SHORELINES HEARINGS BOARD
STATE OF WASHINGTON
The majority opinion is organized into nine separate issues:
1. Does the Department of Ecology have authority to implement the Endangered Species Act under the SMA?
2. Do the ESA Compliance Requirements in the Guidelines Violate the Administrative Procedures Act.
3. Do the Guidelines Improperly Require Preservation and Restoration of Properly Functioning Conditions?
4. Do the Guidelines Improperly Shift the Balance of Policies Under the SMA?
5. Do the Guidelines Improperly Regulate Exempt Uses under the SMA?
6. Do the Guidelines Effectively Prohibit Gravel Mining in Shorelines?
7. Did the Department Violate Requirements to Prepare a Small Business Impact?
8. Did the Department of Ecology Improperly Impose an Unfunded Mandate on local Governments?
9. Do the Guidelines Improperly Conflict with the Growth Management Act?
I am unable
to join my colleagues in their decisions on issues numbers 1, 2, and 7 for a
variety of reasons that will be set forth in this dissenting opinion. I do, however, concur with the majority
opinion on issues numbered 3, 4, 5, 6, 8 and 9. I have organized this dissenting opinion to address numbers 1 and
2 together, and then to address number 7.
1. Does the Department of Ecology have authority to implement the Endangered Species Act under the SMA?
2. Do the ESA Compliance Requirements in the Guidelines Violate the Administrative Procedures Act?
The petitioners’ challenge the new guidelines on the basis that the guidelines exceed Ecology’s authority; specifically that the guidelines allegedly implement the federal Endangered Species Act (ESA), 16 U.S.C. §1531 et seq., without specific authorization from the legislature. These guidelines do not implement the ESA, but rather implement the Shoreline Management Act (SMA) in a manner consistent with the ESA. Ecology does not need specific authority to adopt guidelines that are consistent with the federal ESA, so long as the substance of those guidelines is within the authority of the SMA. The guidelines themselves are within the authorization of the SMA. Additionally, Ecology has plenty of legislative direction to coordinate with federal agencies and federal programs. As such these guidelines do not exceed Ecology’s authority.
Not only does Ecology have the authority to implement these guidelines, they should be commended for attempting to minimize the confusion that would otherwise have been created with standards at the state and local level for shoreline protection that do not quite reach the level of federal requirements for salmon habitat protection. This desire to have the guidelines be coordinated with the ESA requirements was raised by some of the petitioners in the rulemaking process. Not only that, numerous sections of the SMA direct Ecology to coordinate or consult with the various federal agencies. Finally, the legislature has clearly articulated an approach to salmon recovery that embraces integrating state and federal efforts.
Ecology spent five years and countless staff hours[1] managing and participating in the public rule-making process associated with these guidelines, including public hearings, advisory groups, drafting and evaluating alternatives, facilitating public meetings, and reviewing and responding to public comments.
Ecology approached this process with a variety of sideboards, some legal, some political, and some pragmatic. First, and foremost, are the sideboards imposed by state law, specifically the SMA, the State Environmental Policy Act (SEPA) and the Administrative Procedures Act (APA). At the same time, Ecology attempted to develop an approach within the SMA sideboards that might also be able to limit the liability of local governments to federal enforcement actions under the federal ESA. This ESA sideboard, while not specifically required or prohibited by the SMA, was advocated by public comments and by language in the SMA encouraging coordination with federal agencies and programs. It is also a principle of the state’s salmon strategy developed pursuant to RCW 77.85.005. The updating of the SMA guidelines has been a key part of the statewide salmon recovery strategy.
The legislature finds that it is in the interest of the citizens of the state of Washington for the state to retain primary responsibility for managing the natural resources of the state, rather than abdicate those responsibilities to the federal government, and that the state may best accomplish this objective by integrating local and regional recovery activities into a state-wide plan that can make the most effective use of provisions of federal laws allowing for a state lead in salmon recovery.
RCW 77.85.005.
RCW 34.05.328(1)(h) directs a state agency adopting rules to “coordinate the rule, to the maximum extent practicable, with other federal, state, and local laws applicable to the same activity or subject matter.” RCW 90.58.020 states that there is a “clear and urgent demand for a planned, rational and concerted effort, jointly performed by federal, state, and local governments” to prevent harm to state shorelines. Similarly, RCW 90.58.300 states that Ecology “is authorized to cooperate with the federal government.”
