161 Wash. 2d 415 | Wash. | 2007
Lead Opinion
¶1 In this consolidated appeal, we review two separate decisions by the Western Washington Growth Management Hearings Board (Board). Both decisions concern Skagit County’s efforts to comply with the critical areas provisions of the Growth Management Act (GMA). In the first decision, Swinomish Indian Tribal Community v. Skagit County, No. 02-2-0012c, 2003 GMHB LEXIS 73 (W. Wash. Growth Mgmt. Hr’gs Bd. (WWGMHB) Dec. 8, 2003) (hereinafter 2003 Compliance Order), the Board largely upheld Skagit County’s 2003 effort to comply with the GMA. Approval, however, was subject to two exceptions, “the enforcement of watercourse protection measures and the need for more specificity in [the county’s] monitoring program and adaptive management process.” Id. at *3. Although the Board’s 2003 Compliance Order
¶2 In 1990, the legislature adopted the GMA, chapter 36.70A RCW. One section of that act, RCW 36.70A.060(2), required local governments to enact development regulations protecting so called “critical areas” by September 1, 1991. “Critical areas” are defined as “(a) [w]etlands; (b) areas with a critical recharging effect on aquifers used for potable water; (c) fish and wildlife habitat conservation areas; (d) frequently flooded areas; and (e) geologically hazardous areas.” RCW 36.70A.030(5). The requirement to “protect” critical areas is a part of the GMA’s larger purpose of requiring comprehensive land use planning within the state of Washington. See RCW 36.70A.020(10) (providing that local governments will “[p]rotect the environment”); RCW 36.70A.010 (describing the legislature’s intent in adopting the GMA to provide for “comprehensive land use planning”).
¶3 The legislature created three regional boards to review compliance with the GMA by the cities and counties that are located within each board’s jurisdictional boundaries. See RCW 36.70A.250-.350. One of the boards, the Western Washington Growth Management Hearings Board, is responsible for reviewing Skagit County’s compliance with the GMA.
¶4 Since 1996, Skagit County has made several efforts to comply with the GMA’s critical areas mandate.
¶5 In 2003, following the Board’s 2002 finding of noncompliance, Skagit County adopted Ordinance 020030020, which contained a “no harm” standard for protecting an-adromous fish habitat in agricultural areas. The Swino-mish Indian Tribal Community (Tribe) and the Washington Environmental Council (WEC) challenged the ordinance’s “no harm” standard, alleging that it failed to protect critical areas, as required by RCW 36.70A.060(2). After reviewing the challenge, the Board upheld the ordinance, concluding that the county was “in compliance with the [GMA] except for the enforcement of watercourse protection measures and the need for more specificity in its monitoring program and adaptive management process.” 2003 Compliance Order, 2003 GMHB LEXIS 73, at *3.
¶6 The Tribe and the WEC each petitioned the Thurston County Superior Court to review the Board’s decision. The petitions were consolidated by the superior court. Thereafter, all three parties (Skagit County, the Tribe, and the WEC) requested, pursuant to the provisions of chapter 34.05 RCW, that the Board certify its decision for direct review by Division Two of the Court of Appeals. The Board agreed that the standard for direct review had been met
¶7 In 2004, while appellate review was pending, Skagit County adopted Ordinance 020040011. It responded to the Board’s directions regarding the need for enforcement of watercourse protection measures and greater specificity in its monitoring and adaptive management program. The Tribe and WEC argued to the Board that the 2004 ordinance did not bring the county into full compliance with the GMA. The Board agreed. See 2005 Compliance Order, 2005 GMHB LEXIS 2. The county then petitioned Division Two of the Court of Appeals to directly review the Board’s decision, alleging that the Board failed to give proper deference to its interpretation of adaptive management and that the Board used improper procedures in reaching its decision. The Court of Appeals accepted direct review and consolidated the appeal with the pending appeal of the 2003 Compliance Order. We subsequently accepted the Tribe’s motion to transfer the consolidated appeal from the Court of Appeals to this court. We now review the decisions of the Board that Skagit County’s 2003 ordinance, with two exceptions, complied with the GMA and its decision that the county’s 2004 ordinance did not fully comply with the GMA.
II. STANDARD OF REVIEW
¶8 The Board is charged with determining compliance with the GMA and, when necessary, invalidating noncomplying comprehensive plans and development regulations. King County v. Cent. Puget Sound Growth Mgmt. Hr’gs Bd., 142 Wn.2d 543, 552, 14 P.3d 133 (2000) (citing RCW 36.70A.280, .302). The Board “shall find compliance unless it determines that the action by the state agency, county, or city is clearly erroneous in view of the entire record before the board and in light of the goals and requirements of [the GMA].” RCW 36.70A.320(3). An action is “ ‘clearly erroneous’ ” if the Board is “ ‘left with the firm and definite conviction that a mistake has been commit
¶9 This court, in turn, reviews the Board’s decisions pursuant to the Administrative Procedure Act (APA), chapter 34.05 RCW. RCW 34.05.570(3). The Board’s legal conclusions are reviewed “de novo, giving substantial weight to the Board’s interpretation of the statute it administers.” Cent. Puget Sound Hr’gs Bd., 142 Wn.2d at 553. If the Board’s findings of fact are reviewed, the substantial evidence test is used. Id.
III. ANALYSIS
A. Background to the 2003 and 2005 Board Decisions
¶10 The GMA was enacted largely “ ‘in response to public concerns about rapid population growth and increasing development pressures in the state.’ ” Quadrant Corp. v. Cent. Puget Sound Growth Mgmt. Hr’gs Bd., 154 Wn.2d 224, 232, 110 P.3d 1132 (2005) (internal quotation marks omitted) (quoting Cent. Puget Sound Hr’gs Bd., 142 Wn.2d at 546). As we have already noted, one of the central requirements of the GMA is that counties and cities, which plan under it, must protect “critical areas.” RCW 36.70A-.060(2). But the GMA places additional, and sometimes competing, obligations on local governments. For example, it lists as “planning goals” to both “[m]aintain and enhance natural resource-based industries, including productive timber, agricultural, and fisheries industries” and “[e]ncour-age the conservation of . . . productive agricultural lands, and discourage incompatible uses.” RCW 36.70A.020(8). Lo
¶11 The lack of priority in the planning goals becomes especially problematic when local governments are faced with land that qualifies as both agricultural land and as a critical area (for example, a parcel of agricultural land that abuts a water source). Skagit County, in particular, had to confront this tension between maintaining agricultural land and protecting critical areas. This was necessary because the county contains approximately 115,000 acres of agricultural land that have been designated under the GMA as agricultural lands of long-term commercial significance. Furthermore, a significant portion of these lands are located in areas that, although historically part of the Skagit and Samish River deltas and/or floodplains, have been cleared, diked, and drained to make them suitable for agricultural production. Some of this activity occurred as long ago as 100 years. Thus, present day agricultural production in the area depends, in part, upon this network of well established drains and dikes.
¶12 At the same time, the State has identified the Skagit and Samish Rivers watershed as the “most significant watershed in Puget Sound” in terms of salmon recovery. Admin. R. (AR) at 4074. It is home to at least six species of salmon and two fish species that are listed under the endangered species act.
¶13 Despite the explicit lack of a prioritization in the planning goals section of the GMA, the legislature has provided some guidance for determining GMA priorities. Specifically, in 1995, the legislature amended the GMA to strengthen protection of critical areas:
In designating and protecting critical areas under this chapter, counties and cities shall include the best available science in developing policies and development regulations to protect the functions and values of critical areas. In addition, counties and cities shall give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fisheries.
RCW 36.70A.172(1) (emphasis added). The GMA was amended again in 1997 to provide that growth management hearings boards should “grant deference to counties and cities in how they plan for growth, consistent with the requirements and goals of this chapter” and that “[l]ocal comprehensive plans and development regulations require counties and cities to balance priorities and options for action in full consideration of local circumstances.” RCW 36.70A.3201. But these amendments add little in the way of guidance. For example, the requirements to be guided by the “best available science” (BAS) in developing critical areas regulations and to “give special consideration” to protecting anadromous fisheries arguably conflict with the legislature’s directive that growth management hearings boards defer to local balancing of “local circumstances,” if that local balancing is not in favor of critical areas. Id. It is with these numerous tensions in mind that we must decide whether Skagit County’s critical areas ordinance complies with the GMA.
1. The “No Harm” Standard
¶14 Riparian farmland in Skagit County qualifies as both “agricultural land” and “critical areas” under the GMA. See RCW 36.70A.030(2), (5). In an effort to “protect” both, consistent with what the GMA requires in RCW 36.70A.020(10), the county’s 2003 ordinance established a “no harm” standard that ongoing agricultural operators must meet. AR at 988 (Skagit County Ordinance 020030020, at 78) (hereinafter 2003 Ordinance). Under the 2003 Ordinance, farmers are to conduct ongoing agricultural activities “so as not to cause harm or degradation to the existing Functional Values” of critical areas. Id. In effect, the county’s no harm standard sets the “existing” condition of local critical areas as the baseline for measuring harm. Id. The county contended before the Board that the no harm standard protects critical areas in a manner consistent with the GMA. The Board largely agreed with the county.
¶15 At the core of the Board’s decision was its interpretation of the word “protect,” as it appears in RCW 36.70A.172(1). The Board held that the requirement under the GMA to “protect” critical areas is met when local governments prevent new harm to critical areas. See 2003 Compliance Order, 2003 GMHB LEXIS 73, at *7-9. Accordingly, it held that the county protects these areas by adopting the no harm standard because it does not allow existing conditions to further degrade. See id.
¶16 The Tribe asserts here, as it did before the Board, that where an area is already in a degraded condition, it is not being protected unless that condition is improved or enhanced.
¶17 The Board’s refusal to conflate “protect” and “enhance,” the Tribe asserts, “is based on a false premise — that ‘protect’ and ‘enhance’ are mutually exclusive.” Id. at 39. The Tribe argues that because the terms are not mutually exclusive, the Board cannot “exclude from the ‘protect’ mandate measures which both ‘protect’ and ‘enhance.’ ” Id. at 42.
¶18 In our effort to determine if the Board erred, we have endeavored to ascertain the meaning of the word “protect.” The legislature, unfortunately, has not defined “protect” within the GMA. We therefore accord the word its common meaning and, where necessary, consult a dictionary. See Quadrant Corp., 154 Wn.2d at 239 (citing Dahl-Smyth, Inc. v. City of Walla Walla, 148 Wn.2d 835, 842-43, 64 P.3d 15 (2003)). The Tribe cites Webster’s New World Dictionary of the American Language (College ed. 1966) in support of its contention that “ ‘protect’ ” means “ ‘to shield from injury, danger, or loss’ ” and that to protect “can result in [an object’s] enhancement.” Am. Br. of Swinomish Indian Tribal Cmty. at 39 (emphasis added) (quoting AR at 4562-63). The Tribe, however, fails to recognize that even under the definition it offers, “can” is used to describe an option of enhancement, rather than a requirement of enhancement, when defining “protect.”
¶19 That difference is significant. We say that because it illustrates that something can be protected without it being enhanced. For example, an individual charged with protecting his friend’s dilapidated automobile discharges that duty
¶20 The legislature has also recognized that “protect” has a different meaning than “enhance.” In several sections of the GMA, the legislature allows enhancement of natural conditions under the GMA without requiring enhancement. For example, RCW 36.70A.172(1) requires counties to “give special consideration to . . . protection measures necessary to preserve or enhance anadromous fisheries.” (Emphasis added.) This statute clearly gives counties a choice between preserving “or” enhancing. Furthermore, the requirement is to give “special consideration to” such measures, not necessarily to adopt them. See WAC 365-195-925(2) (a county must include “in the record” evidence of special consideration to comply with RCW 36.70A.172(1)). Another statute, RCW 36.70A.020(10), lists as a goal of the GMA to “enhance the state’s high quality of life, including air and water quality.” However, the GMA allows counties to decide how to achieve the goal of enhancing water quality without specifically requiring enhancement of a damaged fish habitat. In our judgment, water quality and fish habitat are related, but they are not the same. A duty to enhance the quality of water is not a duty to enhance fish habitat. A third example is RCW 36.70A.460. It recognizes that under chapter 77.55 RCW, fish habitat enhancement projects that meet certain criteria are entitled to a streamlined permitting process. Nothing in that chapter, however, requires a county to undertake such projects. See RCW 77.55.181.
¶21 As the foregoing illustrates, the legislature has not imposed a duty on local governments to enhance critical
2. Mandatory Buffers
¶22 We next consider whether, as the Tribe contends, the GMA requires the county to establish mandatory buffers along streams and rivers on the upland strip of land. Buffers are strips of land contiguous to a watercourse, usually containing indigenous shrubs and trees. They are generally not used for agricultural purposes. See, e.g., Am. Br. of Swinomish Indian Tribal Cmty. at 5-6. The Tribe argued to the Board that because a provision of the GMA, RCW 36.70A.172(1), requires the county to use BAS in developing protections for critical areas and because BAS supports requiring mandatory riparian buffers, then the GMA requires the county to establish such buffers. The Board held that BAS, and by extension the GMA, does not require the county to establish mandatory riparian buffers. Again, we agree with the Board.
¶23 In reaching this determination, we began by reviewing how the GMA instructs local governments to employ BAS. The legislature has expressly delegated to counties and cities the function of developing the specific means for protecting critical areas. See RCW 36.70A.3201. Under the GMA, counties and cities “ “have broad discretion in developing [development regulations] tailored to local circumstances.’ ” Cent. Puget Sound Hearings Bd., 142 Wn.2d at 561 (alteration in original) (quoting Diehl v. Mason County, 94 Wn. App. 645, 651, 972 P.2d 543 (1999)). Moreover, the GMA does not require the county to follow BAS; rather, it is required to “include” BAS in its record. RCW 36.70A.172(1). Thus, the
¶24 If the omission of mandatory buffers from the county’s critical areas ordinance is a departure from BAS, it is a justified departure of the kind that is tolerated by the GMA. As we have noted above, the GMA’s requirement to protect does not impose a corresponding requirement to enhance. That holding guides us here. A requirement to develop buffers would impose on farmers an obligation to enhance areas that were lawfully cleared in the past, either by replanting the areas or allowing the natural recovery of vegetation within them. Without a duty to enhance being imposed by the GMA, however, we cannot require farmers in Skagit County to replant or to allow the natural recovery of what was long ago plucked up. The county, therefore, need not impose a requirement that farmers establish riparian buffers.
C. The 2005 Board Decision
¶25 As we observed above, the Board did not fully approve the 2003 Ordinance. It withheld its approval of two parts of the ordinance: “the enforcement of watercourse protection measures and the need for more specificity in its monitoring program and adaptive management process.” 2003 Compliance Order, 2003 GMHB LEXIS 73, at *3. Furthermore, the Board ordered the county to address these issues in accord with RCW 36.70A.300(1). Consequently, as we have already noted, the county revised its critical areas ordinance in 2004 (Ordinance 020040011) (hereinafter 2004 Ordinance). The Tribe again challenged
1. Alleged Procedural Errors
f26 The county argues, first, that the Board committed procedural error by consulting an outside expert and consulting factual materials that were not a part of the record that was submitted to the Board. Specifically, it asserts that the Board erred in using a technical adviser, Dr. Oscar Soule,
¶27 The county claims, additionally, that the Board erred in using nonrecord materials to define the concept of “adaptive management.”
2. Alleged Substantive Errors
¶ 28 We next address the county’s substantive challenges to the Board’s 2005 decision. The Board determined that the county’s revised ordinance failed to bring its monitoring and adaptive management processes into compliance with the GMA. It concluded that the monitoring process provided for in the 2004 Ordinance lacked the necessary benchmarks for comparing the data it gathered. 2005 Compliance Order, 2005 GMHB LEXIS 2, at *25-26. The Board concluded, additionally, that even if the monitoring process was adequate in detecting degradation of critical areas, the ordinance did not have an effective adaptive management process that was capable of responding to the detected harm. Id. at *32-33.
¶29 The monitoring program set forth in the 2004 Ordinance consists of two components: a water quality monitoring program and a salmon habitat monitoring program. The county contends that both programs “describe in great detail the schedule for monitoring, methods for selecting sites, monitoring parameters and protocols (how and what will be measured), quality control procedures, and data assessment procedures.” Skagit County’s Opening Br. at 13. This contention overlooks the fact that the Board took issue with how the county proposed to use the data it collected. More specifically, the Board held that the county could not sufficiently analyze the data because its monitoring program lacked appropriate benchmarks to compare data as it was collected. See 2005 Compliance Order, 2005 GMHB LEXIS 2, at *25-26.
¶30 We agree with the Board that the county has not established appropriate benchmarks. In fact, the county is unable to produce a description of any such benchmarks, despite its statement that “the County’s program does
¶31 We are also unpersuaded by the county’s argument that in the absence of an adequate benchmark, it does the “next best thing” by proposing to monitor current conditions in an effort to develop a benchmark in the future. Skagit County’s Opening Br. at 56. No indication is given as to when this process will be complete. Instead, the county merely notes that it will take at least three years to complete the initial monitoring of current conditions before a benchmark is established. Id. At best, then, the county can provide full compliance with the GMA three years after it went before the Board and argued that it was compliant. We find no reason to reverse the Board’s holding that such an assurance by the county is insufficient.
¶33 In its 2005 Compliance Order, the Board did not approve the county’s adaptive management program.
IV. CONCLUSION
¶34 In sum, we affirm the Board’s 2003 and 2005 Compliance Orders.
C. Johnson, Madsen, Bridge, Chambers, and Fairhurst, JJ., concur.
See, e.g., Friends of Skagit County v. Skagit County, Nos. 96-2-0025 & 00-2-0033c, 2001 GMHB LEXIS 53 (WWGMHB Feb. 9, 2001); Friends of Skagit County v. Skagit County, Nos. 96-2-0025 & 00-2-0033c, 2000 GMHB LEXIS 323
Endangered and Threatened Wildlife and Plants, 64 Fed. Reg. 58,910 (Nov. 1, 1999) (Coastal-Puget Sound Bull Trout); Endangered and Threatened Species, 64 Fed. Reg. 14,308 (Mar. 24, 1999) (Puget Sound Chinook).
For purposes of simplicity, we discuss similar positions and arguments that are put forward separately by the Tribe and the WEC by referring only to the first
The dissent attempts to buttress its position that “protect” entails “enhance” by asserting that the automobile analogy is “unavailing.” Dissent at 448. It concludes, “[s]imply returning [the automobile] in the same condition does not demonstrate how the individual protected it; rather, it shows only that the individual returned it.” Id. at 449. The dissent, in our view, confuses the question of how an object is protected with the question of whether it was protected. Because this case turns upon what “protect” means, it is the latter question that is determinative. Asking how the object was protected is secondary, lb answer the relevant question of whether an object has been protected: If it is returned in the same condition it was given, surely no new harm has befallen it and it was protected. This is true by definition.
Dr. Soule is a retired professor of environmental studies at The Evergreen State College.
The concurrence/dissent cites various statutes and a regulation in support of its conclusion that “[improper procedures [i.e., reliance on Dr. Soule] are also grounds for reversal.” Concurrence/dissent at 442 (citing RCW 36.70A.290(4), .270(7); RCW 34.05.449(2), .452(3); WAC 242-02-540). None of the cited statutes or the regulation provides justification for reversing the Board’s decision. Furthermore, they do not override the clear authorization for ex parte consultation with experts that RCW 36.70A.172(2) and 34.05.455(1)(c) provide. For example, RCW 36.70A.270(7) directs the Board to comply with the APA and WAC provisions for using evidence in its decisions. Those provisions, including the two cited by Justice J.M. Johnson, WAC 242-02-540 and RCW 36.70A.290(4), provide the Board with the discretion to supplement the record with additional evidence. Additionally, RCW 34.05.449(2) provides for a response to introduced evidence only “[t]o the extent necessary” as determined by the Board. Finally, RCW 34.05.452(3) merely provides that “[a]ll testimony of parties and witnesses ... be made under oath.” Thus, if there is any tension between these provisions and the
The amount of nonrecord materials is very slight in comparison to the entirety of the administrative record. The materials in question consisted of four publications:
“(1) Hymanson, Kingma-Rymek, Fishbain, Zedler and Hansch, California Coastal Commission: ‘Procedure Guidance for Evaluating Wetland Mitigation Projects in California’s Coastal Zone’;
“(2) Use of Monitoring and Adaptive Management to Promote Regeneration in the Allegheny National Forest,’ Lois DeMarco, USFS [United States Forest Service] National Silvicultural Workshop, Kalispell, Montana;
“(3) Salafsky, Margoluis and Redford, ‘Adaptive Management: A Tool for Conservation Practitioners,’ World Wildlife Fund, Inc. (2001); and
“(4) The British Columbia Forest Practices Code.”
Skagit County’s Opening Br. at 17. A reference to any of these four documents occurs only on three pages of the Board’s 2005 order.
The concurrence/dissent asserts that we should reverse the Board’s 2005 decision because the Board failed to give the proper “deference” to the county’s “assurance [ ]” of future compliance under the “clearly erroneous” standard. Concurrence/dissent at 441. Without question, the “clearly erroneous” standard requires that the Board give deference to the county, but all standards of review require as much in the context of administrative action. The relevant question is the degree of deference to be granted under the “clearly erroneous” standard. The amount is neither unlimited nor does it approximate a rubber stamp. It requires the Board to give the county’s actions a “critical review” and is a “more intense standard of review” than the arbitrary and capricious standard. See, e.g., Cougar Mountain Assocs. v. King County, 111 Wn.2d 742, 749, 765 P.2d 264 (1988). And even the more deferential “arbitrary and capricious” standard must not be used as a “rubber stamp” of administrative actions. See Ocean Advocates v. U.S. Army Corps of Eng’rs, 361 F.3d 1108, 1118, 1119 (9th Cir. 2004).
The Board specifically held, “The question is what will work to protect fish habitat in the same environment where ongoing agriculture is well-functioning and being conserved. Adaptive management is a creative tool to explore possible solutions, but it requires rigor, commitment, and prompt change in response to indications of problems in order to ensure that the county’s less-than-precautionary protections of fish habitat in ongoing agricultural lands comply with RCW 36.70A.040, .060, and .172. The monitoring and adaptive management system ... still does not establish an overall protection strategy for fish and wildlife habitat in ongoing agricultural lands that complies with these provisions of the GMA.”AR at 1304-05.
Concurrence in Part
¶35 (concurring in part and dissenting in part) — I join the majority to affirm the Western Washington Growth Management Hearings Board (Board) 2003 order upholding Skagit County’s (County) comprehensive plan under the Growth Management Act (GMA), chapter 36.70A RCW. However, I write separately because I would reverse the inconsistent 2005 Board order that determined that the County’s adaptive management processes under the affirmed comprehensive plan failed to comply with the GMA.
¶36 The majority’s decision that the legislature did not intend “protection” to further mandate enhancement is a correct reading of the statute and properly deferential to the County’s plan as also required by the statute. In dissent, I assert the same deference should apply to the County’s adaptive management program. In addition, the 2005 Board decision was flawed by consultation with an ex parte technical adviser and improperly relied on nonrecord materials.
¶37 While I concur with the chief justice’s affirmation of the 2003 Board order and the county plan, I address the important legal defects in the Board’s 2005 order.
Growth Management Hearings Boards Have Limited Discretion
¶38 The GMA provides for the creation of three regional growth management hearings boards to resolve some plan
¶39 The legislature has expressly required each growth management hearings board “to grant deference to counties and cities in how they plan for growth, consistent with the requirements and goals of” the GMA. RCW 36.70A.3201. Growth management hearings boards are limited in jurisdiction, possessing no policy-making authority. See Viking Props., Inc. v. Holm, 155 Wn.2d 112, 129, 118 P.3d 322 (2005).
¶40 Under the GMA, the legislature requires that when a growth management hearings board considers challenges to the decisions of local government, it “shall find compliance unless it determines that the action by the state agency, county, or city is clearly erroneous in view of the entire record before the board and in light of the goals and requirements of this chapter.” RCW 36.70A.320(3) (emphasis added). Accordingly, “a board’s ruling that fails to apply this ‘more deferential standard of review’ to a county’s action is not entitled to deference from this court.” Quadrant Corp. v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 154 Wn.2d 224, 238, 110 P.3d 1132 (2005). As the
The County’s Adaptive Enforcement Mechanism Satisfies the GMA
¶41 The County’s program consists of two adaptive mechanisms: a water quality monitoring program (WQMP) and a salmon habitat monitoring program (SHMP). The WQMP measures water quality parameters and their importance to fish habitat. The methods and protocols are derived from guidelines created by state and federal agencies, including the United States Environmental Protection Agency (EPA), the Washington Department of Ecology (Ecology), and the United States Geological Survey. Admin. R. (AR) at 0109-10. The SHMP is based on EPA standards and was developed with the assistance of scientists from the EPA. See, e.g., AR at 0082-83, 0532-602, 0604-877, 0891-904, 0897-98.
¶42 Likewise, the County’s adaptive management program specifies statistical methods for reporting and analyzing data collected, requiring publication of an annual report and the raw data. See, e.g., AR at 0071, 0094, 0105-08. The program even includes a minimum three-year cycle legislative process for the County to consult with agencies and then consider proposals to amend a county ordinance (if the County decides that the desired protection level has not been achieved). AR at 0105-06. It is notable that the County’s three-year cycle is significantly shorter than the seven-year time period specified by the GMA. See RCW 36.70A.130(4)(b).
¶43 The majority argues that the County’s plan lacks evidence of sufficient benchmarks. Majority at 434. This is an inconsistent position, given the majority’s decision that
¶44 This court’s recent decision in Ferry County v. Concerned Friends, 155 Wn.2d 824, 123 P.3d 102 (2005), did not determine whether the best available science (BAS) requirement is procedural or substantive in character. I pointed out as much in my dissent. Id. at 855 (J.M. Johnson, J., dissenting). In my view, the BAS requirement is best understood as a procedural mandate requiring consideration of “best available science” by local government but continuing the deference to local decisions made after such consideration. As a procedural matter, the County’s determination in this matter clearly satisfied the BAS requirement. This conclusion is confirmed by the participation in and approval of the county plan by federal and state environmental agencies.
¶45 The majority asserts that the three-year window set aside for data collection is insufficient, precisely because the data has not yet been collected. Majority at 434-35. However, the County should not be penalized for adopting this three-year practice that is actually more protective than the GMA mandated seven-year review cycle. See RCW 36.70A.130(4)(b).
¶47 In sum, if there is a plausible argument that some other enforcement mechanism might further the goals of the GMA, such as revised benchmarks, the County is free to consider any such proposal.
¶48 Here, the County’s actions must be implemented by ordinances that utilize an open, deliberative process involving notice and public discussion. See RCW 36.70A.035; see also RCW 42.30.030 (“All meetings of the governing body of a public agency shall be open and public and all persons shall be permitted to attend any meeting of the governing body of a public agency . . . .”). This process protects the interests of all stakeholders by encouraging a fully devel
Defects of the Board’s 2005 Order
¶49 The Board’s 2005 order is the product of procedural defects that separately require reversal. The Board’s reliance upon nonrecord materials constitutes a denial of proper procedures. Likewise, its reliance upon a secret “expert” to support the 2005 order did not adhere to common law principles of notice and verification. I recognize that a governmental entity does not have actual due process rights, as those rights are properly reserved for private parties. See City of Mountlake Terrace v. Wilson, 15 Wn. App. 392, 394, 549 P.2d 497 (1976). However, the Board’s conduct in this matter violates the same core common law principles that support the due process doctrine: openness and fair play. The rationale for open and balanced proceedings is spelled out in the Administrative Procedure Act (APA), chapter 34.05 RCW, the GMA, and growth management hearings boards procedures. These sources of authority embody fundamental principles of fairness that entitle parties to notice and the opportunity to respond to materials used against them in Board proceedings and decisions. Improper procedures are also grounds for reversal. See RCW 36.70A.290(4); WAC 242-02-540; see also RCW 36.70A.270(7); RCW 34.05.449(2), .452(3).
¶50 First, this Board based its analysis and conclusion largely upon four nonrecord documents. None of those publications were presented to the County or were part of the record. The Board did not notify the County before or during the hearing that it intended to rely on those publications. Nor did the Board afford the County opportunity to respond to the facts and assertions upon which it ultimately based its decision.
¶51 The majority contends that these distinctions are not dispositive because the mere use of such materials is
¶52 RCW 36.70A.172(2) does authorize growth management hearings boards to retain scientific advice or experts to assist in reviewing petitions involving critical areas. The GMA does not, however, specify procedures for the Board to do so. Here, APA provisions govern the Board’s conduct except where they conflict with specific GMA provisions.
¶53 In sum, Dr. Soule’s conclusion that the nonrecord sources contradicting the county plan “represent sound science” does not equate to the GMA’s more stringent BAS standard. The Board is clearly trying to bootstrap the “sound science” used by Dr. Soule into the BAS standard, a category that is properly limited to the best of all available “sound science” and by definition is an exclusive, rather than inclusive, term. In view of the Board’s failure to engage in an open process, its reliance upon this nonrecord “sound science” also requires reversal. Equally important, these several improper bases for the Board’s second order, especially its reliance on extra record materials, hamper meaningful judicial review.
Conclusion
¶54 In accord with the majority, I agree to affirm the Board’s 2003 order upholding the County’s comprehensive plan. Thus, I concur. However, I would reverse the Board’s 2005 order concerning Skagit County’s adaptive management regulations. I would remand this case to the Board
Sanders, J., concurs with J.M. Johnson, J.
“[T]he growth management hearings boards do not have authority to make ‘public policy’ even within the limited scope of their jurisdictions, let alone to make statewide public policy.” Viking Props., Inc., 155 Wn.2d at 129. This opinion does not reach the broader constitutional question of whether these sui generis unelected boards, appointed by the governor, may overrule county legislators and micromanage land use plans for counties.
The parties involved in this litigation, as well as the agencies listed above, are encouraged to provide relevant scientific input to the Comity (as mandated by the GMA).
The four nonrecord publications did not even address the unique circumstances of Skagit County, and it seems unlikely that they were relevant to hearings to the Board. The studies did not address any geographic area inside Washington, but instead analyzed environmental conditions in California, Oregon, and British Columbia. See majority at 433 n.7. Even if the studies were held to be relevant, the County was deprived of any opportunity to rebut the issues addressed in the four nonrecord publications.
Moreover, none of the four nonrecord publications were admitted through a motion to supplement the record pursuant to WAC 242-02-540. The Board thereby failed to comply with APA requirements and its own rules for supplementing the record.
The Board did not qualify the “expert” as is normally required to ensure material testimony. See Wash. R. Evid. 702. Here, there was no adversarial process to determine the professor’s expertise or competency.
The County and the tribe had no chance to cross-examine Dr. Soule as his testimony was presented in a letter, not under oath. See Weyerhaeuser v. Pierce County, 124 Wn.2d 26, 33, 873 P.2d 498 (1994). Furthermore, the Board apparently failed to supply him the EPA protocols or any other materials upon which the County based its decision. AR at 1344. The Board apparently provided Dr. Soule only selected materials — all were exhibits presented by the Swinomish Indian Tribal Community. Id.
Dissenting Opinion
¶55
The majority affirms the Western Washington Growth Management Hearings Board’s (Board) finding that Skagit County’s “no harm” standard establishes an appropriate baseline for protecting critical areas within agricultural areas of long-term commercial significance. Under this standard, farmers must ensure that their agricultural practices do not cause further substantial harm to the present degraded conditions of the riparian fish and wildlife habitat. Because I read the Growth Management Act (GMA), chapter 36.70A RCW, as requiring enhancement under certain circumstances where existing conditions are degraded and cannot adequately support anadromous fisheries, I would hold the “no harm” standard fails to satisfy the GMA’s mandate to “adopt development regulations that protect critical areas.” RCW 36.70A.060(2). Thus, I respectfully dissent.
¶56 The legislature adopted the GMA after finding that “uncoordinated and unplanned growth, together with a lack of common goals expressing the public’s interest in the conservation and the wise use of our lands, pose a threat to the environment, sustainable economic development, and the health, safety, and high quality of life enjoyed by residents of this state.” RCW 36.70A.010. Among others, the legislature listed the following planning goals: “[m]ain-tain and enhance natural resource-based industries, including productive timber, agricultural, and fisheries industries,” “[e]ncourage the conservation of. . . productive agricultural lands,” “conserve fish and wildlife habitat,”
¶57 Pursuant to the GMA’s mandate to protect critical areas, Skagit County adopted an ordinance governing the protection of anadromous fish habitat within agricultural areas of long-term commercial significance. This ordinance includes minimal protective regulations and an adaptive management program aimed at protecting the existing functions and values of the fish and wildlife habitat. In particular, this ordinance requires “no evidence of significant degradation to the existing fish habitat characteristics of the watercourse” and mandates compliance with state water quality standards, total maximum daily load requirements, the state hydraulics code, and specified watercourse protection measures. Skagit County Ordinance 020030020(3)(a)(v), (i)-(iv) (codified at Skagit County Municipal Code 14.24.120(3)(a)(v), (i)-(iv)). In reviewing whether this ordinance complies with the GMA, the Board deemed that the combination of minimal protective regulations, namely the “no harm” standard, and the adaptive management program, which detects habitat deterioration, in theory, provides adequate protection for the critical areas. However, the Board found that Skagit County failed to establish benchmarks and implement triggers for corrective action, which are necessary for identifying deterioration and responding effectively with protective measures.
¶58 The majority affirms the Board’s decision, holding the “no harm” standard adequate if combined with a
¶59 In implementing this legislation, the Department of Community, Trade, and Economic Development (CTED) promulgated rules to explain the criteria for determining whether local jurisdictions gave adequate “special consideration” to conservation or protection measures under RCW 36.70A.172(1). In this regulation, CTED clarifies that conservation or protection measures “include measures that protect habitat important for all life stages of anadromous fish, including, but not limited to, spawning and incubation, juvenile rearing and adult residence, juvenile migration downstream to the sea, and adult migration upstream to spawning areas.” WAC 365-195-925(3). CTED further explains that local jurisdictions must consider “the best available science relevant to stream flows, water quality and temperature, spawning substrates, instream structural diversity, migratory access, estuary and nearshore marine habitat quality, and the maintenance of salmon prey species.” Id. These measures “can include the adoption of interim actions and long-term strategies to protect and enhance fisheries resources.” Id.
¶60 Nothing in the critical areas statute or its implementing regulations indicates that the legislature deemed the existing degraded conditions adequate to protect salmon habitat. To the contrary, the regulations demonstrate that preserving and enhancing fish and wildlife habitat to support salmon fisheries requires the implementation of complicated measures. Moreover, the legislature anticipated that protecting these critical areas may entail development regulations that change, modify, or stop exist
¶61 In addition to undermining the legislature’s intent to provide broad protection for fish and wildlife habitat, the majority’s holding relies on flawed reasoning. The majority observes that the legislature did not explicitly define “protect” in the G3VLA. After examining the dictionary, and the legislature’s use of the term “protect” in other statutory provisions, the majority reasons that “something can be protected without it being enhanced.” Majority at 428. Thus, according to the majority, enhancement is never a necessary component of protection. From this logic, the majority deduces that maintenance of the existing conditions always protects the fish and wildlife habitat, even where the conditions are presently degraded. Id. at 428-29.1 disagree. The fact that protection does not always require enhancement does not mean that protection never requires enhancement. Whether protection requires enhancement depends on the condition of the object to be protected. Where the conditions of the fish and wildlife habitat are degraded and thereby unable to support the anadromous fisheries, protection may require some level of enhancement.
¶ 62 The majority’s analogy to a dilapidated automobile is similarly unavailing. The majority explains that “an
¶63 Although the majority recognizes that protection may result in enhancement, it holds that enhancement is an option, never a requirement. This conclusion ignores the legislature’s intent to provide genuine protection for fish and wildlife habitat critical areas supporting anadromous fisheries. Rather than assuming that existing conditions provide adequate protection, I would hold that the conditions of the salmon habitat dictate whether the local jurisdiction should employ preservation or enhancement measures. While I agree with the majority’s ultimate conclusion that Skagit County failed to establish baselines and imple-
After modification, further reconsideration denied April 4, 2008.
The majority contends that my approach “confuses the question of how an object is protected with the question of whether it was protected.” Majority at 429 n.4. However, in order to determine whether Skagit County’s ordinance adequately protected the riparian fish and wildlife habitat under RCW 36.70A-.060(2), we must first establish what procedures are necessary — i.e., how — to protect the critical areas. After that initial inquiry, we then examine whether Skagit County’s protection measures satisfied the “protect” requirement.