April 2004

 

The following summarizes some of the cases decided in the winter and early spring 2004 by the various boards that make up the state�s Environmental Hearings Office, in particular the Shorelines Hearings Board (SHB) and the Pollution Control Hearings Board (PCHB).  This summary was prepared by Bill Clarke, a member of the Pollution Control Hearings Board and Shoreline Hearing Board, and Kay Brown, Administrative Appeals Judge for the Boards.

 

Environmental & Land Use Law April 2004

I. Pollution Control Hearings Board

 

A. PCHB Authority

 

Columbia River Alliance for Nurturing the Environment (�CRANE�) v. Department of Ecology, PCHB 03-095, Temporary Restraining Order (August 14, 2003), Order on Motion to Stay (August 26, 2003).

 

The Board issued a temporary restraining order (�TRO�) under Civil Rule 65 prior to deciding whether to

grant a stay under its statutory stay. In CRANE, appellants challenged (1) an Ecology concurrence with the U.S. Army Corps of Engineers� (�Corps�) determination that the Corps�proposed Columbia River Channel Deepening Project is consistent with the Washington Coastal Zone Management Plan, and (2) an order from Ecology certifying that the project complies with Washington�s water quality standards. The Board issued a temporary restraining order based on the test from Tyler Pipe Indus. v. Department of Revenue, 96 Wn.2d 785, 792 (1985).

 

After the TRO was issued, CRANE then moved for a stay under the Board�s stay statute, RCW 43.21B.310. CRANE sought to stay Ecology�s decision so that review by the Board would occur prior to the issuance of a Record of Decision by the Corps on the project. The Board ruled that CRANE was entitled to the stay to allow such review at the state level to occur before the Corps issued its final decision. The Board also accelerated the schedule for review of the case in light of Airport Communities Coalition v. U.S. Army Corps of Engineers and Port of Seattle, 280 F.Supp.2d 1207, 1218 (W.D. Wash. 2003), in which Judge Rothstein ruled that in a Clean Water Act � 401 certification the Corps need only include conditions imposed by the state, including both Ecology and on judicial review, within a year of issuing the notice for request for certification. After the stay was issued, the CRANE appeal settled.

 

B. Water Rights

 

Familigia LLC v. Department of Ecology, PCHB 03-072, Summary Judgment (October 31, 2003), Order on Reconsideration (January 30, 2004). In this case, Familigia LLC sought to adjust groundwater rights approved for primarily irrigation use, with a minor component for recreational and domestic supply, to allow for increased domestic use to support development of a hotel complex and small vineyard. A portion of the water rights were inchoate. Ecology denied the change of use under RCW 90.44.100 on the basis that the groundwater transfer statute does not allow changes in purpose of use for inchoate groundwater rights, only changes in the �manner of use. Ecology also denied the water rights changes under the Family Farm Act (�FFWA�).

 

The PCHB first considered the meaning of the phrase �manner of use� in RCW 90.44.100, the groundwater change statute.� Before the Board, Familigia argued that within the groundwater code �manner of use� is synonymous with �purpose of use.� Ecology argued that the Supreme Court had resolved the matter in R.D. Merrill v. PCHB, 137 Wn.2d 118 (1999). Familigia countered that the Supreme Court�s consideration of the phrase �manner of purpose� in RCW 90.44.100 was only dicta, because the manner of use of the two unperfected groundwater rights were not at issue in the Merrill decision.

 

On summary judgment, the Board ruled for Ecology, finding that RCW 90.44.100 did not allow for changes in the purpose of use of unperfected groundwater rights, relying on the Supreme Court�s decision in Merrill. On a motion for reconsideration by Familigia, the Board reversed its decision, finding that �manner of use� and �purpose of use� were synonymous, and that the issue was not squarely before the Merrill court. The initial majority and dissenting Familigia LLC opinions essentially changed places, and were supplemented with new opinions upon reconsideration.

 

The Board also reviewed Ecology�s denial under the FFWA. Under the FFWA, a water right may be changed to a different use if the use is within a designated urban growth area under the Growth Management Act (�GMA�), or in non-GMA counties, in areas designated for urban growth. RCW 90.66.065(2)(c). Familigia argued that the hotel complex for which the water would be used was within an urban growth area because the project is a Master Planned Resort under GMA. The Board ruled that while designation of a Master Planned Resort may show that an area is urbanizing, it does not mean that the area has been designated as an urban growth area.

