EHO Document

November 2005

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 electronically.

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 shoreline permit.

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 process.

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 actions.

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 decision.

Emma Dixon et al. v. Department of Ecology and King County, PCHB No. 05-059, Summary Judgment

(October 21, 2005).

King County 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 Court.

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 right, that 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 denial.

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, 2005).

Wahkiakum County 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.