Ferry County v. Growth Management Hearings Board

FILED
SEPTEMBER 23,2014
In the Office ofthe Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
FERRY COUNTY, )
) No. 31331-0-III
Respondent, )
)
V. )
)
GROWTH MANAGEMENT HEARINGS ) UNPUBLISHED OPINION
BOARD; ENVIRONMENTAL AND )
LAND USE HEARINGS OFFICE; )
CONCERNED FRIENDS OF FERRY )
COUNTY; DAVID L. ROBINSON; )
FUTUREWISE; SCOTT L. SIMMONS; )
RIPARIAN OWNERS OF FERRY )
COUNTY and FERRY COUNTY )
CATTLEMAN'S ASSOCIATION, INC., )
)
Appellants. )
FEARING, J. - We review for the second time the issue of whether, under the
Growth Management Act (GMA), Ferry County included best available science (BAS)
when failing to identify any important local habitats and species as part of its critical
areas ordinance. We also ask whether any departure from best available science by Ferry
County was reasonably justified.
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In December 2011, the Growth Management Hearings Board (GMHB) found
Ferry County noncompliant again with the GMA, while ruling that the county enacted a
critical areas ordinance that, without reasonable justification, departed from best available
science. Ferry County appealed the GMHB's decision to the superior court, arguing it
included best available science in its decision not to designate any species or habitats of
local importance, and, if and when it departed from BAS, it did so through a reasoned
legislative process. The superior court agreed and reversed the GMHB. Futurewise and
Concerned Friends of Ferry County, parties to the GMHB hearing, appeal the superior
court decision to this appeals court.
This reviewing court sits in the same position as the superior court and, under the
GMA, must bestow limited deference to the GMHB's findings. We hold that the GMHB
did not abuse its discretion when ruling Ferry County noncompliant with the GMA.
Therefore, we reverse the superior court and affirm the decision of the GMHB.
FACTS
Ferry County lies in northeastern Washington, bordered on the west by Okanogan
County, the east by Stevens County, the south by Lincoln County, and the north by
British Columbia. The county was created in 1899 from the western end of Stevens
County and is named for Washington's last territorial and first state governor, Elisha P.
Ferry.
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As of the 2010 census, Ferry County's population was 7,551. 16.7 percent of the
county citizens are Native American. The city of Republic, the county's only
incorporated community, serves as county seat. The city's population is 1,073. The
county comprises 2,257 square miles. Ferry County is the fourth smallest in population
of Washington's 39 counties but ranks eighth amongst counties in territory. The county's
population density is 3.43 persons per square mile. Only Garfield County, with 3.19
persons per square mile, has a lower population density. By contrast, King County
contains 953.3 persons per square mile.
The rugged Kettle River Range covers most of Ferry County and runs from the
Canadian Border to the Columbia River, the county's southern edge. Lake Roosevelt, the
reservoir created in 1941 by the impoundment of the Columbia River by the Grand
Coulee Dam, sits mostly in Ferry County. The Okanogan Highland extends north to
south along the western edge of the county. Ferry County boasts the tallest year-round
travelable pass in the state-Sherman Pass at 5,575 feet. The south half of Ferry County
lies within the boundaries of the Confederated Tribes of the Colville Nation (Colville
Tribes) and the north half is Jargely occupied by the Colville National Forest, leaving
only 18 percent of the county's land as taxable.
Ferry County's principal industries are logging and mining, although tourism and
recreation are increasing in economic importance. Republic sustains the last operational
goldmine in the state. The median income for a household in Ferry County is $36,921.
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Only Okanogan County, with a median income of$35,161, has a lower income rate.
Twenty and one-half percent of the Ferry County population lives below the poverty line.
We outline some of the provisions of the GMA so that the underlying facts may be
better understood. The GMA requires counties to compose plans to responsibly manage
their growth and to enact regulations to effectuate those plans. As part of those plans and
regulations, local governments by ordinance must designate and protect the habitat of
endangered, threatened, and sensitive species (ETS) of fish and wildlife and species of
local importance. RCW 36.70A.020(9), (10); RCW 36.70A.060(2); RCW
36.70A.l70(1 )(d); WAC 365-190-130(2). When designating and protecting these
environmentally critical areas, a local government entity must "include the best available
science." RCW 36.70A.172. The meaning of this statutory clause is the subject of this
appeaL
The Washington Department ofFish and Wildlife (DFW) aids local government
entities in identifYing critical habitats for priority species. The DFW develops lists,
categorized by region, of priority fish and wildlife species requiring protective measures
and management guidelines. Priority species include species designated as endangered,
threatened, or sensitive (state listed species); species that will be reviewed by DFW for
possible listing as endangered, threatened, or sensitive (state candidate species); species
or groups of animals susceptible to significant population declines within a specific area
or statewide by virtue of their inclination to aggregate (vulnerable aggregations); and
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species of recreational, commercial, and/or tribal importance that are vulnerable. The
DFW regional lists are called PHS lists, short for priority habitat and species lists, and are
the primary means used by DFW to provide fish, wildlife, and habitat information to
local governments, state and federal agencies, landowners, consultants, and tribes for
land use planning purposes. DFW produces and distributes over 4,000 copies of the PHS
lists annually. DFW's listings include maps of known locations of priority habitats and
species. The DFW complies its PHS data through field observations, scientific survey
mapping projects, and geographic information system technology. The DFW data is
"extensive[ly] peer-review[ed]." Administrative Record (AR) at 658,690. A county
should consult current information on priority habitats and species identified by DFW.
WAC 365-190-130(4)(a).
In 1993, pursuant to the GMA, Ferry County adopted its first interim critical areas
ordinance, which read, in relevant part, '''The Washington Department of Wildlife
Priority Habitats and Species quad overlay maps will be used to identify [areas with
which endangered, threatened, and sensitive species have a primary association].'" Ferry
County v. Concerned Friends o/Ferry County (CFFC), 155 Wn.2d 824, 828, 123 P.3d
102 (2005). In 1997, Ferry County adopted its first amendments to the ordinance.
The legislature created a GMHB to review a county's compliance with the GMA.
Under the GMA, a party appearing at a county's GMA proceedings may file a petition
with the GMHB to obtain a ruling that the county failed to comply with the law. On
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August 29, 1997, Concerned Friends of Ferry County (CFFC), in GMHB Case No. 97-1­
0019, petitioned the GMHB for review of Ferry County's critical areas ordinance and
amendments. In an order dated July 31, 1998, the GMHB found that Ferry County failed
to include best available science when evaluating critical areas and thus the county was
noncompliant with RCW 36.70A.172. Under the GMA, the Washington governor holds
power to fine a county in violation of the GMA, but typically the only remedy for
noncompliance is a GMHB order directing the county to amend its ordinances and plans
to become compliant by a deadline date. The GMHB imposed the latter remedy with its
July 31, 1998, order.
On December 7, 1998, Ferry County adopted more amendments to its
comprehensive plan and critical areas ordinance. The 1998 version listed four ETS
species in its designation of critical areas:
Bald Eagle
Ferruginous Hawk
Lynx
Peregrine Falcon
In response, Kevin Robinette, a DFW habitat biologist, sent a December 16, 1998
letter to Ferry County and others. Robinette wrote that Ferry County's amendments
remained weak in several areas. He opined that the county's list of four ETS species was
incomplete and omitted at least the bull trout. Based on the PHS list, DFW, through
Robinette, recommended that Ferry County list twelve species, in its critical areas
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ordinance, as ETS:
American White Pelican
Bald Eagle
Bull Trout
Ferruginous Hawk
Gray Wolf
Grizzly Bear
Lynx
Peregrine Falcon
Pygmy Rabbit
Sandhill Crane
. Upland Sandpiper
Woodland Caribou
The GMHB conducted a hearing to determine if Ferry County had complied with
the GMA and its July 31, 1998, order. During the hearing, Ferry County agreed it
rejected DFW's recommendations. The county contended:
"[O]ur scientist states that [the peregrine falcon] is not in the county
and doesn't have a primary association meaning it doesn't have nesting
habitat in the county. So then we say we have to balance that with what the
petitioner has given us. They haven't given us anything to let us think that
the Peregrine Falcon is in the county. All that Mr. Robinette states is that
the Peregrine Falcon is among a whole slew of species that are in Region 1
and Ferry County is in Region 1. End of story. That is not what the law
states. We have our local discretion."
155 Wn.2d at 828-29 n.3.
On September 30, 1999, after the compliance hearing, the GMHB issued another
noncompliance order. The GMHB found that the record again provided no evidence that
Ferry County considered BAS in designating fish and wildlife habitat conservation areas
and identification of priority habitats and species. According to the GMHB, the county
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provided no rationale for excluding species designated by DFW except vague references
to constitutional authority and a local legislative authority's discretion.
In response to the GMHB's September 1999 order, Ferry County obtained two
letters from its scientist, Dr. Donald McKnight. Dr. McKnight is a retired wildlife
biologist with 30 years of experience with the Alaska Department of Fish and Game. His
last position with Alaska was Chief Wildlife Planner. He holds a Ph.D in Wildlife
Ecology from Utah State University.
Ferry County asked Dr. Donald McKnight to opine regarding the current status
and distribution in Ferry County of bird and mammal species listed by the DFW, with
special attention to the potential adverse effects of development in the county upon these
animals and their habitats. In two 1999 letters, Dr. McKnight concluded that the
woodland caribou, grizzly bear, timber wolves, pygmy rabbit, ferruginous hawk,
peregrine falcon, sandhill crane, upland sandpiper, and the American white pelican did
not require consideration as ETS species in Ferry County. In making his conclusions,
McKnight consulted a book on bird breeding locations published in 1997 and "'various
other field guides and wildlife texts.'" 155 Wn.2d at 829. McKnight also spoke to Dana
Base, a DFW wildlife biologist for Ferry County, regarding distribution of pygmy
rabbits. McKnight did not cite or discuss Base's research or scientific methods.
McKnight did not travel to Ferry County.
Ferry County again amended its ordinance on February 28, 2000. The February
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28,2000 version of the ordinance listed only two ETS species, the bald eagle and the
lynx. Instead of adding species, the new ordinance removed two species, the ferruginous
hawk and peregrine falcon, which the county had included in its December 1998 plan.
