Case Summaries � March 2007

 

 

Pollution Control Hearings Board

 

 

Squaxin Island Tribe v. Department of Ecology & Miller Land and Timber, LLC, PCHB No. 05-137 (Modified Findings of Fact, Conclusions of Law and Order) (November 20, 2006).

 

The Squaxin Island Tribe (Squaxin Tribe) appealed two Reports of Examination issued by the Department of Ecology (Ecology) approving applications by Miller Land and Timber, LLC (Miller) for groundwater withdrawals in an area of Thurston County that was closed to further consumptive surface water withdrawals by rule.� Woodland Creek, which is located near the wells that were authorized by Ecology to provide water for the two proposed residential housing developments in question, is in hydraulic continuity with the groundwater.

The Squaxin Tribe is a signatory to the Medicine Creek Treaty.� Henderson Inlet and the Woodland Creek basin are within the Tribe�s usual and accustomed fishing area.� The Squaxin Tribe contended that the groundwater withdrawals would pull water from Woodland Creek and negatively impact their treaty rights in fish, particularly with regards to coho salmon.� As a condition for approval of the proposed withdrawals, Miller was required to provide stream augmentation from June 1 to November 1 in perpetuity or until on-site withdrawals ceased.� Ecology and Miller asserted that the approved proposals would actually be more beneficial to fish within the basin because Miller would be pumping groundwater into the creek at a time when surface flows are naturally lower and the temperatures are warmer.� Furthermore, if municipal water became available, Miller or its successor was required to relinquish its water rights and hook-up to the municipal supply.

The Squaxin Tribe moved for summary judgment on whether Ecology was required to adopt rules to establish a process to consider the adequacy of mitigation proposals.� The Board found that Ecology could consider mitigation proposals in the absence of rules for the purpose of conditioning water rights because the statutory four-part test for approval of a water right provided sufficient guidance to Ecology.� (Order on Motions)(May 19, 2006).

As part of its summary judgment motion, the Squaxin Tribe also requested the Board to clarify the appropriate standard for determining whether water was �available� for appropriation.� The Tribe advocated that the Board should apply the standard set forth in Postema v. Pollution Control Hearings Board, 142 Wn.2d 68, 94 (2000).� In Postema, the Washington Supreme Court stated that a proposed groundwater withdrawal that is in hydraulic continuity with a closed stream or lake must be denied if �the withdrawal will have any effect on the flow or level of the surface water.� (emphasis added).� The Squaxin Tribe also asked the Board to assign the burden of proof to Ecology to determine whether the permits complied with the statutory provisions of the Water Code and WAC Chapter 173-513.

Ecology and Miller asserted that the proper standard for determining �availability� was contained in WAC Chapter 173-513, which applies to the Deschutes River Watershed in which Woodland Creek is located.� Postema is distinguishable, they argued, because it was based upon a specific standard contained in the rule pertaining to the Puyallup River Basin.� Both Ecology and Miller noted that WAC Chapter 173-513 does not prohibit all groundwater withdrawals.� WAC 173-513-050 provides that �Future ground water withdrawal proposals will not be affected by this chapter unless it is verified that such withdrawal would clearly have an adverse impact upon the surface water system contrary to the intent and objectives of this chapter.�� (emphasis added).�� Both Ecology and Miller also argued that it would be inappropriate for the Board to shift the burden of proof away from the Appellant.

The Board began its analysis of WAC 173-513-050 by recognizing it prohibited groundwater withdrawals if there was a clear adverse impact upon the surface water system contrary to the intent and objectives of this chapter. (emphasis added).� The stated purpose for closing the Deschutes River Basin from further consumptive appropriation, as set forth in WAC 173-513-020, was to provide sufficient instream flows �necessary to provide protection for wildlife, fish, scenic, aesthetic, environmental values, recreation, navigation, and water quality.�� The Board also noted that WAC Chapter 173-513 was adopted pursuant to the Water Resources Act (Chapter 90.54 RCW) and the statutes governing minimum water flows and levels (Chapter 90.22 RCW).� Both RCW 90.54.020 and 90.22.010 contain similar language about the need to retain flows for the protection of wildlife, fish, scenic, recreational, aesthetic, environmental values, and navigational values.