 

Ecology also refused to approve the water rights change under the lease provision of the FFWA, which states that a FFWA water right may be changed to any purpose of use �if the transfer is made exclusively under a lease agreement.� RCW 90.66.065(2)(b). Familigia argued that this denial was premature, because no lease was presented to Ecology for review. The Board ruled that even though a particular lease was not at issue, that the project did not qualify under the FFWA lease provision. In so deciding, the Board considered the specific lease provision in light of the intent section of amendments to the FFWA in 2001 legislation. The Board found that the legislation was intended to allow �temporary leases [of] . . . family farm water permits.� Upon reconsideration, the Board did not modify its decision that the proposed change did not meet the lease provisions of the FFWA, though it reinforced the need for legislative clarification of the FFWA lease provisions, and the concurrence recognized that there was no lease before Ecology.

 

Port of Vancouver, U.S.A. v. Department of Ecology and Clark Public Utilities, PCHB 03-149/151, Order Granting Stay (November 26, 2003).  The PCHB considered the application requirements for a preliminary water right permit and the applicability of SEPA to such a permit. The Board reviewed these issues in the context of a motion for stay of a preliminary permit, and will review the merits of this permit appeal in 2004. Clark Public Utilities (�CPU�) is seeking to develop a new groundwater supply in the Vancouver Lake lowlands area. As part of this new supply, it submitted a water right permit application to Ecology. The Vancouver Lake lowlands area has been the site of industrial activities over the past century that has resulted in groundwater contamination. Port of Vancouver and other appellants are some of the parties currently working to contain and clean up contaminated groundwater. These same parties appealed a preliminary permit issued to CPU to test a well at one of the potential wellfield locations, on the basis (1)� that there was no water right application corresponding to that well depth and location and (2)� that SEPA review of the wellfield project had not occurred.

 

The Board applied RCW 43.21B.320(3), the Board�s statutory stay test. The Board found that appellants did not meet the �likelihood of success� requirement for a stay based on its claims that CPU�s application for a groundwater right was insufficient to support issuance of preliminary permit. The Board ruled that under RCW 90.03.290(2), �Ecology has the undisputed statutory right to issue preliminary permits . . . .�

 

However, as to the claim that the preliminary permit should not be issued prior to a SEPA threshold determination, the Board found that appellants met the �likelihood of success on the merits� test for issuance of a stay. Thus, a stay would be issued unless CPU or Ecology could show both a likelihood of success and an overriding public interest why the stay should not be issued. The Board determined that neither CPU nor Ecology made such a showing, and thus issued a stay of the preliminary permit. A decision on the merits of the case is expected in 2004.

 

Confederated Tribes and Bands of the Yakama Nation v. Department of Ecology, PCHB 03-030, Summary Judgment (October 31, 2003).

 

In an appeal brought by the Confederated Tribes and Bands of the Yakama Nation, Nez Perce Tribe, and Confederated Tribes of the Umatilla Indian Reservation (�Tribes�), the Tribes challenged five (5) water permits issued by Ecology for surface water right diversions from the Columbia River. Four of the five were issued to irrigation districts and a hospital district for irrigation. The fifth was issued to Mercer Ranches for industrial food processing. The total water approved to be withdrawn from the Columbia River under the permits was approximately 138 cubic feet per second.

 

Tribal Consultation. The Board granted summary judgment to the Tribes because they were not consulted prior to the issuance of the permits. Consultation with the Tribes is required by Ecology rules. See WAC 173-531A-060 and WAC 173-563-030(4). The Board concluded that the rules require Ecology to engage in a �meaningful, continuing consultation� with the appropriate Indian tribes. The Board opined that consultation did not require negotiation, but it did require �more than a letter of notice of the possibility of consultation.� Although Ecology may have had some contact with the Tribes at an early stage in the processing, when Ecology made a substantial change to its proposed decision it was necessary to consult with and seek the advice and evaluation of the Tribes. On this basis, the Board remanded all five applications back to Ecology for proper consultation with the Tribes prior to issuing a final decision on the applications.

