Whidbey Environ. Action Network, App v. Growth Management Hearings Board, Resp

• Court: Court of Appeals of Washington
• Decided: March 9, 2020
• Docket: 80093-1
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

WHIDBEY ENVIRONMENTAL ) ACTION NETWORK (WEAN), ) NO. 80093-1-I ) Appellant, ) DIVISION ONE ) v. ) UNPUBLISHED OPINION

GROWTH MANAGEMENT ) HEARINGS BOARD, ) ) Respondent, ) ISLAND COUNTY, ) ) Additional Party. ) FILED: March 9, 2020

LEACH, J. —Whidbey Environmental Action Network (WEAN) appeals the

superior court’s affirmation of a Western Washington Growth Management

Hearings Board (GMHB) order. WEAN challenges a decision that Island

County’s revised critical areas ordinance brought it into partial compliance with

the Growth Management Act (GMA).1

The GMHB found that Island County’s first updated critical areas

ordinance failed to comply with the GMA. In response, Island County adopted a

revised buffer provision for Natural Area Preserves (NAPs) and designated

1 Ch. 36.70A RCW. No. 80093-1-I /2

seven species of plants and 12 britical areas as species and “habitats of local

importance.” Because the revised buffer provision focuses only on species

preservation, it does not comply with the GMA. And because Island County’s

method of designating critical areas does not provide sufficient information to

protect these areas, it also does not comply with the GMA.

But WEAN fails to show that the GMA requires Island County to designate

nonprairie habitat. And it did not meet its burden to show that Island County’s

designation of critical areas as “habitats of local importance” violates the GMA.

We reverse in part, affirm in part, and remand to the superior court to

remand to the GMHB with instructions consistent with this opinion.

FACTS

Island County adopted critical area regulations as required by the GMA.2

In 2014, Island County updated its comprehensive plan and development

regulations for Fish and Wildlife Habitat Conservation Areas (FWHCAs) by

enacting ordinance C-75-14.3 WEAN challenged the ordinance. On June 24,

2 Island County critical areas regulations are at chapter 17.02B of the Island County Code (ICC). The record includes the code version referred to here. Island County has revised its code since enacting the ordinance at issue here. See https://Iibrary.municode.com/wa/island county/cocles/codeofordinances. ~ Island County also enacted an interim ordinance C-16-15. Stating that “the adoption of an interim ordinance cannot cure non-compliance,” the GMHB declined to consider that ordinance (citing Friends of the San Juans v. San Juan County, No. 03-2-00-3c, at 10 (W. Wash. Growth Mgmt. Hr’gs Bd. July 21, 2005)). -2- No. 80093-1 -l /3

2015, the GMHB decided that ordinance C-75-14 violated the GMA. The GMHB

identified seven issues with the ordinance, including the three presented in this

appeal.

First, the GMHB concluded that Island County’s NAP buffer requirements,

applicable to Whidbey Island’s single NAP, the Naas Preserve, failed “to protect

critical areas as required by RCW 36.70A.060” and failed “to include the Best

Available Science in protecting critical area ecosystems in violation of RCW

36.70A.172.”4 Because Island County decided not to “establish buffers for the

NAP” and “based [this decision] on an assumption that [the NAP] encompasses

‘the land required for species preservation,’ the County. . . failed to protect the

NAP’s habitat or the functional integrity of its ecosystem” as required by the

GMA.

Second, the GMHB determined that Island County failed “to designate and

protect habitat of flora listed by the federal or state governments as areas where

endangered, threatened, or sensitive species have a primary association.” By

failing to do this, Island County also failed “to protect critical areas in violation of

RCW 36.70A.060” and failed “to include the Best Available Science in protecting

critical area ecosystems in violation of RCW 36.70A.172.”

4Addressing ICC 17.02B.430.E. -3- No. 80093-1-1/4

The GMHB found that Island County’s conclusion that the designations

and protection of FWHCAs require it to consider only fauna and not flora for

protection was “clearly erroneous and . . . also unsupported by facts and

scientific evidence in the record.” The GMHB also explained that Island County

erroneously concluded that “plants must only be protected when it can be shown

that a species of fish or wildlife has a primary association with a plant or plant

community.”

Third, the GMHB concluded that Island County failed to designate and

protect westside prairies, oak woodlands, and herbaceous balds as habitats of

local importance. As a result, it failed “to protect critical areas in violation of

RCW 36.70A.060 and fail[ed] to include the Best Available Science in protecting

critical area ecosystems in violation of RCW 36.70A.172.” The GMHB identified

several endangered, threatened, or sensitive (ETS) species occurring in westside

prairies, oak woodlands, and herbaceous balds listed federally or by Washington

State that Island County failed to designate.

In response to the GMHB decision, Island County adopted two

ordinances, C-44-16 and C-71-16, and submitted a compliance report.5 The

county revised the language of the NAP buffer provision. And it designated

~ The GMHB order challenged by WEAN involves only the issues addressed by ordinance C-17-16. -4- No. 80093-1-I I 5

seven species of plants and 12 westside prairies, oak woodlands, and

herbaceous balds as “of local importance.’

