By Bill Clarke, Environmental Hearings Office
The following are brief summaries of notable cases from
the Environmental Hearings Office (�EHO�) over the last six months. The full
decisions are available on the EHO�s website at www.eho.wa.gov. In addition, the EHO has recently added to the Archives section of
its website so that all board decisions dating back to the creation of the Pollution
Control Hearings Board and Shorelines Hearings Board are available
I. Environmental and Land Use Hearings Board
Friends of Grays Harbor and Washington
Environmental Council v. City of Westport, Mox Chehalis
LLC, Port of Grays Harbor, and Department of Ecology, ELUHB No. 03-001, Record Review Decision
and Order (October 12, 2005), De Novo Findings of Fact,
Conclusions of Law, Order (October 12, 2005).
This was the first appeal heard by the
Environmental and Land Use Hearings Board (�ELUHB�), established by the
Legislature in 2003. Under this appeal process, the Office of the Governor may designate
certain projects as eligible for a consolidated appeal process of all land use and
environmental permits before the ELUHB. The ELUHB statute, Chapter 43.21L RCW,
was based in part on the Land Use Petition Act. Thus, the ELUHB appeal process includes
features from LUPA, including the scheduling of an initial hearing and record
review of some permit decisions.
This case related to the Links at Half Moon Bay
destination resort proposed by Mox Chehalis LLC in
the City of Westport.
The resort would include an 18-hole golf course built in an interdunal
area near the Pacific Ocean, 200 condominium
units, a luxury hotel, and budget hotel, and a conference center. The project
site is between downtown Westport and Westhaven State Park along the Pacific Ocean.
The permit approvals initially appealed to the Board included a Hydraulic
Project Approval (�HPA�), Binding Site Plan, Clean Water Act �401
Certification, Shoreline Substantial Development Permit, and Shoreline
Conditional Use Permit. In motion practice, Mox
Chehalis sought to withdraw from the consolidated appeal process the appeal of
its HPA on the basis that the project did not require an HPA. The Board ruled
that it did not have authority to determine whether the project required an HPA
or not, and that Mox Chehalis could pursue the project
without an HPA at its own risk.
The remainder of the appeal was divided into two parts,
based on the standard of review provided by the ELUHB statute. For permits in
which the permit decision was made after a due process hearing in which parties
could establish a record for the decision, the Board�s review is on the record.
This type of process existed before the City of Westport for the Shoreline Substantial
Development Permit and Binding Site Plan, thus the review of those permit
decisions was on the record. The Shoreline Substantial Development Permit
related to the condominiums, hotels, and conference center. The Shoreline
Conditional Use Permit and Clean Water Act �401 Certification were issued by
Ecology under its normal process, which did not include a due process hearing.
The Shoreline Conditional Use Permit related to fill placed in the interdunal wetlands for golf course construction. Thus,
these permits would be reviewed before the Board de novo.
Overall, the Board unanimously concluded that the project
site was appropriate for a destination resort project. The Board noted that the
City of Westport
had previously adopted ordinances and revised its Shoreline Master Program (�SMP�)
to allow this type of proposed use. On the binding site plan issue, Mox Chehalis and the City of Westport argued that the project was not
subject to a binding site plan, only to a site plan, as those procedures are
established in the City code. The Board determined that there were not separate
binding site plan and site plan procedures, only a single binding site plan
process. The Board thus remanded the issue to the City to complete the binding
site plan process after making the required public interest determination. The
Board also concluded that the public interest determination in a binding site
plan approval relates only to those findings that must be made in a binding
site plan or subdivision approval, such as whether appropriate provisions for
roads and infrastructure have been made. The public interest determination in a
binding site plan is therefore different from the public interest inquiry in a
In the record review of the Shoreline Substantial
Development Permit for the condominiums, hotels, and conference center, the
Board unanimously affirmed the permit for the hotels and conference center.
