The following summarizes some of the cases decided in 2002 by the various boards that make up the state�s Environmental Hearings Office.  Kay M. Brown, an Administrative Appeals Judge with the Environmental Hearings Office since September 2002, prepared this summary. 

I.  FOREST PRACTICES APPEALS BOARD (FPAB)

Segmentation and SEPA

In Mountaineers v. DNR and Plum Creek Timber Company, FPAB 00-029 (2002), the FPAB was asked to address the issue of whether one timber harvest by a large timberland owner was a segment of a proposal sufficient to trigger SEPA review under WAC 197-11-305(1)(b).   The harvest involved a 28-acre clearcut very close to Mt. Rainier National Park.   

The Board concluded the Appellants had failed to meet their burden of proving this harvest was part of a larger proposal.  On the evidence presented, the Board found the harvest was not �operationally linked� to other past, present, or future harvests, and did not depend on any other harvest for its justification or completion.  Therefore, the application had been properly approved as a SEPA exempt application.  The Board�s decision is currently on appeal to Thurston County Superior Court.

Channel migration zone

WEC v. DNR and Weyerhaeuser Co., FPAB 01-007 (2002), a case of first impression before the FPAB, raised the technical issue of determining the correct channel migration zone (CMZ) delineation under new Forest and Fish emergency rules.  Weyerhaeuser submitted an application to DNR for a clearcut harvest of approximately 70 acres on land adjacent to the Greenwater River in Pierce County.  A CMZ boundary was delineated, and the application was approved.  The appellants disagreed with the delineation and filed an appeal of the application approval.

The Board, after hearing considerable expert testimony from both sides, concluded the delineated CMZ did include all channels that were active within the last 100 years.  The Board also concluded, however, the DNR scientists and the Manual itself, failed to take into account the effects to be expected from vertical bed movement on this site within the next 100 years.  The Board remanded the case to DNR to consider vertical bed movement.

Stay of Timber Sale

         The FPAB issued two decisions on stay requests in the same appeal, Libby Creek Watershed Association v. DNR, FPAB 02-002 (2002).  This case concerned a proposed salvage harvest following a large forest fire.  In the first round, the Appellants requested a stay of DNR�s timber sale.  The Board, applying the test set out in Tyler Pipe Indus. v. Dept. of Revenue, 96 Wn.2d 785, 792, 638 P.2d 1213 (1982), held the Appellants failed to show they had a likelihood of prevailing on the merits of the appeal because the Board lacked the statutory authority to review a DNR timber sale. 

After the timber was sold, the Appellants filed a second request for a stay of the harvest under the associated forest practices applications.    The Board again applied the Tyler Pipe criteria and concluded the Appellants, who had the burden of proof, had failed to meet the first prong of the test, the likelihood of prevailing on the merits.  On this basis the second stay was also denied. 

II.  POLLUTION CONTROL HEARINGS BOARD (PCHB)

401 Certifications

The Board issued two major decisions related to �401 water quality certifications during this review period.  In the first decision, Airport Communities Coalition and Citizens against Airport Expansion v. Ecology and Port of Seattle, PCHB 01-160 (2002), the PCHB reviewed Ecology�s issuance of a certification to the Port of Seattle for the Third Runway project at the Seattle Tacoma International Airport.  Following two weeks of hearing, the Board affirmed Ecology�s certification with the addition of 16 conditions.  The Board�s decision addressed a variety of issues in several different subject matter areas.

De Novo Review

The Board clarified that de novo review in the context of the review of an Ecology �401 certification, means the Board makes its own independent assessment of the relevant information relied upon by Ecology to determine whether Ecology had reasonable assurances at the time it granted the certification. 

401 Certification � General Issues

The Board held Ecology properly relied on the Port�s NPDES permit and Ecology�s NPDES permitting process to provide reasonable assurances of compliance with state water quality laws.  The Board noted with approval Ecology did not rely on this as the only basis, but went beyond the requirements of the NPDES permits in several areas.  The Board further held Ecology could incorporate �401 certification conditions into the NPDES permit, thus allowing future enforcement of those conditions, and could require preparation and submission of revised plans and/or require future monitoring when information or technology is unknown or uncertain. 

Water quality and stormwater

The Board approved Ecology�s decision not to require numeric water quality standards in the current �401 certification, finding the conditions unnecessary to meet the reasonable assurances test.  The Board further concluded the mixing zone and the stormwater facility complied with procedural and substantive requirements of the state water quality standards.  The Board also affirmed Ecology�s issuance of the �401 Certification based on its requirement the Port obtain dam safety permits in the future. Finally, the Board concluded reliance on a BMP-based permit could satisfy the requirements of CWA �401(d).  The Board did, however, add several conditions to the certification, to ensure compliance with water quality standards.

