IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CLARK COUNTY, No. 86622-2-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION WESTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD; and FRIENDS OF CLARK COUNTY,
Respondents,
GRANITE CONSTRUCTION COMPANY; and BRP MINERALS LLC,
Appellants.
BIRK, J. — Under the State Environmental Policy Act (SEPA), chapter
43.21C RCW, Clark County (County) issued a determination of nonsignificance
(DNS) in connection with an application to amend the County’s comprehensive
plan to add a surface mining overlay (SMO) designation to four parcels. The
County later approved the amendment by Ordinance 2022-07-01(B) (the
Ordinance). Friends of Clark County (FoCC), a nonprofit corporation, challenged
the DNS and the Ordinance, arguing the SMO designation would have significant
environmental consequences that the County failed to recognize and evaluate.
The Western Washington Growth Management Hearings Board (Board)
determined the County had failed to comply with SEPA, and the Growth No. 86622-2-I/2
Management Act (GMA), chapter 36.70A RCW, and invalidated portions of the
Ordinance. We affirm the Board’s final decision and order.
I
On January 28, 2021, Granite Construction Company applied for a
comprehensive plan and zoning amendment to add a SMO designation to four
parcels of land in the County’s Chelatchie Bluff area, totaling approximately 330
acres of working forest lands. To meet state1 and county2 requirements to extend
the SMO designation, Granite submitted documentation of the mineral resource
potential of the land and the feasibility of mining operations. The documentation
showed existing habitat, hypothetical mining excavations that would strip surface
lands from the site, and included a transportation impact analysis discussing
proposed ways to transport the minerals to offsite locations.
Granite’s application included a SEPA environmental checklist. Because
Granite applied only to amend the comprehensive plan, and not to establish an
actual mine, it indicated in the checklist that the proposed action of amending the
plan to add the SMO designation would not have any significant environmental
impacts, such as upon erosion, air emissions, surface waters, alteration of
drainage patterns, removal of vegetation, contamination, noise, traffic, plants,
animals, fish, or marine life, and environmentally sensitive areas, wilderness,
rivers, and threatened or endangered species. Rather, any potential impacts
1 Washington law requires counties to classify mineral resource lands “based on geologic, environmental, and economic factors, existing land uses, and land ownership,” as detailed in the administrative code. WAC 365-190-070(3)(a). 2 The County’s comprehensive plan accordingly seeks to classify and
protect mineral resource lands.
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would be addressed with the future development or use proposal. The checklist
acknowledged the intent that the SMO designation “will be followed by an
application for a mining permit.”
The County’s responsible official determined that the proposed designation
was a nonproject action and made a threshold DNS, indicating no adverse
environmental issues were implicated. As a result, no environmental impact
statement (EIS) was prepared. The County adopted the designation by the
Ordinance on July 19, 2022.
FoCC sought review with the Board. FoCC argued that for purposes of the
SEPA checklist and threshold determination, the County was required to review
the environmental impacts not merely of the SMO designation itself, but also
potential future mining operations to the extent hypothesized in the application.
Granite and BRP Minerals LLC3 sought leave, and were allowed, to intervene in
the matter.
The Board found that the application “clearly demonstrate[d] that the nature
and scope of the planned mining activity that the SMO overlay was to facilitate was
known to a high level of detail.” The Board concluded that “given the high level of
detail that was available at the time the application for the SMO was made, ‘the
principal features of a proposal and its environmental impacts’ could be reasonably
identified and it was clear error for the County to defer a more detailed analysis of
environmental impacts to the project application stage.” The Board found that the
3 BRP Minerals LLC owns the mineral rights for the 330 acre property subject to the SMO designation.
3 No. 86622-2-I/4
Ordinance “places at risk 330 acres of environmentally sensitive lands by
authorizing mineral extraction without an adequate analysis and consideration of
the potential adverse environmental impacts of this action.” The Board concluded
that the continued validity of the Ordinance substantially interfered with goal 10 of
the GMA, the protection of the natural environment, RCW 36.70A.020(10), and
invalidated the Ordinance.
The County sought review of the Board’s final decision and order in superior
court. BRP and Granite also sought review. The superior court consolidated the
petitions, and certified the petitions for direct review in this court. See RCW
34.05.518.