However, the Board split 3-2 on whether the condominiums met the requirements
in the Westport SMP and the Shoreline Management Act (�SMA�). The majority
determined that the City�s decision that the proposed condominiums met the
requirements of the SMP and SMA was supported by substantial evidence. The
dissent concluded that while the condominiums were an appropriate component of
the resort, that there was not substantial evidence that the proposed location of
the condominiums complied with the SMP and SMA, because the condominiums were
proposed to be located adjacent to a state park and public trail and were near
an area that had experienced erosion in recent years. The Board also split
along the same vote on whether Westport City Council incorrectly decided to not
accept new evidence on erosion that had occurred after the PlanningCommission
In the de novo review portion of the appeal, the
Board concluded that the Shoreline Conditional Use Permit for the placing of
fill in wetlands for construction of the golf course complied with the Westport
SMP and SMA. In affirming this permit decision, the Board agreed with the City
of Westport and
Ecology that the wetland mitigation plan was
sufficient. In the appeal of the �401 Certification, the Board�s review focused
on the Natural Resource Management Plan (�NRMP�), which provided construction and
operational standards for the golf course. While the Board concluded that the
NRMP was an appropriate tool to protect water quality, the Board remanded the
�401 Certification to Ecology to address a number of inconsistencies between
the draft and final versions of the NRMP relating to monitoring, management
zones, and allowed chemical usage. The Board also required additional
information on groundwater levels to establish that adequate physical
separation between the golf course turf and groundwater existed to prevent
chemicals from entering groundwater.
As of October 28, 2005, it was not known whether
the parties would appeal the decision.
II. Pollution Control Hearings Board
A. Clean Air Act
The Ostrom Company
v. Olympic Region Clean Air Agency, PCHB No. 04-105, 04-140, Findings of Fact, Conclusions of Law,
Order (September 9, 2005).
The Ostrom Company
appealed civil penalties issued by the Olympic Region Clean Air Agency
(�ORCAA�) relating to operation of its mushroom growing operation in Thurston County. ORCAA issued a civil penalty of $10,000
for odor emissions, and a second civil penalty of $1,600 for failure to comply
with an existing Notice of Construction. Ostrom
asserted that its operation was exempt from the odor provisions of the
Washington Clean Air Act, Chapter 70.94 RCW, because it was conducting an agricultural
activity. ORCAA argued that while growing mushrooms was an agricultural
activity, that the process of making compost in which the mushrooms grow was
not an agricultural activity. Consequently, because the compost production
caused odors, ORCAA was not exempt from the Washington Clean Air Act. ORCAA
also argued that even if exempt, Ostrom lost its
exemption by virtue of selling agricultural land that was converted to
residential use. Ostrom raised an additional defense
under the Right to Farm Act, which the Board determined did not apply to regulatory
The Board determined that the making of compost on site
by Ostrom for purposes of growing mushrooms on site was
an agricultural activity, and was therefore conditionally exempt from the
Washington Clean Air Act. The Board also concluded that Ostrom
did not lose the protections in the Washington Clean Air Act for agricultural
activities because it sold part of the property, because the part sold was not
agricultural land. However, because a portion of the compost made on-site was
sold or traded to other mushroom growers, that portion did not qualify for
exemption under the Clean Air Act. The Board reduced the civil penalty issued
by ORCAA pertaining to odor violations from $10,000 to $500. On the civil penalty
for violation of an existing Notice of Construction, the majority of the Board
affirmed the penalty. The dissent concluded that Ostrom
could not be issued a civil penalty based on a Notice of Construction, because
as an agricultural activity Ostrom was exempt from
the Notice of Construction requirement unless ORCAA proved that Ostrom was not using good agricultural practices or that
the odors were impacting public health.
Both parties have appealed the Board decision to Thurston
County Superior Court.
Affordable Asbestos Abatement v. Spokane County
Air Pollution Control
Authority, PCHB No.
04-123, Findings of Fact, Conclusions of Law, Order (June 22, 2005).
Affordable Asbestos Abatement (�AAA�) appealed civil
penalties totaling $13,100 relating to cleanup of asbestos at a professional
office building in Spokane.
