Whidbey Environ. Action Network, App v. Growth Management Hearings Board, Resp ( 2020 )

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v. ) UNPUBLISHED OPINION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)).
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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.
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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.
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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
GMA.
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.”
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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.
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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 Wash. 2d 329, 340, 190 P.3d 38(2008).
10 RCW 36.70A.320(3); WAC 365-196-040; Thurston County, 164 Wash. 2d
at 340.
11 RCW 36.70A.320(1); Thurston County, 164 Wash. 2d at 340.
12 RCW 36.70A.320(3).
13 Lewis County v. W. Wash. Growth Mgmt. Hr’cis Bd., 157 Wash. 2d 488,
497, 139 P.3d 1096 (2006) (quoting Dep’t of EcoloQy v. Pub. Util. Dist. No. I of
Jefferson County, 121 Wash. 2d 179, 201, 849 P.2d 646 (1993)).
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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 Wash. 2d at 341 (citing Lewis County, 157 Wash. 2d at
497).
16ROW 34.05.570(3)(d), (e), (i).
17ROW 34.05.570(1)(a); Thurston County, 164 Wash. 2d at 341.
18 King County v. Cent. Puget Sound Growth Mgmt. Hr’gs Bd., 142 Wash. 2d
543, 553, 14 P.3d 133 (2000).
19 TracFone Wireless, Inc. v. Dept of Revenue, 170 Wash. 2d 273, 281, 242
P.3d 810 (2010).
20 State v. Evans, 177 Wash. 2d 186, 192, 298 P.3d 724 (2013).
21 Thurston County, 164 Wash. 2d at 341.
22 Thurston County, 164 Wash. 2d at 342.
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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
Wash. 2d 768, 779-80, 193 P.3d 1077 (2008).
24 City of Arlington, 164 Wash. 2d at 779-80.
25 City of Redmond v. Cent. Puget Sound Growth Mgmt. Hr’gs Bd., 136
Wash. 2d 38, 46, 959 P.2d 1091 (1998).
26 City of Redmond, 136 Wash. 2d at 46.
27 Stew. v. Dep’t. of Soc. & Health Servs., 162 Wash. App. 266, 273, 252
P.3d 920 (2011) (citing Alpha Kappa Lambda Fraternity v. Wash. State Univ.,
152 Wash. App. 401, 421, 216 P.3d 451 (2009)).
28 Stewart, 162 Wash. App. at 273 (citing Alpha Kappa Lambda Fraternity,
152 Wash. App. at 421-22).
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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 Wash. 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).
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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 Wash. 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”).
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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).
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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 Wash. App. 685, 717, 735,
339 P.3d 478 (2014).
48 Ferry County, 184 Wash. App. at 740.
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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 Wash. 2d 639, 643, 151 P.3d 990 (2007).
50 Port of Seattlev. Pollution Control Hr’cis Bd., 151 Wash. 2d 568, 587, 90
P.3d 659 (2004).
51 TracFone Wireless, 170 Wash. 2d at 281.
52 Evans, 177 Wash. 2d at 192.
~ City of Seattle v. Winebrenner, 167 Wash. 2d 451, 456, 219 P.3d 686
(2009).
~ Cerrillo v. Esparza, 158 Wash. 2d 194, 201, 142 P.3d 155 (2006).
~ RCW 36.70A.060(2), .170, .172(1).
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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.
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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.
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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 Wash. 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.
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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
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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.”
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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 Wash. 2d at 431.
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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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No. 80093-1 -l / 22
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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No. 80093-1-I / 23
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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No. 80093-1 -l I 24
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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No. 80093-1-lI 25
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.
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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 Wash. 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 Wash. 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.
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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.
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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.
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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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