WEAN objected to finding compliance. It asserted the following:

(1) Island County’s amendments to its updated comprehensive plan and

development regulations violated the GMA’s best available science (BAS) and

protection requirements; (2) Island County’s continued use of the language of

“species preservation” and failure to adopt minimum buffers of 100 feet violated

the GMA; (3) Island County failed to follow BAS because it did not designate

“historic” plant species and habitat for “non-prairie” species; (4) Island County

erred in designating critical areas associated with ETS species as “habitats of

local importance” rather than areas where ETS species have a “primary

association;” and (5) Island County’s use of a list of sites and a map in its

designation of critical areas and the omission of several smaller sites violated the

WEAN asked to supplement the record before the board and add exhibits.

It did not file a petition raising new issues or challenges to C-71-16. The GMHB

allowed Island County extra briefing pages, allowed parties to supplement the

record, and took official notice of an exhibit.6 WEAN and Island County each

filed BAS summaries.

6 Exhibit 71 was “a single page from the U.S. Dept. of Agriculture, described as data on the ongoing farm acreage decline in Washington State.” -5- No. 80093-1-I /6

In September 2016, the GMHB issued an order finding compliance with

three of the original seven issues and continuing noncompliance with the

remaining four. The GMHB concluded that the amended language referring to

buffers in ICC 17.02B.430 satisfied the GMA. It stated that the provision properly

included language requiring “the County to ensure” that development resulted in

“no net loss of habitat functions and values.” Further, the GMHB found that the

ICC ensured that if development resulted in such a loss of habitat, it had “to

include buffers reflecting the sensitivity of the habitat to the proposed

development.” The GMHB also stated that ICC 17.02B.410 served to reinforce

protections by requiring a biological site assessment for all development

proposals within 1,000 feet of the NAP, unless the proposed action was

determined to result in “minor impacts.” It concluded that Island County did not

violate the GMA when it decided not to adopt a firm minimum buffer width.7

The GMHB determined that Island County’s designation of plant species

and 12 westside prairies, oak woodlands, and herbaceous balds as “habitats of

local importance” satisfied the GMA’s designation requirements.

~ The GMHB stated that WEAN failed to raise concerns “regarding buffers for the forest community at the NAP boundary.” Instead, it raised concerns about controlled burning and “resulting smoke.” But the GMHB elected to address the challenge. -6- No. 80093-1-I I 7

The GMHB denied WEAN’s motion for reconsideration. WEAN sought

review in the superior court in November 2016. In April 2018, the superior court

affirmed the GMHB decision.

WEAN appeals.

STANDARD OF REVIEW

The GMHB is authorized to decide compliance with the GMA.8 It has the

power to invalidate noncompliant plans and development regulations.9 The

GMHB presumes a plan is valid “unless it determines that the action by the state

agency, county, or city is clearly erroneous in view of the entire record before the

board and in light of the goals and requirements of [the GMA}.”1° When it

evaluates a plan, it defers to a county’s decisions that are consistent with the

GMA.11 A challenger has the burden of demonstrating that the action taken by

the county under the GMA is “clearly erroneous.”12 If, after a review of the entire

record, the GMHB has a “firm and definite conviction that a mistake has been

committed,” it will find the action “clearly erroneous.”13

8 RCW 36.70A.280. ~ RCW 36.70A.302; Thurston County v. W. Wash. Growth Mqmt. Hr’qs Bd., 164 Wn.2d 329, 340, 190 P.3d 38(2008). 10 RCW 36.70A.320(3); WAC 365-196-040; Thurston County, 164 Wn.2d at 340. 11 RCW 36.70A.320(1); Thurston County, 164 Wn.2d at 340. 12 RCW 36.70A.320(3). 13 Lewis County v. W. Wash. Growth Mgmt. Hr’cis Bd., 157 Wn.2d 488, 497, 139 P.3d 1096 (2006) (quoting Dep’t of EcoloQy v. Pub. Util. Dist. No. I of Jefferson County, 121 Wn.2d 179, 201, 849 P.2d 646 (1993)). -7- No. 80093-1 -I I 8

