Olympic Stewardship Foundation v. Wa State Dept Of Ecology

Filed
Washington State
Court of Appeals
Division Two
June 20, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
OLYMPIC STEWARDSHIP FOUNDATION, No. 47641-0-II
J. EUGENE FARR, WAYNE and PEGGY
KING, ANNE BARTOW, BILL ELDRIDGE,
BUD and VAL SCHINDLER, RONALD
HOLSMAN, CITIZENS’ ALLIANCE FOR
PROPERTY RIGHTS LEGAL FUND, MATS
MATS BAY TRUST, JESSE A. STEWART
REVOCABLE TRUST, CRAIG DURGAN,
and HOOD CANAL SAND & GRAVEL,
d/b/a THORNDYKE RESOURCES,
Petitioners,
v.
STATE OF WASHINGTON PART PUBLISHED OPINION
ENVIRONMENTAL AND LAND USE
HEARINGS OFFICE, acting through the
WESTERN WASHINGTON GROWTH
MANAGEMENT HEARINGS BOARD,
STATE OF WASHINGTON DEPARTMENT
OF ECOLOGY, JEFFERSON COUNTY, and
THE HOOD CANAL COALITION,
Respondents.
JOHANSON, J. — The subject of this appeal is Western Washington Growth Management
Hearings Board’s (Board) final decision and order that upheld Jefferson County’s 2014 Shoreline
Master Program (Master Program). Olympic Stewardship Foundation (OSF), Citizen’s Alliance
for Property Rights Jefferson County (CAPR), et al., and Hood Canal Sand and Gravel (S&G)
No. 47641-0-II
appeal various aspects of the Board’s decision. The appellants raise numerous and largely separate
and distinct issues. Thus, in the published portion of the opinion, after providing brief background
information and general standards of review, we address OSF’s issues in Part One, CAPR’s issues
in Part Two, and S&G’s issues in Part Three. We address the appellants’ remaining arguments in
Parts One, Two, and Three of the unpublished portion of the opinion respectively. Finding no
error in the Board’s decision, we affirm.
BACKGROUND
Since 1974, Jefferson County (the County) has had several Master Programs. Under the
Shoreline Management Act of 1971 (SMA),1 each County is required to adopt and administer a
Master Program. Citizens for Rational Shoreline Planning v. Whatcom County, 172 Wash. 2d 384,
387, 258 P.3d 36 (2011). A Master Program is a combination of planning policies and
development regulations that addresses shoreline uses and development. WAC 173-26-
020(24), -186.
In 2003, the Department of Ecology (DOE) formally adopted guidelines (Master Program
guidelines) for the development and approval of new and updated Master Programs by local
governments.2 Ch. 173-26 WAC. The SMA and the Master Program guidelines afford substantial
discretion to local governments to adopt Master Programs that reflect local circumstances. WAC
173-26-171(3)(a). But Master Programs must comply with Master Program guidelines and will
1
Ch. 90.58 RCW.
2
The DOE acts “primarily in a supportive and review capacity with an emphasis on providing
assistance to local government and on insuring compliance with the policy and provisions of this
chapter.” RCW 90.58.050.
2
No. 47641-0-II
not be effective until reviewed and approved by the DOE. RCW 90.58.080(1), .090. A Master
Program becomes part of Washington’s shoreline regulations once approved by the DOE. Citizens
for Rational Shoreline Planning, 172 Wash. 2d at 392. The Board hears challenges to the DOE
approval of Master Programs or amendments. RCW 90.58.190(2)(a).
In January 2004, the legislature mandated that all jurisdictions update their Master
Programs by 2014. Ch. 173-26 WAC; RCW 90.58.080(7).
In 2005, the County initiated the Master Program amendment process. The County’s
Department of Community Development (DCD) formed two advisory committees to assist staff
and consultants with planning and executing the Master Program amendment process. The DCD
formed the Shoreline Technical Advisory Committee to compile and review current scientific and
technical information. The DCD also established a Shoreline Policy Advisory Committee to assist
with the development of goals, policies, and regulations based on the scientific and technical
information. Between 2006 and 2008, the DCD informed the public about the update through e-
mail and through numerous open public events to ensure public participation in the amendment
process and provide the public with opportunities to comment on the Master Program.
In preparation for the Master Program amendment, the DCD staff worked with an outside
consultant and the Shoreline Technical Advisory Committee to prepare the November 2008 “Final
Shoreline Inventory and Characterization Report” (SI). The SI was based on over 200 sources,
many of which focused on Western Washington and the Puget Sound and some discussed marine
environments. The DOE provided technical support to the County for preparing the SI by
3
No. 47641-0-II
conducting a detailed watershed characterization3 of East Jefferson County using a landscape
analysis. This analysis identified areas that were the most important to maintaining ecosystems;
areas that degraded the ecosystems because of human-caused alterations; and areas that were best
suited for protection, development, and/or restoration.
A 2004 report relied on by the SI documented pollution from toxic substances, runoff from
rainwater, loss of habitat, and declines in key parts of the food web ecology in many areas of the
Puget Sound. The report further noted that the region’s population was expected to grow by
another 1.4 million people over the next 15 years.
The SI stated that the County’s shoreline contains critical habitats and is home to numerous
threatened and endangered species, including declining salmonid species. From that evaluation,
the SI concluded that “virtually all of the County’s nearshore marine environment supports or has
the potential to support highly valuable and ecologically sensitive resources.” Administrative
Record (AR) at 6273.
The SI evaluated key species, habitats, and ecosystems in specific areas in the county
shoreline. The SI also described development adjacent to individual shoreline segments, including
the armoring,4 marinas, beach access stairs, docks, and other structures for each shoreline area. In
addition, the SI included a large map folio detailing the characteristics of the County’s state
3
“‘Watershed’ means a geographic region within which water drains into a particular river, stream
or body of water.” Jefferson County Code (JCC) 18.25.100(23)(h).
4
“‘Shore armoring’ or ‘structural shoreline armoring’ refers to the placement of bulkheads and
other hard structures on the shoreline to provide stabilization and reduce or prevent erosion caused
by wave action, currents and/or the natural transport of sediments along the shoreline. Groins,
jetties, breakwaters, revetments, sea walls are examples of other types of shoreline armoring.”
JCC 18.25.100(19)(l).
4
No. 47641-0-II
shorelines including marine and freshwater shoreline planning areas, water flows for rivers and
streams, soil types, channel migration zones and flood plains, areas designated as critical areas and
critical shoreline habitats, and the locations of aquatic vegetation, shoreline use patterns, and
shellfish harvesting areas.
In the SI report, the County designated S&G’s shoreline property as a “conservancy” area
based on the property’s environmental attributes, including: high-functioning shoreline resources
with a low degree of modification or stressors, the presence of salmonid habitats, the presence of
erosive or hazardous slopes, and the presence of commercial shellfish beds.
A 2009 action agenda by the Puget Sound Partnership identifies six broad categories of
threats to the region’s ecology, including habitat alteration, pollution, surface/groundwater
impacts, artificial propagation, harvest, and invasive species. The agenda notes that these issues
are likely to be exacerbated in the future by climate change and population growth.
In February 2010, the DCD staff and consultants prepared the “Cumulative Impacts
Analysis” (CIA). The CIA assessed the total collective effects that the goals, policies, shoreline
designations, and regulations proposed in the locally approved Master Program (Draft Master
Program) would have on shorelines if all allowed use and development occurred.
In March 2010, the DCD sent the Draft Master Program to the DOE for review. The DOE
also considered and sent comments about the CIA to the Jefferson County Board of Community
Commissioners (Commissioners). In January 2011, the DOE concluded that the County met the
SMA’s procedural and policy requirements and announced conditional approval of the Draft
Master Program with some required and recommended changes along with findings and
conclusions to support the decision. After further edits and communication with the DOE, the
5
No. 47641-0-II
Commissioners approved and adopted the County’s final Master Program in December 2013. In
February 2014, the DOE approved the Master Program and it became effective. The Master
Program is codified at ch. 18.25 Jefferson County Code (JCC).5
Appellants OSF, CAPR, and S&G (collectively petitioners) each timely filed petitions for
review with the Board to challenge the County’s Master Program. The Board consolidated the
petitions and conducted a hearing on the merits. On March 16, 2015, the Board upheld the Master
Program, denied all of the petitioners’ claims, and dismissed their petitions. Petitioners appealed
to the Jefferson County Superior Court in April. In September 2015, upon a motion by the DOE
that was supported by the County, we granted direct review removing the petitions from the
superior court. Petitioners appeal the Board’s decision and order.6
ANALYSIS
LEGAL PRINCIPLES7
A. THE GROWTH MANAGEMENT HEARINGS BOARD
Challenges to a Master Program are governed by the SMA and are adjudicated by the
Board. RCW 90.58.190(2)(a). The Board is charged with ensuring that Master Programs comply
5
Specific provisions of the Master Program contested by petitioners are not included in the fact
section but are included in the analysis sections in which they are discussed.
6
Two organizations, Futurewise and the Washington Environmental Council, filed an amicus brief
in which they argue that the Board properly evaluated and upheld the Master Program. Pacific
Legal Foundation also filed an amicus brief in which they argue that the Board’s decision should
be reversed because the Board improperly interpreted the SMA and concluded that the necessary
showing was made for the imposition of riparian buffers.
7
These standards of review and rules of law are applied throughout the opinion.
6
No. 47641-0-II
with the Growth Management Act (GMA),8 the SMA, and the DOE guidelines. RCW 36.70A.280;
RCW 90.58.190(2), .200, .060; WAC 173-26-171 through -251.
A petitioner has the burden of proof in any appeal to the Board for review of the DOE’s
approval of a Master Program or amendment. RCW 90.58.190(2)(d). Where a challenge is to
provisions regulating shorelines of statewide significance (SSWS), “the board shall uphold the
decision by the [DOE] unless the board, by clear and convincing evidence, determines that the
decision of the [DOE] is noncompliant with the policy of [the SMA] or the applicable guidelines,
or chapter 43.21C RCW as it relates to the adoption of master programs.” RCW 90.58.190(2)(c).
If a challenge is to provisions regulating shorelines not in the SSWS category, the Board
shall review the proposed Master Program “solely for compliance with the requirements” of the
SMA, the applicable Master Program guidelines, and other internal consistency provisions from
the GMA. RCW 90.58.190(2)(b). With respect to provisions affecting only shorelines, a petitioner
must establish that the provisions at issue are “clearly erroneous” in view of the entire record
before the Board. RCW 36.70A.320(3) (emphasis added).
The County has shorelines falling under both categories. The Board thus examined the
County’s Master Program under both SSWS and shoreline scopes of review and applicable
burdens of proof.
B. ADMINISTRATIVE PROCEDURE ACT
The Administrative Procedure Act (APA), ch. 34.05 RCW, governs judicial review of
challenges to actions by growth management hearings boards. RCW 34.05.570; Quadrant Corp.
8
Ch. 36.70A RCW.
7
No. 47641-0-II
v. Cent. Puget Sound Growth Mgmt. Hr’gs Bd., 154 Wash. 2d 224, 233, 110 P.3d 1132 (2005). Under
the APA, the party asserting invalidity bears the burden of establishing the invalidity. Quadrant
Corp., 154 Wash. 2d at 233.
The decision is invalid if it suffers from at least one of nine enumerated infirmities. RCW
34.05.570(3). We must grant relief from the decision if
(a) [t]he order, or the statute or rule on which the order is based, is in
violation of constitutional provisions on its face or as applied;
....
(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;
....
(i) The order is arbitrary or capricious.
RCW 34.05.570(3).
We give due deference to the Board’s specialized knowledge and expertise. Buechel v.
Dep’t of Ecology, 125 Wash. 2d 196, 202-03, 884 P.2d 910 (1994).
We apply the substantial evidence review standard to challenges to the Board’s factual
findings under RCW 34.05.570(3)(e) to determine if there is a sufficient quantity of evidence to
persuade a fair-minded person of the truth or correctness of the order. Spokane County v. E. Wash.
Growth Mgmt. Hr’gs Bd., 176 Wash. App. 555, 565, 309 P.3d 673 (2013). We view the evidence in
the light most favorable to the party which prevailed in the highest forum that exercised fact-
finding authority, and we give deference to the Board’s factual findings. DeFelice v. Emp’t Sec.
Dep’t, 187 Wash. App. 779, 787, 351 P.3d 197 (2015).
We apply the arbitrary and capricious review standard to challenges under RCW
34.05.570(3)(i), determining whether the decision constitutes willful and unreasoning action taken
8
No. 47641-0-II
without regard to or consideration of the facts and circumstances surrounding the action. Spokane
County, 176 Wash. App. at 565-66. If there is room for two opinions, action taken after due
consideration is not arbitrary and capricious even if a reviewing court may believe it to be
erroneous. Spokane County, 176 Wash. App. at 566.
We review de novo a challenge under RCW 34.05.570(3)(d) that asserts that the Board
erroneously interpreted or applied the law. City of Redmond v. Cent. Puget Sound Growth Mgmt.
Hr’gs Bd., 136 Wash. 2d 38, 46, 959 P.2d 1091 (1998). In doing so, “‘[w]e accord deference to an
agency interpretation of the law where the agency has specialized expertise in dealing with such
issues, but we are not bound by an agency’s interpretation of a statute.’” Quadrant Corp., 154
Wash. 2d at 233 (alteration in original) (quoting City of Redmond, 136 Wash. 2d at 46).
“Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial
consideration.” Holland v. City of Tacoma, 90 Wash. App. 533, 538, 954 P.2d 290 (1998). We also
do not consider claims unsupported by legal authority, citation to the record, or argument. RAP
10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wash. 2d 801, 809, 828 P.2d 549 (1992).
PART ONE – OSF APPEAL
OSF appeals the Board’s final decision and order that upheld Jefferson County’s 2014
Master Program. Specifically, OSF argues that (1) the Board’s decision to uphold the Master
Program is based on an erroneous SMA interpretation, (2) the Board erred when it approved the
Master Program because it did not comply with several provisions of the SMA, and (3) the Board
erred when it upheld the Master Program “no-net-loss” requirement for permit applicants because
that requirement conflicts with the SMA by improperly restricting development and the SMA
“minimization standard” must control instead. We reject OSF’s arguments.
9
No. 47641-0-II
ANALYSIS
I. BOARD PROPERLY INTERPRETED THE SMA
First, OSF argues that the Board’s decision to uphold the Master Program is based on an
erroneous SMA interpretation that private property rights are secondary to the SMA’s purpose of
protecting the environment. We disagree.
A. APPLICABLE LAW
The SMA’s policy and use preference for shorelines is detailed in RCW 90.58.020:
The legislature finds that the shorelines of the state are among the most valuable
and fragile of its natural resources and that there is great concern throughout the
state relating to their utilization, protection, restoration, and preservation. In
addition it finds that ever increasing pressures of additional uses are being placed
on the shorelines necessitating increased coordination in the management and
development of the shorelines of the state. . . .
. . . This policy contemplates protecting against adverse effects to the public
health, the land and its vegetation and wildlife, and the waters of the state and their
aquatic life, while protecting generally public rights of navigation and corollary
rights incidental thereto.
The legislature declares that the interest of all of the people shall be
paramount in the management of shorelines of statewide significance. The [DOE],
in adopting guidelines for shorelines of statewide significance, and local
government, in developing master programs for shorelines of statewide
significance, shall give preference to uses in the following order of preference
which:
(1) Recognize and protect the statewide interest over local interest;
(2) Preserve the natural character of the shoreline;
(3) Result in long term over short term benefit;
(4) Protect the resources and ecology of the shoreline;
(5) Increase public access to publicly owned areas of the shorelines;
(6) Increase recreational opportunities for the public in the shoreline;
(7) Provide for any other element as defined in RCW 90.58.100 deemed
appropriate or necessary.
In the implementation of this policy the public’s opportunity to enjoy the
physical and aesthetic qualities of natural shorelines of the state shall be preserved
to the greatest extent feasible consistent with the overall best interest of the state
and the people generally. To this end uses shall be preferred which are consistent
with control of pollution and prevention of damage to the natural environment, or
are unique to or dependent upon use of the state’s shoreline.
10
No. 47641-0-II
(Emphasis added.)
This SMA policy is also informed by the State Environmental Policy Act (SEPA), ch.
43.21C RCW, which states that “to the fullest extent possible: (1) [t]he policies, regulations, and
laws of the state of Washington shall be interpreted and administered in accordance with the
policies set forth in this chapter.” RCW 43.21C.030. Among the SEPA policies applicable to the
SMA are the recognition of “the responsibilities of each generation as trustee of the environment
for succeeding generations,” RCW 43.21C.020(2)(a), and the recognition that “each person has a
fundamental and inalienable right to a healthful environment and that each person has a
responsibility to contribute to the preservation and enhancement of the environment.” RCW
43.21C.020(3). Accord Puget Soundkeeper All. v. Pollution Control Hr’gs Bd., 189 Wash. App.
127, 148, 356 P.3d 753 (2015).
The Master Program guidelines direct how the SMA policy provision should be
implemented. For example, the Master Program guidelines state that single-family residences are
a priority use for shoreline development “when developed in a manner consistent with control of
pollution and prevention of damage to the natural environment.” WAC 173-26-241(3)(j)
(emphasis added). The Master Program guidelines acknowledge that any development, including
residential development, may cause significant damage to the shoreline and provides that Master
Programs must mitigate such environmental damage. WAC 173-26-241(3)(j). Specifically, the
Master Program guidelines state, “Master programs shall include policies and regulations that
assure no net loss of shoreline ecological functions will result from residential development.”
WAC 173-26-241(3)(j) (emphasis added). The concept of “no net loss” is incorporated into the
SMA and elsewhere in the Master Program guidelines. RCW 90.58.620; WAC 173-26-186(8).
11
No. 47641-0-II
B. NO ERRONEOUS INTERPRETATION
OSF argues that the Board’s decision to uphold the Master Program was based on an
erroneous interpretation of the SMA that property rights are secondary to the primary goal of
protecting, restoring, and enhancing the environment. OSF specifically challenges two passages
of the Board’s decision.
The first statement that OSF challenges is that private property rights are secondary to the
SMA’s primary purpose of protecting state shorelines as fully as possible. However, OSF ignores
that the statement is consistent with our interpretation of the SMA. The Board’s statement is a
quote from Samson v. City of Bainbridge Island, which states, “[C]ontrary to the appellant’s claims
that RCW 90.58.020 states a policy of protecting private property rights, . . . private property rights
are ‘secondary to the SMA’s primary purpose, which is to protect the state shorelines as fully as
possible.’” 149 Wash. App. 33, 49, 202 P.3d 334 (2009) (internal quotation marks omitted) (quoting
Lund v. Dep’t of Ecology, 93 Wash. App. 329, 336-37, 969 P.2d 1072 (1998)). Samson refutes the
general idea that the SMA must always prioritize private property rights.
The Board properly quoted Samson to support its analysis that even though single-family
homes are one of the priority uses under the SMA, the County may still restrict structures or uses
on residential property in furtherance of ecological protection goals. In fact, reasonable and
appropriate uses should be allowed on the shorelines only if they will result in no net loss of
shoreline ecological functions and systems. See RCW 90.58.020; WAC 173-27-241(3)(j). The
Board’s quotation of Samson does not demonstrate that the Board erroneously interpreted the
SMA.
The second passage that OSF challenges states,
12
No. 47641-0-II
[T]he Board finds that RCW 90.58.020 establishes state policy to manage
shorelines with an emphasis on the maintenance, protection, restoration, and
preservation of “fragile” shoreline “natural resources,” “public health,” “the land
and its vegetation and wildlife,” “the waters and their aquatic life,” “ecology” and
“environment.”
AR at 7483. But this language comports with the SMA policy provision quoted above. See RCW
90.58.020. We hold that the two passages OSF relies on do not demonstrate that the Board
erroneously interpreted the SMA.9
II. MASTER PROGRAM COMPLIES WITH SMA
OSF argues that the Board erred when it approved the Master Program because the Master
Program did not comply with the SMA. Specifically, OSF argues that the Board erred when it
upheld (1) the Master Program’s designation of all the county shorelines as “critical areas” and (2)
the Master Program’s imposition of a 150-foot standard marine buffer.10 These arguments fail.