 

SEPA Exemption. Although remanding the applications to Ecology, the Board addressed the remaining issues which were the subject of pending motions in order to provide guidance to the parties should the case return to the Board. One issue concerned Ecology�s lack of SEPA process when it issued the water right permit to the Kennewick Public Hospital District (�KPHD�). The Tribes argued that the application should have been subject to SEPA despite qualifying for a SEPA exemption. They based this argument on WAC 197-11-305, a SEPA rule that �unexempts� actions exempt under Part Nine of the SEPA rules because they are a segment of the same proposal as other pending actions. The Board concluded that the KPHD application was not part of the same proposal as the other applications because it was made by a different entity.  Therefore, the Board ruled that Ecology was correct in concluding the KPHD permit remained exempt from SEPA.

 

Standing and Impairment. The Tribes moved for summary judgment on the issue of whether Ecology had failed to adequately consider impairment of existing rights when it issued the permits. Ecology responded that the Tribes did not have standing to argue this issue. The Board disagreed, citing the Tribes� valuable treaty rights to fish on the Columbia-Snake River system as establishing their standing to assert the 1980 minimum flows contained in WAC 173-563. However, the Board concluded there were genuine issues of material fact regarding the substance of impairment, and therefore the impairment issue should proceed to trial.

 

Other Issues. The Board also concluded that the issue of cumulative impacts of the five applications was a contested issue of fact for trial. Finally, the Board opined that Ecology did not improperly grant a change to KPHD�s water permit when it approved the permit for a lower amount of water withdrawal than was originally applied for. The Board said the Tribes� argument was based on the faulty premise that KPHD had an initial water permit for a higher amount of water. In fact, all the KPHD had was a pending application, which was amended. This did not constitute a change to a water right. The Board�s decision was appealed to Benton County Superior Court in November 2003.

 

II. Forest Practices Appeals Board

 

Lummi Island Land Co. v. Department of Natural Resources, FPAB 00-013, Summary Judgment (September 11, 2003).

 

In Lummi Island Land Co., the Forest Practices Appeals Board addressed the issue of automatic approval of applications under RCW 76.09.050. The applicant submitted its application on March 17, 2000, the last day before the effective date of the new temporary rule changes implementing the forest and fish agreement. The application proposed two harvest units, each involving removal of fifty percent of the merchantable timber from 110 acres and 125 acres respectively. The application did not contain any specific disclosure about steep slopes on the property or any geologic assessment of the harvest area, nor did it contain sufficient information to fully evaluate the proposal�s impact on peregrine falcons in the area. DNR initially classified the application as a Class III forest practice.

 

After receipt of the application, DNR requested additional information. When the information was provided on March 28, 2000, it included maps that contained some conflicting information. More information was requested, and eventually the applicant submitted a geotechnical report. The applicant also indicated it would be reducing the 125-acre harvest unit to 32 acres. On April 21, 2000, DNR gave the applicant verbal notice that its application was being denied. Written notice of denial was provided on April 27, 2000.

 

The issue before the FPAB was whether the application was automatically approved 30 days after the date it was submitted, which would have been April 17, 2000. DNR argued, and the Board agreed, that the timeframe for approval under RCW 76.09.050 did not start until a complete application was submitted. It based its decision on WAC 222-20-010(7), which provides that applications are not considered received until they are complete. The Board opined that it did not have jurisdiction to consider the validity of this rule, but must apply it to the facts of the case. The Board concluded the application was not complete until all the information necessary to review the application had been submitted. In this case, that was at least March 28, when additional detailed maps and information were submitted. Further, the Board reasoned even if the application was considered complete when first submitted, and therefore deemed approved by operation of law on April 17, 2000, the applicant would have needed to submit a new application on April 21, 2000, when the size of the harvest was reduced by 75 percent. It concluded that this change was substantial, thus triggering the requirement for a new application contained in RCW 76.09.060(5).

 

III. Shorelines Hearings Board

 

A. SHB Jurisdiction

 

McArthur v. City of Long Beach and Pacific County, SHB 03-017, Summary Judgment (October 28, 2003).

 

The McArthurs challenged Pacific County�s approval of a shoreline substantial development permit (�SDP�) for construction of the Seaview Dunes segment of the Discovery Trail. Their general contention was the public would further destroy the dunes if the trail were built. The SHB granted summary judgment to the City and the County, and upheld the issuance of the SDP.

 

The McArthurs made several specific arguments as to why the County�s approval was not valid. First, they argued the City of Long Beach did not actually own the property, or that its ownership was subject to deed restrictions. The Board rejected the City�s argument that the petitioners lacked standing to raise this issue. The Board noted that the McArthurs would be injured if the permit were illegally granted to someone who does not have legal possession of the property, because they live adjacent to, and have had a portion of their property condemned for, the trail. The Board went on to conclude, however, that it did not have jurisdiction to rule on any alleged violations of deed restrictions.