AAA was hired by a roofing company working at the site to clean up a pile of
roofing debris on the ground near one of the buildings. Later, AAA also agreed
to remove the remaining old roofing from the south side of the southeast
building and to remove material from the gutters on the northeast building. AAA
submitted a Notice of Intent to perform asbestos abatement work after
completing the work. SCAPCA issued two Notices of Violation (�NOV�) and accompanying
civil penalties. NOV 7358 was issued for failure to file a Notice of Intent,
and a civil penalty of $300 was issued. NOV 7359 was issued for performing work
after the end date in a Notice of Intent, and for asbestos emissions for
asbestos containing material being on the site.
The Board affirmed the $300 civil penalty for
failure to obtain a Notice of Intent and determined that AAA did not quality
for the emergency exemption from the Notice of Intent in SCAPCA�s regulations. The Board determined that AAA did not
perform asbestos work after the end date of the Notice of Intent. Regarding
asbestos emissions, AAA argued that asbestos remaining on the site was beyond
the specific piles of asbestos that AAA was hired to remove. The Board concluded
that, while AAA was not responsible for removing asbestos from areas of the
complex beyond the scope of the contract, AAA was responsible for asbestos remaining
in the immediate area surrounding the buildings that AAA contracted to clean
up. The Board consequently reduced the penalty to $3,200.
B. NPDES Permits
Okanogan Highlands Alliance et al. v.
Department of Ecology & Teck Cominco American,
Inc., PCHB No.
04-064, Summary Judgment (April 12, 2005).
Teck Cominco owns the Pend Oreille Mine, an underground
lead and zinc mine with surface ore processing and tailings disposal located
about two miles north of Metaline Falls.
The mine operated from 1952 until 1977. Ongoing dewatering of the mine and
discharge to the Pend Oreille River has been regulated by an NPDES permit
originally issued to Bunker Hill Mining Company in 1977. The permit expired in
1981, and Ecology has administratively extended the permit since that time. Teck Cominco reopened the mine in 2004, and Ecology issued
an NPDES permit for mine dewatering as a renewal of the original permit, rather
than as issuance of a permit for a new source or new discharge.
Okanogan Highlands raised a number of procedural and
substantive issues relating to the NDPES permit. On summary judgment, the Board
determined that the NPDES permit was not unlawfully transferred to Teck Cominco and that the NDPES permit had not been
previously unlawfully modified. The Board also analyzed Okanogan Highlands�
claim that the project should be considered a �new source� or �new discharge�
as those terms are defined in the Clean Water Act and implementing regulations,
but the Board found disputed facts and denied summary judgment on that issue.
Similarly, the Board denied summary judgment on issues relating to compliance with
anti-degradation and compliance schedule requirements. The parties reached
settlement of those remaining issues after the Board�s summary judgment
Emma Dixon et al. v. Department of Ecology and
King County, PCHB No. 05-059, Summary Judgment
(October 21, 2005).
has proposed construction of the Brightwater
wastewater treatment plant in unincorporated Snohomish County.
This case was an appeal of the NPDES Construction Stormwater
Permit relating to the construction of the treatment plant and conveyance
system. Appellants raised a number of issues regarding the construction stormwater permit, including seismic faults, dewatering,
cumulative impacts of increased impervious surfaces, and whether the Brightwater plant is even needed. King County
and Ecology countered that all NDPES and SEPA requirements were followed, and
also raised a number of jurisdictional defenses to some of appellants� issues.
The Board concluded that a number of the issues raised
by the appellants were not related to issuance of an NDPES construction stormwater permit. These included dewatering, seismic
risks, and potential release of sewage. The Board�s analysis was based on the
fact that certain issues like seismic risks and potential release of sewage are
do not relate to the discharge of construction stormwater,
but rather, to the operation of the plant. Further, the Board determined that
potential dewatering near the project site is beyond the scope of a
construction stormwater permit. Appellants also
argued that Ecology violated a condition imposed on the Brightwater
project by the King County hearing examiner that no further permitting action
occur until a Supplemental Environmental Impact Statement relating to seismic
issues was completed. The Board determined that this condition did not apply to
Ecology�s permitting authority, and that in any event, this issue was deemed
moot when the hearing examiner decision was appealed to King County Superior
The Board also dismissed claims relating to
adequacy of public involvement, analytical methods, and whether the Brightwater plant needed to exist.