Thus, contrary to petitioners’ arguments, Ecology has the authority to coordinate with the federal services in developing the guidelines. Nothing in Ecology’s actions delegates any SMA authority to the federal agencies, nor do these guidelines “federalize” the SMA. By coordinating with those federal agencies, Ecology insured that certain requirements in the guidelines (Path B) were consistent with what the federal agencies would require under the ESA. Further, by coordinating with the federal agencies, Ecology gave local governments an optional, voluntary Path B whereby once an updated plan was approved, the local government, and those acting in conformance with the updated master program, would obtain ESA liability protection. This protection will take the form of an Incidental Take Statement issued under §7 consultation (see footnote #3.)
The ESA is a mandatory federal law. State and local governments, as well as individuals, face significant risk of liability if they approve or undertake actions that result in “take” of listed species. Strahan v. Coxe, 127 F.3d 155 (1st Cir. 1997); Loggerhead Turtle v. Volusia Cy., 148 F.3d 1231 (11th Cir. 1998). Ecology proactively engaged the federal services to participate to see if the development of Part IV of the guidelines (Path B) could be drafted in such a way as to be consistent with ESA requirements. Ecology’s action in this regard was not only within its authority, but makes common sense.
The majority contends that the framework set forth in the legislative enactment of the Forests and Fish report in Engrossed Substitute House Bill 2091 (codified partially at RCW 77.85.190) is the framework that should have been utilized here. I disagree. Several differences exist. First, the negotiations over the substance of the Fish and Forests Report all occurred before any legislation was enacted. Second, the need for the legislation was to formalize the verbal commitments of the federal services to follow through on the federal assurances. This was agreed to as part of the negotiations. Third, the parties negotiated that full funding was a major part of their agreement. That depended exclusively on the willingness of the legislature to agree. Further, the need for the legislation was to secure the commitment of the legislature on the excise tax relief and to a few other statutory changes necessary to carry out the agreement. The petitioners failed to point out that the Forest Practices Board was pressuring the negotiating parties to conclude their process and that in the absence of agreement, would have acted independently. The Forest Practices Board intended to adopt riparian protections within their then existing authority, not dependent on legislative enactment. Because of the differences between the Forests and Fish report and the SMA guidelines, Ecology did not need the legislature to specifically enact enabling legislation to allow it to negotiate with the federal agencies or to adopt guidelines that are consistent with the ESA.
For the reasons noted above, Ecology had the authority to coordinate with the federal services. Their actions do not cause these guidelines to be invalid.
Additionally, the rulemaking process does not require the perfect balance between the firmly polarized opinions of individuals and interest groups. It does, however, require adherence to the policies and procedures of the SMA, SEPA, APA, and other related procedural laws and regulations. Ecology’s task in this matter was extremely difficult and controversial given the level of public discourse on all sides of the debate. The Shorelines Hearings Board (board) cannot impose its judgment on the matters at hand, nor can it decide whether these are the best or most appropriate guidelines to implement the SMA. The role of the board is to carefully look at the legal parameters and determine whether the choices made by Ecology comply with the law.
A rule should be upheld on review if it is reasonably consistent with the statute being implemented. Green River Cmty. College, Dist. 10 v. Higher Education Pers. Board, 95 Wn.2d 108, 112 (1980). The wisdom or desirability of the rule is not a question for the reviewing court. Federated Am. Ins. V. Marquardt, 108 Wn.2d 651, 658 (1987); Weyerhaeuser v. Department of Ecology, 86 Wn.2d 310, 314 (1976). The reasonableness of a rule is not subject to review. American Network, Inc. v. Washington Utilities & Transp. Comm’n, 113 Wn.2d 59 (1989).
The petitioners have primarily challenged the guidelines at Part IV which are also referred to as Path B. Path B does not implement the ESA but instead merely describes a voluntary way for local governments to implement the SMA in a manner that, more than likely, will be viewed by the federal services[2] as consistent with the ESA. In fact, in response to the final rule, the federal services stated that local governments following the voluntary Path B would receive ESA liability protection via coverage under the incidental take statement issued by the federal services to Office of Coastal Resource Management (OCRM)[3].
