Environment and Land Use
Newsletter
EHO Cases for Spring
2008 Update
Shorelines
Hearings Board
George
and Ginette Toskey v. City of Sammamish and Washington Department of Ecology
SHB
No. 07-008
Findings
of Fact and Conclusions of Law and Order (October 15, 2007)
The
Toskeys challenged the Department of Ecology's (Ecology) decision denying their
shoreline variance application to build a residence on the shore of Lake
Sammamish in the City of Sammamish within the 50-foot shoreline setback.� The
Board concluded the Toskeys had not met the high threshold necessary to justify
a shoreline variance embodied in the requirement that shoreline variance
permits may be authorized only when an applicant can demonstrate all of
the variance criteria in WAC 173-27-170.� In this case, the Board concluded at
least three of the variance criteria were not met and affirmed King County's
denial of the shoreline variance.
The
Toskeys' 60-foot lot was one of two shoreline lots that they had purchased at
the same time.� To these lots, they added two more smaller upland lots that had
been railroad right of way. �In 2000, the Toskeys built a house on one of the shoreline
lots plus one of the small, upland parcels.� They then sold that house and
applied for a shoreline variance to build a new house on the smaller of the two
shoreline lots plus the remaining upland parcel.
The
Toskey property is within the King County Shoreline Conservancy Environment
designation, where a minimum setback of 50 feet from the Ordinary High Water
Mark (OHWM) applies at this location.� The Toskeys wished to reduce the setback
to approximately 20 feet.� They were concerned that, without a variance, their
views would be obstructed to some degree by their former house and by a
neighboring house to the north. The Toskeys wanted to situate their new house where
they would have the most expansive view.
�The
Toskeys argued that, since King County had granted them a variance for their
first house, they should be granted another variance.� The Shorelines Hearings
Board (Board) disagreed.� The Board rejected the Toskeys' expectation that,
because they had received a variance from King County in the past, they would
receive one again.� Citing Weinberg v. Whatcom County et al., SHB No.
93-2, the Board reaffirmed the proposition that one who purchases a shoreline
lot with the express purpose in mind of obtaining a shoreline variance does not
do so with reasonable expectations.�
In
discussing the variance criteria concerning reasonable use of property, the
Board concluded that the determination of whether strict application of a
shoreline plan precludes or interferes with reasonable use of property is a
fact-specific inquiry.� In this case, the Board determined that there was
adequate room to place a reasonably-sized house on the property.� The Board
determined that the Toskeys' requested setback was not the minimum necessary to
afford relief and that they had not sufficiently explored the possibility of a
smaller variance with less intrusion into the 50-foot setback.
The
Board examined the compatibility of the proposed house in light of other larger
homes built in the vicinity.� But, in light of the lack of evidence presented
to the Board about the regulations in place at the time other homes were built,
the Board was unable to make comparisons between the Toskeys' property and
others that may have been built prior to the current shoreline setback
regulations, which would make these other comparably sized houses legal
nonconforming uses.� Even if other homes had been allowed within the 50-foot
shoreline setback improperly, the Board determined that it must avoid
multiplying the consequences of erroneous past decisions and evaluate the
Toskeys' proposal in light of current regulations and knowledge about shoreline
functions.
Finally,
the Board considered the public interest variance criteria, finding that the
public interest would suffer a detrimental effect if the requested amount of
intrusion into the Lake Sammamish setback were to be approved, and concluding
that criteria as well was not satisfied.� The benefits of shoreline buffers
were uncontroverted, and the parties agreed that water quality and stormwater
management values provided by wetland setbacks and buffers support the goals of
the Shoreline Management Act.
�
Jeffrey
and Susan Brotman v. City of Medina and Washington Department of Ecology
SHB
No. 07-011
Findings
of Fact, Conclusions of Law and Order (October 25, 2007)
The
Brotmans challenged the City of Medina's denial of a shoreline variance they
had requested in order to place a sculpture within the shoreline setback of
their residence on Lake Washington.� The city planning division had recommended
approval of the variance, but the city's hearing examiner had denied it,
finding that while the application met most of the variance criteria, it had
not adequately addressed possible adverse impacts on adjacent properties and
the shoreline environment, and had failed to consider possible cumulative
impacts.� After a hearing in which neither the City nor the Department of
Ecology (Ecology) defended the denial, the Board found Respondents in default
and concluded the proposal met the local and state variance criteria, and
reversed the City's denial.