C. Water Rights
Sweet Grass Investments LLC v. Department of Ecology, PCHB No. 05-076, Summary Judgment
(October 3, 2005).
Sweet Grass Investments appealed the denial of
water right claim amendments by Ecology. Sweet Grass sought to amend certain
attributes of the water right claim filed by its predecessor in interest as
amendments that were �ministerial in nature� under RCW 90.14.065(3). The Board reviewed
each of the requested claim amendments, prior Board decisions construing RCW
90.14.065(3), and the Court of Appeals decision in Department of Ecology v. Willowbrook
Farms LLP, 116 Wn.App
392 (2003). Based on the Willowbrook Farms decision,
the Board determined that, while some claim amendments are ministerial in
nature if they seek to correct clerical errors or other obvious mistakes on the
claim form, an additional consideration was whether the information on the
claim form differed from the intent of the claimant.
Applying this rule to the facts before the Board on
summary judgment, the Board found disputed facts existed except for the claim
amendment requested to add stockwater as a purpose of
use. On this requested claim amendment, the Board affirmed Ecology�s denial on
the basis that the claimant has claimed stockwater on
a different water right claim for the same property, and the claimant�s intent was thus to use that claim as
his stockwater claims. Other claim amendments will be
determined at the hearing on the merits.
The Board�s decision also clarifies or overrules
two holdings from earlier PCHB claims decisions. First, the Board concluded
that RCW 90.14.065(3) is not to be narrowly construed as an exception to
relinquishment, because it is not an exception to relinquishment. (The Willowbrook Farms decision also discusses the appropriate construction of the Water
Right Claims Registration Act.) Second, the Board concluded that change in the
source of water may be ministerial depending on the facts of the case. (Prior
Board decisions held that the source of water could not be subject to a
ministerial amendment, even though Ecology approved change in source of water
for Sweet Grass in this case.)
McMeans v. Department of Ecology, PCHB No. 05-066,Summary
Judgment (September 27, 2005).
McMeans appealed Ecology�s denial of water right claim
amendments sought under RCW 90.14.065(3). McMeans�
predecessor in interest had filed a short form water right claim, which is used
to claim water use for an exempt well. McMeans sought
to amend the claim by adding water right attributes for a non-exempt water
would have initially required a standard claim form, not a short form. The
Board determined that amending a short form claim to convert it to a standard
water right claim was not �ministerial in nature� and therefore affirmed Ecology�s
III. Shorelines Hearings Board
Morgan et al. v. Clark County, J.L. Storedahl & Sons, Inc., and Department of Ecology, SHB
No. 05-008, Friends of the East Fork and Fish First v. Clark County, J.L Storedahl & Sons, Inc., and Department of Ecology, SHB No. 05-009, Order on Motion to Dismiss (August
1, 2005), Order on Motion to Rescind (July 18, 2005).
This case involves a shoreline conditional use
permit for a sand and gravel mining operation along the East Fork of the Lewis River
in Clark County. The sand and gravel company,
J.L. Storedahl and Sons, filed a motion to dismiss the
Petitions for Review due to failure to comply with filing and service
requirements. The appeal filed by Petitioners Cindy Morgan et al. was addressed
to the Pollution Control Hearings Board, rather than to the Shorelines Hearings
Board. Storedahl also moved to dismiss the appeal of Friends
of the East Fork and Fish First because of failure to serve Clark County
and the Attorney General with copies of their petition within seven days of
filing it with the Shorelines Hearings Board. The Board denied both these motions.