Turning to the Postema decision, the Board recognized that the Supreme Court quoted the language from RCW 90.54.020, which evidenced the need to provide protection for the environmental values listed.� The Board then reconciled the �clear adverse impact� language from WAC 173-513-050 with the �any effect� language used by the Supreme Court in Postema by finding that Miller�s groundwater withdrawals would constitute a clear adverse impact and be subject to the rule�s prohibition, if the withdrawals produced any effects which adversely impacted the values that were set forth for protection in WAC 173-513-020.� The Board also rejected the Squaxin Tribe�s request to shift the burden of proof in this case.

In the hearing on the merits, the Board was faced with competing hydrologic models.� Miller�s hydrogeologist used a model developed by the United States Geological Survey for Thurston County.� The Squaxin Tribe�s hydrogeologist relied upon a model that was much more site specific.� The Board found that the site-specific model was more persuasive.� This model showed that water would be pulled from Woodland Creek during the summer months to the detriment of fish.� The Board concluded that water was therefore not available and that the proposed withdrawals were not in the public interest within the meaning of RCW 90.03.290.� The Board also found that the Reports of Examination were inadequate on other grounds, including the lack of baseline conditions being established in order to assess how the tributary and wetlands would be impacted by the withdrawals.� This assessment had been recommended by the Washington Department of Fish and Wildlife pursuant to its small stream policy (Policy 5204).� The Board vacated Ecology�s decisions but left open the possibility of a preliminary permit being issued to further assess the actual effects of the groundwater withdrawals.� The Squaxin Tribe and Miller have filed cross appeals in Thurston County Superior Court.� �

 

 

 

Puget Soundkeeper Alliance and Northwest Marine Trade Association v. Ecology,

PHCB Nos. 05-150, 05-151, 06-034, 06-040

Findings of Fact, Conclusions, Order (January 26, 2007)

 

These consolidated appeals challenged the Boatyard General National Pollutant Discharge Elimination System (NPDES) Permit No. WAG-030000 (Permit) issued by Ecology to regulate stormwater runoff from boatyards in Washington.� The Puget Soundkeeper Alliance (PSA) contested the lack of numeric effluent limits for stormwater discharges of metals and other pollutants and disputed the methodology Ecology used to set benchmark levels for copper.� PSA also questioned the adequacy of the Permit�s monitoring and response provisions and argued the adaptive management scheme was not adequately enforceable.� The Northwest Marine Trade Association (NMTA) opposed certain required best management practices (BMPs) and other requirements in the Permit that were more stringent than the previous Permit.

����������� The Board concluded that the law does not mandate the use of numeric water quality based effluent limits in a general stormwater permit.� The Board upheld Ecology�s general approach of using effluent benchmarks, BMPs, and adaptive management to regulate stormwater discharges under the Permit.� However, the Board found flaws in the methodology used to calculate the copper benchmarks, and other provisions of the Permit, that require modification to assure compliance with water quality standards.

����������� Ecology derived the copper benchmarks by calculating starting with the state water quality criteria for copper and then applying numeric values for various mitigating factors, including a water effects ratio (WER), a dilution factor, and a dissolved/total recoverable metals translator.� The Board found flaws in Ecology�s use of two of the mitigating factors.� The use of a standard dilution factor by Ecology created the equivalent of a standard mixing zone, which the Board had previously disallowed in Industrial Stormwater General Permit appeal (Puget Soundkeeper Alliance v. Ecology, Order Granting Partial Summary Judgment, PCHB Nos. 02-162, 02-163 & 02-164 (2003)).� The Board noted that Ecology failed to demonstrate the standard prerequisites for establishing a mixing zone (such as compliance with AKART, and supporting information indicating a mixing zone would not cause a loss of habitat, substantially interfere with existing or characteristic uses of the water body, result in damage to the ecosystem, or adversely affect public health), and that, in fact, the boatyards, as an industry, demonstrated widespread lack of compliance with AKART.� The Board found that use of a dilution factor under these circumstances was error.

����������� The translator value used in calculating the copper benchmark was based on samples from shipyards, rather than boatyards.� The Board concluded that some important differences between the two types of facilities were not accounted for in the use of this data, which led to a translator that was unreasonably low.� The result was also inconsistent with a large body of scientific data addressing average dissolved copper readings from urban stormwater.� The Board directed Ecology to recalculate the translator value on remand and to also consider the lethal and sub-lethal effects on salmonid species of discharges at the copper benchmark levels, which Ecology acknowledged it had not done during development of the permit.