The
Brotmans, who are serious art collectors, desired to commission a work by
internationally-acclaimed sculptor Anish Kapoor, whose Cloud Gate sculpture is
a popular attraction in Chicago's Millenium Park.� Under the City's shoreline
setback requirements for the area, which apply a "stringline" methodology based
on the placement of adjacent residences, the setback applicable to the Brotman
property was 111 feet, as compared to the City's other shoreline setbacks of 30
or 50 feet in areas where the stringline setback does not apply.� The result of
applying the stringline setback to the Brotman property was that the entire
yard between the house and the water was unavailable for an "accessory
structure" of any kind, including a 14 � by 8 foot sculpture estimated to
occupy approximately 39 square feet of the 10,000+ square foot yard.
The
Board concluded that the sculpture was compatible with other authorized and
permitted uses in this area, which is generally characterized by affluent
waterfront estates.� The uncontroverted evidence, consisting of professional consulting
reports analyzing potential view, light and glare, and fisheries impacts,
demonstrated that the sculpture would be screened from the view of the adjacent
residences, that existing views of the Brotman shoreline from the adjacent lakefront
or water would not be adversely impacted, either by virtue of light or glare,
or general aesthetics, and that no undue harm would be caused to fish habitat
by virtue of either the construction or permanent placement of the sculpture.�
The
Board also evaluated the potential for cumulative requests from similarly
situated property-owners and rejected as speculative and unsupported the
Hearing Examiner's conclusions that the variance could lead to "a series of non
water-related structures that would that would adversely impact the shoreline
environment."� The Board noted that the panhandle shape of the Brotman lot,
coupled with the exceptionally large setback, was a highly unusual circumstance
and was not likely to result in similar requests for variances.
Finally,
the Board analyzed each of the remaining mandatory variance criteria, noting
that there was no reason to question the Hearing Examiner's conclusions that
they had been satisfied, and that the supplemental evidence provided by the
applicants amply demonstrated compliance with each of the variance criteria.
City
of Burlington, City of Mount Vernon, Skagit County Dike, Drainage and
Irrigation Improvement Dist. No.12 and Skagit County Dike Dist. No. 1 v. Town
of Concrete, Puget Sound Energy and Washington Department of Ecology
SHB
No. 07-015
(consolidated with SHB No. 07-016 & 07-017)
Order
Granting Summary Judgment (October 23, 2007)
The
Town of Concrete issued a conditional use permit/shoreline substantial
development permit (CUP/SDP) to Puget Sound Energy (PSE) authorizing
construction of improvements at the Lower Baker Dam.� The cities of Burlington
and Mount Vernon, and two Skagit County Diking Districts appealed Concrete's
action.� PSE, the Department of Ecology (Ecology) and the Town of Concrete
moved for summary judgment dismissing the case, arguing the petitioners lacked
standing.� The Board granted the motion for summary judgment, concluding that
the Cities and Diking Districts had not sustained an injury in fact as a result
of the proposed construction within the shoreline authorized by the CUP/SDP.�
The
petitioners were concerned about the impacts their jurisdictions would
experience during flood conditions on the Skagit River.� The Board determined their
interest in flood control operations was not impacted by the powerhouse
improvements allowed by the permit, but by other actions relating to operation
of the larger Baker River Project.� The Board also concluded that the Cities'
and Districts' interests fell outside the zone of interests the Town of
Concrete was required to consider in taking its shoreline permit action.� While
flooding would be a proper consideration if the proposed action would cause
flooding, no such evidence was presented in this case.� Construction of the new
powerhouse was not linked to the potential for increased flooding.� The Board
further found that the Cities' and Districts' interest in flood control
operations could not be remedied by an order issued by the Shorelines Hearings
Board.� In the absence of these factors, the petitioners lacked standing to
challenge the shoreline permit and the case was dismissed.� See also the
related appeal before the Pollution Control Hearings Board, PCHB No. 07-071.
