The Puyallup Tribe Of Indians, V City Of Tacoma

•• tILED
COURT OF APPEALS OW I
STATE OF WAStiltIGTON
2010 MAY 14 Ali 9; 1
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
THE PUYALLUP TRIBE OF INDIANS, )
a Federally Recognized Indian Tribe, )
) No. 77748-3-1
Appellant, )
) DIVISION ONE
v. )
)
WASHINGTON STATE SHORELINES )
HEARINGS BOARD, CITY OF )
TACOMA,a Washington Municipal )
Corporation, PUGET SOUND ENERGY,)
INC., a Washington Corporation,
PORT OF TACOMA, a Washington )
Special Purpose District and )
WASHINGTON STATE )
DEPARTMENT OF ECOLOGY, ) UNPUBLISHED OPINION
)
Respondents. ) FILED: May 14, 2018
SPEARMAN, J. — We review decisions of the Shorelines Hearings Board to
determine if the Board's factual findings are supported by substantial evidence
and if these findings, in turn, support the Board's conclusions of law. The
Puyallup Tribe of Indians appeals the Shorelines Hearings Board's decision to
affirm a shoreline substantial development permit. But because the Board's
decision is supported by substantial evidence, we affirm.1
1 Shortly before oral argument, Puget Sound Energy(PSE)filed, as supplemental
authority, a decision of the Shorelines Hearing Board in a separate appeal of a Department of
Ecology permit. PSE directed the court's attention to the background facts. The Tribe filed a
motion to strike on the grounds that the background facts recited in the decision are not authority.
We agree with the Tribe and grant the motion.
No. 77748-3-1/2
FACTS
Puget Sound Energy(PSE) proposes to build a liquefied natural gas
(LNG)facility near the Blair and Hylebos Waterways in Tacoma. The Blair and
Hylebos are man-made inlets excavated from Commencement Bay. The
Puyallup Tribe of Indians owns property along both waterways. The Tribe also
has treaty rights to fish and shellfish in the Blair and Hylebos.
The land around the Blair and Hylebos Waterways has long been used for
heavy industry. This industrial use has degraded conditions in the waterways. In
1983, the Environmental Protection Agency(EPA) listed the Blair and Hylebos
Waterways as national priorities (superfund sites). The Blair Waterway was
dredged to remove contaminated sediment between 1993 and 1995. Following
this action, the EPA removed the Blair from the national priorities list. The
Hylebos remains a national priority.
The PSE project involves a land-based LNG processing facility connected
by a pipeline to a fueling station in the Blair Waterway. Originally, the project also
involved a barge-loading dock on the Hylebos Waterway. As originally planned,
the project entailed removing a number of old, creosote-treated piles in both
waterways and replacing a dock and bulkhead on the Hylebos.
The Environmental Impact Statement
Under the State Environmental Policy Act, the project required an
Environmental Impact Statement (EIS). The City of Tacoma prepared a draft EIS,
notified the public, and sought comments. The Department of Ecology and the
EPA both submitted comments. Ecology noted that removing existing piles will
release sediment into the water. Ecology recommended that PSE consult with
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No. 77748-3-1/3
the Department of Natural Resources and the EPA to determine the best
approach for this work. Ecology further commented that, "[i]n general, EPA
should be consulted about all in-water construction in the Hylebos Waterway
problem area." Administrative Record (AR)at 1074.
In its comments, the EPA expressed concern with the proposed work on
the Hylebos. EPA stated that some areas of the Hylebos had been designated
"monitored natural recovery" areas. AR at 1832. These areas were expected to
remain undisturbed so that clean sediment could settle over and contain
contaminated sediment. The EPA stated that it had asked PSE to summarize the
existing data, identify data gaps, and develop a draft sampling and analysis plan
to characterize sediment quality at the Hylebos project site. The EPA
recommended that the final EIS should describe the uncertainty about sediment
quality in the Hylebos, state that construction sequencing and design depend
upon sediment and soil quality, and, in some places, sediment and/or soil
removal may need to precede construction. The EPA did not express concerns
about sediment in the Blair.