A. INCORPORATION OF COUNTY’S CRITICAL AREAS ORDINANCE INTO THE MASTER PROGRAM
First, OSF argues that the Board erred when it upheld the Master Program because the
Master Program incorporated the County’s 2000 “Critical Area Ordinance” (CAO) designation of
all shorelines as “critical areas” without proper review of the CAO by the DOE, which violates the
SMA. We reject these arguments.
9
OSF also argues that the Board’s interpretation of the SMA conflicts with law from numerous
cases that hold that “while the SMA emphasizes protection of natural shorelines, it simultaneously
allows for development, expressing the intent to protect private property rights.” Br. of Appellant
(OSF) at 22. This argument is unpersuasive because as analyzed above, the two passages from the
Board decision do not conflict with the SMA’s balancing of preservation and development.
10
OSF concedes in its reply that the County has general authority to update the Master Program.
We accept OSF’s concession that the Master Program update itself was legally mandated, and we
disregard OSF’s argument that the Master Program update needed justification.
13
No. 47641-0-II
1. APPLICABLE LAW
The GMA governs the protection afforded to state shorelines. RCW 36.70A.480. CAOs
adopted by local governments under the GMA apply to shorelines until the DOE approves a Master
Program update, at which time the shorelines’ critical areas are regulated exclusively under the
SMA. RCW 36.70A.480(3)(d); Kitsap All. of Prop. Owners (KAPO) v. Cent. Puget Sound Growth
Mgmt. Hr’gs Bd., 160 Wash. App. 250, 257, 255 P.3d 696 (2011).
The Master Program guidelines thus note that “[f]or the purposes of completeness and
consistency,” local governments may include other locally adopted policies and regulations
including CAOs into Master Programs. WAC 173-26-191(2)(b). This incorporation is allowed as
long as the incorporated provisions meet SMA requirements. RCW 36.70A.480(4). Among those
is the requirement of RCW 36.70A.480(4) that Master Programs “provide a level of protection to
critical areas located within shorelines of the state that assures no net loss of shoreline ecological
functions necessary to sustain shoreline natural resources as defined by [the DOE] guidelines.” In
other words, the incorporated CAO provision must be consistent with RCW 90.58.020 and
applicable Master Program guidelines, achieve no net loss, and provide a level of critical areas
protection at least equal to that provided by the local government’s CAOs. RCW 90.58.090(4).
2. BOARD DECISION
The Board concluded that the DOE’s review assured that the incorporated CAO met the
“‘no net loss of ecological functions’” requirement for Master Programs prescribed in the GMA
and as referenced in RCW 36.70A.480(4). AR at 7500. Thus, the Board concluded that OSF had
not met its burden to establish that the County failed to meet the SMA or Master Program guideline
requirements for the incorporation of the County’s CAO into the Master Program.
14
No. 47641-0-II
3. ANALYSIS
Here, the GMA and Master Program guidelines expressly provide that Master Programs
may incorporate existing CAO provisions if they are consistent with the SMA and Master Program
guideline requirements. RCW 36.70A.480(4); WAC 173-26-191(2)(b). OSF argues that the
incorporation of the CAO into the Master Program “directly conflicts with the SMA” because the
SMA allows for multiple uses of shorelines, but the critical areas designation prohibits reasonable
and appropriate uses of the shoreline. Br. of Appellant (OSF) at 27.
But OSF provides no factual support11 for this assertion. Further, OSF states that the Board
did not cite to evidence showing that the DOE reviewed the CAO provisions for consistency with
the SMA and Master Program guideline. OSF also fails to provide legal authority that the Board
must cite to such evidence, and OSF failed to provide any other analysis or factual support showing
that the DOE failed to make the analysis OSF claims is needed. We hold that OSF has failed to
establish that the Board erred when it concluded that the Master Program’s CAO incorporation did
not violate the SMA or Master Program guidelines.
B. ADOPTION OF 150-FOOT MARINE BUFFERS
Next, OSF argues that the Board erred when it upheld the Master Program’s imposition of
a 150-foot marine buffer on all shoreline development because the Master Program was not
supported by proper evidence and violated the SMA and Master Program guidelines. OSF’s
contentions are unavailing.
11
The only factual citations in support of OSF’s arguments about the CAO are to declarations that
are not in our record and to its brief submitted to the Board characterizing the CAO. These
citations do not support OSF’s argument.
15
No. 47641-0-II
1. APPLICABLE LAW
When creating a Master Program, the DOE and the County are required to “[u]tilize a
systematic interdisciplinary approach which will insure the integrated use of the natural and social
sciences.” RCW 90.58.100(1)(a). The Master Program guideline covering periodic review and
amendments of Master Programs states that local governments should amend Master Programs
when deemed necessary to reflect changing local circumstances, new information, or improved
data. WAC 173-26-090. The GMA also addresses buffer regulations: “If a local jurisdiction’s
master program does not include land necessary for buffers for critical areas that occur within
shorelines of the state, as authorized by RCW 90.58.030(2)(f), then the local jurisdiction shall
continue to regulate those critical areas and their required buffers pursuant to RCW
36.70A.060(2).” RCW 36.70A.480(6) (emphasis added).
The Master Program guidelines also establish the type of scientific evaluation required for
Master Programs:
Before establishing specific master program provisions, local governments shall
analyze the information gathered in (c) of this subsection and as necessary to ensure
effective shoreline management provisions, address the topics below, where
applicable.
(i) Characterization of functions and ecosystem-wide processes.
(A) Prepare a characterization of shoreline ecosystems and their
associated ecological functions. The characterization consists of three steps:
(I) Identify the ecosystem-wide processes and ecological functions based
on the list in (d)(i)(C) of this subsection that apply to the shoreline(s) of the
jurisdiction.
(II) Assess the ecosystem-wide processes to determine their relationship to
ecological functions present within the jurisdiction and identify which ecological
functions are healthy, which have been significantly altered and/or adversely
impacted and which functions may have previously existed and are missing based
on the values identified in (d)(i)(D) of this subsection; and
(III) Identify specific measures necessary to protect and/or restore the
ecological functions and ecosystem-wide processes.
16
No. 47641-0-II
WAC 173-26-201(3)(d) (emphasis added).
2. BOARD DECISION
The Board devoted 10 pages of its decision to discussing the Master Program buffer
imposition and the evidence supporting it. The Board analyzed the Master Program buffer
guidelines and opined that the guidelines permitted local governments to provide land for buffers
for critical areas. The Board further found the “[Master Program], the SI, and the CIA replete with
scientific evidence demonstrating how the County met legal requirements to establish buffers and
address vegetation conservation.” AR at 7496. And the Board concluded that the County
assembled scientific justification for the buffer width selected. The Board deemed OSF’s
arguments with respect to WAC 173-26-090 and -201 abandoned for lack of legal argument. The
Board also acknowledged that RCW 36.70A.480 stated that a local government may include land
necessary for buffers for critical areas, but the Board did not analyze whether the Master Program
violated or complied with this statute.
3. ANALYSIS
Here, the Master Program imposed a standard 150-foot buffer for all freshwater and marine
water shorelines. JCC 18.25.270(4)(e). Challenging these provisions, OSF argues that the
scientific information gathered in the SI and CIA are insufficient to justify the 150-foot buffers.
OSF highlights some of the scientific resources the Master Program apparently relied on, but it
does so largely without citation to the record. OSF makes many assertions about the insufficiency
of the SI. OSF also states that the “Schaumburg Report” included in the supplemental evidence it
17
No. 47641-0-II
submitted on appeal undermines the science that the Master Program relies on.12 OSF’s arguments
attack the adequacy of the selected buffer width. The County’s choice of 150 feet, however, is
supported by the scientific evidence summarized and discussed below and is consistent with the
policies of the SMA and the provisions of the SMA guidelines.
a. SUFFICIENT EVIDENCE SUPPORTS THE MASTER PROGRAM’S BUFFER PROVISION
OSF fails to explain how the evidence supporting the buffer provision was insufficient or
how the conclusions in the Schaumburg Report undermine the Master Program’s buffer provisions
such that they must be stricken and reevaluated. When assessing the sufficiency of evidence, we
view the evidence in the light most favorable to the party who prevailed in the highest forum that
exercised fact-finding authority, here the Board. City of University Place v. McGuire, 144 Wash. 2d
640, 652, 30 P.3d 453 (2001). Accordingly, based on the evidence below, we hold that the
scientific evidence is sufficient to support the buffer requirement.
i. DOCUMENTED IMPACTS OF DEVELOPMENT AND SUPPORT FOR SHORELINE
BUFFERS
The SI documented the impacts of development on shorelines and provided support for the
buffer requirement. The SI reports that potential and documented direct impacts from the
12
The Schaumburg Report was written by an environmental consultant for OSF and asserts that
the evidence relied upon from the CIA and SI does not include any research on the county marine
environment or the efficacy of buffers in such environments. The Schaumburg Report further
concludes that the evidence relied on for the Master Program was mostly “[s]ynthesized science”
or review summaries of existing scientific literature rather than original, applicable research. Decl.
of Kim Schaumburg Re Cited Scientific Literature in Support of Jefferson County Marine Buffers
and Limits on Use, at 3 (included in (OSF’s) Second Suppl. Evidence Submitted Re Constitutional
Claims), Olympic Stewardship Found. v. W. Wash. Growth Mgmt. Hr’gs Bd., No. 47641-0-II (Mar.
16, 2016). And the Schaumburg Report states that the relevance of freshwater studies to marine
environments was not properly established but, rather, presumed based on the recommendation of
one scientific workshop.
18
No. 47641-0-II
development of piers, docks, and other shoreline modifications include loss of shoreline/riparian
vegetation, burying of habitats, damage from equipment to eggs incubating on the beach, and
lowering and coarsening of beach profiles. Indirect impacts can and have occurred from sediment
transport and impoundment and from water quality degradation from development that affects
forage fish and herring habitats. The SI further documented how development, near-shore
armoring, and vegetation removal impacted ecological functions.
The SI contained support for the adoption of a 150-foot shoreline buffer13 based on analysis
of numerous factors including comparably sized buffers adopted by other Washington counties
and the documented effect of different-sized buffers on various types of shoreline hazards.14 The
SI also states that “[d]epending on the specific nearshore resources being protected and the specific
functions being provided by the buffer, recommended widths may differ.” AR at 2446.
13
A “buffer” refers to the horizontal distance that structures have to be set back, landward, from
the shoreline high-water mark. A buffer area is required to be maintained in a vegetated,
undisturbed, and undeveloped condition to protect shoreline functions and processes.
14
The SI refers to a 2001 study of findings from the Canadian Ministry of Forestry in British
Columbia recommending buffers of 300 to 450 feet for marine shores depending on the type of
shore, wind conditions, and other factors. Other 2001 studies concluded that a 50-foot buffer is
estimated to be approximately 60 percent effective at removing sediment, while an 82- to 300-foot
buffer would remove approximately 80 percent of sediment, that a buffer as small as 27 feet could
reduce nitrogen by up to 60 percent and widths of up to 200 feet could reduce nitrogen by 80
percent, and that control of fecal coliform from agriculture or septic systems could be achieved
with a 115-foot buffer. A 2003 study stated that although sediment carried into nearshore marine
environments will seldom be of a magnitude to significantly compromise water clarity, the
minimum recommended buffer width for sediment control and pollutant removal is 98 feet. A
2004 study showed a minimum buffer of 79 feet was needed to control agricultural runoff for 20
percent slopes with slight erosion, while a 160-foot buffer would be needed to control 30 percent
slopes with severe erosion. Further, a 1997 study showed for Washington State that the average
width reported to retain riparian function for wildlife habitat was 288 feet.
19
No. 47641-0-II
ii. CUMULATIVE IMPACT ANALYSIS ON KNOWN AND POTENTIAL ECOLOGICAL
HARM
The CIA provided information about known and potential ecological harm to shorelines
resulting from construction and development. The CIA stated that “Jefferson County’s shorelines
are in relatively good condition ecologically compared to more developed areas of the Puget Sound
basin.” AR at 2361. The CIA commented on the Draft Master Program’s limitations on
development:
Importantly, the [Master Program] expressly prohibits any use/development that
would cause a net loss of ecological functions or processes. As a result, the County
must deny shoreline use and development proposals unless impacts are fully
mitigated. Specific performance standards contained in the [Draft Master
Program] that will prevent cumulative impacts from occurring are summarized in
this document.
AR at 5650 (emphasis added). The CIA further stated, “The [Draft Master Program] imposes strict
limits on construction of new bulkheads (or other types of structural shoreline stabilization or
armoring) and expansion of existing bulkheads on residential properties to prevent adverse effects
on net shore-drift, beach formation, juvenile salmon migratory habitat and other shoreline
functions.” AR at 2363. The CIA clarified that it evaluated the Draft Master Program to determine
whether it contained adequate measures to mitigate use and development such that they would
result in no net loss of ecological functions compared to baseline conditions. This evaluation
presumed impacts will occur, but it evaluated whether there were adequate measures in place so
post-development conditions are no worse overall than before development.
With respect to the Draft Master Program’s water impact, the CIA noted that nutrients and
matter entering marine waters via streams and rivers from agricultural operations, wastewater
20
No. 47641-0-II
treatment plants, and storm water runoff from residential landscapes affects the quality of the
County’s marine waters. The CIA addressed how buffers could help with this issue:
Riparian buffers offer discernable water quality protection from nearshore nutrient
sources. The effectiveness of riparian buffers for protecting water quality depends
on a number of factors, including soil type, vegetation type, slope, annual rainfall,
type and level of pollution, surrounding land uses, and sufficient buffer width and
integrity. Soil stability and sediment control are directly related to the amount of
impervious surface and vegetated cover.
AR at 5679.
The imposition of buffers protects shoreline ecological functions, processes, and habitat.
The CIA also extensively discussed the buffers as part of the Master Program’s no-net-loss
compliance and what the impact of the buffer imposition would be on existing structures.
The Master Program’s buffer requirement is amply supported by the scientific evidence.
b. THE MASTER PROGRAM’S BUFFER PROVISION DOES NOT VIOLATE THE SMA OR
MASTER PROGRAM GUIDELINES
OSF next asserts that under GMA provision RCW 36.70A.480(6) and Master Program
guideline WAC 173-26-090, protection measures, like the buffers, that differ from an existing
Master Program can be implemented only if the County proves such measures are necessary. We
disagree.
RCW 36.70A.480(6) states that if a local Master Program does not include “land necessary
for buffers for critical areas that occur within shorelines of the state,” then local governments
should continue to regulate critical areas and buffers pursuant to the GMA. (Emphasis added.)
The Master Program guideline states that local governments should amend Master Programs when
“deemed necessary to reflect changing local circumstances, new information or improved data.”
WAC 173-26-090 (emphasis added).
21
No. 47641-0-II
These provisions do not mean that a jurisdiction may impose or increase buffers only if
necessary to serve a purpose of the SMA. The first provision, RCW 36.70A.480(6), merely
specifies that if a Master Program does not include buffers necessary for critical areas, the
jurisdiction shall continue to regulate those critical areas under the GMA. The second, WAC 173-
26-090, describes when local governments should amend Master Programs in response to changing
circumstances or information. Neither provision engraft a requirement of necessity on the
adoption or amendment of Master Program provisions.
Additionally, OSF argues that the Board erred when it upheld the 150-foot buffer
regulation where the County failed to establish a baseline of whether development proposals would
impact ecological functions in order to determine if the 150-foot buffer was too extreme of a
mitigation measure as required by Master Program guideline WAC 173-26-201(3)(d).15 The
Master Program guideline WAC 173-26-201(3)(d) requires that before local governments
establish Master Programs, they must characterize the functions and ecosystem processes of the
area regulated by (1) identifying ecosystem-wide ecological functions and processes, (2) assessing
the processes to determine their relationship to the ecological functions in the jurisdiction to
determine which functions are healthy, have been altered or adversely impacted, or are missing,
and (3) identifying specific measures necessary to protect and/or restore ecological functions and
ecosystem-wide processes.
The Board deemed OSF’s arguments with respect to WAC 173-26-201 abandoned for lack
of legal argument. The Board further found that the “[Master Program], the SI, and the CIA [were]
15
OSF also cites to “WAC 173-26-201(2)(d)(A)(i)-(iii)” and “WAC 173-26-201(3)(d)(i)(v).” Br.
of Appellant (OSF) at 33. But these rules as cited do not exist.
22
No. 47641-0-II
replete with scientific evidence demonstrating how the County met legal requirements to establish
buffers and address vegetation conservation.” AR at 7496. And here, OSF fails to explain why
the evidence the Board deemed sufficient to meet the County’s legal requirements is not sufficient
under Master Program guideline WAC 173-26-201(3)(d). “Passing treatment of an issue or lack
of reasoned argument is insufficient to merit judicial consideration.” Holland, 90 Wash. App. at
538; see also RAP 10.3(a)(6). We thus decline to consider this issue further in the absence of
reasoned argument as to why the evidence is not legally sufficient under the relevant Master
Program guideline. For these reasons, the Board did not err in upholding the Master Program’s
imposition of a 150-foot marine buffer.
III. INCORPORATION OF “NO NET LOSS” INTO THE MASTER PROGRAM
OSF next argues that the Board erred when it upheld the Master Program “no-net-loss”
requirement for permit applicants because that requirement conflicts with the SMA by improperly
restricting development. OSF further argues that the SMA “minimization standard” must control
instead, otherwise all new development will be prohibited. OSF’s arguments do not persuade us.
A. APPLICABLE LAW
The SMA’s stated policy and use preference provision states, “[T]hat unrestricted
construction on the privately owned or publicly owned shorelines of the state is not in the best
public interest.” RCW 90.58.020. Thus, the policy notes, “Permitted uses in the shorelines of the
state shall be designed and conducted in a manner to minimize, insofar as practical, any resultant
damage to the ecology and environment of the shoreline area and any interference with the
public’s use of the water.” RCW 90.58.020 (emphasis added). The SMA states that amended
Master Programs approved after September 2011 may include provisions authorizing changes in
23
No. 47641-0-II
“(b) . . . occupancy, or replacement of the residential structure if it is consistent with the master
program, including requirements for no net loss of shoreline ecological functions.” RCW
90.58.620(1) (emphasis added).
In adopting the Master Program guidelines, the DOE adopted the phrase “no net loss of
ecological functions” as a guiding principle for considering whether or not to approve local
government programs. WAC 173-26-186(8)(d). In construing this principle, the Master Program
guidelines acknowledge that any development has potential for “actual, short-term or long-term
impacts” and that mitigation and other measures can assure the “end result will not diminish the
shoreline resources and values as they currently exist.” WAC 173-26-201(2)(c).
The Master Program guidelines underscore the SMA policies and state,
The principle regarding protecting shoreline ecological systems is accomplished by
these guidelines in several ways, and in the context of related principles. These
include:
....
(b) Local master programs shall include policies and regulations designed
to achieve no net loss of those ecological functions.
(i) Local master programs shall include regulations and mitigation
standards ensuring that each permitted development will not cause a net loss of
ecological functions of the shoreline; local government shall design and implement
such regulations and mitigation standards in a manner consistent with all relevant
constitutional and other legal limitations on the regulation of private property.
WAC 173-26-186(8) (emphasis added). The Master Program guidelines state that the concept of
“net”
recognizes that any development has potential or actual, short-term or long-term
impacts and that through application of appropriate development standards and
employment of mitigation measures in accordance with the mitigation sequence,
those impacts will be addressed in a manner necessary to assure that the end result
will not diminish the shoreline resources and values as they currently exist.
WAC 173-26-201(2)(c).
24
No. 47641-0-II
B. BOARD DECISION
The Board concluded that the County correctly included the no-net-loss provision in the
Master Program because the SMA clearly adopted the concept in RCW 90.58.620 and the Master
Program guidelines require that no net loss be included in Master Programs. Thus, the Board
concluded that OSF did not carry its burden to show that the Master Program’s incorporation of
the no-net-loss requirement violated the SMA.