The voluntary nature of Path B is important to evaluating these guidelines. This means that a local government can choose not to proceed with this approach and instead proceed down Path A. It will be a deliberate choice by which each local government must evaluate the risks and costs of developing an approach to shoreline protection that both meets the requirements of the SMA and may provide relief from liability under the federal ESA. If the petitioners do not like the approach or the limitations, they can persuade the individual local entities to choose Path A. This would not, however, eliminate the ESA risks and liabilities each local government may face.
Understanding the history and purpose of the SMA is important to evaluating these guidelines. Petitioners contend that Ecology does not have explicit authority to adopt these guidelines. Petitioners rely on the principle that an administrative agency only has those powers expressly granted to it by statute or necessarily implied to carry out its duties. Green River, 95 Wn.2d at 112. However, rules may “fill in the gaps” in legislation if “necessary to the effectuation of a general statutory scheme.” Hama Hama Co. v Shoreline Hearings Board, 85 Wn.2d 441, 448 (1975). Kueckelhan v. Federal Old Line Ins. Co., 69 Wn.2d 392, 404 (1996). The Washington Supreme Court has on numerous occasions insisted that the SMA is exempted from the rule of strict construction and shall be liberally construed to give full effect to its overriding purpose: “[T]o preserve the natural resources of the state and to regulate construction upon the shorelines in accordance with the public interest.” Hama Hama v. Shorelines Hearings Bd., 85 Wn.2d 441, 446-447 (1975); RCW 90.58.900. The courts have also repeatedly stated that the SMA is to be broadly construed to protect state shorelines “as fully as possible.” State v. Buechel, 125 Wn.2d 196, 203 (1994); Bellevue Farm Owners Ass’n. v. Shorelines Hearings Board, 100 Wn. App. 341, 351 (2000); Lund v. Department of Ecology, 93 Wn. App. 329, 337 (1998).
The underlying purpose of judicial review is to ascertain and give effect to the intent of the legislature. Hartman v. State Game Comm’s, 85 Wn.2d 176, 179 (1975). To this end, the declaration of purpose in a statute is an important guide to understanding the breadth of authority the legislature has delegated. Armstrong v. State, 91 Wn.App. 530, 537 (1998).
The public interests to be served by the SMA are varied. As it relates to the new guidelines, the following are instructive: preventing water quality degradation[4], preserving natural resources and shorelines’ natural and ecological characteristics[5], and fostering water-dependent shoreline uses achievable through environmentally sensitive planning of a finite resources[6]. The purpose of the SMA is set forth in 90.58.020. It states in part:
It is the policy of the state to provide for the management of the shorelines of the state by planning for and fostering all reasonable and appropriate uses. This policy is designed to insure the development of these shorelines in a manner which, while allowing for limited reduction of rights of the public in the navigable waters, will promote and enhance the public interest. This policy contemplates protecting against adverse effects to the public health, the land and its vegetation and wildlife, and the waters of the state and their aquatic life, while protecting generally public rights of navigation and corollary rights incidental thereto.
(Emphasis added)
The policy of the SMA
is based upon the recognition that shorelines are fragile and that the
increasing pressure of additional uses being placed on them necessitates
increased coordination in their management and development. The SMA provides
that it is the policy of the State to provide for the management of the
shorelines by planning for and fostering all "reasonable and appropriate
uses". The policy contemplates
protecting against adverse effects to the public health, the land and its
vegetation and wildlife, and the waters of the state and their aquatic life,
while protecting generally the public right of navigation and corollary rights
incidental thereto. Buechel v. Department of Ecology, 125 Wn.2d 196
(1994); Caminiti v. Boyle, 107 Wn.2d 662 (1987).
In
enacting the SMA in 1971, the citizens found that preservation of the state's
valuable and fragile shorelines against increasing pressure of unrestricted
construction, necessitated the implementation of a management and development
plan that enhanced the public interest and protected the land, but also
recognized and protected private property rights. RCW 90.58.020. Local
governments are responsible for initiating and administering the SMA mandates.
RCW 90.58.050; Batchelder v. Seattle, 77 Wn. App. 154, 159 (1995); see
also Clam Shacks of Am., Inc. v. Skagit County, 109 Wn.2d 91, 94 (1987).