The City issued a final EIS evaluating the impact of the project in several
categories. The EIS concludes that, in the long term, replacing creosote-treated
piles will improve water quality. While removing the piles may temporarily disturb
sediment and re-suspend contaminates, this effect is short term and will last
about two tide cycles. The project will also result in a long term benefit to aquatic
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No. 77748-3-1/4
life by reducing the total number of piles, decreasing the total area of over water
coverage, and increasing benthic habitat.2
The EIS recommends employing best management practices(BMPs)to
avoid or minimize the impact of sediment disturbance. BMPs include using a
vibratory hammer to remove piles without disturbing sediment; cutting any broken
piles two feet below the mud line and filling the hole with clean fill; limiting in-
water construction to a window when the fewest fish are present; installing a silt
curtain around the pile removal area to prevent sediment from migrating beyond
the project footprint; and containing all removed sediment and creosote-treated
wood. The EIS concludes that, with these BMPs, the project is likely to improve
water quality and unlikely to have an adverse effect on aquatic life.
PSE's JARPA application
In addition to the EIS, the project requires shoreline and development
permits from the City of Tacoma. CP at 29-30, 34. The project also requires
permits from the Washington State Department of Ecology, the Washington State
Department of Fish and Wildlife, and the Army Corps of Engineers. CP at 33-34.
While the EIS process was taking place, PSE submitted a master application
(Joint Aquatic Resources Permit Application or JARPA)for these permits. Id.
Each entity began its own review.
The Army Corps of Engineers reviewed the project for compliance with
federal environmental acts. The Army Corps received input from a number of
other agencies, including the EPA. The EPA did not express concerns about in-
2 The benthic zone is the lowest level of a body of water. WEBSTER'S THIRD NEW
INTERNATIONAL DICTIONARY 204(2002).
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No. 77748-3-1/5
water work in the Blair but commented that in-water work in the Hylebos should
not occur without sediment testing. The EPA stated that the results of this testing
may result in changes to the design of the project or the sequence of work. The
Army Corps adopted the EPA's conditions.
The City reviewed PSE's application to determine if the project complied
with Tacoma's Shorelines Master Program (TSMP). Under the TSMP,
development on the shoreline must result in no net loss of ecological function.
The City concluded that, if PSE adheres to BMPs and conditions imposed by
other agencies, the project will meet this standard. The City issued a shoreline
substantial development permit(SSDP).
The Tribe asked the City to reconsider, asserting that the City failed to
adequately consider impacts to ecological function. In particular, the Tribe argued
that the City had not considered the risk of spreading contaminated sediment in
the Hylebos.
The City granted the Tribe's motion in part. The City stated that the SSDP
erroneously omitted the standard condition that the applicant must obtain all
other agency permits and comply with any conditions imposed before the City will
issue development(construction or demolition) permits. The City noted that both
the Department of Ecology and the EPA had identified a risk from disturbing
contaminated sediment in the Hylebos and sediment testing would be required
prior to federal and state permitting. The City modified the SSDP to require PSE
to (1) secure all required agency permits before seeking development permits
from the City;(2) demonstrate that sediment testing has been completed and
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No. 77748-3-1/6
water quality regulations are met before beginning work in the Hylebos; and (3)
obtain City approval of any modifications to the mitigation plan. Id. at 675.
The Tribe's appeal to the Shorelines Hearings Board
The Tribe timely appealed to the Shorelines Hearings Board, naming the
City, PSE, the Port of Tacoma, and the Department of Ecology as respondents.
The Tribe primarily objected that the City failed to adequately assess the impact
of work on the Hylebos and improperly delegated its responsibility to other
agencies. The Tribe also argued that PSE's mitigation plan was inadequate.
A few days after the Tribe filed its appeal, PSE filed a stipulation stating
that it would eliminate the barge-loading dock on the Hylebos. PSE stated that it
would carry out mitigation measures in the Hylebos by removing overwater
decking and improving storm water drainage but perform no construction in that
waterway.
The Tribe objected to the stipulation as a substantial change to the project
that required a new permit application. The Tribe asserted that the purpose of the
stipulation was to avoid scrutiny at the Hylebos site and PSE would likely revoke
the stipulation after it served that purpose. The Tribe also argued that PSE
intended to relocate the barge-loading dock to the Blair, increasing the scope of
work on that waterway and requiring formal review. The Tribe asked the Board to
reverse the issuance of the SSDP and remand to the City.