Thomas
& Joyce McLean v. Pierce County and Al & Kathleen Parker
SHB
07-014
Findings
of Fact, Conclusions of Law and Order (November 13, 2007)
This
case involved an appeal of a shoreline substantial development permit to build
a single-use dock on Vaughn Bay in Pierce County.� The McLeans, who own
property adjacent to the applicants, appealed the approval of the Parkers'
permit, seeking to add a condition that they be allowed to participate as a
joint-user.� Alternatively, the McLeans sought denial of the permit as
inconsistent with the County's shoreline master program policies regarding
joint use, and its shoreline use regulations regarding development guidelines,
and on the grounds that the Parkers had started construction before the permit
had been issued.� The parties filed cross motions for summary judgment which
the Board denied on the basis of disputed issues of material fact.�
After
a contested hearing, the Board affirmed Pierce County's approval of the dock.�
The Board found that no reasonable alternative such as joint use existed in
this situation because there was no likelihood of mutual consent between the
parties necessary for a joint use agreement.� The Board cited to evidence of
the parties' differing interests, disagreements over joint use, and generally
poor relationship.
The
Board concluded that Pierce County's SMP encourages but does not require joint
use docks, and that McLeans failed to demonstrate the dock was inconsistent
with the County's SMP in this regard or that other alternatives were reasonable
for the Parkers' intended purposes.� The Board also concluded it was not error
or contrary to Pierce County's shoreline use regulations to allow the dock's
length parallel to shore to exceed the eight feet maximum contained in
guidelines, given the non-mandatory nature of the guidelines and the valid
reasons expressed by the County for applying them as they did.� Finally, the
Board concluded the unauthorized commencement of construction while review of
the SDP was pending was more properly handled as an enforcement action and not
as a basis for the Board to deny the SDP if it otherwise met the applicable
legal requirements.
Carnevali
& San Juan County v. Washington Department of Ecology
SHB
No. 07-019
Order
on Summary Judgment (December 4, 2007)
The
Carnevalis requested a shoreline variance to add 30 feet to the length of an
existing dock on their property near Friday Harbor, San Juan Island.� The
existing dock was a non-conforming structure that substantially exceeded the currently
applicable length and area requirements for such structures. �San Juan
County approved the variance, but Ecology denied the application.� The Board
affirmed Ecology's denial of the variance on summary judgment, finding that
undisputed facts demonstrated the Carnevalis did not meet at least one of the
variance criteria required for approval of a shoreline variance permit.
The
Carnevalis proposed to extend the ramp portion of the pier, ramp, and float by
30 feet to push the float into deeper water.� The overall length of the dock
would increase to 393 feet, well beyond the 115 foot maximum for a single
family dock or the 200 foot maximum for a joint use dock.� The extension would
provide more useable moorage on the float.� The new dock would be upgraded to
include more environmentally sensitive materials and the extension would move
the float away from eel grass beds.� The current dock is capable of providing
year-round moorage for boats of substantial length, and it provides safe
recreational access to the water. �
The
Board reasoned that variances are available to provide relief in extraordinary
circumstances posing unnecessary hardships.� The facts of this case showed that
the applicant would have a more convenient moorage situation with the
extension, but the evidence failed to establish the strict hardship necessary
to support a variance application.� The Board also concluded that approving
such a dock would constitute a special privilege not shared by other authorized
docks in the area.� Even though the proposed dock would have some environmental
advantages, the variance request failed to meet the mandatory criteria for
issuance and, accordingly, Ecology's decision denying the variance was
affirmed.
Pollution
Control Hearings Board
Welke
v. Washington Department of Ecology
PCHB
No. 07-013
Order
on Summary Judgment (September 20, 2007)
The
appellants filed a request to change the point of diversion for a certificated surface
water right from Myers Creek in Okanogan County.� The application was filed in
1996, but Ecology did not issue a decision on it until 2006.� While the
application was pending before Ecology, the applicants stopped using the water
authorized by the water right certificate.� As a result, when Ecology
ultimately did review the application, it determined the certificate was ineligible
for change, because it had gone unused for more than five years without
sufficient cause.�
The
appellants argued Ecology should be estopped from denying the change based on
nonuse, since they were refraining from use while waiting for Ecology to issue
a decision on the change application.� They stopped using water based on their
understanding (or misunderstanding) of Ecology's position about proper use of
the water pending the change decision.� The Board analyzed the elements of
estoppel against a government agency and found that the appellants had failed
to establish that Ecology made an inconsistent statement about water use prior
to the decision and that the applicants had not reasonably relied upon their
understanding of Ecology's position for such an extended period of time.� The Board
granted Ecology's motion for summary judgment and dismissed the appeal.��
Central Puget Sound
Regional Authority v. Ecology,
and PCL Construction and Central Puget Sound Regional Authority v. Ecology
PCHB Nos. 06-111, 07-008,
07-018, 07-070 and 07-075 (consolidated)
Dismissed based on
settlement (October 9, 2007)
These five appeals arose out of
an administrative order, two civil penalties ($66,000 and $79,000) and a denial
of coverage under the Construction Stormwater General Permit issued to Central
Puget Sound Regional Transit Authority (Sound Transit) and its contractor PCL
Construction (PCL) by the Department of Ecology.� The appeals involved matters
arising out of the construction of the Central Puget Sound Light Rail System
Linear pathway between the Convention Place in Seattle, through downtown
Seattle and the Rainier Valley, to South 154th Street within the
City of Tukwila.� To resolve all of the appeals and avoid the cost and time
associated with further litigation, Sound Transit and PCL agreed to pay
$120,000 to People for Puget Sound to fund environmental projects benefitting
Puget Sound by implementing restoration projects in the Duwamish River.�
City
of Burlington, City of Mount Vernon, Skagit County Dike, Drainage and
Irrigation Improvement Dist. No.12 and Skagit County Dike Dist. No. 1 v. Puget
Sound Energy and Washington Department of Ecology
PCHB
No. 07-071
Order
Denying Summary Judgment (October 31, 2007)�
The
Cities of Burlington and Mount Vernon, and two Skagit County Diking Districts
challenged the Department of Ecology's (Ecology) Water Quality Certification
(�401 Certification) and Coastal Zone Management Act (CZMA) Consistency
Determination for Puget Sound Energy's Baker River Project.� Ecology's
approvals were issued in connection with Puget Sound Energy's relicensing of
the Baker River Project, including the Upper Baker Development, Baker Lake, the
Lower Baker Development, Lake Shannon, together with associated power
facilities and fish passage improvements.� The appellants moved for summary
judgment arguing that the CZMA determination was premature because the
shoreline permit was on appeal at the state level.� Puget Sound Energy and
Ecology moved to dismiss contending the appellants lacked standing to bring the
appeal. �
On
the issue of standing, the Board found the appellants had established a
cognizable interest in the water quality aspects of the entire Baker River
Project.� The Board drew a distinction between the scope of interests raised by
the �401 Certification process and the narrower interests raised by the
particular shoreline permit at issue in the related shoreline appeal. (See also
the summary of the related appeal before the Shorelines Hearings Board, SHB No.
07-015).� The Board concluded that it had the ability to provide a meaningful
remedy on water quality issues and denied the motion to dismiss for lack of
standing.
The
Board upheld Ecology's timing for CZMA consistency determinations and, in the
absence of compelling authority indicating Ecology's process is flawed, denied
the appellant's request for summary judgment. The appellants had contended that
Ecology improperly issued the CZMA Consistency Determination while the appeal
of the local shoreline permit decision was still unresolved.� Ecology maintained
that it was appropriate to use the local permit decision as a criterion for its
consistency determination but not wait for resolution of all ensuing appeals
before making a consistency determination.� Waiting for the conclusion of all
appeals before acting would be unworkable in practice because the dam licensing
process allows Ecology six months to evaluate CZMA consistency.� Inaction
within six months results in an assumption of concurrence.� Ecology has
interpreted the CZMA to allow for use of the local decision in rendering the
consistency determination.
The
appeal was ultimately withdrawn prior to hearing.���
Kutschkau v. Ecology
PCHB No. 07-061 and 067
Order Granting Summary Judgment (December 3, 2007)
The Department of Ecology (Ecology) required Microsoft to
obtain a state waste discharge permit for its planned discharge of cooling
water from its new data center near Quincy, Washington.� The discharge was to
be made to the City of Quincy's wastewater treatment plant.� Microsoft applied
for the permit, and Ecology provided public notice of the application and
established a 30-day comment period.� The appellants filed a comment and also
requested that a public hearing be held.� Ecology denied the request for a
public hearing and then approved the permit.� Appellants appealed both the
letter denying their request for a public hearing and the approval of the
permit itself.
Microsoft moved to dismiss on the grounds that appellants
lacked standing.� The Board applied its standing test, which requires
appellants to demonstrate that they have suffered an actual or imminent
"injury-in-fact" that is concrete and particularized; that their injury comes
within the "zone of interests" protected by the statute at issue; and that the
Board must have within its legal power the ability to impose a remedy that will
"redress" the injury. Green v. State of Washington, PCHB No. 07-012,
Order on Summary Judgment (Aug. 22, 2007). �
The only harm claimed by appellants was that Microsoft's
discharge to the City of Quincy's wastewater treatment plant would have an
impact on water quality, but appellants did not indicate how this alleged
impact would injure their interests given the fact that they do not live in the
area that is served by the water.� Without this personal connection, the Board
concluded the appellants' allegations were statements of generalized public
harm insufficient to confer standing.� Okanogan Wilderness League v.