C. ANALYSIS
OSF points to two Master Program provisions to argue that the Board erroneously approved
the DOE’s and the County’s application of “no net loss.” JCC 18.25.270(2)(b), .100(14)(e). The
first provision covered critical areas, shoreline buffers, and ecological protections and states, “Uses
and developments that cause a net loss of ecological functions and processes shall be prohibited.
Any use or development that causes the future ecological condition to become worse than current
condition shall be prohibited.” JCC 18.25.270(2)(b). The second provision is the Master
Program’s definition of “no net loss” that states,
“No net loss (NNL)” means the maintenance of the aggregate total of the county
shoreline ecological functions over time. The no net loss standard contained in
WAC 173-26-186 requires that the impacts of shoreline use and/or development,
whether permitted or exempt from permit requirements, be identified and mitigated
such that there are no resulting adverse impacts on ecological functions or
processes.
JCC 18.25.100(14)(e). OSF argues that these provisions conflict with the policy of the SMA
because the SMA no-net-loss policy is a concept gauged over time that recognizes that
development will occur. It requires planning and mitigation measures, not prohibitions like those
in the Master Program. This argument is unpersuasive.
25
No. 47641-0-II
As set out above, the Master Program guidelines state that Master Programs “shall include
policies and regulations designed to achieve no net loss of those ecological functions” and “(i) . . .
shall include regulations and mitigation standards ensuring that each permitted development will
not cause a net loss of ecological functions of the shoreline.” WAC 173-26-186(8)(b). By
necessity, a proposal not complying with these mandatory directives would be prohibited. The
denial of noncomplying proposals, however, is a common and effective feature of most regulatory
systems. Nothing in the SMA suggests an intention to permit proposals that violate its terms.
These mandatory directives from the Master Program that OSF challenges are consistent with the
SMA policy set out in RCW 90.58.020, interpreted consistently with SEPA, as discussed above.
The County’s Master Program complies with these standards through its policy to
“[e]nsure, at minimum, no net loss of shoreline ecological functions and processes,” JCC
18.25.010(1)(c), and through its mandate that “[u]ses and developments that cause a net loss of
ecological functions and processes shall be prohibited.” JCC 18.25.270(2)(b). The Master
Program prohibitions do not go beyond the SMA or the guidelines, as OSF contends, because the
very definition of “no net loss” in the Master Program incorporates the Master Program guideline
definition of “no net loss” from WAC 173-26-186(8) and -201(2)(c). JCC 18.25.100(14)(e).
Additionally, the Master Program guideline definition of “net” does not prohibit
development—the Master Program requires application of appropriate development standards and
employment of mitigation measures in accordance with the mitigation to assure the development
will not result in diminished shoreline resources and values as they exist before the development.
WAC 173-26-186(8). We hold that the Master Program’s no-net-loss provision does not conflict
with the SMA or the Master Program guidelines.
26
No. 47641-0-II
IV. MASTER PROGRAM RESTORATION REQUIREMENTS
OSF next argues that the Board erred when it dismissed OSF’s argument that the Master
Program’s permitting standards violated the law because they imposed restoration requirements
that go beyond the SMA requirements to minimize impacts, that violate the SMA RCW 90.58.020
policy of protecting private property rights, and that unduly burden development rights in violation
of Master Program guideline WAC 173-26-186. OSF argues that the Board’s failure to address
the specific SMA language that OSF cited to support its argument constitutes reversible error under
RCW 34.05.570(3)(b), (d), and (f). Again, we disagree.
A. APPLICABLE LAW
The APA governs judicial review of agency orders in adjudicative proceedings.
The court shall grant relief from an agency order in an adjudicative proceeding only
if it determines that:
....
(b) The order is outside the statutory authority or jurisdiction of the agency
conferred by any provision of law;
....
(d) The agency has erroneously interpreted or applied the law;
....
(f) The agency has not decided all issues requiring resolution by the agency.
RCW 34.05.570(3).
The SMA policy and preferred use provision states that while coordinated planning is
necessary to protect the public interest associated with state shorelines, the policy also recognizes
and protects private property rights “consistent with the public interest.” RCW 90.58.020. The
Master Program guidelines require local governments to include restoration and shoreline
enhancement goals in their Master Programs:
For counties and cities containing any shorelines with impaired ecological
functions, master programs shall include goals and policies that provide for
27
No. 47641-0-II
restoration of such impaired ecological functions. These master program
provisions shall identify existing policies and programs that contribute to planned
restoration goals and identify any additional policies and programs that local
government will implement to achieve its goals.
WAC 173-26-186(8)(c) (emphasis added).
B. BOARD DECISION
The Board concluded that OSF failed to establish that the Master Program provisions
containing restoration requirements violated the law, including RCW 90.58.020 or WAC 173-26-
186.
C. ANALYSIS
OSF argues that the Board erred when it dismissed OSF’s argument that the Master
Program’s permitting standards imposed restoration requirements that go beyond the SMA
requirements to minimize impacts, that violate the SMA RCW 90.58.020 policy of protecting
private property rights, and that unduly burden development rights in violation of Master Program
guideline WAC 173-26-186. In its reply brief, OSF clarifies that its argument is that Master
Program guideline WAC 173-26-186 directs local governments to make use of established
nonregulatory policies and programs to contribute to restoration, but the Master Program goes
beyond this requirement because it imposes restoration and shoreline enhancement requirements
on permit applicants.
OSF does not support its first assertion that the Master Program restoration provisions go
beyond the SMA requirements to minimize impacts. OSF neither points to any SMA mitigation
provisions nor explains how the Master Program provisions go beyond them or why that would
constitute error. Therefore, we hold that OSF’s argument that the Board erred in this regard fails.
28
No. 47641-0-II
In support of OSF’s arguments that the Master Program violated SMA policy provision
RCW 90.58.020 and Master Program guideline WAC 173-26-186, OSF points specifically to the
restoration requirements in the following four Master Program provisions.16
First,
[t]o ensure that statewide interests are protected over local interests, the county shall
review all development proposals within shorelines of statewide significance for
consistency with RCW 90.58.030, this program, and the following, which are not
listed in priority order:
(1) When shoreline development or redevelopment occurs, it shall include
restoration and/or enhancement of ecological conditions if such opportunities exist.
JCC 18.25.250 (emphasis added).
Second, “[w]henever possible, nonregulatory methods to protect, enhance, and restore
shoreline ecological functions should be encouraged for residential development.” JCC
18.25.500(1)(j) (emphasis added). Third, “[s]ingle-user moorage for private/recreational float
planes may be permitted as a conditional use where construction of such moorage . . . (iii) Includes
ecological restoration, in addition to mitigation, to compensate for the greater intensity of use
associated with the float plane moorage.” JCC 18.25.350(6)(k) (emphasis added).
And fourth, “[m]arinas may be permitted on marine and river shorelines when they are
consistent with this program and when the proponent demonstrates to the county’s satisfaction that
all of the following conditions are met: . . . (iii) The project includes ecological restoration
measures to improve baseline conditions over time.” JCC 18.25.350(7)(a) (emphasis added).
16
The Board addressed none of these provisions. But neither the DOE nor the County argues that
OSF failed to raise these provisions below, so we consider them. OSF’s brief implies it raised the
language of these provisions to the Board, but provides no cite to the record in support.
29
No. 47641-0-II
The first of these provisions requires that on SSWS, shoreline development or
redevelopment “include restoration and/or enhancement of ecological conditions if such
opportunities exist.” JCC 18.25.250(1). The second provision applies to only residential
development but extends to all shorelines. JCC 18.25.500(1)(j). It is an admonition, not a
requirement, encouraging nonregulatory methods of restoration “[w]henever possible.” JCC
18.25.500(1)(j). The third and fourth Master Program provisions cover boating facilities and
marinas attached to residential development and plainly mandate restoration measures be included
with development. JCC 18.25.350(6)(k)(iii), (7)(a)(iii).
But besides asserting in a conclusory manner that these provisions “go beyond” the SMA
requirements to minimize impacts of development, OSF does not explain how requiring permit
applicants to implement restoration measures is error requiring reversal of the Master Program or
remand to strike these provisions of the Master Program. OSF provides no argument or analysis
to show how these provisions violate private property rights in violation of RCW 90.58.020. And
OSF provides no argument or analysis of how these provisions unduly burden development rights.
The challenged Master Program provisions comport with the SMA policy to coordinate
development planning in order to protect public interest in shorelines and with the Master Program
guidelines to include restoration goals and policies. RCW 90.58.020; WAC 173-26-186(8)(c).
The applicable guideline, WAC 173-26-186(8)(c), states in pertinent part,
For counties and cities containing any shorelines with impaired ecological
functions, master programs shall include goals and policies that provide for
restoration of such impaired ecological functions. These master program
provisions shall identify existing policies and programs that contribute to planned
restoration goals and identify any additional policies and programs that local
government will implement to achieve its goals. These master program elements
regarding restoration should make real and meaningful use of established or funded
30
No. 47641-0-II
nonregulatory policies and programs that contribute to restoration of ecological
functions.
Although this guideline does not require that impaired ecological functions be restored as
a condition of permit approval, nothing in it prevents a local government from imposing such a
requirement. To the contrary, the restoration requirements in this Master Program, discussed
above, are consistent with the directive of WAC 173-26-186(8)(c) that local governments adopt
goals and policies for restoration of shorelines with impaired ecological functions. The Master
Program’s restoration requirements are also consistent with the core policy of the SMA “to protect
the public interest associated with the shorelines of the state while, at the same time, recognizing
and protecting private property rights consistent with the public interest.” RCW 90.58.020. We
hold that OSF fails to show that the Board erred by dismissing OSF’s arguments related to the
restoration provisions.
In conclusion, we reject OSF’s arguments and affirm the Board’s decision on these
grounds. We now turn to CAPR’s arguments.
PART TWO – CAPR APPEAL
CAPR also appeals from the Board’s final decision and order that upheld the 2014 Master
Program. CAPR argues that the Board erred by upholding the Master Program because (1) the
Master Program delegated excessive discretion to regulators, rendering certain provisions
unconstitutionally vague; (2) the Master Program failed to demonstrate sufficient evidence of harm
to the shorelines, resulted in de facto prohibitions in violation of the SMA and permit applicants’
due process rights, and imposed permit conditions that violated landowners’ due process rights;
and (3) the Master Program lacked support from scientific evidence and the DOE failed to identify
the scientific sources relied upon. We reject these arguments.
31
No. 47641-0-II
ANALYSIS
I. VAGUENESS
CAPR argues that the language of certain Master Program provisions is unconstitutionally
vague because it delegates excessive discretion to county employees who will enforce it.17 CAPR
argues that this argument is compounded by the Master Program’s liberal construction provision.
We disagree with both arguments.
A. STANDARD OF REVIEW AND APPLICABLE LAW
Constitutional issues are questions of law that we review de novo. Ass’n of Wash. Spirits
& Wine Distribs. v. Wash. State Liquor Control Bd., 182 Wash. 2d 342, 350, 340 P.3d 849 (2015).
The party challenging a statute’s or regulation’s constitutionality bears the burden of proving its
unconstitutionality beyond a reasonable doubt. Madison v. State, 161 Wash. 2d 85, 92, 163 P.3d 757
(2007). An ordinance or regulation is void for vagueness and violates constitutional due process
if it is framed in terms so vague that persons of common intelligence must guess at the ordinance
or regulation’s meaning and differ as to its application. Postema v. Pollution Control Hr’gs Bd.,
142 Wash. 2d 68, 114, 11 P.3d 726 (2000).
B. BOARD DECISION
The Board concluded that it had no jurisdiction to consider constitutional issues.
17
CAPR also argues that because the Master Program is vague, it violates RCW 90.58.020, .900,
former RCW 90.58.030(3)(c) (2014), WAC 173-26-176, and -191, but provides no argument or
analysis as to why the Master Program violates these provisions. We do not consider claims
unsupported by legal analysis. RAP 10.3(a)(6); Cowiche Canyon, 118 Wash. 2d at 809.
32
No. 47641-0-II
C. ANALYSIS
First, CAPR argues that the Master Program’s liberal construction provision18
“compound[s]” the “lack of clarity” in the Master Program. Br. of Appellant (CAPR) at 27. And
CAPR argues that the SMA, not a Master Program, is exempt from strict construction. This liberal
construction provision, however, merely specifies that the Master Program shall be interpreted
consistently with its policies and purposes and with those of the SMA. If anything, this direction
adds to the clarity of the Master Program. It does not contribute to any vagueness.
Second, CAPR argues that several Master Program provisions state that those seeking
permits on private property are “encouraged” to offer public access as part of the development. 19
And CAPR argues that this “loose” language will lead to coercive negotiation between developers
and regulators. This argument is speculative and lacks factual support. CAPR fails to explain or
argue how the language is vague and fails to offer legal argument as to how the language violates
the law.
18
The Master Program liberal construction provision states,
This program is exempt from the rule of strict construction; therefore this program
shall be liberally construed to give full effect to its goals, policies and regulations.
Liberal construction means that the interpretation of this document shall not only
be based on the actual words and phrases used in it, but also by taking its deemed
or stated purpose into account. Liberal construction means an interpretation that
tends to effectuate the spirit and purpose of the writing. For purposes of this
program, liberal construction means that the administrator shall interpret the
regulatory language of this program in relation to the broad policy statement of
RCW 90.58.020, and make determinations which are in keeping with those policies
as enacted by the Washington State Legislature. [Ord. 7-13 Exh. A (Art. I § 8)].
JCC 18.25.080.
19
See JCC 18.25.290(1)(e), .450(1)(e), (6)(b), .470(1)(d), .500(4)(e), (f), (h).
33
No. 47641-0-II
Third, CAPR argues that the Master Program goal provision addressing global climate
change and sea level rise20 is vague such that it is arbitrary and capricious and improperly gives
regulators the power to impute requirements on permit applicants based on regulators’ personal
preferences.21 But this Master Program provision is contained in the Master Program “goals”
section for shoreline use. See JCC 18.25.180(2). And the Master Program guidelines state that
SMA’s policy goals may not be achievable and that such policy goals should be pursued only via
development regulations where such regulations do not unconstitutionally infringe upon private
property rights. WAC 173-26-186(5).
CAPR challenges the constitutionality of the Master Program provisions it points to here
and thus bears the heavy burden to prove unconstitutionality beyond a reasonable doubt. Madison,
161 Wash. 2d at 92. For the above reasons, we hold that this goal provision is not vague. We hold
also that CAPR’s mere assertions that the Master Program will be administered arbitrarily or
capriciously are speculative and do not meet CAPR’s burden of proof to establish that the Master
Program is unconstitutionally vague.
II. LACK OF IDENTIFIED HARM, DE FACTO PROHIBITIONS,
AND LAND OWNERSHIP DUE PROCESS VIOLATIONS
CAPR argues that the Board erred in upholding the Master Program because the County
and the DOE (1) failed to demonstrate sufficient evidence of harm to the shorelines, (2) imposed
20
See JCC 18.25.180(2)(j).
21
CAPR also cites to Master Program provision JCC 18.25.300(1)(b), which states that
“[p]roponents of a development on no-bank or low bank marine shorelines are encouraged to locate
the bottom of a structure’s foundation higher than the level of expected future sea-level rise.” But
CAPR provides no legal analysis of why this language is unconstitutionally vague.
34
No. 47641-0-II
de facto prohibitions on common developments, and (3) imposed permit conditions that violate
land owners’ due process rights. CAPR’s contentions are unavailing.
A. SUFFICIENT EVIDENCE OF IDENTIFIED HARM TO SHORELINES
CAPR argues that the Board erred in approving the Master Program because the County
and the DOE failed to show evidence of actual, demonstrated harm to the shorelines from
residential development, which is necessary to justify restricting citizens’ private property rights.
We disagree.
1. APPLICABLE LAW
As noted, Master Programs must comply with the provisions of the SMA, ch. 90.58 RCW,
the policy of the SMA articulated in RCW 90.58.020, the Master Program guidelines codified in
ch. 173-26 WAC, and certain other statutory provisions. RCW 90.58.190(2)(b). Master Programs
are also subject to the grant of general police power of article XI, section 11 of the Washington
Constitution. Section 11 states that “[a]ny county, city, town or township may make and enforce
within its limits all such local police, sanitary and other regulations as are not in conflict with
general laws.” (Emphasis added.) Regulations are consistent with article XI, section 11 unless
“(1) the Ordinance conflicts with some general law; (2) the Ordinance is not a reasonable exercise
of the County’s police power; or (3) the subject matter of the Ordinance is not local.” Weden v.
San Juan County, 135 Wash. 2d 678, 692-93, 958 P.2d 273 (1998). Stated another way, the
regulation must tend to “‘promote the health, safety, peace, education, or welfare of the people’”
and must bear a reasonable relationship to accomplishing the purpose pursued. Biggers v. City of
Bainbridge Island, 162 Wash. 2d 683, 711, 169 P.3d 14 (2007) (Fairhurst, J., dissenting) (quoting
Weden, 135 Wash. 2d at 700).
35
No. 47641-0-II
These constitutional and statutory limitations do not require that local governments justify
each Master Program provision by showing actual, demonstrated harm to the shorelines in the
absence of the provisions. CAPR relies on the statement from Biggers that “[s]tanding alone,
theoretical harm is not enough to deny private property owners fundamental access to the
application review process or protection and use of their property.” 162 Wash. 2d at 687. This
statement, though, was made in deciding a challenge to a series of rolling moratoria imposed by
the City on certain shoreline development. The court held that those moratoria were not authorized
by the SMA. Biggers, 162 Wash. 2d at 697.
A requirement to show actual, demonstrated harm before adoption of a Master Program
provision is not found in the SMA and would actively contradict SMA policies stated in RCW
90.58.020 and SEPA policies. RCW 43.21C.020; Puget Soundkeeper All., 189 Wash. App. at 148.
Such a requirement would also abandon the deferential test for exercises of the police power found
in Crane Towing, Inc. v. Gorton, 89 Wash. 2d 161, 168-69, 570 P.2d 428 (1977) (quoting State v.
Conifer Enters., Inc., 82 Wash. 2d 94, 96-97, 508 P.2d 149 (1973)), which held that when analyzing
an act of state police power, the court will place the burden of establishing invalidity on the party
challenging legislation, and will presume that reasonably conceivable facts exist justifying the
legislation, that the legislature passed the statute with reference to those facts, and that the statute
is constitutional. For these reasons, Biggers must be confined to its narrow factual scope: the
adoption of development moratoria. In adopting Master Program provisions, local governments
are not required to demonstrate actual harm in their absence.
36
No. 47641-0-II
2. BOARD DECISION
The Board stated that CAPR spent three pages of its brief addressing “what it states is a
failure of the County to base its regulatory [Master Program] scheme on an adequate ‘scientific
base.’” AR at 7531. But the Board concluded that CAPR failed to actually name an SMA
provision or Master Program guideline that requires a “scientific base” to be established, and
therefore CAPR failed to show any provision or guideline was violated when such a scientific base
was not established. Elsewhere in the Board’s decision, it also concluded that the SI was replete
with scientific evidence showing that the County inventoried the shoreline and evaluated
cumulative impacts from development.
3. ANALYSIS
As shown above, the County is not required to show “actual, demonstrated” harm to the
shorelines to justify the Master Program restrictions on landowners’ use of their property. Instead,
Master Program restrictions must comply with the SMA, the Master Program guidelines, and
certain other statutes, as well as meet the deferential reasonableness standard of article XI, section
11.
Here, CAPR failed to identify which Master Program provisions it claims improperly
restrict landowners’ rights. But the record supports the Board’s conclusion that the SI inventoried
the conditions of the shoreline and the harm from development. The SI contains a 121-page section
describing conditions adjacent to individual shoreline segments including the armoring, marinas,
beach access stairs, docks, and other structures for each shoreline reach. The SI contains a 66-
page overview of key species, habitats, and ecosystem evaluations of specific areas in the county
shoreline. The SI documents that the shoreline contains critical habitats and is home to numerous
37
No. 47641-0-II
threatened and endangered species, including declining salmonid species. The SI documents how
development impacts ecological functions.
