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?
We are
unable to join our colleagues in their decisions on issues numbers 3, 4, 6 and
8 for the reasons set forth in this dissenting opinion. We concur with the majority opinion on the
remaining issues.
3. The Guideline’s use of the
federal regulatory standard of Properly Functioning Conditions as a mandatory
element in local shoreline master programs under Part IV is clearly erroneous
in light of the policy of the SMA, is arbitrary and capricious and requires
implementation in violation of constitutional and statutory provisions.
Part IV of the regulations adopts properly functioning conditions (PFC) as the standard to be achieved by development under local shoreline master programs. Properly functioning conditions is a phrase that was apparently coined by the Northwest Regional Offices of National Marine Fisheries (NMFS) in the publications “Making Endangered Species Act Determinations of Effect for Individual or Grouped Actions at the Watershed Scale,” National Marine Fisheries (August 1996) and “The Habitat Approach: Implementation of Section 7 of the Endangered Species Act for Actions Affecting the Habitat of Pacific Anadromous Salmonids,” National Marine Fisheries Service, Northwest Region (August 1999). Properly functioning conditions are geared toward restoring a natural, pristine habitat that optimally includes pre-European settlement conditions as the goal. Properly functioning conditions is a concept developed for and focused on evaluating the elements of habitat important to threatened or endangered fish species. NMFS has published a series of numeric measurements used in connection with evaluating the presence of PFC on certain types of waters known as the “matrix of pathways and indicators.” Numeric standards have not been completed, however, for the wide variety of waters regulated under the SMA and local master programs.
The term PFC is not contained anywhere within the SMA, previous shoreline regulations or shoreline case authority. The record does not reflect any independent or universal scientific meaning for the term even though it is being incorporated as the central standard in the Part IV guidelines. The requirements of PFC will be used to directly condition proposals during implementation of the Guidelines through local master programs.
The Guidelines define PFC as follows:
“Properly functioning condition” or “PFC” means conditions that create and sustain natural habitat-affecting processes (such as sediment routing, riverine community succession, precipitation runoff patterns, a natural range of flow variability and channel migration) over the full range of environmental variation and that support productivity at a viable population level of T&E species. The term “properly functioning condition” indicates a level of performance for a subset of the more broadly defined “ecological functions,” reflecting what is necessary for the recovery of T&E species.
Given this broad definition of PFC and the repeated use of the concept to impose restrictions on development under the guidelines, the appellants contend that the PFC standard should have been adopted only after full disclosure and comment under the Administrative Procedures Act (APA). Ecology claims that further guidance on the meaning of the term will be developed later through consultation with Tribes, the federal services and others. That detailed substantive guidance will be provided to local governments in yet to be determined policies.
The Administrative Procedures Act requires an Agency to comply with specific procedures when a “rule” is adopted. The APA defines a rule to include:
. . . any agency order, directive, or regulation of general applicability (a) the violation of which subjects a person to a penalty or administrative sanction; (b) which establishes, alters, or revokes any procedure, practice, or requirement relating to agency hearings; (c) which establishes, alters, or revokes any qualification or requirement relating to the enjoyment of benefits or privileges conferred by law; (d) which establishes, alters, or revokes any qualifications or standards for the issuance, suspension, or revocation of licenses to pursue any commercial activity, trade, or profession; or (e) which establishes, alters, or revokes any mandatory standards for any product or material which must be met before distribution or sale. The term includes the amendment or repeal of a prior rule. . .
RCW 34.05.010(16).
The use of PFC as the standard for measuring local master programs and individual shoreline actions is a matter of general applicability as that phrase is used under the APA. It is used throughout Part IV of the guidelines to define necessary action. Failure to meet the substance of PFC could subject a person or municipality to a penalty or administrative sanction (RCW 34.05.010(16)(a)) for violation of the master program development regulations necessarily incorporating PFC. The particular actions required to attain PFC also establish, alter, or revoke a qualification or requirement relating to the enjoyment of benefits or privileges conferred by law. (RCW 34.05.010(16)(c). Through the imposition of PFC criteria shoreline property owners will be forced to refrain from building, clearing or otherwise using property in ways that are traditionally allowed by law. Moreover they will be required to divert the use of other property to fund restoration of previously degraded shorelines without direct connection to the impacts caused by their own use of property.