 

Also in McArthur, appellants argued the proposed project did not involve a statewide interest as required by the Shoreline Management Act. The Board rejected this argument. It concluded even if a majority of the users of the Seaview Dunes segment of the trail were local, the trail as a whole celebrates a statewide and national event, the Lewis and Clark expedition. The McArthurs also contended the project was short-term, because the trail was being constructed as part of a bicentennial commemoration. The Board concluded the trail project would likely long outlive the bicentennial commemoration, and would be a permanent memorial to the Lewis and Clark expedition on the Washington Coast. April 2004 Environmental & Land Use Law

The McArthurs also contended the construction of the trail would increase illegal use of the dunes by four-wheel drive vehicles and would cause damage to the resources and ecology of the shoreline. The Board rejected this argument. The Board concluded, based on the photographic evidence submitted of the existing trail, plus the opinions of the experts at Ecology and State Parks, that construction of the Seaview Dunes segment of the trail would help improve the character of the dune environment by focusing recreational activity into one corridor. The Board also noted that the petitioners, who had the burden of proof in the appeal, had offered no contrary expert opinion on this question.

 

Additionally, the McArthurs argued the trail segment constituted a commercial development. The Board rejected this argument, noting that there was no mention of any fees for use of the trail by the public, nor was there any mention of promoting trade or commerce. Finally, the McArthurs argued that only low-intensity recreational uses are permitted within conservancy shoreline environments,mand then only if they do not change or detract from the character of the environment. The Board concluded that the trail use would meet these requirements, and was consistent with the master plan. It noted that the trail use would be primarily pedestrian, bicycle, and wheel chair oriented, and would be non-polluting.

 

Washington State Ferries v. City of Edmonds and Department of Ecology, SHB 03-013, Summary

Judgment (October 28, 2003).

 

The Board ruled that a discretionary appeal before a local government need not be filed before filing an appeal of a shoreline permit decision with the Shorelines Hearings Board. The City of Edmonds issued Washington State Ferries (�WSF�) a temporary shoreline permit for an overhead loading facility at the Edmonds ferry terminal, even though WSF sought a permanent approval. WSF appealed to the SHB without filing an appeal with the Edmonds City Council. The Board ruled that because the City Council appeal was discretionary, WSF need not appeal to the City Council prior to its SHB appeal.

 

The Board also ruled that the ferry terminal project must be consistent with local comprehensive plans and development regulations, as well as the SMA and local Shoreline Master Program. Applying these laws, the Board ruled that the City�s approval of a temporary shoreline permit, rather than a permanent approval, is not precluding the siting of a ferry terminal, but approving the continued temporary location of the overhead loading facility.  The Board dismissed WSF�s appeal on the basis that the approval by the City was consistent with applicable state and local laws.

 

B. Effect of Prior Permits

Yale Estates Homeowners Association v. Cowlitz County, SHB 03-012, Summary Judgment (December 22, 2003).

 

The Board determined that conditions in a prior shoreline permit could act as a legal bar in a future shoreline permit application. In this case, the Board reviewed the County�s denial of a shoreline substantial development application from lot owners seeking to construct a number of private recreational docks. The County based its denial on the conditions in a shoreline permit issued to owners of the same lots in 1995. In the 1995 permit approval, the lot owners were allowed to substantially modify the lakeshore for purposes of shoreline stabilization. As part of that permit review, the County reviewed shoreline access issues, including the construction of docks, and included a permit condition that prevented the lot owners from building docks. The County permit stated that boating access should occur through use of a nearby public access launch.

 

The Board held that the dock prohibitions in the 1995 permit acted to bar the construction of docks from a new permit. The Board relied on Hilltop Terrace Ass�n v. Island County, 126 Wn.2d 22, 33 (1995) for the proposition that a shoreline use or development that was specifically prohibited in a prior permit may not be later challenged, unless the original permit itself has been vacated or abandoned, or unless there has been a substantial change in circumstances or conditions relating to the prohibition. The Board found that the dock prohibition was within the scope of the permit sought by the lot owners at that time, and that the dock prohibition was never appealed.