Water rights 

The Board agreed with the Appellant�s contention that the use of stormwater under the circumstances presented by this appeal is a beneficial use as defined by the water code, and does require a water right.  The Board noted the Port�s plan went beyond simple stormwater management and amounted to an appropriation triggering water code requirements.  Based on this conclusion, the Board added a condition requiring the Port to obtain a water right.

Miscellaneous substantive areas

The Board conditioned the fill criteria to ensure contaminants in the fill will not cause violations of groundwater or surface water standards.  The Board also reviewed the protection afforded wetlands.  The Board concluded wetlands are waters of the state protected by water quality standards, and therefore there must be reasonable assurances the Port mitigates impacts to wetlands in a manner consistent with the state�s anti-degradation policy.  The standard in the law is there will be no net loss of wetlands.  Ecology has mitigation credit ratios to use as general guidelines.  Here, the Board concluded Ecology did not apply the mitigation ratio guidance appropriately and added additional conditions to ensure wetlands would be adequately protected.

Public process and SEPA compliance

The Board decided as a preliminary matter on summary judgment the Port and Ecology had fully complied with the procedural aspects of SEPA. The Board reasoned because the amendment changed only the conditions on the project and not the project itself, a new application wasn�t required.  The Board also held EPA review was not required prior to amendment of a �401 certification by Ecology.  The Airport decision has been appealed to both King County and Thurston County Superior Courts.  Thurston County�s Judge Hicks transferred the matter to King County, where it awaits a decision for direct review by the court of appeals.

In the second major certification appeal, Friends of the Cowlitz CPR Fish and the Cowlitz Indian Tribe v. Ecology and the City of Tacoma, PCHB 02-022 (2002), reconsideration granted (2003), the Appellants challenged Ecology�s approval of a water quality certification for the continued operation of the Cowlitz River Hydroelectric Project (Project).  The Project consisted of three dams and a fish hatchery on the Cowlitz River. Prior to hearing, the Board granted partial summary judgment to Ecology on two of the issues in the case.  The Board, in its final decision upheld Ecology�s issuance of the � 401 Certification with the addition of five (5) conditions, and with the exception of the Article 303 flood control provisions of the license, which were remanded to Ecology for further review.  The decision addressed several factual issues including instream flows and the potential discharge of pollutants by the dam operator.

         The Board revisited an issue it had addressed in the Airport decision: the de novo review standard in the context of a �401 certification review.  The Board clarified the Airport decision does not preclude consideration of evidence not considered by Ecology as long as the evidence involves facts Ecology knew or should have known at the time it made the certification decision.

                   

NPDES Permits

The PCHB also issued opinions on appeals involving National Pollutant Discharge Elimination System (NPDES) permits.  In City of Vancouver v. Ecology, PCHB 01-159 (2002), the City of Vancouver requested the Board review conditions imposed by Ecology in an NPDES permit issued for the continued operations of one of the City�s two wastewater treatment facilities.  The City�s primary challenge was to a condition addressing the City�s practice of taking sewage sludge from one treatment facility and transferring it to the other treatment facility.  The condition required the City to subtract out the total suspended solids (TSS) and biochemical oxygen demand (BOD) from the sludge coming from the other treatment plant before calculating the removal requirements for the plant now processing the sewage. 

The Board affirmed the condition, finding the requirement met the intent of WAC 173-223-040(1) and Section 505 of the CWA. The Board held that considering the sludge emanating from the first treatment facility as part of the base, against which the required removal is measured at the second treatment facility, would allow the city to remove less than if it were required to remove the same percent of the contaminants from the waste stream of each plant separately.  The Board rejected the City�s contention Ecology could not impose this requirement without doing an analysis of �all known, available and reasonable methods . . . to prevent and control the pollution of the waters of the state� (referred to as an AKART analysis).  The majority of the Board held the City did not prove it would need any new technology to remain in compliance with the contested condition and therefore the AKART analysis was not required.  The concurring Board Member opined the AKART analysis was not required because the terms of the permit did not require the development of new technology, increased expenditures by the City, or increased annual operating costs.