The details of how PFC is defined and applied on the ground will place significant limits and impose significant costs on shorelines property owners. This type of regulatory material meets the definition of a rule under the APA. Rules must be adopted pursuant to proper procedure to ensure that affected parties can have the opportunity to participate in the discussion on policies. In invalidating procedures and policies adopted by Ecology in the water rights arena, the court observed:
Rule-making procedures under the APA involve providing the public with notice of the proposed rule and an opportunity to comment on the proposal. See RCW 34.05.320, .325. The purpose of rule-making procedures is to ensure that members of the public can participate meaningfully in the development of agency policies which affect them.
Hillis v. Department of Ecology, 131 Wn. 2d 373, 399 (1997).
Ecology has incorporated a term of enormous significance to the future of shoreline development under Part IV without providing the substance of what the term will require. While policy manuals and technical publications are certainly permissible in a regulatory program, the lack of substance in the PFC definition means that the limits on use of property will all be established later, in policies outside the rule process. This violates the APA. Ecology should be required to provide a public process under the APA for development and comment on the limitations that will be imposed by the PFC standard. As a result, the portions of the guidelines pertaining to PFC should be remanded for further action by Ecology consistent with the APA.
Beyond the procedural errors under the APA discussed above, the use of PFC is improper because it adopts a standard that goes well beyond the regulatory reach of the SMA. PFC attempts to ensure optimum habitat for potentially threatened or endangered species. The shoreline management act was not adopted for that purpose. The Guidelines promulgated by Ecology establish a minimum standard that all local master programs must meet. The statutory authority for the proscriptions contained in the Guidelines must be present in the SMA. Ecology has no independent power other than the SMA to curtail full use of private property through shoreline regulations. In this case Ecology has been forced to go beyond the parameters of the language in the Act, prior regulations and case law to shift the focus of the Guidelines from managed development of shoreline uses to mandating PFC as a vehicle to preserve wide-ranging habitat for potentially threatened and endangered species. This without any reference to threatened or endangered species in the SMA passed by the people of the state. Such action should be overturned under RCW 90.58.180(5) because it is clearly erroneous in light of the policy of the SMA, is arbitrary and capricious and requires implementation in violation of constitutional and statutory provisions.
4. The Guidelines’ mandate to restore, rather
than preserve and protect, shorelines goes beyond the terms of the Shoreline
Management Act in violation of RCW 98.58.180(5)(a), (b) and (c).
The Shoreline Management Act, RCW 90.58, was adopted through a vote of the people of Washington State in 1972. The ballot presented two options for shoreline management: one covering more area upland of the shore and centralizing administration in the Department of Ecology and another covering less area and creating a partnership between state and local government for shoreline administration. The voters opted for the partnership model that relied upon development of local shoreline master programs based upon minimum criteria contained in guidelines adopted by Ecology.
Much has changed in the years since the initial round of guidelines was developed and local master programs were adopted. Development and population pressures have increased and scientific understanding has advanced. The need to update the shoreline guidelines to reflect changed conditions was recognized in 1995 legislation that directed revision of the rules. In response, Ecology instituted an effort approximately five years ago to comprehensively revise the shoreline guidelines. Few would dispute the wisdom of updating the guidelines or the huge effort that was mounted to develop and solicit comment on the draft guidelines. The good faith of the parties involved is not in question, but unfortunately, the end product is flawed. The new guidelines lose sight of the substantive scope of the SMA, ignore the balancing of interests expressed in the Act, and impermissibly impose restoration as a requirement of shoreline management without statutory authority. Accordingly, the guidelines requiring restoration should be invalidated under RCW 90.58.180(5)(a), (b), and (c) because they are clearly erroneous in light of the policy of the SMA, will involve implementation of the SMA in violation of constitutional and statutory provisions and are arbitrary and capricious.
