BEFORE THE WESTERN WASHINGTON GROWTH
MANAGEMENT HEARINGS BOARD
PROTECT THE PENINSULA’S FUTURE and, )
WASHINGTON ENVIRONMENTAL COUNCIL )
) No. 00-2-0008
)
Petitioner, )
) FINAL DECISION
v. ) AND ORDER
CLALLAM COUNTY, )
)
)
Respondent, )
________________________________________________)
Clallam County adopted its initial critical areas ordinance (CAO) on June 16, 1992. By its terms the 1992 ordinance expired within one year after completion of the County’s comprehensive plan (CP). On June 16, 1995, Clallam County published its final environmental impact statement (FEIS) (Ex. 317) and thereafter adopted its CP.
The Board of County Commissioners (BOCC) then appointed a review committee to make recommendations for an updated CAO. The committee held workshops and a public hearing and ultimately issued a recommendation to the BOCC on July 30, 1996 (Ex. 317 Attachment B). During the next two years the BOCC held “worksessions” on the draft ordinance, but did enact annual extensions to the 1992 CAO
On November 25, 1998, the County issued a determination of nonsignificance (DNS) for the proposed replacement of the 1992 CAO. The DNS adopted several existing environmental documents.
On December 29, 1998, the BOCC voted to adopt a new CAO effective January 24, 1999. Because a new Commissioner was seated in January 1999, the effective date was suspended and ultimately on March 9, 1999, the recently adopted ordinance was repealed. After another series of worksessions and public hearings and a remand to staff for revisions, the BOCC adopted Ordinance #681 on December 28, 1999, along with accompanying findings and conclusions (Ex. 99). On March 1, 2000, Petitioners filed their petition for review (PFR). They filed an amended PFR on April 3, 2000. After extensions to allow the parties more time to mediate issues, a prehearing conference was held and a prehearing order (PHO) was issued August 4, 2000. Requests of Petitioners to supplement the record were decided by orders dated September 20, 2000, and October 10, 2000. A hearing on the merits (HOM) was held in Port Angeles on October 24, 2000.
At the beginning of the hearing the
County stipulated to a noncompliance remand because of its failure to enact
buffers for Type 5 streams. CCC 27.12.035(9) was also acknowledged by the
County as being inconsistent with other provisions of the CAO. We accept the County’s request to remand
both matters because of noncompliance.
Pursuant to RCW 36.70A.320(1), Ordinance #681 is presumed valid upon adoption.
The burden is on Petitioners to demonstrate that the action taken by Clallam County is not in compliance with the requirements of the GMA. RCW 36.70A.320(2).
Pursuant to RCW 36.70A.320(3), we “shall find compliance unless [we] determine that the action by [Clallam County] is clearly erroneous in view of the entire record before the board and in light of the goals and requirements of [the GMA].” In order to find the County’s action clearly erroneous, we must be “left with the firm and definite conviction that a mistake has been made.” Department of Ecology v. PUD 1, 121 Wn.2d 179, 201 (1993). Additionally the issuance of a DNS is reviewable under the clearly erroneous standard. Mahr v. Thurston County 94-2-0007.
Here, Clallam County issued a DNS on November 25, 1998, and adopted several existing environmental documents under WAC 197-11-630. Relying upon WAC 197-11-600(3)(b), Petitioners claimed that the replacement of the 1992 CAO involved substantial changes “likely to have significant adverse environmental impacts.” The County claimed that the added protections of the 1999 CAO were in fact more protective of critical areas. After reviewing this record we find that the Petitioners have not sustained their burden of showing that adoption of the DNS failed to comply with the State Environmental Policy Act provisions relating to GMA.
At the HOM the County raised an issue not presented in its responsive brief. The County claimed that the issue of wildlife habitat areas was not properly before us since the Petitioners had only challenged the riparian buffer widths, which the County adopted only for protection of fish species and their habitat. The County claimed that other provisions of the CAO dealt with habitat conservation areas (HCAs) and that much of Petitioners’ claims of inadequate buffer widths were premised upon inclusion of “terrestrial species considerations” which added significantly to the buffer widths recommended by the Washington Department of Fish and Wildlife management recommendations for Washington’s priority habitats (December 1997) (PHS) (Ex. 691).
The scope of the HOM is governed by RCW 36.70A.290(1). The PFR must include a “detailed statement of issues.” From there, a Growth Management Hearings Board “shall not” include any “advisory opinions” outside of the detailed statement of issues except “as modified by any prehearing order.”
In the instant case the County had ample opportunity to raise this claim long before presenting it as part of its oral argument in the HOM. Since the claim was not briefed, we consider it abandoned. WAC 242-02-570(1).
Moreover, Issues 1 and 2 of the PHO related to the questions of whether the stream buffer provisions of the CAO included best available science (BAS) and/or protected critical areas (CAs). Those issues are found both in the PFR and the amended PFR. The issues, by their very language, were not limited to inclusion of BAS and protection for only fish and aquatic species habitat, but included all “wildlife habitat conservation areas” under RCW 36.70A.030(5) and .060(2). We decline to limit consideration in this case to only aquatic species’ buffer requirements.
Petitioners’ major challenge to the CAO was premised upon the assertion found at p. 5 of their opening brief and p. 6 of their reply brief; that the PHS “is the authoritative source for stream buffer width recommendations based on best available science.” Petitioners concluded that unless a buffer width recommended by the PHS was adopted, compliance with the GMA would be impossible because the buffer widths in the PHS are definitionally BAS.
We are aware of some commentators’ belief that our earlier BAS decisions have reached that same result. Those commentators, and Petitioners here, have failed to accurately read the FDOs of our previous cases and have failed to understand what was and was not contained in the record that we reviewed. The cases where we found noncompliance with the BAS requirement involved records that included no other “science” than the PHS and/or involved situations where the local government simply ignored BAS in favor of the conclusion it wanted to reach. We have never held, nor does the GMA require, that only the PHS provides BAS for stream buffer widths. We specifically reject Petitioners’ contention that “best” under RCW 36.70A.172(1) includes one, and only one, scientific document. Rather we reiterate our conclusion first stated in CCNRC v. Clark County 96-2-0017 (12-6-96) that:
“’Available’ means not only that the evidence must be contained in the record, but also that the science must be practically and economically feasible. ‘Best’ means that within the evidence contained in the record a local government must make choices based upon the scientific information presented to it. The wider the dispute of the scientific evidence, the broader the range of discretion allowed to local governments. Ultimately, a local government must take into account the practical and economic application of the science to determine if it is the ‘best available’.”
Rather, with the exceptions set forth in later in this order, the GMA requirements of RCW 36.70A.172(1) envision a process and decision identical to the one engaged in by Clallam County.
As disclosed by this record (Ex. 12) Clallam County contains a very diverse landscape with significant geographical differences. As noted in the exhibit:
“This diversity ranges between the low evaluation, flat areas in the Dungeness Valley where the majority of the streams have been straightened and significantly altered by past land use practices, and [are] in need of regaining lost functions, to the central part of the County wherein the streams are associated with ravines that are more or less functional and not as altered, to the western part of the County where the small portion of the non-forestry land uses are clustered along major river valleys.”
In addition to the PHS, Clallam County incorporated into its record and its analysis a December 19, 1996, document prepared by Management Technology entitled An Ecosystem Approach to Salmonid Conservation (ManTech) (Ex. 714), a September 1997, document entitled Washington Department of Natural Resources Final Habitat Conservation Plan (Ex. 670), a December 5, 1997, document entitled Policy of Washington Department of Fish and Wildlife and Western Washington Treaty Tribes Concerning Wild Salmonids (WSP) (Ex. 613), and an April 29, 1999, draft of the Forests and Fish Report (Ex. 680). The County also took into account its August 1995 Assessment of Wetland Functions and Wetland Management Guidance for the lower Dungeness area and Squim Bay watersheds and the 1992 Department of Ecology Stormwater Management Manual. The CAO Review Committee’s analysis and recommendations were also considered.
In a June 25, 1999, worksession with the BOCC (Ex. 1005) staff summarized the various scientific positions in an oral presentation and specifically included Ex. 452 in its “functions and values” buffer analysis. The County, under this record, had before it all the relevant BAS, engaged in a wide-ranging public participation process, and analyzed the relevant BAS and goals and requirements of the Act.
Ordinance #681 generally requires 150-foot “aquatic habitat conservation area” buffers for both Type 1 and Type 2 waters, 100 feet for Type 3, and 50 feet for Type 4. Other provisions of the CAO provide additional protections. Non-riparian wildlife HCAs and wildlife habitat units and migration corridors were designated in the CP. Additional protections involved designation of wetlands, geologically hazardous areas (GHAs), and frequently flooded areas (FFAs) which provide for additional buffer space, mitigation plans, and requirement of compliance with DOE Stormwater Management Manual. The County’s classification system included classification of any streams involving fish as Type 1, 2, or 3 waters. The County included a provision that adopts buffer widths for endangered species as those are adopted by the National Marine Fisheries Service. The CAO also required some degree of restoration of previously damaged buffer areas as a condition of permit issuance.
It is important to recognize, as
the County did, that the PHS involves only recommendations and not
requirements, and is based upon the department’s analysis of a variety of
studies proposing a variety of buffer widths for a variety of CA functions and
values. We note that DFW in an Amicus brief dated October 25, 2000,
in Diehl v. Mason County, #95-2-0073, commented on Mason County’s
establishment of 150-foot buffers for Type 1-3 waters noting that while the
buffer width did not fully meet the PHS recommendations they were “within the
range of distances reported in the scientific literature” and also did “satisfy
the basic recommendation for salmonids found in the wild salmonid policy
(WSP).”
GMA is fundamentally based upon local governments making local planning decisions as long as the parameters established in the Act are followed. Except in the limited instances noted below, Clallam County has done an excellent job of recognizing, modifying, synthesizing, and applying BAS to its local conditions.
We specifically find that, except as to the issues set forth in the
remainder of this order, Petitioners have failed to sustain their burden of
showing that Clallam County has failed to comply with the Act.
In carving its exclusions and exemptions from the ordinance, however,
Clallam County failed to carry through with BAS and its reasoned analysis. Initially, the County decided to create a
separate category of reduced buffer widths for what it termed “minor new
development.” These reduced buffers
included 35 feet for Type 4 waters, 50 feet for Type 3 waters, 65 feet for Type
2 waters, and a variety of buffer widths from a low of 35 feet to a high of 150
feet for Type 1 waters depending upon their designations under the existing
SMP.
CCC 27.12.900(37) sets forth three separate definitions of “minor new
development.” First, the reduced
buffers applied to “construction or placement of a single family dwelling and
associated appurtenances” which could include a garage, deck, driveway,
utilities, or fence. The definition also provides that each structure (house, garage, driveway, deck, fence) must have a footprint
of less than 4,000 square feet. An
“associated home enterprise” is also considered “minor.” Additionally, any grading not exceeding 250
cubic yards and any clearing not exceeding 20,000 square feet is defined as
“minor.”
The second subsection of the definition provides that reduced buffers
apply to “construction and practices normal or necessary for farming,
irrigation, and ranching activities, including agricultural service roads and
utilities.” Construction of an
agricultural building of less than 4,000 square feet is “minor” as are
irrigation channels, pumping facilities, and headgates. Feedlots, processing plants, alteration of
contour of wetlands or streams other than from normal cultivation are not
considered “normal or necessary farming or ranching activities.”
Finally, minor development is also defined as “clearing, grading, or
filling less than one acre.”
There is simply no science in the record to support reduced buffers for
the type of activities defined in this ordinance as “minor new
development.” Clallam County must use
BAS in determining whether “minor” development should be excluded from full
buffer width requirements. This record
contains no such analysis. A 4,000
square foot single family dwelling unit with a 4,000 square foot garage, a
4,000 square foot deck, a 4,000 square foot shed, etc., could not in any way be
considered minor, even if BAS supported a reduction of buffer widths for one
such building to the exclusion of the others.
Likewise as is discussed under the ongoing agricultural activities
exemption, while the ordinance defines “agriculture” in a way that involves
primarily devoted to production with long-term commercial significance, the
ordinance does not define farming, irrigation, or ranching activities, nor
agricultural activities. The “minor new
development” provisions of Ordinance #681 do not comply with the Act.
We also find that reducing the buffers for “minor new development”
found in CCC 27.12.315(1) to any widths smaller than those adopted for “major”
activities as well as any new development within 50 feet of Type 5 waters,
substantially interferes with Goal 10 and 14 of the Act and are determined to
be invalid under the test set forth in RCW 36.70A.302(1).
CCC 27.12.025(7) “recognizes legally established, preexisting land uses
and developments.” Any “maintenance,
expansion, or change” must be consistent with CCC 27.12.040. CCC 27.12.040 states that all uses,
including structures lawfully established prior to the ordinance’s effective
date may be continued. The section then
goes on to state, in a somewhat confusing fashion, that “any development
regulated by this chapter to alter, expand, replace, or reconstruct, or
otherwise increase the nonconformity” of the preexisting use located within the
CA or buffer that “does not meet the standards” of the ordinance shall be
“reviewed for compliance.” Frankly, we
are mystified as to the meaning of that section and find that it does not
comply with the Act’s requirement to plainly set forth what is to be
accomplished by the DR. The
subparagraphs of .040 do little to clarify the situation or provide
compliance. (1) allows “expansions” or
“minor changes” that must conform to the DR “in the best way possible,” although they “may be allowed” even if they
do not conform to the DR standards.
Proposals “that cannot meet the provisions of this subsection shall
require a variance or reasonable use exception approval, as necessary.” (2) allows “repair, reconstruction, or
substantial improvements within landslide hazard or floodway areas that conform
to the current ordinance” to the maximum extent possible to avoid negative
impacts. The County must more clearly
define what it means in this section.
A County must regulate preexisting uses in order to fulfill its
statutory duty to “protect critical areas” under RCW 36.70A.060(2). GMA requires any exemptions for pre-existing
use to be limited and carefully crafted.
FOSC v. Skagit County 96-2-0025 (FDO 1-3-97) (Skagit).
Because of the significant environmental impact of ongoing agricultural
activities, the GMA does not allow such activities to be completely
exempt. Skagit determined that
balancing the goals and requirements of the Act as to ongoing agricultural
activities could only be done for designated agricultural resource lands (ARL)
under RCW 36.70A.170, and not generally where any agricultural activity would
be allowed. CCC 27.12.035(7) exempting
“existing and ongoing agricultural activities” suffers from all of the
deficiencies pointed out in Skagit.
The County noted that it only had approximately 7,500 acres of
designated ARL. Thus, the County
claimed that the exemption would not significantly impact CAs. While we might disagree that 7,500 acres of
non-protection of CAs in Clallam County would not be significant, an important
aspect of exemption (7) is that it is not limited to designated ARL. The exemption allows any “agricultural
activity” lawfully operated prior to the effective date of the ordinance. While presumably the entire 7,500 acres of
designated ARL would qualify, so would potentially thousands of other
acres. The County has no way of knowing
the extent of the exemption’s coverage particularly given the lack of
definition of “agricultural activities.”
We specifically find that the exemption fails to comply with the
Act. As applied within any buffer area
established under the ordinance for “major” new development, as well as within
50 feet of any Type 5 stream, where new construction or expansion of any
agriculture activity is allowed, the ordinance substantially interferes with
Goal 10 and Goal 14 (RCW 36.70A.480) and is declared invalid under the test in
RCW 36.70A.302(1).