We view the evidence in the light most favorable to the respondents. City of University
Place, 144 Wash. 2d at 652. Here, there is sufficient evidence to persuade a fair-minded person that
the Board’s conclusion that the record contained sufficient evidence to justify the permit condition
provisions in the Master Program based on identified harm is correct. We hold that CAPR’s
argument regarding the sufficiency of the evidence of harm to shorelines fails.
B. NO DE FACTO PROHIBITIONS
CAPR argues that the Board erred when it upheld the Master Program because Master
Program permit requirements result in de facto prohibitions22 of common development actions
including beach access structures, boating facilities, armoring, and developing in flood-prone
areas. This argument is unpersuasive.
1. APPLICABLE LAW
The Master Program guidelines state that Master Programs shall include goals, policies,
and actions for restoration of impaired shoreline ecological functions. WAC 173-26-201(2)(f).
Master Programs shall also implement standards to ensure “[d]evelopment in flood plains should
not significantly or cumulatively increase flood hazard.” WAC 173-26-221(3)(c)(i). And new
development or new uses in shoreline jurisdiction, including the subdivision of land, should not
be established when it would be reasonably foreseeable that the development or use would require
22
A “de facto prohibition” occurs when a land use is not expressly prohibited, but is prohibited in
fact because restrictions render such use impractical. 83 AM. JUR. 2D Zoning and Planning § 132
(2017).
38
No. 47641-0-II
structural flood hazard reduction measures within the channel migration zone or floodway. WAC
173-26-221(3)(c)(i).
Single-family residences are a priority use under the SMA. WAC 173-27-241(3)(j). But
a Master Program may still restrict or limit residential development. Buechel, 125 Wash. 2d at 209.
The SMA and the Master Program guidelines endorse, and in some instances require, the use of
conditional use permits. RCW 90.58.100(5); WAC 173-26-191(2)(a)(iii)(B). The Master Program
guidelines further state that the conditional use permit process is a method used to ensure
uncommon impacts do not result in net loss. WAC 173-26-201(3)(d)(iii).
2. BOARD DECISION
The Board found that CAPR failed to meet its burden of proof to establish that any of the
Master Program provisions at issue resulted in de facto prohibitions of the uses in violation of the
SMA or Master Program guidelines.
3. ANALYSIS
First, CAPR cites to Master Program provisions related to the permit requirements for
building beach access structures, boating facilities, and beach armoring.23 And CAPR asserts that
the public access and conditional use permit requirements included within these provisions will
render a “de facto” prohibition on these types of development. CAPR offers legal citation for the
propositions that the right to exclude others is an important property right and that access to the
waterfront often lends property great value. And CAPR makes various further assertions including
that these provisions are unfair, facially unconstitutional, and impossible to comply with and favor
subjective standards. But CAPR fails to provide legal analysis or factual support for these
23
JCC 18.25.340, .290, .100(3)(q), .590(1), .330 to .410.
39
No. 47641-0-II
assertions or for the proposition that these provisions result in “de facto prohibition” of the types
of development they govern.
The record shows that the developments that CAPR claims are “de facto prohibited” are
actually allowed. And these developments are allowed with some restrictions in certain areas that
CAPR fails to establish are improper restrictions under the SMA and Master Program guidelines.
Beach access structures, like stairs, are not prohibited: they are allowed in conservancy,
residential, and high-intensity environments with a conditional use permit. And although CAPR
correctly asserts that single-family residences are a priority use under the SMA, a Master Program
may still restrict or limit residential accessory development. RCW 90.58.030(3)(e)(vi); Buechel,
125 Wash. 2d at 209.
The Master Program also allows boat launches in all environments except priority aquatic
areas and allows boat launches in natural and conservancy areas with a conditional use permit.
Piers, docks, and floats are allowed everywhere except priority aquatic and natural environment
areas and are allowed in conservancy environments with a conditional use permit. And armoring
is prohibited in only natural environments. Besides arguing that these requirements will be
“virtually impossible” to comply with, CAPR does not offer legal analysis or factual support to
show boating facilities or armoring are de facto prohibited or that the restrictions placed on their
development violate the SMA or Master Program guidelines.
Finally, CAPR cites to a Master Program goal provision related to flood control and asserts
it is part of a “regulatory maze” at odds with the SMA and Master Program guidelines. Br. of
Appellant (CAPR) at 40. But the Master Program provision at issue, JCC 18.25.380(1)(a), simply
states that “[t]he county should prevent the need for flood control works by limiting new
40
No. 47641-0-II
development in flood-prone areas.” This provision comports with the Master Program guideline
mandating that Master Programs shall implement standards to ensure “[d]evelopment in flood
plains should not significantly or cumulatively increase flood hazard” and shall restrict
development or new uses if it is reasonably foreseeable that such development would require
structural flood hazard reduction measures within the channel migration zone or floodway. WAC
173-26-221(3)(c)(i). We acknowledge that conditional use permits may burden some property
owners, but we hold that CAPR fails to show that use of permitting processes and the other
challenged provisions result in de facto prohibitions.
C. PERMIT PROVISIONS DO NOT VIOLATE DUE PROCESS RIGHTS
Relying on Presbytery of Seattle v. King County, 114 Wash. 2d 320, 329-30, 787 P.2d 907
(1990), CAPR argues that the Master Program 150-foot buffer and permit provisions violate
applicants’ substantive due process rights. We disagree.
The parties dispute whether the Presbytery substantive due process test applies to facial
challenges such as the one before us. We need not reach that issue because the Supreme Court’s
decision in Amunrud v. Board of Appeals, 158 Wash. 2d 208, 143 P.3d 571 (2006), makes clear that
the test in Presbytery does not apply to this appeal, whether its challenge is characterized as facial
or as applied.
Decisions such as Presbytery and Guimont v. Clarke followed a three-part test under which
courts examined “‘(1) whether the regulation is aimed at achieving a legitimate public purpose;
(2) whether it uses means that are reasonably necessary to achieve that purpose; and (3) whether
it is unduly oppressive on the landowner.’” 121 Wash. 2d 586, 609, 854 P.2d 1 (1993) (quoting
Presbytery, 114 Wash. 2d at 330).
41
No. 47641-0-II
In Amunrud, however, our Supreme Court severely limited the application of the third
prong of that test. First, the court held that if a state action does not affect a fundamental right, the
proper standard of review is a rational basis test, under which a challenged law must be rationally
related to a legitimate state interest. Amunrud, 158 Wash. 2d at 222. Second, the court assumed that
any necessary state of facts that it could reasonably conceive of existed when it determined whether
a rational relationship existed between the challenged law and a legitimate state interest. Amunrud,
158 Wash. 2d at 222. And finally, the Amunrud court concluded that the court must apply only this
rational basis test, so it need not also evaluate whether the challenged law is unduly oppressive on
individuals. 158 Wash. 2d at 226. Thus, the “unduly oppressive” element need not be evaluated
where a recognized fundamental interest is not implicated.
Turning to what counts as a fundamental interest, Amunrud cited to the United States
Supreme Court’s recognition of “certain liberty interests protected by the due process clause but
not explicitly enumerated in the Bill of Rights” and specified also that the right to pursue a
particular profession is not a fundamental right. 158 Wash. 2d at 220. None of these liberty interests
are at stake in the present appeal.24
More to the point, we are aware of no case law holding that property owners have a
fundamental right to do what they wish on their property without being troubled by reasonable
regulation. Such a rule would contradict the broad and ample scope of the police power long
24
In its regulatory takings cases, the Supreme Court has recognized a number of “fundamental
attributes of ownership” including the right to possess, to exclude others, and to dispose of
property. Presbytery, 114 Wash. 2d at 329-30. The Supreme Court has also recognized the right to
make some economically beneficial or productive use of land. Guimont, 121 Wash. 2d at 599.
Because petitioners do not argue that the presence of these interests triggers the “unduly
oppressive” inquiry, we do not reach it.
42
No. 47641-0-II
recognized under state and federal law. See, e.g., W. Coast Hotel Co. v. Parrish, 300 U.S. 379,
390, 57 S. Ct. 578, 81 L. Ed. 703 (1937); Weden, 135 Wash. 2d at 692-93. Just as the right to pursue
a particular profession is not a fundamental right but is a right which is nevertheless subject to
reasonable government regulation, Amunrud, 158 Wash. 2d at 220, so, for substantive due process
purposes, is the right to use one’s property.
The challenged Master Program does not threaten the fundamental interests that trigger
heightened scrutiny under Amunrud. Therefore, under that opinion, the “unduly oppressive”
criterion from prior substantive due process case law does not apply. The challenged portions of
the Master Program are rationally related to serving a legitimate state interest. Therefore, they do
not offend the doctrine of substantive due process.
III. EVIDENTIARY SUPPORT OF THE MASTER PROGRAM
CAPR argues that the Board erred when it upheld the Master Program because (1) the SI
was insufficient, (2) the CIA was insufficient, (3) the DOE failed to identify the sources reviewed
and relied upon to update the Master Program, and (4) the record has insufficient science to support
the imposition of the Master Program buffer requirement.25 We disagree with CAPR’s
contentions.
25
CAPR asserts that both the SI and CIA were incomplete because they are based on only “photos
and literature” and lack sufficient field verification of existing conditions. Br. of Appellant
(CAPR) at 20. But as a general note, Master Program guideline WAC 173-26-201(2)(a) clarifies
the nature of the scientific information that must be gathered and states that “[a]t a minimum, make
use of and, where applicable, incorporate all available scientific information, aerial photography,
inventory data, technical assistance materials, manuals and services from reliable sources of
science.” (Emphasis added.)
43
No. 47641-0-II
A. STANDARD OF REVIEW
We review an agency determination for substantial evidence by determining whether there
is a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of
the order. Spokane County, 176 Wash. App. at 565. In doing so, we view the evidence in the light
most favorable to the respondents. City of University Place, 144 Wash. 2d at 652.
B. VERIFICATION OF EXISTING CONDITIONS IN THE SI
CAPR argues that the Board erred when it concluded that the SI contained sufficient
evidence to support the Master Program. Specifically, CAPR argues that the SI supporting the
Master Program does not contain sufficient inventory of shoreline conditions and development or
sufficient analysis of how those conditions relate to marine habitats to fulfill Master Program
guideline WAC 173-26-201(3)(c) and thereby impermissibly places the burden on property owners
to evaluate cumulative impact of development on the shoreline.26 We disagree.
1. APPLICABLE LAW
Master Program guideline WAC 173-26-201(3)(c) requires that when local governments
prepare a Master Program, they must inventory their shoreline conditions. The guideline states
that local governments shall
[g]ather and incorporate all pertinent and available information, existing inventory
data and materials from state and federal agencies, individuals and
nongovernmental entities with expertise, affected Indian tribes, watershed
management planning, port districts and other appropriate sources.
....
26
CAPR also asserts that the County violated Master Program guidelines “WAC 173-26-171 to
251” but cites to and provides analysis related to only WAC 173-26-201(3)(c). Br. of Appellant
(CAPR) at 20. “Passing treatment of an issue or lack of reasoned argument is insufficient to merit
judicial consideration.” Holland, 90 Wash. App. at 538. Thus, we do not address this assertion.
44
No. 47641-0-II
Local government shall, at a minimum, and to the extent such information
is relevant and reasonably available, collect the following information:
(i) Shoreline and adjacent land use patterns and transportation and utility
facilities, including the extent of existing structures, impervious surfaces,
vegetation and shoreline modifications in shoreline jurisdiction.
WAC 173-26-201(3)(c).
2. BOARD DECISION
The Board concluded that the SI was replete with scientific evidence showing that the
County inventoried the shoreline, evaluated cumulative impacts from development, and
documented current conditions. The Board opined that nothing in the SMA or Master Program
guidelines required field verification of existing conditions. The Board further noted that the SI
contains an overview of the key species and habitats within the County, an inventory that covers
each shoreline area or “reach” in the County, and maps showing the shoreline areas and detailing
different characteristics of the shorelines.
3. ANALYSIS
CAPR fails to show that the Board erred when it concluded that the SI contained sufficient
evidence to support the Master Program. First, field verification of each shoreline area’s condition
is not required by Master Program guideline WAC 173-26-201(3)(c) or any other SMA rule or
Master Program guideline.
Second, the record supports the Board’s conclusion that the SI inventoried shoreline
conditions and development impacts. Overall, the SI was based on over 200 sources, many of
which focused on Western Washington and the Puget Sound and some discussed marine
environments. Specifically looking at the SI’s inventory of the County’s shoreline, the SI contains
a 66-page overview of key species, habitats, and ecosystem evaluations of specific areas in the
45
No. 47641-0-II
county shoreline. The SI contains a 121-page section describing conditions adjacent to individual
shoreline segments including the armoring, marinas, beach access stairs, docks, and other
structures for each shoreline reach. The SI contains a 33-page map folio detailing characteristics
of the County’s state shorelines.27
The SI documents that the County’s shoreline contains critical habitats and is home to
numerous threatened and endangered species, including declining salmonid species. And from
that evaluation, the SI concluded that “virtually all of the County’s nearshore marine environment
supports or has potential to support highly valuable and ecologically sensitive resources.” AR at
6273.
The SI also documents how development, near-shore armoring, and vegetation removal
impact ecological functions. The watershed characterization and landscape analysis of East
Jefferson County identified areas that are the most important to maintaining ecosystems, areas with
human-caused alterations that degrade the ecosystems, and areas that are best suited for protection,
development, and/or restoration.
Beyond citing to two portions of the SI’s “Background and Limitations” section,28 CAPR
fails to analyze how the data contained in the SI is insufficient to fulfill the requirements of Master
27
These maps detail marine and freshwater shoreline planning areas, stream flows for rivers and
streams, soil types, channel migration zones and flood plains, areas designated as critical areas and
critical shoreline habitats, and the locations of aquatic vegetation, shoreline use patterns, and
shellfish harvesting areas.
28
The SI’s introductory section entitled “Background and Limitations” acknowledges that the SI
is “not intended as a full evaluation of the effectiveness of the SMA or County’s existing shoreline
policies or regulations” and that the SI “did not include field verification of shoreline conditions.”
AR at 3464. The SI then states, “[C]onsiderable effort was put forth to ensure that the information
presented is complete and accurate as of the date of publication.” AR at 3464.
46
No. 47641-0-II
Program guideline WAC 173-26-201(3)(c). We must view the evidence relied on by the Board in
the light most favorable to the respondents. City of University Place, 144 Wash. 2d at 652; Spokane
County, 176 Wash. App. at 565. In doing so, we hold that there is a sufficient quantity of evidence
to persuade a fair-minded person of the correctness of the Board’s order that the SI fulfilled the
requirements of WAC 173-26-201(3)(c). Accordingly, we hold that the SI inventoried the
shoreline and documented current conditions in accordance with WAC 173-26-201(3)(c).
C. EXISTING SYSTEMS AND FUTURE DEVELOPMENT EVALUATION IN THE CIA
CAPR argues that the Board erred in upholding the Master Program because the CIA
supporting the Master Program does not contain sufficient evidence to fulfill the requirements of
Master Program guidelines WAC 173-26-186(8)(a) and (d), which require evaluation of the
effectiveness of the past Master Program in light of reasonably foreseeable development. We
disagree.
1. APPLICABLE LAW
Master Program guideline WAC 173-26-186(8) addresses how local governments should
address protection of shoreline ecological functions:
It is recognized that shoreline ecological functions may be impaired not only by
shoreline development subject to the substantial development permit requirement
of the act but also by past actions, unregulated activities, and development that is
exempt from the act’s permit requirements. The principle regarding protecting
shoreline ecological systems is accomplished by these guidelines in several ways,
and in the context of related principles. These include:
(a) Local government is guided in its review and amendment of local master
programs so that it uses a process that identifies, inventories, and ensures
meaningful understanding of current and potential ecological functions provided
by affected shorelines.
....
(d) Local master programs shall evaluate and consider cumulative impacts
of reasonably foreseeable future development on shoreline ecological functions and
other shoreline functions fostered by the policy goals of the act. To ensure no net
47
No. 47641-0-II
loss of ecological functions and protection of other shoreline functions and/or uses,
master programs shall contain policies, programs, and regulations that address
adverse cumulative impacts and fairly allocate the burden of addressing cumulative
impacts among development opportunities. Evaluation of such cumulative impacts
should consider:
(i) Current circumstances affecting the shorelines and relevant natural
processes;
(ii) Reasonably foreseeable future development and use of the shoreline;
and
(iii) Beneficial effects of any established regulatory programs under other
local, state, and federal laws.
(Emphasis added.)
2. BOARD DECISION
The Board concluded that neither the SMA nor the Master Program guidelines, including
WAC 173-26-186(8)(d), require analysis of how an existing regulatory scheme protects shorelines
as compared to an amended Master Program. The Board concluded that the CIA identified,
inventoried, and documented current and potential ecological functions provided by affected
shorelines and proposed policies and regulations to achieve no net loss as required by WAC 173-
26-186(8).
3. ANALYSIS
CAPR fails to show that the Board erred when it concluded that the CIA contained
sufficient evidence to support the Master Program. First, Master Program guideline WAC 173-
26-186(8)(d) states that the County “should” consider the “(iii) [b]eneficial effects of any
established regulatory programs under other local, state, and federal laws.” Thus, as the Board
concluded, this Master Program guideline did not require a Master Program to contain analysis of
how an existing regulatory scheme would protect shorelines as compared to an amended Master
48
No. 47641-0-II
Program. Rather, it encouraged counties to consider the benefits of established regulatory
programs in general.
Second, the record supports the Board’s conclusion that the CIA inventoried current and
potential ecological functions of the county shoreline and the proposed policies and regulations.
The CIA included comment on the Draft Master Program’s limitations on development:
Importantly, the [Master Program] expressly prohibits any use/development that
would cause a net loss of ecological functions or processes. As a result, the County
must deny shoreline use and development proposals unless impacts are fully
mitigated. Specific performance standards contained in the [Draft Master
Program] that will prevent cumulative impacts from occurring are summarized in
this document.
AR at 5650 (emphasis added). The CIA further states that “[t]he [Draft Master Program] imposes
strict limits on construction of new bulkheads (or other types of structural shoreline stabilization
or armoring) and expansion of existing bulkheads on residential properties to prevent adverse
effects on net shore-drift, beach formation, juvenile salmon migratory habitat and other shoreline
functions.” AR at 2363. The CIA clarifies that it evaluates the Master Program to determine
whether it contains adequate measures to mitigate use and development such that they will not
result in a net loss of ecological functions compared to baseline conditions. This evaluation
presumes impacts will occur, but it evaluates whether there are adequate measures in place so post-
development conditions are no worse overall than before development.
The CIA further noted that piers, docks, and other over-water structures can have adverse
effects including changing wave patterns, currents’ littoral drift, or movement of aquatic life.
Shading from piers can also alter juvenile salmon migration behavior, result in increased predation
and disrupt feeding areas, change marine vegetation, decrease survival due to dislocation of herring
eggs spawned on pilings at high tide elevations, and reduce eel grass and kelp beds.
49
No. 47641-0-II
CAPR fails to analyze how the data contained in the CIA is insufficient to fulfill the
requirements of Master Program guidelines WAC 173-26-186(8)(a) and (d). Again, we must view
the evidence relied on by the Board in the light most favorable to the respondents. City of
University Place, 144 Wash. 2d at 652; Spokane County, 176 Wash. App. at 565. In doing so it appears
there is a sufficient quantity of evidence to persuade a fair-minded person of the correctness of the
Board’s order that the CIA fulfilled the requirements of WAC 173-26-186(8)(a) and (d). Thus,
we hold that the CIA sufficiently inventoried how the Master Program would impact ecological
functions in accordance with WAC 173-26-186(8)(a) and (d).
D. SOURCES RELIED ON BY THE DOE FOR MASTER PROGRAM UPDATE
CAPR argues that the Board erred when it upheld the Master Program because the DOE
failed to identify the information it reviewed and relied on when approving the updated Master
Program in violation of RCW 34.05.272(2)(a).29 CAPR fails to show that we can address this
issue and also fails to support this argument.
