Nisqually Delta Ass'n v. City of DuPont

696 P.2d 1222, 103 Wash. 2d 720
CourtWashington Supreme Court
DecidedMarch 7, 1985
Docket49409-6
StatusPublished
Cited by57 cases

This text of 696 P.2d 1222 (Nisqually Delta Ass'n v. City of DuPont) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nisqually Delta Ass'n v. City of DuPont, 696 P.2d 1222, 103 Wash. 2d 720 (Wash. 1985).

Opinions

Dolliver, C.J.

Plaintiffs Nisqually Delta Association and Washington Environmental Council appeal the Superior Court judgment affirming the approval by the Shorelines Hearings Board (SHB) of shoreline substantial development and conditional use permits for the proposed forest products export facility of defendant Weyerhaeuser Company (Weyco) to be built within the city of DuPont.

Plaintiffs raise narrow procedural issues involving notice requirements under the State Environmental Policy Act of 1971, RCW 43.21C (SEPA); the Shoreline Management Act of 1971, RCW 90.58 (SMA); compliance with the Shorelines Master Program of the City of DuPont, adopted pursuant to the SMA; and admissibility of certain evidence at the SHB hearing. We find no significant procedural irregularities and, therefore, affirm the judgment of the trial court and the SHB.

The city of DuPont is in Pierce County near the northern edge of Thurston County. It is within the Nisqually Delta, an area designated by the SMA as being a shoreline of "statewide significance". RCW 90.58.030(2)(e)(ii)(A). The City is, however, to the north of, and outside, the Nisqually National Wildlife Refuge area. The site of the proposed export facility is within the urban classification of the City of DuPont's Shorelines Master Program (DSMP), located on land once owned by E. I. duPont DeNemours & Company, Inc. (Dupco). Dupco manufactured explosives on a [723]*723portion of the tract (1,200 acres) from 1909 to 1975, and shipped explosives from an adjacent dock. Fort Lewis used and continues to use approximately 600 acres of the site as a training area, sanitary landfill, and rifle range.

In 1976, Weyco proposed construction of an export facility at DuPont for shipping its forest products. Weyco now owns approximately 3,200 acres within the city. The proposed facility would occupy approximately 250 of those acres and include the following: 140- by 1,320-foot concrete dock with loading equipment; 57- by 500-foot concrete causeway; marshaling area and terminal for receiving, handling, and storage; and road and rail access. The dock, as finally proposed, would be located approximately one-half mile from the Nisqually National Wildlife Refuge, while the remaining upland facilities would be located one-half mile from Puget Sound.

Weyco's proposal for an export facility triggered SEPA. Pursuant to SEPA guidelines, Weyco submitted a completed environmental checklist to DuPont which assumed lead agency responsibility for the proposal. DuPont determined the proposal would require an environmental impact statement (EIS). Predraft consultation procedures were initiated, and in August 1978 DuPont published the draft EIS for the export facility. The draft was circulated among various federal, state, and local agencies and organizations for their comments and suggestions on the project. Copies of the draft EIS were sent to plaintiffs. Based on the testimony obtained through public hearings and comments received during the circulation period, DuPont revised the draft and issued the final EIS for the export facility in February 1979.

The adequacy of the final EIS has been adjudicated and is not at issue here. The Department of Ecology (DOE) determined that the final EIS met all legal requirements after lead agency responsibility was transferred to it in March 1979. Plaintiffs challenged the adequacy of the EIS in Pierce County Superior Court, where it was upheld. Plaintiffs have since withdrawn their appeal of the trial [724]*724court's judgment.

The final EIS described and evaluated both a "proposed" and an "alternative" location. The alternative location was further to the south, closer to the wildlife refuge. The proposed northern location, however, crossed the jurisdictional boundary between DuPont and Pierce County, and consequently the boundary between the "urban" shoreline designation in DuPont and the "conservancy" shoreline designation in the Pierce County Shorelines Master Program.