Ferry County decided to list only the bald eagle and the lynx based on the
recommendations contained in the two letters from Dr. Donald McKnight. The county's
new list was contrary to evidence that both the bull trout and peregrine falcon were
present in Ferry County. The United States Fish and Wildlife Service manages a bull
trout recovery area in Ferry County and the Colville Tribes manages peregrine falcons as
part of its game bird populations.
At a March 27,2000, compliance hearing before the GMHB, counsel for Ferry
County remarked, '''Now, there is one species that is endangered, threatened or sensitive
that was not adopted by the county at this time. I can't concede that it's in the county but
we are looking at it and it's the bull trout. '" 155 Wn.2d at 829 nA.
In another order of noncompliance issued on May 23, 2000, the GMHB observed
that Ferry County could choose to reject the DFW recommendation, as long as that
decision is based on a sound, reasoned process which includes BAS. However, the
GMHB concluded that Ferry County's species listing was not based on BAS:
"The County has consulted with a credentialed biologist, but the
process he undertook to develop his recommendations is inadequate. There
is no evidence in the record that that [sic] the consultant coordinated his
recommendation with any other scientists with expertise in Ferry County,
such as the Colville [T]ribe, U.S. Forest Service, or the DFW. There is no
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1 evidence that anyon-site field observations were conducted. With specific
I reference to the Peregrine Falcon, his recommendation seems to conflict
with activities ofthe Colville Tribe. Regarding Bull Trout, a sensitive
species documented to exist in Ferry County, he makes no mention at all.
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The [GMHB] determines the County has not provided a scientific
foundation, evidence of analysis, or a reasoned process to justify their
I listing, while rejecting the recommendations of endangered, threatened and
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sensitive species and wildlife habitat conservation areas provided by DFW.
Such action was a mistake and is clearly erroneous.
l .... Ferry County is not in compliance with RCW 36.70A.l72
regarding protection of wildlife habitat."
155 Wn.2d at 830 (emphasis added). The GMHB directed the county to designate fish
and wildlife habitat and species utilizing BAS within 120 days.
Ferry County sought judicial review of the GMHB's May 2000 decision. The
county argued that the decision was not supported by sufficient evidence. The superior
court affirmed the GMHB's noncompliance order. In doing so, the trial judge reasoned:
"The best available science means more than simply submitting the
opinion of some person to a decision maker, in this instance the [GMHB] of
County Commissioners .... Under no circumstances can it be argued here
that the County has submitted any information that would rise to the level
of best available science.
And the process that was presented to the [GMHB] here is simply a
two-page summary letter, two letters by a person identified as a wildlife
biologist which justified the County's decision to move away from the
science they had previously adopted in their interim critical area ordinances
and in the first go rounds of the comprehensive plan, and the basis for that
change was in no way explained by the conclusory statements of the
biologist that was hired by the County.
I understand ... the problems of small counties and small towns in
meeting this requirement of process. There is no[t] $50,000 that can be
allocated to prepare a study. But that doesn't mean that the County is
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without any responsibility at all to show not only to the Growth
Management Hearings [GMHB] but to its citizens that it is complying with
the law in considering best available science."
155 Wn.2d at 831.
Ferry County appealed the superior court ruling to the Court of Appeals. The
Court of Appeals also affirmed the GMHB, holding that substantial evidence supported
the GMHB's finding that Ferry County erred in not basing its species listing on BAS.
Ferry County v. Concerned Friends ofFerry County, 121 Wn. App. 850, 857, 90 P.3d
698 (2004). The state Supreme Court granted review and also affirmed the GMHB.
CFFC, 155 Wn.2d at 836-37. During argument before the Supreme Court, Ferry
County's counsel conceded that the county was incorrect for failing to designate the bull
trout as an endangered, threatened or sensitive species. CFFC, 155 Wn.2d 824 at 829
n.4.
The CFFC court noted that neither the GMHB nor Washington courts had adopted
any definition for the "best available science" under RCW 36.70A.172, but instead had
employed various factors when reviewing whether a county complied with the GMA.
One reason for rejecting an unbending definition was to afford counties discretion when
reviewing and applying BAS. CFFC, 155 Wn.2d at 834. At the least, however, a local
government must "'analyze the scientific evidence and other factors in a reasoned
process.'" CFFC, 155 Wn.2d at 835 (citation omitted). A county should produce valid
scientific information and consider competing scientific information and other factors
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through analysis constituting a reasoned process. 155 Wn.2d at 835. Ferry County need
not develop the scientific information through its own means, but "[b]ecause it chose to
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disagree with or ignore scientific recommendations and resources provided by the state
agencies and the Colville Tribes, which it could do, the county necessarily had to
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unilaterally develop and obtain valid scientific information." 155 Wn.2d at 836. BAS
does not require the use of a particular methodology, but at a minimum BAS requires the
1
j use of a scientific methodology. 155 Wn.2d at 837. The steps taken by Ferry County in
I analyzing the information did not constitute a reasoned process. The record showed no
evaluation of the science produced by Dr. McKnight, nor any comparing of the science
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provided by Dr. McKnight to any other resources, such as science available from state or
federal agencies or the Colville Tribe. A "'[c]ounty cannot choose its own science over
all other science and cannot use outdated science to support its choice.'" 155 Wn.2d 837­
38.
i The Supreme Court, in CFFC, 155 Wn.2d 824, even refused to accept Dr.
McKnight's letter as constituting science because McKnight used no scientific methods
1
I in gaining the information and did not discuss the methods used by the sources he cited.
I McKnight engaged in no site observations. Accordingly, the Supreme Court ruled that
j substantial evidence supported the GMHB's decision that Ferry County failed to include
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1 BAS in its 2000 designation of critical areas. CFFC, 155 Wn.2d at 838-39.
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After the 2005 Supreme Court decision, the legislature provided rulemaking
authority to the Department of Commerce. Pursuant to the legislature's direction, the
Department of Commerce promulgated criteria for determining which information is
BAS. WAC 365-195-900-905.
Since the 2005 Supreme Court decision, Ferry County has amended its
comprehensive plan and critical area ordinance many times. On May 18, 2006,
Futurewise filed a petition for review in GMHB Case No. 06-1-0003. Futurewise, like
Concerned Friends of Ferry County before it, alleged Ferry County failed to comply with
the GMA relating to designating critical areas and protecting fish and wildlife habitat
conservation areas. On October 6, 2006, the GMHB, in Futurewise's challenge, issued
an order finding Ferry County in noncompliance. The GMHB has since found Ferry
County noncompliant in one or both of the proceedings on June 9, 2008, February 13,
2009, March 17,2009, February 23, 2010, and March 3, 2010. Each time, the GMHB
found the County failed to comply with the GMA because it refused to include BAS in
designating and protecting critical areas, in particular, fish and wildlife critical habitat
areas.
In 2010, DFW provided Ferry County an updated list of 31 priority species with
federal or state listing status known to inhabit the county. DFW encouraged the county to
review the list when amending its critical areas ordinance. The species are:
Bald Eagle
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Black-Backed Woodpecker
Bull Trout
California Floater
Columbia Spotted Frog
Common Loon
Fisher
Flammulated Owl
Golden Eagle
Gray Wolf
Grizzly Bear
Ferruginous Hawk
Juniper Hairstreak
Lewis Woodpecker
Loggerhead Shrike
Lynx
Merlin
Merriam's Shrew
Northern Goshawk
Pileated Woodpecker
Peregrine Falcon
Preble's Shrew
Shepard's Parnassian
Silver-Bordered Fritillary
Spotted Frog
Townsend's Big-Eared Bat
Vaux's Swift
Western Grebe
Western Toad
White-Headed Woodpecker
Wolverine
Yellow-Billed Cuckoo
AR at 1484-87. The 2010 DFW list removed from its 1998 DFW list, the American
white pelican, pygmy rabbit, upland sandpiper, and woodland caribou. Presumably, the
"hawk" included on the 20 I 0 list is the ferruginous hawk.
On July 5, 20 I 0, Karin Divens of DFW sent a letter to Irene Whipple, Planning
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Director of Ferry County. The letter discussed an amended critical areas ordinance and
read, in part:
"We are disappointed to see changes to the latest version ... ,
especially when the latest revisions remove much of the previous
protections to priority habitats and species. We document our concerns
with these changes and offer the following recommendations.
In the draft CAO, we do not find that endangered, threatened and
sensitive species are designated or protected. WAC 365-190-080(2)
defines fish and wildlife habitat critical areas to include "areas with which
endangered, threatened, and sensitive species have a primary association."
Although, the draft code supports habitat protection for these
species, there are not sufficient development regulations to protect these
species. Critical areas ordinances play an important role in ensuring the
long-term survival of fish and wildlife species in Ferry County .... If
FWHCAs are designated for upland habitat, projects occurring in these
areas can be conditioned to avoid nest disturbance, avoid activities in
certain times of year during breeding season, and employ other
management or incentive strategies to accommodate fish and wildlife in the
developing landscape.
WDFW appreciates the inclusion of Habitats and Species of Local
Importance under Section 9.00 Fish and Wildlife Habitat Conservation
Areas.... However, the ordinance fails to designate the majority of locally
vulnerable species and their associated habitats found in Ferry County. The
classification of "Habitats and species of local importance" appears to defer
entirely to a nomination process. Reliance on a future, potential
nomination of local habitats or species does not provide protection to those
habitats and species currently known to exist in Ferry County, based on
BAS.
j As stated in a previous comment letter ... , WDFW would like to
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reiterate that these sections fail to designate the majority of locally
vulnerable species and their associated habitats found in Ferry County ....
1 We strongly encourage the county to revisit its BAS on record and
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I designate habitats and species of local importance pro-actively.
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WDFW strongly recommends that consultation with agency
information be a requirementfor applicants seeking development permits
for sites with known PHS species. ... Furthermore, WDFW strongly
encourages that the CAO requires WDFWapprovalfor habitat
management plans created for sites with state-listed endangered,
threatened, or sensitive species."
AR at 1127-28.
Karin Divens's letter then listed habitats and species that should be identified and
protected as priority habitats and species in the Ferry County critical areas ordinance.