 

C. Ordinary High Water Mark

 

Stafford v. City of Bainbridge Island et al., SHB 03-010, Findings of Fact, Conclusions of Law, Order (October 31, 2003).

 

The SHB considered the interesting issue of whether an exemption from a shoreline development requirement may alter the location of the ordinary high water mark (�OHWM�). The Board addressed this question in the context of property owned by the Staffords on Point Monroe Sand Spit on Bainbridge Island. In 1990, a major storm hit the area causing damage to homes and bulkheads. Emergency repairs were authorized, and the Stafford�s bulkhead was built pursuant to a shoreline exemption.  In 1997, the Staffords decided to build a single-family residence on their property. This project required a shoreline variance. To obtain a variance, it was first necessary to determine the location of the OHWM. RCW 90.58.030(2)(b) identifies three methods by which the OHWM may be determined: (1)� by ascertaining the vegetation line, (2)� by ascertaining where the OWHM has been changed by permits, or (3)� by relying, in the case of saltwater, on the �mean higher high tide.� The Board concluded that it was not possible to determine the historic OWHM by the vegetation line because of the major storm and the existence of bulkheads. The Board then concluded that reference could be made to the tidal datum line.

 

Further, the Board opined, the second method of determination of the OHWM could also be used. The Board concluded that the historic OHWM in this case had been altered due to the construction of the bulkhead pursuant to a shoreline exemption. A majority of the Board was persuaded RCW 90.58.030 allows an exemption decision, as well as an affirmative decision on a permit, to change the OHWM. The Board concluded that the key was whether the shoreline exemption received actual review by the local government. If so, the granting of an exemption is a substantive granting of �permission� authorizing the activity involved. Here, the Board was persuaded that the Stafford�s exemption for its bulkhead had received actual review, and therefore did have the effect of changing the OHWM. The Board dissent did not agree that the OHWM could be changed by a permit exemption. Further, the dissent thought the historic OWHM in this case could be ascertained by reference to the vegetation line.

 

Based on its determination of the OHWM, the majority went on to address the requirements for granting of a variance. The Board concluded that all were met except for the requirement a variance be the minimum necessary to afford relief. The Board was not convinced the proposed structure was the minimum necessary. On this basis it remanded the variance application back to the City with leave to amend the application to comply with the �minimum necessary variance criteria.� The Board�s decision is currently on appeal in Thurston County Superior Court.

 

D. SEPA Review

 

Department of Natural Resources v. Kitsap County, SHB 03-018, Summary Judgment (December 16, 2003).

 

This case was an appeal by DNR, with an intervention by the Department of Fish and Wildlife, of Kitsap County�s denial of shoreline permit for geoduck harvest in Kitsap County. Kitsap County denied the permit application on the basis that SEPA review of the proposed geoduck harvest was insufficient, and raised a variety of SEPA issues in the appeal.

 

In response to motions for summary judgment, the Board first ruled Kitsap County was not collaterally estopped from challenging DNR�s reliance on its own programmatic EIS by a 1992 SHB decision on geoduck harvest in Kitsap County that included similar SEPA issues. While the issues were similar, the prior Kitsap County geoduck SHB appeal concerned different SEPA documents and permit applications than those at issue in the present appeal. Thus, the first test needed to apply the doctrine of collateral estoppel, (�the issue in both actions is identical�) was not met, and thus collateral estoppel could not apply. Ecology v. Yakima Reservation Irrigation Dist., 121 Wn.2d 257, 296 (1993).

 

On remaining SEPA claims, however, the Board ruled in favor of DNR. The Board ruled against Kitsap County that simply because DNR was both the project proponent and SEPA lead agency, it does not create a conflict of interest that justifies and/or authorizes Kitsap County to require DNR to pay for an independent expert to review its SEIS. The Board found that DNR had appropriately separated its SEPA review responsibility from its project permitting activity.

 

The Board also ruled that Kitsap County could not use the shoreline permit appeal as a collateral attack on the SEPA SEIS, which had a separate appeal process that had already lapsed. Finally, the Board ruled that under WAC 197-11-545, Kitsap County could not raise the SEPA issue of lack of independent review at this time, because the County had not properly raised those issues in its comments to the drafts of the SEIS. Finally, the Board found that DNR�s SEIS, prepared for a non-project action, and supplemented by individual Environmental Assessment of proposed geoduck harvest tracts, was adequate under SEPA and the SEPA Rules, Chapter 197-11 WAC, as a project specific EIS.