Rather than set separate benchmarks for lead and zinc, Ecology used copper as an �indicator� or substitute for specific benchmarks for zinc and lead.� The evidence failed to support Ecology�s assumption that boatyard discharges had a fixed relationship and relatively constant ratio of copper to lead and zinc.� Accordingly, the Board held that Ecology should analyze lead and zinc discharges separately from copper, and establish appropriate effluent limits and monitoring requirements for lead and zinc.� In addition, the Board required that the Permit be clarified to indicate waters currently on the �303(d) list for lead are included in the coverage (including Lake Union) and that an effluent limit for lead be established for these waters.�

����������� The Board found the adaptive management approach in the Permit was an acceptable general strategy for achieving compliance with water quality standards.� Certain modifications to the adaptive management provisions of the Permit were required to assure the program would be effective.� Ecology was instructed to modify the Permit to compel implementation of the remedial actions dictated by the three response levels in the adaptive management program.� Further, Ecology was ordered to include a provision in the Permit addressing the actions that would be required if implementation of the adaptive management program still failed to result in compliance with applicable benchmarks.� The decision also orders Ecology to include additional details in the Permit clarifying timing issues and exceedance triggers.

����������� The Board found certain aspects of the monitoring and sampling provisions of the Permit inadequate and ordered a modification to include collection of receiving water samples from some or all covered boatyards for the purpose of obtaining data for use in evaluating the assumptions used in establishing the current Permit and future permits.�

����������� The Board largely upheld the BMPs identified in the Permit, but did grant NMTA�s challenge to the absolute prohibition of non-vacuum grinders.� The evidence established that in certain limited circumstances it is impractical to use a vacuum grinder, and the Board concluded that the Permit should be modified to allow an exception in such situations.� The Board�s decision remanding the case to Ecology for Permit modification was appealed to Thurston County Superior Court by both the PSA and NMTA.� The parties subsequently agreed to a settlement and withdrew their appeals.

 

 

Argent Chemical Laboratories, Inc. v. Ecology,

PCHB No. 06-028

Order Granting Partial Summary Judgment (August 31, 2006).

 

Argent Chemical Laboratories, Inc. (Argent Labs) appealed a penalty and an administrative order issued by the Department of Ecology (Ecology) for alleged violations of sections of the dangerous waste regulations in handling certain liquid material containing acetone at their site.

Argent Labs had filed an Application for Relief from penalty with Ecology in order to have the amount of the penalty reduced.� After Ecology issued its Notice of Disposition upon Application for Relief denying any mitigation of the penalty, Argent Labs appealed both the penalty and the administrative order to the Pollution Control Hearings Board (Board).� The appeal of the administrative order was filed with the Board sixty-four days after it was issued.� Ecology moved for partial summary judgment on the basis that the appeal of the administrative order was not timely filed.

Ecology maintained that the filing of an Application for Relief for the potential mitigation of a penalty does not affect the time period for filing an appeal of an administrative order with the Board.� Argent Labs asserted that since the administrative order and the penalty all arose out of the same set of facts, it was appropriate to stay the administrative order pending review of the penalty.

The Board noted that the right to appeal a penalty and the right to appeal an administrative order are different processes.� The notice of penalty issued to Argent Labs informed them of their right to either file an appeal directly with the Board or to file an Application for Relief with Ecology.� RCW 43.21B.300(1) specifically authorizes a party to request remission or mitigation of a penalty within 30 days of receipt of the penalty.� After receipt of Ecology�s Notice of Disposition upon Application for Relief, a party then has 30 days to appeal this determination to the Board under 43.21B.300(2).� In contrast, RCW 43.21B.310(1) requires appeals of administrative orders to be filed with the Board within 30 days of their receipt. �There is no option of appealing such an order to Ecology.� In addition, the administrative order contains language stating that the appeal of the order alone will not stay its effectiveness.� The Board granted summary judgment to Ecology and dismissed the appeal of the administrative order as untimely.