As a threshold matter, CAPR fails to show how this issue is properly before us. CAPR
provides no citation to the record that they argued before the Board that the DOE violated RCW
34.05.272(2)(a), and the Board did not address whether CAPR showed a violation of RCW
34.05.272(2)(a). Thus, because we review issues only raised before the Board, we hold that this
issue is beyond the scope of this appeal.
29
“Before taking a significant agency action, the [DOE] must identify the sources of information
reviewed and relied upon by the agency in the course of preparing to take significant agency
action,” and the DOE must place an index of the records relied upon on their web site. RCW
34.05.272(2)(a).
50
No. 47641-0-II
Additionally, even if we hold that the issue was properly before us, this argument still fails
for lack of legal analysis. Besides asserting that the DOE’s approval of the Master Program
violates RCW 34.05.272(2)(a), CAPR offers no legal analysis to demonstrate such violation. We
do not consider claims unsupported by legal analysis. RAP 10.3(a)(6); Cowiche Canyon, 118
Wash. 2d at 809. Thus, even if this argument was properly before us, we do not consider this issue
because CAPR fails to support it.
E. SUFFICIENCY OF EVIDENCE SUPPORTING THE MASTER PROGRAM BUFFER PROVISION
CAPR argues that the Board erred when it upheld the Master Program 150-foot buffer
provision because there was insufficient scientific evidence to support this provision as required
by the SMA provisions RCW 90.58.100(1)(a) and (d).30 CAPR’s contentions are unavailing.
1. STANDARD OF REVIEW AND APPLICABLE LAW
We review this challenge for substantial evidence. Spokane County, 176 Wash. App. at 565.
The SMA requires that “to the extent feasible,” the DOE should “(a) [u]tilize a systematic
interdisciplinary approach which will insure the integrated use of the natural and social sciences
and the environmental design arts.” RCW 90.58.100(1). And “to the extent feasible,” the DOE
should “(d) [c]onduct or support such further research, studies, surveys, and interviews as are
deemed necessary.” RCW 90.58.100(1).
2. BOARD DECISION
The Board concluded that counter to CAPR’s assertion that there is no scientific
justification in the record for the 150-foot buffer, the SI includes “summary references to numerous
30
CAPR cites to RCW 90.59.100(1)(a) and (d), but we assume they mean chapter 90.58 RCW.
51
No. 47641-0-II
scientific studies which address varying buffer width recommendations.” AR at 7521. The Board
noted that these studies covered the effectiveness of various buffer widths to protect water quality,
wildlife habitats, and travel corridors. The studies further recommended buffers consisting of
ranges. The Board concluded that the County was required to adopt a Master Program to ensure
no net loss, and in doing so, the County assembled “a considerable amount of scientific
information, including information related to buffer widths.” AR at 7522. The Board further
concluded that the County had the latitude to adopt a buffer width within the range of widths from
the assembled scientific information. Thus, the Board found that CAPR failed to meet its burden
to show a violation of RCW 90.58.100(a) and (d).
3. ANALYSIS
CAPR fails to show that the Board erred when it found that the record contained sufficient
evidence to support the 150-foot buffer provision. The record supports the Board’s finding. The
SI referenced many scientific studies analyzing the effect of different sized buffers on various
types of shoreline hazards.31 The 150-foot shoreline buffer fell within the range of the buffer
widths discussed in these studies.
In addition, the SI and CIA documented the ecological harms that buffers, in general, could
help reduce or prevent. A 2004 report relied on by the SI documented pollution from toxic
31
The SI refers to a 2001 study of findings from the Canadian Ministry of Forestry in British
Columbia recommending buffers of 300 to 450 feet. Other 2001 studies concluded that an 82- to
300-foot buffer would remove approximately 80 percent of sediment. A 2003 study stated that the
minimum recommended buffer width for sediment control and pollutant removal is 98 feet. A
2004 study showed a minimum buffer of 79 feet was needed to control agricultural runoff for 20
percent slopes with slight erosion, while a 160-foot buffer would be needed to control 30 percent
slopes with severe erosion. Further, a 1997 study showed for Washington State the average width
reported to retain riparian function for wildlife habitat was 288 feet.
52
No. 47641-0-II
substances, run off from rainwater, loss of habitat, and declines in key parts of the food web
ecology in many areas of the Puget Sound. The CIA states that nutrients and matter entering via
streams and rivers from agricultural operations, wastewater treatment plants, and storm water
runoff from residential landscapes harms the quality of the County’s marine waters. And the CIA
addresses how buffers can help with this issue:
Riparian buffers offer discernable water quality protection from nearshore nutrient
sources. The effectiveness of riparian buffers for protecting water quality depends
on a number of factors, including soil type, vegetation type, slope, annual rainfall,
type and level of pollution, surrounding land uses, and sufficient buffer width and
integrity. Soil stability and sediment control are directly related to the amount of
impervious surface and vegetated cover.
AR at 5679.
The CIA documented that the imposition of buffers protects shoreline ecological functions,
processes, and habitat. The CIA also contains extensive discussion of the buffers as part of the
Master Program’s no-net-loss compliance and what the impact of the imposition of the buffers
would be on existing structures.
Viewing the evidence relied on by the Board in the light most favorable to the respondents,
there is a sufficient quantity of evidence to persuade a fair-minded person of the correctness of the
Board’s order that the 150-foot buffer provision was supported by sufficient evidence to comply
with RCW 90.58.100(1)(a) and (d). City of University Place, 144 Wash. 2d at 652; Spokane County,
176 Wash. App. at 565. Additionally, CAPR does not refute the Board’s finding that the County
had the latitude to adopt a buffer width within the range of widths from the assembled scientific
53
No. 47641-0-II
information with any legal support.32 We hold that the evidence supporting the buffer provision
was sufficient to meet the requirements of RCW 90.58.100(1)(a) and (d).
In conclusion, we reject CAPR’s arguments and affirm the Board’s decision on these
grounds. We now address S&G’s arguments.
PART THREE – S&G APPEAL
S&G appeals the Board’s final decision and order.33 S&G claims error regarding the
prohibition of mining in conservancy-designated environmental areas. S&G argues that the Board
erred by upholding the mining limitation because (1) it violates the SMA and Master Program
guidelines, (2) it was not supported by sufficient scientific evidence, and (3) the County failed to
offer the public sufficient opportunity to comment. Disagreeing with S&G’s contentions, we
affirm the Board’s decision to uphold the Master Program provision prohibiting mining in
conservancy-designated areas.
I. HOOD CANAL MINERAL RESOURCE LAND OVERLAY DESIGNATION
In 2004, the County adopted an ordinance creating a 690-acre “Mineral Resource Land
Overlay” (Overlay) designation on lands in unincorporated Jefferson County west of Hood Canal.
32
In its reply brief, CAPR asserts that the DOE’s scientific data was insufficient to impose the
150-foot buffers and that the DOE disregarded data showing shoreline development would not
have ecological impacts justifying the 150-foot buffers. Because CAPR fails to include legal
analysis to support this argument, we do not consider it. RAP 10.3(a)(6); Cowiche Canyon, 118
Wash. 2d at 809.
33
S&G includes the appropriate standards of review in its briefing, but in its analysis it fails to
apply any standard of review. The County and the DOE also fail to apply any standard of review
when addressing S&G’s arguments.
54
No. 47641-0-II
Jefferson County Ordinance (JCO) 08-0706-04.34 The Overlay designates the property as
“Mineral resource lands,” “land primarily devoted to the extraction of minerals or lands that have
a known or potential long-term commercial significance for the extraction of minerals.” JCC
18.10.130(M).
S&G mines sand and gravel (aggregate) from its property within the Overlay and transports
the aggregate from where it is mined to a “Shine Hub” where the aggregate is trucked to markets.
JCO 08-0706-04, at 17. The Shine Hub is also located within Overlay-designated land. JCO 08-
0706-04, at 9. But S&G also owns additional property that is located outside the Overlay; this
shoreline property is zoned as rural residential. JCO 08-0706-04, at 22 (“the land within the newly
designated [Overlay] is not within any Shoreline designation”); Figure 3-5, Suppl. Impact
Statement (SEIS), Overlay, S&G parcel report and map.35
In 2004, when the County approved the Overlay, it made several relevant findings related
to S&G’s then-existing mining operations and its proposed future marine transport of aggregate
from a marine transport pier to be located on its shoreline property (pit-to-pier project). The
County found that installation of the marine transport pier would increase S&G’s mining and allow
it to sell the aggregate in more distant markets in a way it could never competitively do using only
34
S&G cited to JCO 008-40706, but there appears to be no such ordinance. A copy of the 2004
Overlay ordinance can be found attached to the County’s response brief as an appendix and is
available at http://test.co.jefferson.wa.us/weblinkexternal/O/doc/318714/Page1.aspx.
35
A copy of figure 3-5 is attached as appendix 1 to Hood Canal Coalition’s (Coalition) brief and
was published as part of the SEIS for the Overlay. S&G’s parcel report and map from the Jefferson
County assessor’s office is attached as appendix 2 to the Coalition’s brief and are available at
http://www.co.jefferson.wa.us/assessors/parcel/parcelprint.asp?value=721194002 and http://
maps.co.jefferson.wa.us/website/mspub/viewer.htm?mapset=parcels&values=721194002.
55
No. 47641-0-II
trucks, because truck transport is too costly to the end user. JCO 08-0706-04, at 18. The County
also found that truck transport and the proposed marine transport are independent methods because
they would serve different markets. JCO 08-0706-04, at 18.
The Overlay ordinance further clarified that marine transport from the pit-to-pier project
would not entirely replace truck traffic to get the aggregate to market. JCO 08-0706-04, at 18.
Rather, projections were that aggregate transfer by truck from S&G’s mine would increase by 50
percent in the next decades whether or not the pit-to-pier project was approved. JCO 08-0706-04,
at 18. None of the County’s Overlay findings stated that allowing marine transport from the Hood
Canal shoreline was essential to or intrinsic to allow mining within the Overlay-designated land.
II. MASTER PROGRAM REVIEW AND APPROVAL PROCESS
During two open comment periods spanning over two-and-a-half months, the County
received approximately 600 comments. The July 2009 Draft Master Program included a mining
regulation in conservancy-designated areas, which stated, “Conservancy: Mineral extraction and
processing use and development may be allowed as a conditional use subject to the policies and
regulations of this Master Program.” AR at 2271. An open comment period on this draft occurred
between August 19 and September 8, with a public hearing on September 8. Following receipt of
these comments and several public hearings on the Master Program update, the Commissioners
directed the DCD to incorporate changes based on the public comments.
In October 2009, the DCD staff released the Draft Master Program for the Commissioners’
review. The Draft Master Program contained a revised mining limitation that stated,
“Conservancy: Mining use and development are prohibited, except for transportation of minerals
by road.” AR at 2269 (emphasis added). In December, the Commissioners formally approved the
56
No. 47641-0-II
Draft Master Program. The land proposed for S&G’s pit-to-pier project is among that classified
as conservancy land.
In March 2010, the DCD sent the Draft Master Program to the DOE for review. From
April to May, the DOE conducted a statewide public comment period on the Draft Master Program.
In January 2011, the DOE conditionally approved the Draft Master Program with some
required and recommended changes along with findings of fact and conclusions of law to support
its decision. From June 22 to July 25, the Commissioners had another open public comment period
on the Draft Master Program. After further edits and communication with the DOE, in December
2013, the Commissioners approved and adopted the County’s final Master Program.36 In February
2014, the DOE approved the Master Program and it became effective. Ch. 18.25 JCC.
III. MASTER PROGRAM MINING AND PIER PROVISIONS
The Master Program defines “mining” to include “[a]ll methods of transporting minerals
to and from the mine,” including marine transportation methods such as “conveyors, piers, and
barges.” JCC 18.25.100(13)(h)(i)(D). The Master Program prohibits mining within most
shoreline environments, including the “conservancy” shoreline environment. JCC
18.25.480(3)(d).37 The Master Program allows mining, including mine-related transportation,
36
The Commissioners offered the final of six total public hearings during the Master Program
update process on April 15, 2013, but this hearing was specifically to address provisions in the
Master Program related to net pen fin fish aquaculture.
37
“Conservancy. Mining use and development are prohibited, except for transportation of
minerals by road.” JCC 18.25.480(3)(d).
57
No. 47641-0-II
only in the “high intensity” shoreline environment. JCC 18.25.480(3)(f). 38 The Master Program
also allows industrial and commercial piers in “[h]igh [i]ntensity” areas and in “[p]riority
[a]quatic” and “[a]quatic” areas if the use is allowed in the upland shoreline environment. JCC
18.25.350(2)(f), (a), (b).
IV. NO CONFLICT WITH THE SMA AND MASTER PROGRAM GUIDELINES
S&G argues that the Master Program’s mining limitation conflicts with the SMA and
Master Program guidelines. We disagree.
A. BOARD DECISION
The Board noted that mining is not completely prohibited under the Master Program and
that the Master Program allows mining in high-intensity designated areas. And the Board found
that S&G failed to meet its burden to show that the Master Program violated the SMA or Master
Program guidelines for prohibiting mining in some instances.
B. SMA REQUIREMENTS
S&G argues that the Board erred when it rejected S&G’s challenge that the Master
Program’s mining limitation violates SMA’s enunciated policy provision contained in RCW
90.58.020 and an SMA provision contained in RCW 90.58.100(2)(a) ensuring that Master
Programs incorporate economic development plans. These arguments are unpersuasive.
The SMA’s policy provision states,
The legislature declares that the interest of all of the people shall be
paramount in the management of shorelines of statewide significance. The [DOE],
in adopting guidelines for shorelines of statewide significance, and local
government, in developing master programs for shorelines of statewide
38
“High Intensity. Mining use and development may be allowed as a conditional use (CUP).”
JCC 18.25.480(3)(f).
58
No. 47641-0-II
significance, shall give preference to uses in the following order of preference
which:
(1) Recognize and protect the statewide interest over local interest;
(2) Preserve the natural character of the shoreline;
(3) Result in long term over short term benefit;
(4) Protect the resources and ecology of the shoreline;
(5) Increase public access to publicly owned areas of the shorelines;
(6) Increase recreational opportunities for the public in the shoreline;
(7) Provide for any other element as defined in RCW 90.58.100 deemed
appropriate or necessary.
RCW 90.58.020 (emphasis added).
And the provision further clarifies that
[a]lterations of the natural condition of the shorelines of the state, in those limited
instances when authorized, shall be given priority for single-family residences and
their appurtenant structures, ports, shoreline recreational uses including but not
limited to parks, marinas, piers, and other improvements facilitating public access
to shorelines of the state, industrial and commercial developments which are
particularly dependent on their location on or use of the shorelines of the state.
RCW 90.58.020 (emphasis added). The SMA also requires Master Programs to include an
economic development element for the location and design of industries, port facilities, and other
developments particularly dependent on their location or their use of the shoreline. RCW
90.58.100(2)(a).
Mining-related facilities like marine transport piers could be “industrial and commercial
developments which are particularly dependent on their location on or use of the shorelines.”
RCW 90.58.020. But these SMA provisions that S&G relies on do not mandate that Master
Programs must allow all industrial uses, like mining, in every shoreline environment. RCW
90.58.020, .100(2)(a). To the contrary, they anticipate Master Programs that allow, condition, or
prohibit various uses in different shoreline environments in conformance with the order of
preference in RCW 90.58.020, above.
59
No. 47641-0-II
In addition, SEPA requires that the laws of the State, including the SMA, be interpreted
and administered in accordance with the policies of SEPA. RCW 43.21C.030. Among those
policies is the recognition of “the responsibilities of each generation as trustee of the environment
for succeeding generations,” RCW 43.21C.020(2)(a), and the recognition that “each person has a
fundamental and inalienable right to a healthful environment and that each person has a
responsibility to contribute to the preservation and enhancement of the environment.” RCW
43.21C.020(3). Accord Puget Soundkeeper All., 189 Wash. App. at 148. In Lands Council v.
Washington State Parks & Recreation Commission, 176 Wash. App. 787, 808, 309 P.3d 734 (2013),
we recognized this notion of trusteeship to be the “quickening principle” of SEPA. The County
acted consistently with these principles and purposes.
S&G bears the burden of establishing the invalidity of the Master Program. Quadrant
Corp., 154 Wash. 2d at 233. We hold that S&G fails to show that the Master Program mining
limitation violates the SMA.
C. MASTER PROGRAM GUIDELINE REQUIREMENTS
S&G argues that the Board erred when it rejected S&G’s challenge that the Master
Program’s mining limitation violated Master Program guidelines WAC 173-26-231(3)(b)
and -201(2)(d). These arguments are unpersuasive.
WAC 173-26-231 contains the shoreline modifications guidelines for piers and docks.
WAC 173-26-231(3)(b) states, “New piers and docks shall be allowed only for water-dependent
uses or public access.” These guidelines further clarify that Master Programs shall allow only
“shoreline modifications that are appropriate to the specific type of shoreline and environmental
conditions for which they are proposed.” WAC 173-26-231(2)(c).
60
No. 47641-0-II
Master Program guideline WAC 173-26-201(2)(d) states that preference should be given
to uses “that are unique to or dependent upon a shoreline location.” (Emphasis added.) But this
guideline also states that “[s]horeline areas, being a limited ecological and economic resource, are
the setting for competing uses and ecological protection and restoration activities.” WAC 173-26-
201(2)(d). And this guideline notes that for SSWSes, Master Programs should give priority and
preference first to “(i) [r]eserve appropriate areas for protecting and restoring ecological functions
to control pollution and prevent damage to the natural environment and public health” and second
to “(ii) [r]eserve shoreline areas for water-dependent” uses like transportation uses. WAC 173-
26-201(2)(d) (emphasis added).
S&G is correct that WAC 173-26-231(3)(b) allows for docks and piers to be built for water-
dependent uses. But S&G ignores the fact that the same guideline clarifies that such modifications
are allowed contingent on the environmental designation of the area where development is
proposed, like the conservancy designation at issue here. WAC 173-26-231(2)(c). And contrary
to S&G’s argument, WAC 173-26-201(2)(d) does not state that development, including that
needed for mining transport, must be allowed in every environmental area. Rather, this guideline
is clear that Master Programs must recognize the competing needs for use, but that the first
preference is given to environmental protection and restoration. WAC 173-26-201(2)(d). S&G
bears the burden of establishing the invalidity of the Master Program. Quadrant Corp., 154 Wash. 2d
at 233. We hold that S&G fails to show that the Master Program provision prohibiting mining in
conservancy areas violates these Master Program guidelines.
61
No. 47641-0-II
V. SCIENTIFIC SUPPORT OF THE MASTER PROGRAM
S&G next argues that the Board erred when, in violation of the SMA and Master Program
guidelines, it upheld the Master Program provision “banning” mining in conservancy areas
because there is insufficient scientific and technical analysis to support this limitation on mining.39
We disagree.
A. STANDARD OF REVIEW
As previously noted, we review an agency determination for substantial evidence by
determining whether there is a sufficient quantity of evidence to persuade a fair-minded person of
the truth or correctness of the order. Spokane County, 176 Wash. App. at 565. In doing so, we view
the evidence in the light most favorable to the respondents. City of University Place, 144 Wash. 2d
at 652.
B. APPLICABLE LAW
The SMA states that “[i]n preparing the master programs, and any amendments thereto, the
[DOE] and local governments shall to the extent feasible: (a) [u]tilize a systematic
interdisciplinary approach which will insure the integrated use of natural and social sciences and
the environmental design arts.” RCW 90.58.100(1) (emphasis added).
39
S&G includes a false premise within this argument that the Master Program renders an “outright
ban on marine transport of aggregate.” Br. of Appellant (S&G) at 29. The Master Program
prohibits mining within most shoreline environments, including the “conservancy” shoreline
environment. JCC 18.25.480(3)(d). But the Master Program allows mining, including mine-
related transportation, in the “high-intensity” shoreline environment. JCC 18.25.480(3)(f). The
Master Program also allows industrial and commercial piers in “[h]igh-[i]ntensity” areas and in
“[p]riority aquatic” and “[a]quatic” areas if the use is allowed in the upland shoreline environment.
JCC 18.25.350(2)(f), (a), (b).