The Washington Administrative Procedures Act14 governs judicial review

of GMHB actions. When this court reviews a decision by the GMHB, it stands “in

the same position as a superior court reviewing a board’s decision.”15 A party

may challenge the GMHB’s decision if it resulted from an erroneous

interpretation or application of the law, was not supported by substantial

evidence, and was arbitrary or capricious.~6 The challenger has the burden of

establishing the invalidity of the GMHB’s decision.17

We review a challenge to the GMHB’s interpretation or application of the

law de novo.18 When we interpret a statute, our goal is to “give effect to the

legislature’s intent.”19 We first look to the legislation’s plain language

“considering the text of the provision in question, the context of the statute in

which the provision is found, related provisions, and the statutory scheme as a

whole.”2° We give substantial weight to the GMHB’s interpretation of the GMA

but are not bound by it.21 We do not liberally construe the GMA.22

14 Ch. 34.05 ROW. 15 Thurston County, 164 Wn.2d at 341 (citing Lewis County, 157 Wn.2d at 497). 16ROW 34.05.570(3)(d), (e), (i). 17ROW 34.05.570(1)(a); Thurston County, 164 Wn.2d at 341. 18 King County v. Cent. Puget Sound Growth Mgmt. Hr’gs Bd., 142 Wn.2d 543, 553, 14 P.3d 133 (2000). 19 TracFone Wireless, Inc. v. Dept of Revenue, 170 Wn.2d 273, 281, 242 P.3d 810 (2010). 20 State v. Evans, 177 Wn.2d 186, 192, 298 P.3d 724 (2013). 21 Thurston County, 164 Wn.2d at 341. 22 Thurston County, 164 Wn.2d at 342.

-8- No. 80093-1 -l /9

A challenger’s claim that the record lacks substantial evidence to support

the GMHB’s decision raises a mixed question of law and fact.23 We determine

the law de novo and apply it to the GMHB’s findings.24 We review challenged

findings of fact for substantial evidence.25 Substantial evidence is evidence

sufficient to persuade a fair-minded person of the truth of the finding.26

An agency’s decision is arbitrary and capricious “if it is willful and

unreasoning and disregards or does not consider the facts and circumstances

underlying the decision.”27 “A decision is not arbitrary or capricious if there is

room for more than one opinion and the decision is based on honest and due

consideration,” even if we disagree with it.28

ANALYSIS

WEAN challenges the GMHB’s order determining partial compliance on

three issues: the NAP buffer provision, the decision to designate the habitat of

ETS species as “habitat of local importance,” and the designation of this habitat,

23City of Arlington v. Cent. Puget Sound Growth Mgmt. Hr’gs Bd., 164 Wn.2d 768, 779-80, 193 P.3d 1077 (2008). 24 City of Arlington, 164 Wn.2d at 779-80. 25 City of Redmond v. Cent. Puget Sound Growth Mgmt. Hr’gs Bd., 136

Wn.2d 38, 46, 959 P.2d 1091 (1998). 26 City of Redmond, 136 Wn.2d at 46. 27 Stewart v. Dep’t. of Soc. & Health Servs., 162 Wn. App. 266, 273, 252

P.3d 920 (2011) (citing Alpha Kappa Lambda Fraternity v. Wash. State Univ., 152 Wn.App. 401, 421, 216 P.3d 451 (2009)). 28 Stewart, 162 Wn. App. at 273 (citing Alpha Kappa Lambda Fraternity,

152 Wn. App. at 421-22). -9- No. 80093-1-I /10

westside prairies, oak woodlands, and herbaceous balds, with a list and

reference to a map.

Island County contends that we should not review some issues WEAN

raises because it did not present them to the GMHB as required. Because

WEAN did not raise the question of Island County’s failure to designate historic

species, we do not address it here.29 But the GMHB considered WEAN’s other

assertions, so we review them.

The Growth Management Act

The legislature adopted the GMA in 1990. The GMA requires counties

and cities of a certain size to adopt comprehensive plans for development.30

One goal of the GMA is to ensure that local governments act to protect the

environment; so the act requires as a mandatory element of a comprehensive

plan the designation and protection of critical areas, including FWHCAs.31

Counties must designate critical areas and must adopt regulations to protect their

“functions and values.”32 These regulations must at least prevent new harm to

critical areas.33

29 The parties did discuss this issue in their filings. 30 RCW 36.70A.040. 31 RCW 36.70A.070, .030(6); WAC 365-190-080; WAC 365-196-830. 32 RCW 36.70A.060(2), .170, .172(1). ~ Swinomish Indian Tribal Cmty. v. W. Wash. Growth Mgmt. Hr’gs Bd., 161 Wn.2d 415, 430, 166 P.3d 1198 (2007) (concluding that a county’s ordinance adopting a “no harm” standard for agricultural use in areas designated critical areas and agricultural land sufficiently protected the critical habitat). -10- No. 80093-1 -l / 11

In 1995, the legislature “amended the GMA to strengthen protection of

critical areas.”34 RCW 36.70A.172(1) now requires that when a county

“designat[esj and protect[sJ critical areas under this chapter” it must “include the

best available science in developing policies and development regulations to

protect the functions and values of critical areas.”

