, led to an inspection of Jer-Rosa Dairy and the subsequent penalty.  Ecology also began a criminal investigation into this activity.  The two Department actions led Mr. Rosa to conclude that he was at risk.  Upon appealing his civil penalty to the PCHB, Mr. Rosa moved to stay the proceedings until resolution of the criminal matter. 

The PCHB denied the motion for stay.  The Board relied on King v. Olympic Pipeline Company, 104 Wn. App. 338 (2000), review denied 143 Wn.2d 1012 (2001).   In King, the Court's self-incrimination analysis required the trial court to balance, on the record, the competing interests involved.  The Court framed this balancing exercise in the form of a multiple factor test.  In ruling on Mr. Rosa�s motion, the analysis of the PCHB followed the multiple factor test in King.   Mr. Rosa appealed the denial to Lewis County Superior Court, which upheld the Board�s analysis and decision.

WATER QUALITY STANDARDS

Puget Soundkeeper Alliance v. Ecology, PCHB NO. 00-173 directly dealt with water quality standards.  Puget Soundkeeper Alliance (Soundkeepers) and various other parties asked the PCHB to stay extension of coverage under two General Permits: one for Stormwater Discharge Associated with Construction Activities (Construction Stormwater Permit or �CSWP�) and one for Stormwater Discharge Associated with Industrial Activities (Industrial Stormwater Permit or �ISWP�).  In its implementation of the Federal Clean Water Act (CWA), Ecology issues general permits as an alternative to issuing individual NPDES discharge permits. 

Soundkeepers argued that coverage should not be extended under the CSWP or ISWP to any discharge that would add an identified pollutant to waters listed under �303 (d) of the CWA.  Ecology argued that general permit coverage was appropriate in the absence of an established Total Maximum Daily Load (TMDL) for pollutants.  

The PCHB conditionally granted Soundkeepers� motion for stay for the Construction Stormwater Permit and the Industrial Stormwater Permit.  The Board found that the CWA prohibits permits for discharges that exceed water quality standards.  In so ruling the Board adopted the following permit conditions:  1) New discharges to �303(d) listed waters will not be allowed coverage if the anticipated discharge will include the pollutant for which the water body is listed unless it can be documented that no water quality violation will occur, and 2) New discharges to a water body for which a TMDL has been developed will not be allowed coverage unless the discharge would be in compliance with the TMDL.

PUBLIC NOTICE AND INFORMATION

Citizens Against SeaTac Expansion v. Ecology and the Port of Seattle, PCHB N0. 01-090 brought before the PCHB the important issue of the scope of public notice and information required on an NPDES permit modification.

The Port moved for dismissal and the Citizens Against SeaTac Expansion (CASE) moved for partial summary judgment.  The Board treated both as motions for summary judgment.   On CASE�s motion for summary judgment the issues were: 1) whether � 401 certification was a pre-condition to NPDES permit modification; and 2) whether Ecology�s public participation process was consistent with applicable law in relation to the permit, the fact sheet and public notice.

The PCHB ruled against CASE on every summary judgment issue but one.  The Board agreed with CASE in finding that the Fact Sheet addendum did not provide sufficient information.  CASE had argued that the Fact Sheet addendum was inadequate because it failed to identify points of discharge by sketch or description.  40 CFR 124.56; WAC 173-220-060.   The Board found that although federal regulations provide discretion to the agency in requiring compliance with this provision, state regulations do not.  State regulations describe these elements as the �minimum.�  The Board stated that:

�Fact sheets are an important aspect of the notice and information given to the public to allow it to actively participate in the NPDES decision-making process.  Adequate information, especially something as critical as a point of discharge, cannot be overlooked, eliminated, or provided in an ad hoc or after-the-fact manner. �

The Board remanded the NPDES permit and Fact sheet to Ecology to correct the deficiencies in the FACT sheet consistent with the opinion.  

FOREST PRACTICES

The Forest Practices Appeals Board (FPAB) was presented with an appeal that raised the issue of permit enforcement.  Dukich v. DNR and Diversified Forest Products, Inc.  FPAB NO. 99-020 involved an appeal from a Department of Natural Resources (DNR) approved Forest Practices Application (permit) issued to Diversified Forest Products, Inc. (DFPI).   The permit allowed DFPI to construct a 10 ft. wide, 1480 ft. long road to reach a cabin near Bead Lake in Pend Oreille County.  The permit contained many conditions on the project including one for re-vegetation.