PSE asserted that it was bound by the stipulation, which voluntarily
reduced the scope of the LNG project. PSE stated that it was eliminating the
barge-loading dock, not transferring it, and the elimination of this component did
not require a new permit application.
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No. 77748-3-1/7
The Shorelines Hearings Board denied the Tribe's motion to remand but
identified the Tribe's objections to the stipulation as issues on appeal. In a
prehearing order, the Board also set various deadlines. The Board set April 25 as
the deadline to exchange a list of exhibits.
On April 25, PSE submitted as an exhibit its revised JARPA application.
Consistent with the stipulation, the revised project eliminates the barge-loading
dock but retains mitigation on the Hylebos by removing overwater decking on
that waterway. Construction in the Blair Waterway remains the same as originally
proposed. The revised project includes additional mitigation at the Sperry Dock.
The parties presented evidence at a five-day hearing. The Tribe's experts
testified that removing the existing piles will disturb potentially contaminated
sediment, posing a danger to fish. The Tribe's environmental geochemist, Janet
Knox, testified that contaminates had been found in many areas in
Commencement Bay, including near the Blair project site. Knox opined that the
City could not accurately assess environmental impact without requiring analysis
of the sediment at the project site. In Knox's opinion, the identified BMPs are
inadequate because they do not require monitoring. Knox opined that BMPs
must be implemented in combination with other water quality criteria. Knox
acknowledged that she had not visited the Blair site and her opinion as to
contamination was drawn from data that was 20 to 30 years old. She stated that
sediment testing is generally done under the supervision of the Army Corps or
the EPA. Knox was not aware of any local jurisdiction requiring sediment testing.
Shane Cherry, a Tribe consultant, testified that he was concerned about
the lack of sediment analysis. Cherry also stated that the Army Corps or the EPA
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No. 77748-3-1/8
must approve sediment testing. Tad Deshler, a Tribe consultant, testified that
PSE's proposed mitigation plan was inadequate. Deshler evaluated the
mitigation measures using a habitat equivalency analysis (HEA).
Russell Ladley, a Tribe biologist, stated that removing creosote-treated
piles is beneficial. He acknowledged the EPA's position that, if BMPs are
employed, removing piles is unlikely to disturb subsurface contaminates. Ladley
stated that he disagreed with the EPA in this matter. Ladley testified that he had
never observed or supervised pile removal and his opinion was based on what
he had read. Char Naylor, the Tribe's water quality manager, also stated that
removing creosote-treated piles benefits water quality. He opined that BMPs are
effective if followed as written but expressed concern that PSE would not adhere
to the identified BMPs.
In response, PSE and the City presented their experts. PSE's expert
geologist, Rick Moore, testified that there is little risk of contaminated sediment at
the Blair project site. He stated that the data does not indicate a risk that would
trigger sediment testing. Moore's opinion was based on data from the last ten
years. Moore also testified to the effectiveness of BMPs at reducing sediment
disturbance and preventing the spread of contaminates. Moore stated that the
identified BMPs are approved for removing piles in locations with contaminated
sediments. He stated that it was not necessary to analyze the sediment before
employing these BMPs. Moore described his personal experience removing piles
and stated that he had never seen the BMPs prove ineffective.
Moore also stated that the project is subject to intensive water-quality
monitoring as a condition of its Army Corps permit, which includes a Water
8
No. 77748-3-1/9
Quality Protection and Monitoring Plan. In Moore's opinion, the project will
improve water quality by removing the creosote. The project will also improve
ecological function by dissipating wave energy, discouraging erosion, and
stabilizing the bank.
Matthew Boyle, a biologist, testified to the effectiveness of confining work
to a fish window. Boyle stated that, in Commencement Bay, the fish window is
more than 90 percent effective in protecting anadromous fish.3 Boyle also
testified to the proposed mitigation plan. He stated that the HEA model used by
the Tribe's expert is designed for a different purpose. Boyle disputed its
applicability to shoreline mitigation. In Boyle's opinion, the revised mitigation plan
accounts for different habitat values, offsets unavoidable impacts, and results in
a net benefit for ecological function.
Larry Tornberg, a PSE permitting manager, stated that PSE has restricted
its work to a fish window shorter than that approved by the Army Corps. Tornberg
also stated that PSE is required to comply with the most current BMPs identified
by the EPA and any other conditions imposed in agency permits. Tornberg
testified that the earliest draft of PSE's Water Quality Protection and Monitoring
Plan did not include instrumented monitoring during pile removal. He stated that
the Department of Ecology raised concerns and, in response, PSE revised the
plan to include monitoring during pile removal.
