Boards Update

 

Recent Decisions from the Environmental Hearings Boards

 

This summary was prepared by Bill Clarke, a former member of the Pollution Control Hearings Board.

 

I.       Pollution Control Hearings Board

 

Kariah Enterprises LLC v. Department of Ecology, PCHB No. 05-021, Summary Judgment (December 30, 2005).

Kariah filed an appeal of Ecology's denial of a �401 certification for filling of a wetland.  The basis for the denial was that Ecology did not agree with the wetland delineation performed by Kariah's consultant, which had been previously accepted by the U.S. Army Corps of Engineers. After reviewing Kariah's wetland delineation and supporting information, Ecology requested a new wetland delineation.  Kariah informed Ecology that it would be relying on the delineation accepted by the Corps.  The Corps then denied a �404 permit without prejudice due to Kariah's failure to obtain a �401 certification.

On summary judgment, Kariah raised a number of issues relating to Ecology's authority to issue �401 certifications in the context of a �404 wetland permit application.  First, Kariah asserted that the scope of �401 is limited to the wetland area as identified in the delineation accepted by the Corps.  Ecology argued that its authority in a� 401 certification includes ensuring compliance with state water quality standards adopted under �303 of the Clean Water Act, whether they relate to water of the United States or to waters of the state.  Relying on the Elkhorn and Sullivan Creek decisions, the Board determined that in a �401 certification relating to a �404 permit, the scope of the �401 certification may include both federal waters and waters of the state.

Kariah argued that, because "wetlands" are not specifically included in the definition of "waters of the state" in Chapter 90.48 RCW, Ecology exceeded its statutory authority by including "wetlands" in the definition of "surface waters of the state" in Chapter 173-201A WAC, the state water quality standards.  Ecology argued, and the Board agreed, that while RCW 90.48.020 does not specifically list "wetlands" as a water of the state, that the same statute includes "all other surface waters."  Thus, Ecology's rule specifically including "wetlands" as a water of the state was consistent with the statute, as "wetlands" are a surface water.

Finally, Kariah challenged Ecology's authority to regulate wetlands without adopting regulations to do so.  However, the Board ruled that in the context of a �401 certification, Ecology was basing its actions on two rule provisions:  (a) Chapter 173-225 WAC, which is the regulation covering �401 certifications, and (b) Chapter 173-201A WAC, which are the state water quality standards.  The Board also ruled against Kariah on its claim that wetland regulation was the exclusive province of local governments under the critical areas provisions of the Growth Management Act.

 

Sweet Grass Investments LLC v. Department of Ecology, PCHB No. 05-076, Summary Judgment (October 3, 2005).

Sweet Grass appealed the partial denial of a claim amendment.  Sweet Grass sought to amend a number of attributes of a water right claim filed by its predecessor in interest, including the source of surface water, instantaneous quantity, annual quantity, season of use, number of irrigated acres, point of diversion, place of use, purpose of use, and legal basis for the right.  Ecology approved the requested amendments for the instantaneous quantity, legal basis, and partially approved the amendment to source of surface water, but denied the other amendments.  The basis for the denials was that the requested amendments were not "ministerial in nature," as that term is used in RCW 90.14.065(3). 

The parties filed cross motions for summary judgment on the issue that the requested amendments were "ministerial in nature."  In deciding the case, the Board reviewed the Court of Appeals decision in Willowbrook Farms v. Ecology, 116 Wn.App. 392 (2003), and a number of previous PCHB decisions on claim amendments.  The Board overruled and clarified a number of holdings in prior PCHB claim amendment decisions.  Based on the Willowbrook Farms decision, the Board provided the following analysis for determining whether claim amendments are "ministerial in nature" under RCW 90.14.065(3):

First, if the claim amendment seeks to correct a clerical error such as transposed numbers, information provided in the wrong place on the claim form, or information not previously provided in a claim form that substantially meets the requirements of RCW 90.14.071, the amendment is most likely "ministerial in nature."  These types of amendments are ministerial because they correct errors that are obvious based solely on review of the claim form itself.  Secondly, if the claim amendment seeks to change attributes of the water right because of claimant error or inaccuracy, such claim amendment may be "ministerial in nature" if the information on the claim form was incorrect at the time the claim form was filed and the error was committed by the claimant not in the exercise of judgment or discretion, but in the act of filing out the water right claim form itself.

