The following summarizes
some of the cases decided in 2003 by the various boards that make up the
state�s Environmental Hearings Office, in particular the Shorelines Hearings
Board (SHB) and the Pollution Control Hearings Board (PCHB). The cases represent the following important
issues heard by these boards: determining the ordinary high water mark,
administrative finality, view impairment, waste of water, ground water
modeling, water right claim amendment, family farm water permits, and NPDES
general stormwater permits. All of
these decisions, and more, can be found on the EHO �decisions� page on its home
page (eho.wa.gov). Kaleen Cottingham, a former member of the
Pollution Control Hearings Board and Shoreline Hearing Board, prepared this
summary.
Administrative Finality�Permitting
The SHB, on motion for summary
judgment in the case of Stafford v. City
of Bainbridge, SHB 03-010 (August 2003), was asked to apply the doctrine of
administrative finality to prevent a collateral attack on the construction of a
bulkhead permitted long prior to the pending action and permits at issue in the
case. The SHB found that the building
permit and the hydraulic permit authorizing the construction of the bulkhead
were final and could not be challenged at this late date. The SHB relied on Samuel�s Furniture v. Dep�t of Ecology, 147 Wn.2d 440, 54 P.3d 1194
(2003); Chelan County v. Nykreim, 146
Wn.2d 904, 52 P.3d 1(2002); and Wenatchee
Sportsmen Ass�n v. Chelan County, 141 Wn.2d 169, 4 P.2d 123 (2000).
The SHB, however, left for hearing
the question of whether the construction of the bulkhead changed the location
of the ordinary high water mark. As of
the writing of this article, the decision on the merits of that question has
not been finalized. (See Stafford v. City
of Bainbridge Island, SHB 03-010 (2003).
In a different case, the SHB
(sitting as a three member short board) found the City of Lakewood should have
required a shoreline conditional use and variance for various aspects of a
residential project. The SHB split on
the issue of whether the appeal was timely. Manza v. City of Lakewood, SHB 02-005
(2003). The issue of timeliness hinged
on whether the construction of the proposed dock was closely related to the
construction of the residence and the placement of the sewage holding tank, and
thus give the board jurisdiction over the earlier issued permits.
The earlier building permit was
issued in 2000 without reviewing the proposed height of the residence for
compliance with the applicable shoreline regulations. The house was constructed and complete by February 2002. A separate permit was submitted to build a
bulkhead and yet another application was filed to build a dock. Appeals were filed on the dock and bulkhead
with the hearings examiner, then the City Council, and finally the SHB.
Like other cases described in this article, the
administrative finality doctrine is at the heart of the matter. The majority distinguished the facts here
from those in the Samuel�s Furniture
case. Unlike Samuel�s Furniture, this case involves appealable shoreline permits
for a portion of the project, which were appealed to the SHB. The SHB noted it would �be unfortunate if,
under the facts of this case, where Lakewood erroneously issued a building
permit, without regard to its own shoreline regulations, it were allowed to
avoid the consequences of its mistake because the Shoreline Hearings Board was
unable to exercise its lawful jurisdiction.�
In order to find the appeal timely, the SHB looked
to whether the project had been piecemealed.
Relying on SEPA, the majority evaluated whether the various components
of this residential development (house, bulkhead, septic, and dock) were
related closely enough to constitute a single course of action and thus should
have been evaluated in the same environmental document. Proposals or parts of proposal are closely
related if they either cannot or will not proceed unless the other proposals
are implemented simultaneously with them, or are interdependent parts of a
larger proposal as their justification or for their implementation. The majority opinion concluded Lakewood�s
failure to require a shoreline substantial development permit for this project
would invite similar proponents to segment their proposals, seek a building
permit with no or inadequate shoreline review, and then argue later shoreline
permit requirements were trumped by failure to appeal a building permit
decision.
The majority concluded the residence and the dock
were dependent on each other and should have been reviewed together. Further, the majority concluded the
neighbors were not barred from challenging Lakewood�s decision not to require a
shoreline substantial development permit for the residence.