As directed by the legislature, the Department of Commerce (DCC)

adopted guidelines for classifying critical areas and identified the responsibilities

of counties to protect these areas.35 The guidelines describe FWHCAs as

areas that serve a critical role in sustaining needed habitats and species for the functional integrity of the ecosystem, and which, if altered, may reduce the likelihood that the species will persist over the long term. These areas may include, but are not limited to, rare or vulnerable ecological systems, communities, and habitat or habitat elements including seasonal ranges, breeding habitat, winter range, and movement corridors; and areas with high relative population density or species richness.136] When designating FWHCAs, counties should “identify and classify

seasonal ranges and habitat elements where federal and state listed

endangered, threatened and sensitive species have a primary association and

~ Swinomish Indian Tribal Cmty., 161 Wn.2d at 426. ~ RCW 36.70A.050; see a~o RCW 36.70A.190(4)(b) (directing the DCC to promulgate “procedural criteria to assist counties . . in adopting .

comprehensive plans” to meet the GMA’s goals and requirements). 36 WAC 365-190-030(6)(a); see also WAC 365-190-130(1) (defining “[f]ish and wildlife habitat conservation” as “land management for maintaining populations of species in suitable habitats within their natural geographic distribution so that the habitat available is sufficient to support viable populations over the long term and isolated subpopulations are not created”). —11— No. 80093-1-I /12

which, if altered, may reduce the likelihood that the species will persist over the

long term.”37 Counties should also “identify, classify and designate locally

important habitats and species.”38 ‘Habitats of local importance” are “those

areas found to be locally important by counties and cities.”39

Counties must both designate critical areas and adopt regulations for their

protection.4° “Although counties and cities may protect critical areas in different

ways or may allow some localized impacts to critical areas, or even the potential

loss of some critical areas, development regulations must preserve the existing

functions and values of critical areas” and “may not allow a net loss of’

ecosystem “functions and values.”41 Development regulations that allow harm to

critical areas “must require compensatory mitigation of the harm.”42 When

counties develop FWHCAs, they “should consider. . . [e]stablishing buffer zones

around [the FWHCAs] to separate incompatible uses from habitat areas.”43

~‘ WAC 365-190-130(4)(a); see also WAC 365-190-130(2)(a) (stating that counties should consider “[a]reas where endangered, threatened, and sensitive species have a primary association”). 38 WAC 365-190-130(4)(b); see also WAC 365-190-130(2)(a) (stating that among the FWHCAs “that must be considered for classification and designation” are “[h]abitats and species of local importance, as determined locally”). ~ WAC 365-1 90-030(6)(b). 40 WAC 365-196-830(1). 41 WAC 365-196-830(4). 42 WAC 365-196-830(4). ~ WAC 365-190-130(3)(a)(v). -12- No. 80093-1-I /13

Counties must include BAS when they develop critical area “policies and

development regulations . . . to protect the functions and values” of these

areas.44 “The inclusion of the best available science in the development of

critical areas policies and regulations is especially important to . . . decision-

making affecting threatened or endangered species.”45 While counties may

develop their own BAS, the DOC guidelines identify certain available BAS

resources. These include information developed by the United States Fish and

Wildlife Service (USFWS), the National Marine Fisheries Service, the

Washington State Department of Fish and Wildlife (WDFW), and the Washington

State Department of Natural Resources (DNR) Natural Heritage Program (NHP)

and Aquatic Resources Program.46

Once counties identify and include BAS in their records, they “may depart

from BAS if [they] provide[ ] a reasoned justification for such a departure.”47 Although “[w]hat constitutes a sufficiently reasoned process for departing from

BAS is poorly defined in GMA jurisprudence,” at a minimum counties must

provide an explanation that is “rational and supported by evidence.”48

~ WAC 365-195-900(2); see also WAC 365-190-080(2), -130(3); WAC 365-1 96-830(5). ~ WAC 365-1 95-900(3). 46 WAC 365-190-130(4)(a). ~ Ferry County v. Growth Mqmt. Hr’gs Bd., 184 Wn. App. 685, 717, 735, 339 P.3d 478 (2014). 48 Ferry County, 184 Wn. App. at 740.

-13- No. 80093-1-I / 14

Natural Area Preserve Buffer Provision

WEAN asserts that the GMHB erroneously interpreted or misapplied the

law when it decided that Island County’s updated NAP buffer provision complied

with the GMA because the ordinance does not protect all ecosystem functions

and values. We agree.

We apply the same rules of statutory construction to ordinances as we do

to state statutes.49 We interpret statutes de novo.5° When interpreting a statute,

our goal is to give effect to the legislature’s intent.”51 We first look to the

legislation’s plain language, “considering the text of the provision in question, the

context of the statute in which the provision is found, related provisions, and the

statutory scheme as a whole.”52 If the plain language of the statute results in two

or more reasonable interpretations, it is ambiguous.53 Only if the statute is

ambiguous, do we apply traditional techniques of statutory construction.54

The GMA requires that counties adopt regulations to protect the “functions

and values” of designated critical areas such as FWHCAs.55 FWHCAs “serve a

~ Sleasman v. City of Lacey, 159 Wn.2d 639, 643, 151 P.3d 990 (2007). 50 Port of Seattlev. Pollution Control Hr’cis Bd., 151 Wn.2d 568, 587, 90

P.3d 659 (2004). 51 TracFone Wireless, 170 Wn.2d at 281. 52 Evans, 177 Wn.2d at 192. ~ City of Seattle v. Winebrenner, 167 Wn.2d 451, 456, 219 P.3d 686 (2009). ~ Cerrillo v. Esparza, 158 Wn.2d 194, 201, 142 P.3d 155 (2006). ~ RCW 36.70A.060(2), .170, .172(1). -14- No. 80093-1-I /15

critical role in sustaining needed habitats and species for the functional integrity

of the ecosystem.”56 As the GMHB determined in its initial decision and order in

this case, the “functions and values” of a designated FWHCA are broader than

simply “species preservation.”