Shannon Brenner, the City's environmental specialist, stated that the PSE
project avoids environmental impact in all but the overwater component. Brenner
3 Anadromous fish are those that ascend rivers from the sea to spawn. WEBSTER'S THIRD
NEW INTERNATIONAL DICTIONARY 58(2002).
9
No. 77748-3-1/10
determined that the proposed mitigation more than offsets the impact of the
overwater component so that, in its entirety, the project meets the no net loss
standard. Brenner testified that the EPA is the lead agency for sediment testing
in Commencement Bay and the City relies on the EPA's recommendations as to
sediment quality. She stated that the City has never required sediment analysis
on its own authority and could not do so without approval from the Army Corps
and the Department of Ecology. Brenner also stated that the HEA model is not
applicable to shoreline permitting and has never been accepted by the City.
James Thornton, an expert in sediment contamination, testified that local
governments sometimes work with the EPA, Ecology, and the Army Corps to
conduct sediment testing in the context of determining their own liability. He
stated that a local government would have to go through Ecology or the Army
Corps to use sediment samples in a regulatory setting. Thornton stated that the
current consensus is that creosote piles should be removed. He testified that,
when BMPs are followed, removing piles does not bring up contaminated
sediment. Thornton testified that the EPA's concern with sediment contamination
in the Hylebos involved the removal of an existing bulkhead. According to
Thornton, the EPA recommended testing to determine whether sediment behind
the bulkhead was contaminated.
The Board's order includes 52 findings of fact and 26 conclusions of law.
As an initial matter, the Board determined that the Tribe had standing.4 As to the
4 The Port challenges the Board's conclusion that the Tribe has standing to appeal the
SSDP. But because the Port did not identify the issue in a notice of appeal, we do not consider it.
RAP 2.4(a).
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No. 77748-3-1/1 1
merits, the Board found that aquatic habitat in the Blair is currently degraded,
removing the creosote-treated piles will benefit water quality, BMPs will minimize
the impact of removing the piles, and any sediment disturbance will be short
term. The Board found that the evidence did not establish the presence of
sediment contamination at the project site or demonstrate that the identified
BMPs are insufficient to protect water quality. The Board found that PSE's
mitigation plan follows the sequence of avoidance, minimization, and
compensation; the City followed its standard approach in evaluating the
proposed mitigation; and the mitigation plan is adequate to achieve no net loss of
ecological function.
The Board concluded as a matter of law that the City did not err in
determining that the project met the no net loss standard. The Board also
concluded that the City did not err in relying on agency expertise to address
potential sediment contamination. The Board affirmed the SSDP.
DISCUSSION
The Tribe challenges the Board's decision, asserting that it is unsupported
by facts, was procedurally flawed, violates Tacoma's master program, and is
inconsistent with Washington's Shoreline Management Act(SMA), chapter 9.58
RCW.
The SMA envisions "a planned, rational, and concerted effort, jointly
performed by federal, state, and local governments, to prevent the inherent harm
in an uncoordinated and piecemeal development of the state's shorelines." RCW
90.58.020. Under the SMA, local governments must create a "master program,"
approved by the Department of Ecology, for regulating shoreline development in
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No. 77748-3-1/12
a manner consistent with the SMA. RCW 90.58.080(1), .080(3). The local
government has exclusive authority to administer and enforce a permit system
under its master program. RCW 90.58.140(3).
Tacoma's shoreline master program (TSMP)is codified in part as chapter
13.10 of the Tacoma Municipal Code. To issue an SSDP,the City must
determine that proposed shoreline development complies with the TSMP. TMC
13.10.2.3.1.2. A purpose of the TSMP is to "[e]nsure, at minimum, no net loss of
shoreline ecological functions and processes... ." TMC 13.10.1.2.5. Where
modification to a shoreline is permitted, "all adverse impacts resulting from a
development proposal or alteration shall be mitigated so as to result in no net
loss of shoreline and/or critical area functions or processes." TMC
13.10.6.4.2.C.1. Mitigation requires avoiding environmental impact where
practicable, minimizing unavoidable impacts, and compensating for adverse
impacts. TMC 13.10.6.4.2.C.2. Adverse impacts in one location may be offset by
compensatory mitigation in other areas. TMC 13.10.6.4.C.2.e.