Ecology, PCHB No. 98-84, Order on Ecology's Motion to Dismiss (Nov. 24,
1998). �The mere fact that the Kutschkaus participated in the public comment
period on the permit application was an insufficient basis to confer standing.�
The Board granted Microsoft's motion to dismiss.
Scott
Cornelius, Palouse Water Conservation Network, and Sierra Club Palouse Group v.
Washington State Department Ecology and Washington State University
PCHB
No. 06-099
Amended
Order on Summary Judgment (January 18, 2008)
This
appeal challenged the Department of Ecology's (Ecology) approval of changes to
six groundwater rights held by Washington State University (WSU).� WSU sought
the changes in order to consolidate its water rights and enable the university
to withdraw water under each of its rights from any or all of the existing
wells within the integrated campus water system.� The 40 legal issues in the
case involved many core principles of water law, and to a large extent, were
based on the parties' conflicting theories related to the meaning,
applicability, and constitutionality of the 2003 Municipal Water Supply Act,
commonly referred to as the 2003 Municipal Water Law (2003 MWL).
As
part of its review of the change applications, Ecology had applied a number of
provisions from the 2003 MWL, most notably determining that WSU is a "municipal
water supplier" under the terms of the recently enacted law, and that the
rights it holds for the Pullman campus qualify as rights for "municipal supply
purposes" as that term is now defined. �Appellants argued that finding WSU's
rights to be for municipal supply purposes requires a "retroactive" application
of the 2003 MWL, which they object to on constitutional grounds.��
The
parties filed cross motions for summary judgment on all issues in the case,
including those related to the definitions of municipal water supplier and
municipal water supply purposes, enlargement, perfection, relinquishment,
abandonment, beneficial use, impairment, aquifer depletion, substantive and
procedural SEPA claims, and constitutional claims.� The Pollution Control
Hearings Board (Board) resolved most of the issues in its Amended Order on
Summary Judgment, although it declined to resolve the constitutional claims,
and held over for hearing the issues related to impairment and enlargement.�
In
its summary judgment ruling, the Board determined that the constitutional
questions raised by the appellants were tantamount to a facial challenge of the
2003 MWL because they would necessarily require the Board to consider the
validity of the Legislature's decision to make portions of the Act retroactive.�
In keeping with previous decisions, the Board concluded it does not have
jurisdiction over such a facial challenge to the statute, and that appellants'
constitutional claims are more appropriately addressed in Superior Court.
Although
declining to rule on the validity of the 2003 MWL, the Board nevertheless
addressed the issues related to interpreting its terms and applying them to the
facts of the case.� The Board concluded that WSU is a municipal water supplier
under Ch. 90.03 RCW, that each of the challenged rights qualifies as a right
for municipal water supply purposes, and that there had not been a change in
purpose of use of all or any portion of the rights.� The Board analyzed each of
WSU's water rights to determine if they meet the definition of� "municipal
supply purposes" contained in RCW 90.03.015(4), either as specifically listed
for that purpose, or as a "right generally associated with the use of water
within a municipality."� In doing so, the Board utilized the guidance in the
2003 Municipal Water Law Interpretive and Policy Statement adopted by Ecology in
February, 2007 (POL-2030).� The Board concluded each of WSU's water rights
individually disclosed its intended and actual purpose for municipal water
supply under the statutory definition.
The
Board also accepted Ecology's position that although the 2003 MWL does not
excuse consideration of the criteria applicable to groundwater change
applications (e.g., perfection, relinquishment, abandonment), the newly
enacted RCW 90.03.330 affects how Ecology evaluates the validity and extent of
water rights it determines are for municipal supply purposes.� The Board then concluded
that Ecology's application of RCW 90.03.330 to two of the challenged rights was
proper, and that they were in good standing, because the certificates had been
originally issued under Ecology's prior administrative policy of issuing
certificates on the basis of system capacity ("pumps & pipes") rather than
actual beneficial use.