The most fundamental flaw in the approach taken in these new guidelines is the change from management that would foster “all reasonable and appropriate uses” to a regime that elevates fish and wildlife habitat above all other concerns. The guidelines require local government not only to protect and preserve all existing habitat, but to restore previously degraded areas. Proponents and opponents of the new guidelines point to different excerpts from the findings and policies contained in RCW 90.58.020 in support of their interpretations of legislative intent and statutory authority. A fair reading of the entire section, however, demonstrates that the SMA is designed to allow for a wide range of uses on the shorelines of the state. There is no language placing fish and wildlife habitat above all other considerations. In fact, the findings and policies reflect a broad concern for coordinated and thoughtful development of state shorelines to maximize the broad public interest.
The Washington Supreme Court has acknowledged the broad range of development contemplated by the SMA. In ruling on a controversial project in the Nisqually Delta area the court contrasted the temptation to wish for undisturbed shorelines with the legitimate development provided for by the Act:
In our review of the decisions below, it is tempting to rhapsodize about the pristine beauty of the Nisqually Delta. It is also tempting to express the wish that time and human hands not disturb it natural tranquility. This is not, however, the task before this court. Rather, our obligation is to interpret state and local laws as they apply to the issuance of permits to build an export facility within the city of DuPont in an area designated for urban uses.
In applying the law, we look first to its overall policy. The SMA does not prohibit development of the state’s shorelines, but calls instead for “coordinated planning. . . recognizing and protecting private property rights consistent with the public interest.” RCW 90.58.020. Designation of a shoreline as of “state-wide significance” does not prevent all development. That designation provided greater procedural safeguards, but permits limited alteration of the natural shorelines, with priority given to “residences, ports, shoreline recreational uses including . . . industrial and commercial developments which are particularly dependent on their location on or use of the shorelines of the state. . . RCW 90.58.020.
Nisqually Delta Association v. DuPont, 103 Wn. 2d 720,
726, 696 P.2d 1222 (1985).
The new guidelines fail to account for the balancing of interests that is contained in the language and the history of the act and impermissibly shift the focus to habitat restoration. The only mention of restoration in the SMA appears to be a reference in the initial legislative finding stating: “The legislature finds that the shorelines of the state are among the most valuable and fragile of its natural resources and that there is great concern throughout the state relating to their utilization, protection, restoration, and preservation.” RCW 90.58.020. This general statement does not provide an adequate substantive basis for either the wide-ranging limits on activity or the affirmative duties to restore habitat mandated by the new guidelines. Ecology is forcing local governments to impose significant restrictions on all shoreline developments and uses when such restrictions are not expressly addressed in the SMA.
When faced with comments challenging the statutory authority for restoration requirements, Ecology pointed to the legislative finding mentioned above and a portion of the general policy statement of RCW 90.58.020 stating: “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 the public rights of navigation and corollary rights incidental thereto.” RCW 90.58.020. Ecology uses this policy contemplating protection as the basis for imposing the additional requirement of restoration.
Restoration is a much broader concept than protection. Protect is not defined in the new guidelines, but is elsewhere defined as to “shield from injury, danger or loss; guard; defend.” Webster’s New World Dictionary, Second College Edition at 1142. Protection is focused on avoiding loss or injury. Restore, in contrast, is aimed at affirmative action to repair damage. Restore is defined in the new guidelines as “to significantly reestablish or upgrade shoreline ecological functions through measures such as revegetation, removal of intrusive shoreline structures, and removal or treatment of toxic sediments. To restore does not necessarily imply returning the shoreline area to aboriginal or pre-European conditions.” WAC 173-26-020 (36). Restoration requires affirmative effort to remedy a prior harm. A policy to protect against adverse effects to the waters of the state and their aquatic life cannot reasonably be stretched to mandate comprehensive restoration of prior, perhaps longstanding, conditions. Restoration goes one step further than the protection contained in the SMA.