As a substantial shoreline development, under the SMA, Weyco's proposal requires a permit issued by the controlling jurisdiction (the City of DuPont). Such a permit must be consistent with DuPont's master program, which in turn must be consistent with state policy. RCW 90.58.140. In August 1978, Weyco applied for a permit for construction of its dock at the northern proposed location described in the EIS, but because the proposed location extended into Pierce County's conservancy shoreline, Weyco altered its plans. In January 1981, it submitted to DuPont another application for a shoreline substantial development permit. In its application, Weyco proposed to locate the dock portion of the facility between and overlapping the proposed northern and alternative southern dock locations, entirely within DuPont city limits. This location will be referred to as the "final" or "application" proposal. The dimensions of the facility are the same in each proposal.

Because the application showed a dock location not precisely depicted in the EIS, DuPont asked DOE to review the EIS to determine whether the design change warranted preparation of a supplemental EIS. DOE did so, and informed DuPont the EIS adequately described and discussed the environmental impacts of the final proposal. No formal notice of any change in the proposed dock location was given to any of the more than 20 agencies receiving the final EIS.

On January 21, 1981, upon due notice as required by RCW 90.58.140(4), the DuPont City Council held a public [725]*725hearing on the Weyco substantial development application. Weyco, plaintiffs, and other members of the public appeared and submitted oral and written testimony. On February 18, 1981, the Council unanimously voted to issue the permit after imposing specific conditions on the proposal to mitigate adverse effects. Plaintiffs filed a request for review with the SHB challenging the substantial development permit and alleging a conditional use permit was required under the DSMP.

The significance of a conditional use permit lies in the requirement that the local permit be submitted to DOE for approval or disapproval. RCW 90.58.140(12). The SHB noted that DOE's original approval of the DuPont master program did not limit the types of development in the urban designation. However, inclusion of conditional use permits in the city's master program gave DOE flexibility and control over subsequent developments and their impacts on the Nisqually Delta.

Weyco then requested DuPont to reprocess its shoreline permit application under the conditional use procedures. Notice was again published and posted and a public meeting held. The Council unanimously approved the conditional use permit. The permit was approved by DOE in August 1981. In October 1981, plaintiffs filed another request for review challenging DuPont's issuance of the permits and DOE's approval.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Blake Huegel, V. D.s.h.s., State Of Wa
Court of Appeals of Washington, 2024
Estate Of Marie J. Reese
Court of Appeals of Washington, 2014
Edward O. Gorre, App/cr V City Of Tacoma, Res/cr
Court of Appeals of Washington, 2014
In re the Marriage of Sagner
159 Wash. App. 741 (Court of Appeals of Washington, 2011)
Sagner v. Sagner
247 P.3d 444 (Court of Appeals of Washington, 2011)
Mellish v. Frog Mountain Pet Care
225 P.3d 439 (Court of Appeals of Washington, 2010)
May v. Robertson
218 P.3d 211 (Court of Appeals of Washington, 2009)
Robertson v. May
153 Wash. App. 57 (Court of Appeals of Washington, 2009)
Samson v. City of Bainbridge Island
149 Wash. App. 33 (Court of Appeals of Washington, 2009)
Pud v. Naftzi
151 P.3d 176 (Washington Supreme Court, 2007)
Alpine Lakes Protection Society v. Department of Ecology
135 Wash. App. 376 (Court of Appeals of Washington, 2006)
Alps v. State Forest Practices Bd.
144 P.3d 385 (Court of Appeals of Washington, 2006)
Nationscapital Mortg. Corp. v. STATE, DFI
137 P.3d 78 (Court of Appeals of Washington, 2006)
Nationscapital Mortgage Corp. v. Department of Financial Institutions
133 Wash. App. 723 (Court of Appeals of Washington, 2006)
Central Puget Sound Regional Transit Authority v. Miller
128 P.3d 588 (Washington Supreme Court, 2006)
Central Puget Sound Regional Transit Auth. v. Miller
128 P.3d 588 (Washington Supreme Court, 2006)
Bellevue Farm Owners Ass'n v. Shorelines Hearings Board
100 Wash. App. 341 (Court of Appeals of Washington, 2000)
Bellevue Farm Owners Association v. Shorelines Hearings Bd.
997 P.2d 380 (Court of Appeals of Washington, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
696 P.2d 1222, 103 Wash. 2d 720, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nisqually-delta-assn-v-city-of-dupont-wash-1985.