The dissenting opinion focused on the timeliness of
the appeal and the issue of piecemealing, contending the majority�s decision
ran counter to the weight of recent cases from the State Supreme Court and
recent SHB decisions. The dissent
discusses the applicability of Samuel�s
Furniture, Chelan County v. Nykreim,
Wenatchee Sportsmen Association v. Chelan County, and Skamania County v. Columbia River Gorge Commission, 144 Wn.2d 30
(2001). The Manza case was appealed to the Pierce County Superior Court, which
reversed this portion of the majority opinion without comment.
Administrative
Finality-- Penalties
The SHB heard the appeal of several penalties and
orders issued by the Department of Ecology against the Twin Bridge Marine Park
near La Conner. Twin Bridge Marine Park v. Ecology, SHB 01-016 (2002). The SHB ruled in Ecology�s favor and upheld
the penalties. The SHB denied reconsideration
of its decision and Twin Bridge appealed to Skagit County Superior Court. After the Washington Supreme Court ruled in Samuel�s Furniture, Twin Bridge moved
the SHB to vacate its ruling and dismiss the case.
A long history existed between Ecology and Twin
Bridges on the permitting associated with this property. In this particular series of appeals, Twin
Bridges contended the SHB had no jurisdiction over these penalties. The SHB, however, found the Samuel�s Furniture decision did not
address the Land Use Petition Act�s (LUPA) impact on cases that involve the
undisputed need for a shoreline permit.
The SHB found expanding the mandatory filing of a LUPA appeal to
projects clearly located within the shoreline would be inconsistent with the
Shoreline Management Act. The SHB
distinguished the facts in this case from those in Samuel�s Furniture as well as other recent cases dealing with
administrative finality.
The SHB denied the motion to vacate
its earlier decision. This case is
still pending before the Skagit County Superior Court.
Determining the Ordinary High Water Mark
The SHB has twice heard appeals from
Mr. Jack Thompson on his ability to retain all or a portion of a deck built
within the shoreline setback without the necessary permits. Jack
Thompson v. Ecology, SHB 03-005 (2003).
At issue in these appeals of the after-the-fact shoreline permits and
variances is the location of the riverine ordinary high water mark (OHWM).
There are very few SHB cases dealing with the legal
interpretation of the term �ordinary high water mark,� although there are
plenty of cases in which the SHB has been asked to find the OHWM. The SHB concluded the same legal principles
for determining property boundaries between private upland owners and
state-owned tidelands and shorelands apply to the Shoreline Management Act
(SMA) determination. The SMA defines
OHWM as: �that mark that will be found by examining the bed and banks and
ascertaining where the presence and action of water are so common and usual,
and so long continued in all ordinary years, as to mark upon the soil a
character distinct from that of the abutting upland, in respect to vegetation��
RCW 90.58.030(2)(b).
The SHB relied on Austin v. City of Bellingham, 69 Wash. 677, 126 P.59 (1912), and
several law review articles cited in PUD
#1 of Pend Oreille County v. Tomari Family Ltd. Partnership, 117 Wn.2d 803,
819 P.2d 369 (1991). The SHB found that
to ascertain the OHWM, some physical evidence of the effect of high water was
required, including vegetation, litter, erosion, or shelving. In particular, the SHB found the point at
which water prevents the growth of terrestrial vegetation to be an important
factor. This does not require the
absence of all vegetation, but only of terrestrial vegetation. There may be aquatic vegetation above and
below the line, but there will not be terrestrial vegetation below the line.
In the Thompson
case, at least five different attempts were made to locate the OHWM. The SHB relied on the method used by
Ecology. The Ecology expert broadly
observed the site to get his overall impression of the natural factors at
work. He looked for obvious high water
indicators and then worked down the bank, looking for the effect of water on
the soil. He looked for the presence of
water. He looked at the vegetation,
particularly how a collection of plants or communities of plants respond to the
presence of water. He looked for the
transition from aquatic plants to terrestrial plant communities. When he marked the line of OHWM, he noted
below the line vegetation typically associated with growing in water. Above the line he noted mature specimen of
trees and plants that can tolerate occasional inundation, but not frequent
inundation. The SHB did not accept the
appellant�s surveyor�s demarcation of the line of vegetation as the OHWM.
Shoreline View Impairment
The SHB heard an appeal of the
proposed conference center, hotel and waterfront trail along the waterfront in
downtown Port Angeles. Alexander and Tuttle v. City of Port Angeles,
SHB 02-027 (2003). The majority opinion
affirmed the issuance of the shoreline permits, finding no view obstruction
would be caused by the structure.