The PCHB issued another opinion in 2002 related to NPDES permits, this time involving the question of the stay of a permit.  In Washington Toxics Coalition and Ad Hoc Coalition for Willapa Bay v. Ecology, Willapa Bay/Grays Harbor Oyster Growers Association and Farm & Forest Helicopter Services, Inc., PCHB 02-083 (2002), the Board addressed whether to grant a stay of an NPDES Permit issued by Ecology for the application of carbaryl on oyster beds in Willapa Bay and Grays Harbor.  The Board concluded the Appellants had made a prima facie case for a stay based upon a showing of likelihood of success on the merits; the Respondents had also shown a likelihood of success on the merits, but the Respondents had not shown either a substantial probability of success on the merits or an overriding public interest justifying the denial of the stay.  The Board concluded the potential for irreparable harm to the environment outweighed the potential economic impact to the oyster growers if carbaryl spraying was allowed to proceed immediately.  The Board granted a partial stay of the NPDES permit, allowing carbaryl application to proceed on the minimum number of acres necessary to provide scientific controls for research purposes.  One board member, in a concurrence/dissent, concluded the Respondents had shown an overriding public interest justifying denial of the stay.

The Board�s decision was immediately appealed to Thurston County Superior Court, where the Court reversed the Board, holding the granting of the stay would result in irreparable damage to the oyster industry and the community.  The Court also concluded there was no evidence in the record to support the Board�s finding that application of carbaryl to treat shrimp has any significant adverse impact on the environment.  The matter was remanded back to the PCHB, and is currently set for hearing in 2003.

Water Law

         The PCHB issued several significant water law decisions during 2002.  In the first case, Tulalip Tribes of Washington v. Ecology and Snohomish River Regional Water Authority, PCHB 01-106 (2002), the Tulalip Tribe (Tribe) asked the Board to review Ecology�s approval of a change in a surface water certification.  The approval was for both a change in the purpose of the use from manufacturing to municipal, and a change in the place of use from Weyerhaeuser�s Everett mill site to the area served by the Snohomish River Regional Water Authority.  The point of diversion remained the same.

The Tribe argued the approval was improper for several reasons. First, they argued Weyerhaeuser had relinquished a portion of the water right due to non-use.  The Board rejected this argument based on RCW 90.14.140(2), which recognizes an exception from relinquishment for non-use if non-use is based on determined future development.  Next, the Tribe argued the full amount of the water Weyerhaeuser had used in the mill was not available for transfer, because some of the water had been discharged back into the estuary.  The Board also rejected this argument, holding the discharge of polluted water back into the estuary did not create a return flow available to other water right users, and the potential impact of any such discharge was overshadowed by the extreme tidal influence at that location.  The Board did conclude, however, the approved transfer should have been restricted to the use recorded by Weyerhaeuser over a five-year period.

The Tribe also argued the change would injure existing rights in violation of RCW 90.03.380.  The Board held there was a lack of evidence establishing such injury to other certified water right holders.  The Board further held the Tribe�s treaty rights had been adequately protected through the imposition of a condition making the transfer subject to existing treaty rights and the protections for fish habitat.  Finally, the Board concluded, based on the weight of the evidence, fish and wildlife habitat and aquatic species would not be injured by summer diversion because the conditions attached to the permit were designed to prevent violation of water quality standards or harm to fish.  The Board�s decision is currently on appeal in Thurston County Superior Court.

In Michael D. Fort v. Ecology, PCHB 01-157, PCHB 01-180 (2002), the Board addressed a question of first impression in Washington: the application of the futile call doctrine.  The doctrine, rooted in common law, provides in circumstances where a senior water right holder will receive no benefit if the junior water rights are shut off, it is futile to require the junior to stop using water. The appellants asserted they were entitled to take low priority water at their diversion point under this doctrine even though others within their class were being regulated and could take no water.  The Board questioned whether the futile call doctrine is applicable at all in Washington.  It noted Washington manages its water on a watershed basis, and recognizes the interrelationship between ground and surface water.  This approach does not work well with the futile call doctrine, which was developed to address the regulation of water between two water users competing for the same source.  The Board held even if the doctrine were applicable in Washington, it was not applicable to this situation where the water regulation at issue was based upon class of users.

In Avalon Links, Inc. v. Ecology, PCHB 02-036 (2002), the Board decided on summary judgment a challenge to conditions, including disputed metering conditions contained in a ground water permit providing water to a golf course during the summer season. The appellants argued the conditions contained in the permit were not based upon sound science, and Ecology was estopped from conditioning water withdrawals during low flow periods in the Samish River because of statements made by employees of the Department of Ecology.  The appellant also disputed the finding of hydraulic continuity.

The Board, ruling in Ecology�s favor, held the Appellants were time-barred on their challenge to the water withdrawal restrictions and findings of hydraulic continuity contained in the original groundwater permit and Report of Examination.  The Board also rejected Appellant�s estoppel argument, holding the Appellants had failed to establish all of the elements of estoppel by clear, cogent , and convincing evidence.