In either case, the burden is on the applicant to demonstrate that the claim amendment is ministerial in nature.  Consideration of the intent of the claimant, and placing the burden on the claim amendment applicant to show that claim form was contrary to the intent of claimant, is consistent with the conclusion in Willowbrook that making a deed, or later correcting that deed if an error was made, is a ministerial act.  In such an example, the burden is upon the party seeking deed reformation to show that a mistake was made.  Wilhelm v. Beyersdorf, 100 Wn.App 836, 843-844 (2000).

Based on this new rule for claim amendments that are ministerial in nature, the Board found that disputed facts existed on four of the five claim amendments sought by Sweet Grass.  The Board granted summary judgment to Ecology on the request to amend the purpose of use.  The Board relied on the fact that the original claimant had filed a different water right claim at the same time, that covered the different purpose of use Sweet Grass now sought to include. 

After the Board's summary judgment decision, the case settled.

 

City of Union Gap et al. v. Department of Ecology, PCHB No. 05-078, Summary Judgment (January 5, 2006).

The City of Union Gap and Ahtanum Ridge Business Park ("ARBP") appealed Ecology's denial of a water right change application.  Since the late 1990's, the City had been seeking new water supplies for the area of City jurisdiction, including newly annexed areas.  The City has been relying on temporary water right permits for a number of years.  ARBP purchased the Washington Beef stockyard in Union Gap in October 1999, including water rights authorizing the withdrawal of 2,110 acre-feet of water per year.  The last date of beneficial use of the Washington Beef water rights was May 27, 1995.  ARBP did not have any interest in retaining or using the Washington Beef water rights.  Prior to buying the stockyard, ARBP representatives met with the mayor of Union Gap to discuss Union Gap's interest in purchasing the water rights from ARBP.  The participants in the meeting shook hands on an agreement for the City to the buy the Washington Beef water rights from ARBP.  The parties did not enter into a written agreement, and there were no written records of the meetings.  The parties believe the meeting took place in August or September of 1999, about a month before ARBP closed on stockyard property. 

The City took the lead in preparing water right change applications, which were filed with Ecology in January 2001.  In March 2001, ARBP entered into a contract to sell the water rights to the City.  From 2002 to 2005, ARBP and the City attempted to work through issues associated with payment for the water right sale.

ARBP and the City had the transfer applications re-filed from Ecology to the Yakima County Water Conservancy Board.  The Conservancy Board approved the transfers in June 2004.  Ecology indicated that without more information, it would reverse the Conservancy Board decisions.  The Conservancy Board then withdrew its decision, allowed ARBP and the City to submit additional information, and issued new decisions approving the transfers in March 2005.  Ecology reversed the Conservancy Board decision on the basis that the water rights were not used for a period of more than five years, and did not qualify for an exception to relinquishment.  Specifically, the Conservancy Board found that ARBP and the City did not meet the requirements for either the municipal water supply purpose or determined future development exceptions to relinquishment.

The PCHB found that there was no dispute that the last date of beneficial use of the Washington Beef water rights was May 27, 1995, and that the water rights had not been used since that date.  Thus, the burden was on ARBP and the City to show than an exception to relinquishment applied as of May 27, 2000, the date marking five years of successive non-use. 

As to the determined future development exception, the PCHB analyzed whether either ARBP or the City had a determined future development as of May 27, 2000.  ARBP did not, as it had expressly stated that it had no interest in using the water rights in the future and sought only to sell them.   In 1999, Union Gap's Mayor agreed to buy the water rights from ARBP in a handshake agreement that was not documented or reduced to writing.  At the time of the handshake agreement, the City had not taken official action to approve the water right purchase, and ARBP had yet to acquire the water rights.  The PCHB applied these facts to prior cases on the determined future development exception.