Dukich originally appealed the permit, but a settlement agreement was reached that gave Dukich a right to reactivate proceedings before the Board.  The settlement agreement also provided that "upon re-initiation of the proceedings in this appeal all rights and duties of the parties under this stipulation will cease..."

Despite this settlement, when the project neared completion trouble began.  DNR, DFPI and the County felt the project was complete.  Dukich disputed this because all conditions of the permit had not been met - among them re-vegetation.  DNR moved to dismiss arguing that the matter was moot.   The Board denied the motion noting that under the settlement agreement the matter was not "moot" since all conditions had not been met.  However, Dukich subsequently exercised his rights under the reactivation clause of the settlement agreement, thus ending the rights and obligations of all parties under that agreement.

DNR moved for summary judgment, again arguing that the appeal was moot.  The Board granted DNR's motion.  In its analysis the Board characterized the issue as one of permit enforcement versus proper permit issuance.  It noted that it did not have enforcement jurisdiction and that such issues were properly submitted to superior court. RCW 34.05.570(4).   The particular conundrum arose from proceedings that took place under the settlement agreement.   However, since the appellant had reactivated the appeal the settlement agreement was no longer in force.  Accordingly, its definition of mootness no longer governed and could no longer form a basis for the Board's ruling.   Even though the Board strongly stated its disapproval of DNR's failure to enforce the terms of the permit, the Board concluded that it did not have jurisdiction for the relief requested and dismissed the appeal as moot.

SEPA/SHORELINE MANAGEMENT ACT (SMA)

In Luce and McFadden. v. City of Snoqualmie and Northwest Railway Museum, SHB NO. 00-034 the Shorelines Hearings Board (SHB) addressed the issue of whether a Shoreline Substantial Development Permit (SDP) was sufficiently detailed or complete.

The City of Snoqualmie issued the SDP and a Determination of Non-Significance (DNS) to the Northwest Railway Museum (NRM).  These actions were taken in the course of NRM�s Phase 1 development of a Railway Conservation and Restoration Center (CRC).  The CRC was planned to help facilitate NRM�s 50-year mission of operating the historic railroad and restoring its collection of railroad artifacts and rolling stock.   The restoration involved working with hazardous materials (paints, lubricants, greases, solvents, paint thinners and asbestos).   Pre-application review by the city predicted that the project would require five permits.  NRM decided against utilizing the city�s permit consolidation procedure.  The city incorporated ten conditions into the SDP.   Many of the conditions referred to the applicant�s need to �obtain� other city permits or �comply� with other relevant regulations that required additional regulatory processing. 

Nearby property owners appealed the city�s actions to the Shorelines Hearings Board.    They claimed that city issuance of the DNS violated SEPA and that the city failed to adequately evaluate the impacts of the project on the environment and also the use of hazardous materials.

The SHB remanded the SDP and the DNS back to the City of Snoqualmie for �processing and reconsideration.�   The SHB found that the SDP lacked completeness and contained �several major errors.� The incomplete nature of the proposal left the Board with �no idea what was approved� by the City.  It lacked final drawings and site plans.  There was not sufficient detail to enable the Board to determine if it complied with SMA.  It failed to delineate a wetland.   There was no clear indication of the final approved plan.   In closing, the Board noted that the city relied too much on its code rather than �specifically evaluating the impacts of the proposal on the environment,� in violation of SEPA.

 

SHORELINE VARIANCE

The SHB had to answer the question whether an approved building permit could remain valid if the applicant never picked it up in Jacobs v. San Juan County, SHB NO. 01-015.

 The appellants applied to move a house to their lot on the North end of San Juan Island.  The application indicated only two trees were to be cut.  After permit review, a San Juan County employee telephoned the appellants to notify them that their building permit was ready for pick up.  They were advised to pay the fee at pick up.  Because of the presence of natural vegetation, the house was allowed to be set back only 50 feet from the shoreline. 

The contractor's plan was to barge the house to the waterside of the lot and then move it up the embankment to the agreed site.  Despite the early indications that only two trees would be cut and minimal grading would occur, the contractor proceeded with extensive tree cutting and grading.  However, the work began before the Appellants picked up the permit.  This resulted in the issuance of Notices of Violation, Stop Work Orders and penalties.  With the tree screen removed, the County indicated that the house needed to be moved back to 100 feet from the shoreline or that a shoreline variance was required.  The appellants applied for the variance but the hearing examiner denied the application and the County denied their appeal.