 

I-5 Properties, Jansen, Inc., & Al Jansen v. Ecology

PCHB 05-063

Findings of Fact, Conclusions, Order (February 12, 2007)

 

The PCHB affirmed the imposition of an $82,000 penalty against I-5 Properties for numerous violations of the 2000 Construction Stormwater General Permit over a several month period.� The Board found that the business had prepared an inadequate Stormwater Pollution Prevention Plan (SWPPP) in the first instance, failed to install initial stabilization and structural Best Management Practices (BMPs) necessary to control turbid runoff from the 72 acre site, and also failed to install additional corrective measures in response to deteriorating site conditions.

As a result, there were multiple days on which turbid discharges exceeded state water quality standards, with muddy runoff flowing into a salmon spawning tributary.� Appellants did not contest the exceedances.� The Board concluded that the business demonstrated a lack of reasonable diligence in complying with permit terms, by not informing itself of permit requirements and failing to implement necessary or effective BMPs across the site over an extended period of time.� In affirming the penalty amount imposed by Ecology, the Board also noted that the business demonstrated �a troubling disregard of responsibilities under the permit� by not keeping records of actions at the site, and failing to produce records requested by Ecology. �

The Board also disagreed with the property owner�s main defense, that the enforcement action was barred on the basis that Ecology had taken control of the site or created a special relationship under the public duty doctrine through its technical assistance and informal efforts to help bring the permittee into compliance. �The Board concluded that the public duty doctrine had no application to Ecology permit enforcement actions such as this, and that permittees are not shielded from liability when a regulatory agency provides technical assistance or other efforts to help bring a permittee into compliance.� I-5 Properties has appealed this decision to Whatcom County Superior Court.

Shorelines Hearings Board

Citizens to Preserve the Upper Snohomish River Valley, Highberger, Fenimore, Wolf v. S-R Broadcasting, Skotdal Bros. LLC and Snohomish County,

SHB No. 06-022

Findings of Fact, Conclusions, Order (December 26, 2006)

 

S-R Broadcasting, the owner and operator of radio station KRKO AM 1380, was granted a Shoreline Substantial Development Permit (SSDP) to construct four free-standing radio transmission towers on a parcel of unimproved property in the Upper Snohomish River Valley.� The towers were necessary for S-R Broadcasting to meet the goal of increasing its coverage area to include more of Snohomish County, as well as Snohomish County residents commuting to Seattle and Bellevue.� The towers are proposed to be located more than 700 feet from the Snohomish River, but due to their location within the floodplain, the project was considered within shoreline jurisdiction under the Snohomish County Shoreline Management Master Program (SMMP).� The project site is in an agricultural area of the valley floor, across the Snohomish River from a popular wildlife park (Bob Hiermann Wildlife Park).� The towers would be visible from certain locations within the park as well as from a number of hillside homes in a residential neighborhood situated above the valley floor.

����������� The project had a lengthy procedural history at the local level, which included the withdrawal of the initial application and re-application of a revised proposal.� As part of that process, the County initially issued a Determination of Non Significance (DNS).� An Environmental impact Statement (EIS) was later prepared at the direction of the Hearings Examiner to address view and aesthetic impacts of the proposal. The EIS was appealed, and an addendum was subsequently issued.

����������� Citizens to Preserve challenged both the DNS issued in connection with the towers and the adequacy of the EIS prepared on the view/aesthetics issue.� The DNS was reviewed under the clearly erroneous test, and the Board concluded the quality and quantity of information before the Board was adequate to evaluate any adverse environmental impacts.� The Board found insufficient evidence to conclude that wildlife, recreational interests, or river uses would be significantly impacted by the towers.� No error on the DNS was demonstrated.

����������� As to the EIS, the Board used the rule of reason standard to evaluate the adequacy of the document and concluded the detailed analysis of view and aesthetic impacts contained in the EIS was sufficient to identify and address the project�s impacts on all relevant user groups.� A visual impacts study had been prepared assessing views from 27 separate viewpoints, but Citizens to Preserve challenged the methodology used in the study.� The Board concluded that the visual impact analysis properly characterized an impact as more than moderate if the view changed from high quality to low quality.� Citizens to Preserve contended the study should capture lesser changes to existing views, but the Board upheld the visual analysis methodology as a sound way to distinguish between moderate impacts and significant impacts on views.�

����������� Citizens to Preserve raised a number of challenges alleging the project was inconsistent with the Shoreline Management Act (SMA) and the SMMP.� The shoreline of the Snohomish River is considered a shoreline of statewide significance, and Citizens to Preserve contended the project approval failed to adequately implement several of the priorities for shorelines of statewide significance (e.g., preserving the natural character of the shoreline, providing long-term over short-term benefit, and protecting the resources and ecology of the shoreline).� Similar concerns arose from provisions of the local master program.� The Board found that the project would have very little impact on any natural element of the shoreline or resources or ecology of the shoreline since the towers would be located on farmland over 700 feet from the river�s edge.� The vegetation conditions on the permit would actually enhance the riparian area at the property�s waterward border.� The Board concluded the improved radio coverage and the availability of enhanced local and emergency information services in the area resulting from the project would be a long term benefit to citizens in Snohomish County.� Citizens to Preserve argued that the SMMP policy to leave undeveloped those areas which contain a unique or fragile resource would be violated by allowing construction of the towers.� The Board acknowledged the picturesque rural landscape of the Upper Snohomish River Valley, but found no basis to find the area a unique or fragile resource.

����������� Snohomish County based its approval of the towers proposal, in part, on the Utilities provisions of its SMMP, which allow utility installations in the rural shoreline environment applicable to this site.� The Board concluded that S-R had designed the project to comply with the conditions for utility installations, including as much mitigation of view impacts as possible.� While the towers would be visible from a number of locations on the valley floor, as well as from homes in the hillside neighborhood, every effort had been made to minimize visual intrusion through paint colors, open tower design, lack of guy wires, and limited lighting.� The towers would be present in some views, but the views would not be blocked and no vista would be significantly reduced.

The Board also rejected Citizens to Preserve�s argument that the permit should be denied because the use was not water-surface nor shoreline dependent and would permanently alter the shoreline and conflict with or preempt other shoreline dependent uses.� The evidence demonstrated that AM radio towers do not need to be near fresh water to adequately propagate a signal, however, they do need to be located in conductive soil which in this area is found primarily in the Snohomish River Valley.� Since the entire floodplain is designated as a shoreline, from an engineering standpoint, a location within the shoreline was necessary to accomplish the goal of greater radio coverage.� In addition, the Board concluded the antennae would not conflict with or preempt other shoreline dependent uses, such as fishing and boating.

����������� Citizens to Preserve also contended that the project was incompatible with several policies governing agriculture and activity in the rural environment.� The Board found that the presence of the towers would not interfere with agricultural production or activity on the vast majority of the project site or on any of the surrounding properties.� Concern was expressed that destination farming activities would be diminished by the intrusion of towers in the visual landscape.� The Board found this alleged harm was speculative, and outside the type of concerns addressed by Snohomish County�s agricultural policies.

����������� Citizens to Preserve alleged conflicts with several other policies from the SMMP enunciating broad goals and aspirations for shoreline development.� The Board found no basis for denying the permit based on these broad policies, particularly in light of the significant efforts to minimize and mitigate the project�s impacts.� Finally, a challenge to Snohomish County�s decision to administratively process the revised application was rejected on the basis that the county code provided it discretion to determine whether a Hearing Examiner proceeding should be used.

����������� The Board ruled that the permit was properly issued, despite the fact that certain of the visual impacts could not be fully mitigated.� Citizens to Preserve appealed the Board�s decision to Thurston County Superior Court, then later withdrew its appeal.

Stanford v. San Juan County,

SHB No. 06-004

Findings of Fact, Conclusions, Order (September 20, 2006)

 

This case involved the appeal of San Juan County�s denial of a shoreline substantial development permit to build a joint use dock on the west side of Deer Harbor.� The proposed dock, if built, would have been the only dock along 700 feet of shoreline.� The main use for the dock was to moor the applicants� 47 foot boat, and the primary issue in the appeal was whether alternative moorage was available.

The San Juan County Shoreline Master Program (SJSMP) reflects a policy choice by the County to control the proliferation of docks along the shorelines of its islands.� A key way it does this is by directing that dock applications shall not be approved unless the applicant can show that alternative moorage is not adequate or feasible.� Applicants in this case argued both that nearby marinas did not have large enough slips available at the time of their application and that, at their preferred marina, parking was so difficult that it would render the moorage inadequate/infeasible even if it became available.