CCC 27.12.035(8) allows an exemption for normal repair and maintenance
of certain uses, provided that no expansion take place. Of particular concern are the exemption for
“farm ponds,” “manure lagoons,” and “livestock water ponds.” The only BAS is this record relating to
those type of operations recommends a buffer of at least 200 feet for “ponds”
and 600 feet for “manure lagoons.”
Because of the significant adverse environmental impacts created by such
uses, total exemption from regulation, even for repair and maintenance, fails
to comply with the Act. The exemption
does not, however, allow expansion or new construction and thus does not
substantially interfere with the goals of the Act.
CCC 27.12.035(10) allows “replacement, operation, or alternation” of
utility, gas, and telephone lines and facilities, provided that in FFAs the CA
standards for those areas apply. At p.
32 of the County’s brief in discussing this exemption, the County noted that it
was “restricted to existing utilities in critical areas” and “only applies to
existing facilities, any new structure would have to be a replacement.” Nonetheless, the first word in exemption
(10) is “replacement” which is not defined in the ordinance, but which
certainly could allow a completely new facility. The exemption does not comply
with the GMA because it does not adequately protect CAs other than FFAs and
allows both replacement and alternation which could involve significant impacts
to CAs. We do not find, however, that
substantial interference with the goals of the Act has been shown as to this
exemption.
CCC 27.12.715 allows certain buffer averaging and variances under the
very limited conditions specified in CCC 27.12.725 and that also comply with
the standards set forth in CCC 27.12.730.
We agree with the County’s stipulation that the administrative variance
and hearing examiner variance criteria found in .715(2)(3) should
cross-reference the variance standards specified in CCC 27.12.725. The essence of the buffer averaging as set
forth in these three sections of the ordinance is that “no net loss of the
total buffer area” be allowed and that no particular buffer width be reduced
more than 25% at any one point.
Petitioners have failed to sustain their burden of showing
noncompliance, except as to the necessity of cross- referencing CCC 27.12.725.
Petitioners finally contended that various sections of the CAO were
inconsistent with provisions of the County’s SMP. Specifically, CCC 27.12.315(Table 6) was challenged. That section (table) is covered by our
finding of noncompliance and substantial interference with regard to “minor new
development” reduced buffers. Since
CCC 27.12.010 directs that the CAO provisions are in addition to the SMP, we
find that Petitioners have failed to sustain their burden of showing
inconsistency between the CAO and the SMP, except as previously noted.
ORDER
We find that the County has failed to comply with the Act in the
following areas:
In order to comply with the Act the County must remedy items 1, 2, and 6,
within 90 days of the date of this order and must remedy the deficiencies found
in items 4, 5, and 6, within 180 days of the date of this order.
We find the following provisions substantially interfere with Goal 10
and/or Goal 14 of the Act and are declared invalid:
Findings of Fact pursuant to RCW 36.70A.270(6) are adopted and attached as Appendix I and incorporated herein by reference. Findings of Fact and Conclusions of Law pursuant to RCW 36.70A.302(1)(b) are adopted and attached as Appendix II and incorporated herein by reference.
This
is a Final Order under RCW 36.70A.300(5) for purposes of appeal.
Pursuant
to WAC 242-02-832(1), a motion for reconsideration may be filed within ten days
of issuance of this final decision.
So ORDERED this 19th day
of December, 2000.
WESTERN
WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD
_____________________________
William
H. Nielsen
Board
Member
_____________________________
Les
Eldridge
Board
Member
_____________________________
Nan
A. Henriksen
Board
Member
Appendix I
Findings of Fact
Pursuant to RCW
36.70A.270(6)
Appendix II
Findings
of Fact and Conclusions of Law
Pursuant
to RCW 36.70A.302(1)(b)
Conclusions
of Law