62
No. 47641-0-II
Master Program guidelines state that local jurisdictions are to “identify and assemble the
most current, accurate, and complete scientific and technical information available that is
applicable to the issues of concern.” WAC 173-26-201(2)(a) (emphasis added). Jurisdictions must
also “base master program provisions on an analysis incorporating the most current, accurate, and
complete scientific or technical information available.” WAC 173-26-201(2)(a) (emphasis
added).
C. BOARD DECISION
The Board found that S&G failed to show insufficient evidence supported the Master
Program such that it violates the SMA and Master Program guidelines.
D. ANALYSIS
S&G argues that the Board erred when it upheld the Master Program because there is
insufficient evidence to support the Master Program’s mining limitation in violation of SMA
provisions RCW 90.58.100(1) and WAC 173-26-201(2)(a).40 This argument is unpersuasive.
40
S&G also asserts that the mining limitation is not in line with the SMA policy provision RCW
90.58.020 and conflicts with the Master Program guideline WAC 173-26-201(2)(d), which sets
out priority uses under the SMA. But S&G fails to offer any legal analysis showing how the
Master Program conflicts with this SMA provision or this Master Program guideline. And as was
discussed above, the SMA policy provision establishes a clear order of priority for use on the
shoreline—but it does not include mining or mining-related activity like marine transport nor does
it mandate that Master Programs allow all industrial uses in every environment. RCW 90.58.020.
Master Program guideline WAC 173-26-201(2)(d) also does not state that development, including
that needed for mining transport, must be allowed in every environmental area. Rather this
guideline is clear that Master Programs must follow a process in which first preference is given to
environmental protection and restoration. WAC 173-26-201(2)(d).
63
No. 47641-0-II
S&G fails to point to any evidence that the County failed to consider relevant evidence as
required under RCW 90.58.100(1) and WAC 173-26-201(2)(a).41 There is also scientific evidence
in the record supporting the Board’s conclusions.
The SI report and CIA demonstrate that the County inventoried and evaluated Hood
Canal’s shorelines and made the conservancy designation based on the scientific analysis
available. The County documented that Hood Canal contains salmonid habitat, salt marshes, and
lagoons, erosive and/or hazardous slopes, and commercial shellfish beds. And in the SI, the
County designated the S&G shoreline property as a “conservancy” area based on its environmental
attributes. These include: high-functioning shoreline resources with a low degree of modification
or stressors, the presence of salmonid habitats, the presence of erosive or hazardous slopes, and
the presence of commercial shellfish beds. Direct impacts from the development of piers, docks,
and other shoreline modifications can include loss of shoreline/riparian vegetation, burying of
habitats, damage from equipment to eggs incubating on the beach, and lowering and coarsening of
beach profiles. Indirect impacts can occur from sediment transport and impoundment and water
quality degradation from development that affect forage fish and herring’s habitats.
The CIA stated that “the type and intensity of uses allowed in areas designated Natural and
Conservancy are tightly controlled since these areas are the most sensitive to future development
and the most vital to protect.” AR at 5683. The CIA further noted that piers, docks, and other
41
S&G cites to a letter to the DOE arguing that the prohibition of aquaculture was not properly
supported by science as evidence of the “necessary procedures” the County and the DOE had to
engage in “when it came to banning marine transportation of aggregate.” Br. of Appellant (S&G)
at 30. But this letter does not establish the rules the County and the DOE had to follow nor illustrate
how the implementation of the Master Program with respect to mining violated these rules. We
hold that S&G’s argument based on this record cite fails.
64
No. 47641-0-II
over-water structures can have adverse effects including blocking or baffling wave patterns,
currents, littoral drift, or movement of aquatic life. Shading from piers can also alter juvenile
salmon migration behavior, result in increased predation, disrupt feeding areas, change marine
vegetation, decrease survival due to dislocation of herring eggs spawned on pilings at high tide
elevations, and reduce eel grass and kelp beds.
We must view the evidence relied on by the Board in the light most favorable to the
respondents. City of University Place, 144 Wash. 2d at 652. And in doing so, it appears there is a
sufficient quantity of evidence to persuade a fair-minded person that the record supported that the
Master Program mining limitation is in compliance with SMA provision RCW 90.58.100(1) and
Master Program guideline WAC 173-26-201(2)(a). We hold that the Master Program was
sufficiently supported by scientific evidence in accordance with RCW 90.58.100(1) and WAC
173-26-201(2)(a).
VI. PUBLIC COMMENT ON THE MINING LIMITATION
S&G argues that insertion of the mining limitation into the Master Program after public
hearings and the opportunity for public comment on the Draft Master Program had closed violated
the SMA, Master Program guidelines, and S&G’s due process rights. We hold that S&G fails to
show that the SMA, Master Program guidelines, and S&G’s due process rights were violated.
A. PUBLIC COMMENT UNDER THE SMA AND MASTER PROGRAM GUIDELINES
1. STANDARD OF REVIEW
“Procedural errors, such as lack of proper notice, are questions of law reviewed de novo.”
Cent. Puget Sound Reg’l Transit Auth. v. Miller, 156 Wash. 2d 403, 412, 128 P.3d 588 (2006). A
65
No. 47641-0-II
challenger of notice bears the burden of proof that the notice was defective. Cent. Puget Sound
Reg’l Transit Auth., 156 Wash. 2d at 412-13.
2. APPLICABLE LAW
The SMA requires that the DOE and the County make reasonable efforts to inform and
offer involvement opportunities to “all persons and entities having an interest in” the Master
Program update. RCW 90.58.130. The Master Program guidelines state that in order to fulfill this
duty, the DOE and the County shall establish and engage in “early and continuous” public
participation procedures including “broad dissemination of informative materials, proposals and
alternatives, opportunity for written comments, public meetings after effective notice, provision
for open discussion, and consideration of and response to public comments.” WAC 173-26-090.
“Local governments may modify the timing of the various steps, integrate the process into other
planning activities, add steps to the process, or work jointly with other jurisdictions or regional
efforts, provided the provisions of this chapter are met.” WAC 173-26-201(3)(a).
3. ANALYSIS
S&G argues that the County “failed to provide any public participation whatsoever” on the
mining limitation in the Draft Master Program and thereby violated SMA provision RCW
90.58.130 and Master Program guideline WAC 173-26-090. Br. of Appellant (S&G) at 33.42 This
argument is unpersuasive.
42
S&G alleges that the County inserted the mining limitation the day it adopted the Master
Program and neglected to notify the public of the mining limitation beforehand in any materials,
Draft Master Programs, or hearings. But S&G fails to support these assertions with any citation
to the factual record.
66
No. 47641-0-II
S&G had the opportunity to comment on the Master Program provision regarding mining
in the conservation area. The July 2009 draft of the Master Program contained a provision that
allowed mining in the conservation area. And that draft was open to public comment from August
19 to September 8. S&G had the opportunity to comment on whether mining should be allowed
in conservation areas. Master Program guidelines require the County to solicit public comment
and hold at least one public hearing on a Draft Master Program before it goes to the DOE. WAC
173-26-100(1). The County did so here. S&G does not point to anything in the record showing
that the Commissioners changed or intended to change their proposal on the mining provision in
the Draft Master Program before the public comment period. Apparently, it was only after
considering the public’s comments that the Commissioners found that mining should be prohibited
in conservation areas.43
The SMA and Master Program guidelines do not require that the County provide
opportunity for public comment every time a part of a Draft Master Program is changed. In fact,
if this requirement existed, a local government would be faced with the choice of conducting an
indefinite string of hearings or never making changes in response to public comments.
And here, S&G fails to establish that the County violated the SMA or the Master Program
guidelines when the Commissioners reviewed the comments submitted between August 19 and
43
S&G also argues that the original version of the Master Program that went through an extensive,
multi-year public process did not include the mining limitation. And S&G argues that the original
Master Program without the mining limitation was recommended by the County’s planning
commission and staff. But besides citing to one Draft Master Program from 2009, S&G does not
support these assertions with any citation to the factual record. But even if we assume this assertion
is true, we hold that it does not establish that S&G was deprived of all opportunity to comment on
this provision.
67
No. 47641-0-II
September 8 and exercised their discretion to adjust the Master Program. We note that the Master
Program guidelines indicate that the County has some discretion during the Master Program
modification process because “[l]ocal governments may modify the timing of the various steps,
integrate the process into other planning activities, [and] add steps to the process.” WAC 173-26-
201(3)(a). Further, it seems apparent that S&G had to know that a proposal to allow mining in a
conservancy area would spark opposition and that the Commissioners could be persuaded by that
opposition.
We hold that in compliance with WAC 173-26-090, S&G was notified that the issue of
whether to allow mining in the conservancy environment was before the Board. We further hold
that S&G had an opportunity to comment about that issue before the Commissioners made changes
to the Draft Master Plan. We reject S&G’s argument and hold that the County followed the SMA
and Master Program guidelines to ensure all persons had full opportunity to comment.
B. DUE PROCESS RIGHTS
S&G argues that its procedural due process rights to notice and “to subsequently participate
in the process” of adopting the mining limitation were also violated. Br. of Appellant (S&G) at
36. We reject this argument.
“Procedural errors, such as lack of proper notice, are questions of law reviewed de novo.”
Cent. Puget Sound Reg’l Transit Auth., 156 Wash. 2d at 412. The due process clause in the
Fourteenth Amendment of the United States Constitution provides that no State shall deprive any
person of life, liberty, or property without due process of law. U.S. CONST. amend. XIV, § 1.
Due process includes the requirement that notice must apprise interested citizens of the
nature and purpose of the hearing so they can participate effectively. Responsible Urban Growth
68
No. 47641-0-II
v. City of Kent, 123 Wash. 2d 376, 386, 868 P.2d 861 (1994). “If notice fails to apprise parties of the
nature and purpose of proceedings the good intentions of officials in satisfying statutory
requirements are irrelevant.” Responsible Urban Growth, 123 Wash. 2d at 386.
In support of its argument, S&G cites to Harris v. County of Riverside, 904 F.2d 497, 503
(9th Cir. 1990).44 But Harris is distinguishable. Steven Harris bought a small piece of commercial
land intending to use the property for an all-terrain vehicle rental facility. Harris, 904 F.2d at 498.
The Riverside County Board of Supervisors published notice of a public hearing related on a
general plan amendment that would encompass over a hundred square miles. Harris, 904 F.2d at
499. The enacted general plan redesignated Harris’s property from land accommodating
commercial uses to residential. Harris, 904 F.2d at 499. Harris did not receive notice of the
change prior to its enactment. Harris, 904 F.2d at 499. The Harris court held that the
redesignation deprived Harris of his land’s commercial use, specifically targeted his property for
a zoning change after notice had been published, and therefore deprived him of due process. 904
F.2d at 501-02, 504.
But as discussed above, S&G had the opportunity to comment on mining in the
conservation areas when this provision was originally drafted. And absent any proof to the
contrary, given that the original provision spoke to whether mining would be allowed in
conservancy areas, S&G had notice this provision could be at issue. Thus, Harris, where no notice
was given, is factually distinguishable.
44
The Board did not review this issue because it found that it had no jurisdiction to consider
constitutional issues.
69
No. 47641-0-II
Harris is also distinguishable because Harris’s property was rezoned from commercial to
residential and the court found his property was specifically targeted. 904 F.2d at 501-02. Here,
S&G’s property was not specifically targeted. The Master Program is a general shoreline plan that
prohibits mining in all conservancy areas, not just on S&G’s conservancy shoreline property.
Finally, although S&G argues that the mining limitation prevented S&G from utilizing
marine transport of its aggregate, this is an exaggeration. Marine transport of aggregate is
prohibited only in conservation areas, but is allowed in high-intensity areas. JCC 18.25.480(3)(f).
We affirm the Board’s decision to uphold the Master Program provision prohibiting mining
in conservancy-designated areas.
CONCLUSION
The parties’ challenges to the Board’s decision, as addressed above, fail. Finding no error
in the Board’s decision, we affirm.
A majority of the panel having determined that only the foregoing portion of this opinion will
be printed in the Washington Appellate Reports and that the remainder shall be filed for public record
in accordance with RCW 2.06.040, it is so ordered.
FURTHER DISCUSSION
PART ONE - OSF APPEAL
In response to OSF’s remaining arguments, we hold that the Board correctly upheld the
natural shoreline designation and that OSF’s constitutional challenge fails. We do not consider
issues related to the Board’s dismissal of some of OSF’s arguments. And we deny OSF’s request
for appellate fees.
70
No. 47641-0-II
I. NATURAL SHORELINE DESIGNATION
OSF briefly argues that the Board erred when it did not review or reverse the part of the
Master Program that designated 41 percent of shorelines as “‘[n]atural [s]horelines’” without
authorization from the SMA or guidelines and without considering the actual conditions of the
County. Br. of Appellant (OSF) at 39. We reject this argument.
A. APPLICABLE LAW
The Master Program guidelines govern environmental designations and set out the
following requirements for such designations in Master Programs:
Master programs shall contain a system to classify shoreline areas into specific
environment designations. This classification system shall be based on the existing
use pattern, the biological and physical character of the shoreline, and the goals and
aspirations of the community as expressed through comprehensive plans as well as
the criteria in this section.
WAC 173-26-211(2)(a). The Master Program guidelines further require that environmental
designations be consistent with the SMA, Master Program guidelines, and Master Programs.
WAC 173-26-211(3). A shoreline area is designated as natural in order to “protect those shoreline
areas that are relatively free of human influence or that include intact or minimally degraded
shoreline functions intolerant of human use.” WAC 173-26-211(5)(a)(i).
B. BOARD DECISION
The Board found that OSF failed to provide legal argument demonstrating how the County
violated criteria for designating areas of land in the SMA or Master Program guidelines or how
the Master Program “‘over-designated’ natural areas.” AR at 7503. The Board further found that
the Master Program meets SMA guideline requirements, though it did not specify why it found so.
71
No. 47641-0-II
C. ANALYSIS
To support its argument that the Board should have reversed this “over-designation,” OSF
cites to Master Program guidelines WAC 173-26-211(2)(a) and (3) in a footnote.45 But OSF does
not offer any legal analysis as to why the Master Program’s natural designation violated these
provisions. OSF further argues that neither the Board nor respondents addressed the criteria for
reclassifying rural residential-zoned properties as “natural shorelines” in violation of Master
Program guidelines WAC 173-26-211(2)(a), (5)(a)(i) through (iii). But OSF fails to provide a
record cite demonstrating that the areas the Master Program designated natural were previously
rural residential areas, explain the significance of that change, or analyze how these Master
Program guidelines show that the natural designation is improper.
Even so, the record supports the natural designation. Based on the SI, the County
designated the county shorelines as natural if they had “minimal shoreline modification,” “other
high quality/pristine habitat characteristics,” or “were important feeder bluffs or otherwise
unsuitable for development.” AR at 3686. This action comports with the Master Program
guidelines for designating natural shorelines. WAC 173-26-211(5)(a)(i). The shoreline
environmental designations were produced for public comment and were developed with extensive
input from the Shoreline Technical Advisory Committee and Shoreline Policy Advisory
Committee after review of the aerial photography of the marine shoreline. And the Master
45
OSF provides no analysis explaining how the Board made a procedural error by its “refusal to
review” the natural shoreline environmental designation. Br. of Appellant (OSF) at 40. We are
not required to consider claims unsupported by legal authority or argument. RAP 10.3(a)(6);
Cowiche Canyon, 118 Wash. 2d at 809. Thus, we need not consider whether the Board made such a
procedural error.
72
No. 47641-0-II
Program also allowed for residential development in the natural areas where the prior Master
Program prohibited it. We hold that OSF’s argument that the natural shoreline designation
constituted error fails.
II. DOCTRINE OF UNCONSTITUTIONAL CONDITIONS
OSF argues that the Board erred when it upheld the Master Program provisions that use
the permit process to compel shoreline property owners to (1) set aside tracts of property for
generic buffers and (2) dedicate public access easements because these provisions violate the
doctrine of unconstitutional conditions. OSF states that its argument is a facial challenge that these
Master Program provisions cannot meet the nexus and proportionality standards set forth in Nollan
v. California Coastal Commission, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987), Dolan
v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994), and Koontz v. St. Johns
River Water Management District, ___ U.S. ___, 133 S. Ct. 2586, 2594, 186 L. Ed. 2d 697
(2013).46
OSF further argues that case law establishes that the Master Program buffer provision
qualifies as an exaction subject to Nollan and Dolan because the Master Program buffer provision
requires property owners to surrender a valuable real property interest. OSF argues that the fact
that the Master Program buffer provision allows for minor variances does not remedy the fact that
the Master Program does not meet nexus and proportionality tests. Finally, OSF argues that the
public trust doctrine does not vest ownership of private land to the public such that the Master
Program public access provisions are not in violation of the doctrine of unconstitutional conditions.
46
OSF confirms in its reply brief that it does not raise an as-applied challenge.
73
No. 47641-0-II
We do not reach all of the arguments, but rather hold that OSF fails to establish that the
Nollan/Dolan tests can be applied to a facial taking claim.
A. BOARD DECISION
The Board concluded that it had no jurisdiction to consider constitutional issues.
B. APPLICABLE LAW
Under the “‘unconstitutional conditions’” doctrine, the government may not require a
person to give up a constitutional right in exchange for a discretionary benefit. Dolan, 512 U.S.
at 386. A plaintiff alleging a violation of the “unconstitutional conditions” doctrine, however,
must first establish that a constitutional right is being infringed upon. Guimont, 121 Wash. 2d at 595.
Administrative regulations are presumed to be constitutional. Bang D. Nguyen v. Dep’t of Health,
Med. Quality Assur. Comm’n, 144 Wash. 2d 516, 536, 29 P.3d 689 (2001). Thus, the party
challenging a statute’s or regulation’s constitutionality bears the burden of proving its
unconstitutionality beyond a reasonable doubt. Madison, 161 Wash. 2d at 92.
Nollan, Dolan, and Koontz all involve a special application of the “unconstitutional
conditions” doctrine protecting federal Fifth Amendment rights to just compensation for property
the government takes when owners apply for land-use permits. Koontz, 133 S. Ct. at 2594. Nollan
and Dolan stand for the proposition that the government may not condition approval of a land-use
permit on the owner’s relinquishment of a portion of his property unless there is a nexus and rough
proportionality between the government’s demand and the effects of the proposed land use.
Koontz, 133 S. Ct. at 2591. In City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S.
687, 702-03, 119 S. Ct. 1624, 143 L. Ed. 2d 882 (1999), the Supreme Court made clear the limited
scope of the Nollan/Dolan test:
74
No. 47641-0-II
[W]e have not extended the rough-proportionality test of Dolan beyond the special
context of exactions—land-use decisions conditioning approval of development on
the dedication of property to public use. See Dolan, [512 U.S.] at 385; [Nollan, 483
U.S. at 841].
Later, in Koontz, 133 S. Ct. at 2599, the Court extended the Nollan/Dolan test to certain “monetary
exactions.”
The nexus test permits only those conditions necessary to mitigate a specific adverse
impact of a proposal. Nollan, 483 U.S. at 837. The rough proportionality test limits the extent of
required mitigation measures to those that are roughly proportional to the impact they are designed
to mitigate. Dolan, 512 U.S. at 391.
C. OSF’S FACIAL CHALLENGE
1. CHALLENGED MASTER PROGRAM PROVISIONS
Here, the Master Program imposed a standard 150-foot buffer for all freshwater and marine
water shorelines. JCC 18.25.270(4)(e).47 For residential development, the Master Program states
that property owners are “encouraged, but not required, to provide public access to the shoreline.”
JCC 18.25.500(1)(i). “New multi-unit residential development, including subdivision of land into
more than four parcels, is strongly encouraged to provide public access/open space area equal to
at least 30 percent of the total development/subdivision area for use by development residents and
the public.” JCC 18.25.500(1)(i). The Master Program further states that “[n]ew or amended
subdivisions, except those for lot line adjustment and lot consolidation purposes” shall provide
47
OSF also cites to the county CAO to show that the Master Program requires that “as a mandatory
condition on all new permit approvals” a buffer must be designated by legally binding document
or easement and to show that the buffer areas must be retained in their natural condition. Br. of
Appellant (OSF) at 45. See JCC 18.22.270, (5)(a); JCC 18.25.100(3)(t).