Under the TSMP,the Blair and Hylebos Waterways are part of a
designated "Port Industrial Area" zoned for continued industrial development.
TMC 13.10.9.12. The Port Industrial Area is a "high-intensity environment." TMC
13.10.5.5.5, TMC 13.10.9.12. High-intensity environments provide for
commercial and industrial development "while protecting existing ecological
functions and restoring ecological functions in areas that have been previously
degraded." TMC 13.10.5.5.5.A. In high-intensity areas, "[Nolicies and regulations
shall assure no net loss of shoreline ecological functions as a result of new
development." TMC 13.10.5.5.5.D.3.
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No. 77748-3-1/13
A party aggrieved by the City's decision to grant or deny an SSDP may
appeal to the Shorelines Hearings Board. RCW 90.58.180(1). The Shorelines
Hearing Board is a quasi-judicial administrative body with specialized skill in
hearing shoreline cases. Buechel v. Dep't of Ecology, 125 Wash. 2d 196, 204, 884
P.2d 910(1994). The Board reviews the issuance of an SSDP de novo. Id. at
202.
Our review of the Board's decision is governed by the Administrative
Procedure Act(APA), chapter 34.05 RCW. RCW 90.58.180(3). Under the APA,
the appellant has the burden of demonstrating that the Board's action was
invalid. RCW 34.05.570(1)(a). We accord deference to the Board's "specialized
knowledge and expertise." Buechel, 125 Wash. 2d at 203.
Sediment testing and the no net loss standard
The Tribe contends the Board erred in concluding that PSE's project
meets the no net loss standard. The Tribe challenges the Board's findings that
removing the creosote-treated piles will benefit water quality, the evidence did
not establish the presence of sediment contamination at the project site, BMPs
will minimize sediment disturbance, the proposed mitigation is adequate, and the
project will result in no net loss of ecological function. The Tribe challenges the
Board's related conclusions that the project meets the TSMP's no net loss
standard and the City did not err in deferring the issue of sediment testing to
other agencies.
The parties agree that whether a project causes a loss of ecological
function is a question of fact. We will affirm an agency's findings of fact if they are
supported by substantial evidence. RCW 34.05.570(3)(e). Evidence is substantial
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No. 77748-3-1/14
where it is sufficient to persuade a fair-minded person. de Tienne v. Shorelines
Hearings Board, 197 Wash. App. 248, 276, 391 P.3d 458 (2016). We defer to the
Board's decisions concerning the weight of conflicting evidence. Id. Where an
agency decision is made in willful "'disregard of facts and circumstances," it is
arbitrary and capricious and must be reversed. Id. at 277 (quoting Buechel, 125
Wash. 2d at 202). A decision is not arbitrary and capricious where it reflects due
consideration of conflicting opinions. Id.
The Tribe asserts that the Board lacked material information concerning
sediment characterization. Without this information, the Tribe contends, the
Board's decision that the project meets the no net loss standard is arbitrary and
capricious. The Tribe argues that this case in analogous to de Tienne, In that
case, the Shorelines Hearings Board revoked a permit because there was no
scientific basis supporting the local government's decision. de Tienne, 197 Wn.
App. at 288.
PSE contends the Board's decision is based on substantial scientific
evidence and this case is thus unlike de Tienne. PSE asserts that, while the
Tribe is focused exclusively on sediment testing, neither the Tacoma code nor
the SMA require sediment testing as part of the no net loss determination. PSE
argues that the Board did not act in the absence of information but based its
findings on extensive evidence that the project, viewed in its entirety, will not
cause a net loss of ecological function over time.
We agree with PSE. The Board heard evidence concerning the risk of
disturbing contaminated sediment, indications of contamination at the project
site, the effectiveness of BMPs, and the adequacy of mitigation. The Board
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No. 77748-3-1/15
summarized and weighed the conflicting evidence in its decision. The Board
found persuasive the respondents' evidence that there is a low risk of
contamination at the project site, the identified BMPs adequately protect against
that risk, any adverse impact will be short term, the proposed mitigation offsets
adverse impacts, and, in the long term, the project will benefit the waterway's
ecological function.