The SMA requires a combination of state and local planning. The SMA requires
all local governments to develop regulations ("shoreline master
programs") to plan for the reasonable uses of the shorelines.
RCW 90.58.100 requires, among other things, that master programs “utilize a systematic interdisciplinary approach which will insure the integrated use of the natural and social sciences”; “utilize all available information regarding hydrology, geography, topography, ecology, economics and other pertinent data”; and include various elements such as a conservation element.
The SMA specifies a preference for certain uses and developments that are dependent on shoreline locations:
In the implementation of this policy the public’s opportunity to enjoy the physical and aesthetic qualities of natural shorelines of the state shall be preserved to the greatest extent feasible consistent with the overall best interest of the state and the people generally. To this end uses shall be preferred which are consistent with control of pollution and prevention of damage to the natural environment, or are unique to or dependent upon use of the state’s shoreline.
(Emphasis added.)
The SMA confers broad authority on Ecology to adopt “such rules as are necessary and appropriate to carry out the provisions of this chapter.” RCW 90.58.200. Specifically, the SMA requires Ecology to “periodically review and adopt guidelines consistent with RCW 90.58.020 containing the elements specified in RCW 90.58.100 for: (a) development of master programs for regulations for the uses of shorelines; (b)…for regulation of the uses of shorelines of statewide significance.” RCW 90.58.060.
“Guidelines” are defined in RCW 90.58.030(3)(a) to “…provide criteria to local governments and the department in developing master programs.” The guidelines were originally adopted in 1972. The updated guidelines do not set minimum standards for the master programs but set forth criteria to be used in the development of master programs by the local governments. The second stage of this process is the updating of the local master programs. These then, once approved by Ecology, become the use regulations.
The new guidelines require local governments to develop shoreline master programs that will protect against adverse impacts to state shorelines, protect the public’s right to use and access state shorelines, foster reasonable and appropriate uses that are in the public’s best interest, and protect and restore the ecological functions of the shoreline. The new guidelines seek, as required by the law, to balance the public interest in preserving and protecting state shorelines with the need to allow for appropriate and responsible development.
The guidelines are well within the state’s authority granted by the SMA and lead to the effectuation of the policies contained in the Act as noted above.
The process for development and updating of those master programs is what is primarily contained in the guidelines here at issue. The original guidelines were adopted in 1972. Improvements in science, changes in land use patterns, population growth and changes in state law have rendered the original guidelines obsolete. Evidence has accumulated that the guidelines were not protecting state shorelines from the uncoordinated and piecemeal development condemned by the SMA and were not consistent with current scientific understanding of shoreline processes. One indicator of the original guidelines’ inadequacy came in the form of federal “threatened or endangered” listings under the ESA of several species of Chinook and Coho salmon whose very survival depend on having quality riparian habitat, the same habitat subject to regulatory protections under the SMA.
According to the Final EIS prepared for the new guidelines, the following described the need for new guidelines:
The issue now is that we continue to lose shoreline resources as a result of the cumulative impact of many small scale and dispersed projects on the shoreline. As more and more shoreline is developed, the native vegetation is removed and the physical character of the shoreline is changed. The wildlife that is dependent on those physical and biological characteristics is eliminated. The policy of the SMA is to “protect against the adverse effects to .. the land and its vegetation, the wildlife,” … These policies are not adequately addressed by most of the SMPs [Shoreline Master Programs] in effect today.
In 1995, the Legislature directed Ecology to update the guidelines. RCW 90.58.060(3). The guidelines Ecology adopted are reflective of the statutory mandates in RCW 90.58.020[7] and 90.58.100. In order to “protect against adverse effects to the … land and its vegetation and wildlife, and the waters of the state and their aquatic life”, as called for by RCW 90.58.020. the functions and processes that give rise to that vegetation, wildlife and aquatic life must be protected. The fundamental approach in the guidelines is to allow reasonable and appropriate development while at the same time preserving and protecting the shoreline environment.
The following example shows the type of guidance provided to local governments:
“…local governments should, when determining allowable uses and
resolving use conflicts on shorelines within their jurisdiction, apply the
following preferences and priorities in the order listed below, starting with
(i) of this subsection.