The species have already been listed herein. The letter proceeded further and read
towards its end:
WDFW strongly recommends the strike out language in Section
7.4.18 be retained as follows: "Fish and wildlife habitat conservation
areas shall be protected by buffers as set forth in the Critical Areas Ordinance."
AR at 1132.
On September 10,2010, and April 4, 2011, the GMHB found Ferry County to
continue to be noncompliant with its earlier orders and the GMA.
In 2011, Ferry County conducted a review of 22 of the 31 species identified by
DFW for possible local importance designation. The county documented the review in a
four-page document. The review noted the protected status of each species. The review
designated priority areas for each species, which areas included the entire county, the
species' breeding area, the species' foraging areas, or migratory stopovers. The review
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identified the habitats in which each species could be found. Examples of habitats
included wetlands, streams, ponds, riparian areas, meadows, forests, snags, shrub-steppe,
grasslands, cliffs, old growth forest, aspen groves, logs, caves, open water, freshwater
lakes, and the eastside steppe. The review concluded that the loggerhead shrike, juniper
hairstreak, Shepard's parnassian, and ferruginous hawk did not inhabit Ferry County.
The 20 II Ferry County review designated no species as important and did not
refer to any science or a scientific methodology. The Ferry County review recommended
to exclude the golden eagle as a species of local importance solely upon economic
impact. For the justification of omitting several other species, the review reasoned that
logging or grazing is "under other jurisdictions." Presumably, the other jurisdictions are
the National Forest Service and the Colville Tribes.
In April 2011, Ferry County presented a draft of a new critical area ordinance to
DFW biologist Karin Divens. The county based its drafts on the completed review of the
22 species. The proposed ordinance read:
2. Ferry County has reviewed the Washington State Department of
Fish and Wildlife's Priority Habitat and Species list. There are currently no
candidate species or species of concern that have been identified as species
of local importance.
AR at 336. The proposed ordinance, however, created a process by which the public
could nominate a species or area for inclusion in a critical area as a species or habitat of
local importance.
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Karin Divens urged Ferry County to reconsider its decision to not designate any
species. Divens explained in a letter to the Ferry County GMHB of County
Commissioners:
The presence of State, Federal and Tribal land in a County does not
diminish the importance of protection of a species and associated habitats
on private lands. Local governments should provide clear process for
designating and protecting Fish and Wildlife Habitat Conservation by
utilizing BAS and developing protective policies and regulations.
Unfortunately, wildlife species do not adhere to property boundaries.
Protecting habitats with which species have association is very important as
wildlife species are extremely mobile and move readily about the
landscape. Protecting the habitat will not only benefit state and federally
listed species, but will also prevent future listings, while protecting species
that are important to the local area and local economy through the influx of
consumptive and non-consumptive dollars.
While the greater proportion of land within Ferry County is held in
public ownership, these lands are generally higher in elevation and tend to
be less ecologically productive compared to areas predominately in private
ownership at lower elevation. These low elevation, private lands are
characterized by a juxtaposition of agriculture, woodlands, and riparian
zones, which are higher in productivity than high elevation forests and are
important to wildlife in a variety of ways including providing movement
corridors and winter and spring range to migrating deer ....
These lowland areas in private ownership also have important
riverine and open water habitats and wetlands. There are documented
nesting sites for bald eagle and golden eagle in the valley bottoms, as well
as documented nesting sites for state listed woodpecker species. These
habitats provide for close association of other priority species such as Great
Blue Heron and many waterfowl species.
AR at 1134.
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On July 25,2011, the Ferry County Board of Commissioners enacted Ordinance
2011-02, which updated the critical area ordinance and was consistent with the proposed
ordinance given to Karin Divens. Critical Areas Ordinance 2011-02 is the ordinance at
issue on appeal and reads, in pertinent part:
An ordinance adopting development regulations as required by
RCW 36.70A.030(7).
WHEREAS, RCW 36.70A.172 states "In designating and protecting
critical areas under this chapter, counties and cities shall include the best
available science in developing policies and development regulations to
protect the functions and values of critical areas ....
WHEREAS, in order to come into compliance with the Growth
Management Act per the Growth Management Hearings Board Order,
Sections 2.00,3.00,4.00,4.01, 8.03, 9.00, 9.01, 9.02, 9.03, 9.04 were
amended....
WHEREAS, the measures adopted through this ordinance are
designed to meet these requirements.
NOW, THEREFORE, BE IT ORDAINED by the Board of Ferry
County Commissioners, as follows:
Section 9.00 FISH AND WILDLIFE HABITAT
CONSERVATION AREAS
Fish and wildlife habitat conservation areas are defined as land
management areas for maintaining species in suitable habitats within their
natural geographic distribution so that isolated sUbpopulations are not
created....
To maintain viable populations of wildlife species, there must be
adequate environmental conditions for reproduction, foraging, resting,
cover, and dispersal of animals at a variety of scales across the landscape.
Key factors affecting habitat quality include the presence of essential
resources such as food, water, and nest building materials, the complexity
of the environment, and the presence or absense [sic] of predator species
and diseases. Ferry County protects habitat for fish and wildlife species
using this ordinance and associated protection measures described below.
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Ferry County has a very high proportion of federal, state and other
publicly and tribally owned land. These lands are generally managed for
the conservation of wildlife habitat. Consequently, one of Ferry County's
approaches to protecting all wildlife habitat types is to depend on the
management of these lands by the responsible agency; i.e. Colville
Confederated Tribes, U.S. Fish and Wildlife, U.S. Forest Service, U.S.
Bureau of Land Management, Washington Department ofFish and
Wildlife, Washington Department of Natural Resources, etc.
Section 9.01 CLASSIFICATION
The following six habitat areas shall be classified fish and wildlife
habitat conservation areas.
1) Areas with which endangered, threatened and sensitive
species have a primary association.
I a) Federally designated endangered and threatened species are those
fish and wildlife species identified by the U.S. Fish and Wildlife Service
I and the National Marine Fisheries Service that are in danger of extinction
or threatened to become endangered. The U.S. Fish and Wildlife Service
and the National Marine Fisheries Service should be consulted for current
listing status.
b) State designated endangered. threatened, and sensitive species are
those fish and wildlife species native to Ferry County identified by the
Washington Department ofFish and Wildlife, that are in danger of
extinction, threatened to become endangered, vulnerable, or declining and
are likely to become endangered or threatened in a significant portion of
their range within the county without cooperative management or removal
of threats....
2) Habitats and species of local importance. There are habitats or
species that due to their declining population, sensitivity to habitat
manipulation or other values make them important on a local level.
Habitats of local importance may include a seasonal range or habitat
element with which a given species has a primary association, and which, if
altered, may reduce the likelihood that the species will maintain and
reproduce over the long term. These habitats and species may be identified
and nominated for inclusion or removal as Habitats and Species of Local
Importance by state agencies, Ferry County, and local individuals,
organizations or tribes. Review ofa Habitat and Species of Local
Importance application is a legislative action, and shall be processed during
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the Comprehensive Plan amendment cycle. Upon adoption of a compliant
Critical Areas Ordinance, the County upon receipt of a completed
nominating or removal form for each species, habitat and/or area will
review the application using the following process.
a) Petition to nominate or remove an area or a species to this
category shall contain all of the following for each species or habitat:
Final approval by the Board of County Commissioners of
nominations will become designated "Habitats and Species of Local
Importance," and will be subject to the provisions of this ordinance.
Habitats and species nominated and afforded protection under the category
"Habitats and Species of Local Importance" shall then be subject to review
under this ordinance.
Section 9.02
Habitat areas that meet the above classification criteria [Section
9.01] are designated as fish and wildlife habitat conservation areas and are
subject to the provisions of this ordinance and shall be managed with the
Best Available Science on a [case] by [case] basis.
BIBLIOGRAPHY
The following documents are referred to in this ordinance and are
included by reference for use or guidance. Changes to these documents by
the author or authoring agency require review by Ferry County for effect on
this ordinance and possible need for other adjustments to the ordinance
before being approved for inclusion in the ordinance by act of the Board of
I
l
County Commissioners:
Section 3.00:
• Natural Resources Conservation Service Field Office
Technical Guide
•
• WAC 232-12-014, Wildlife Classified as Endangered
Species, 01-30-06;
• WAC 232-12-297, Endangered, Threatened, and Sensitive
Wildlife Species Classification, 01-28-02;
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• Washington Department ofFish and Wildlife, Classification
System for Priority Habitat, updated 2/4/98;
• Washington Department ofFish and Wildlife, Priority Habitat
and Species Program, initiated 1989;
Section 4.02:
• WAC 365-195-905, Criteria for Determining Which
Information is the Best Available Science, 08-27-00;
Classification of Risk to Structural Development;
Section 9.00:
• WAC 365-190-080(5), Minimum guidelines to classify
agriculture, forest, mineral lands, and critical areas,-Critical Areas, Fish
and wildlife conservation areas, 04-15-91 ;
Section 9.01:
• RCW 90.58. Shoreline Management Act, 1971;
• WAC 222-16.031, Interim water type system, 07-01-05;
• WAC 232-12-011, Wildlife classified as protected shall not
be hunted or fished, 01-30-06;
• WAC 232-12-014, Wildlife classified as endangered species,
01-30-06;
• WAC 365-190-080 (5) (c)(ii), Minimum guidelines to
classify agriculture, forest, mineral lands and critical areas,-Critical Areas,
Sources and methods-species of local importance; 04-15-91;
• Washington Department ofFish and Wildlife Maps (Fish
Planting);
Section 9.04
• Divens, Karin, Department ofFish and Wildlife Priority
Habitats and Species Biologist, letter to Irene Whipple, 3-25-10
• Transcription of discussion with Karin Divens at the Planning
Commission regular meeting; 4-14-10;
• Divens, Karin, Department of Fish and Wildlife Priority
Habitats and Species Biologist, letter to Honorable Joe Bond, 4-26-10
The Ferry County Board of Commissioners attached to Ordinance Nos. 2011-02
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findings of fact, which read:
Findings of Fact:
(Exhibit A)
In designating and protecting the functions and values of critical
areas, Ferry County has included Best Available Science (BAS) per RCW
36.70A.172 and WAC 365-195 in developing policies and development
regulations.