On the issue of filing the appeal with the
Pollution Control Hearings Board rather than with the Shorelines Hearings
Board, the Board found that appeal was timely filed with the Environmental
Hearings Office, the umbrella agency for both the PCHB and SHB. RCW 90.58.180 states
that any person aggrieved by the granting, denying, or rescinding of a
shorelines permit may seek review from the Shorelines Hearings Board by filing
a petition for review within 21 days. The statute does not state where or to
whom the petition must be filed, but WAC 461-08-340 provides that �An
adjudicative proceeding before the board shall be begun by filing a petition
for review and one copy at
the environmental hearings office. The board shall acknowledge filing of the petition for review by
a stamp and the board�s stamp on the petition shall be prima facie evidence of
the date of filing. The board may thereafter require that additional copies be
filed.� Further, the appeal noted that it was an appeal of a shoreline permit.
On the issue of Friends of the East Fork�s service,
the Board relied on past cases to conclude that improper service is a
jurisdictional defense personal to the entity not properly served. Thus, J.L. Storedahl & Sons could not seek dismissal based on
errors in service on Clark
County and Ecology.
Neither Clark County nor Ecology raised improper service
as a defense.
Friends of the East Fork filed a motion to rescind Ecology�s
permit decision and remand it to Clark
County because it was not
a final decision due to related land use determinations being made the County.
The Clark County Board of County
Commissioners issued the
shoreline permit, which was transmitted to Ecology and approved. The BOCC then
later remanded a County Hearing Examiner decision back to the Hearing Examiner
for the purpose of the scope of nonconforming use rights at the sand and gravel
site. The BOCC decision stated in its resolution that the
resolution was not a final determination for the purpose of appeals under the
Land Use Petition Act. The extent of nonconforming use rights related to
the shoreline permits in that the decision could result in Storedahl
being denied the right to expand its mining operations. Friends of the East
Fork argued that because the BOCC remand may change what Storedahl
is ultimately allowed to do on the property, that the shoreline permit was not final
for purposes of appeal to the SHB. Storedahl
countered that if the county�s nonconforming use decision becomes final, it would be appealed, and if affirmed, could result
in Storedahl seeking to modify the shoreline permits.
However, such shoreline permit changes would be subject to Ecology�s regulations
that govern when a change in a project triggers reissuance
of a new permit. The Board determined that (1) even though a project may
involve decisions not yet final for purposes of appeal under LUPA, the
shoreline permit for project was indeed a final decision, and (2) any future
changes in the project would be subject to regulations governing permit reissuance.
Other issues relating to the project were presented
to the Board in a hearing, and a decision will be forthcoming. ronmental & Land Use Law November 2005
Wriston and Wahkiakum County
v. Department of Ecology,
SHB No. 05-005, Findings of Fact, Conclusions of Law, Order (September 28,
approved a variance from the maximum dock length in the County�s shoreline
master program and a variance to allow construction of dock on the Columbia River near Cathlamet.
Ecology denied the variance and conditional use permits primarily on the basis
that denial of the variance would not prevent any reasonable use of the
property and that approval may cause cumulative impacts. Ecology concluded
that, because the Wristons already had a residence at
the property and had access to the shoreline for recreational purposes, they
already had reasonable use of the property and were therefore not entitled to a
variance under WAC 173-27-170. The regulation at issue, WAC 173-27-170(3)(a),
states in part that an applicant for a variance waterward
of the ordinary high water mark must show that application of the provisions of
the master program �precludes all reasonable use of the property.� This
provision is different from the variance regulation at WAC 173-27-170(2)(a) for variances landward of the ordinary high water mark,
which uses the phrase �precludes, or significantly interferes with, reasonable
use of the property.�
The Wristons argued that
under Ecology�s application of its variance regulation, it would be impossible
for a property owner who had shoreline access for recreation to obtain a
variance waterward of the ordinary high watermark if
access itself satisfied the reasonable use provision in the variance
regulation. The Wristons also argued that other
variances to the dock length maximum had been granted for docks in Wahkiakum County
on the Columbia River. The Board determined
that the other area of the county where dock variances had been granted was not
relevant because the relevant area for consideration was the area immediately
adjacent to the proposal (citing Jefferson County v. Seattle
Yacht Club, 73 Wn.App
576, 591 (1994)).
The Board analyzed the application of Ecology�s
variance regulation in light of variance provision in the Shoreline Management
Act at RCW 90.58.100(5) and unique characteristics of the Wristons
property. The Board also considered a number of previous SHB decisions on
variances waterward of the ordinary high water mark.
