387 P.3d 670
Wash.2017Background
- Two adjacent Grays Harbor terminals (Westway and Imperium) sought shoreline substantial development permits to expand storage and transfer of crude oil and biofuels, adding dozens of tanks, expanded rail spurs, piping and vessel-loading infrastructure.
- Combined expansions would dramatically increase train (≈973 transits/year) and vessel traffic (≈520 transits/year), raising spill and environmental-risk concerns in sensitive coastal and estuarine habitats.
- DOE and the city of Hoquiam issued mitigated determinations of nonsignificance and granted SSDPs; petitioners (Quinault Indian Nation and environmental groups) appealed, arguing SEPA and ORMA were not properly applied.
- The Shorelines Hearings Board found SEPA violations (failure to consider cumulative impacts) but held ORMA inapplicable based on DOE regulations; the Court of Appeals affirmed on the ground the projects were not “ocean uses” or “transportation” under WAC 173-26-360.
- The Washington Supreme Court reversed, holding ORMA (RCW 43.143.030) applies and that the projects qualify as ocean uses, transportation, and coastal uses under DOE rules; the case was remanded for ORMA review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does RCW 43.143.030 (ORMA) apply to the terminal expansions? | ORMA covers uses/activities needing permits that may adversely affect ocean/coastal resources; expansions trigger ORMA. | ORMA applies only to activities literally "in" coastal waters (offshore drilling/extraction); shore-based transfer/storage not covered. | ORMA applies; statute’s plain language and purpose cover shore-based facilities that transfer nonrenewable resources to/from coastal waters. |
| Do the projects constitute "ocean uses" under WAC 173-26-360(3)? | Terminals are developments involving nonrenewable resources occurring on coastal waters and include associated upland/offshore facilities; thus ocean uses. | Projects are primarily land-based and not "on" coastal waters, so not ocean uses. | Projects qualify as "ocean uses"—they abut/overhang waters and serve to transfer fuels to vessels; DOE’s narrow reading is rejected. |
| Do the projects qualify as "transportation" under WAC 173-26-360(12)? | Loading petroleum onto ocean vessels and related shipping is transportation that originates or concludes in Washington’s coastal waters. | Because projects allegedly are not ocean uses, they cannot be "transportation" under the WAC definition. | Projects are transportation: they facilitate shipping of nonrenewable resources via water (and rail/truck), satisfying the WAC definition. |
| Do the projects qualify as "coastal uses" under WAC 173-26-360(6)? | Terminals located on/adjacent to the coast plainly are coastal uses and thus subject to ORMA review. | (Not argued below.) | Projects are "coastal uses"—plain meaning of "coastal" covers land immediately abutting navigable waters; ORMA review required. |
Key Cases Cited
- Bostain v. Food Express, Inc., 159 Wn.2d 700 (summary judgment standard)
- Michak v. Transnation Title Ins. Co., 148 Wn.2d 788 (summary judgment de novo review)
- Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1 (statutory interpretation principles)
- Kucera v. Dep’t of Transp., 140 Wn.2d 200 (environmental statutes construed broadly)
- Leschi Improvement Council v. Wash. State Highway Comm’n, 84 Wn.2d 271 (environmental review scope)
- Hama Hama Co. v. Shorelines Hr’gs Bd., 85 Wn.2d 441 (agency rules can fill statutory gaps)
- Port of Seattle v. Pollution Control Hr’gs Bd., 151 Wn.2d 568 (deference and limits to agency interpretation)
- Cannon v. Dep’t of Licensing, 147 Wn.2d 41 (interpreting administrative rules)
- Kitsap County v. Allstate Ins. Co., 136 Wn.2d 567 (use of dictionary for undefined terms)
- Alverado v. Wash. Pub. Power Supply Sys., 111 Wn.2d 424 (court may consider unraised issues when necessary)