The Board's findings are supported by substantial evidence. The findings,
in turn, support the conclusion that the project meets the TSMP's no net loss
standard. We reject the Tribe's argument that the Board's decision has no factual
or scientific basis.
The Tribe next argues that the Board erred by relieving the City of the
responsibility to conduct sediment testing. In its order, the Board summarized the
evidence that the City had never required sediment testing and lacked the
authority to do so. The Board concluded that the City did not err in relying on the
expertise of other agencies to address potential sediment contamination. The
Board accorded weight to the City's longstanding interpretation of the TSMP and
concluded that the City did not violate the SMA or the TSMP by deferring the
issue of sediment testing to other agencies.
The Tribe argues that this was error. The Tribe asserts that the City is the
only entity bound by the TSMP,the only entity responsible for making a no net
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No. 77748-3-1/16
loss determination, and therefore the entity required to assess sediment quality.5
We reject this argument.
The Board heard extensive evidence that the City does not have the
authority to require sediment testing. The City's environmental specialist testified
that the City has never required sediment analysis on its own authority and could
not do so without approval from the EPA, the Army Corps, or the Department of
Ecology. She stated that the EPA is the lead agency for sediment testing and the
City relies on its recommendations. The Tribe's experts testified that sediment
testing requires approval from the Army Corps or the Department of Ecology.
They stated that they were not aware of any local government that required
sediment testing as part of a shoreline development permit. The Board did not err
in concluding that the City cannot require sediment testing on its own authority
and that the City properly relies on other agencies as to sediment quality.6
Evidence outside the record
Next, the Tribe contends the Board erred by relying on evidence outside
the record. The Tribe asserts that the Board relied on PSE's Water Quality
Protection and Monitoring Plan, which was excluded from evidence. The
argument is without merit.
5 Notably, the Tribe does not challenge the Board's conclusions that multiple agencies
have concurrent jurisdiction over shoreline resources and that the City conditions development
permits on compliance with state and federal permits.
6 The Tribe asserts that the modified SSDP, which expressly conditions the project upon
PSE completing sediment analysis in the Hylebos, demonstrates that the City has authority to
require sediment testing. We disagree. In comments to the Department of Ecology and the Army
Corps, the EPA conditioned approval on sediment testing in the Hylebos. The City included the
condition in the modified SSDP to make clear that the City's permit was conditioned on PSE's
compliance with conditions imposed by other agencies.
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No. 77748-3-1/17
At the hearing, the Tribe's expert, Janet Knox, testified that the BMPs are
inadequate because they do not require water quality monitoring during pile
removal. In response, Rick Moore testified that the project is subject to intensive
monitoring as part of its Water Quality Protection and Monitoring Plan, which is
required by the Army Corps. Larry Tornberg also addressed Knox's concern with
monitoring. Tornberg stated that the first version of the Water Quality Protection
plan did not require instrumented monitoring during pile removal. He stated that,
in response to concerns raised by the Tribe and the Department of Ecology, PSE
revised the plan to include intensive monitoring. Tornberg testified that Ecology
raised its concerns the week before the hearing and PSE submitted its revisions
the week of the hearing. PSE offered the revised plan as an exhibit. The Board
declined to admit it because the Tribe had not yet seen it and PSE did not
include the plan in its list of exhibits.
The Board's decision summarizes the testimony of Knox, Moore, and
Tornberg concerning monitoring. Referencing Tornberg's testimony, the Board
stated that "the Water Quality and Protection Plan, recently submitted to Ecology
for its review and approval, provides for instrumented monitoring of pile removal."
Id. at 43. The Board also stated:
Mr. Moore also disagreed with Ms. Knox's criticisms of the
Water Quality Protection and Monitoring Plan. Mr. Moore testified
that he participated in the preparation of the Plan and that it
requires intensive instrumented monitoring. Moore Testimony. Mr.
Tornberg testified that PSE revised the Water Quality Protection
and Monitoring Plan to address the Tribe's concerns and recently
submitted the revised Plan to Ecology for its review and approval.
The Plan will become part of the 404 Permit decision issued by the
Corps for in-water construction.
Id. at 50.
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No. 77748-3-1/18
The Board relied on testimony concerning water monitoring. The Tribe did
not object to the testimony. There was no error.