The
Board held that WSU's certificates and claims were eligible for a change in the
point of withdrawal to the same extent as water right permits.� The Board found
that WSU has exercised reasonable diligence in perfecting the inchoate portions
of its water rights.� Applying the state Supreme Court's reasoning in the R.D.
Merrill case, the Board ruled that the groundwater change statute allowing
flexibility in the physical location and means of withdrawal applies equally to
a valid inchoate water right issued for municipal supply purposes, regardless
of whether the right is represented by an unperfected permit, or a claim, or a
certificate issued prior to enactment of the 2003 MWL under Ecology's prior
system capacity approach.
The
Board also concluded appellants failed to meet their burden to avoid summary
judgment on the question of whether the water rights decisions are contrary to
the Water Code's beneficial use requirements, rejecting appellants' arguments
based on alleged wasteful irrigation practices at the university's new golf
course.
The
Board rejected Appellants' relinquishment claims on the basis that, because each
of WSU rights qualifies as a right for municipal supply purposes, they are
therefore exempt from relinquishment by operation of law.� Likewise, the Board
rejected Appellants' abandonment claims, finding that neither abandonment of a
well nor nonuse alone, constitute per se abandonment.� The Board found that
even though some questions remained about the extent to which the rights had
been exercised at alternative, unauthorized, locations, there was no intent to
abandon the rights because WSU had continuously identified and claimed the
rights, and continuously sought new ways to exercise them.
With
respect to the issue of enlargement, the Board held that, as a matter of law, enlargement of a water
right does not occur by virtue of a change in the point of withdrawal merely
because it may result in a water right holder exercising more of a previously,
and validly, authorized quantity of water.� Appellants' second theory of
enlargement was based on an allegation that Ecology had unlawfully allowed
integration of quantities from an invalid water right when it approved the
change application for a related water right.� The Board denied summary
judgment on this issue, citing to factual disputes about the overlapping
characteristics of the rights, the quantities embodied in each right and the
basis for those amounts, and the original intent of the rights.
The
Board also declined to resolve the impairment issues on summary judgment,
concluding that appellants had put material facts into dispute sufficient to
warrant a contested hearing.� The Board framed the issue for hearing as whether
Ecology's no impairment conclusion had been informed by sufficient information
and analysis, or whether the effect of pumping the integrated WSU wells will,
in fact, impair existing rights.� In re-framing the issue, the Board rejected
the theory advanced by appellants in the motion that impairment results simply
because consolidation of the rights may allow WSU to pump more of its
authorized rights from a declining source aquifer than is presently possible
from its existing configuration of rights and wells, thereby accelerating the
aquifer's decline.
The
Board likewise rejected appellants' water mining claim on summary judgment
because it determined Appellants'
arguments regarding aquifer depletion was fundamentally a challenge to the exercise
of WSU's water rights, not to the change or consolidation of them.� The Board
found that there was no allegation that exercise of WSU's rights via any
configuration authorized by the change would affect the aquifer any differently
than full exercise of WSU's rights from its currently authorized well configuration.
The
appellants' SEPA challenges argued that a supplemental environmental review was
required but not completed prior to approving the change applications.� The
Board rejected Appellants' allegations of misrepresentation or lack of material
disclosures, which were based on the fact that the environmental impact statement
did not analyze the declining water levels in the Grande Ronde aquifer or how
approval of the changes could facilitate increased pumping by WSU and, thereby,
accelerate the decline of the aquifer.� The Board held Ecology's conclusions
were not clearly erroneous on the basis that the condition of the aquifer was
well known to Ecology and because the change application would not authorize
any increased pumping or total annual withdrawals beyond the amounts currently
allowed by existing rights.
Several
issues were also resolved based on the parties' stipulated facts, including
that the WSU wells all tap the same body of public groundwater, that the Grande
Ronde aquifer is not hydraulically connected with any surface water body, that
the change applications do not improperly expand the place of use of WSU's
water rights, and that
Ecology did not improperly delegate water allocations and management authority
to a regional entity working collaboratively on water issues in the area (the
Palouse Basin Aquifer Committee).
The
hearing on the remaining issues was held in Pullman at the end of January,
2008, and the Board's final decision is forthcoming.