Island County’s NAP revised buffer provision states,

Buffers shall not be required adjacent to these areas as long as these areas encompass the land required for species preservation. The Planning Department shall confirm the public agency establishing and managing the area has included sufficient land within these areas to ensure no net loss of habitat functions and values. If buffers are required, they shall reflect the habitat sensitivity and the type and intensity of activity proposed to be conducted nearby.[57l The first sentence prohibits buffers adjacent to the NAP for anything other

than “species preservation,” even if a buffer is needed to preserve habitat

“functions and values.” Neither of the two following sentences modify the first

sentence.58 “Shall” is a mandate. So ICC 17.02B.430E plainly and

unambiguously allows the addition of buffers to an NAP only when it does not

contain sufficient land for species preservation.

The second sentence directs the planning department to confirm that the

land within the NAP is sufficient “to ensure no net loss of habitat functions and

56WAC 365-1 90-030(6)(a). ~ ICC 17.02B.430.E. 58 During oral argument, Island County agreed that neither of these latter two sentences modified the first sentence. -15- No. 80093-1 -I /16

values.” A buffer serves to reduce the impact of activities on land outside the

reserve. Because this sentence addresses only the quantity of land within the

NAP, it does not modify the requirement/limitation of the first sentence, which

involves the land outside the NAP.

The third sentence does not require buffers or clarify when they might be

required. So the revised NAP provision, read as a whole, does not ensure the

values and functions of NAP will be protected from external impacts by buffers.

Instead, this provision strictly limits that protection to situations requiring “species

protection,” a limit that is contrary to the mandate of the GMA.

So the GMHB erred when it decided that ICC 17.02B.430.E complies with

the GMA.

Island County points to other code provisions that require a biological site

assessment for development proposals within 1,000 feet of the NAP and require

a buffer for any proposal that will result in loss of habitat functions and values

within any FWHCA.59 But these other provisions do not correct the single

purpose limitation of NAPs established in the challenged buffer provision.

Instead, they highlight another problem with it: its mandatory language conflicts

with other sections of Island County’s code. Island County cannot explain how

its code protects an NAP when the NAP contains sufficient land for species

~ ICC 17.02B.400, .430.E. -16- No. 80093-1 -I /17

preservation but requires a buffer to avoid deterioration of its habitat functions

and values. Typically, a court applies the more recent and/or specific provision

of a statute if two provisions conflict.60 Applying that approach to these

conflicting provisions produces the conclusion that no buffers shall be required

when an NAP contains sufficient land for species preservation.

WEAN also asserts that the GMHB should have imposed a mandatory

minimum 100-foot buffer on the south end of the reserve and failed to consider

BAS when it declined to do this.61 Because the GMHB erred in concluding that

the buffer provision brought Island County into compliance, we do not consider

this argument.

Habitat of “Nonprairie” ETS Srecies

WEAN asserts that because Island County designated habitat for only

three plant species identified in the GMHB’s initial order as ETS, without

considering other “non-prairie habitat” associated species, “such as the black

lily,” the GMHB’s finding of compliance was arbitrary and capricious.

60 Gorman v. Garlock, Inc., 155 Wn.2d 198, 201-11, 118 P.3d 311 (2005); Ct ICC 17.02B.040.A (stating, “If a conflict exists between this chapter and another chapter or planning policy, the more restrictive shall apply.”); ICC 17.02B.050.B (stating, “If any provision of this chapter conflicts with a provision of another chapter of Island County Code, or the Island County Comprehensive Plan, the more restrictive or protective provision shall apply.”). 61 The GMHB reviewed the 100-foot buffer minimum argument.

-17- No. 80093-1-I /18

In its original order, the GMHB concluded that Island County failed to

comply with the GMA’s mandate to “designate and protect habitat of flora listed

by the federal or state government as areas where endangered, threatened, or

sensitive species have a primary association.” The GMHB rejected Island

County’s construction of the GMA as requiring only designation of species and

their critical habitats bf animals, not plants.