The final issue decided on summary judgment involved the authority of Ecology to impose daily metering requirements on this groundwater permit extension.  The Board noted the Report of Examination concluded the Samish River was likely hydraulically connected to the groundwater from which the Appellant�s well draws, and the Samish River is considered depressed for winter steelhead and suffers from low flows.  The Board also reviewed the broad authority to impose metering requirements given to Ecology under RCW 90.03.360, and the extension of this authority in certain circumstances to groundwater permits under the American Rivers v. Ecology decision issued by the Thurston County Superior Court Cause No. 99-2-00480-6 (March 22, 2000).  The Board concluded under the facts of this case, Ecology�s imposition of metering on a daily basis during the months of June, July, August, and September, was reasonable.

         In Pacific Land Partners v. Ecology, PCHB 02-037 (2002), the Board addressed on summary judgment motion, a challenge by Pacific Land Partners (Pacific) to Ecology�s Order relinquishing a water right certificate because of non-use.  The Board held Ecology had met its burden of proving lack of beneficial use for a period of five or more consecutive years.  The burden of proof then shifted to Pacific to prove its non-use fit within a statutory exception to relinquishment.  The Appellant argued a federal foreclosure process on the property was sufficient to meet the requirements of the litigation exception to RCW 90.14.140.  The Board, relying on R.D. Merrill Co. v. Pollution Control Hearings Board, 137 Wn. 2d 118, 141, 969 P.2d 458 (1999), held the exception requires the non-use of water be attributable to the legal proceedings.  The Board found no evidence establishing that the foreclosure action prevented beneficial use of this water right, and therefore concluded the litigation exception wasn�t applicable.

Pacific also argued that the �future development� exception found in RCW 90.14.140(2)(c) was applicable on the facts of this case to preclude relinquishment.  The Board, again citing R.D. Merrill, concluded evidence of fixed development plans within the five (5) years of non-use was required to utilize this exception.  Again, sufficient evidence was not presented to establish this requirement. 

In its final argument, Pacific contended Ecology was estopped from arguing the water certificate had been relinquished because of statements by Ecology�s employees as to the applicability of the litigation exception.  The Board reviewed the requirements for estoppel and concluded statements of law could not form the basis for an estoppel argument.  The Board held Pacific had not established a defense to relinquishment, and therefore, summary judgment for Ecology was appropriate.  The Board�s decision is on appeal in Grant County Superior Court.

Additionally, as noted above under �401 Certifications, the Board addressed a water right issue in the Airport decision (PCHB 01-160(2002)).  The Board found a water right was required for the uses contemplated by the Port of Seattle in the design of its stormwater detention and low flow mitigation plans for the construction of the SeaTac Third Runway.

Finally, the Board addressed a case of first impression in Washington on whether impairment of a water right is measured at the point of diversion or throughout the length of an irrigation system.  Big Creek Water Users Association v. Ecology and Trendwest Investments, Inc., PCHB 02-113 (2002).  In order to facilitate the completion of the Trendwest resort development near Cle Elum, Trendwest acquired eleven water rights on four different Upper Yakima Basin tributaries between Easton and Ellensburg.  Trendwest applied to change these tributary water rights from their current consumptive irrigation use to instream flows to provide mitigation for impacts on the Yakima River from the transfer of Trendwest�s Yakima River mainstem water rights and to provide mitigation for impacts to tributaries caused by development of land and related water use outside of the Resort and the Cle Elum Urban Growth Area.  The Big Creek Water Users Association challenged some of the change applications on the grounds that the loss of the water from their ditch system was an impairment to their water rights.  The Board reiterated that it does not have jurisdiction over Big Creek�s specific impairment claims based on legal theories of partnership or contract law.  The Board went on to say that the place of measurement of appropriated water is at the point it is diverted from the stream.  Since these changes would actually increase the amount of streamflow at the point of diversion, there was no impairment to the other water rights and thus the changes were appropriate.

Regulatory Reform

         In an interesting decision issued early in 2002, the Board addressed regulatory reform questions in the context of a penalty appeal.  United States Department of Energy, and Fluor Hanford, Inc. v. Ecology, PCHB 01-134 (2002).  Ecology had issued a letter labeled �Notice of Correction� (NOC) to the Appellants for alleged violations of Washington�s dangerous waste violations.  Despite Appellants� compliance with the corrective measures outlined in the document, Ecology issued a civil penalty for the same violations covered by the letter NOC.  Appellants moved for summary judgment, arguing the penalty was barred by RCW 43.05.060(3), which prohibits Ecology from issuing a penalty when it has previously issued a notice of correction.