II
We review a hearings board decision under the Administrative Procedure
Act (APA), chapter 34.05 RCW. Feil v. E. Wash. Growth Mgmt. Hr’gs Bd., 172
Wn.2d 367, 376, 259 P.3d 227 (2011). We look at the record before the Board
and review the Board’s legal conclusions de novo. City of Redmond v. Cent. Puget
Sound Growth Mgmt. Hr’gs Bd., 136 Wn.2d 38, 45-46, 959 P.2d 1091 (1998). The
burden is on the party asserting the error to demonstrate that the Board
erroneously interpreted or applied the law, or that the order is not supported by
substantial evidence. RCW 34.05.570(1)(a); King County v. Cent. Puget Sound
Growth Mgmt. Hr’gs Bd., 142 Wn.2d 543, 553, 14 P.3d 133 (2000). We review the
Board’s order for substantial evidence, meaning a sufficient quantity of evidence
to persuade a fair-minded person of the truth or correctness of the order. Thurston
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County v. W. Wash. Growth Mgmt. Hr’gs Bd., 164 Wn.2d 329, 341, 190 P.3d 38
(2008).
“[C]omprehensive plans and development regulations, and amendments
thereto, adopted under [the GMA] are presumed valid upon adoption.” RCW
36.70A.320(1). However, this presumption can be rebutted where the Board finds
evidence of a clear error based on the requirements of the GMA. RCW
36.70A.320(3). An action is “ ‘clearly erroneous’ ” if the Board is “ ‘left with the firm
and definite conviction that a mistake has been committed.’ ” Cent. Puget Sound,
142 Wn.2d at 552 (quoting Dep’t of Ecology v. Pub. Util. Dist. No. 1, 121 Wn.2d
179, 201, 849 P.2d 646 (1993), aff’d, 511 U.S. 700, 114 S. Ct. 1900, 128 L. Ed. 2d
716 (1994)). The deference afforded to county planning actions supersedes
deference granted by the APA, so long as the county planning action meets and
is consistent with the goals and requirements of the GMA. Quadrant Corp. v. Cent.
Puget Sound Growth Mgmt. Hr’gs Bd., 154 Wn.2d 224, 238, 110 P.3d 1132 (2005).
Where a board acknowledged it was applying the deferential standard of review in
its ruling, and the facts do not show the board failed to apply the standard of review
correctly, the board decision is entitled to deference when challenged. King
County v. Friends of Sammamish Valley, 3 Wn.3d 793, 803, 556 P.3d 132 (2024).
The Appellants assert that the Board failed to afford the County the required
deference regarding its threshold determination. However, the Board stated that
it was applying the deferential standard of review in its final decision. Thus, the
Board’s decision is entitled to deference unless substantial evidence does not
show that the County’s threshold determination is clearly erroneous.
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III
The Appellants argue that the Board erroneously interpreted and applied
the SEPA timing rules in WAC 197-11-055(1) and (2), which state that the SEPA
process shall be integrated “at the earliest possible time,” -055(1), and that the
threshold determination shall be prepared “when the principal features of a
proposal and its environmental impacts can be reasonably identified,” -055(2). We
disagree.
SEPA requires the preparation of an EIS on any proposal or action “having
a probable significant, adverse environmental impact.” RCW 43.21C.031(1); see
WAC 197-11-300(2). “Probable” is not a strict statistical probability test, but
instead means “likely or reasonably likely to occur, as in ‘a reasonable probability
of more than a moderate effect on the quality of the environment’ (see WAC 197-
11-794).” WAC 197-11-782. An EIS shall be prepared “at the earliest possible
point in the planning and decision-making process,” WAC 197-11-055(2), and
“early enough so it can serve practically as an important contribution to the
decision making process and will not be used to rationalize or justify decisions
already made,” WAC 197-11-406.
Washington case law is clear that an EIS is required if, based on the totality
of the circumstances, future development is probable following an action and if that
development will have a significant adverse effect upon the environment. In
Friends of Sammamish Valley, the court reaffirmed that a county must look toward
anticipated future projects when conducting an environmental review to determine
any likely environmental impacts. 3 Wn.3d at 821. Where the county had issued
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a DNS, id. at 799, the court held the county failed to consider the potential
environmental impacts of a zoning amendment, and improperly deferred
environmental review to the individual project action stage, id. at 818. The
Supreme Court upheld the board’s finding that the SEPA checklist improperly
“failed to address the full range of probable impacts of the future projects that the
Ordinance would allow.” Id. at 817-18. The record disclosed “current, specific
developments and land use changes that are probable to result from the proposed
action.” Id. at 821. This was based on the ordinance creating “opportunities” for
new businesses to open and existing ones to expand, where, with existing
businesses already operating, it was “entirely predictable” that under the
ordinance, more would open. Id. at 821-22 & n.22. The court upheld the Board’s
finding that comprehensive SEPA review was required to evaluate “ ‘the impact of
the change in allowable uses.’ ” Id. at 822.