Changes to the project
The Tribe next raises a number of arguments related to PSE's stipulation
and revised JARPA. The Tribe contends the changes to the PSE project required
a new application, the revised project was insufficient for review, and the Board
should have remanded to the City.
Changes to a project after the local government has issued a shoreline
development permit are governed by WAC 173-27-100. The applicant must
provide the local government "detailed plans and text describing the proposed
changes." WAC 173-27-100. The local government determines if formal review is
necessary based on the nature of the proposed changes. Id. Substantive
changes, defined as changes that "materially alter the project in a manner that
relates to its conformance to the terms and conditions of the permit," require
formal review. Id. Changes that are "within the scope and intent of the original
permit" do not require formal review. WAC 173-27-100(1). Generally, proposed
changes are within the scope and intent of the original permit if they do not
increase the construction area, exceed permit requirements, or adversely impact
the environment. WAC 173-27-100(2).
The Tribe argued below that PSE's stipulation eliminating work in the
Hylebos and the corresponding revision to PSE's permit application were
substantial changes that required a new permit application. At the hearing, the
City's experts addressed this argument. Shannon Brenner, the City's
environmental specialist, and Shirley Schultz, the City's principal planner,
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No. 77748-3-1/19
testified that projects frequently change in response to concerns by various
agencies. Schultz testified that she reviewed the changes to the PSE project and
determined that they did not require formal review. She stated that, by eliminating
work in the Hylebos and increasing mitigation, PSE reduced environmental
impact and increased environmental benefit. The Board agreed with the City that
the changes did not require formal review under WAG 173-27-100.
The Tribe challenges this conclusion. The Tribe asserts that WAG 173-27-
100 does not apply because the revised project is not the same as the project
approved in the SSDP. The Tribe provides no authority supporting this position.7
Id. at 41 n. 19. The Board considered whether the changes to PSE's project
required formal review under WAG 173-27-100 and concluded they did not. The
Tribe provides no evidence to the contrary.8 There was no error.
The Tribe next asserts that PSE's stipulation and revised application
deprived the Tribe of a fair hearing. To satisfy due process, a party must receive
adequate notice and an opportunity to be heard. City of Redmond v. Arroyo-
Murillo, 149 Wash. 2d 607, 617, 70 P.3d 847(2003).
The Tribe asserts that it did not receive adequate notice of the changes to
the PSE project and was thus denied the opportunity to prepare intelligently for
the hearing. The Tribe contends the revised JARPA was filed after the discovery
7 The authority the Tribe does cite, Hayes v. Yount, 87 Wash. 2d 280, 291, 552 P.2d 1038
(1976), is inapposite. In Hayes, the Board determined that a project's intended use was
prohibited. Hayes, 87 Wash. 2d at 291. The Board rejected the applicant's "offer before the Board to
accept additional conditions" and vacated the permit. Id. Haves does not discuss WAC 173-27-
100 or provide any grounds for ignoring the criteria established therein.
8 The Tribe asserts that the City never considered the changes to PSE's project. The
Tribe misconstrues the record. Brenner stated that the City had conducted "no formal review...."
3VRP (5/11/16) at 132.
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No. 77748-3-1/20
cutoff and the additional mitigation in the revised JARPA was merely
speculative.9
PSE asserts that the stipulation eliminating working on the Hylebos was
filed some six months before the hearing, the changes reduced the scope of
work and thus were not substantive within the meaning of WAC 173-27-100, and
the Tribe fully explored changes to the project during discovery. PSE contends
the Tribe fails to show inadequate notice or prejudice from the changes.
We agree with PSE. PSE announced that it would eliminate work on the
Hylebos in the stipulation filed six months before the hearing. As discussed
above, the change reduced the scope of the project and increased environmental
benefit. The Tribe asserts generally that the change was unfair but fails to point
to any aspect of the revised plan that constituted an unfair surprise.
Next, the Tribe asserts that, by reviewing the revised project rather than
the project originally approved by the City, the Board usurped the City's role. The
Tribe relies on Overlake Fund v. Shoreline Hearings Board, 90 Wash. App. 746,
954 P.2d 304 (1998). In that case, the Board imposed a number of additional
conditions to a permit granted by the City. Overlake Fund, 90 Wash. App. at 752.
