Carpenter v. Island County

Utter, J.

(concurring in the result)—The facts of this case are set forth in Carpenter v. Island County, 14 Wn. App. 843, 545 P.2d 1218 (1976), and the majority opinion. The sole issue presented on appeal is whether an environmental impact statement need be filed at the particular stage of the proceedings there described. I would affirm the holding of the Court of Appeals that there was no major governmental action within the newly annexed area.

I particularly disagree with the holding of the majority that WAC 197-10-170(18) (b) expressly exempts all annexation of sewer facilities from the definition of a major action in WAC 197-10-040(24). WAC 197-10-040(2)(c)(iv) defines "action" as including "creation of, or annexations to, any city, town or district." WAC 197-10-150 provides that only those "actions" which are expressly exempted are not "major actions" for the purposes of the threshold determination requirement of WAC 197-10-300. None of the exemptions included in the guidelines applied to annexation of territory to a sewer district. The exemption cited by the majority in justifying failure in this case to make a threshold determination, WAC 197-10-170(18) (b), relates to the construction of sewer lines of less than the specified size. It has nothing whatever to do with annexation. This unnecessary discussion in the opinion of a matter not briefed by both parties and only raised in the reply brief of respondent unnecessarily complicates an area already difficult enough for the conscientious practitioner.

Brachtenbach, J., concurs with Utter, J.

Petition for rehearing denied June 7, 1978.