In considering BAS, Ferry County has consulted numerous times
with WDFW ....
Ferry County's land base is predominately State and federal owned.
The Board finds that the economic base is hampered and in decline due to
the lack of private ownership of the land. In RCW 36.70A.OIO, "the
legislature finds that uncoordinated and unplanned growth, together with a
lack of common goals expressing the public's interest in the conservation
and the wise use of our lands, pose a threat to the environment, sustainable
economic development, and the health, safety, and high quality of life
enjoyed by residents of this state. It is in the public interest that citizens,
communities, local governments, and the private sector cooperate and
coordinate with one another in comprehensive land use planning. Further,
the legislature finds that it is in the public interest that economic
development programs be shared· with communities experiencing
insufficient economic growth." The Board finds that human health and
safety concerns and sustainable economic development is of the utmost
importance to Ferry County.
Ferry County has reviewed the changes and finds that CAO is
consistent and implements the goals and policy of the comprehensive plan.
Ferry County finds that it must balance the goals of the GMA while
giving a high degree of weight to local conditions.
Ferry County has removed most RCW and WAC citations and
replaced this with language consistent with current law and rule as to create
an opportunity for local public participation and local deference as laws and
rules change in the future.
Changes to the Critical Areas Ordinance: (findings)
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1. In accordance with WAC 232-12-014 and WAC 232-12-011,
Ferry County adopted the Washington State Fish and Wildlife
recommendations pertaining to the Endangered, Threatened and Sensitive
species list. Ferry County recognizes that the Endangered, Threatened, and
Sensitive species list changes periodically, therefore Ferry County chose
not to list the species individually. Ferry County will consult with and use
the most current Department ofFish and Wildlife Endangered, Threatened,
and Sensitive species list.
2. Ferry County has reviewed the Washington State Department of
Fish and Wildlife's Priority Habitat and Species list. There are currently no
candidate species or species of concern that have been identified as species
of local importance.
8. For organizational purposes, in section 4.01, language was
removed to emphasize Ferry County's use of Best Available Science and
for consistency and accuracy of current law and regulation, as well as
consistency internally within revised CAO.
I L Section 9.01(2), new language was added to illustrate Ferry
County's extensive efforts to protect Fish and Wildlife conservation areas.
WAC references were removed to reflect current rules and to eliminate
inconsistent language. Language was deleted to reflect a review of all 29
species associated with Ferry County being reviewed utilizing BAS and
giving justification for any deviation from BAS. Language was added and
organizational changes were made to simplifY the CAO for use and
understanding in protecting species and habitat. ...
14. In Section 9.02 of the Critical Areas Ordinance, language was
added to include and utilize Best Available Science to properly designate
Fish and Wildlife Habitat.
16. In Section 9.04 of the Critical Areas Ordinance, Ferry County
removed language and added a map to define and specifY the location of
Fish and Wildlife Conservation Areas. Ferry County removed inaccurate
information and added relevant information to show that the Priority
Habitats and Species program will be used to better determine the mapped
polygon areas for Endangered, Threatened and Sensitive species. Language
was added to clarifY for the general public the Habitat and Management
plan process.
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DFW Biologist Karin Divens had recommended to Ferry County that the critical
areas ordinance refer explicitly to the habitats primarily associated with the ETS species
so that review of a development application is triggered not just by the occurrence of an
individual species, some of which are highly mobile, but by considering development
impacts to primary habitat for that species. Section 9.01 of Ordinance 2011-02 merely
refers to species listings maintained by named federal and state agencies but does not
provide any methodology for locating habitat areas. In reading Section 9.01 (1), one
cannot discern what habitat areas or locations are designated. Section 9.01 also contains
no list of priority species with endangered, threatened or sensitive status.
Critical Areas Ordinance 2011·02, section 9.04 refers to a map, titled Fish and
Wildlife Habitat Conservation Areas of Ferry County, as showing the approximate
location and extent of fish and wildlife habitat areas for endangered, threatened and
sensitive species, but the map is not contained in the record. On March 2, 2011, the
Colville Tribes commented on the critical areas ordinance, stating that section 9.04 needs
to have the Tribal Critical Habitat maps. Although the ordinance contains these habitat
maps, the record does not renect Ferry County's consideration of the tribal critical habitat
maps.
Ferry County, by Resolution 2011-41, entered additional findings of fact in
support of Ordinance 2011-02. The findings read, in part:
I
,
WHEREAS, based on public input, review and analysis of best
I
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Ferry County v. Growth Mgmt. Hearings
,
I available science (BAS) pertinent to Ferry County and other relevant
J information, the Planning Department developed the Critical Areas
Ordinance and Comprehensive Plan proposal tailored to address the
J
compliance orders;
1 4. The planning Commission reviewed the BAS as provided by the
WDFW, the Nature Serve [sic], and the U.S. Fish and Wildlife Bull Trout
Recovery plan in consideration of the "Species of Concern' and 'Candidate
Species' on the WDRW Priority Habitat and Species List (PHS list) for
Ferry County. The Review and findings of this BAS is in the Record as a
document titled "2011 Ferry County Review of Washington Fish and
Wildlife PHS Candidate Species for Possible Habitats and Species of Local
Importance Designation."
AR at 1539.
I
In the resolution, the Ferry County GMHB of Commissioners declared:
In review of the BAS in the Record:
a. It was found that there was NO specific mapped area in Ferry
County for 12 of the State candidate species to the PHS list for Ferry
County.
b. It was found that specific mapped area was unknown for 2 of the
I State candidate species on the PHS list for Ferry County.
c. It was found that current breeding habitat status is unknown for 10
of the State candidate species on the PHS list for Ferry County.
d. It was found that there are Riparian and Wetland buffers in place
concerning 6 of the State candidate species on the PHS list for Ferry
County.
e. It was found that there are no buffer recommendations for six of
the State candidate species on the PHS list for Ferry County.
f. It was found that protection of 5 of the State candidate species on
the PHS list for Ferry County would have negative impact to the
recreational and tourism economy or the entire economy of Ferry County.
g. It was found that 2 of the State candidate species on the PHS list
for Ferry County are extirpated.
h. It was found that BAS did not provide specific protection
measures or management plans for 7 of the State candidate species on the
PHS list for Ferry County.
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i. It was found that in the U.S. Fish and Wildlife documents that
there is no designated critical habitat for bull trout in Ferry County even
though bull trout is a State candidate species on the PHS list for Ferry
County.
k. It was found that the breeding habitat for 1 of the State candidate
species on the PHS list for Ferry County is actually in the Okanogan
County portion of the Colville Confederated Tribes Reservation.
1. It was found that species distribution does not include Ferry
County for 2 of the State Candidate species on the PHS list for Ferry
County.
AR at 1539.
According to the Ferry County Board of County Commissioners, BAS reflected
that none of the 22 "State Candidate Species" warrant designation as "Species of Local
Importance." AR at 1539-40. The record, however, does not address why the county
analyzed only 22 of the 31 species the DFW listed on its PHS list as occurring in Ferry
County. The county's review did not include the bald eagle, peregrine falcon,
flammulated owl, common loon, fisher, gray wolf, grizzly bear, or lynx.
Ferry County asserted the July 2011 ordinance and resolution brought it into
compliance with the GMA's critical areas provision. Thus, Ferry County moved the
GMHB in both the Futurewise and the Concerned Friends of Ferry County cases to find it
compliant with the GMA. Both petitioners objected to Ferry County's motion, arguing
that the county's refusal to follow DFW's recommendations was not supported by BAS
or a reasoned process.
On October 7,2011, the GMHB conducted a compliance hearing in the
consolidated Futurewise and Concerned Friends of Ferry County cases. By written
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Ferry County v. Growth Mgmt. Hearings
decision on December 1, 2011, the GMHB agreed with Futurewise and Concerned
Friends and held the July 2011 critical area ordinance noncompliant with the GMA. The
December 1 decision is what this court reviews. Portions of the decision read:
II. BURDEN OF PROOF
For purposes of Board review of the comprehensive plans and
development regulations adopted by local governments in response to a
noncompliance finding, the presumption of validity applies and the burden
is on the challenger to establish that the new adoption is clearly erroneous
in view of the entire record before the board and in light of the goals and
requirements of the chapter.
In order to find the County's action clearly erroneous, the Board
must be "left with the firm and definite conviction that a mistake has been
made."
Within the framework of state goals and requirements, the Board
must grant deference to local governments in how they plan for growth .... i
IV. DISCUSSION
If a county chooses to disagree with or ignore scientific
recommendations and resources provided by state agencies or Indian tribes,
which a county could do, the county must unilaterally develop and obtain
valid scientific information. The GMA does not require a county to follow
BAS; rather it is required to "include" BAS in the record. A county may
depart from BAS if it provides a reasoned justification for such departure.
The Department of Commerce Minimum Guidelines also state that
counties and cities should identify and classify seasonal ranges and habitat
elements where federal and state listed endangered, threatened and sensitive
species have a primary association and which, if altered, may reduce the
likelihood that the species will persist over the long term. Counties and
cities should consult current information on priority habitats and species
identified by the Washington Department ofFish and Wildlife (WDFW).
The goal of fish and wildlife habitat conservation is to manage land so as to
maintain species in suitable habitats within their natural geographic
distribution so that isolated subpopulations are not created.
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3. Recent Legislative Action by Ferry County
On July 25,2011, Ferry County passed Critical Areas Ordinance
#2011-02 amending Critical Areas Ordinance # 2009-05, Sections 9.00,
9.01,9.02,9.03, and 9.04, relating to Fish and Wildlife Conservation Areas.
On July 25, 2011, Ferry County adopted Resolution No. 2011-41
entitled "Findings of Fact for the Comprehensive Plan and Critical Areas
Ordinance Relating to Fish and Wildlife Habitat Conservation Areas."
5. Board Analysis-Designation of Fish and Wildlife Habitat
Conservation Areas
The GMA requires counties to both Designate and Protect Fish and
Wildlife Habitat Conservation Areas (FWHC Areas). Designation is a
fundamental first step that informs County decision makers and the public
on determining the location ofFWHC Areas. The GMA's mandate to
protect FWHC Areas cannot be fulfilled unless people can figure out where
FWHC Areas are located.