The property on which this
proposed conference center and hotel are to be sited is a large, cleared and
undeveloped parcel in the center of the downtown business district. The majority of the structure will sit
outside the 200-foot shoreline jurisdiction, although a small portion sits
within 200 feet. The portion of the
building within the shoreline jurisdiction is below 35 feet in height. The remainder of the building reaches up to
66 feet, including a feature designed to hide the rooftop HVAC and elevator.
The downtown core of Port Angeles sits close to the
water elevation. It rises to a high bluff
on the south side of the downtown area.
Numerous residences sit on the top of the bluff and have an expansive
view over downtown and across the Straits of Juan de Fuca to Vancouver Island. Some of these residents, and others in Port
Angeles concerned with the view, challenged the decision on the basis of view
impairment and SEPA procedural problems.
This project raised several issues with regard to
the Shoreline Management Act. First,
the project straddles the 200-foot line that marks the extent of the shoreline
jurisdiction, raising the question of whether some or all of the provisions
apply to the entirety of the project, or just to that portion of the project
within 200 feet of the shoreline.
Second, the SHB was asked to determine whether the view protections
contained in RCW 90.58.320 apply to the entire project or just to that portion
within the shoreline jurisdiction, and if applicable to the entire project,
whether the structure obstructs the views of a substantial number of residences
on areas adjoining the shoreline.
Finally, the SHB was asked to evaluate whether the permits were issued
prior to the completion of SEPA.
The SHB found the proposed building straddling the
200-foot shoreline jurisdiction must be evaluated as one building and as such,
must be evaluated as to whether the entire building complies with the Shoreline
Management Act. A building that
straddles the jurisdictional line is a unique proposition. A builder could elect to move a building
completely outside the 200 feet, or could design a building to comply with all
the provisions of the Act.
The SHB next evaluated RCW 90.58.320, which
provides:
No permit shall be issued pursuant to this chapter
for any new or expanded building or structure of more than 35 feet above grade
level on the shorelines of the state that will obstruct the view of a
substantial number residences on areas adjoining such shorelines except where a
master program does not prohibit the same and then only when overriding
considerations of the public interest will be served.
The SHB found that a substantial
number of residences were involved and that while they were approximately 1000
feet from the shoreline, given the directive to liberally construe the
Shoreline Management Act, these residences were adjoining the shoreline. The majority of the SHB did not, however,
find the structure to �obstruct� the view.
�Obstruct� means to cut off from sight.
As part of the permit process and in
preparation for the SHB hearing, numerous view impairment studies were
conducted. In all these studies, photos
were taken and adjusted for perspective and size. The architectural plans were imposed on the photographs to show
the expected impact on the view from four locations along the bluff.
The SHB relied on the view depictions created by the
developer because the SHB found them to be a closer reflection of the final
proposal and a better approximation of potential view impairment. The SHB found all the view analyses done on
the project adequately gave the Board a sense of the scope, scale, orientation,
and bulk of the proposed building. The
SHB found the view impairment from the four points along the bluff to be from 5
to 10 percent.
The SHB found the project would be visible. However, taken as a whole, the SHB did not
find the project would obstruct the views of the near-shore, mid-shore and far
horizon. The SHB concluded the 5-10
percent view impairment did not to equate with view obstruction. Further, the construction of the public
waterfront trail connecting to existing public trails on both sides of the
project would more than compensate for the impaired views for the majority of
the citizens in Port Angeles.
For view impairment issues not associated with
residences, the SHB applied RCW 90.58.020, which states:
Permitted uses in the shorelines of the state shall
be designed and conducted in a manner to minimize, insofar as practical, any
resultant damage to the ecology and environment of the shoreline area and any
interference with the public�s use of the water.
The SHB had previous used this
provision to disapprove the construction of tall, view obstructing
buildings. See: Sato Corporation v. Olympia, SHB 01-41 (1982) and Allegra Development Co. v. Seattle, SHB 99-08 (1999). Here, however, the SHB found the structure,
while higher than most of the buildings in downtown Port Angeles, would not be
the tallest, nor would it materially reduce the water views. In distinguishing it from the development in
Allegra, the SHB found the project,
with the inclusion of the public waterfront trail, to be a balanced permitting
decision.