In King County. v. Washington State Boundary Review Board, there was
“no existing proposal to develop” land sought to be annexed by a municipality,
beyond the “preferred use” of “ ‘[s]ingle family residential’ ” and alternately a golf
course community. 122 Wn.2d 648, 656, 860 P.2d 1024 (1993). The court held
that “a proposed land-use related action is not insulated from full environmental
review simply because there are no existing specific proposals to develop the land
in question or because there are no immediate land-use changes which will flow
from the proposed action.” Id. at 664. An EIS is “required if, based on the totality
of the circumstances, future development is probable following the action and if
that development will have a significant adverse effect upon the environment.” Id.
7 No. 86622-2-I/8
at 663. When there are uncertainties in future development plans, these only “limit
the scope of an EIS to ‘the level of detail appropriate to the scope of the nonproject
proposal.’ ” Id. at 664 n.10 (quoting WAC 197-11-442(2)). “Most important[]” to
the Supreme Court’s analysis was the checklists indicating “an intent” to develop
the properties. Id. at 665. The Supreme Court held, with no proposals more
concrete than “ ‘[s]ingle family residential’ ” or alternately a golf course community,
it was clear that either would have “major impact” on such things as water quality,
wetlands, and wildlife habitat. Id. The court rejected the argument that a DNS was
proper because consideration of the environmental effects would have been
premature and speculative. Id. at 658, 667.
This court held similarly that future development had to be considered at
the threshold determination in Spokane County v. Eastern Washington Growth
Management Hearings Board, 176 Wn. App. 555, 581, 309 P.3d 673 (2013), and
Lands Council v. Washington State Parks Recreation Commission, 176 Wn. App.
787, 805, 309 P.3d 734 (2013). In Spokane County, a business proposed
amendments to the county’s comprehensive plan that would change a property’s
zone designation to commercial. 176 Wn. App. at 563. The county concluded an
EIS was not required because the proposal presented no probable significant
adverse impact, and left much of the required environmental analysis to be
determined if site specific developments were proposed. Id. The court found that
the business “clearly intended to reopen and expand its market and bistro under
the proposal” and the proposal also would have allowed the business to be
replaced with a variety of other commercial uses. Id. at 579-80. The court held
8 No. 86622-2-I/9
that either result “could significantly affect environmental quality,” and the hearings
board “properly recognized that the checklist could not postpone environmental
analysis to the project review stage because [the proposal] approved the property’s
existing nonconforming use, thereby affecting the environment” even if the
business never pursued subsequent project action. Id. at 580. The court affirmed
the hearings board’s finding of SEPA noncompliance. Id. at 581.
In Lands Council, the state parks and recreation commission classified a
279 acre proposed alpine ski area as recreational without preparing an EIS, and
stated the classification option allowed the proposal “ ‘to develop one lift and seven
ski runs’ ” in the area. 176 Wn. App. at 792. The court held the failure to prepare
an EIS at the time of the classification decision violated SEPA, because at the time
of the decision, the principal features of expanding the ski area and its
environmental impacts could be reasonably identified, and an EIS would have
made an important contribution to the decision whether the ski area should have
been expanded. Id. at 805. The court rejected the commission’s argument that
the most rational time for an EIS was after the director’s final decision, because
the effects of the expansion were already known, including the proposed number
of lifts and runs, and the only uncertainty was whether the precise location of them
would be adjusted by the director at the final review stage. Id.
Here, Granite noted in its SEPA checklist its undisputed intent to mine the
site if the activity is ultimately permitted. This is directly analogous to Boundary
Review Board, Spokane County, and Lands Council. The stated intent to mine a
specific site is more concrete than the potential future businesses forecast in
9 No. 86622-2-I/10
Friends of Sammamish Valley, and more concrete than the intended future uses
in Boundary Review Board, making the case for SEPA review including
consideration of future mining activity more compelling. Where a future project
action is known, SEPA requires the agency to address the likely environmental
impacts the project would cause, and requires it be addressed at the earliest time
possible. At the time the County adopted the Ordinance, the principal features of
the SMO designation allowing the site to be mined and its environmental impacts
could be reasonably identified, and an EIS would have made an important
contribution to the decision. Under WAC 197-11-055 and WAC 197-11-406, an
EIS should have been prepared for the decision to add an SMO designation to the
parcels. The Board did not erroneously interpret or apply WAC 197-11-055.4
In addition to their arguments about the timing of SEPA review, the
Appellants assert that as a factual matter the Board’s finding that the County had
a “ ‘highly detailed proposal’ ” is not supported by substantial evidence. In the
SEPA context, the critical question is whether there is substantial evidence which
supports the Board’s conclusion that the County had before it details indicating
impacts triggering SEPA review under WAC 197-11-055(2). Here, there was
substantially more than a mere possibility that the land in question would be mined
following the SMO designation. The environmental checklist submitted by Granite
4 The Appellants argue that any adverse environmental impact was speculative at the time of the amendment, and it is not yet probable mining activity will occur because future permitting will be required. However, “[t]he fact that proposals may require future agency approvals or environmental review shall not preclude current consideration, as long as proposed future activities are specific enough to allow some evaluation of their probable environmental impacts.” WAC 197-11-055(2)(a)(i).