Cindy
Buxton and Russ White v. Washington Department of Ecology and Port Townsend
Paper Corporation
PCHB
No. 07-033
Modified
Order on Remand (January 18, 2008)
Cindy
Buxton and Russ White (Appellants) appealed an Air Operating Permit (AOP)
issued by Ecology to Port Townsend Paper Corporation (PTPC).� An air operating
permit is issued pursuant to the Title V of the federal Clean Air Act and
compiles all the substantive air quality requirements applicable to a qualified
source of emissions in one document.� The appealed AOP was the first renewal of
a permit which was initially issued to PTPC in 2000.�
While the Department of Ecology (Ecology) is the agency that
issues air operating permits, the federal Environmental Protection Agency (EPA)
retains oversight authority over the state air operating permit program and may
require the reopening of a permit at any time if it finds sufficient cause. 42
U.S.C. � 7661d (e).� That is what happened while this appeal was pending before
the PCHB.�
Prior to a ruling by the Board on pending summary judgment
motions, the EPA sent an e-mail to Ecology requesting that it reopen the permit
because of deficiencies it had identified.� In response, Ecology indicated that
would reopen the permit.� Given this fact, the Board concluded that a ruling on
motions for summary judgment would be premature.� Instead, the Board vacated
Ecology's approval of the permit, and remanded it for further processing in
light of the comments from EPA.�
PCHB Rule amendment
On January 10, 2008, the Environmental Hearings Office adopted
an amendment to the PCHB's procedural rule that addresses which appeals will be
decided by a single board member (short-board appeals) and which will be
conducted as full board appeals (with three board members). The amendment, to
WAC 371-08-330, allows appeals of penalties involving amounts up to $15,000 to
be reviewed as short-board appeals. The amendment makes the rule consistent
with the authorizing statute, RCW 43.21B.305, which had been previously amended
to increase the penalty amount for short board appeals to $15,000.� The amended
rule took effect on February 11, 2008.
Forest Practices Appeals Board
Leo
Pallogi, Jr. v. State of Washington Department of Natural Resources
FPAB
No. 06-006 & 07-001
Findings
of Fact and Conclusions of Law and Order (October 18, 2007)
Leo
Pallogi appealed a stop work order and $10,000 penalty that the Department of
Natural Resources (DNR) had assessed for conducting forest practices without a
permit in Sedro Woolley, Washington to the Forest Practices Appeals Board
(Board).� Mr. Pallogi is a self-employed logger specializing in selective
logging of trees for property owners concerned that the trees might present a
danger.� The harvested trees in this case were being transported to a logging
scale and sold, and the volume of wood sold from the property was approximately
5,000 board feet.� Mr. Pallogi and the property owner shared in the proceeds of
the sale of the logs, amounting to between $28,000 and $29,000.� The Board
affirmed the stop work order and the associated penalty and dismissed the
appeal.
The
case centered around DNR's internal policy that land adjacent to certain
structures is incompatible with timber growing and therefore not within DNR's
jurisdiction.� Although DNR's policy is for internal guidance only, Mr. Pallogi
was aware of it, and asserted that the trees he harvested were within the
non-forest-land radius of the property owner's residence and therefore he did
not need to obtain the approval of DNR for the harvest.� RCW 76.09.020(9)
provides that "forest land" means all land which is capable of supporting a
merchantable stand of timber and is not being actively used for a use which is
incompatible with timber growing.� Board disagreed with Mr. Pallogi's
interpretation of the policy, reasoning that, while the determination of the
precise area considered non-forest-land was controverted, under the facts of
this case, the harvest clearly occurred outside any reasonable interpretation
of either DNR's policy or RCW 76.09.020(9).
The
Board then analyzed the appropriateness of the penalty, looking at five
factors:� repairability intention of the violator, cooperation of the violator
with DNR after the violation is discovered, previous violations, and the
severity of the violation.� The Board concluded that DNR had already reduced
the penalty, and that the reduced penalty amount was fair and reasonable under
the circumstances.�
In
its decision, the Board discussed DNR's internal hazard tree removal guidance.�
The Board noted that the evidence in the Pallogi case indicated that there is
uncertainty in the application of DNR's policy, and that its origin was the
rules promulgated to protect forest worker safety, rather than in the forest
practices rules.� The Board concluded that, when applied in the forest
practices context, the language of the guidance was subject to varying
interpretation.� Absent a clarifying rule, it is left to the judgment of
individual foresters, homeowners and operators to determine the limits of
forest land in the field, on a case-by case basis.� The Appeals Board therefore
urged the Forest Practices Board or the Legislature to consider providing the
public with more clarity in addressing the problem of trees that endanger
people and property.