75
No. 47641-0-II
public access in accordance with the general public access provision of the Master Program, JCC
18.25.290. JCC 18.25.500(4)(g). The Master Program states, “Industrial and port uses located in
shoreline jurisdiction should provide public access,” also in accordance with the general public
access provision of the Master Program, JCC 18.25.290. JCC 18.25.470(1)(d). And the Master
Program states approval for applications to build beach access structures and for new docks or
boating facilities should include public access provisions. See JCC 18.25.340(1)(i), .350(1)(f).
2. FAILURE TO MAKE THRESHOLD FACIAL CHALLENGE SHOWING
OSF presents a facial challenge to these Master Program provisions.48 In contrast, the
cases OSF relies on all present an as-applied challenge. Nollan, Dolan, and Koontz all present as-
applied constitutional taking challenges to land-use permit processes. See Nollan, 483 U.S. at 831-
32; Dolan, 512 U.S. at 391; Koontz, 133 S. Ct. at 2602.
To make out a “facial” takings claim, “the landowner must show that the mere enactment
of the regulation constitutes a taking.” Guimont, 121 Wash. 2d at 605 (citing Keystone Bituminous
Coal Ass’n v. DeBenedictis, 480 U.S. 470, 493, 107 S. Ct. 1232, 94 L. Ed. 2d 472 (1987)). Our
Supreme Court further elucidated this rule by stating,
The test for a facial challenge is a high one, in part because the landowner has not
presented any evidence about the particular impact of the regulation on his or her
parcel of land. Thus, to succeed in proving that a statute on its face effects a taking
by regulating the uses that can be made of property, the landowner must show that
48
OSF cites to Master Program provision JCC 18.25.290(2)(l) for the proposition that “[t]he
[Master Program] requires that landowners dedicate a public access easement across their land as
a mandatory condition on certain development applications.” Br. of Appellant (OSF) at 47. But
this Master Program provision does not state that. The provision offers the general direction that
“[p]ublic access easements and permit conditions shall be recorded on the deed of title and/or the
face of a short or long plat as a condition running, at a minimum, for a period contemporaneous
with the duration of the authorized land use. Recordation shall occur at the time of final plat
approval or prior to final occupancy.” JCC 18.25.290(2)(l).
76
No. 47641-0-II
the mere enactment of the statute denies the owner of all economically viable use
of the property.
Guimont, 121 Wash. 2d at 605.
OSF does not make this threshold showing. The nature of the Nollan/Dolan test is fact
specific. The nexus test permits only those conditions necessary to mitigate a specific adverse
impact of a proposal, Nollan, 483 U.S. at 837, while the rough proportionality test limits the extent
of the mitigation measures to those that are roughly proportional to the impact they are designed
to mitigate. Dolan, 512 U.S. at 391. Given these limitations, it will be an unusual instance, at
best, when the “mere enactment” of a restriction could be said to violate these standards of nexus
and proportionality. See Guimont, 121 Wash. 2d at 605. OSF has not shown that the mere enactment
of the challenged Master Program provisions fails under either the nexus or proportionality
standards. Therefore, OSF’s facial challenge under Nollan and Dolan also fails.
OSF further argues that Washington courts have “long-recognized the viability of a facial
takings claim brought under Nollan and Dolan,” citing to three cases. Reply Br. of Appellant
(OSF) at 21. All three cases are distinguishable. The first two cases, Margola Associates v. City
of Seattle, 121 Wash. 2d 625, 854 P.2d 23 (1993), and Orion Corp. v. State, 109 Wash. 2d 621, 653-57,
77
No. 47641-0-II
747 P.2d 1062 (1987), do not apply the Nollan/Dolan nexus and proportionality tests to facial
constitutional claims.49
The third case, from this court, KAPO, 160 Wash. App. at 270, considered whether a marine
shoreline buffer requirement imposed under the GMA violated an impact fee statute, RCW
82.02.020. The KAPO court did not analyze whether the petitioners met the threshold showing for
a facial constitutional takings challenge or even clarify that petitioners raised such a challenge.
Rather, the KAPO court opined that the impact fee statute does not preclude a dedication of land
or an easement within a proposed development if the local government can demonstrate that such
dedication or easement is “‘reasonably necessary as a direct result of the proposed development or
plat to which the dedication of land or easement is to apply.’” 160 Wash. App. at 271 (quoting RCW
82.02.020). The KAPO court then applied the nexus and proportionality tests to determine if the
ordinance violated RCW 82.02.020. 160 Wash. App. at 272-74. KAPO does not support the validity
of OSF’s facial challenge based on Nollan and Dolan.
OSF has not shown how the mere enactment of the challenged Master Program provisions
has taken its property under the Nollan/Dolan test. Therefore, OSF’s constitutional facial
challenge fails.
49
Margola merely cites to Nollan for the proposition that the government must pay compensation
for physically occupying or authorizing a third party to occupy private property. 121 Wash. 2d at
647. Margola does not apply the Nollan/Dolan test, but rather engages in the facial-challenge
threshold showing that OSF failed to engage in: Margola analyzes whether a plaintiff class met
the threshold facial challenge of whether the municipal ordinances at issue lead to a physical
invasion of property by the government. 121 Wash. 2d at 647. Orion dealt with an as-applied
challenge, not a facial challenge. The Orion court also stated that for a constitutional taking facial
challenge, the property owner must show that “the challenged regulation denied all economically
viable use of his or her property.” 109 Wash. 2d at 656.
78
No. 47641-0-II
III. BOARD DISMISSAL OF ABANDONED ARGUMENTS
OSF argues that the Board committed legal or procedural error when it refused to consider
several of OSF’s arguments, but concedes that any error was harmless. The DOE argues that
because OSF fails to identify the issues it alleges were improperly dismissed by the Board and
admits that any error was harmless, we should reject OSF’s arguments of error. RAP 10.3(a)(6).
We agree with the DOE.
OSF asserts that the Board committed “a legal or procedural error” because the Board
refused to consider several of OSF’s arguments below. Br. of Appellant (OSF) at 48. But OSF
fails to specify what that error is, fails to identify what arguments the Board supposedly failed to
consider, and concedes that the error “appears harmless.” Br. of Appellant (OSF) at 48. “Passing
treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration.”
Holland, 90 Wash. App. at 538; RAP 10.3(a)(6). We hold that OSF gave only passing, unsupported
treatment to this issue and do not consider it.
IV. ATTORNEY FEES
OSF argues that if it prevails, it should be entitled to attorney fees and costs under
Washington’s “Equal Access to Justice Act,” RCW 4.84.350, and RAP 18.1.
“Where a statute authorizes fees to the prevailing party, they are available on appeal as
well as in the trial court.” Eagle Point Condo. Owners Ass’n v. Coy, 102 Wash. App. 697, 716, 9
P.3d 898 (2000). RCW 4.84.350(1) governs awards of fees and expenses following judicial review
of agency action and states that
[e]xcept as otherwise specifically provided by statute, a court shall award a
qualified party that prevails in a judicial review of an agency action fees and other
expenses, including reasonable attorneys’ fees, unless the court finds that the
agency action was substantially justified or that circumstances make an award
79
No. 47641-0-II
unjust. A qualified party shall be considered to have prevailed if the qualified party
obtained relief on a significant issue that achieves some benefit that the qualified
party sought.
We decline to award OSF attorney fees because OSF is not the prevailing party. In
conclusion, we reject OSF’s arguments that the Board erred.
PART TWO – CAPR APPEAL
In response to CAPR’s remaining arguments, we hold that (1) the Master Program
adequately considered economic impacts and (2) the Board did not deny due process to CAPR.
I. CONSIDERATION OF ECONOMIC IMPACTS
A. SMA AND MASTER PROGRAM GUIDELINE REQUIREMENTS
CAPR argues that because the County did not include analysis in the Master Program of
how it would affect economic issues, the Board erred when it found the Master Program conformed
to the SMA and Master Program guidelines. CAPR also argues that the adoption of the Master
Program violated ch. 43.21H RCW, the “State Economic Policy Act” (SECPA). We disagree.
1. APPLICABLE LAW
The SMA provides the Master Program requirements for incorporating social science:
“[i]n preparing the master programs, and any amendments thereto, the [DOE] and local
governments shall to the extent feasible: (a) [u]tilize a systematic interdisciplinary approach
which will insure the integrated use of the natural and social sciences and the environmental design
arts.” RCW 90.58.100(1) (emphasis added). The SMA further clarifies that local governments
shall also “to the extent feasible . . . (e) [u]tilize all available information regarding . . . economics.”
RCW 90.58.100(1) (emphasis added). The DOE and local governments shall also, to the extent
80
No. 47641-0-II
feasible, “[c]onduct or support such further research, studies, surveys and interviews as are
deemed necessary.” RCW 90.58.100(1)(d) (emphasis added).
The scientific requirements for a Master Program are also reiterated in the Master Program
guidelines that state local jurisdictions are to “identify and assemble the most current, accurate,
and complete scientific and technical information available that is applicable to the issues of
concern” and to base Master Program provisions on an analysis incorporating such information.
WAC 173-26-201(2)(a) (emphasis added). The SMA also speaks to development priorities, noting
that single-family residences are the most common form of shoreline development and are a
priority use when developed in a manner consistent with control of pollution and prevention of
damage to the natural environment. RCW 90.58.030(3)(e)(vi); see also WAC 173-27-040(2)(g);
WAC 173-26-241(3)(j). And the SMA encourages that Master Programs speak to economic
development through other types of uses:
The master programs shall include, when appropriate, the following:
(a) An economic development element for the location and design of
industries, projects of statewide significance, transportation facilities, port
facilities, tourist facilities, commerce and other developments that are particularly
dependent on their location on or use of the shorelines of the state.
RCW 90.58.100(2) (emphasis added).
2. BOARD DECISION
The Board concluded that the County factored regulatory compliance into its goals and
regulations through consideration of economic “feasibility” required by RCW 90.58.020 and that
CAPR failed to meet its burden to show the Master Program failed for lack of support from social
sciences. The Board further concluded that neither the SMA in RCW 90.58.100(1) nor the Master
81
No. 47641-0-II
Program guidelines in WAC 173-26-201(2)(a) required the type of economic analysis suggested
by CAPR.
3. ANALYSIS
CAPR argues that the Board erred because the Master Program violated the SMA and
Master Program guidelines cited above. CAPR rests this argument on its claim that the Master
Program did not include an economic analysis about how the Master Program would affect
residential property values, property insurance rates, opportunities for financing and refinancing,
costs of regulatory compliance, property tax collections, and tax burden distributions across the
County.50 But as the Board concluded, neither the SMA nor the Master Program guidelines
required this type of economic analysis. See RCW 90.58.100(1)(a), (d), (e), (2)(a), .030(3)(e)(vi);
WAC 173-26-201(2)(a).
The SMA requires local governments, to the extent feasible, to incorporate social sciences
into the Master Program, to utilize available information regarding economics, and to conduct or
support further research as is deemed necessary. RCW 90.58.100(1)(a), (d), (e). CAPR bears the
burden of establishing the invalidity of the Master Program. Quadrant Corp., 154 Wash. 2d at 233.
But CAPR provides no support for its proposition that it was feasible for the County to incorporate
into the CIA additional, available economic information that was needed to analyze the economic
effects of the Master Program. Nor does CAPR demonstrate that the County should have
conducted any further economic research.
50
CAPR cites to Armstrong v. United States, 364 U.S. 40, 49, 80 S. Ct. 1563, 4 L. Ed. 2d 1554
(1960). But Armstrong considered a Fifth Amendment takings claim that is a claim that CAPR
does not assert. See 364 U.S. at 49.
82
No. 47641-0-II
Further, the record supports the Board’s conclusion that the County solicited, considered,
and incorporated the economic feasibility of regulatory compliance into the Master Program.
During the 2008 to 2009 comment period, the County received public comment, including that
submitted by CAPR, inquiring about the economic impact of the Master Program. The CIA
reported public requests for analysis of the economic impacts of the Draft Master Program, but
noted it did not contain such an assessment because none is required at the local level. The CIA
further noted that there was no evidence of decreased waterfront property values over the past 40
years under SMA regulation.
The CIA also contained recommendations that developments that have unanticipated or
uncommon impacts, which cannot be reasonably identified during the drafting of the Master
Program, should be evaluated via the shoreline substantial development and conditional use permit
process. This process would ensure that all impacts are addressed and that there is no net loss of
ecological function after mitigation.
The Master Program included numerous provisions in which application of shoreline
regulations and restrictions are conditioned on the feasibility of such restrictions.51 The Master
Program states that whether an action, including a development project, mitigation, or preservation
requirement is infeasible depends on weighing relative public costs and public benefits. JCC
51
See JCC 18.25.180(2)(c), .210(3)(a)(i), .290(1)(j), (2)(d), (e), (j), .310(2)(c), .340(1)(f), (4)(f),
.350(1)(h), (6)(j)(i), (ii), (7)(c)(ii), .380(1)(d), (f)(ii), .410(1)(c), (l), (m), .450(6)(c)(ii), .470(1)(g),
(5)(c)(ii), (6)(a)(i), .480(1)(d)(iii), .490(1)(d), (3)(c), .500(4)(e), (f)(ii), (h), .520(1)(a), (j), (3)(d),
(e), (f), .530(1)(a)(ii), (c), (g), (2)(d), (e), (f), (3)(a), (b), (d)(viii), (ix), (5)(c), (8)(a), (b).
83
No. 47641-0-II
18.25.100(6)(b). More importantly, the definition of feasible alternatives includes ones that can
be accomplished at reasonable cost. JCC 18.25.100(6)(c)(i)(D).52
The record shows that the County utilized economic information. The CIA acknowledged
citizens’ requests about the economic impacts of the Draft Master Program. And the CIA noted
that there is no evidence of decreased waterfront property values over the past 40 years under SMA
regulation. The Master Program’s bibliography further evidences the County’s reliance on sources
that address economics.53 CAPR fails to explain why the incorporation of economics into the
Master Program and the County’s evidence that the Board deemed sufficient under the SMA and
Master Program guidelines are not sufficient. We hold that the Board did not err by concluding
that the SMA and Master Program guidelines did not require the economic analysis advocated for
by CAPR.
52
CAPR argues that the Master Program feasibility provisions lack economic analysis, inure
against property owners, and fail to meet the requirements of RCW 90.58.100(1)(a). But CAPR
does not explain or establish how these alleged deficiencies violate either the SMA or the Master
Program guidelines. “Passing treatment of an issue or lack of reasoned argument is insufficient to
merit judicial consideration.” Holland, 90 Wash. App. at 538; see also RAP 10.3(a)(6).
We do not consider claims unsupported by legal authority. RAP 10.3(a)(6); Cowiche
Canyon, 118 Wash. 2d at 809.
53
CAPR cites to the 612 entries in the Master Program’s bibliography to contend that there is no
mention of the economic impacts of the Master Program. The bibliography lists only titles of
articles, web sites, or other resources. Based on titles alone, it is impossible to discern what of
these resources the County relied on to create the Master Program. But just based on titles alone,
some of the resources appear to address some of the economic issues CAPR raises here. AR at
2393 (e.g., “Efficacy and Economics of Riparian Buffers on Agricultural Lands”); AR at 2394
(e.g., “Sound Science: Synthesizing ecological and socioeconomic information about the Puget
Sound ecosystem”); AR at 2400 (“Critical Areas Assistance Handbook: Protecting Critical Areas
Within the Framework of the Washington Growth Management Act, Washington State
Department of Community, Trade and Economic Development”).
84
No. 47641-0-II
B. STATE ECONOMIC POLICY ACT
CAPR argues that the adoption of the Master Program violated SECPA. We disagree.
1. APPLICABLE LAW
The SECPA ensures “that economic values are given appropriate consideration along with
environmental, social, health, and safety considerations in the promulgation of rules by state and
local government.” RCW 43.21H.010. The SECPA’s legislative responsibility provision states,
All state agencies and local government entities with rule-making authority under
state law or local ordinance must adopt methods and procedures which will insure
that economic impacts and values will be given appropriate consideration in the
rule-making process along with environmental, social, health, and safety
considerations.
RCW 43.21H.020.
2. BOARD DECISION
The Board did not address this issue.
3. ANALYSIS
CAPR cites to the SECPA’s purpose provision and legislative responsibility section above
and argues that the County had no proper procedures in place to comply with these provisions.
CAPR further asserts that the County should have anticipated, quantified, and considered the
economic effects of the “stigma” associated with nonconforming uses and structures resulting from
the Master Program and that the DOE should have ensured that the County took these steps prior
to approving the Master Program.
These arguments are unpersuasive because the SECPA provisions do not delineate such
requirements. See RCW 43.21H.010, .020. And CAPR does not cite to any other portion of the
SECPA, other legal authority, or the record to support this argument. We do not consider claims
85
No. 47641-0-II
unsupported by legal authority or the record. RAP 10.3(a)(6); Cowiche Canyon, 118 Wash. 2d at
809.
Further, as analyzed above, the record demonstrates that the County considered economic
information. CAPR fails to explain why the incorporation of economics into the Master Program,
the County’s evidence, and the County and the DOE’s processes do not fulfill SECPA’s mandates.
We hold that the Master Program update did not violate SECPA as argued by CAPR.
II. NEUTRAL TRIBUNAL
CAPR argues a violation of their due process right to a neutral tribunal (1) because the
Board’s standard of review for a Master Program involves a presumption of validity and (2)
because the Board is not an impartial or detached judicial body. From this, CAPR contends it was
denied proper adjudication. We disagree.
A. PRINCIPLES OF LAW
Constitutional issues are questions of law that we review de novo. Ass’n of Wash. Spirits,
182 Wash. 2d at 350. Challenges to a Master Program are governed by the SMA and are adjudicated
by the Board. RCW 90.58.190(2)(a). The Board reviews Master Programs for compliance with
the SMA and the Master Program guidelines. RCW 90.58.190(2), .200, .060; WAC 173-26-171
to -251; RCW 36.70A.280.
Where a provision regulating SSWS is challenged, “the board shall uphold the decision by
the [DOE] unless the board, by clear and convincing evidence, determines that the decision of the
[DOE] is noncompliant with the policy of RCW 90.58.020 or the applicable guidelines, or chapter
43.21C RCW as it relates to the adoption of master programs.” RCW 90.58.190(2)(c). And where
a challenge is to provisions regulating shorelines, the Board shall review the proposed Master
86
No. 47641-0-II
Program “solely for compliance with the requirements,” the applicable guidelines, and other
internal consistency provisions. RCW 90.58.190(2)(b) (emphasis added). With respect to
provisions affecting only shorelines, a petitioner must establish that the provisions at issue are
“clearly erroneous” in view of the entire record before the Board. RCW 36.70A.320(3).
The Board was established under the GMA, which states that the “legislature intends that
the board applies a more deferential standard of review to actions of counties and cities than the
preponderance of the evidence standard provided for under existing law.” RCW 36.70A.3201.
The GMA further clarifies the reasoning behind the deference given to Board decisions:
Local comprehensive plans and development regulations require counties and cities
to balance priorities and options for action in full consideration of local
circumstances. The legislature finds that while this chapter requires local planning
to take place within a framework of state goals and requirements, the ultimate
burden and responsibility for planning, harmonizing the planning goals of this
chapter, and implementing a county’s or city’s future rests with that community.
RCW 36.70A.3201.
B. APPLICATION OF THE LAW TO THE FACTS
CAPR argues that the Board’s standards of review under the SMA, RCW 90.58.190, and
the GMA, RCW 36.70A.320, deny challengers of Master Programs their due process rights to a
neutral tribunal.54 In support of its argument, CAPR relies on Concrete Pipe & Products of
California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602,
113 S. Ct. 2264, 124 L. Ed. 2d 539 (1993), Ward v. Village of Monroeville, Ohio, 409 U.S. 57, 93
S. Ct. 80, 34 L. Ed. 2d 267 (1972), and Marshall v. Jerrico, Inc., 446 U.S. 238, 100 S. Ct. 1610,
64 L. Ed. 2d 182 (1980). CAPR’s reliance on these cases is unpersuasive.
54
The Board did not review this issue.
