City Of Puyallup, V Pierce County,et Al ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
April 3, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
CITY OF PUYALLUP, a Washington No. 51501-6-II
municipal corporation,
Appellant,
v.
PIERCE COUNTY, a Washington PUBLISHED OPINION
Governmental Unit; KNUTSTON FARMS,
INC. and RUNNING BEAR
DEVELOPMENT PARTNERS, LLC,
Respondents.
JOHANSON, J.P.T.* — The City of Puyallup appeals a superior court’s summary judgment
dismissal of its complaint in this land use action. The superior court granted the Respondents’1
motion to dismiss, ruling that the City did not have jurisdiction to assume State Environmental
Policy Act (SEPA), ch. 43.21C RCW, lead agency status under WAC 197-11-948. The City argues
that (1) it is an “agency with jurisdiction” under WAC 197-11-948 and (2) it may assume lead
agency status following the issuance of a mitigated determination of nonsignificance (MDNS).
*
Judge Jill M. Johanson is serving as a judge pro tempore for the Court of Appeals, pursuant to
RCW 2.06.150.
1
We collectively refer to Pierce County; Knutson Farms, Inc.; and Running Bear Development
Partners, LLC as Respondents.
No. 51501-6-II
The City also asserts that the superior court erred in considering a declaration that contained legal
opinions and asks us not to do so.
We hold that under the plain meaning of the applicable regulations, (1) the City is an
“agency with jurisdiction” that can assume lead agency status under WAC 197-11-948 and (2) as
an “agency with jurisdiction” it may assume lead agency status following the issuance of an
MDNS. In reaching our decision, we do not consider legal opinions contained in a declaration.
Accordingly, we reverse.
FACTS
I. KNUTSON PROJECT
On November 26, 2014, Knutson Farms Inc. and Running Bear Development Partners LLC
(collectively Applicants) applied to Pierce County for approval to develop a warehouse,
distribution, and freight movement complex in what is farmland in unincorporated Pierce County.
The Knutson Farms Industrial Park (hereinafter Knutson project) is a 162-acre site that is
approximately 2.6 million square feet and includes construction of seven warehouses, as well as
parking lots and ancillary facilities.
The property borders the City’s limits and is adjacent to the Puyallup River. No portion of
the site is in the City limits, but the site is within the City’s Growth Management Urban Growth
Area. Clerk’s Papers (CP) at 582 (Declaration of City Development Services Director) (“the
project site will by law ultimately become part of the City”). The Knutson project site is within
the City’s sewer area, and a portion of the site is in the City’s water service area.
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No. 51501-6-II
The Knutson project will require approximately 5,600 more vehicles on the roads each
weekday. The SEPA environmental checklist2 for the project states that “[n]ew on-site private
roads will be constructed as part of the development as well as roadway improvements along 5th
Avenue S.E., 80th Street East and the portion of 134th Avenue East which will not to [sic] be
vacated.” CP at 144. These are city roads. The SEPA checklist also lists that “Sewer and Water
Utility Permits by City of Puyallup and Valley Water Districts” are “anticipated for this project.”
CP at 131.
Pierce County issued notices describing the project and received comments from many
parties with concerns that the project was too close to the Puyallup River and in a flood prone area.
These parties included the Washington State Department of Fish and Wildlife, the Muckleshoot
and Puyallup tribes, and the County’s Public Works and Surface Water Management Departments.
The City and the City of Sumner shared these concerns as well as additional concerns that the
project would generate increased traffic.3
On June 22, 2016, the City offered to serve as a co-lead agency under WAC 197-11-944.4
The County’s Planning Director declined the request for co-lead, but said, “[T]he review process
for this project will be robust and will provide ample opportunities for other jurisdictions and the
2
“Agencies shall use the environmental checklist substantially in the form found in WAC 197-11-
960 to assist in making threshold determinations for proposals.” WAC 197-11-315(1).
3
In September 2016, in response to comments, the Applicants reduced the project from a 187-acre
site to a 162-acre site and from over 3 million square feet to approximately 2.6 million square feet.
The Applicants also moved the project farther away from the Puyallup River.
4
“Two or more agencies may by agreement share or divide the responsibilities of lead agency
through any arrangement agreed upon.” WAC 197-11-944.
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No. 51501-6-II
public to comment.” CP at 253. The City cautioned that it would, if necessary, assume SEPA lead
agency status under WAC 197-11-948.
As required by the Pierce County Code and the County’s environmental review under
SEPA, the Applicants obtained and submitted professionally prepared studies analyzing the
potential impacts and mitigation measures including a traffic impact analysis; a critical areas
assessment report; flood surveys and studies including a flood boundary delineation survey,
conceptual flood plain compensatory storage plan, compensatory flood plain volume table, and
flood plain cross sections; a preliminary storm drainage report; and a geotechnical engineering
report.
II. MITIGATED DETERMINATION OF NONSIGNIFICANCE
On April 26, 2017, the County issued an MDNS. The MDNS stated that it was “issued
under WAC 197-11-340(2),” CP at 280, and that the County “has determined that the proposal
will not have a probable significant impact on the environment, and an Environmental Impact
Statement (EIS) will not be required under RCW 43.21C.030(2)(c), only if the following
conditions are met.” CP at 278 (alteration in original).
The conditions relating to city roadwork state,
 If not already constructed, the applicant will design and construct 5th
Avenue SE to City of Puyallup roadway standards between Shaw Road East
and 33rd Street SE prior to final building inspection on the first building in
the Knutson Farms Short Plat.
 The applicant will design and construct roadway improvements to 33rd
Street SE (134th Avenue East) south of 5th Avenue SE to 80th Street East to
City of Puyallup road standards prior to final building inspection on the
first building in the Knutson Farms Short Plat.
 If not already constructed, the applicant will design and construct roadway
improvements to 134th Avenue East north of 5th Avenue SE within the
Puyallup City limits. The applicant will design and construct the necessary
road improvements to gain access to Shaw Road East, as well as the full
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No. 51501-6-II
street improvements along 134th Avenue East north of 5th Avenue SE
consisting of 32 feet of pavement width (two 12-foot lanes with 4-foot
paved shoulders), curb/gutter, and 6-foot wide sidewalks prior to the final
building inspection on the first building.
 The applicant will design and construct a traffic signal at the Shaw Road
East/5th Avenue SE intersection prior to occupancy of the first building.
CP at 155, 279 (emphasis added).5
III. NOTICE OF ASSUMPTION OF LEAD AGENCY STATUS
On May 10, the City issued a “Notice of Assumption of Lead Agency Status” “[p]ursuant
to WAC 197-11-948 and 985.” CP at 186. The same day, the City issued a “Determination of
Significance (DS) and a Request for Comments on Scope of EIS.”
On May 16, the county executive responded to the City’s actions and said that the “County
clearly has jurisdiction and will not recognize the City’s extrajudicial action.” CP at 193, 289. On
May 22, the County issued a “Written Order” to approve the application for the project.
IV. LAWSUIT PROCEDURAL BACKGROUND
The Respondents appealed the City’s assumption of lead agency status and the City’s
notice of its DS to the Puyallup Hearing Examiner. The City appealed the County’s MDNS to the
Pierce County Hearing Examiner. These appeals were stayed pending resolution of the City’s
lawsuit filed in superior court discussed below.
On May 25, the City filed a complaint and petition in superior court against the
Respondents to resolve the jurisdictional dispute. The parties filed cross motions for summary
judgment regarding the validity of the City’s SEPA lead agency assumption. Respondents
5
Additional conditions include payment of impact fees to Puyallup and the City of Sumner,
restricting traffic to certain corridors, and the creation of an additional traffic impact study if land
use types and sizes change.
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No. 51501-6-II
supported their summary judgment motion, in part, with a declaration from Richard Settle, an
attorney. The City objected to the Settle declaration and asked the superior court not to consider
it.
After hearing oral argument on the motions, the superior court denied the City’s summary
judgment motion and granted the Respondents’ motion. The superior court determined that under
WAC 197-11-948, the City was not authorized to assume lead agency status over the proposal.
Thus, it ruled that the City was not authorized to issue the notice of assumption of lead agency
status and the DS. The superior court said that it considered the Settle declaration in reaching its
decision. The City moved for reconsideration, which the superior court denied. The City appeals.
ANALYSIS
I. SEPA FRAMEWORK
The legislature enacted SEPA in 1971 to “‘promote the policy of fully informed decision
making by government bodies when undertaking major actions significantly affecting the quality
of the environment.’” Moss v. City of Bellingham, 109 Wash. App. 6, 14, 31 P.3d 703 (2001)
(internal quotation marks omitted) (quoting Norway Hill Pres. & Prot. Ass’n v. King County
Council, 87 Wash. 2d 267, 272, 552 P.2d 674 (1976)). SEPA lays out procedures for review of
environmental impacts by a lead agency. WAC 197-11-050. For private projects that require
licenses from more than one agency where one of the agencies is a county or city, “the lead agency
shall be that county/city within whose jurisdiction is located the greatest portion of the proposed
project area, as measured in square feet.” WAC 197-11-932. The lead agency must make a
“threshold determination” (RCW 43.21C.033(1)) and determine if a proposal “has any probable
significant adverse environmental impacts.” WAC 197-11-330(5), -310. An impact is
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“significant” if there is “a reasonable likelihood of more than a moderate adverse impact on
environmental quality.” WAC 197-11-794(1).
The lead agency conducts a preliminary investigation in order to make a threshold
determination, which includes reviewing an environmental checklist that provides information
about the proposal. WAC 197-11-315, -960. If the responsible official6 of the lead agency
determines that the proposal “may have a probable significant adverse environmental impact,”
then the lead agency will issue a threshold “determination of significance (DS).” WAC 197-11-
360(1). A DS requires the preparation of an EIS. WAC 197-11-980. An EIS provides an impartial
discussion of environmental impacts and alternatives to a proposal and informs decision makers
and the public. WAC 197-11-400. The EIS process allows “government agencies and interested
citizens to review and comment on proposed government actions, including government approval
of private projects and their environmental effects.” WAC 197-11-400(4).
If the responsible official concludes that the proposal will not have a probable significant
adverse environmental impact, then the lead agency will issue a “determination of nonsignificance
(DNS).” WAC 197-11-340(1). A DNS does not require an EIS. WAC 197-11-330; WAC 197-
11-970.
Under WAC 197-11-350, the lead agency may impose mitigation conditions on an
applicant’s proposal to reduce impacts. A DNS with mitigated conditions is called an MDNS.
WAC 197-11-350, -766. A formal EIS is not required with an MDNS. Anderson v. Pierce County,
6
“‘Responsible official’ means that officer or officers, committee, department, or section of the
lead agency designated by agency SEPA procedures to undertake its procedural responsibilities as
lead agency.” WAC 197-11-788.
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No. 51501-6-II
86 Wash. App. 290, 301, 936 P.2d 432 (1997) (“With [an] MDNS, promulgation of a formal EIS is
not required, although . . . environmental studies and analysis may be quite comprehensive.”); see
WAC 197-11-350.
After a lead agency has issued a DNS, an “agency with jurisdiction” over the proposal or
part of the proposal may assume lead agency status under WAC 197-11-948 and make its own
threshold determination. See also WAC 197-11-600(3)(a) (an agency “dissatisfied with the DNS
. . . may assume lead agency status” under WAC 197-11-948). An “agency with jurisdiction” is
“an agency with authority to approve, veto, or finance all or part of a nonexempt proposal (or part
of a proposal).” WAC 197-11-714(3). There can be more than one “agency with jurisdiction”
over a proposal. See WAC 197-11-340(2)(a)(i), -942, -948.
II. STANDARD OF REVIEW
We review a superior court’s grant or denial of summary judgment de novo. Columbia
Riverkeeper v. Port of Vancouver USA, 188 Wash. 2d 80, 90, 392 P.3d 1025 (2017). When reviewing
an order granting summary judgment, we view the facts in the light most favorable to the
nonmoving party. Columbia Riverkeeper, 188 Wash. 2d at 90. “‘Summary judgment is proper when
there is no genuine issue of material fact and the moving party is entitled to judgment as a matter
of law.’” Columbia Riverkeeper, 188 Wash. 2d at 90 (quoting Save Our Scenic Area v. Skamania
County, 183 Wash. 2d 455, 463, 352 P.3d 177 (2015)).
We also review questions of law including statutory and regulatory interpretation de novo.
Columbia Riverkeeper, 188 Wash. 2d at 90. When interpreting administrative regulations, we use
rules of statutory construction. Columbia Riverkeeper, 188 Wash. 2d at 90. Our objective is to
determine and give effect to legislative intent. Columbia Riverkeeper, 188 Wash. 2d at 91. If the
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statute is plain on its face, we give effect to the plain meaning “as a pronouncement of legislative
intent.” Columbia Riverkeeper, 188 Wash. 2d at 91. In order to determine a statute’s plain meaning,
we may look to the “‘context of the entire act as well as any related statutes which disclose
legislative intent about the provision in question.’” Columbia Riverkeeper, 188 Wash. 2d at 91
(internal quotation marks omitted) (quoting Jametsky v. Olsen, 179 Wash. 2d 756, 762, 317 P.3d
1003 (2014)). A statute that is subject to more than one interpretation is ambiguous and we may
look to statutory construction, legislative history, and case law to determine the legislative intent.
Columbia Riverkeeper, 188 Wash. 2d at 91.
III. SETTLE DECLARATION
As a threshold issue, the City argues that the superior court erred by considering Settle’s
declaration because it is a legal opinion. The City asks that we disregard the entire declaration on
review. Respondents argue that Settle’s declaration is not a legal conclusion but that it instead
provides the court with the historical implementation of the SEPA rules. Respondents also argue
that the superior court’s consideration of the declaration is not grounds for reversal because the
superior court never reached the issue of whether an MDNS is the same as a DNS under WAC
197-11-948. To the extent that the Settle declaration contains legal opinion, we do not consider it.
A. PRINCIPLES OF LAW
When ruling on a summary judgment motion, a superior court may not consider
inadmissible evidence. Ebel v. Fairwood Park II Homeowners’ Ass’n, 136 Wash. App. 787, 790,
150 P.3d 1163 (2007). Declarations “shall be made on personal knowledge” and “shall set forth
such facts as would be admissible in evidence.” CR 56(e). “Experts may not offer opinions of
law in the guise of expert testimony.” Stenger v. State, 104 Wash. App. 393, 407, 16 P.3d 655
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No. 51501-6-II
(2001). “Courts will not consider legal conclusions in a motion for summary judgment.” Ebel,
136 Wash. App. at 791.
B. SETTLE’S LEGAL OPINION
Settle is a practicing attorney and professor who has dedicated much of his career working
with SEPA, and he has authored two treatises on the subject. In paragraphs 22 to 25 of his
declaration, Settle gives a legal opinion on one of the ultimate legal issues—whether the
assumption of lead agency status can occur after the issuance of an MDNS. To the extent Settle’s
declaration contains legal opinions, we disregard it.
IV. AGENCY WITH JURISDICTION
The City argues that it is an “agency with jurisdiction” over the Knutson proposal under
WAC 197-11-948 based on the plain meaning of the regulations because “it has authority to
approve, veto, or finance parts of the proposal.”7 Br. of Appellant at 17. Specifically, the City
argues that (1) it has approval authority over the proposal’s roadwork and (2) it has approval
authority over the proposal’s water and sewer services.
The Respondents argue that the City is not an “agency with jurisdiction” over the Knutson
proposal under WAC 197-11-948. They contend that the roadwork is not part of the proposal and
that permitting authority from imposed environmental mitigation does not make the City an
“agency with jurisdiction.” They also argue that “[t]he status of ‘agency with jurisdiction’ is not
7
The City assigns error to the superior court’s denial of the City’s motion for reconsideration.
However, because this assignment of error is not supported by argument or authority, we do not
consider it. Bercier v. Kiga, 127 Wash. App. 809, 824, 103 P.3d 232 (2004).
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conferred upon services providers” providing water and sewer and that these services are
“proprietary” rather than “regulatory.” Joint Br. of Resp’ts at 29.
We agree with the City that based on the plain meaning of the regulation, the City is an
“agency with jurisdiction” under WAC 197-11-948 because it has approval authority over the
roadwork. Additionally, we agree that the City is an “agency with jurisdiction” under WAC 197-
11-948 because it has approval authority over the water and sewer services.
A. PRINCIPLES OF LAW
WAC 197-11-948(1) provides, “An agency with jurisdiction over a proposal, upon review
of a DNS (WAC 197-11-340) may transmit to the initial lead agency a completed “Notice of
assumption of lead agency status.” SEPA regulations define an “agency with jurisdiction” as
an agency[8] with authority to approve, veto, or finance all or part of a nonexempt
proposal (or part of a proposal). The term does not include an agency authorized
to adopt rules or standards of general applicability that could apply to a proposal,
when no license[9] or approval is required from the agency for the specific proposal.
The term also does not include a local, state, or federal agency involved in
approving a grant or loan, that serves only as a conduit between the primary
administering agency and the recipient of the grant or loan. Federal agencies with
jurisdiction are those from which a license or funding is sought or required.
8
“Agency” is defined as “any state or local governmental body, board, commission, department,
or officer authorized to make law, hear contested cases, or otherwise take the actions stated in
WAC 197-11-704, except the judiciary and state legislature. An agency is any state agency (WAC
197-11-796) or local agency (WAC 197-11-762).” WAC 197-11-714(1).
9
WAC 197-11-760 defines “license” as
any form of written permission given to any person, organization, or agency to
engage in any activity, as required by law or agency rule. A license includes all or
part of an agency permit, certificate, approval, registration, charter, or plat
approvals or rezones to facilitate a particular proposal. The term does not include
a license required solely for revenue purposes.
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WAC 197-11-714(3) (emphasis added); see also Bellevue Farm Owners Ass’n v. Shorelines Hr’gs
Bd., 100 Wash. App. 341, 352 n.26, 997 P.2d 380 (2000) (citing WAC 197-11-714(3) and stating
that “[a]n agency has jurisdiction if it must issue permits or approvals for the project”).
A proposal is “a proposed action” and “includes both actions and regulatory decisions of
agencies as well as any actions proposed by applicants.” WAC 197-11-784 (emphasis added).
A proposal exists at that stage in the development of an action when an agency is
presented with an application, or has a goal and is actively preparing to make a
decision on one or more alternative means of accomplishing that goal, and the
environmental effects can be meaningfully evaluated.
WAC 197-11-784.
1. CITY’S APPROVAL AUTHORITY OVER ROADWORK
a. MDNS AND SEPA CHECKLIST – ROADWORK
The City argues that based on the plain language of the regulations, it is an “agency with
jurisdiction” over the Knutson proposal because it has authority to “approve . . . parts of the
proposal” that require road improvements and construction. Br. of Appellant at 17; see WAC 197-
11-714(3), -948. The City argues that these road improvements and construction meet the
definition of a proposal, which includes “both actions and regulatory decisions of agencies as well
as any actions proposed by applicants.” WAC 197-11-784. Respondents argue that the road
improvements and construction are not part of the proposed Knutson project because they are
imposed mitigation conditions and because the road construction will inevitably occur anyway.
Therefore, the Respondents assert that the City is not an “agency with jurisdiction.” We agree
with the City that it is an “agency with jurisdiction” because it has approval authority over the road
improvements and construction.
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The Knutson proposal is dependent on altering and constructing city roads, intersections,
and sidewalks. This is reflected in the County’s MDNS.
The MDNS is conditioned on the design and construction of a new city road, new city road
improvements, and a new city traffic signal. For example, one condition in the MDNS for the
Knutson proposal states, “If not already constructed, the applicant will design and construct 5th
Avenue SE to City of Puyallup roadway standards between Shaw Road East and 33rd Street SE.”
CP at 155. The City argues that it must issue permits or approvals for the new road construction
and improvements under the Puyallup Municipal Code (PMC), and therefore it is an “agency with
jurisdiction” over part of the proposal based on the plain meaning of the regulations. See Bellevue
Farm Owners Ass’n, 100 Wash. App. at 352 n.26 (citing WAC 197-11-714(3) and stating that “[a]n
agency has jurisdiction if it must issue permits or approvals for the project”).
The PMC supports the City’s argument because it requires a “person, firm, corporation or
other legal entity” to obtain a written permit from the city engineer before altering, repairing,
removing, or constructing any roadwork within the city limits. PMC 11.04.010(1); see also PMC
11.16.010-.020 (provisions for use of city curbs or sidewalks and permits for specified activities);
ch. 21.14 PMC (provisions for clearing, filling, and grading for street construction).
The Respondents agree that “City roads will be used for access to the Knutson Farms
property.” Joint Br. of Resp’ts at 25. They argue, however, that the road improvements are urban
services utilized by the users of the project and that these are conditions in the MDNS to “mitigate
the proposal’s traffic impacts” but they are not part of the proposal itself. Joint Br. of Resp’ts at
25. Respondents contend that an “agency with jurisdiction” does not include agencies merely
impacted by a proposal.
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The City responds by asserting that the regulations broadly define a “proposal” to include
“both actions and regulatory decisions of agencies as well as any actions proposed by applicants.”10
WAC 197-11-784. Additionally, the City argues that this roadwork is part of the proposal and are
not just “conditions in the [MDNS]” because the Applicants submitted changes to and construction
of the streets as part of the proposal before the County issued the MDNS. Reply Br. of Appellant
at 7. The City notes that the initial SEPA checklist and transportation impact required alteration
and construction of roads as part of the development plan. Additionally, the City argues that the
conditions attached to the MDNS are proposals because they are “‘a proposed action . . .
includ[ing] . . . regulatory decisions of agencies.’” Reply Br. of Appellant at 6 (quoting WAC
197-11-784).
As with statutory interpretation, when a regulation is clear and unambiguous on its face,
we give effect to that plain meaning. Overlake Hosp. Ass’n. v. Dep’t of Health, 170 Wash. 2d 43,
52, 239 P.3d 1095 (2010). “In ascertaining a regulation’s plain meaning, we also consider the
context in which the regulation appears, related regulations and statutes, and the statutory scheme
of which the regulation is a part.” Bravern Residential II, LLC v. Dep’t of Revenue, 183 Wash. App.
769, 777, 334 P.3d 1182 (2014).
10
Although the parties do not argue this, WAC 197-11-350 (discussing the procedure for an
MDNS) provides that “[t]he purpose of this section is to allow clarifications or changes to a
proposal.” (Emphasis added.) The regulation also states that “if the lead agency specifies
mitigation measures on an applicant’s proposal that would allow it to issue a DNS, and the
proposal is clarified, changed, or conditioned to include those measures, the lead agency shall
issue a DNS.” WAC 197-11-350 (emphasis added). This supports our conclusion that mitigation
measures are part of the proposal.
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We can decide this issue based on the plain meaning of WAC 197-11-948 as well as related
regulations because the City has “authority to approve, veto, or finance all or part of [the]
proposal”—specifically because the City has approval authority over the changes to and
construction of the roads required for the project. WAC 197-11-714(3). The roads are “part of
[the] proposal.” WAC 197-11-714(3). “A proposal includes both actions and regulatory decisions
of agencies as well as any actions proposed by applicants.” WAC 197-11-784. “A proposal exists
. . . when an agency is presented with an application, or has a goal and is actively preparing to
make a decision on one or more alternative means of accomplishing that goal, and the
environmental effects can be meaningfully evaluated.” WAC 197-11-784.
The Applicants submitted changes to and construction of the city streets as part of the
proposal even before the County issued the MDNS. The initial SEPA checklist and transportation
impact required alteration and construction of roads as part of the development plan. This part of
the proposal was an action proposed by the Applicants. See WAC 197-11-784. Additionally, the
County, as lead agency, required road improvements in its MDNS. This is an “action[] and
regulatory decision[]” of the agency. WAC 197-11-784. As a result, we hold that based on the
plain meaning of the regulation, the road improvements are part of the proposal and the City is an
“agency with jurisdiction” because it has authority to approve part of the proposal.
b. ALREADY COMPLETED ROADWORK
Furthermore, the Respondents argue that most of the road improvements contemplated for
the Knutson project will already be completed as part of another proposed project, the Schnitzer
West project, and therefore they are not part of the Knutson project proposal. The MDNS for the
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No. 51501-6-II
Schnitzer West project requires construction of 5th Avenue SE as a fully functioning two-way
road from Shaw Road to 33rd Street SE, including the Shaw Road intersection.
Respondents cite to the traffic analysis submitted by Applicants, which says that street
improvements will occur “‘if [the Knutson Project] develops prior to the Van Lierop industrial
project [aka Schnitzer West].’” Joint Br. of Resp’ts at 26 (underlining omitted) (last alteration in
original). They also cite to the MDNS, which says, “‘If not already constructed, the applicant will
design and construct 5th Avenue SE to City of Puyallup roadway standards between Shaw Road
East and 33rd Street SE.’” Joint Br. of Resp’ts at 27 (emphasis added). They contend, “Knutson’s
participation in road construction is more akin to participation in traffic impact fees.” Joint Br. of
Resp’ts at 27. They state that the impacts to the City are already being addressed through the
County’s SEPA process.
In reply, the City argues that even if some of these road improvements are part of the
Schnitzer West development, that development does not negate the City’s permitting authority
over the roads and does not negate the need for SEPA review.
We agree with the City because the City’s permits are necessary for the roadwork the
Knutson project requires. Further, nothing in the record supports the Respondent’s argument that
most of the roadwork will already be completed as part of another project.11 Thus, the
Respondents’ arguments that the roadwork will already be completed are unpersuasive.
11
It is unclear if or when the Schnitzer West project will be completed. The Schnitzer West
development is currently in litigation. See Schnitzer W., LLC v. City of Puyallup, 190 Wash. 2d 568,
416 P.3d 1172 (2018).
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In conclusion, we hold that based on the plain meaning of WAC 197-11-948, the City is
an “agency with jurisdiction” over the Knutson proposal because it has authority to approve the
required roadwork that is part of the proposal.
2. CITY’S APPROVAL AUTHORITY OVER WATER AND SEWER SERVICES
a. THE CITY IS AN AGENCY WITH JURISDICTION BASED ON SEWER AND WATER
SERVICE APPROVALS
The City argues that it is also an “agency with jurisdiction” because it has authority to
“approve, veto, or finance sewer and water service for the Knutson proposal.” Br. of Appellant at
18. Respondents argue that the City is acting as a “service provider[ ]” and in a “proprietary
capacity,” which does not make it an “agency with jurisdiction.” Joint Br. of Resp’ts at 29. We
agree with the City and hold that the City is also an “agency with jurisdiction” based on its approval
authority over the sewer and water services.
The Knutson project is within the City’s service area for sewer and is partially within the
City’s service area for water. The City notes that the Applicants’ SEPA checklist names water and
sewer service as among the “‘approvals or permits’” needed for the “‘proposal.’” Br. of Appellant
at 18. The City also notes that the PMC requires that an “‘applicant that seeks water or sewer
service from the city outside Puyallup’s city limits, but within the city’s service area, shall submit
a written application to the city for such service.’” Br. of Appellant at 18 (quoting PMC
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No. 51501-6-II
14.22.020); PMC 14.22.050. The City cites to PMC 14.22.050,12 Yakima County (West Valley)
Fire Protection District No. 12 v. Yakima, 122 Wash. 2d 371, 383, 858 P.2d 245 (1993), and Stanzel
v. Pierce County, 150 Wash. App. 835, 852, 209 P.3d 534 (2009), for the proposition that a city can
impose reasonable service conditions.
In Fire Protection District No. 12, our Supreme Court, relying on statutory interpretation,
upheld the City of Yakima’s condition that landowners sign a petition in support of annexation
before the city could extend its sewer service to outside of the city. 122 Wash. 2d at 384, 388.
In Stanzel, we held that in the context of providing service extensions outside of city limits
“an exclusive provider of sewer service may impose reasonable conditions on its service
agreement, including conditions beyond its capacity to provide service.” 150 Wash. App. at 852.
Based on these cases and PMC 14.22.050, the City contends that because the City can
impose reasonable conditions when issuing water and sewer permits, it can “approve, veto, or
finance” part of the proposal, and therefore it is an “agency with jurisdiction” under WAC 197-
11-948. WAC 197-11-714(3).
12
PMC 14.22.050 (which governs sewer and water service outside city limits) states,
(1) Upon submission of a completed application, provision of any required
additional information or studies, payment of the application fee, payment of costs
and expenses, or arrangements for payment that satisfy the city, the director of
development services or designee shall administratively approve or deny the
application for service.
(2) The director or designee shall have authority to impose any reasonable service
conditions, and require the applicant to enter into a utility extension agreement. An
applicant or service recipient shall fully satisfy any such service conditions, and
perform its obligations under any such agreement. If a service recipient fails to
continue to satisfy any condition of service, or breaches the agreement, then the
city may terminate service after providing notice and a reasonable opportunity to
cure, and pursue all remedies that exist in law or in equity.
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Fire Protection District No. 12 and Stanzel support the City’s contentions that it has
approval authority over water and sewer services because they hold that the City has discretion to
impose reasonable conditions as a prerequisite to providing sewer or water services and it can
withhold service if conditions are not met.
b. CITY ACTING AS A SERVICE PROVIDER
Respondents argue that the City is a “service provider” and, therefore, the City is not an
“agency with jurisdiction.” We disagree.
To support their argument that the City is a service provider, Respondents note that
“Puyallup is providing water for the Knutson proposal at its own insistence.” Joint Br. of Resp’ts
at 28. Respondents agree that the Knutson project is partially within the City’s water service area
and partially within the Valley Water District, but Respondents argue that the City was not willing
to modify its service area to allow for a single provider for water. Respondents also contend that
other service providers for the proposal include Puget Sound Energy, CenturyLink, Comcast, and
DM Disposal and that the City is no different from these providers. Respondents make the policy
argument that the City’s position would allow any service provider to assume control of the SEPA
review process, which would foster delay and disrupt the process.
Respondents do not cite to any case law or authority that say that an agency that has
approval authority over permits and also serves as a service provider cannot be an “agency with
jurisdiction” under WAC 197-11-948. Where no authorities are cited in support of a proposition,
the court is not required to search out authorities, but may assume that counsel, after diligent
search, has found none. DeHeer v. Seattle Post-Intelligencer, 60 Wash. 2d 122, 126, 372 P.2d 193
(1962). Therefore, we reject this argument.
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c. CITY ACTING IN PROPRIETARY RATHER THAN REGULATORY CAPACITY
Respondents further argue that the City is not an “agency with jurisdiction” when it is
selling or furnishing water or sewer services and acting in a proprietary capacity rather than a
regulatory capacity. Respondents cite to People for Preservation & Development of Five Mile
Prairie v. City of Spokane, 51 Wash. App. 816, 821, 755 P.2d 836 (1988), and Hite v. Public Utility
District No. 2, 112 Wash. 2d 456, 462-63, 772 P.2d 481 (1989), for this proposition.
Respondents argue that because the City is acting in its proprietary capacity, its ability to
deny services is confined to the limitations in the comprehensive plan and applicable code. They
say that the City cannot improperly or unreasonably condition services and that “[t]he SEPA
review process will not influence the decision-making authority conferred to Puyallup” to provide
services. Joint Br. of Resp’ts at 31.
These cases do not, however, discuss SEPA or say that an agency acting in a proprietary
capacity is not an “agency with jurisdiction” under WAC 197-11-948. WAC 197-11-714(3) does
not distinguish between whether the agency is acting in a proprietary or regulatory fashion.
Instead, the regulation defines an “agency with jurisdiction” as an “agency with authority to
approve, veto, or finance all or part of a nonexempt proposal (or part of a proposal).” WAC at
197-11-714(3). The City asserts that because it can impose reasonable conditions when issuing
water and sewer permits, it has authority to “‘approve, veto, or finance’” part of the proposal.
Appellant’s Reply Br. at 10 (quoting WAC 197-11-714(3)). We agree, based on the plain language
of these regulations.
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In conclusion, we hold that the City is an “agency with jurisdiction” under WAC 197-11-
948 because it has approval authority over the sewer and water services for the project.13
V. ASSUMPTION OF LEAD AGENCY STATUS AFTER MDNS ISSUANCE
The City also asserts that assumption of lead agency status may occur in response to an
MDNS. The City argues that an MDNS is a type of DNS “within the plain language of the
regulation and the policy of SEPA.” Appellant’s Reply Br. at 13.
The Respondents argue that under WAC 197-11-948, an “agency with jurisdiction” cannot
assume lead agency status following issuance of an MDNS. Respondents also contend that WAC
19-11-948(1) authorizes an “agency with jurisdiction” to assume lead agency status only “upon
review of a DNS (WAC 197-11-340).” They rely on the fact that WAC 197-11-948 does not
reference WAC 197-11-350, which is the SEPA regulation governing the MDNS process.14
We hold that assumption of lead agency status may occur in response to an MDNS under
WAC 197-11-948.
13
Because we reach our holding based on the plain language of the regulations, we do not reach
the parties’ remaining arguments. And to the extent amici raises new issues argued only by amici,
we decline to address them. Bldg. Indus. Ass’n of Wash. v. McCarthy, 152 Wash. App. 720, 749,
218 P.3d 196 (2009); see also RAP 9.12.
14
The superior court did not reach this issue because the issue was moot in light of the superior
court’s determination that the City was not an “agency with jurisdiction.”
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A. PRINCIPLES OF LAW
WAC 197-11-948 sets forth the conditions for an agency to issue a notice of assumption
of lead agency status. WAC 197-11-948(1) provides that “[a]n agency with jurisdiction over a
proposal, upon review of a DNS (WAC 197-11-340) may transmit to the initial lead agency a
completed ‘Notice of assumption of lead agency status.’” (Emphasis added.)
Our Supreme Court has explained this provision:
SEPA Rules allow an agency which is “dissatisfied” with a lead agency’s DNS to
assume lead agency status and make its own threshold determination. WAC 197-
11-600(3)(a); WAC 197-11-948. Under the SEPA Rules, therefore, non-lead
agencies are not constrained to accept a lead agency DNS but instead may make an
independent determination as to whether they are “dissatisfied” with the lead
agency’s decision. Boundary review boards and other agencies subject to SEPA
requirements should use this authority to ensure proper compliance with SEPA.
King County v. Wash. State Boundary Review Bd. for King County, 122 Wash. 2d 648, 661 n.7, 860
P.2d 1024 (1993). We have also provided that “SEPA administrative rules define an ‘MDNS’ as
‘a DNS that includes mitigation measures.’” City of Federal Way v. Town & Country Real Estate,
LLC, 161 Wash. App. 17, 40, 252 P.3d 382 (2011) (quoting WAC 197-11-766).
B. ASSUMPTION MAY OCCUR IN RESPONSE TO AN MDNS
1. UNDER THE PLAIN MEANING OF WAC 197-11-948, THE CITY MAY ASSUME LEAD
AGENCY STATUS AFTER MDNS ISSUANCE
The City argues that the regulations that define a DNS and MDNS show that an MDNS is
a type of DNS. Respondents argue that the City is trying to rewrite WAC 197-11-948 to add the
underlined language:
“An agency with jurisdiction over a proposal, upon review of a DNS (WAC 197-
11-340 or WAC 197-11-350) may transmit to the initial lead agency a completed
‘Notice of assumption of lead agency status.’”
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No. 51501-6-II
Joint Br. of Resp’ts at 36. In looking at the related regulations, and specifically WAC 197-11-766,
we agree with the City and hold that an MDNS is a type of DNS under WAC 197-11-948 and
therefore assumption may occur after MDNS issuance.
The City relies on WAC 197-11-766 to argue that the plain meaning of the regulations
show that an MDNS is a type of DNS. WAC 197-11-766 states that a mitigated DNS is “a DNS
that includes mitigation measures and is issued as a result of the process specified in WAC 197-
11-350.”
In response, Respondents argue that the City’s interpretation adds language to the
applicable rules, contrary to several cases that say that courts do not add language where the
legislature has not included them. Olympic Tug & Barge, Inc. v. Dep’t of Revenue, 163 Wash. App.
298, 306, 259 P.3d 338 (2011); Lake v. Woodcreek Homeowners Ass’n, 169 Wash. 2d 516, 526, 243
P.3d 1283 (2010). Therefore, Respondents argue that the plain language of WAC 197-11-948(1),
which says “review of a DNS (WAC 197-11-340)” and does not mention an MDNS nor WAC
197-11-350, does not authorize an “agency with jurisdiction” to assume control over SEPA review
following issuance of an MDNS.
In order to determine a regulation’s plain meaning, we may look to the context in which
the regulation appears, related regulations and statutes, and the statutory scheme of which the
regulation is a part, which may disclose legislative intent about the provision. Bravern Residential
II, LLC, 183 Wash. App. at 777. WAC 197-11-766 specifically says that an MDNS is “a DNS that
includes mitigation measures.” Case law also supports the argument that an MDNS is “a particular
type of DNS.” City of Federal Way, 161 Wash. App. at 40. This confirms that an MDNS is a type
of DNS.
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No. 51501-6-II
2. RELATED REGULATIONS SUPPORT THE ARGUMENT THAT AN MDNS IS A TYPE OF DNS
The City also relies on SEPA regulations to confirm that an MDNS is a type of DNS.
In response, Respondents argue that “[t]he City relies on other provisions of the SEPA
Rules to squeeze the MDNS into the scope of WAC 197-11-948.” Joint Br. of Resp’ts at 35.
Respondents rely on the fact that this type of DNS (MDNS under WAC 197-11-350) was not
included or referenced in the relevant provision—WAC 197-11-948—while other types (WAC
197-11-340) were. Respondents cite case law that says, “‘Omissions are deemed to be
exclusions’” and when the legislature decides to include certain items in a statute, those not
specified are presumed to be deliberately excluded. Adams v. King County, 164 Wash. 2d 640, 650,
192 P.3d 891 (2008) (alteration in original) (quoting In re Det. of Williams, 147 Wash. 2d 476, 491,
55 P.3d 597 (2002)); see Bour v. Johnson, 122 Wash. 2d 829, 836, 864 P.2d 380 (1993). We disagree
with the Respondents.
a. WAC 197-11-310(5)
The City argues that WAC 197-11-310(5) provides that “[a]ll threshold determinations
shall be documented in” a DNS or DS but it does not list an MDNS as a separate threshold
determination or specifically cite to WAC 197-11-350. Division One of this court has reiterated
this when it said,
WAC 197-11-310(5) mandates that “[a]ll threshold determinations shall be
documented in: (a) A determination of nonsignificance (DNS) (WAC 197-11-340)
or (b) A determination of significance (DS) (WAC 197-11-360).”
Moss, 109 Wash. App. at 21 (alteration in original) (quoting WAC 197-11-310(5)). We agree that
this supports the City’s argument because it shows that WAC 197-11-310 does not consider an
MDNS a separate threshold determination or distinguish between an MDNS and a DNS.
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No. 51501-6-II
b. WAC 197-11-340
WAC 197-11-340 is twice cited in the assumption regulation. See WAC 197-11-948.
WAC 197-11-340(2)(a)(iv) identifies an MDNS as a type of DNS when it says, “A DNS under
WAC 197-11-350.” WAC 197-11-350 lays out the process for an MDNS.
The City relies on this to argue that the assumption regulation’s (WAC 197-11-948)
citation to WAC 197-11-340, but not WAC 197-11-350, is not meant to exempt MDNSs. The
City claims that “[i]nstead the citation recognizes that the process that triggers the fourteen-day
period for assuming lead agency status—‘review of a DNS’—occurs under WAC 197-11-340,
which encompasses MDNSs.” Br. of Appellant at 31-32.
Respondents argue that WAC 197-11-948’s reference to WAC 197-11-340(2)(a) does not
extend the scope of the assumption regulation’s authorization to include an MDNS. Respondents
argue that WAC 197-11-340(2) establishes procedural requirements, which also apply to an
MDNS. They argue that since “it is purely procedural; it provides no mechanism to issue an
MDNS.” Joint Br. of Resp’ts at 39.
The City replies that neither WAC 197-11-340 nor WAC 197-11-350 defines a DNS or an
MDNS; instead, they are two procedural provisions that work together. The City emphasizes that
the procedural nature of WAC 197-11-350 is reflected in how an MDNS is defined as a “DNS that
includes mitigation measures and is issued as a result of the process in WAC 197-11-350.” WAC
197-11-766.
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No. 51501-6-II
We agree with the City that neither WAC 197-11-340 nor WAC 197-11-350 define an
MDNS, but instead they are two procedural provisions. Additionally, the language of subsection
-340(2) that refers to an MDNS as a type of DNS, supports the City’s arguments.15
c. WAC 197-11-508 AND WAC 197-11-970
In support of its position, the City argues that WAC 197-11-508 and WAC 197-11-970 do
not distinguish between MDNSs and DNSs. The City argues that even though these regulations
do not specifically say MDNS or cite to the MDNS regulation WAC 197-11-350, there is still a
notice and comment period for an MDNS. See WAC 197-11-340(2).
WAC 197-11-508(1)(a) requires a SEPA register for “notice of all environmental
documents” and refers to only “DNSs under WAC 197-11-340(2).” WAC 197-11-970 states that
when a “DNS is issued under WAC 197-11-340(2),” the notice and comment period is 14 days.
The City is correct in that WAC 197-11-508 and WAC 197-11-970 do not distinguish
between a DNS and an MDNS. Instead, they refer to DNSs under WAC 197-11-340(2). As
explained above WAC 197-11-340(2)(iv) refers to “[a] DNS under WAC 197-11-350 [the MDNS
regulation].” This support’s the City’s position.
d. County’s MDNS
The City also notes that the County issued its April 26, 2017 MDNS under WAC 197-11-
340. This WAC does not refer to WAC 197-11-350 (the regulation for the MDNS process). The
County’s MDNS states that it is issued under WAC 197-11-340(2), which is the same regulation
15
Respondents also argue that a DNS and an MDNS are fundamentally different determinations.
But the SEPA handbook shows that an MDNS is a type of DNS when it says that a “[DNS] is
issued when the responsible official has determined that the proposal is unlikely to have significant
adverse environmental impacts, or that mitigation has been identified that will reduce impacts to a
nonsignificant level.” SEPA Handbook, DEPARTMENT OF ECOLOGY § 2.8, at 37 (2003).
26
No. 51501-6-II
the Respondents associate with a DNS eligible for assumption (WAC 197-11-340). Thus, it
appears that the County acknowledged at least in its issuance of its MDNS that an MDNS is a type
of DNS. We agree with the City that this supports the City’s argument that MDNS is “a DNS
(WAC 197-11-340).” WAC 197-11-948(1).
e. COURT AND BOARD DECISIONS
Furthermore, the City also says that courts have never suggested that a distinction exists
between DNSs and MDNSs for purposes of lead agency assumption. The City relies on Northwest
Steelhead & Salmon Council of Trout Unlimited v. Dep’t of Fisheries, 78 Wash. App. 778, 787, 896
P.2d 1292 (1995), for this proposition. In Northwest Steelhead, the City issued a DNS that
contained mitigation conditions aimed at minimizing the deterioration of the wetlands. 78 Wn.
App. at 781. The court reasoned that “[u]pon reviewing the City’s DNS designation, the
Department had the option to assume lead agency status” under WAC 197-11-948(1). Nw.
Steelhead, 78 Wash. App. at 787 (alterations in original).
Furthermore, the City argues that decisions from state adjudicatory boards confirm that an
agency can assume lead agency status upon the issuance of an MDNS. See Order Granting
Summary Judgment, Town of Concrete v. Skagit County, SHB No. 96-18, 1996 WL 660481, at *9
(Wash. Shorelines Hr’gs Bd. Oct. 4, 1996) (“As the environmental review in this case resulted in
one DNS and two MDNS documents, Concrete had three separate opportunities to file the requisite
notice of assumption of lead agency status . . . yet, the town did not do so.”); Order Granting
Summary Judgment, Repar v. Dep’t of Nat. Resources, FPAB No. 05-001, 2005 WL 2845720, at
*7 (Forest Practices Appeals Bd. June 28, 2005) (case involving an MDNS and stating, “If there
had been a concern that the information provided in the SEPA process was incorrect, false,
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No. 51501-6-II
missing, or incomplete, DNR and other reviewing agencies had legal options to address such
concerns and even to assume lead agency status”); Order Granting Summary Judgment, City of
Bellingham v. Dep’t of Nat. Resources, PCHB Nos. 11-125 & 11-130, 2012 WL 1463552, at *5
(Pollution Control Hr’gs Bd. April 9, 2012) (case involving a revised MDNS and stating, “Other
agencies with jurisdiction have the opportunity to comment on the threshold determination, and
can assume lead agency status during the 14 day comment period.”).
Respondents note that there is an absence of case law on this issue and that the references
to WAC 197-11-948 are “at best” dicta. Joint Br. of Resp’ts at 37. Respondents state that in none
of the court or board cases the City relies on did the parties dispute whether WAC 197-11-948 may
apply following the issuance of an MDNS. We agree with the Respondents that there is no case
law directly on this issue of whether an MDNS is a DNS under WAC 197-11-948. However,
Respondents do not cite any authority contradicting these arguments, and the language in these
cases and decisions are persuasive.
We hold that based on the plain meaning of WAC 197-11-948, the context of related
regulations, and the regulatory scheme as a whole, an “agency with jurisdiction” can assume lead
agency status upon issuance of an MDNS.
CONCLUSION
In conclusion, we hold that the City is an “agency with jurisdiction” under WAC 197-11-
948 because it has approval and permitting authority over the roadwork and water and sewer
services that are part of the proposal. Based on the plain meaning of the regulations, we also hold
that WAC 197-11-948 authorizes an “agency with jurisdiction” to assume lead agency status
28
No. 51501-6-II
following the initial lead agency’s issuance of an MDNS. Accordingly, we reverse and remand
for action consistent with this opinion.
JOHANSON, J.P.T.
We concur:
WORSWICK, P.J.
MELNICK, J.
29