On the issue of SEPA compliance, the SHB found the
issuance of the permit prior to the expiration of the 14-day comment period,
given the later revisions and planning commission action, to be without legal
consequence or prejudice. Thus, the SHB
found no SEPA procedural violations.
The dissent believed the structure would remove a
substantial portion of the views of the waters of the Straits of Juan de
Fuca. Further, the dissent would not
have excused the SEPA procedural deviation.
Water Rights--- Groundwater
The PCHB was asked to review the denial of two
groundwater applications within the Odessa sub-area, near Connell
Washington. Jenkins and City of Connell v. Ecology, PCHB 02-023 (2003). The Odessa sub-area is regulated by special
rules governing the withdrawal of groundwater.
WAC 173-130A. A withdrawal
cannot impact the decline in water level more than thirty feet in three
consecutive years, nor reduce the spring static water table below 300 feet, as
it existed in 1967. Ecology relies on a
computer model designed to predict the effect of pending applications for
groundwater appropriation on regional static water levels. If the model predicts the rule will be
violated, the application is denied.
Both applications at issue here were entered into the model. The modeling results caused Ecology to
determine the rule would be violated.
At the hearing, the burden was on the appellants to
prove Ecology erred in its evaluation.
Both appellants provided extensive evidence on the current condition and
history of the wells at issue, noting increasing water tables. However, where a regional problem exists,
data on isolated wells---no matter how encouraging--- cannot serve to disprove
a region-wide analysis. Thus, the PCHB
found these appellants failed to meet their burden.
The PCHB did note concerns with the model, due
primarily to lack of calibration and peer review. However, given the data presented was too localized to refute the
model, the PCHB did not invalidate its use.
Water Rights�Transfers/ Family Farm Water Act Water Permits
The PCHB reviewed a denial of a transfer for water
to be used as supplemental irrigation for lawns and yards in the City of West
Richland. City of West Richland v.
Ecology, PCHB 01-033 (2003). The
water at issue is part of two Family Farm Water permits. To date there has been no development of
either of these water permits. The City
planned to acquire these inchoate rights through an agreement described as a
lease.
Ecology denied the transfers because RCW 90.44.100
does not allow purpose of use changes to inchoate groundwater permits. The City argued it was not a change in
purpose to use agricultural irrigation water for lawn and yard irrigation. Alternatively, the City argued the transfer
was allowed as a lease under new provisions in the Family Farm Water Act.
The PCHB disagreed with the City
and upheld Ecology�s denial. The PCHB
found that irrigating lawns and yards is not the same purpose as irrigating
agricultural lands, especially given the purpose behind the Family Farm Water
Act. Further, because RCW 90.44.100
does not allow an unperfected groundwater right to be changed as to its purpose
of use, it was not necessary for the PCHB to determine whether the proposed
change comports with the allowable changes authorized under the 2001 amendments
to the Family farm Water Act.
Water Rights�Waste
The management of the Methow Valley Irrigation
District (MVID) was central to a case before the PCHB last spring. Methow
Valley Irrigation District v. Ecology, PCHB 02-071 (2003).
The irrigation works of the MVID were constructed in
the early 1900s and consist of two largely unlined, open canals. The MVID canal system was not adequately
maintained and many portions of the distribution network fell into
disrepair. As a result, many users at
the lower end of the canal system were unable to receive water, yet still were
required to pay annual assessments.
Starting in the mid-1970s, numerous studies were conducted
by the MVID. Most were funded by
governmental entities. Each of these
reports identified problems with the canal and distribution system. Little action was taken by the MVID to
implement the recommended improvements.
At one point the MVID adopted a resolution committing itself to
�discontinue its wasteful practices and greatly improve the efficiency of its
delivery system.� The focus at that
time was to convert portions of the open canal system to individual wells and a
piped system.
During this process, state and federal monies were
pledged to support and implement the necessary improvements.
In the late 1990s, Ecology began processing some 115
water right change applications from individuals wishing to be excluded from
the MVID, desiring instead to rely on individual wells. In this process, Ecology performed a
tentative determination of the extent and validity of the MVID�s water
rights. As part of that determination,
Ecology determined the appropriate number of acres served by water from the
MVID and the water duty. This generated
an annual historic use (of water) figure.