The guidelines impose this restoration requirement as more than a general principle for planning purposes. Several sections of the guidelines require local governments to adopt master programs containing stringent restoration requirements unrelated to the impacts of the specific project. The Rural Conservancy designation of WAC 173-26-210(4)(b)(ii)(E) imposes a significant burden on project proponents: “shoreline ecological restoration should be required of new development or redevelopment where the shoreline ecological functions have been degraded.” Similar expenditures are exacted from project applicants in the High Intensity environment: “New development should protect and restore shoreline functions.” WAC 173-26-210(4)(d)(ii)(C). See also, WAC 173-26-210(4)(e)(ii)(A)(Urban Conservancy); WAC 173-26-210(4)(f)(ii)(C)(Shoreline Residential).
By requiring project proponents to restore shoreline functions that are unrelated to the impacts of their specific proposals, the Guidelines may be unconstitutional. In land use decisions, the United State Supreme Court and the Washington courts have required that exactions from permit applicants be designed to solve a problem created by the project in question and that the required action be roughly proportional to the development’s impact on the problem. Nollan v. California Coastal Comm’n, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987); Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994); Benchmark Land Co. v. Battle Ground, 94 Wn. App. 537, 545, 972 P. 2d 944 (1999); Burton v. Clark County, 91 Wn. App. 505, 520-23, 958 P. 2d 343 (1998). The lack of direct connection between the problem of previously degraded shorelines and the impacts generated by potential project applications renders Guidelines’ duty to restore shorelines constitutionally suspect. It is not necessary to rule in detail on this issue because the Guidelines are invalid under governing statutes as well.
Local governments are not allowed discretion to include or omit restoration requirements. Very real minimums in the form of limitations and affirmative duties are imposed via the guidelines. The term “should” is defined in the guidelines to mean that a particular action is required unless there is a demonstrated, compelling reason, based on the policy of the SMA and the guidelines against taking the action. WAC 173-26-020(46). Rather than examining whether the action is required by or consistent with the SMA, the definition of “should” mandates action in the absence of a direct prohibition in the SMA. This approach is completely inconsistent with the concept of developing regulations that implement rather than expand the dictates of a statute.
It is well established that an administrative agency has only those powers expressly granted or necessarily implied from statute. Anderson, Leech & Morse v. Liquor Bd., 89 Wn. 2d 688, 694 (1978); Ortblad v. State, 85 Wn. 2d, 109 (1975). An administrative agency cannot modify or amend a statute through its own regulations, however desirable the result. Rettkowski v. Dept. of Ecology, 122 Wn. 2d 219, 227 (1993), citing State v. Thompson, 95 Wn. 2d 753, 759 (1981); Johnson Corp. v. Dana Corp., 119 Wn. 2d 423, 428 (1992). In this case the Department, for arguably laudable reasons, has improperly gone beyond the terms of the SMA to expand its requirements through regulation.
Restoration of fish and wildlife habitat is an important goal that should be undertaken directly pursuant to clear authority established after full and open debate by duly elected officials. It should not be imposed under the guise of revising regulations interpreting a long-standing program in an entirely new light. While science has advanced in the last twenty-eight years, the statutory authority being implemented by these regulations has not. Ecology has overreached the language of the SMA in imposing the requirement to move beyond protection to restoration. The rules requiring restoration are inconsistent with the policy and language of the SMA, would require implementation that is inconsistent with the SMA, are being imposed arbitrarily and capriciously and should be invalidated pursuant to RCW 90.58.180(5).
6. The Guidelines Improperly Prohibit Gravel Mining in Shorelines
The
Washington Aggregates and Concrete Association (WACA) is extremely concerned
about the impact these new Guidelines will have on its members’ rights to
conduct gravel mining operations near shorelines of the state. WACA believes that the provisions limiting
gravel mining primarily to the rural conservancy environment effectively
prohibit mining as a shoreline use.