10 No. 86622-2-I/11
indicates its undisputed intent to mine the property. And, it is undeniable that future
mining activity would have a potential significant adverse impact on the
environment.5 At oral argument, Granite agreed there was “no doubt” that
extracting a commercially useful amount of rock from 300 acres of existing forest
land would have an environmental impact. Wash. Ct. of Appeals oral arg., Clark
County v. W. Wash. Growth Mgmt. Hr’gs Bd., No. 86622-2-I (Jan. 9, 2025), at 8
min., 2 sec. to 8 min., 17 sec., https://tvw.org/video/division-1-court-of-appeals-
2025011216/?eventID=2025011216. Substantial evidence supported the Board’s
finding that the detail put forward in the application showed the principal features
of future mining activity having significant environmental impacts for purposes of
SEPA review under Friends of Sammamish Valley and Boundary Review Board.
IV
The Appellants argue the Board erroneously interpreted or applied RCW
36.70A.302(1) when it invalidated the Ordinance. We disagree.
A hearings board may determine that part or all of a comprehensive plan or
development regulations are invalid if the board “[m]akes a finding of
noncompliance and issues an order of remand,” includes in the final order a
determination “that the continued validity of part or parts of the plan or regulation
5 The Appellants argue that the Board “relied heavily on the non-project
traffic impact analysis, and assumed the posited worst-case scenario would occur.” The Board pointed to that aspect of the traffic study, but this was in giving examples of information presented to the County showing reasonable identification of principal features having probable environmental effects. The Board’s decision did not rest on a particular amount of anticipated traffic, but rather its conclusion that the range of effects under consideration ran beyond the SMO designation to the mining activities intended.
11 No. 86622-2-I/12
would substantially interfere with the fulfillment of the goals of” the GMA, and
specifies the part or parts of the plan that are determined invalid and the reasons
for the invalidity. RCW 36.70A.302(1). The GMA’s goals, relevant here, include:
“Protect and enhance the environment and enhance the state’s high quality of life,
including air and water quality, and the availability of water.” RCW 36.70A.020(10).
If the board determines that a plan or regulation constitutes a “major violation of
the GMA, the growth board has the option of determining that the plan or regulation
is invalid.” Town of Woodway v. Snohomish County, 180 Wn.2d 165, 175, 322
P.3d 1219 (2014), overruled in part on other grounds by Yim v. City of Seattle, 194
Wn.2d 682, 451 P.3d 694 (2019).
Generally, a hearings board may not declare a plan invalid based solely on
a violation of SEPA. Heritage Baptist Church v. Cent. Puget Sound Growth Mgmt.
Hr’gs Bd., 2 Wn. App. 2d 737, 759, 413 P.3d 590 (2018). Here, the Board’s final
decision and order noted that noncompliance with SEPA did not automatically
equate to frustration of the GMA’s environmental goals. The Board invalidated the
Ordinance because it found that the Ordinance placed at risk 330 acres of
environmentally sensitive lands by authorizing mineral extraction without
consideration of the potential adverse environmental impacts, and the property
included “geologically hazardous areas, priority and non-priority riparian areas,
critical aquifer recharge areas, wetlands, headwaters of anadromous fish bearing
waterways and other critical areas, as well as being in the Pacific Flyway.”
The Board’s supported findings of fact support its conclusion that the DNS
was inadequate under SEPA, and that the Ordinance would substantially interfere
12 No. 86622-2-I/13
with the GMA’s goal of protecting the environment. Thus, the Board appropriately
V
We conclude the Board afforded the proper deference to the County, the
Board did not misapply WAC 197-11-055, and the record supports its conclusion
that the County’s threshold determination was clearly erroneous. We affirm the
Board’s final decision and order invalidating the Ordinance.
WE CONCUR: