Friends of Columbia Gorge, Inc. v. State Energy Facility Site Evaluation Council

FILE
IN CLERKS OFFICE
1UPRE1E COURT, STATE OF WASHtm'ON
A G2 9 2013
WliPREME COURT OF THE STATE OF WASHINGTON
FRIENDS OF THE COLUMBIA GORGE, )
INC., and SAVE OUR SCENIC AREA, ) No. 88089-1
)
Petitioners, )
)
v. ) EnBanc
)
STATE ENERGY FACILITY SITE )
EVALUATION COUNCIL and )
CHRISTINE 0. GREGOIRE, governor )
ofthe STATE OF WASHINGTON, )
)
Respondents, )
)
and )
)
WHISTLING RIDGE ENERGY LLC, )
SKAMANIA COUNTY, and KLICKITAT )
COUNTY PUBLIC ECONOMIC )
DEVELOPMENT AUTHORITY, )
)
Intervenors-Respondents. )
) Filed 'AUG 29 2013
C. JOHNSON, J.-This case concerns the siting of a wind powered energy
facility under the energy facilities site locations act (EFSLA), chapter 80.50 RCW.
This statutory scheme creates an administrative body not only to evaluate
applications for the construction and operation of energy facilities in the state, but
also to conduct hearings and adjudications before ultimately making a
Friends ofColumbia Gorge v. EFSEC, No. 88089-1
recommendation to the governor. Here, the administrative body, after reducing the
scope of the project applied for, recommended that Governor Gregoire approve the
project, which she did. Opponents of the project then sought judicial review under
the Administrative Procedure Act (APA), chapter 34.05 RCW. The superior court
certified the issue directly to this court as allowed under EFSLA.
The challenge here focuses on the site certification agreement and whether
it, and the process leading up to it, complied with the statutory and regulatory
requirements. In Residents Opposed to Kittitas Turbines v. State Energy Facility
Site Evaluation Council, 165 Wn.2d 275, 197 P.3d 1153 (2008) (Residents), we
resolved many of the foundational jurisdictional, procedural, reviewability, and
substantive issues relevant to the statutory interplay and applicability. Some of the
issues in this case touch upon the analysis and conclusions resolved by that
opinion. For the reasons that follow, we find no basis to reverse the Eriergy Facility
Site Evaluation Council's (EFSEC) recommendation or the governor's approval of
the project.
I. FACTS AND PROCEDURAL HISTORY
a. GENERAL OVERVIEW
Whistling Ridge Energy Project (WREP) submitted an application to EFSEC
to build and operate a wind powered energy facility in southeastern Washington.
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Friends ofColumbia Gorge v. EFSEC, No. 88089-1
EFSEC conducted the required hearings and adjudications 1 before making a
recommendation, which the governor followed, to approve a modified version of
the project. The governor executed a site certification agreement (SCA) that acts
essentially as a contract between the State and applicant, specifying the conditions
and requirements of approval. Administrative Record (AR) at 29266-330.
Petitioners now challenge the process and substance of that approval.
There are several parties to the current appeal. Two environmental groups,
Friends of the Columbia Gorge and Save Our Scenic Area (collectively Friends),
are the petitioners and seek invalidation of the SCA and remand to EFSEC for
further study and evaluation of the project. The other parties write in support of the
project. EFSEC and the governor defend approval ofthe project in a joint brief, as
do Skamania County and the Klickitat County Public Economic Development
Authority. WREP also filed a brief arguing that this court should affirm EFSEC's
recommendation and the governor's execution of the SCA.
The project site is located in a rural portion of southeast Washington. The
initial application was for 50 wind turbines, though the ultimate recommendation
and agreement provide for 35, partially in response to concerns regarding views
from the Columbia River Gorge National Scenic Area. The project would sit on
1
Petitioners make no argument that EFSEC failed to conduct any required hearing,
adjudication, or public meeting. Instead, our review is of the record made by EFSEC.
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Friends of Columbia Gorge v. EFSEC, No. 88089-1
roughly 1,152 acres, though only about 57 acres would be permanently developed.
The land is owned by a parent company of WREP and has been logged for most of
the last century. There are few large conifers, no late-successional stands, and no
old forest habitats. The land contains a network of logging roads, two clear-cut
corridors for Bonneville Power Administration high voltage lines, as well as a
natural gas pipeline on the north end of the site. No wind turbine would be within
4,000 feet of a residence.
The project site is also within sight of a national scenic area that is protected
by both federal law and a compact between Washington and Oregon. No issues in
the present appeal relate directly to the national scenic area or compact. Further,
the Columbia River Gorge is recognized by many for its pristine natural
environment and beauty. The project site also appears to lie within the habitat of
2
many species of wildlife. It is part of a northern spotted owl special emphasis area
and is either home or a migratory route for 90 species of birds and 15 species of
bats.
Economically, the area has seen a significant decline since the spotted owl
was listed as an endangered species, which greatly reduced the output of the
lumber industry in the region. Much of the land in the county is owned by the state
and federal governments, protected under various statutes, or used for commercial
2
WAC 222-16-086.
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Friends ofColumbia Gorge v. EFSEC, No. 88089-1
forestland. Only three percent of the county is available for residential,
commercial, or industrial use.
b. STATUTORY SCHEME
The legislature passed EFSLA as an expedited and centralized process for
reviewing potential energy sites in Washington State. The stated policy of the
statute is "to recognize the pressing need for increased energy facilities" and
promote the creation of such facilities in a way that "will produce minimal adverse
effects on the environment, ecology of the land and its wildlife, and the ecology of
state waters and their aquatic life." RCW 80.50.010.
In order to promote this policy, the legislature created EFSEC, which
evaluates proposals, conducts public hearings and adjudications, and makes a
recommendation to the governor. RCW 80.50.030. EFSEC's members include a
chair appointed by the governor with the advice and consent of the senate;
representatives from the Washington State Department of Ecology, Department of
Fish and Wildlife, Department of Commerce, and Department ofNatural
Resources, as well as the Washington Utilities and Transportation Commission of
the locality where the site would be located; and an assistant attorney general as a
Counsel for the Environment. Other representatives may become involved as
special circumstances require.
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Friends ofColumbia Gorge v. EFSEC, No. 88089-1
Once an application is received, EFSEC must conduct informational public
hearings in the county of the proposed site. After these hearings, EFSEC conducts
a hearing to determine whether the proposed project is consistent with current land
use and zoning regulations. Finally, EFSEC must conduct an adjudicative hearing
consistent with the AP A that allows interested parties to challenge initial
determinations. EFSEC may also conduct additional hearings as necessary. RCW
80.50.090.
After completing these steps, EFSEC submits a recommendation to the
governor and, if recommending approval, submits a draft certification agreement.
The governor then decides whether to approve the application and execute an SCA,
reject the application, or direct EFSEC to reconsider parts of the application. The
governor's rejection of the application is final, though a new application can be
submitted ifthere is new information or conditions change. RCW 80.50.100.
An executed SCA acts essentially as a contract between the State and
applicant, setting forth the conditions that must be satisfied for implementation of
the project. The SCA acts "in lieu" of any other requirements imposed by other
regulatory bodies. See RCW 80.50.120(3). Further, the provisions ofEFSLA can
preempt any other rules or regulations promulgated within the state, including local
land use rules. RCW 80.50.110(1); Residents, 165 Wn.2d 275.
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Friends ofColumbia Gorge v. EFSEC, No. 88089-1
c. REVIEW PROCESS
Here, petitioners do not argue that EFSEC failed to follow the statutorily
required steps. This process included a visit to the proposed site, several public
hearings, an adjudication under the AP A, a land use consistency hearing, and
review under the State Environmental Policy Act (SEPA), chapter 43.21C RCW.
This process lasted three years and, according to EFSEC, "set a record for length,
volume, and number of issues addressed." AR at 29346. These proceedings will be
described briefly here with a more detailed account only in certain sections where
necessary.
EFSEC conducted two public hearings and received over 300 public
comments. In opposition, people were concerned about the environmental impact
of development, as well as the scenic and aesthetic impact on the national scenic
area. Those in favor of the project viewed wind energy as an environmentally
friendly energy source that was coexistent with the surrounding beauty and also
emphasized the economic impact of the project.
The land use consistency hearing was conducted as a separate adjudication.
The project site is located in an unmapped zone of Skamania County, which means
that the county does not have comprehensive zoning that covers the area. Thus,
Friends focused much of its argument on the county's comprehensive code, which
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Friends a/Columbia Gorge v. EFSEC, No. 88089-1
designated the land as a conservancy area, and argued that this designation was
inconsistent with an energy project. EFSEC found that wind powered energy was
consistent with a conservancy designation and, even if not, the zoning code
allowed any use in unmapped zones not found to be a nuisance by a court. Wind
power had not been found a nuisance by any court and was thus allowable.
The formal adjudication took place over three days and involved 17 parties.
EFSEC found that need existed for the project, especially considering RCW
80.50.01 O's recognition of the "pressing need for increased energy facilities" and
legislation that required sustainable energy to account for 15 percent of the State's
energy supply by 2020. See RCW 19.285.010. Accordingly, it found the main issue
to be determining if the project would create a net benefit after considering the
impacts.
The "most hotly contested issue" involved the project's impact on the
aesthetic and cultural heritage of the area, largely due to the project's visibility
from the national scenic area. AR at 29346. EFSEC noted that the project was not
the first development to occur in the area, as barge traffic, highways, and rail lines
already existed. At the same time, it wanted to preserve the view from the national
scenic area as much as possible. 3 Based on these concerns, EFSEC reduced the
3
The parties disputed whether federal law came into play under the Columbia River
Gorge National Scenic Area Act. 16 U.S.C. § 544. EFSEC found that the act regulated land only
8
Friends ofColumbia Gorge v. EFSEC, No. 88089-1
number of allowable windmills from 50 to 35 and restricted where those windmills
could be sited.
EFSEC also addressed concerns regarding the project's impact on wildlife
and wildlife habitat. It recognized that although there was a significant wildlife
habitat, the project site was not pristine natural land. The Washington Department
ofFish and Wildlife (WDFW) acknowledged that with appropriate mitigation
measures the project would comply with its guidelines. After considering various
arguments and evidence, EFSEC determined that with appropriate mitigation
measures and monitoring, the project should go forward.
Finally, EFSEC addressed several issues that are not part of the current
challenge, including noise issues, geological challenges, access road issues,
cultural and archeological concerns, health and safety planning, and site restoration
planning. However, both the adjudicative order and SCA recognized that further
study and agreement would be required on several issues. For example, a
mitigation parcel was discussed but not formally adopted, and WREP was required
to continue discussions with relevant agencies to determine the parcel's adequacy. 4
within the national scenic area and did not apply to the project. That decision has not been
challenged.
4
The parties dispute whether the mitigation parcel was accepted or played any role of
EFSEC's determination. This issue will be addressed below.
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Friends ofColumbia Gorge v. EFSEC, No. 88089-1
Based on the adjudicative order, EFSEC recommended that the governor
approve the project and provided a draft SCA. 5 Governor Gregoire chose to
execute the SCA, which allowed the project to go forward as long as numerous
conditions were met. Friends argues that many of these conditions necessarily
imply that all issues were not "resolved" within the meaning of the AP A. Where
relevant, they will be discussed below.
After the governor's decision, Friends timely filed for judicial review as
allowed under RCW 80.50.140(1) and the APA. The superior court certified the
petition this court. RCW 80.50.140(1 ).
II. ISSUES
(l)Whether WREP's application satisfied chapter 463-60 WAC's requirements
that an application include:
• an assessment of the risk of avian collisions "during day and
night."
• consideration of the WDFW's Wind Power Guidelines.
• a discussion of mitigation measures. 6
(2) Whether EFSEC complied with chapter 463-62 WAC, which requires:
• an applicant demonstrate no net loss of fish and wildlife habitat.
• fish and wildlife surveys be conducted during all seasons of the
year.
5
When EFSEC filed the adjudicative order, the final environmental impact statement
(FEIS) had not yet been prepared. The formal recommendation was not made until EFSEC had
evaluated and approved ofthe FEIS.
6
WASH. DEP'T OF FISH AND WILDLIFE, Wind Power Guidelines (Apr. 2009),
http://wdfw.wa.gov/publications/00294/wdfw00294.pdf.
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}riends ofColumbia Gorge v. EFSEC, No. 88089-1
(3) Whether EFSEC formally adopted a specific mitigation parcel for the
project.
(4) Whether, by failing to require safety lighting to be radar activated or limit
the amount of time turbine blades would spin, EFSEC violated RCW
80.50.010's directive to use available and reasonable methods to produce
minimal adverse effects on the environment.
(5) Whether EFSEC erred in finding that the proposed project was consistent
with local land use ordinances.
(6) Whether EFSEC erred in delaying review under the Forest Practices Act of
1974 (Forest Practices Act), chapter 76.09 RCW.
(7) Whether the SCA is internally inconsistent in its treatment of the Forest
Practices Act.
(8) Whether Friends is entitled to any costs and fees.
III. ANALYSIS
a. STANDARD OF REVIEW
Under EFSLA, our review is governed by the APA. Although the governor's
execution of the SCA would likely be considered the "final decision" triggering
review, we have recognized that there are no rules governing how the governor
may exercise his or her discretion in approving or rejecting the project. Thus, the
decision would arguably be insulated from judicial review despite EFSLA's
direction otherwise. Therefore, we consider this process as the granting of a
"license," which "includes the agency process respecting the issuance ... of a
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Friends ofColumbia Gorge v. EFSEC, No. 88089-1
license." RCW 34.05.010(9)(b). Under the APA, relief is granted only in the
following situations:
(a) The order, or the statute or rule on which the order is based,
is in violation of constitutional provisions on its face or as applied;
(b) The order is outside the statutory authority or jurisdiction of
the agency conferred by any provision of law;
(c) The agency has engaged in unlawful procedure or decision-
making process, or has failed to follow a prescribed procedure;
(d) The agency has erroneously interpreted or applied the law;
(e) The order is not supported by evidence that is substantial
when viewed in light of the whole record before the court, which
includes the agency record for judicial review, supplemented by any
additional evidence received by the court under this chapter;
(f) The agency has not decided all issues requiring resolution by
the agency;
(h) The order is inconsistent with a rule of the agency unless the
agency explains the inconsistency by stating facts and reasons to
demonstrate a rational basis for inconsistency; or
(i) The order is arbitrary or capricious.
RCW 34.05.570(3); Residents, 165 Wn.2d at 303-05.
Although it is sometimes difficult to tell which standard Friends is
attempting to assert, most of the allegations appear to involve EFSEC's
supposed failure to follow its own regulations or resolve all issues requiring
resolution and we address the arguments through that lens. We review
whether an agency has followed prescribed procedure de novo. 7 An agency
7
Kittitas County v. E. Wash. Growth Mgmt. Hearings Bd., 172 Wn.2d 144, 155,256 P.3d
1193 (2011).
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Friends ofColumbia Gorge v. EFSEC, No. 88089-1
fails to resolve all issues when findings are not made on matters that
establish the existence or nonexistence of determinative factual matters. 8
At the outset, it is worth emphasizing EFSLA's unique statutory
framework. The legislature granted much discretion to both EFSEC and the
governor. The governor's decision to approve or deny does not appear t~ be
subject to any restrictions, and the restrictions placed on EFSEC appear to be
largely procedural with some guidance as to what issues should be
considered. The framework requires the involvement of various
stakeholders, including environmental groups, throughout this process and in
EFSEC's ultimate decision. The legislature has recognized the importance of
increasing the State's energy output, as have the voters when they called for
Washington's energy to be provided by increasingly sustainable sources.
When these factors are combined with the deferential nature of review under
the AP A and the fact that review can easily be certified to this court, the
nature of our review is necessarily limited.
8
Weyerhaeuser v. Pierce County, 124 Wn.2d 26, 36, 873 P.2d 498 (1994).
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Friends ofColumbia Gorge v. EFSEC, No. 88089-1
b. CHALLENGES UNDER THEWASHINGTON ADMINISTRATIVE CODE
Friends' challenges under the Washington Administrative Code (WAC)
arise out of two separate chapters. The chapters serve slightly different functions,
so the challenges are addressed by WAC chapters.
i. Chapter 463-60 WAC: Applications for Site Certification
Friends raises several challenges as to the sufficiency of WREP' s
application. Applications are discussed in chapter 463-60 WAC, which opens with
a general "[p]urpose" section. The chapter
sets forth guidelines for preparation of applications [under EFSLA] ..
The application shall provide the council with information
regarding the applicant, the proposed project design and features, the
natural environment, and the built environment. This information shall
be in such detail as determined by the council to enable the council to
go forward with its application review.
WAC 463-60-010 (emphasis added). TheWACs further state that "[t]he applicant
must address all sections of this chapter and must substantially comply with each
section, show it does not apply or secure a waiver from the council." WAC 463-
60-115 (emphasis added).
Friends essentially challenges the completeness of the application by quoting
several regulations that provide that the application "shall" include certain
information. As discussed below, many of the alleged omissions are rather
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Friends of Columbia Gorge v. EFSEC, No. 88089-1
technical and ignore the broader framework of the application process. The above-
quoted WACs show that these regulations are intended to provide "guidelines" as
to what information will be considered, with the overall goal of providing EFSEC
with enough information to proceed. The application need only substantially
comply with the regulations and, ultimately, it is within EFSEC's purview to
determine when it has sufficient information to proceed. Though we need not adopt
WREP's broad rule that no challenge can be brought for EFSEC's failure to follow
its own rules on the completeness of an application, we recognize that the approval
process is a broad one. Once the application is submitted, EFSEC must gather
public feedback, 9 hold a land use consistency hearing, 10 go through a water and air
permitting process, 11 and follow SEP A 12 before making its recommendation. And,
even once the project is approved, the SCA can impose additional studies and
ongoing requirements. Essentially, the application is the starting point of a longer
process and more specific decisions are addressed throughout the process. Any
minor deficiencies in the application itself are to be expected and do not warrant
9
RCW 80.50.090(1) (requiring EFSEC to conduct a public hearing).
10
RCW 80.50.90(2).
11
RCW 80.50.040(9) (requiring compliance with water pollution controls under chapter
90.48 RCW).
12
Ch. 43.21C RCW; WAC 197-11-938(1).
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Friends ofColumbia Gorge v. EFSEC, No. 88089-1
reversal. Invalidation of the completed review and recommendation would also
defeat the purpose of the extended hearings and ongoing oversight of the project.
Further, Friends could not be "substantially prejudiced" by claimed application
shortcomings as required by RCW 34.05.570(1)(d). For these reasons, we conclude
that WREP substantially complied with the requirements of chapter 463-60 WAC
in its application.
1. Risk of Nighttime Avi an Collisions
Friends argues that WREP did not meet the application requirements of
WAC 463-60-332(2)(g), which state that the required "discussion of impacts shall
also include ... [a]n assessment of risk of collision of avian species with any
project structures, during day and night, migration periods, and inclement
weather." Importantly, the referenced "discussion of impacts" is part of the
application, not part ofEFSEC's ultimate findings. Thus, Friends' complaint that
EFSEC failed to make any specific factual or legal findings based on WAC 463-
60-332(2)(g) in its adjudicative order is misfocused. Opening Br. ofPet'rs at 21.
The remaining challenge here seems to focus on the adequacy of the
assessment because the application actually did contain an "assessment" of
nighttime collision risks. Friends cites to language on the absence of data on
nighttime flight patterns but this language refers to the lack of nighttime
16
Friends ofColumbia Gorge v. EFSEC, No. 88089-1
observation data. In its application, WREP used daytime survey data to create an
index based on other similar wind powered projects that allowed it to create a
total-both day and night-fatality estimate based on actual reported
postconstruction data. 13 A total fatality estimate necessarily includes an assessment
of nighttime collision risks, especially since the estimate is based on real collision
data, which includes nighttime collisions, at other sites. The methodology used to
arrive at this number was part of the application, and EFSEC had every
opportunity to and did consider its adequacy. All that WAC 463-60-332(2)(g)
requires is that the application contain an "assessment" of collision risk during day
and night. EFSEC has discretion to evaluate the methodology used in the
assessment. The application contains such an assessment, and WREP satisfied
what is required in the application.
2. Conformance with WDFW Wind Power Guidelines
Friends next asserts that EFSEC "erred when it determined that the
Applicant satisfied the requirements of the WDFW's Wind Power Guidelines."
Opening Br. ofPet'rs at 22. Again, this challenge is based on a regulation in
13
To obtain the estimates, WREP's consultant used its daytime observations to develop
an index number that was compared with other already existing sites. Based on this index,
postconstruction fatality numbers at other sites, and a regression analysis, the consultant
estimated a fatality rate of0.9 to 2.9 fatalities per megawatt per year. AR at 5086-116. The
estimated energy output for the originally proposed project was 75 megawatts, which would
make an estimated 67.5 to 217.5 fatalities per year, though the revised estimate would likely be
smaller due to the reduced size of the project.
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Friends a/Columbia Gorge v. EFSEC, No. 88089-1
chapter 463-60 WAC and whether EFSEC erred in finding that the requirements
satisfied are irrelevant to a challenge as to the sufficiency of the application,
especially since the regulation itself does not require full compliance. It states,
"The application shall give due consideration to any project-type specific
guidelines established by state and federal agencies .... The application shall
describe how such guidelines are satisfied. For example, wind generation proposals
shall consider [WDFW guidelines]." WAC 463-60-332(4) (emphasis added). This
is not a mandatory compliance rule, but simply requires that the application
consider these guidelines. EFSEC can then later decide the guidelines with which
an applicant must comply.
Furthermore, as the title suggests, the guidelines themselves provide only
guidance. The document's introduction states that "[t]he purpose of the WDFW
Wind Power Guidelines is to provide consistent statewide guidance for the
development of land-based wind energy projects that avoid, minimize and mitigate
impacts." 14 WDFW has found WREP's habitat evaluation to be consistent with its
guidelines, stating that the "pre-project assessment and avian/bat use surveys are
consistent . .. with the WDFW Wind Power Guidelines." 15 AR at 15820 (emphasis
14
WIND POWER GUIDELINES, supra, at 1.
15
Friends accuses WDFW of initially finding that the application did not comply with the
Wind Power Guidelines and changing its statement in response to pressure from WREP. Reply
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Friends ofColumbia Gorge v. EFSEC, No. 88089-1
added). Friends does not meet its burden under the APA to reverse the agency's
recommendation.
3. Absence of a Wildlife Mitigation Plan
Every application must include a "detailed discussion of mitigation
measures." WAC 463-60-332(3). Friends faults WREP for submitting an
application with minimal discussion of mitigation measures. While the application
did not fully detail the mitigation measures, such a requirement would be
unrealistic. The application is the first step in a longer process. In many situations,
as here, the final size and location of the site is not known until after the
adjudication, making a full discussion of specific mitigation measures in the
application unnecessary. Moreover, the adjudication process serves to bring to
light more specific environmental concerns that may need to be mitigated. The
WACs require that an application contain a discussion of proposed mitigation
measures. WREP's application contained a discussion, which EFSEC apparently
found sufficient to substantially comply with its requirements. Further, mitigation
measures are required by both the adjudicative order and SCA, which means that
Br. ofPet'rs at 20 n.62. Not only is this argument raised in the reply brief, its implication that
WREP exerted undue influence seems unjustified. The first letter reflects a first impression of
the initial application and, rather than suggesting that the project should not go forward, WDFW
appeared to simply want additional information. The subsequent chain of letters suggests that
WREP addressed these initial concerns with additional materials and documentation that WDFW
found satisfactory. See AR at 17973-75,4026-47, 20222-28. Nothing in the record suggests that
WREP improperly persuaded WDFW to change its opinion.
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Friends a/Columbia Gorge v. EFSEC, No. 88089-1
adequate mitigation is a condition required for the completed project. Friends has
not met its burden under the AP A to show that WREP did not substantially comply
with WAC 463-60-332(3).
Friends also seeks remand because of apparent inconsistencies in the amount
of impacted wildlife habitat, which in turn affects the mitigation requirements in
WAC 463-60-332(3). As with the above sections, any inconsistencies in the
adjudicative order are not properly addressed in a challenge to the application
under chapter 463-60 WAC. However, when the record is viewed in its entirety, it
becomes clear that the claimed inconsistencies are the result of typographical
errors or misstatements and that, overall, the numbers have been fairly consistent
throughout: the total project area is roughly 1,152 acres; the area subject to
micrositing (i.e., where windmills might ultimately be located) is roughly 384
acres; and roughly 108 acres will be developed, but only about 57 acres will be
permanently developed. Any differences that exist are insignificant, making
remand unnecessary on this issue.
ii. Chapter 463-62 WAC: Construction and Operation
Chapter 463-62 WAC's purpose is to "implement" the legislative policy
found in RCW 80.50.010, namely, to balance the need for new energy production
with environmental and societal considerations. "The council shall apply these
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Friends ofColumbia Gorge v. EFSEC, No. 88089-1
rules to site certification agreements issued" by the council. WAC 463-62-010(1).
Moreover, "[t]he provisions of this chapter shall apply to the construction and
operation of energy facilities." WAC 463-62-01 0(2).
Friends' arguments here misunderstand the nature of the chapter by pointing
to alleged deficiencies in WREP' s preapplication wildlife survey, as well as
EFSEC's adjudicative order. These regulations apply to the SCA and the later
ongoing operation and construction of the facility and do not control the
application and review process. As discussed in greater detail below, we find no
basis in the regulations supporting Friends' arguments.
1. No Net Loss
EFSLA requires that projects result in "no net loss" of wildlife habitat. WAC
463-62-040(2)(a). Friends notes that the no net loss rule is not mentioned in the
application or the EFSEC order and argues that EFSEC violated the AP A with this
omission. However, as discussed above, the no net loss rule is part of the ongoing
operation standards for energy facilities, not an application requirement. Thus, the
topic did not need to be addressed in the EFSEC order as long as it is required by
the SCA and complied with by WREP. The SCA requires that WREP submit a
mitigation plan prior to site preparation and outlines several ways in which WREP
can satisfy the no net loss rule. For example, WREP could establish a mitigation
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Friends ofColumbia Gorge v. EFSEC, No. 88089-1
parcel on its own or contribute money to a third party. AR at 36709. At this stage,
Friends has not shown that WREP failed to comply with the no net loss rule.
2. EFSEC Wildlife Survey and Assessment Requirements
WAC 463-62-040(2)(±) states that in order to achieve EFSEC's intent of no
net loss ofhabitat functions, "[f]ish and wildlife surveys shall be conducted during
all seasons of the year to determine breeding, summer, winter, migratory usage,
and habitat condition of the site." Friends relies on this quoted language to argue
that surveys are required '"during all seasons of the year to determine ....
migratory usage ... of the site."' Opening Br. ofPet'rs at 19 (alterations in
original), also quoted in Reply Br. ofPet'rs at 16. From this language, Friends
argues that because WREP did not conduct surveys during the migratory period of
the olive-sided flycatcher, the requirement to "determine migratory usage" was not
satisfied.
However, this requirement is part of the ongoing oversight of the project and
is not relevant to the sufficiency ofpreapplication studies. In essence, WAC 463-
62-040(2)(±) requires that the SCA and the ongoing oversight mechanisms ensure
that WREP studies wildlife impacts in all seasons. If, for example, an unexpectedly
high number of olive-sided flycatcher mortalities occur, WREP might be required
to implement additional mitigation measures. This section does not, however,
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Friends ofColumbia Gorge v. EFSEC, No. 88089-1
provide a basis for challenging preapplication wildlife studies. Friends had the
opportunity to submit contradictory evidence during the adjudication. EFSEC
considered the evidence submitted by Friends and determined that the benefits of
the project outweighed the costs.
Even if the regulation did apply as Friends suggests it does, no violation has
been shown. When the regulation is read as a whole, it requires the surveys to be
conducted throughout the year so as to understand flight patterns during different
seasons. Here, as Friends acknowledges, surveys were conducted between
September 11 and November 4, 2004; May 15 and July 14, 2006; and December 4,
2008 and May 29, 2009. Thus, WREP conducted surveys during 11 months of the
year and all four seasons. Friends' ability to find a roughly two-month period
where no surveys were conducted fails to demonstrate that surveys were.not
"conducted during all seasons," especially since there is no indication that WREP
intentionally skipped this period of time in its studies. This argument was raised in
the process. EFSEC properly considered the conflicting evidence and made its
recommendation in light of the entire record. Friends thus fails to meet its burden
under the AP A.
23
Friends a/Columbia Gorge v. EFSEC, No. 88089-1
c. EXISTENCE OF A MITIGATION PARCEL
As the no net loss rule suggests, mitigation parcels are often required. See
WAC 463-62-040. During the adjudication, WREP proposed a 100-acre mitigation
parcel. Friends argues that WREP proposed the site too late in the adjudication for
Friends to contest the site and that EFSEC made contradictory statements as to the
nature of its decision regarding the mitigation parcel. Though none of the parties
address ripeness, this dispute does not appear to be ripe. The only finding EFSEC
made as to habitat mitigation was that it was required. 16 Similarly, the SCA
acknowledges that a parcel has been proposed but makes no finding as to the
adequacy of that parcel, instead requiring WREP to work with WDFW to take
appropriate mitigation measures. As the actual mitigation measures are yet to be
determined, there appears to be no agency action for Friends to challenge. 17
16
Friends also argues that EFSEC made inconsistent statements about the mitigation
parcel, making it impossible to tell whether it was accepted or not. However, this argument relies
on selective quotation of the record. For example, it cites EFSEC manager AI Wright's statement
that "EFSEC had 'considered and favorably regarded' the mitigation parcel" as evidence that the
parcel played a role in EFSEC's decision. Opening Br. ofPet'rs at 39 (citing AR at 28720).
However, the sentence concludes that "[EFSEC] did not make a finding on that particular issue
because it was never culminated into a stipulated agreement to the Council." AR at 28720. Read
as a whole, EFSEC's order and the SCA state that the parcel might be adequate and that further
negotiations would need to occur between WREP and WDFW before a final determination was
made.
17
EFSEC and the governor make the alternative argument that offering the mitigation
parcel in rebuttal testimony was proper because the testimony was filed on December 16, 2010,
and the adjudication did not begin until January 3, 2011. We need not address this argument
because, regardless of whether this was enough to time for Friends to prepare a challenge to the
parcel, EFSEC itself held that the parcel had not been formally offered and the issue is not ripe.
24
Friends ofColumbia Gorge v. EFSEC, No. 88089-1
Friends also makes the argument that deferring acceptance of the mitigation
parcel essentially insulates the decision from scrutiny or participation by either
Friends or by the public. WREP appears to agree with this argument, suggesting
that opponents have already had their chance to challenge the project. Resp. Br. of
Intervenor-Resp't WREP at 35-38. EFSEC and the governor make a more
measured response, writing that Friends will still have an opportunity for input. Br.
ofResp'ts at 34, 65. Although it is unclear what the scope of Friends' involvement
can or will be in the future, it is premature to address the issue here. Adopting
Friends' position would require that the final order and SCA completely resolve
every potential issue. But complete resolution at the planning stage would be
impractical due to the complicated nature of the projects and the likelihood that
additional issues will arise later. Moreover, EFSEC has discretion to seek public
comment or conduct additional adjudications if necessary. Friends may have ample
opportunity for continued participation. The issue is not ripe for our resolution.
d. AESTHETIC, HERITAGE, AND RECREATIONAL MITIGATION
Friends next argues that the project violates RCW 80.50.010's directive to
use "available and reasonable methods" so that approved projects "produce
minimal adverse effects on the environment." These potential adverse effects
include aesthetic, heritage, and recreational resources. RCW 80.50.01 0(2); WAC
25
Friends o.fColumbia Gorge v. EFSEC, No. 88089-1
463--4 7-11 0(1 )(b). Friends points to two potential measures that were overlooked:
radar-activated safety lighting and a reduction in the amount of time turbine blades
would spin. 18
Friends' argument seems to be that the statute's use of"minimal" requires
EFSEC to impose every mitigation measure so that the impact is objectively
minimized. However, this argument reflects an extreme reading of the statute and
misunderstands EFSEC's role in balancing competing interests. EFSEC did restrict
the number and location of turbines largely in response to aesthetic concerns.
Further, both the adjudicative order and the SCA require additional aesthetic
mitigation tactics, including the use of micro siting and limiting how onsite
maintenance buildings will look. These measures are sufficient to show
compliance with RCW 80.50.010. And since the proposal was reduced and
conditioned, the argument, in essence, is that these measures were not enough to
satisfy the statute. However, since the burden is on Friends to establish
noncompliance, we reject the challenge. RCW 34.05.570(1)(d).
18
The requirement to "produce minimal adverse effects on the environment" is also
stated in WAC 463-14-020(1), as well as alluded to in WAC 463-60-085(1). Friends reiterates
this same argument with regards to these WAC sections. These arguments are unpersuasive for
the same reasons described here.
26
Friends ofColumbia Gorge v. EFSEC, No. 88089-1
e. CONSISTENCY WITH COUNTY CODE
i. Relevant Facts
Before WREP submitted its application, the county sought to update its
zoning code to specifically authorize wind generation facilities and then issued a
mitigated determination of nonsignificance, which would have avoided SEP A
review for the changes. However, the county's hearing examiner found this
inappropriate and determined that SEP A review would be required before the code
changes could be adopted. The county, citing budgetary concerns, decided not to
challenge that decision or go through SEPA review. Because ofthis action, WREP
submitted an application through EFSLA.
The land use consistency hearing occurred on May 7, 2009, and was
conducted as an adjudication under the AP A. In the adjudicative order, EFSEC
chastised Friends for raising numerous "arguments [that] have little or no
relevance." AR at 29339. Ultimately, the dispute largely centered on the legal
effect of the county's comprehensive plan and various forest practices rules.
EFSEC dismissed these arguments and found that the project complied with the
county's code because the project site was located in an unmapped zone and all
activities not declared a nuisance by a court were allowed in unmapped zones. It
27
Friends ofColumbia Gorge v. EFSEC, No. 88089-1
also found that renewable energy fit with the comprehensive plan's conservancy
designation. Friends now challenges the determination of consistency.
ii. Analysis
After the informational public hearing, EFSEC is required to "conduct a
public hearing to determine whether or not the proposed site is consistent and in
compliance with city, county, or regional land use plans or zoning ordinances."
RCW 80.50.090(2). If consistent, the local jurisdiction cannot subsequently amend
any rules to affect the proposed site. If inconsistent, EFSEC can preempt the
conflicting regulations and allow the project to move forward. RCW 80.50.11 0(2);
Residents, 165 Wn.2d at 311 n.13. A certificate from local authorities is considered
''prima facie proof of consistency and compliance with such land use plans and
zoning ordinances absent contrary demonstration by anyone present at the
hearing." WAC 463-26-090 (second emphasis added).
The parties make numerous arguments regarding whether the project is
consistent with Skamania County's comprehensive plan or if consistency with the
comprehensive plan is even required. These arguments are unnecessary, however,
as the project is authorized outright by the local zoning code. Under the county's
zoning code, areas "where no formal adoption of any zoning map has taken place
will be designated as unmapped." Skamania County Code (SCC) § 21.64.010. In
28
Friends ofColumbia Gorge v. EFSEC, No. 88089-1
these unmapped areas, "all uses which have not been declared a nuisance by
statute, resolution, ordinance, or court of jurisdiction are allowable." sec §
21.64.020. The code's conditions are satisfied here because the proposed project
site lies outside of the formal zoning map and because wind farms have not been
declared a nuisance by any of the relevant authorities. Using a disjunctive, EFSLA
requires only that the project be consistent with either "land use plans or zoning
ordinances." RCW 80.50.090(2) (emphasis added). Because the use is allowed by
the zoning ordinance, it need not be consistent with "land use plans." Thq~:,,we
affirm EFSEC's determination of consistency and need not address the majority of
the remaining arguments.
iii. Moratorium
At the time of the EFSEC hearing, Skamania County had passed a
moratorium prohibiting, in relevant part, the "acceptance and processing of
[SEPA] checklists related to forest practice conversions." AR at 16856. Friends
argues.that this mor(;ltorium is a "land use regulation" and is inconsistent with the
project. EFSEC and WREP make a threshold argument that the moratorium is not
a "zoning ordinance" under EFSLA, which would mean that its consistency with
the project is irrelevant.
29
Friends ofColumbia Gorge v. EFSEC, No. 88089-1
EFSLA defines a "zoning ordinance" as "an ordinance of a unit of local
government regulating the use of land and adopted pursuant to chapter ... 36.70[]
or 36.70A." RCW 80.50.020(22). In addition to being passed by a local unit of
government, the moratorium is entitled "Ordinance 2010-1 0" (emphasis added)
and it explicitly references chapters 36.70 and 36.70A RCW. See AR 16854-856.
However, the moratorium does not regulate how land is used. Rather, it regulates
the county's processing of SEPA checklists and is not land use regulation within
the definition provided by EFSLA.
But even if the moratorium were a land use regulation within the meaning of
EFSLA, it would not be inconsistent with the project because the moratorium only
restricts the county's acceptance and processing of SEPA checklists. Under the
county's code, a SEP A checklist is "not needed if ... SEP A compliance has been
initiated by another agency." SCC 16.04.070(A). Here, EFSEC initiated SEPA
review and the county will not need to accept or process a SEP A checklist. Since
the county will neither accept nor process any SEP A checklists, the moratorium is
not implicated. It should also be noted that the moratorium appears to have been
directed more toward stopping residential expansion than preserving forestland or
prohibiting all construction. Thus, we hold that the moratorium does not apply to
this project.
30
Friends of Columbia Gorge v. EFSEC, No. 88089-1
f. F AlLURE To FULLY RESOLVE ISSUES
Friends alleges that EFSEC' s postponement of two remaining issues means
t~mt it failed to resolve all contested issues, thereby warranting remand. The first
issue iJ!.volves the fact that the micrositing will take place, making the final
location of the windmills unknown. However, Friends withdrew this argument in
its reply brief based on the admission that the windmills will be located in
predefined corridors. We need not address this issue.
The remaining issue is whether EFSEC' s decision to defer review of
compliance with the Forest Practices Act was improper. The SCA requires an
application to be submitted 60 days before engaging in certain activities. This
requirement continues throughout the life of the project. The Department of
Natural Resources (DNR\ which typically processes applications under the Forest
Practices Act, has input on any permitting under the Act. WREP is required to
coordinate with DNR before submitting final applications to EFSEC. As in much
of its briefing, Friends appears to argue that every subissue must be resolved
before an issue is "dispos[ed] of' for the purposes of WAC 463-30-320(6). No
authority is cited for the idea that the Forest Practices Act must be dealt with in an
EFSEC adjudication. To the extent that the Act's applicability is a "contested
issue[]," WAC 463-30-320(6), EFSEC resolved this issue by requiring continuing
31
Friends of Columbia Gorge v. EFSEC, No. 88089-1
compliance with the Act. Also, by requiring applications to be submitted 60 days
before engaging in forest practices, EFSEC mirrored the statute's time frame for
submitting· applications rather than requiring the applications to be submitted years
in advance. We hold that EFSEC sufficiently resolved this issue.
As discussed above in section III.C, Friends' remaining concerns about the
availability of public participation and judicial review are not ripe.
g. SCA's INTERNAL INCONSISTENCY
Friends further asserts that the SCA is inconsistent in its treatment of Forest
Practices Act compliance. This inconsistency is explained by the different nature
of the two quoted sections. Section IV.L of the SCA relates to the construction of
the facility, while section VII.E relates to the ongoing operations at the facility and
any later activities that might involve forest practices. AR 29293, 29302. Even if
this did not fully explain the slightly different language, it is unclear why this
inconsistency would cause sufficient prejudice to warrant reversal. The Forest
Practices Act applies and any problem at some future time would have to be
resolved on the specific facts at issue.
32
Friends of Columbia Gorge v. EFSEC, No. 88089-1
h. ATTORNEY FEES AND COSTS
Friends also seeks costs and fees. However, Friends is not a prevailing party
and is therefore not entitled to recover its costs and fees under the equal access to
justice act, RCW 4.84.350. 19
IV. CONCLUSION
Because Friends fails to meet its burden under the APA, we affirm EFSEC's
recommendation and the governor's acceptance and approval of the WREP project.
19
Friends also argues that regardless of whether it prevails, it should be entitled to one-
half the cost of preparing and transmitting the administrative record under RCW 34.05.566(5)(a)
because respondent parties unreasonably refused to stipulate to a shortened record. We also deny
this request. Friends spent a great deal of time and money to create this record and, given the
number of parties and issues, it would have been difficult and time-consuming to arrive at a
stipulated record, especially before the issues had been narrowed by any stipulation. Friends'
request for one-half the cost of preparing and transmitting the adjudicative record is denied.
33
Friends ofColumbia Gorge v. EFSEC, No. 88089-1
WE CONCUR:
lnada&n' c '9·
~
34