The SHB reached a split decision, which resulted in upholding the county�s decision.  The Board majority found that verbal authorization did not cause the permit to issue.  So the construction activity was unauthorized and the 100 ft. setback in force.   Therefore, the majority determined that a variance was required.   However, the majority decided that the appellants did not meet the legal conditions for a variance.  Accordingly, the result was that the house had to be moved to the 100ft. setback.

 The dissent found requiring both compliance with the 100ft. setback and restoration to be double punishment.  They held that moving the house to the 100ft. setback was more injurious to the environment than letting it remain.  The dissent determined that given the County's various errors in the process of regulating the house move, it should exercise its discretion differently and authorize the house to remain as sited.

SHORELINE MANAGEMENT RULES APPEAL

Perhaps the most important case of the year required the SHB to rule on the validity of the new SMA Guidelines prepared by Ecology over the last five years.  Association of Washington Business v. Ecology, SHB NO. 00-037 was the culmination of many years of public process and hard work by many individuals.

It all began in 1995 when legislation was enacted requiring Ecology to update the Shoreline Management Act (SMA) guidelines.  RCW 90.58.060(3).  Originally adopted in 1972, the current guidelines had never been updated.   After review, Ecology determined that the existing guidelines were inadequate to enforce the SMA.  Ecology published the first draft of the guideline revisions in 1999.  Those rules were withdrawn, reissued, and on November 29, 2000 became final.   A multitude of public and private entities appealed these rules to the SHB for review.

The SHB issued its ruling on August 27, 2001.   Three members concurred in and dissented from the majority opinion. Thus, the SHB review resulted in three written opinions: a majority opinion, a concurrence/dissent by one member and a concurrence/dissent joined in by two members.

The Majority opinion decided that the Department of Ecology does not have express or implied authority to implement the Endangered Species Act (ESA).  It held that the ESA compliance requirements in the Guidelines violate the Administrative Procedures Act (APA) but that the Guidelines properly required preservation and restoration of Property Functioning Conditions.   The SHB also held that the Guidelines do not improperly shift the balance of policies under SMA.   However, the Board found the Guidelines improperly regulate uses that are exempt under SMA by requiring letters of exemption.  The SHB held that the Guidelines do not effectively prohibit gravel mining.  The SHB held that Ecology violated requirements to prepare a Small Business Economic Impact Statement (SBEIS), Implementation Plan and Cost-Benefit Analysis.   Finally, the Board determined that Ecology did not improperly impose an unfunded mandate on local government and that the Guidelines do not conflict with the Growth Management Act (GMA).  In its final order, the Board remanded the Guidelines to Ecology for actions consistent with the opinion.  In all other respects the Guidelines were found valid.

In dissent, one Board member found the "guidelines do not implement the ESA, but rather implement the SMA in a manner consistent with the ESA."   This view holds that express authority is not needed as long as the substance of the Guidelines fall within the scope of the SMA.  This Board member also found that Ecology did not violate requirements to prepare a SEIS, Implementation Plan and Cost-Benefit Analysis.

In dissent, two Board members found that the Guideline's improperly require preservation and restoration of Properly Functioning Conditions.   They determined the Guidelines improperly shifted the balance of priorities under the SMA from a structure that promotes a  "balancing of interests" to one that promotes "habitat restoration."   These Board members held that the Guidelines effectively prohibited gravel mining and that they operate to impose an un-funded mandate on local governments.  

NOTE: This article was written by Eric Z. Lucas.  Here is his biographical information.  Eric Z. Lucas began his service as an Administrative Appeals Judge for the Boards of the Environmental Hearings Office in February 2002.   Prior to his appointment, Mr. Lucas served for eleven years as the City Attorney for the City of Langley, Washington.  The last two years of his tenure in Langley he also held the position of City Administrator.  Mr. Lucas has been a Judge Pro Tem for Snohomish County Superior Court since 1999.  In 1986, he began his legal career as a criminal division Deputy Prosecuting Attorney for King County, Washington (1986-1989).  Mr. Lucas attended Stanford University as a Creative Writing major and a member of the Stanford Writer's Workshop.  He is a graduate of the University of Washington with a degree in English Literature.  He received his JD degree from Harvard Law School, Cambridge, Massachusetts in 1986.