(i)
Reserve
appropriate areas for protecting and restoring ecological functions to control
pollution and prevent damage to the natural environment and public health.
(ii)
Reserve
shoreline areas for water-dependent uses and establish policies and regulations
so that water-dependent development is consistent with comprehensive ecological
protection and restoration objectives. Harbor areas and areas that are
generally considered navigable for commercial purposes should be reserved for
water-dependent and water-related uses unless the local governments can
demonstrate that adequate shoreline is reserved for future water-dependent and
water-related uses. Local governments may prepare master program provisions to
allow mixed-use developments that include and support water-dependent uses and
address specific conditions that affect water-dependent uses.
(iii)
Reserve
shoreline areas for water-related and water-enjoyment uses that are compatible
with water-dependent uses and ecological protection and restoration objectives.
(iv)
Locate
single-family residential uses where they are appropriate and can be developed
without significant impact to ecological functions or displacement of
water-dependent uses.
(v)
Limit
nonwater-oriented uses to those locations where either water-oriented uses are
inappropriate or where nonwater-oriented uses demonstrably contribute to the
objectives of the Shoreline Management Act.”
WAC 173-26-200(2)(d).
The new guidelines direct the local government to assess its shoreline environment to determine the ecological functions each segment performs. Each local government then must plan for development to occur in such a way that these ecological functions are protected. WAC 173-26-200(d). Additionally, the rules direct local governments to pay close attention to shoreline vegetation and shoreline modification, two aspects of shoreline protection clearly consistent with the SMA. Numerous studies have demonstrated the importance of shoreline vegetation to the aquatic environment. Under Path A, local governments are given a variety of options to achieve vegetation conservation. WAC 173-26-220(5)(d). Methods “may include setbacks or buffer requirements, clearing and grading standards, environment designations stands or other master program provisions.” Given the SMA’s mandate to protect wildlife and aquatic life, and the science demonstrating the importance of riparian vegetation, it is clear that the guidelines’ vegetation conservation provisions are consistent with the SMA. See, e.g., Klineburger v. City of Bothell, SHB No. 99-026 (2000); Citizens for Natural Habitat v. Snohomish Co., SHB No. 00-009 (2000). Similarly, numerous scientific studies demonstrate the negative impact that bulkheads and other shoreline stabilization measures have on the shoreline environment. The new guidelines require that master programs not allow new bulkheads except to support an existing or approved use. WAC 173-26-230(3). The guidelines also suggest that new development be located and designed to eliminate the need for future bulkheads.
Because
these guidelines are within the authority of the SMA they should be affirmed.
7. Did
the Department Violate Requirements to Prepare a Small Business Impact
Statement, Implementation Plan and Cost-Benefit Analysis?
Petitioner’s argue that Ecology has violated important rulemaking and regulatory fairness procedures in promulgating these guidelines, specifically the failure to prepare: 1) a Small Business Economic Impact Statement (SBEIS); 2) an adequate Cost-Benefit Analysis and the related least-cost alternative analysis; and 3) an implementation plan. Each of these specific procedural concerns will be addressed individually.
a)
SBEIS
In 1994, the Legislature adopted the Regulatory Fairness Act, codified at chapter 19.85 RCW. Among other things, this Act requires that when agencies adopt rules, they prepare an SBEIS if the proposed rule will impose more than minor costs on businesses in an industry. RCW 19.85.030(1). The purpose of a SBEIS is to provide information to be used by the regulatory agency to reduce, if appropriate, any disproportionate impact of new rules on small businesses. However, the requirement to prepare a SBEIS does not apply to the adoption of a rule described in RCW 34.05.310(4). RCW 19.85.025(3). RCW 34.05.310(4)(b) exempts rules “relating only to internal governmental operations that are not subject to violation by a nongovernment party”.
Ecology’s actions fit within this exemption because the guidelines impose requirements only on local governments. The guidelines govern the development and adoption of shoreline master programs by individual local governments, not the issuance of development permits. The guidelines specifically address and direct how local governments will update and amend their local shoreline master programs. It is those local shoreline master programs, once adopted by local governments, that govern individual shoreline permit decisions, not the guidelines. The approved local master programs, not the guidelines, operate as controlling use regulations for the various shorelines of the state. Weyerhaeuser Co. v. King County, 91 W.2d 721 (1979).