MVID was asked how it wished for Ecology to assign this historic water
use figure to the acreage within the district.
MVID indicated it wished to apply the 5,000 acre-feet across all 1,600
acres historically irrigated. At the
same time, MVID transferred a substantial amount of their right to the City of
Twisp. All these actions taken together
resulted in an on-farm allocation of 2.83 acre-feet per acre of water per year.
Following these changes, the MVID adopted a
resolution formally excluding all of the land in the lower reaches of the
MVID. This action left approximately
881 acres in the district, and also resulted in a change in MVID board
members. With the change on the Board,
the new board notified Ecology it was withdrawing from its previous commitment
to the improvement plan.
Following unsuccessful efforts to bring the parties
together, Ecology chose to begin enforcement action against the MVID, starting
with a Notice of Violation (NOV). The
NOV noted the MVID�s diversion exceeded the amount necessary to grow crops in
the area. Additionally, the NOV cited
conveyance losses, lack of sound canal management practices, and general
facility disrepair. The NOV cited both
waste of water (under the water code) and water quality violations caused by
the waste of water.
Subsequent to the NOV, Ecology issued an
Administrative Order requiring MVID to limit its diversions of water from the
Twisp and Methow Rivers to a combined maximum instantaneous rate of 53 cfs and
a combined annual quantity of 13,196.
This can be compared to MVID's actual diversion of 102.4 cfs and over
21,459 acre-feet per year.
The Administrative Order did not require the MVID to
improve the existing canal efficiencies or to institute improved canal
management practices. The Order focused
on the amount of water necessary to provide crop irrigation through the
admittedly inefficient, dilapidated, and poorly managed canal system.
MVID appealed the Order to the PCHB. Additionally, the Okanogan Wilderness League
(OWL) appealed the Order, contending Ecology did not do enough to stop MVID�s
waste of water.
The PCHB, on summary judgment, held Ecology�s
Administrative Order did not adjudicate the priority of MVID�s water right, but
rather, legitimately enforced the water codes prohibition on the waste of
water.
In the Final Findings of Fact and Conclusions of
Law, the PCHB found the water duty used by MVID (24.9 acre-feet) to be several
magnitudes greater than the amount recognized under the Methow Basin Plan or
even the similar Wolf Creek Basin.
Water duty is �that measure of water, which, by careful management and
use, without wastage, is reasonably required to be applied to any given tract
of land for such period of time as may be adequate to produce there from a
maximum amount of such crops as ordinarily are grown thereon. It is not a hard and fast unit of
measurement, but is variable according to conditions.� Ecology
v. Grimes, 121 Wn.2d 459, 852 P.2d 1044 (1993). Grimes further set
forth the inquiry on waste.
�Appropriators who diverted more than was needed for the appropriator�s
actual requirements and allowed the excess to go to waste acquired no right to
the excess. Id at 471.
The PCHB found the MVID water
distribution system to be extremely inefficient. Unlined canals, operational spills, and lack of meaningful
management of the daily diversions and on-farm use are combining to generate an
overall system efficiency no better than 20 percent. Every engineering consultant who has examined the canal system
has concluded it is in need of serious improvement. The PCHB concluded it is appropriate to consider the larger
agricultural community when determining the reasonable efficiency of an
irrigation system rather than just the local custom in that particular area.
Finally, the PCHB found Ecology had not gone far
enough in its enforcement action. The
legislature has provided Ecology with a strong mandate to reduce wasteful
practices in the exercise of water rights.
RCW 90.03.005. As such, the PCHB
directed Ecology to re-examine the MVID diversion and distribution system with
the goal of issuing a further or supplemental order adequate to address
excessive conveyance losses in light of any funding options that may be
available.
The Board also determined an enforcement action by
Ecology to eliminate waste was not an unlawful adjudication of water rights. Due to the PCHB�s ruling upholding the order
on the basis of waste, it was not necessary to reach the alleged water quality
violation raised. The MVID has appealed
this decision to Okanogan Superior Court.
Water Rights---Columbia River
The PCHB, on summary judgment in CELP v. Ecology, PCHB 02-216 (2003),
dealt with the Quad Cities� (Pasco, Richland, Kennewick and West Richland)
application for a water right from the Columbia River. Ecology issued a preliminary permit to the
City of Richland in 1993. This
preliminary permit was not for a diversion, but for planning purposes. The term of the permit was initially one
year. It was later extended to the
maximum period, three years. One month
before the expiration of the permit, Ecology notified the City if it did not
respond to the requirements its permit would be cancelled. Ecology ultimately cancelled the permit.