In R.D. Merrill Company v. PCHB, the Washington Supreme Court concluded that the determined future development exception applied if the following requirements were met:

(1) A fixed determination� a firm definitive plan (2) of a future development which will take place within 15 years� encompassing the possibility of future development which may occur after the 5 years non-use period.  While the actual development need not occur within the five years non-use period, there must be fixed development plans within that period.

The court also describes the determined future development exception to relinquishment as requiring "conclusively or authoritatively fixed development plans" within five years of the last date of non-use."  137 Wn.2d 118, 140-43.

In 2004, the PCHB found that an option agreement to purchase a water right did not qualify for the determined future development exception to relinquishment until the option was exercised and a water right purchase and sale agreement completed.  Protect Our Water v. Department of Ecology, PCHB No. 03-102 (2004). 

Based on these cases, the PCHB concluded that the City of Union Gap did not qualify for the determined future development exception to relinquishment:  "In this case, the undocumented oral agreement made at a private meeting . . . is even less firm, definitive, and conclusively fixed than the option agreement found by this Board in Protect Our Water to be insufficient to establish a determined future development."

As the municipal supply purposes exception, the PCHB found that this exception did not apply because as of May 27, 2000, the Washington Beef water rights were not under the ownership or control of the City, and were not being used for municipal water supply purposes as that term is defined.

The PCHB's decision is on appeal.

 

II.      Shorelines Hearings Board

 

Morgan et al. v. Clark County et al., SHB No. 05-008, Friends of the East Fork et al. v. Clark County et al., SHB No. 05-009, Findings of Fact, Conclusions of Law, Order (January 6, 2006). 

This case was an appeal of a shorelines substantial development permit and conditional use permit for the proposed expansion of the Daybreak Gravel Mine on the East Fork of the Lewis River in Clark County by J.L. Storedahl & Sons, Inc. ("Storedahl").  The mining operations have occurred on the site since at least 1968, and the site has operated under a Washington Department of Natural Resources surface mining permit since 1971.  Storedahl acquired the land and operations in 1987.  Between 1987 and 1995, Storedahl mined on part of the site, but no active mining has occurred there since 1995.  Storedahl has used the site for sand and gravel processing.  In the mid-1990's, Storedahl began to consider plans to expand the mine and processing operations.  It proposed to expand mining to approximately 101 acres north of the existing ponds and processing area, at least 200 feet from the floodway and outside the channel migration zone and 100-year floodplain of the East Fork of the Lewis River.  In 1996, it began preparation of a Habitat Conservation Plan ("HCP") pursuant to the Endangered Species Act, which was completed in 2003.

Storedahl subsequently submitted an application for a shoreline substantial development permit/conditional use permit with Clark County.  This application was one of several permit applications submitted related to the proposed Daybreak Mine expansion.  The Clark County Hearing Examiner consolidated the applications for hearing, and issued an order conditionally approving the applications, including the shorelines permits.  The mitigation and monitoring provisions from the HCP were incorporated as conditions of the shoreline permit.  The County Commissioners approved the Examiner's final order with regard to the shorelines substantial development permit and shorelines conditional use permit.  Ecology approved the conditional use permit, and the permits were then appealed to the Shorelines Hearings Board.

Petitioners argued that the shoreline permit should not have been granted due to environmental impacts to the Lewis River and nearby properties, including river avulsion, water temperature, water quality, and water quantity.  The Petitioners also challenged whether a conditional use permit should have been required for the entire site.

A number of the claims were dismissed after the presentation of petitioners' case in chief.  Of the remaining issues, most of the testimony focused on risks of avulsion and water quality impacts.  Part of the HCP involved placing large amounts of fill material in previously excavated pits.  The fill was intended to prevent a river avulsion from occurring during high flow events.  The Board found that the placement of the fill made a channel avulsion less likely, and that it was not a basis to deny the shoreline permits.  While the site still has a risk of avulsion, the conditions on the project made the pits "avulsion ready," to minimize any damage to water quality and habitat in the event that an avulsion did occur.