When designating Fish and Wildlife Habitat Conservation Areas,
Best Available Science (BAS) must be included in the record-the County
must rely on scientific information and must analyze that information using
a reasoned process, i.e., a scientific methodology. Ferry County v.
Concerned Friends ofFerry County, 155 Wn.2d. 824, 836-837 (2005).
In the present case, Ferry County made the following Finding of
Fact:
WHEREAS, based on public input, review and analysis of best
available science (BAS) pertinent to Ferry County and other relevant
information, the Planning Department developed the Critical Areas
Ordinance and Comprehensive Plan proposal tailored to address the
compliance orders;
But the Board must examine the entire record in this case to
determine if Petitioners have satisfied their burden to demonstrate that the
County failed to include Best Available Science as to FWHC Area
designations and policy development.
i
I
Critical Areas Ordinance # 2011-02, Section 9.01 states that six
habitat types shall be classified fish and wildlife habitat conservation areas:
i 1) Areas with which endangered, threatened and sensitive species
l
1
have a primary association.
j 2) Habitat and species of local Importance.
i
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Ordinance 2011-02, Section 9.02 entitled "DESIGNATION"
provides:
Habitat areas that meet the above classification criteria [Section
9.01] are designated as fish and wildlife habitat conservation areas and are
subject to the provisions of this ordinance and shall be managed with the
Best Available Science on a site by site basis.
Thus, Section 9.02 "DESIGNATION" appears to be the main
operative provision designating FWHC Areas in Ferry County and works in
tandem with Section 9.01 "Classification."
Designation-Endangered, Threatened and Sensitive Species
However, the Section 9.01 habitat classification "Areas with which
endangered, threatened and sensitive species have a primary association,"
and explanatory language contains no reference to "habitats" but refers
only to "species." WDFW Biologist Karin Divens had recommended
"referring explicitly to the habitats primarily associated with the E/T/S
species" so that "review of a development application is triggered not just
by the occurrence of an individual species (some of which are highly
mobile), but by considering development impact to primary habitat for that
species." There is no evidence in the record of any scientific information
that refutes the science provided by the WDFW Biologist on designating
EITIS habitats.
Ferry County has departed from or ignored the scientific
recommendation by WDFW to designate E/T/S habitats not just species,
without any reasoned justification. This ordinance language in Section
9.01(1) also contains no indication that BAS was included or analyzed with
a reasoned process.
Section 9.01(1) merely refers to E/T/S species "listings" maintained
by named federal and state agencies but does not provide any methodology
for locating habitat areas. In reading the current language of Section
9.01(1), one cannot discern what habitat areas or locations would meet the
classification criteria for an "Area with which endangered, threatened and
sensitive species have a primary association." Also, there are no maps
showing the locations of such designated areas. Thus, contrary to WAC
365-190-080(4), the County did not use any maps and did not use
performance standards to designate Fish and Wildlife Habitat Conservation
Areas.
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Moreover, WAC 365-190-130(4)(a) states that counties should
identifY and classifY seasonal ranges and habitat elements where federal
and state listed endangered, threatened and sensitive (ETS) species have a
primary association and which, if altered, may reduce the likelihood that
the species will persist over the long term. But the ordinance language In
Section 9.01 does not identifY any seasonal ranges or habitat elements.
CAO Section 9.01 also contains no list of Priority Species with
Endangered, Threatened or Sensitive status although such a list had been
provided by WDFW to Ferry County.
Designation-Habitats and Species of Local Importance
Regarding the classification "Habitats and species of local
importance," CAO Section 9.01(2) provides:
These habitats and species may be identified and
nominated for inclusion or removal as Habitats and Species of
Local Importance by state agencies, Ferry County and local
individuals, organizations or tribes. Review of a Habitat and
Species of Local Importance application is a legislative
action, and shall be processed during the Comprehensive Plan
amendment cycle.
Section 9.0 1(2)(a) requires submission of a petition to nominate or
remove an area or a species, containing a number of items.
WAC 365-190-130(4)(b) states that counties and cities should
identifY, classifY and designate locally important habitats and species.
Further, counties "shou.ld consult current information on priority habitats
and species identified by the Washington state department of fish and
wildlife."
WDFW Biologist Karin Divens had recommended in pertinent part
as follows:
WDFW is concerned that the process for nominating
Habitats and Species of Local Importance is overly
burdensome. As written, the nomination process is onerous
because it would require applicants to propose specific and
relevant protection regulations, propose management
strategies, provide specific habitat locations, and requires an
agency or qualified professional to prepare the information.
The only appropriate requirement for designation is that the
designation be based on Best Available Science. WDFW has
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not developed management strategies for all priority species
and habitats and therefore, strongly suggests elimination of
the management strategy requirement. The term is not
defined, and keeping this as a precondition will likely result
in the loss of many critical fish and wildlife resources ...
Limiting designation to mapped species and habitats is an
overly burdensome expectation to include in a nomination
process ... not all habitats and species are mapped, and maps
cannot account for the movement of species seasonally and
over time. Therefore, we always recommend local
governments designate species that are vulnerable to future
listing, such as Candidate species, and include a site-specific
review to verify the presence of a designated FWHCA. This
should be the same process for a listed species.
The ordinance language in Section 9.01 contains no indication that
BAS was included or analyzed with a reasoned process. The management
strategy requirement in Section 9.0 1(2) is contrary to the strong scientific
recommendation that (1) management strategies do not exist for some
species and habitats and (2) keeping this requirement will likely result in
the loss of many critical fish and wildlife resources. Furthermore, limiting
designation to mapped species and habitats is a departure from BAS since
maps alone cannot account for the movement of species seasonally and
over time.
Moreover, as to the CAO's designation of Habitats and Species of
Local Importance, WDFW stated:
WDFW would like to reiterate that these sections fail
to designate the majority of locally vulnerable species and
their associated habitats found in Ferry County. The
classification of "Habitats and species of local importance
and habitats for species of local importance" appears to defer
entirely to a nomination process. Reliance on a future,
potential nomination of local habitats or species does not
provide protection to the habitats and species currently known
to exist in Ferry County, based on best available science. We
strongly encourage the county to revisit its BAS on record
and designate habitats and species of local importance pro­
actively.
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In 20 I 0, WDFW provided the County with a list of 31 Priority
Species known to occur in Ferry County with Federal and/or State listing
Status (ETS). In 2011, the County completed a review of 22 species for
possible local importance designation. None of those species were
designated, and the County's reasoning did not include a reference to
identifiable BAS or to a scientific methodology. For example, as to the
decision not to list the Golden Eagle, the reasoning was solely economic
impact, with no reference to science. For several other species the
I reasoning was that logging or grazing is "under other Jurisdictions," with
no reference to science. Under the GMA, Ferry County can list whatever
species it deems appropriate if it supports its decision by BAS.
Ferry County asserts in briefing that the "reasoned justification" for
departing from BAS does not need to be based on science itself, and the
County cites to Swinomish Indian Tribal Community et al. v. WWGMHB,
161 Wn.2d 415,431, [166 P.3d 1198] (2007). In the Swinomish, the
Washington Supreme Court held that the GMA' s requirement to protect
critical areas does not impose a requirement to enhance critical areas by,
for example, requiring farmers to replant areas adjacent to streams that
were lawfully cleared in the past. The omission ofmandatory stream
buffers from Skagit County's critical areas ordinance was a justified
departure from Best Available Science because the mandatory buffers
would impose an obligation to enhance that goes above and beyond the
GMA's duty to protect. In other words, BAS needs to be included in the
decision-making process, but science cannot create new duties not imposed
by law.
In the present case, the record contains BAS relating to the
designation and protection ofFish and Wildlife Habitat Conservation
Areas. But nothing in the record suggests that this BAS would create any
new duties not already imposed by law.
In 2005, the Washington Supreme Court held in a case arising out of
Ferry County that BAS requires the use of a scientific methodology and a
reasoned process. A county may depart from BAS if it provides a
reasoned justification for such departure. In the 2005 Supreme Court
decision, the court noted:
The fact that the county's listing omits both the
peregrine falcon and the bull trout, both of which are ETS
species known to be present in Ferry County, further supports
that the listing was not generated using BAS.
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These holdings of the Supreme Court are mandatory authority, and
this Board must adhere to and apply the Supreme Court's ruling. In the
present case, Ferry County failed to provide a reasoned justification for
departing from the Best Available Science in designating habitats and
species known to be present in Ferry County. As in the earlier Ferry
County Supreme Court case, the omission here of all 22 species of possible
local importance supports a finding that the ordinance was not generated
using BAS.
. . . . There is no substantial evidence in the record to support a
County finding that BAS was included in designating Ferry County's Fish
and Wildlife Habitat Conservation areas.
Ferry County failed to include the Best Available Science in
designated (1) Areas where ETS species have a Primary Association, and
(2) Habitats and Species of Local Importance. Ordinance 2011-02
designations of Fish and Wildlife Habitat Conservation Areas (relating to
ETS Habitats and Species, and Species of Local Importance) were clearly
erroneous in view of the entire record before the [GMHB] and in light of
the goals and requirements of the Growth Management Act.
On remand, Ferry County should provide a reasoned justification for
departing from Best Available Science in designating Fish and Wildlife
Habitat Conservation Areas.
Clerk's Papers (CP) at 13-28.
By this new lawsuit, Ferry County seeks review of the GMHB's Compliance
Order, entered December 1, 2011. The superior court granted Ferry County partial
summary judgment and ruled that the county had included BAS or departed from that
science for a justified reason when designating critical habitats. Accordingly, the court
reversed the GMHB. Futurewise and Concerned Friends of Ferry County appeal.
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LAW AND ANALYSIS
Assignments of Error
Futurewise raises a procedural argument, that, if accepted, would end our review
and require a ruling in its favor. Futurewise contends that the GMHB's factual findings
are verities on appeal because Ferry County failed to assign error to any of the Board's
findings. The GMHB entered a finding of fact that "no substantial evidence in the record
... support[ ed] a County finding that BAS was included in designating Ferry County's
Fish and Wildlife Habitat Conservation Areas." CP at 28. Ferry County does not
specifically assign error to the finding.