After consulting with the City, Ecology agreed to
reinstate the applications and add the other cities in the area as
co-applicants. Ecology agreed to the
assignment to these other cities so long as the Quad Cities developed a
regional water supply plan and used this application for a regional water
supply.
During this time period salmon
were listed as threatened or endangered under the Endangered Species Act and
Ecology imposed a moratorium on further water withdrawals from the Columbia.
Several years later Ecology determined it had
erroneously reinstated the application.
Litigation was filed in superior court and resulted in the court
ordering Ecology to resume processing the application. The legislature subsequently enacted SB
5333, codified as RCW 90.03.290(2)(b) authorizing Ecology to modify such a cancelled
application.
In 2001, Ecology prepared a draft record of decision
for the Quad City application, but delayed processing it due to other
litigation. In that other litigation, Kennewick Public Hospital District v.
Ecology, Benton Co. Superior Court cause no. 97-2-01041-9 and 00-2-02057-7
(2000), Ecology was enjoined from issuing certain permits that were ahead of
the Quad Cities� application in the processing line.
Since Ecology is required to
issue decisions allocating water from the same source generally in the order
received, Ecology agreed to process the Quad Cities application ahead only if
they could obtain signed waivers from the six applicants with earlier
application dates. This was not
feasible. Therefore, the Quad Cities
again sought a remedy in superior court, with the court ordering Ecology to
issue the decision on the Quad Cities� application. Ecology issued its decision and CELP appealed to the PCHB.
The case raised the question of whether the
environmental group CELP had standing to challenge certain aspects of water
right processing. The Board, in a very
limited way, found that CELP did not have standing to challenge the order in
which water permits are processed. The
PCHB also declined the invitation to defer to the ruling of the superior court,
instead finding that all but one issue raised by CELP had been trumped by the
legislature when it adopted Senate Bill 5333, codified at RCW
90.03.290(2)(b). The PCHB kept for
hearing whether the decision was appropriate.
The parties eventually settled the remainder of the case.
Water Right�Metering
The PCHB was asked to determine whether a commercial
hatchery was exempt from the requirement to install meters on its water
diversions and water withdrawals. Troutlodge v. Ecology, PCHB 02-056
(2003).
RCW 90.03.360(1) appears to authorize Ecology to
impose metering as a condition for all water rights. But its terminology speaks exclusive to �diversion� and does not
include �withdrawals.� The word
�diversion� is normally used to refer to an appropriation of water in the
surface water code, whereas �withdrawal� is normally used to refer to an
appropriation of water in the groundwater code. The provision for surface water contained in PCW 90.03.360 addresses
all water diversion. However, the provision in the groundwater code, RCW
90.44.450, expressly authorizes Ecology to meter new groundwater permits. This does not mean Ecology is devoid of
authority to meter existing groundwater rights. RCW 90.03.360 does contain a limited provision, which Judge
Hicks� in American Rivers v. Ecology,
Thurston County Superior Court cause no. 99-2-00480-6 opined requires Ecology
to meter new and existing groundwater rights if there is a �basis for believing
the groundwater right may affect surface waters supporting suppressed or
critical salmon stocks.�
In the Troutlodge
case, the PCHB found the withdrawal in question did not depress stream flow
because the groundwater withdrawn for the hatchery flowed through the facility
and was returned to the stream; thus increasing, not decreasing the flow.
Troutlodge also contended another of its rights
needed no meter because it was subject to an exemption in subsection (2) of RCW
90.03.360 for fish hatching and rearing facilities. The Board found the discretion granted to Ecology to require
meters was limited by the hatchery exemption.
Water
Rights�Claim amendment
The PCHB has reviewed several
disputes over the past two years in which Ecology had denied a request to amend
a water right claim. Most of the cases
involve a request to correct a ministerial error on the original claim. In the case of Moeur v. Ecology, PCHB 02-097 (2003), the water right claim had
several alleged inaccuracies. Some of
those inaccuracies included: location of the points of diversion, quantity of
water, time of year of water use, when the water was first put to beneficial
use, legal description of the land on which the water is used, and the amount
of irrigated acres. The Moeurs sought
to clean up these inaccuracies through a claim amendment as authorized by RCW
90.14.065.