GMHB’s order stated,

The record establishes one particular plant, the Golden Paintbrush (Castilleja levisecta), is listed by the Department of the Interior’s USFWS as threatened and by the State of Washington as endangered. Five other plants located in the County are classified as either threatened or sensitive by the State of Washington: White Meconella (scientific name—Meconella oregano) listed as Threatened; White-top Aster (Sericocar~us rigidus) listed as Sensitive; Bulb-bearing Water-Hemlock (Circuta bulbifera) listed as Sensitive; Black Lily (Fritillaria camschatcensis) listed as Sensitive; and Tall Agoseris (Agoseris elata) listed as Sensitive. The GMHB also stated, “According to the BAS Report, the Golden

Paintbrush, White Meconella, and White-top Aster. . . occur in wet and dry

prairies, herbaceous balds, and herbaceous communities atop coastal bluffs.”

It concluded that Island County violated the GMA by not designating any

prairies or herbaceous balds as critical areas because it failed to “designate

and protect” the habitat of ETS. It did not make a “finding regarding whether

-18- No. 80093-1-I /19

other ETS species had a primary association with other habitats in Island

County.”62

When Island County revised its ordinance, it designated seven plant species,

including all five species identified in the GMHB order, as species of local

importance. It identified geographic locations for the white-top aster and golden

paintbrush and required a biological site assessment and habitat management plan

for these sites to ensure these species are protected.63 It also designated twelve

westside prairies, oak woodlands, and herbaceous balds as critical areas.

The record shows that all of the ETS species, except one, are associated with

westside prairies, oak woodlands, and herbaceous balds.64 The GMHB, in its initial

order, found that wet and dry prairies, herbaceous balds, and herbaceous

communities on coastal bluffs supported golden paintbrush, white meconella, and

the white-top aster. And the BAS in the record states that tall agoseris “occurs in

meadows, prairies, open woods, and rocky ridges.” WEAN’s submission to the

record identified the black lily, the species it asserts here is a nonprairie species, as

a type of “[v]ascular plant species historically associated with Irairie and oak

woodlands.” (Emphasis added.)

62 It also noted that WEAN did not seek reconsideration of the GMHB’s failure to find that other ETS species had “primary associations” with other habitats. 63 ICC 17.02B.430.B.2, .3. 64 Alaska alkaligrass is “not listed as [ETS] but included as a carryover from the previous code.” -19- No. 80093-1 -l /20

Island County’s designations of prairies adequately protects prairie-

associated species. The only ETS species not covered by the designation of

westside prairies, oak woodlands, and herbaceous balds, is the bulb-bearing water-

hemlock.65 The BAS indicates it has not been observed in Island County since

1977. Any habitat designation for a species not recorded in the BAS for more than

three decades would be speculative. And the GMA requires habitat protection, not

enhancement.66 Because the record does not show the current existence of this

species in any habitat that Island County could designate for protection, WEAN fails

to establish that the GMHB erred in finding compliance on this basis.

Habitats of Local Importance

WEAN asserts that Island County should have designated the westside

prairies, oak woodland, and herbaceous balds as habitats of “primary

association” with ETS species rather than habitats “of local importance.” The

claim fails.

The GMA does not provide classifications for FWHCAs. The DOC

guidelines state that among the FWHCAs that “must be considered for

classification and designation” are areas “where endangered, threatened, and

This species is identified as a “wetland obligate” that “grows along lake 65 and marsh edges, in shallow water, and in slow-moving streams.” 66 Swinomish Indian Tribal Cmty., 161 Wn.2d at 431.

-20- No.80093-1-1/21

sensitive species have a primary association” and “[h]abitats and species of local

importance, as determined locally.”67

The ICC provides the most detailed information about these two types of

designations in its classification provision. It describes one classification as

“[a]reas with a primary association with endangered, threatened, and sensitive

species.”68 According to the ICC, these areas of “primary association” are

associated with federally endangered or threatened species or native

Washington species “identified by the [WDFW]” as ETS.69 They are those

habitats that “include both the immediate area where the [ETS] species occurs

and the contiguous habitat necessary for its long term persistence.”7° Under the

ICC, areas of “primary association” with ETS species include state NAPs and

“areas designated by the” DNR’s NHP “as high quality terrestrial ecosystems and

shown on the most recent NHP maps and data.”71

“Habitats . . . of local importance” . . . “have recreational, cultural, and/or

economic value to citizens of Island County.”72 They “are not adequately

protected, by other County, state, or federal policies, laws, regulations, or non-

67 WAC 365-190-130(2)(a), (b); see also WAC 365-190-030(6)(b) (stating that habitats “of local importance” are “those areas found to be locally important by counties and cities”). 68 ICC 17.02.B.200.A.1. 69 ICC 17.02.B.200.A.1:~a, .b. 70 ICC 17.02.B.060. 711CC 17.02B.200.A.3, .4. 72 ICC 17.02B.200.A.5.a.