RAP IO.3(h) applies to appeals from a superior court's review of administrative
agency rulings and reads:
(b) Assignments of Error on Review of Certain Administrative
Orders. In addition to the assignments of error required by rule IO.3(a)(3)
and 1O.3(g), the brief of an appellant or respondent who is challenging an
administrative adjudicative order under RCW 34.05 or a final order under
RCW 41.64 shall set forth a separate concise statement of each error which
a party contends was made by the agency issuing the order, together with
the issues pertaining to each assignment of error.
RAP IO.3(h) applies to a party contending that the administrative agency decision was in
error, regardless of the party's designation as appellant or respondent before the appellate
court. 3 KARL B. TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE RAP 10.3
drafters' cmt. 1994 amends. at 54 (7th ed. 2011). In turn, RAP IO.3(g) demands a
separate assignment of error for each finding of fact a party contends was improperly
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made must be included with reference to the finding by number. Unchallenged agency
factual findings are verities on appeal. Hilltop Terrace Homeowner's Ass 'n v. Island
County, 126 Wn.2d 22,30,891 P.2d 29 (1995). Ifwe strictly followed RAP 10.3, we
would affirm the GMHB's finding that the 2011 ordinance did not include BAS and
thereby affirm the Board.
Other court rules apply. RAP 10.3(g) permits review when the claimed error is
clearly disclosed in a related issue. RAP 1.2 directs this court to liberally interpret these
rules. These RAPs allow appellate review of administrative decisions in spite of
technical violations when a proper assignment of error is lacking but the nature of the
challenge is clear and the challenged finding is set forth in the party's brief. Fuller v.
Emp'tSec. Dep't, 52 Wn. App. 603,605-06,762 P.2d 367 (1988).
In a section labeled assignment of errors in its brief, Ferry County asked whether
"BAS regarding habitats and species of local importance [was] included in the record or
was there any BAS that was not included in the record?" Br. ofResp't at 2. In the
argument section of the brief, the county "clearly discloses" the error it alleges when it
argued it complied with the GMA mandate to include BAS in the record. Futurewise
thoroughly addressed the issue in its brief and shows no prejudice by Ferry County's
failure to strictly follow the rules. Therefore, we reject Futurewise's argument and
address the merits of the appeal.
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Overview of Growth Management Act
Ferry County contends the GMHB committed at least four errors. First, the Board
concluded that the GMA requires counties to designate and protect habitats or species of
local importance, when the law contains no such requirement. Second, the GNIHB
impermissibly shifted the burden of proof to the county and it relieved Futurewise from
establishing that the county omitted any BAS from the record. Third, contrary to the
GMHB's finding, the county included BAS in the record. Fourth, the county engaged in
a reasoned legislative process when it departed from the protections BAS recommended.
Before addressing Ferry County's four discrete assignments of error, we review
more of Washington's Growth Management Act (GMA), chapter 36.70A RCW, which
controls our decision. The Washington legislature adopted the GMA in two installments,
during 1990 and 1991, in response to public concerns about rapid population growth and
increasing development pressures in the state, especially in the Central Puget Sound
region. Alan D. Copsey, Including Best Available Science in the Designation and
Protection o/Critical Areas Under the Growth Management Act, 23 SEATTLE U. L. REv.
97,97 (1999). Passage of the Act demanded political compromises that create internal
inconsistencies, vague language, and gaps in the Act. Richard L. Settle, The Growth
Management Revolution in Washington: Past, Present, and Future, 16 U. PUGET SOUND
L. REV. 867, 872 (1993). The Act contains awkward sentences and murky words.
The central purpose of the GMA is to coordinate land use, zoning, subdivision,
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planning, development, natural resources, public facilities, and environmental laws into
one scheme in order to concentrate new development in compact urban growth areas,
while conserving environmentally critical land and valuable natural resources. Richard
L. Settle, supra at 872-73. As part of this planning system, "local governments also must
designate urban growth areas, forest lands, agricultural lands, mineral resource lands and
critical areas, and develop regulations to assure their conservation." 24 TIMOTHY
BUTLER AND MATTHEW KING, WASHINGTON PRACTICE: ENVIRONMENTAL LAWAND
PRACTICE § 18.1 (2nd ed. 2007) (emphasis added). Our appeal concerns critical areas.
Since the GMA was directed at congestion in King, Pierce, and Snohomish
counties, application of the Act to rural eastern Washington has created controversy.
Two former members of the state high court, Justice J. Johnson and Justice R. Sanders,
have penned or joined several dissents that question the wisdom of implementing the
GMA in northeastern counties of the state. See CFFC, 155 Wn.2d at 836-37 (Johnson, J.,
dissenting (opinion, pp. 844-56); Kittitas County v. E. Wash. Growth Mgmt. Hearings
Bd., 172 Wn.2d 144,256 PJd 1193 (2011) (Johnson, J., dissenting (opinion, pp. 191­
207). Eastern and western Washington may have a difficult marriage, but we remain one
state subject to the same law.
Under the GMA, all Washington counties must adopt development regulations
that designate and protect critical areas, including fish and wildlife habitat conservation
areas. RCW 36.70A.060(2). A number of sections within the GMA, beginning with
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RCW 36.70A.060, address the designation of environmentally "critical areas." RCW
36.70A.060 reads:
(2) Each county and city shall adopt development regulations that
protect critical areas that are required to be designated under RCW
36.70A.170. For counties and cities that are required or choose to plan
under RCW 36.70A.040, such development regulations shall be adopted on
or before September 1, 1991 ....
(3) Such counties and cities shall review these designations and
development regulations when adopting their comprehensive plans under
RCW 36.70A.040 and implementing development regulations under RCW
36.JOA.120 and may alter such designations and development regulations
to insure consistency.
(Emphasis added.) RCW 36.70A.170 repeats the demands ofRCW 36.70A.060.
RCW 36. 70A.170 provides:
(1) On or before September 1, 1991, each county, and each city,
shall designate where appropriate:
(d) Critical areas.
(2) In making the designations required by this section, counties and
cities shall consider the guidelines established pursuant to RCW
36.70A.050.
RCW 36.70A.030(5) defines "critical areas" as:
(5) "Critical areas" include the following areas and ecosystems:
(a) Wetlands; (b) areas with a critical recharging effect on aquifers used for
potable water; (c) fish and wildlife habitat conservation areas;
(d) frequently flooded areas; and (e) geologically hazardous areas ....
This appeal concerns only fish and wildlife habitat conservation areas.
The first step required for a county's implementation of the GMA is the
designation and adoption of interim development regulations to protect natural resource
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lands and critical areas. RCW 36.70A.060(2); RCW 36.70A.170. This step comes first
in order to preclude irreversible environmental harm during the lengthy preparation
process ofGMA comprehensive plans and development regulations. Settle, supra at 908.
GMHBs are authorized to invalidate noncomplying comprehensive plans and
development regulations. Swinomish Indian Tribal Cmty., 161 Wn.2d at 423. The Board
presumes the validity of development regulations and related amendments that a county
adopts under the GMA. RCW 36. 70A.320( 1). The Board must find compliance unless a
county's action is clearly erroneous. RCW 36.70A.280(l)(a), .320(3). A county's action
is clearly erroneous if the Board has a firm and definite conviction that the county made a
mistake. Thurston County v. W. Wash. Growth Mgmt. Hearings Bd., 164 Wn.2d 329,
340-41, 190 P.3d 38 (2008); Olympic Stewardship Foundation v. W. Wash. Growth
Mgmt. Hearings Bd., 166 Wn. App. 172, 187,274 P.3d 1040, review denied, 174 Wn.2d
1007 (2012). In 1997, the legislature amended the GMA, requiring the GMHB reviewing
local government compliance with the GMA to "grant deference to counties and cities in
how they plan for growth," provided those plans are "consistent with the requirements
and goals of [the GMA]." RCW 36.70A.3201.
Before this court, Ferry County emphasizes the need for the GMHB to defer to the
county's decisions. The county provides no analysis as to the line between according
deference and ruling there was error, and suggests the Board must grant unlimited
f
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deference. Nevertheless, counties remain constrained by the goals and requirements
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of the GMA. King County. v. Cent. Puget Sound Growth Mgmt. Hearings Ed., 142
Wn.2d 543,561, 14 P.3d 133 (2000). A county may not "point to any evidence and
demand unbounded deference." Kittitas County, 172 Wn.2d at 157.
One disappointed with the GMHB' s ruling may seek redress from the superior
court. This reviewing court reviews decisions of the GMHB under the Administrative
Procedure Act (APA), chapter 34.05 RCW, which calls for a review of the record created
before the GMHB-not the decision of the superior court. Buechel v. Dep't ofEcology,
125 Wn.2d 196,202, 884 P.2d 910 (1994). Ferry County, the party challenging the
GMHB decision, bears the burden of proving the decision invalid. RCW
34.05.570(1)(a). The court must grant relief from the decision if, as relevant here:
(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 ... ; [or]
(i) The order is arbitrary or capricious.
RCW 34.05.570(3)(d)-(e), (i).
This appeals court reviews the GMHB'sJegal conclusions de novo, giving
substantial weight to its interpretation of the statute it administers where the agency has
specialized expertise in dealing with such issues. City ofRedmond v. Cent. Puget Sound
Growth Mgmt. Hearings Bd., 136 Wn.2d 38,46,959 P.2d 1091 (1998); City ofBurien v.
Cent. Puget Sound Growth Mgmt. Hearings Bd., 113 Wn. App. 375, 382, 53 P.3d 1028(2002). This court reviews the GMHB's factual determinations for substantial evidence.
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Swinomish Indian Tribal Cmty., 161 Wn.2d at 424. Substantial evidence exists where
there exists 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. Hearings Bd.,
176 Wn. App. 555, 564-65, 309 P.3d 673 (2013), review denied, 179 Wn.2d 1015 (2014).
Finally, courts review challenges that a GMHB order is arbitrary and capricious under
RCW 34.05.570(3)(i) by determining whether the order represents '''willful and
unreasoning action, taken without regard to or consideration of the facts and
circumstances surrounding the action. '" Kittitas County, 172 Wn.2d at 154; City of
Redmond, 136 Wn.2d at 46-47 (citation omitted).