To evaluate the alternative moorage issue in this case, the Board turned to its prior decisions establishing a test for �adequate or feasible� which included whether the alternative was �capable of being used.�� Inskeep v. San Juan County, SHB No. 98-033 (1999)(CL IV).� �The Board further opined that the concept of availability involves a temporal dimension.� The appropriate time frame suggested by the San Juan County Hearings Examiner, and concurred in by the Board, was whether moorage was �presently available or likely to become available within a reasonable waiting period.�� The Board further clarified that the length of a reasonable waiting period would depend on the facts of a particular case, including consideration of the time of year and size of the boat.

Based on the evidence introduced at the hearing, the Board concluded the applicants had failed to prove that alternative moorage was unavailable or likely to come available within a reasonable waiting period.� The Board found there had been multiple opportunities throughout the relevant time period (from the date of application to the date of the Board hearing) for the applicants to obtain commercial moorage at several different local marinas.� The Board also concluded that, while parking at the preferred marina may be challenging at peak times of day during the peak of boating season, Petitioner had failed to show parking would be so much of an obstacle as to make moorage at that marina unusable.� The applicants appealed the Board�s decision to San Juan County Superior Court, and the Court subsequently upheld the Board�s ruling.

 

Valero Logistics Operation, LP. et.al., v. City of Tacoma and Pioneer Cay Developing, LLC.,

SHB No. 06-001

Findings of Fact, Conclusions, Order (July 19, 2006)

 

����������� This appeal involves the somewhat unique situation of a proposed residential and commercial shoreline development in a highly industrialized area.� The project proponent, Pioneer Cay, was granted a shoreline substantial development permit to build an eight-story mixed-use building on the east side of the Thea Foss Waterway in the City of Tacoma, with the bottom two floors planned for water-related commercial uses, and the upper six floors planned as residential condominiums.� The project site is surrounded by commercial and heavy industrial uses.� The neighboring industries appealed the City�s approval on the grounds that the proposed development was incompatible with their industrial uses.� The industries� primary concern was that future condominium owners would complain about impacts from the adjacent, pre-existing industrial uses which would result in new restrictions being placed on their activities/operations.

The City of Tacoma had previously undertaken an extensive planning process for the Thea Foss waterway with the aim of redeveloping and revitalizing the area.� The process culminated in the creation of the Thea Foss Waterway Design and Development Plan, which both recognized the importance of existing industrial uses and encouraged new commercial and residential uses.� Consistent with the Plan, commercial and residential uses were authorized in this area of the Thea Foss waterway under the City�s SMP, but new development was required to be designed and conditioned to minimize conflicts with existing industrial uses.

The Board concluded that the Pioneer Cay project, with some minor additional conditions, was appropriately designed and conditioned to minimize conflicts with the neighboring uses (noting, for example, that the building was oriented away from the industrial uses, had a sky bridge connecting it to an offsite parking garage and only one driveway to minimize pedestrian/truck conflicts, included striping along the adjacent street to identify a pedestrian walkway, and would use special wall construction, duct lining, and specially rated windows to minimize noise impacts).� The Board also concluded that neighboring businesses had not identified any particular aspect of the Pioneer Cay project that made it potentially more incompatible with their industrial use than any other proposed residential use in this location.

The Petitioners also challenged the City�s determination under the State Environmental Policy Act (SEPA) that the project would not have significant impacts on the environment.� Here again, the main argument was that the project was not compatible with the surrounding industrial environment.� The Petitioners alleged that impacts from the surrounding industrial area would negatively impact the proposal.� The Board concluded that SEPA requires consideration of a proposal�s impact on the environment, not the surrounding environment�s impact on the proposal.� The Board also rejected the claim that the project had been impermissible piecemealed under SEPA simply because a marina had been dropped from the original proposal, since the mixed-use building constituted a stand-alone project that could proceed without the marina.� Additionally, because the parking garage was not allowed to proceed prior to the resolution of the shoreline substantial development permit for the rest of the project, even though it was located outside the shoreline jurisdiction, the Board concluded no improper segmentation had occurred.

The shoreline substantial development permit for the Pioneer Cay project was approved with some additional conditions.� The Board�s decision was not appealed.