The Board, faced with many interesting arguments from both sides, concluded the penalty was not barred. It ruled RCW 43.05.060(3) was rendered inoperative due to a conflict with federal law.  See RCW 43.05.901 & 902.  The Board also rejected Appellants� argument the Fair Notice Doctrine precluded Ecology from issuing a penalty.  The Board noted the Washington Courts had not applied the �fair notice� doctrine to agency interpretation of law.  Even if the doctrine were applied in this context, the Board concluded Appellants had �fair notice.�

        

III.  SHORELINES HEARINGS BOARD (SHB)

Variances

The SHB addressed a concern with overlapping setbacks in an appeal of San Juan County�s denial of variances for a proposed single-family residence.  Weston v. San Juan County, Marin and the Friends of the San Juans, SHB 01-031 (2002).  This case involved two setbacks, one for a road and one from the shoreline.  The amount of buildable land left after the setbacks were imposed was insufficient to construct the proposed home.  The first issue, dealt with by motion, presented the question of whether the Board had jurisdiction to hear an appeal of a variance from a road setback, which is not governed by the San Juan County Shoreline Master Program.  The Board concluded it did not, stating the correct route for such an appeal was to Superior Court under the Land Use Petition Act.  The remaining issue was San Juan County�s denial of a variance to the 100-foot shoreline setback requirement.

The Board, in denying the request for the variance, concluded granting of the variance would establish a precedent, adverse to the values of the Shoreline Management Act, for granting further variances to properties in this area.  The Board also concluded the Petitioners had failed to demonstrate there were likely to be no adverse cumulative environmental effects from the granting of this and similar variance requests.  Finally, the Board concluded granting the variance would be detrimental to the public interest, and would create a special privilege, enjoyed by no one else in this area.  The Board�s decision is currently on appeal in Thurston County Superior Court.

Substantial Development (SDP) and Conditional Use Permits (CUP)

In 2002, the SHB issued two significant decisions involving the review of Substantial Development Permits and Conditional Use Permits.  In Grill and Tamm v. Baraka, LLC and City of Anacortes, SHB 02-001 (2002), neighbors challenged Anacortes� approval of a substantial development permit allowing a shoreline landowner to build and operate a charter ferry passenger service facility with a marina, a two-story parking garage, two stories of offices and a one-story motel, on top of the parking structure.  The structure authorized by the permit would have been in excess of thirty-five feet in height above the average grade level.  The Board noted a proposed structure on the shoreline, which would obstruct the views of a substantial number of residences on areas adjoining the shorelines, is limited by RCW 90.58.320 to 35 feet above average grade level, unless a local master program were to allow a greater height, �and then only when overriding considerations of the public interest will be served.� 

The Board held there was insufficient evidence to render a final decision as to obstruction of residential views. The Board did opine, however, an impact on a handful of residents was sufficient to meet the requirement of a �substantial� number of residents, and the �adjoining area� requirement referred to a broad area.  The Board reversed the City�s approval, and remanded the permit back for reconsideration of its approval, with instruction that a future decision should give consideration to aesthetics and water view obstruction.  If the permit were again issued with an allowance for construction of a structure greater than 35 feet in height, the city should be able to demonstrate an overriding public interest tied to the excessive height of the structure.  Following the Board�s decision, the parties reached a settlement, agreeing to limit the height of the buildings to 35 feet.

A second decision, Ecology, FOGH, & Wildlife Forever v. City of Westport & Mox Chehalis LLC, SHB 01-023 (2002), involved the review of both a shoreline development permit and a conditional use permit issued for a master planned destination resort within the City of Westport.  After the approved permits were appealed to the Board, the original parties agreed to a change to the proposal.  The Intervenors, however, were not in agreement with the change.  The Board denied the resulting cross motions for summary judgment.  A key issue was whether the proposed change was substantial enough to warrant sending the permit back to the local government for reprocessing.  The Board concluded the matter was factual, and could not be decided without a hearing, but went on to provide guidance on the standard for determining when a remand to the local government for reprocessing is required.  Changes are substantive and require a remand if they materially alter the project in a manner that relates to its conformance to the terms and conditions of the permit, the master program and/or the policies and provisions of chapter 90.58 RCW.� WAC 173-27-100.  �Within the scope and intent of the original permit" is defined in WAC 173-27-100 and includes any height or ground area coverage increases of more than 10%.  Following the summary judgment denial, all parties eventually agreed to remand the permits back to the City of Westport for further processing.