87
No. 47641-0-II
First, in Guimont v. City of Seattle, 77 Wash. App. 74, 86 n.10, 896 P.2d 70, review denied,
127 Wash. 2d 1023 (1995), Division One of this court held that Concrete Pipe’s rationale applies to
only federal economic legislation. CAPR argues that Guimont’s holding is a “crabbed reading that
this Court needs to revisit.” Br. of Appellant (CAPR) at 47 n.21. But it is difficult to discern how
CAPR would apply Concrete Pipe here.
CAPR fails to analyze how or why we should apply Concrete Pipe when that opinion
specifically analyzed the due process implications within the context of a complex federal
employer pension plan statute. We are not persuaded to deviate from Guimont and thus do not
apply Concrete Pipe here.
Second, Ward does not support CAPR’s argument. In Ward, the “mayor’s court” convicted
a defendant of two traffic offenses in the Village of Monroeville. 409 U.S. at 57-58. There, the
Supreme Court held that the defendant was denied a trial before a disinterested and impartial
judicial officer as guaranteed by the due process clause as a result of the mayor’s financial interest
and role in collection activities. Ward, 409 U.S. at 58. Here, besides noting that the Board is not
an elected body, CAPR offers no analysis or record support to show a conflict of interest exists
between the Board and its reviewing capacity that is similar to that between the mayor and his
duties in Ward.
Third, Marshall does not support CAPR’s argument either. The Supreme Court held that
the civil penalty provisions of the Fair Labor Standards Act, 29 U.S.C. § 216(e), did not violate
the due process clause by creating an impermissible risk of bias in the enforcement and
administration of the Fair Labor Standards Act. Marshall, 446 U.S. at 241-42. The Marshall
Court acknowledged the due process requirement of neutrality of officials performing judicial or
88
No. 47641-0-II
quasi-judicial functions. 446 U.S. at 242. And the Marshall Court stated that under the Fair Labor
Standards Act, the administrative law judge is required to conduct a de novo review of all factual
and legal issues. 446 U.S. at 245.
Here, the sum of CAPR’s argument and analysis is that the Board “is not impartial or
detached, and its review is not de novo.” Br. of Appellant (CAPR) at 48. Without cite to the
record or legal analysis, we cannot evaluate the potential of bias here as the Supreme Court did in
Marshall. The GMA states that the legislature intended for the Board to grant local government
and agency regulations like the Master Program deference given the required consideration of local
circumstances. RCW 36.70A.3201. CAPR fails to demonstrate bias by the Board here. We hold
that CAPR has not shown that the Board’s standard of review is improper nor that the Board’s
review violated CAPR’s due process rights.
III. ATTORNEY FEES
CAPR argues that if it prevails, it should be entitled to attorney fees and costs under
Washington’s Equal Access to Justice Act, RCW 4.84.350. Because CAPR does not prevail on
appeal, we decline to award CAPR attorney fees.
In conclusion, we reject CAPR’s arguments that the Board erred.
PART THREE – S&G APPEAL
I. ISSUE PRESERVATION
S&G also argues that (1) based in part on the findings in the 2004 Overlay, the Board erred
when it found S&G’s mining operation was not a water-dependent use that the SMA requires be
prioritized and (2) the Master Program conflicts with the “Aquatic Lands Act,” ch. 79.105 RCW,
and the “Surface Mining Act,” ch. 78.44 RCW. The DOE and the County argue that we should
89
No. 47641-0-II
not consider these challenges because they were not raised to the Board.55 We hold that S&G’s
arguments related to the Overlay findings are preserved such that they may raise them here, but
that S&G’s argument regarding the Aquatic Lands Act and the Surface Mining Act cannot be
raised here for the reasons below.56
A. APPLICABLE LAW
Issues not raised before the agency may not be raised on appeal unless the party seeking to
raise a new issue shows an exception to this rule applies. RCW 34.05.554(1). Where no authorities
are cited in support of a proposition, we are not required to search out authorities, but may assume
that a diligent search has produced none. Frank Coluccio Constr. Co. v. King County, 136 Wn.
App. 751, 779, 150 P.3d 1147 (2007) (quoting DeHeer v. Seattle Post-Intelligencer, 60 Wash. 2d
122, 126, 372 P.2d 193 (1962)).
B. ANALYSIS
First, contrary to the County’s assertion, S&G does not argue on appeal that the Master
Program is invalid because it is inconsistent with the Overlay. Rather, using the Overlay findings
55
The County also argues that S&G may not have standing and that S&G’s challenge may be
moot. But the County does not provide legal authority related to standing or mootness. We do
not consider claims unsupported by legal authority or argument. RAP 10.3(a)(6); Cowiche
Canyon, 118 Wash. 2d at 809. Thus, we do not consider the County’s standing and mootness claims.
56
The DOE and the County also argue that because the Board found S&G abandoned the issue of
whether the Master Program was inconsistent with the SMA and GMA, that issue is not properly
before this court. The County relies on RCW 34.05.554 and Concerned Coupeville Citizens v.
Town of Coupeville, 62 Wash. App. 408, 412-13, 814 P.2d 243 (1991). RCW 34.05.554 states that
issues not raised before the agency may not be raised on appeal. Arguably S&G raised the issue
of the Master Program’s consistency with the SMA and the GMA before the Board. Because the
County does not demonstrate that an issue held abandoned by the Board effectively also means it
was not raised to the Board under RCW 34.05.554, we address the issue.
90
No. 47641-0-II
as supporting evidence for the first time on appeal, S&G argues, as it argued below to the Board,
that the Master Program violates the SMA and the Washington Constitution because it prohibits a
water-dependent use. The County provides no authority for the proposition that S&G cannot cite
to evidence like the Overlay findings for the first time on appeal in support of an issue it raised to
the Board. Where no authorities are cited in support of a proposition, we are not required to search
out authorities. Frank Coluccio Constr. Co., 136 Wash. App. at 779. Thus, we hold that S&G’s
arguments that incorporate reference to the Overlay findings are preserved on appeal.
Second, S&G did not raise to the Board the issue that the Master Program was inconsistent
with the Aquatic Lands Act. Issues not raised before the agency may not be raised on appeal
unless an exception applies. RCW 34.05.554(1). And S&G does not argue any exception applies
allowing it to raise the issue now. We hold that S&G cannot raise the Aquatic Lands Act on appeal,
and therefore we do not address its related argument.
Third, in a one-sentence argument to the Board, S&G raised the issue of the Master
Program’s inconsistency with the Surface Mining Act. And here, in support of its argument that
the Master Program conflicts with the Surface Mining Act, S&G merely quotes provisions of the
Surface Mining Act and makes no argument in support of this assertion. “Passing treatment of an
issue or lack of reasoned argument is insufficient to merit judicial consideration.” Holland, 90
Wash. App. at 538; RAP 10.3(a)(6). Thus, we hold that S&G’s argument related to the Surface
Mining Act does not merit judicial consideration, and we do not consider that argument.
II. S&G’S OPERATIONS ARE WATER RELATED
S&G argues that the Board erroneously interpreted or applied the relevant law, Preserve
Our Islands v. Shorelines Hearings Board, 133 Wash. App. 503, 137 P.3d 31 (2006), to find S&G’s
91
No. 47641-0-II
operations were water related rather than water dependent. We disagree. Even assuming the
distinction between water related and water dependent is relevant,57 S&G’s argument still fails.
A. STANDARD OF REVIEW AND APPLICABLE LAW
We may grant relief from the Board’s decision if it has erroneously interpreted or applied
the law. City of Redmond, 136 Wash. 2d at 46. We give weight and deference to the Board’s
interpretation of statutes and regulations it enforces, but ultimately our review is de novo.
Quadrant Corp., 154 Wash. 2d at 233.
Under Master Program guidelines, “‘[w]ater-dependent use’” means “a use or portion of a
use which cannot exist in a location that is not adjacent to the water and which is dependent on the
water by reason of the intrinsic nature of its operations.” WAC 173-26-020(39). “‘Water-related
use’” means
a use or portion of a use which is not intrinsically dependent on a waterfront
location but whose economic viability is dependent upon a waterfront location
because:
(a) The use has a functional requirement for a waterfront location such as
the arrival or shipment of materials by water or the need for large quantities of
water; or
(b) The use provides a necessary service supportive of the water-dependent
uses and the proximity of the use to its customers makes its services less expensive
and/or more convenient.
WAC 173-26-020(43).
57
The Coalition argues that because the County was not obligated under the SMA or Master
Program guidelines to allow mining or mining-related marine activity on all shoreline
environments—whether or not water dependent—whether S&G’s mining operation is water
dependent or water related is largely irrelevant.
92
No. 47641-0-II
B. BOARD DECISION
The Board found that “[S&G’s] proposed mining operation is not ‘dependent on the water
by reason of the intrinsic nature of its operations’” because it has the option of road transportation
for aggregates. AR at 7544. The Board determined that this fact was in contrast with Preserve
Our Islands in which the mining operation at issue was on an island and was dependent on water
transportation. The Board made this conclusion in order to answer S&G’s argument that in
violation of the SMA and WAC 173-26-186, the Master Program impermissibly treated two water-
dependent uses—salmon net pens and aggregate material transport—inconsistently by allowing
the former and prohibiting the latter. The Board generally found that the Master Program correctly
classified mining in the County as “water related” and noted it was not completely prohibited, but
was allowed in the Master Program in high-intensity designated areas. And the Board found that
S&G failed to meet its burden to show that the Master Program violated the SMA or Master
Program guidelines for prohibiting mining in some instances.
C. ANALYSIS
In Preserve Our Islands, the Preserve Our Islands group and King County appealed the
Shorelines Hearings Board order requiring the County to issue Glacier Northwest mine a
conditional use permit to build a barge-loading facility on the shoreline of Maury Island. 133 Wn.
App. at 509. Glacier owned a 235-acre mine on the shore of Maury Island, with the mine itself
located in an upland portion of the site. 133 Wash. App. at 510. The King County Master Program
designated the area in which Glacier’s barge facility would be built as a conservancy area. Pres.
Our Islands, 133 Wash. App. at 514. But the King County Master Program also allowed for such a
93
No. 47641-0-II
barge-loading facility to be permitted if the project was deemed water dependent. Pres. Our
Islands, 133 Wash. App. at 516-17.
The Board found that the barge-loading facility was water dependent and should be
awarded a conditional use permit. Pres. Our Islands, 133 Wash. App. at 513. Preserve Our Islands
upheld the Board decision that the facility was water dependent based on a number of factors,
including: that the County zoned Glacier’s entire site for commercial mining and designated it as
mineral resource land without any restrictions on the size of use, that the mine was located on a
small island without viable large-scale ground transportation options, and that the mine could not
operate consistently with its designated principal use without barging. 133 Wash. App. at 526.
Preserve Our Islands further held that the barge-loading facility was an integral and necessary part
of Glacier’s principal use and that the entire facility must use the shorelines to operate consistently
with its county zoning as a commercially significant mining operation. 133 Wash. App. at 526.
Preserve Our Islands is distinguishable from this case for several reasons. The record
supports the Board’s finding that, unlike the use at issue in Preserve Our Islands, S&G’s mining
operation is not on an island and can exist without the approval of the shoreline pit-to-pier project
with overland transportation. JCO 08-0706-04 at 18. The Overlay ordinance specifically stated
that the quantity of product moved by truck from S&G’s mine will increase by 50 percent over the
next decades whether or not the marine transport system is allowed. JCO 08-0706-04 at 18. The
record does not demonstrate that, as in Preserve Our Islands, S&G’s pier is an integral and
necessary part of S&G’s principal use such that it “must use” the shorelines in order to operate its
mine. 133 Wash. App. at 526-27.
94
No. 47641-0-II
The Overlay ordinance stated that installation of a marine transport pier would increase
S&G’s mining and would allow it to sell its product more competitively in more distant markets
than it could using only trucks because truck transport is too costly to the end user. JCO 08-0706-
04 at 18. The Overlay ordinance further clarifies that marine transport from the pit-to-pier project
would not entirely replace truck traffic to get the aggregate to market. JCO 08-0706-04 at 18.
Thus, marine transportation from a shoreline pier and barge could make extra profit and
business for S&G, but S&G has not shown that the pit-to-pier project was necessary and integral
to its mining operations, the way the requested pier was for Glacier, on an island, making it water
dependent in Preserve Our Islands. 133 Wash. App. at 513. S&G’s pit-to-pier project in the context
of its mining operation thus appears to be more like a “water-related” use that is not intrinsically
dependent on a waterfront location but for which economic viability is dependent on a waterfront
location. WAC 173-26-020(43).
Although our review of the Board’s decision based on its interpretation of the law is de
novo, we give weight and deference to the Board’s interpretation of the statutes and regulations it
enforces. Quadrant Corp., 154 Wash. 2d at 233. In light of the factual findings in the Overlay
ordinance and the differing facts in Preserve Our Islands, we hold that the Board did not err when
it distinguished Preserve Our Islands from S&G’s claims. We give deference to the Board’s
interpretation of the Master Program guidelines when it found that S&G’s operation was water
related, not water dependent. Thus, we hold that the Board did not err when it classified S&G’s
use as water related rather than water dependent.
95
No. 47641-0-II
III. NO CONFLICT WITH THE GMA AND THE GMA COMPREHENSIVE PLAN
S&G next argues that the Master Program’s mining limitation is inconsistent with and
violative of the GMA58 and the County’s GMA Comprehensive Plan.59 The Coalition argues that
the SMA states that Master Programs are not reviewable under the GMA and that S&G fails to
demonstrate inconsistency between the Master Program and the GMA Comprehensive Plan. The
DOE argues that a Master Program need be consistent with only the Master Program guidelines,
not the GMA as a whole.60 We disagree with S&G’s contentions.61
58
S&G argues that because the Board failed to address this issue, we should remand this matter to
the Board to “complete its work.” Br. of Appellant (S&G) at 9. But S&G provides no law or legal
analysis explaining how the Board made a procedural error by not addressing this issue. We do
not consider claims unsupported by legal authority or argument. RAP 10.3(a)(6); Cowiche
Canyon, 118 Wash. 2d at 809. Thus, we do not consider whether the Board made such a procedural
error.
59
S&G also argues that the Master Program “violates the mandates of its own” provisions because
the Master Program simultaneously prohibits marine transport of minerals and supports mining
operations, including marine transport. Br. of Appellant (S&G) at 23. This argument is
unpersuasive. In support of the argument, S&G cites to JCC 18.25.480(4)(b). Master Program
provision JCC 18.25.480(4)(b) states that mining operations include “[t]ransport of minerals” from
conveyor systems and barge terminals. And the Master Program prohibits mining use and
development except mining transport by road within most shoreline environments, including
“conservancy” shoreline environments. JCC 18.25.480(3)(d). But the Master Program allows
mining, including mine-related transportation, in the “high-intensity” shoreline environments with
conditional use permits. JCC 18.25.480(3)(f). Thus, the fact that transport is included in the
Master Program definition of mining operations and the fact that one provision of the Master
Program prohibits transport in particular areas with particular environmental designations does not
mean the Master Program violates its own provisions. We hold that this argument fails.
60
The DOE also argues that S&G has waived this issue because S&G did not raise it before the
Board. But then in a footnote, the DOE acknowledges that S&G did raise the issue before the
Board, but that it did so inadequately. We hold that this issue is not waived.
61
Notably, the Board did not address whether the Master Program violated the GMA generally.
The Board found that the Master Program did not violate the GMA provisions requiring Master
Programs to be consistent with GMA Comprehensive Plans. And the Board found that S&G had
96
No. 47641-0-II
A. VIOLATION OF THE GMA
RCW 90.58.190 sets out the SMA rules for appeal to the Board of the adoption or
amendment of a Master Program. Where an appeal to the Board concerns shorelines, the Board
shall review the Master Program
solely for compliance with the requirements of this chapter, the policy of RCW
90.58.020 [SMA] and the applicable guidelines, the internal consistency provisions
of RCW 36.70A.070 [a GMA provision specifying what must be contained in GMA
Comprehensive Plans], 36.70A.040(4) [a GMA provision specifying who must
implement a GMA Comprehensive Plan and when], 35.63.125, and 35A.63.105
[both planning commission provisions], and chapter 43.21C RCW [SEPA] as it
relates to the adoption of master programs and amendments under chapter 90.58
RCW [SMA].
RCW 90.58.190(2)(b) (emphasis added). If the appeal to the Board concerns a SSWS, the Board
shall uphold the DOE’s decision unless the Board, “by clear and convincing evidence, determines
that the decision of the [DOE] is noncompliant with the policy of [SMA] RCW 90.58.020 or the
applicable guidelines, or chapter 43.21C RCW [SEPA] as it relates to the adoption of master
programs and amendments under this chapter.” RCW 90.58.190(2)(c).
The County has some shorelines that are reviewable under RCW 90.58.190(2)(b) and
others that are reviewable under RCW 90.58.190(2)(c). The Board thus examined the County’s
Master Program under both SSWS and shoreline scopes of review and applicable burdens of
abandoned an argument that the Master Program was inconsistent with two GMA definition
sections for lack of legal argument.
97
No. 47641-0-II
proof.62 But under either review, there is no requirement that the Master Program be consistent
with the GMA beyond the provisions listed in RCW 90.58.190(2)(b), above. RCW
90.58.190(2)(b), (c).63 The SMA clarifies that a Master Program must be consistent with a GMA
Comprehensive Plan and county planning efforts for a GMA Comprehensive Plan, but does not
state that Master Programs are evaluated based on the provisions in the GMA as a whole. RCW
90.58.190(2)(b); former RCW 36.70A.070 (2010); RCW 36.70A.040(4). Because a Master
Program is not reviewed for compliance with the GMA beyond these specific provisions, we hold
that S&G’s argument fails.
B. VIOLATION OF THE GMA COUNTY COMPREHENSIVE PLAN
To support its argument that the Master Program mining limitation is inconsistent with and
thereby violative of the County’s GMA Comprehensive Plan, S&G cites to many GMA
Comprehensive Plan policies regarding sustainable development of industrial uses for mineral
resource lands. S&G then asserts that the Master Program “improperly nullifies these GMA-based
policies.” Br. of Appellant (S&G) at 25. The Coalition argues that S&G has failed to carry its
62
The DOE and the Coalition argue that because Hood Canal shorelines are classified as SSWS,
the standard of reviewing the Master Program’s mining provision is limited to that set for SSWS.
The DOE and the Coalition are correct that S&G frames its argument using the example of the
prohibition of its pit-to-pier project, but it appears that S&G is challenging the entire Master
Program provision prohibiting mining in conservancy areas. Thus, we consider the standards of
review for SSWS and shorelines. The Coalition seems to acknowledge this because it also
analyzes both standards of review.
63
The GMA also does not require Master Programs be reviewed under the GMA. The GMA
confirms that a Master Program should be adopted pursuant to the SMA rather than the GMA. See
RCW 36.70A.480(2). As noted, the SMA through RCW 90.58.190(2)(b) lists those provisions
under which a Master Program is reviewed.
98
No. 47641-0-II
burden of demonstrating internal inconsistency between the Master Program and the County’s
GMA Comprehensive Plan goals. We agree with the Coalition.
Under the APA, the party asserting invalidity bears the burden of establishing the
invalidity. Quadrant Corp., 154 Wash. 2d at 233. As is common, the County’s GMA
Comprehensive Plan contains policies that may conflict in their application, such as those
encouraging both industrial development and environmental protection. WAC 173-26-176(2)
(stating, “The policy goals for the management of shorelines harbor potential for conflict”). S&G
fails to offer legal argument to show how the Master Program provision at issue nullifies the
County’s GMA Comprehensive Plan policies thereby making the Master Program invalid. We
agree with the Coalition and hold that S&G’s argument fails.
In conclusion, we reject S&G’s arguments that the Board erred.
CONCLUSION
After review of the parties’ arguments and the record herein, we conclude that the Board’s
final decision and order that upheld the County’s Master Program was not error. We affirm.
JOHANSON, J.
We concur:
BJORGEN, C.J.
MELNICK, J.
99