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regulatory tools that prevent degradation of the habitat or species.”73 They

“represent either high-quality native habitat or habitat that has a high potential to

recover to a suitable condition and which is of limited availability, highly

vu’nerable to alteration, or provides landscape connectivity which contributes to

the integrity of the surrounding landscape.”74 “Habitats and species of local

importance, without protection, would be diminished locally over the long term.”75

The planning director makes the buffer determinations for FWHCA based

on BAS.76 Under the ICC, FWHCA areas “with a primary association with” ETS

species “shall” have buffers determined “based on management

recommendations provided by the {WDFW Priority Habitats and Species]

Program” and the buffer requirement “shall” include consideration “of site-specific

conditions” and the “recommendation of [a] qualified professional.”77 In contrast,

“[t]he need for and dimensions of buffers” for “species and habitats of local

importance shall be determined on a case-by-case basis by the Planning Director

according to an adopted or approved habitat management plan for the specific

resource.”78

~ ICC 17.02.B.200.A.5.b. ‘~ ICC 17.02.B.200.A.5.c. ~ ICC 17.02.B.200.A.5.d. 76 ~cc 17.02.B.430.E. ~ ICC 17.02.B.430.E. 78 ~cc 17.02.B.430.E.

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In its original noncompliance decision, the GMHB concluded that “Island

County’s failure to designate and protect habitat of flora listed by the federal or

state governments as areas where endangered, threatened, or sensitive species

have a primary association fails to protect critical areas in violation of RCW

36.70A.060” and that “Island County’s failure to designate and protect Westside

Prairies, Oak Woodlands, and Herbaceous Balds as habitats of local importance

fails to protect critical areas in violation of RCW 36.70A.060.” To correct this,

Island County designated seven plant species as “species and habitats of local

importance and protected species” and designated westside prairies, oak

woodlands, and herbaceous balds as “habitats of local importance.”

Island County’s decision to designate the habitats of ETS species as “of

local importance” may not be ideal. Nevertheless, WEAN fails to establish that

the GMHB’s order finding compliance on this issue was clearly erroneous.

First, WEAN asserts that “habitat of local importance” will be protected

only “when the county chooses to depict that habitat on the county’s critical areas

map (which is static and does not change over time).” But the ICC does not

require this approach to designating “habitats of local importance.” And because

we conclude below that the static map Island County used here to designate

prairie habitat did not comply with the GMA, Island County will likely remedy any

issue with its designation methodology.

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WEAN also suggests that because buffer determinations differ depending

upon the classification of the FWCHA, this difference in designation will trigger a

different process for determining buffer needs. We agree. The planning director

makes the final decision based on adopted habitat management plans for

FWHCA designated as “habitats of local importance.”79 FWHCA areas “with a

primary association with” ETS species “shall” have buffers determined “based on

management recommendations provided by the WDFW [Priority Habitats and

Species] Program” and the buffer requirement “shall” include consideration “of

site-specific conditions” and the “recommendation of [a] qualified professional.”8°

But WEAN fails to connect this difference in protection with a failure to protect the

“functions and values” of designated critical areas as required by the GMA.81 So

this difference is not sufficient to establish that the GMHB erred in finding

corn p1 ian ce.

WEAN points to the GMHB’s original order concluding that Island County

failed to designate “primary association” habitat to support its assertion that

Island County failed “to protect critical areas.” But the GMHB’s original order

also concluded that Island County violated the GMA by not designating westside

~ ICC 17.02.B.430.E. The county mandated a habitat management plan for two of the species, the white-top aster and golden paintbrush. ICC 17.02.B.430.B.2., .3. 80 ICC 17.02B.430:E. 81 RCW36.70A.060(2), .170, .172(1).

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prairies, oak woodlands, and herbaceous balds as “habitat of local importance.”

The GMHB’s order made clear that Island County should have designated these

habitats in order to protect the ETS plant species.82 The ETS plant species, for

the most part, occur in this prairie habitat. Island County complied with that part

of the GMHB order by designating this prairie habitat.

Some confusion arises, in part, because the GMHB did not explain why it

ordered Island County to use both classifications. One possibility is that the

GMHB agrees with Island County that these designations are overlapping.

WEAN provides no authority showing otherwise. Because there is room for more

than one opinion and the GMHB’s decision was not unreasonable, WEAN fails to

establish that the GMHB’s decision was arbitrary and capricious. Also, because

WEAN does not actually identify the evidentiary deficiencies in the record, it fails

to establish that the GMHB acted without substantial evidence to support its

finding of compliance on this issue.

We conclude that the GMHB did not err in determining Island County was

compliant on this issue.

82 For example, white meconella and white-top aster. -25- No. 80093-1-I I 26

Designation of Westside Prairies, Oak Woodlands, and Herbaceous Balds

WEAN asserts that Island County’s designations do not sufficiently “define

which habitat types are protected and where they are located” and so the GMHB

erred in finding that it complied with the GMA. We agree.

The GMA requires counties to designate and protect critical areas,

including FWHCAs.83 The GMA also requires counties to adopt regulations to

protect these designated critical area functions and values.84 Because counties

meet the GMA mandate to protect a critical area when, at a minimum, their

regulations prohibit activities in and adjacent to the designated area to degrade

the area’s functions and values,85 the designation must provide enough

information so that the county can identify when a proposed activity might

negatively impact the critical area.