Habitat and Species of Local Importance
We now begin to answer the questions raised by Ferry County's four assignments
of error. The GMHB faulted Ferry County for failing to designate any habitat or species
of local importance. Ferry County argues it has no obligation to designate any habitat or
species of local importance. Futurewise argues that Ferry County must designate species
and habitats of local importance. We do not defer to the GMHB on this issue, since the
obligations of counties planning under the GMA is a question of law this court reviews
de novo. Kittitas County, 172 Wn.2d at 154.
We find this dispute unimportant. Assuming Ferry County did not have to donate
any species, it passed a critical area ordinance. That ordinance must comply with the
GMA, which requires it to include BAS when it decides whether to designate species and
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habitats of local importance. Honesty in Envtl. Analysis and Legislation (HEAL) v.
Central Puget Sound Growth Mgmt. Hearings Ed., 96 Wn. App. 522, 527,979 P.2d 864(1999). "RCW 36.70A.172(1) provides that counties and cities 'shall include' best
available science in developing both policies and regulations regarding critical areas.
Inclusion of BAS in the development of critical areas policies and regulations is therefore
a mandate of the GMA." HEAL, 96 Wn. App. at 528.
The GMHB did not require the county to designate any species or habitat of local
importance. The GMHB found the county enacted a critical area ordinance. Therefore,
the GMHB initially ruled that Ferry County must include BAS in the adoption of that
regulation. In the alternative, the county must provide a reasoned justification for
departing from BAS.
Burden of Proof
Ferry County argues the GMHB improperly shifted the burden of proof. Under
the GMA, the county's ordinances are presumptively valid upon adoption. RCW
36.70A.320(1). The burden is on the petitioner before the GMHB to demonstrate that
any action taken by the county is not in compliance with the GMA. RCW
36.70A.320(2).
In its compliance order, the GMHB recited these presumptions, requiring
Futurewise "establish that the new adoption is clearly erroneous in view of the entire
record before the Board and in light of the goals and requirements of the chapter." CP at
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14. Afterward, the GMHB found the county out of compliance with the GMA because
"no substantial evidence in the record ... support[ ed] a County finding that BAS was
included in designating Ferry County's Fish and Wildlife Habitat Conservation Areas."
CP at 28.
While the GMHB correctly recited the presumption, its finding evidences a shift in
the burden of production. The GMA requires a county include BAS in its designation of
critical areas, but the burden of showing a county failed to comply with this direction
falls to petitioners like Futurewise. RCW 36.70A.320. For Futurewise to prevail, the
GMHB should have found substantial evidence that BAS was not included in the record.
Instead the GMHB found "no substantial evidence" that BAS was included. CP at 28.
This improperly shifted the burden to Ferry County.
Had the GMHB correctly placed the burden on Futurewise, the county argues,
Futurewise would have had to provide substantial evidence that the county excluded BAS
from its designation of critical areas. The standard for including BAS and whether
substantial evidence supports the GMHB's finding is the subject of the next section.
The harmless error doctrine applies to misstating the burden of proof if the facts
the GMHB found were otherwise sufficient to conclude the county failed to include BAS.
City o/Vancouver v. State Pub. Emp't Relations Com 'n, 180 Wn. App. 333, 354-57, 325
P .3d 213 (2014). This is because, under the AP A, judicial relief is appropriate only if the
"'person seeking judicial relief has been substantially prejudiced by the action
,
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complained of.'" RCW 34.05.570(l)(d); City o/Vancouver, 180 Wn. App. at 357. In its
second finding, the GMHB found "Ferry County failed to include the Best Available
Science in designating ... Habitats and Species of Local Importance." CP at 28. This
finding does not evidence the same shift in burdens as the first. If substantial evidence
supports that finding, the GMHB's error was harmless.
Best Available Science
The GMHB concluded Ferry County failed to include the BAS in designating
habitats and species of local importance. Ferry County challenges this finding. This
court reviews the GMHB' s factual findings for substantial evidence. Substantial
evidence exists where there exists '''a sufficient quantity of evidence to persuade a fair-
minded person of the truth or correctness of the order.'" Spokane County, 176 Wn. App.
at 565 (citation omitted).
In 1995, the state legislature amended the GMA to clarify the standards under
which counties are to designate and protect critical areas. The amendment found in RCW
36.70A.l72(l) reads:
(1) In designating and protecting critical areas under this chapter,
counties and cities shall include the best available science in developing
policies and development regulations to protect the functions and values of
critical areas.
The GMA does not define the term "best available science." The Department of
Commerce, however, has adopted regulations to assist a county in including BAS in a j
I.
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critical area ordinance. The regulations recognize the importance of the inclusion of BAS
to decisions affecting endangered, threatened, and sensitive species. WAC 365-195­
900(3), WAC 365-195-905(2) and WAC 365-195-910 encourage a county to use
resources available from state and federal agencies. The responsibility for including best
available science lies with the county. WAC 365-195-905(3). A county may consult
with qualified scientists, but scientists should follow criteria contained in the regulations.
WAC 365-195-905(3).
"Science," for purposes of BAS, is information produced through the scientific
process. WAC 365-195-905(5). The information should be peer reviewed. WAC 365­
195-905(5)(a)(l). The information should be obtained by methods that can be replicated
and that reach logical conclusions. WAC 365-195-905(5)(a)(2)-(3). The scientific
information should be the result of appropriate statistical or quantitative methods.
A county need not develop the scientific information through its own means, but it
must rely on scientific information. CFFC, 155 Wn.2d at 836. By RCW 36.70A.l72(1),
"the Legislature left the cities and counties with the authority and obligation to take
scientific evidence and to balance that evidence among the many goals and factors to
fashion locally appropriate regulations based on the evidence not on speculation and
surmise." HEAL, 96 Wn. App. at 531. The GMA directs counties to determine what
lands are primarily associated with listed protected species, and then to adopt regulations
protecting those lands. RCW 36.70A.020(9), .030(5), .060(2), . 170(l)(d). "The GMA
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requires the county to designate and protect all critical areas within its boundaries."
Stevens County v. Futurewise, 146 Wn. App. 493, 511, 192 P.3d 1 (2008). Generally the
DFW's priority habitat maps are the BAS on the county's critical areas for listed species.
Futurewise, 146 Wn. App. at 512.
In an earlier generation of this case, Ferry County argued that its citation to
regulations on the subject of critical areas met compliance with the GMA's demand for
BAS. CFFC, 155 Wn.2d 824. The high court disagreed because dependence on another
body'srule-making removes the county from the role of considering scientific
information in a reasoned process of analysis. CFFC, 155 Wn.2d at 835. Although the
county is not required to use a particular methodology, it must, at a minimum, use some
kind of scientific methodology. CFFC, 155 Wn.2d at 83'6-37. Growth boards require
counties to consider competing scientific information and other factors in a reasoned
process of analysis. CFFC, 155 Wn.2d at 835.
One Washington court has emphasized the importance of BAS in the setting of
adopting a critical areas ordinance. The HEAL court wrote:
While the balancing of the many [GMA] factors and goals could
mean the scientific evidence does not playa major role in the final policy in
some GMA contexts, it is hard to imagine in the context of critical areas.
The policies at issue here deal with critical areas, which are deemed
"critical" because they may be more susceptible to damage from
development. The nature and extent of this susceptibility is a uniquely
scientific inquiry. It is one in which the best available science is essential
to an accurate decision about what policies and regulations are necessary to
mitigate and will in fact mitigate the environmental effects of new
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development.
HEAL, 96 Wn. App. at 532-33.
A math teacher requires a student to demonstrate the manner in which she arrived
at her result in addition to showing the result. This requirement informs the teacher
whether the student thoroughly and correctly performed the calculation. The GMA has a
similar demand. The Act affords a county deference when reviewing the scientific
evidence, but the BAS must be included in the record and must be considered
substantively in the development of critical areas policies and regulations. HEAL, 96
Wn. App. at 532. Mere inclusion of scientific sources in a critical area ordinance is not
sufficient. HEAL, 96 Wn. App. at 531. To demonstrate that BAS has been included,
counties and cities should address the BAS on the record. WAC 365-195-915( I). A
'''written record'" need not be a discrete document but must provide an actual
explanation. Kittitas County, 172 Wn.2d at 158. In short, the county should show its
work.
Ferry County argues it considered all BAS about habitats and species that might
be considered important from a local perspective. It contends it reviewed the DFW's
PHS list, DFW Living with Wildlife Series; and a US Department of Fish and Wildlife e-
mail of January 26, 2005. The ordinance also lists other guides and letters from Karin
Divens that the county reviewed. Based on these sources, the county found no candidate
species or species of concern that have been identified as species of local importance.
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The county argues the inclusion of these legal and scientific authorities referenced in the
record fulfill its obligations under the GMA.
Ferry County inaccurately describes the science upon which it relied, and the
county disagreed or ignored DFW's science without developing or obtaining its own
valid scientific information. Therefore, we must uphold the GMHB's finding.
The bibliography Ferry County attached to its critical area ordinance separates the
sources upon which it relied for each section of the ordinance. Section 9.01-02
designates species and habitats of local importance and the bibliography lists six sources
for those sections. The bibliography for designating species and habitats of local
importance omits the Natural Resources Conservation Service Field Office Technical
Guide, the Soil Conservation Service manual, the National Cooperative Soil Survey, the
DFW Classification System for Priority Habitat, updated February 4, 1998, the DFW
Priority Habitat and Species Program, initiated 1989, DFW representative Karin Divens's
letters, and the transcription of the county's meeting with Karin Divens. Of the six
sources the county lists in this section, one is a statute and two are WAC regulations,
which are not considered scientific sources.
The only scientific source identified as supporting the critical area ordinance
section on habitat or species oflocal importance is Washington Department ofFish and
Wildlife Maps (Fish Planting). This is not a comprehensive source for designating and
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protecting wildlife and habitats in Ferry County. Nor did Ferry County explain how it
utilized the fish planting maps in creating the ordinance.
We could end our analysis here but we go further and discuss the other science
sources that Ferry County cites in support of other portions of the critical area ordinance.