Small businesses and individuals will not be directly regulated by the guidelines, and thus cannot be directly found to violate the guidelines. Because the guidelines only relate to internal governmental operations, a SBEIS is not required as a matter of law. Additionally, the board has held that it will not apply shoreline guidelines to review of actions taken under approved shoreline master programs. Greater Duwamish Neighborhood v. City of Seattle, SHB No. 89-25 (May 1, 1996).
Additionally, until the local governments implement the guidelines through the adoption of new local shoreline master programs, it will be impossible to ascertain the economic impacts to small businesses. Much flexibility and local discretion is allowed under the guidelines. If a SBEIS were required at this point in the process, it would be nearly impossible to accurately provide information to ascertain whether there will be any disproportionate impacts from the guidelines on small businesses and would be speculative at best.
Petitioners’ argue that the guidelines could be imposed directly on permit applicants. The only time the guidelines could conceivably be directly imposed on individuals is prior to the adoption of a local master program. RCW 90.58.140(2)(a)(ii). Since all local jurisdictions have adopted local shoreline master programs, this provision no longer has any operative effect. From this point on, all actions by local governments are amendments to their existing master programs, not the adoption of a master program. Until the amendments to the local master programs are officially adopted by the local government and approved by Ecology, the earlier version of the master program controls. Since all jurisdictions have adopted a master program, in no event will the guidelines ever be used to evaluate permits issued at the local level.
If a local government should fail to comply with the requirement to update its master program, it is possible that Ecology would have to step in. RCW 90.58.070. But Ecology would step in as the developer of the master program, not by directly enforcing the guidelines on individuals. Should Ecology ever be forced to act instead of a local government, due to the failure of the local government to act, the actions taken by Ecology at that time may well be subject to the requirement of developing a SBEIS for the adoption of the local master program. Only in that instance will the action of Ecology be directly enforceable on individuals. Again, it would not be the guidelines that would be enforced, but rather the local master program developed by Ecology. It is not a certainty that Ecology will ever be required to exercise that authority. Until then, a SBEIS is not required and even in the future, the SBEIS analysis would only relate to the master program not the guidelines.
Ecology did not violate chapter 19.85 RCW, specifically the lack of a SBEIS does not render these guidelines invalid.
b)
Cost-Benefit Analysis and Least-Cost Alternative Analysis
The petitioners’ contend that the Administrative Procedures Act requires Ecology to prepare an analysis that weighs the costs and benefits of the rule and enables the agency to determine that an adopted rule is the least burdensome alternative available. RCW 34.05.328(1)(c) and (d). The requirement for this analysis is triggered when Ecology adopts “significant legislative rules.” RCW 34.05.328 (5)(a)(i). Significant legislative rules are defined as rules that adopt: “substantive provisions of law pursuant to delegated legislative authority, the violation of which subjects a violator of such rule to a penalty or sanction” or “establishes, alters, or revokes any qualification or standard for the issuance, suspension, or revocation of a license or permit” or “a new, or makes significant amendments to, a policy or regulatory program.” RCW 34.05.328(5)(c)(iii). While on its face, the guidelines would appear to fall into any of these defined areas, an earlier provision indicates that RCW 34.05.328 does not apply to “rules relating only to internal governmental operations that are not subject to violation by a nongovernment party.” RCW 34.05.328(5)(b)(ii). As analyzed in the preceding section, these guidelines relate only to internal governmental operations. Small businesses and individuals will not be directly regulated by the guidelines, and thus cannot be directly found to violate the guidelines. Thus, the requirement to prepare a cost benefit analysis and to determine that an adopted rule is the least burdensome alternative available, does not apply to the adoption of these guidelines.
Ecology did not violate RCW 34.05.328, specifically the lack of a cost benefit analysis and a determination that the rule is the least burdensome alternative available does not render these guidelines invalid.
c) Implementation Plan
As indicated in the preceding sections, Ecology is exempt from the requirements of RCW 34.05.328(3) for promulgating a rule implementation plan. RCW 34.05.328(5)(b)(ii). Despite this exemption, Ecology did prepare an implementation plan that meets all the requirements of RCW 34.05.328. This voluntary action does not mean that the exemption does not apply. Even though Ecology was not required to submit an implementation plan, the one prepared does completely comply with RCW 34.05.328(3). It indicates how Ecology intends to implement and enforce the guidelines, including a description of resources needed. It includes how Ecology intends to inform and educate the regulated community others about the guidelines. It indicates that Ecology intends to promote and assist voluntary compliance with the guidelines. Finally, it indicates how Ecology intends to evaluate whether the guidelines achieves the purposes for which they were adopted, including measurable outcomes and milestones. The petitioners’ argue that Ecology’s reliance on future funding from the legislature makes the implementation plan incomplete. I disagree. The law only requires the agency to include “a description of the resources the agency intends to use.” It does not require that the agency have the resources before proceeding with implementation.
Ecology did not violate RCW 34.05.328 by failing to have an implementation plan. As such this does not render these guidelines invalid.
For the reasons noted above and in the parts of the majority opinion in which I concur, I would affirm the guidelines as adopted by Ecology, with the exception of provision for a letter of exemption under Path B, as noted in the majority opinion.
DATED this 27th day of August 2001.
SHORELINES HEARINGS BOARD
KALEEN COTTINGHAM, member
[1] The administrative record reflects the formation by Ecology of at least two broad advisory groups to attempt to reach consensus on the new guidelines: the 1996 Shoreline Advisory Group and the 1998 Shorelines Guidelines Commission. Ecology held nine public hearings on the April 1999 draft guidelines. Ecology received approximately 3,000 comments on that draft. Following changes, Ecology circulated a December 1999 draft and received approximately 100 comments. In addition, Ecology held workshops with local governments and other interested parties on the December 1999 draft guidelines. In May 2000, a new draft was filed in the State Register. Eight public hearings were held around the state on the May 2000 draft. More than 2,000 comments were received by Ecology on that draft. Again, changes were made before the final version was adopted on November 29, 2000.
[2] Whenever “Federal Services” is used in this document, it refers to the National Marine Fisheries Service and the U.S. Fish and Wildlife Service, both of whom have independent jurisdiction over different species of salmon which may be subject to the ESA.
[3]
OCRM approves amendments to the state’s Coastal Zone Management Plan. The new guidelines adopted by Ecology are an
amendment to the CZMP. Thus OCRM must
approve them. Before OCRM can approve
the amendment, it must insure that the amendment “is not likely to jeopardize
the continued existence” of listed species.
16 U.S.C. § 1536(a)(2). To make
that determination, OCRM must prepare a biological assessment. If the biological assessment finds that the
action “may affect” listed species, it must initiate formal consultation with
the federal services, unless the assessment finds, and the federal services
concur, that the action is “not likely to adversely affect” listed
species. 50 C.F.R. 402.14; Natural
Resources Defense Council v. Houston, 146 F.3d 1118, 1126 (9th
Cir. 1998); Pacific Coast Federation of Fishermen’s Ass’n, Inc. v U.S.
Bureau of Reclamation, 138 F. Supp. 2d 1228 (N.D. Cal. 2001). If the
federal services determine that the amendment will not cause jeopardy, they may
issue an Incidental Take Statement to the OCRM. 50 C.F.R. 402.14(i). The Incidental Take Statement provides ESA
liability protection to OCRM, the states, local government, and those acting in
conformance with an approved master program. Ramsey v. Kantor, 96 F.3d 343 (9th Cir. 1996).
[4] Weyerhaeuser v. King County, 91 Wn.2d 721 (1979).
[5] Sisley v. San Juan County, 89 Wn.2d 78 (1977) and Department of Ecology v. Pacesetter, 89 Wn.2d 203(1977)
[6] Hayes v. Yount, 87 Wn.2d 280 (1976).
[7] Petitioners’ have argued that Ecology cannot rely on RCW 90.58.020 as authority for these guidelines due to RCW 43.21A.080 as amended by the Regulatory Reform Act. Petitioners are mistaken. The SMA specifically requires Ecology to “adopt guidelines consistent with RCW 90.58.020” See RCW 90.58.060. Also, 90.58.020 is not merely a statement of intent, but instead is a declaration of substantive law that Ecology is bound to follow. Moreover, Ecology did not rely solely on RCW 90.58.020 as authority for adoption of the guidelines. Ecology also relied on RCW 90.58.100.