RCW 90.14.065 allows claim
amendments in three specific circumstances: 1) error in the estimate of water
quantity; 2) change in circumstances not foreseeable at the time the original
claim was filed; and 3) the amendment is ministerial in nature.
The majority decision in this case, and previous
cases, construed the �ministerial� amendment provision very narrowly. The PCHB relied on the ejusdem generis rule
of statutory construction in interpreting RCW 90.14.064(3). In the case of Papineau v Ecology, PCHB 02-048 (2002), the PCHB opined that an
error ministerial in nature involves an act performed by a government
official. In the Moeur case, the Board expanded this to allow, if facts warrant, a
ministerial amendment to encompass an error evident on the face of the original
claim form, a mistake not made by a government employee, but one that should be
evident to a government employee.
Regardless of who made the error, a ministerial error is generally a
clerical or typographical error, where no exercise of discretion is required to
correct or rectify the error.
In the Moeur
case, the PCHB found most of the errors did not meet the test for a ministerial
amendment. The Board did remand the
matter to Ecology to address the quantification error under RCW 90.14.065(1).
The dissent in the Papineau and Moeur
decisions was based upon grounds of statutory construction. The primary issue raised was the statute did
not call for strict construction based upon the context of related statutes in
the chapter.
Both the Moeur
and Papineau cases were appealed to
Kittitas County superior court. The
majority opinions in these two cases are in doubt as a result of the Division
III, Court of Appeals decision in Willowbrook
Farms v. Ecology, 116 Wn.2d 392 (2003).
NPDES �General Permits
In the case of Ferndale
Town Center v. Ecology, PCHB 02-166 (2003), the PCHB dealt with the type of
flood modeling required from an applicant for a general discharge permit. The PCHB concluded Ecology did have the
authority to require flood studies prior to the issuance of an NPDES permit, in
order to reasonably control pollution.
However, the model requested by Ecology, while appearing to be superior
to previous models, had not gone through sufficient calibration and testing to
sufficiently corroborate its accuracy in predicting flood impacts in the
affected areas. When the developer
applies for additional coverage for the development of the property, Ecology
may apply this new model if it has been properly tested.
NPDES---AKART
On a motion for stay in Junction City Redevelopment Group v. Sierra Industries and Ecology,
PCHB 03-074 (2003), the PCHB concluded the appellant had made a prima facie
case of likelihood of success on the merits.
The appellant argued Ecology never conducted a study of all known,
available, and reasonable technology (AKART) related to the temperature of the
discharge into the Grays Harbor Estuary.
The dissent, however, was concerned with whether the
appellant had truly met its burden of demonstrating a likelihood of success on
the merits. In particular, the dissent
was concerned that the appellant had merely demonstrated Ecology had committed
an error. The appellant should have
made a showing that its interests still would have been affected if the outfall
had been constructed under the terms of a proposed stipulation agreement. Further, the appellant should have been
required to identify alternative technological means of achieving AKART.
NPDES�Industrial
Stormwater General Permit
Puget Soundkeeper Alliance and other environmental
groups challenged Ecology�s issuance of the fourth renewal of the Industrial
Stormwater General Permit. The PCHB
dealt with several issues on summary judgment, the parties settled numerous
issues, and the PCHB addressed the final issue following a hearing on the
merits.
Puget Soundkeeper Alliance v. Boeing et al, PCHB 02-162 (2003).
This permit provides coverage for 1,297 industrial
facilities across the state, where precipitation or runoff may contact
industrial activities or materials and result in the discharge of
stormwater. This new permit contains
several new provisions, including: 1) monitoring and analysis and reporting of
these analyses and sampling results to Ecology; 2) objective requirements to
meet narrative water quality standards and numeric criteria, for certain
discharges to 303(d) listed waters; 3) a compliance schedule for those
permittees who are unable to meet the numeric effluent standards for 303(d)
listed water bodies; 4) allowances for standard and expanded mixing zones for
discharges to non-303(d) listed water; 5) �benchmarks� for the purposes of
water quality monitoring; 6) a provision for a �no exposure� exclusion from
permit coverage; and 7) several provisions authorizing Ecology to modify or
waive permit provisions, at the agency�s discretion.