This court reversed, holding that substantial evidence did not support the Board's
decision to redesign the project approved by the City. Id. at 751.
The case is inapposite. The Board did not, in this case, redesign the
project approved by the City. PSE proposed changes to the project, the City
9 The Tribe also objects to PSE's Water Quality Monitoring and Protection Plan, which
was revised during the hearing. This plan, however, is a condition of the Army Corps' permit,
which was not at issue in this appeal.
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determined that those changes did not substantially change the project, and the
Board agreed. There was no error.
Mitigation
The Tribe next objects to the Board's consideration of mitigation at the
Sperry Dock as part of the no net loss analysis. At the hearing, the Tribe's expert
testified that the mitigation plan did not adequately compensate for environmental
impacts. His opinion was based on an HEA analysis. The City's expert testified
that the HEA model is not applicable to shoreline permitting and has never been
accepted by the City. She stated that PSE's original mitigation plan was
adequate to meet the no net loss standard. She opined that the revised
mitigation plan more than offsets the impact of the project.
In its findings, the Board summarized these conflicting opinions and stated
that PSE's revised mitigation plan was adequate even under the HEA analysis.
"The compensatory mitigation provided by the Revised Mitigation Plan, with the
inclusion of the mitigation activities at the Sperry Ocean Terminal, exceeds the
net results of Mr. Deshler's HEA analysis." CP at 58. The Board found "that the
record contains substantial evidence that the Revised Mitigation Plan adequately
compensates for the impacts of the Project and achieves no net loss of
ecological functions." Id. at 59.
The Tribe contends the Board erred in considering the Sperry Dock
mitigation. The Tribe asserts the Sperry Dock mitigation is speculative because,
as of the hearing, PSE did not yet have a contract with the dock operators. Id.
The argument is without merit. Mitigation at Sperry Dock is included in
PSE's revised plan. Compliance with the mitigation plan is a condition of the
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No. 77748-3-1/22
SSDP. The Board did not err in considering all of the measures in PSE's revised
mitigation plan.
Burden of Proof
Next, the Tribe contends the Board improperly shifted the burden of proof.
In an application for a shoreline development permit, the applicant has the initial
burden to prove that the proposal is consistent with the local government's
criteria. RCW 90.58.140(7). The party seeking review of a local government's
decision bears the burden before the Board to show that the proposal is
inconsistent with the local shoreline master program or the SMA. Id. The Board
reviews the matter de novo. Buechel, 125 Wash. 2d at 202.
In this case, the Tribe objects to the Board's finding that "the evidence
presented did not establish the presence of sediment contamination... or
demonstrate that the measures PSE is required to implement during in-water
construction will not protect water quality and anadromous fish." CP at 51. The
Tribe asserts that its burden was to show that the City did not have adequate
information to support its finding of no net loss, not to affirmatively prove the
existence of contamination. PSE contends the Board properly reviewed the
matter de novo, determined that the permit was consistent with the TSMP and
the SMA, and thus found that the Tribe had not met its burden.
We agree with PSE. The Tribe's experts opined that sediment testing was
necessary because contamination had been found in Commencement Bay.
PSE's experts disputed the accuracy of this evidence. They also testified that,
even if contaminates are present, BMPs will minimize any risk. The Board found
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that the Tribe failed to show that sediment testing was necessary to make a no
net loss determination. There was no error.
In sum, we reject all of the Tribe's challenges to the Board's decision. The
Board's findings are supported by substantial evidence and the findings, in turn,
support the Board's conclusions of law. The Board did not err by relying on
excluded evidence, usurping the City's role, or applying an incorrect burden of
proof.
Attorney fees
The Port and PSE request attorney fees on appeal pursuant to RCW
4.84.370(1). Under that statute, however, the possibility of attorney fees does not
arise until two courts have affirmed the local government's decision. Habitat
Watch v. Skagit County, 155 Wash. 2d 397, 413, 120 P.3d 56(2005). The statute
thus provides the party challenging a land use decision "one opportunity to do so
free of the risk of having to pay other parties' attorney fees and costs if they are
unsuccessful before the superior court." Id. In this case, we granted PSE's
petition for direct review. PSE and the Port are not entitled to attorney fees
because two courts have not affirmed the land use decision.
Affirmed.
WE CONCUR:
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