Gravel has historically been acknowledged as a critical resource to the
economy and gravel mining has been recognized as an appropriate shoreline use
when properly conditioned. The
Shorelines Hearings Board recently held that gravel mining is a reasonable and
appropriate use under RCW 90.58.020. Yakama
Nation v. Central Pre-Mix Concrete Company, SHB No. 98-042 (1999).
The new Guidelines do not explicitly prohibit all mining. Rather, the combination of limiting mining to the rural and urban conservancy environments, and placing insurmountable use limits on those environments, effectively makes mining impossible. The industry has established that gravel deposits are a limited and finite resource often located in shoreline areas. “Mineral resource lands” are identified and designated by local governments planning under the Growth Management Act. Mineral resource lands may or may not be located primarily in the rural and urban conservancy environments of a local jurisdiction. Mineral resource lands falling outside conservancy areas could not be used for gravel mining operations despite any potential for mitigation of environmental impacts. This restriction goes beyond the mandates of the SMA and the content of the prior guidelines and precludes local governments from allowing for sound development of significant mineral deposits. Imposing this limit on local government discretion is clearly erroneous in light of the policy of the SMA and should be invalidated under RCW 90.58.180(5)(a).
Beyond the invalidity of the provisions limiting mining to the rural and urban conservancy zones, the new guidelines make actual mining operations within those zones virtually impossible. The regulations provide that “where mining and associated activities are allowed, they must be conducted in a manner that is consistent with the policies of the environment designation in which they are located.” WAC 173-26-240(3)(h)(ii). As the majority opinion concedes: “On the face of the rural conservancy environment management policies this is not possible to achieve.” Majority Opinion, at 23. There is an irreconcilable conflict between the rural conservancy limit to nonconsumptive uses and the consumptive nature of mining activity. The management policies provide:
Uses in the “rural conservancy” environment should be limited to those which are nonconsumptive (i.e., do not deplete over time) of the shoreline area’s physical and biological resources and uses of a nonpermanent nature that do not substantially degrade ecological functions or the rural or natural character of the shoreline area . . .
Except as noted below, commercial and industrial uses should not be allowed. Agricultural practices, commercial forestry, and aquaculture when consistent with provisions of this chapter may be allowed. Nonconsumptive, water-oriented commercial and industrial uses may be permitted in the limited instances where those uses have located in the past or at unique sites in rural communities that possess shoreline conditions and services to support the development.
WAC 173-26-210(4)(b)(ii)(A). Gravel mining by definition involves consumptive use of the
physical resources of the shoreline and is therefore inconsistent with this
management policy. The majority opinion
recognizes the inconsistency, but concludes that the inconsistency does not
necessarily mean that mining is prohibited by the use regulations. The opinion goes on to suggest that the
conflicting portions of the use policies simply should be construed not to
apply to mining activity. This strained
analysis is further stretched by reading out the mandatory aspect of the word
“should” from the use regulations as applied to mining. Majority Opinion, at 24.
Rather than ignoring the clear conflict between the consumptive nature of gravel mining and the use regulations of the only environment allowing it, as the majority does, Ecology should be required to make explicit provision for gravel mining in the guidelines and specifically state the mitigation that is expected. Leaving the conflict in place provides no protection to the legitimate interests of the gravel mining industry and the public served by it. Creating a regulatory structure containing language that must be ignored to be valid makes no sense and should be overturned pursuant to RCW 90.58.180(5).
The regulatory conflict between the Guidelines and mining activity extends even further. The use regulations contain a restriction precluding mining that would “result in short-term or long-term significant ecological impacts to shoreline ecological functions.” WAC 173-26-240(3)(h)(i). Just as mining is inherently consumptive, it cannot be conducted without short-term impacts to the shoreline. The conflict would again prohibit mining in the limited geographic locations where it is potentially allowed. The majority downplays the importance of this conflict by focusing on the term “significant impacts.” Unfortunately the term significant impact is so broadly defined in the Guidelines that it presents a very real obstacle to any mining activity.