According to the DOC guidelines, “designation establishes . . . {t]he

general distribution, location, and extent of critical areas.”86 Further,

[i]nventories and maps should indicate designations of natural resource lands. In circumstances where critical areas cannot be readily identified, these areas should be designated by performance standards or definitions, so they can be specifically identified during the processing of a permit or development authorization [871

83 RCW 36.70A.070, .030(6)(c); WAC 365-190-080; WAC 365-196-830. 84 RCW 36.70A.060(2). 85 See, e.g., Swinomish Indian Tribal Cmty., 161 Wn.2d at 430. 86 WAC 365-190-040(5)(a)(iii). 87 WAC 365-190-040(5)(b).

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Under these guidelines, unless the critical areas can “be readily identified[,]”

Island County “should” use performance standards or definitions to designate

them.88 Generally, the word “should” includes “both an obligatory and an

exhortatory connotation.”89 But in an early case analyzing the meaning of

“should” in policy documents, the GMHB held “that the use of either [should or

shall] in a GMA policy document must be construed to have specific directive

meaning.”90

On remand, Island County designated 12 westside prairies, oak

woodlands, and herbaceous balds as “habitats of local importance” by listing the

names of these locations and directing the reader to a “[m]ap prepared by

Watershed Company dated June 20, 2016.”91 It noted that the attached “map

prepared by the technical consultant [was] not a survey” but identified “the

general location of the designated areas.” Island County then asserted that its

“regulations . . . require delineation of the protected areas and identification of

mitigation measures by a qualified professional,” citing to ICC 17.02B.410. This

provision requires that for any proposed development within 1,000 feet of a

88 WAC 365-1 90-040(5)(b). 89 State v. Smith, 174 Wn. App. 359, 367, 298 P.3d 785 (2013) (citing WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1986)). 90 City of Snogualmie v. King County, No. 92-3-0004 (Cent. Puget Sound Growth Mgmt. Hr’gs Bd. Mar. 1, 1993). 911CC 17.02.B.510.C. -27- No.80093-1-1/28

critical area, Island County must conduct a biological site assessment, delineate

the protected areas, and identify mitigation measures.

In its designation, Island County identified the general location and

distribution of some of the critical areas, but it did not identify their size or

boundaries. Island County’s decision to include only a list and a map that is “not

a survey,” rather than performance standards or definitions, fails to meet the

directive of the DCC guidelines for designation. While the guidelines are not

rules, they instruct counties about the type of information necessary to meet the

GMA’s mandate to designate and protect habitats.

Island County did not follow the guidelines and created an information gap

that leaves these habitats vulnerable. The provision requiring a biological site

analysis any time an applicant proposes development within 1,000 feet of a

critical area or its buffer92 protects only a habitat with identifiable boundaries.

Island County’s challenged designations do not provide enough information for

the planning director or anyone else to identify the boundaries of these FWHCAs.

So Island County’s assertion that this provision, with its “general” map that “is not

a survey,” protects these areas fails. Because Island County does not provide

enough information in its designation to allow for protection of these habitats, it

violates the GMA’s mandate to designate in order to facilitate protection.

92 ICC 17.02.B.410. -28- No.80093-1-1/29

Island County responds that the map ‘is only one of the many tools

employed by the Planning Director in discharging his duties” and refers to ICC

17.02.B.200.C. This provision lists a number of other references that “are to be

used as a guide for the County, project applicants, and/or property owners.” Yet,

according to the provision, these sources “are a reference and do not provide a

final critical areas designation” and if they conflict with the general designation

criteria for different types of FWHCAs, “the designation criteria shall control.”93

And Island County did not adopt designation criteria. A list of sources that the

planning director “may” adopt does not ensure that the planning director will

adopt the sources that properly identify the habitat Island County designated for

protection.

WEAN also contends that the map resulted in the exclusion of smaller

examples of prairie habitat. Despite Island County’s contention that WEAN did

not raise this issue before the GMHB, it reviewed the issue on WEAN’s motion

for reconsideration. But our conclusion that Island County’s use of the list of

locations and map to designate critical areas was contrary to the GMA makes it

unnecessary for us to reach this issue.

Because Island County’s use of the map and the list violates the GMA, the

GMHB’s decision finding compliance on this issue was arbitrary and capricious.

~ ICC 17.02.B.200.C. -29- No. 80093-1-I /30

CONCLUSION

We reverse and remand to the superior court to remand to the GMHB with

instructions consistent with this proceeding. Island County’s revised buffer

provision fails to protect habitat values and functions as required by the GMA.

And Island County’s use of a map and a list of sites to designate critical habitat

did not satisfy the GMA. The GMHB erred in deciding that these provisions were

compliant.

WEAN fails to establish that the GMA requires counties to protect

nonprairie habitats. WEAN also fails to show that Island County’s designation of

habitat as “of local importance” will result in a failure to protect the habitat and

ETS species. So the GMHB did not err in its conclusion that Island County was

in compliance on these issues.

/ WE CONCUR:

_ I

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