The Board concluded that the literal interpretation of the phrase �precludes
all reasonable use of the property� was incorrect because if shoreline access
constituted reasonable use, then a variance could not be granted if shoreline
access existed. The Board then concluded that the Wristons
were entitled to a variance based on their proposed use and a number of unique
attributes of the shoreline at their property. These attributes included the
nature of the surrounding shoreline area, the existence of a trail leading down
to the water, the location of the proposed dock in a small inlet, and the
existence of pilings in the water already. The Board also concluded that the
variance and conditional use permit would not have cumulative impacts because
of the unique nature of the Wriston lot.
Lux Homes LLC v. Department of Ecology, SHB No. 05-025, Findings of Fact, Conclusions of
Law, Order (August 1, 2005).
Lux Homes sought a variance from the 20-foot setback requirement
for construction of a house on Lake
Sammamish. The City of Sammamish approved Lux� variance application, but Ecology did not. Lux argued that the 20-foot setback prevented construction
of a house similar to those on Lake
Sammamish, but that a
14-foot setback would provide adequate space for a medium-size house if built
to three stories in height. The Board affirmed Ecology�s denial of the variance
because a house could be built on the lot absent a variance, and thus
compliance with the 20-foot setback did not preclude or significantly interfere
with reasonable use of the property.
Garrett v. Department of Ecology, SHB No.
03-031, Save Lake Sammamish v. Department of Ecology, Garrett, and City of Sammamish, SHB No. 03-032, Findings of Fact, Conclusions of
Law, Order (May 5, 2005).
The Garretts sought a
variance from a 50-foot setback from the ordinary high water mark to build a
house on a lot on Lake
Sammamish. The lot was 48
feet deep. The Garretts originally sought a variance
of 37 feet, resulting in a setback of 13 feet. This would provide a house
footprint of 2,450 square feet. The City of Sammamish denied this variance request. The Garretts then modified their request and sought a 33-foot
variance, for a setback of 17 feet. This house footprint would be 1,715 square
feet. In its review of the City�s approval of this variance, Ecology reduced
the variance to 16 feet, for a setback of 34 feet, decreasing the building
footprint from 1,715 square feet to 532 square feet. The Garretts
appealed Ecology�s reduction in the variance approved by the City. Save Lake Sammamish,
which had commented on the Garrett proposal, appealed
Ecology�s approval of the variance.
The Garrett�s lot was located along East Lake Sammamish Parkway.
Originally, this area was platted into thirteen lots. Each lot had an upland
and lakefront portion that was divided by a railroad right of way, and later by
East Lake Sammamish Parkway.
Though the plat had a deed restriction against separate ownership of the upland
and waterfront portions, only three of the thirteen lots still had common
ownership of the upland and waterfront portions. The Garretts
had sold the upland portion of their lot a few years before seeking the
variance. To the south of the Garretts, four lots
were developed with large waterfront homes. To the north of Garretts,
a few lots had small cabins or changing rooms, while the other lots were undeveloped.
Four members of the Board affirmed Ecology�s
variance approval, thus denying the Garretts appeal
for a larger variance and Save Lake Sammamish�s appeal for no variance. Two
members of the Board dissented in support of denying any variance for the
property. The key disagreement between the majority and dissent was the existence
of the deed restriction in the original Sammamish Springs plat. The majority
concluded that when the Garretts bought the property,
the deed restriction preventing separate ownership of upland and shoreline
portion and construction on the shoreline portion had been abandoned, based on
the construction of homes on five of the thirteen lots. The dissent believed
that the deed restriction had not been abandoned and that its existence meant
that the Garretts did not meet the variance criteria
that the hardship requiring a variance �is specifically related to the
property, and is the result of unique conditions such as irregular lot shape,
size, or natural features and the application of the master program, and not,
for example, from deed restrictions or the applicant�s own actions.� WAC
173-27-170(2)(b). The majority and dissent also
disagreed on environmental and cumulative impacts to the shoreline.