(47) “Significant ecological impact” means an effect or consequence of a
human-caused action if any of the following apply:
(a) The action degrades or changes an ecological function or ecosystem-wide process to such a degree that the ecosystem can no longer perform the function at levels within its natural range of variability or that the performance of the function falls outside the range needed to maintain the integrity of other ecological processes in shoreline areas. As used in this definition, the normal range of variability does not include alterations caused by catastrophic events.
(b) Scientific evidence or objective analysis indicates that the action could cause degradation or change to those ecological functions or ecosystem-wide processes described in (a) of this subsection under foreseeable conditions.
(c) Scientific evidence indicates that the action could contribute to degradation or change to ecological functions or ecosystem-wide processes described in (a) of this subsection as part of cumulative impacts, due to similar actions that are occurring or are likely to occur.
Significant ecological impacts do not include impacts that are inconsequential to attaining the objective of the act or to the protection and restoration of shoreline ecological functions or ecosystem-wide processes.
WAC 173-26-020(47). If the definition of significant ecological impact addressed only actions directly causing serious harm, it would not act as a prohibition on mining. But expanding the definition to include actions that could “cause degradation or change” or could “contribute to degradation or change” to ecological functions or ecosystem wide processes creates a barrier to mining activity. The Guidelines must establish a reasonable set of rules for the conduct of mining activities. Setting up a purely nominal designation for mining activity that cannot be effectively pursued by responsible gravel owners is inconsistent with the SMA policy to foster all reasonable and appropriate uses, is arbitrary and capricious and in conflict with statutory provisions. Under RCW 90.58.180(5)(a)(b)&(c) it should be invalidated.
8. The Shoreline Guidelines Impose an Unfunded Mandate
on Local Governments.
The people
of Washington State have established a restriction on the financial burdens
placed on local government by state directives. The fundamental purpose of the prohibition on what have been
popularly referred to as “unfunded mandates” is expressed in RCW
43.135.010(4): “It is therefore the
intent of this chapter to: . . . (c) Assure that the state does not impose
responsibility on local governments for new programs or increased levels of
service under existing programs unless the costs thereof are paid by the
state;. . . .” This general intent has
been implemented through specific statutory prohibition in RCW 43.135.060(1)
which provides:
After July 1, 1995, the legislature shall not impose responsibility for new programs or increased levels of service under existing programs on any political subdivision of the state unless the subdivision is fully reimbursed by specific appropriation by the state for the cost of the new programs or increases in service levels. Reimbursement by the state may be made by: (a) A specific appropriation; or (b) increases in state distributions of revenue to political subdivisions occurring after January 1, 1998.
The new shoreline Guidelines were required by legislative directive in RCW 90.58.060(1). The Guidelines place very specific and burdensome requirements on local government. Local jurisdictions are forced to: (1) prepare a detailed inventory and scientific analysis of shoreline ecosystems; (2) develop planning documents and ordinances based upon the shoreline inventory and analysis; (3) significantly amend their shoreline master programs; (4) engage in public review and comment throughout the process; (5) consult with federal agencies under the ESA and; (6) interpret and enforce the complicated and controversial ecological mandates of an approved shoreline master program.
These enumerated actions necessitate a substantial increase in levels of service provided under existing shoreline master programs. The new duties were placed on local governments without commiserate funding from the legislature. As such, they constitute an unfunded mandate prohibited under RCW 43.135.060. The Shorelines Hearings Board is not authorized to provide a remedy for unfunded mandates, but we believe that the declaration of an unfunded mandate should be made. Relief will have to be pursued through other channels.
DATED this 27th of August 2001.
SHORELINES HEARINGS BOARD
MARTIN CARTY
PIERRE PELTIER
SHB 00-037 Second Dissent