Regulations direct a county to consider the Department ofFish and Wildlife's priority
habit and species lists, which are peer reviewed by wildlife scientists. WAC 365-190­
130(4 )(b). The county analyzed only 23 of the 31 species the DFW lists as occurring and
being locally important in Ferry County. The county's review did not include the bald
eagle, peregrine falcon, flammulated owl, common loon, fisher, gray wolf, grizzly bear,
or lynx. Ferry County provided no explanation for omitting a review of the 8 species.
Ferry County refused to list any of the 22 species that it placed on its 2011 review.
Most of the reasons the county offered for its refusal are not based in science. Those
non-scientific reasons are addressed later. The scientific reasons Ferry County offered
are addressed now.
Ferry County refused to list the Columbia spotted frog because chemical runoff
from residential and agricultural areas is insignificant, trout have a negative effect on the
frog, and there is no winter grazing. No scientific evidence in the record supports these
statements.
Ferry County refused to designate the western toad as locally important because
"losses occur even in pristine areas due to unknown causes." AR at 1506. Ferry County
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provided no scientific support in the record for this assertion.
Ferry County refused to designate the black-backed woodpecker because most
private property does not experience large high intensity fires or insect infestations,
factors DFW identifies as harmful to the woodpecker. Again, the record lacks scientific
support for the county's conclusion.
Ferry County refused to designate Vaux's swift, in part, because insecticide use in
Ferry County is limited. The county refused to designate the yellow-billed cuckoo that
possibly the bird may be extirpated in Ferry County. The record supports neither of these
statements.
Ferry County refused to designate the bull trout because it does not have critical
habitat in Ferry County. The county cites a US Fish and Wildlife e-mail dated January
26,2005, to support this conclusion, but the e-mail is not in the record. The only science
source in the bibliography critical area ordinance of locally important species is the
"DFW Maps (Fish Planting)." This source does not support a finding of an absence of
the bull trout in the county. To the contrary, DFW recommended Ferry County list the
bull trout and the department's map for bull trout identifies Ferry County as "a priority
area where the species is known to occur." AR at 664.
The county refused to designate Townsend's big-eared bat as a species of local
importance, in part, because no private demolition occurs in Ferry County. Again,
nothing in the record supports the county's statement.
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Ferry County refused to designate the Wolverine because ofits possible
extirpation in the contiguous United States. A 2001 report from the State of Washington
on its lynx recovery plan describes the population of wolverines in Washington as "low
density." AR at 672. Under a goal of the GMA, low density species should be protected.
The DFW's PHS lists wolverines as occurring in Ferry County.
In sum, contrary to DFW's recommendations, Ferry County refused to designate
any species or habitats as locally important. In support of its lack of designations, the
county uses DFW biologist Karin Divens's letter for support, in which she explains the
DFW cannot force the county to designate any species or habitats. Divens is correct that
DFW cannot force the county to designate any species or habitats. The county may
disagree with or ignore DFW's recommendations. But in choosing this course of action,
the county "necessarily ha[s] to unilaterally develop and obtain valid scientific
information." CFFC, 155 Wn.2d at 836. The county failed to develop or obtain any
valid scientific information supporting its refusal to designate any habitats or species as
locally important.
Substantial evidence supports the GMHB' s finding that the county failed to
include BAS in its designation of species and habitats of local importance. The county
may depart from BAS, but must do so using a reasoned process. This is the subject ofthe
final section of this opinion.
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Reasoned Departure
Ferry County denies it avoided BAS, but argues, assuming it did, its departure
resulted from a reasoned justification. The GMHB found Ferry County "failed to provide
a reasoned justification for departing from the Best Available Science." CP at 27. This
court reviews the GMHB's factual findings for substantial evidence. Substantial
evidence exists when there exists "a sufficient quantity of evidence to persuade a fair-
minded person of the truth or correctness of the order." Spokane County, 176 Wn. App.
at 564-65 (citation omitted).
Futurewise argues the county's departure from BAS must be based in science,
citing CFFC, 155 Wn.2d at 837. We disagree. The CFFC court analyzed whether Ferry
County departed from BAS using a reasoned process and found the county's process
insufficient because the county did not evaluate the science produced by Dr. McKnight or
compare his science with any other resources. CFFC, 155 Wn.2d at 837. The court
analyzed Ferry County's process for departing from BAS in scientific terms because the
county departed from BAS for scientific reasons. CFFC, 155 Wn.2d at 837. The court
subsequently clarified that the GMA does not require the county to follow BAS; rather, it
is required to include BAS in its record. Thus, a county may depart from BAS if it
provides a reasoned justification for such a departure. Swinomish Indian Tribal Cmty.,
161 Wn.2d at 431-32. Our court has declared, however, that departure from BAS in a
critical areas ordinance should be rare. HEAL, 96 Wn. App. at 532-33.
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What constitutes a sufficiently reasoned process for departing from BAS is poorly
defined in GMA jurisprudence. But reasoned means rational and supported by evidence.
In Swinomish Tribal Community, BAS supported riparian buffers to protect fish habitat in
agricultural areas, but those areas had been diked and drained as much as 100 years ago.
161 Wn.2d at 431. Skagit County departed from BAS because it would require the
county to restore habitats that no longer existed. The court upheld the county's
justification for departing from BAS because the GMA does not require counties to
enhance critical areas, only to protect them. 161 Wn.2d at 431. The proposed buffers
were inconsistent with the goals of the GMA.
This division of the Court of Appeals agreed Stevens County departed from BAS
for an insufficiently reasoned process in Stevens County, 146 Wn. App. 493. Stevens
County tied its classification of critical habitat to lands designated for protection by
federal or state rule making. We found Stevens County failed to comply with the GMA
because its critical areas ordinance removed the county from the role of considering
scientific information in a reasoned process of analysis. 146 Wn. App. at 514-15.
When departing from BAS, a county must again show its work. In Yakima County
v. E. Wash. Growth Mgmt. Hearings Bd., 168 Wn. App. 680, 693, 279 P.3d 434 (2012),
we affirmed the GMHB because the county failed to provide in the record a justification
for rejecting BAS with regard to stream buffers.
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Ferry County contends its departure from BAS was reasonable for various reasons.
The county argues that 4 of the 31 DFW designated species are not found in Ferry
County. The county argues it did not list two species because they are federally listed
and seven ETS species because they are being addressed in other revisions to the
county's ordinance. The record does not reflect any review or analysis of these species.
Like the Stevens County and Yakima County decisions, we find the county's lack of
analysis is not a reasoned justification. or process, which could justify departing from
BAS. Even if Ferry County had reviewed these species, their status as federally listed or
ETS species does not reflect any reason they should not also be designated as species of
local importance.
Ferry County next argues it departed from science because wetland and riparian
regulations and buffers already protect 11 species on the DFW list. But as Futurewise
argues, protection by other regulations is irrelevant. Otherwise the GMA's critical
habitat provisions are superfluous since state and federal rules already seek to protect
ETS species. More importantly, nothing in the record supports the county's assertion.
There is no evidence that the county analyzed regulations and determined existing
regulations were sufficient to protect these 11 species.
Ferry County argues it departed from BAS that recommended designating I
nineteen species because the land they inhabit is under the authority of the federal, tribal,
or state government, or the DFW did not list any occurrences ofthe species in Ferry I
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County. Futurewise argues the county has jurisdiction over developments that are not
forested practices on forested private land. The county's jurisdiction is not delineated in
the record. Assuming the county's assertion is accurate, the county still fails to offer a
reason for departing from BAS.
Karin Divens explained the lack of a reasoned justification behind relying on state
and federal protection in her July 2011 letter to the County Commission. AR at 1134.
As Divens noted, the jurisdiction of other sovereigns on Ferry County land does not
diminish the need for designating the species' habitats as locally important. By
relinquishing to other jurisdictions, Ferry County removes itself from the role of
considering scientific information in a reasoned process of analysis, which it cannot do.
Ferry County also refused to list some species because DFW's PHS list could not
confirm their breeding habitat. This assertion is not a reasoned justification because
breeding habitats are not the only habitats needing protection. DFW explained the other
reasons for protecting priority habitats in its PHS list:
Priority habitats are habitat types or elements with unique or
significant value to a diverse assemblage of species. A priority habitat may
consist of unique vegetation type (e.g., shrub-steppe) or dominant plant
species (e.g., juniper savannah), a described successional stage (e.g., old­
growth forest), or a specific habitat feature (e.g., cliffs).
AR at 657 (emphasis in original). The county failed to analyze these other reasons for
protecting their habitat. Again, a failure to analyze BAS does not constitute a sufficiently
reasoned process for departing from BAS. Stevens County, 146 Wn. App. at 514-15;
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Yakima County, 168 Wn. App. at 693. In addition, Ferry County pointed to the lack of
information as a reason for not designating these species and their habitats. In the
.absence of scientific evidence, a county should adopt a precautionary or no risk approach.
WAC 365-195-920. But even if the lack of science were a valid reason to not designate a
species, Ferry County provided no explanation for why, in particular, the breeding
locations of a species must be known in order to designate them as locally important.
Finally, Ferry County justifies its refusal to list some species because protection of
the species will negatively impact the entire economy of Ferry County. For support of
this contention, Ferry County emphasizes that only 18 percent of land within Ferry
County is privately owned. But nothing in the record analyzes how designating the
species could harm private ownership or the economy of Ferry County. The record does
not show that protecting any species will thwart any planned development. The record
does not show that protected habitats will interfere with the county's mining, logging or
other industries.
We want Ferry County to economically succeed but reject the implication that
protecting endangered wildlife and habitat is necessarily bad for the economy. The GMA
does not seek to preclude all development, but to manage development. Homes and other
structures may be built in a place and manner to protect wildlife. Mining and logging can
be perfermed with preservation of habitat in mind. For all we know, Ferry County could
promote its emerging tourism industry by conserving its wildlife.
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Substantial evidence supports the GMHB's finding that the county failed to
provide a reasoned justification for departing from the BAS.
CONCLUSION
We uphold the GMHB's December 2011 noncompliance order and reverse the
trial court's partial summary judgment order.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
,1~,~
Fearing, J.
WE CONCUR:
58