On summary judgment, the PCHB dealt with the issues
of compliance schedules, standard mixing zones, and authorization to modify or
waive permit conditions.
On the compliance schedule issue, the PCHB found a
permittee could have up to nine year to complete all six steps. Once the permittee fails to complete this
schedule, that permittee is allowed to start the process all over again and
continue until it achieves the water quality standards, or a total maximum
daily load (�TMDL�) is completed for the receiving water body. Ecology�s present schedule for completion of
the TMDL�s indicates compliance will not be complete until the end of 2013,
which is more than 10 years after issuance of the General Permit. The Board concluded this compliance
schedule, with its lack of regulatory oversight, was similar to the type of
self-enforcing regulatory program recently invalidated by the Ninth Circuit in Environmental Defense Center v. EPA, at
U.S. App. LEXIS 497, @ 57-62 (9th Cir., Jan. 14, 2003). The Board concluded the compliance schedule
did not ensure compliance within the term of the permit, which became effective
on September 20, 2002.
On the issue of mixing zones, the PCHB found the
requirement of a certification by an applicant absent review by Ecology did not
satisfy the requirements of the regulations.
On the ability to modify permit conditions, the PCHB
concluded the process set forth deprives the public of any notice to comment on
fundamental changes to permit requirements.
Additionally, the provisions are inconsistent with EPA�s regulation
governing permit modifications. And
finally, the informal modification process allows the agency to weaken the
controls provided under the general permit.
These three issues were remanded to Ecology for
reconsideration. At hearing, the PCHB
only addressed the remaining issue: whether the monitoring requirements in the
permit were lawful. The PCHB concluded
the permit, in certain respects, did not adequately meet the objective of
providing monitoring, which is to ascertain likely violations of the ambient
water quality standards. The Board
remanded the permit to Ecology to: 1) designate a major rainfall event as a
baseline for all sampling; 2) revise the permit to include a lower benchmark
value for copper; and 3) establish a monitoring requirement in the receiving
waters for mixing zones authorized under the permit, when the stormwater could
potentially create a significant environmental risk and such instream
monitoring is feasible.
NPDES�Sand and Gravel General Permit
The PCHB heard the appeal of the
granting of coverage under the Sand and Gravel General Permit for the new
gravel mine and processing facility proposed by Cadman, Inc. near North
Bend. The PCHB affirmed the Ecology
decision granting coverage.
On summary judgment, the Board clarified that the
scope of issues raised on appeal to the PCHB is limited by the underlying
permit. Thus, since the permit before
the Board was the Sand and Gravel General Permit, issues relating to noise and
transportation were not appropriate in this forum.
The appellants, at hearing, contended the grant of
coverage to Cadman violated the anti-degradation policy because the
contemplated plant operation will consume substantial quantities of water. The PCHB concluded the appellants had not
met its burden of proof. The appellants
did not show Cadman�s use of water would cause pollution.
The appellants further contended that none of the
documents supporting this project contain information sufficient to insure the
protection of groundwater quality. Of
particular concern was the potential contamination of a community well. The PCHB found that sufficient testing and
analysis had occurred to show that contamination would not occur. Further, the respondents demonstrated they
had substantial knowledge of groundwater flows in the area, through baseline
information collected from a series of wells.
PCHB Jurisdiction�Timely Filing
In a case involving numerous air
pollution penalties, the Board was asked, on a summary judgment motion, to
dismiss one of several appeals due to an untimely filing. Baker Commodities v. SCAPCA,
PCHB 02-153 (2003). The appellant�s
attorney delivered the appeal to Federal Express with instructions for
overnight delivery to the PCHB. Due to
mechanical problems, Federal Express did not deliver the Novice of Appeal to
the Board until one day past the filing deadline. The appellant�s argued substantial compliance with the filing
requirements.
The Board lacks jurisdiction to hear an appeal that
is not filed within the statutory timeline.
The statute does not allow any �good cause� exceptions and thus the
Board did not have authority to waive the jurisdictional timeline. The PCHB noted that the delay was
unfortunate and not the appellant�s fault.
However, because timely filing is jurisdictional, the Board had no
option but to dismiss the appeal. This
matter is on appeal to the Spokane County Superior Court.