Petitioners also provided testimony that the presence of the fill would disrupt the flow of groundwater to the Lewis River, as the fill acted like a large plug impeding subsurface flows.  The Board found that, while the presence of the fill plug would change the flow of groundwater, there was no evidence that such change in flow was detrimental to fish or a basis to not issue the shoreline permits.  The Board did, however, find that the soil testing relating to finding fill was insufficient and included conditions requiring increased testing of soil used for fill.

The case also involved preliminary motions on a number of procedural issues.  First, the Board concluded that petitioner's filing of the appeal with the Pollution Control Hearings Board, rather than the Shoreline Hearings Board, did not deprive the SHB of jurisdiction because the Board and all parties treated the case like an SHB appeal from the filing of the appeal.  Second, the Board ruled that a motion to dismiss for failure to properly serve an appeal is personal to party not served.  Thus, it denied Storedahl's appeal to dismiss based on the petitioner's failure to properly serve Clark County and Ecology.  Third, the Board denied petitioners Friends of the East Fork and Fish First's Motion to Rescind the shoreline permits, based on the fact that the shoreline permits were not final decisions capable of review.  While other land use approvals relating to the Daybreak Mine were not final and capable of review, the Board found that the shoreline permits were in fact, regardless of the decisions made by Clark County on other permits.

 

Wriston and Wahkiakum County v. Department of Ecology, SHB No. 05-005, Findings of Fact, Conclusions of Law, Order (September 28, 2005).

Wriston appealed Ecology's denial of a variance from the dock length maximum in the Wahkiakum County Shoreline Master Program.  The Wristons sought a variance from the 50-foot maximum in order to construct a dock that could be used for moorage of their recreational boat under the normal range of tidal conditions.  Wahkiakum County approved the variance application, as it had done for other dock length variance applications in the county in recent years.  Ecology denied the variance primarily on the basis that it did not meet the variance criteria in WAC 173-27-170(3)(a) that denial of the variance would preclude all reasonable use of the property.  Ecology also based its denial on cumulative impacts.  Ecology argued that, because the Wristons already had a house at the property and could use the shoreline for passive recreational uses and the launching of small water craft, the Wristons could not meet the "precludes all reasonable use" variance standard.  The Wristons argued that Ecology's interpretation of the variance standard was non-sensical, because it meant that no property owner who could access the shoreline for recreation could qualify for a variance. 

The Board analyzed the variance criteria at issue in light of differences between the standard for variances landward and waterward of the Ordinary High Water Mark, and based on the variance provision in the Shoreline Management Act.  The Board also reviewed the specific attributes of the Wriston property, including the fact that the dock would be located in a small inlet, that access to the shoreline already existed from an existing road, and that the dock would be located to further waterward than 32 existing pilings.

As to "precludes all reasonable use" variance criterion, the Board reviewed numerous prior decisions and concluded:

Ecology's literal interpretation of the phrase "denies all reasonable use" phrase in WAC 173-27-170(3)(a) is incorrect.  Ecology's literal interpretation of this phrase raises questions of consistency with the statutory variance criteria in RCW 90.58.100(5), the policies of the SMA in RCW 90.58.020, and prior Board and appellate decisions.  The common thread running through Buechel, Lattitude 47�, Snow, and Varhaug is that the issue of reasonable use depends in large part on whether the proposed use for which a variance is sought is water dependent.  In Buechel and Lattitude 47�, variances waterward of the OHWM were denied for uses that were not water dependent.  In Snow and Varhaug, the Board approved waterward of OHWM variances for water dependent uses (residential docks).  To the extent that previous Board decisions suggest that a literal interpretation of the "denies all reasonable use" phrase in WAC 173-27-170(3)(a) is appropriate for a water dependent use, those decisions are overruled.

The Board also reversed Ecology on the other bases for denial of the variance.  The Board found that the cumulative impacts identified by Ecology were speculative, that the dock was consistent with other uses in the area and would cause no adverse impacts to the shoreline environment.