O'Hagan v. State, No. 28897-4-II (Wash. App. 12/16/2003)
| Decision Date | 16 December 2003 |
| Docket Number | No. 28897-4-II,28897-4-II |
| Court | Washington Court of Appeals |
| Parties | PATRICK R. O'HAGAN, Appellant, v. STATE OF WASHINGTON, DEPARTMENT OF ECOLOGY and POLLUTION CONTROL HEARINGS BOARD; STATE OF WASHINGTON, DEPARTMENT OF NATURAL RESOURCES and FOREST PRACTICES APPEAL BOARD, Respondents. |
Appeal from Superior Court of Pacific County. Docket No: 95-2-00419-1. Judgment or order under review. Date filed: 05/03/2002.
Counsel for Appellant(s), Patrick R. O'Hagan (Appearing Pro Se), 2524 Evergreen Park Road, Grayland, WA 98547.
Counsel for Respondent(s), Steven J. Thiele, Attorney at Law, PO Box 40117, Olympia, WA 98504-0117.
Thomas J. Young, Attorney General's Office, Ecology Division, PO Box 40117, Olympia, WA 98504-0117.
Over the past 11 years, Patrick O'Hagan has sought to convert a three-acre portion of his property, `Bog 33,' into a cranberry bog. He now appeals a ruling by the superior court that affirmed the State's imposition of conditions on his use of Bog 33, and he also presents regulatory takings and substantive due process claims. Because O'Hagan presents claims that are not properly before us, we dismiss his appeal.
In March 1992, O'Hagan initiated the permitting process to convert three acres of his property, `Bog 33,' into a cranberry bog. Because the Army Corps of Engineers (Corps) had classified two acres of Bog 33 as forested wetland, there were a number of state and federal permitting requirements that applied to the property.
Federal law requires compliance with sec. 401 and sec. 404 of the Federal Water Pollution Control Act (Clean Water Act) for projects that may have an adverse impact on navigable waters. 33 U.S.C. sec. 1341, sec. 1344. The phrase `navigable waters' includes wetlands. 33 C.F.R. sec. 328.3; see United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 123-24, 106 S. Ct. 455, 88 L. Ed. 2d 419 (1985).
Section 404 of the Clean Water Act requires land owners to obtain a permit from the Corps for projects that involve dredging or filling of wetlands. 33 U.S.C. sec. 1344. The Corps issues nationwide permits for certain activities regulated by sec. 404 that will presumptively have minimal environmental impacts. 33 C.F.R. sec. 330.1.
The purpose of these permits is to reduce delay to applicants. 33 C.F.R. sec. 330.1(b). Nationwide Permit 34 (NWP 34) applies to cranberry production activities and governs the specific activity that O'Hagan proposes. O'Hagan applied for a NWP 34 from the Corps in March 21, 1992.
Section 401 of the Clean Water Act requires the State to certify that particular projects will comply with federal water quality standards before the Corps may issue a federal license or permit. 33 U.S.C. sec. 1341; PUD No. 1 of Jefferson County v. Washington Dep't of Ecology, 511 U.S. 700, 707, 114 S. Ct. 1900, 128 L. Ed. 2d 716 (1994). To satisfy sec. 401, the applicant typically must obtain an individual water quality certificate from the State. Pub. Util. Dist. No. 1 of Pend Oreille County v. Dep't of Ecology, 146 Wn.2d 778, 808, 51 P.3d 744 (2002). The Washington legislature has given the Department of Ecology (DOE) the authority to ensure compliance with sec. 401. RCW 90.48.260.
Instead of requiring individual water quality certification to satisfy sec. 401, DOE may adopt a nationwide permit promulgated by the Corps. If the applicant qualifies for a nationwide permit under sec. 404, and DOE has adopted that permit in satisfaction of sec. 401, an individual water quality certificate is not necessary.
As of 1992, DOE had not adopted NWP 34 to indicate compliance with sec. 401. Therefore, DOE required O'Hagan to obtain an individual water quality certificate to satisfy sec. 401 in addition to obtaining a NWP 34 from the Corps to satisfy sec. 404.
In 1993, the Corps amended the regional requirements for NWP 34. DOE subsequently agreed to accept NWP 34 in satisfaction of sec. 401 requirements, so long as proposed activities do not include the logging of trees over eight inches in diameter at breast height (eight-inch DBH).1
In addition to federal requirements, State law required O'Hagan to obtain a Forest Practice Permit (FPP) under the Forest Practices Act.2 This Act applied to O'Hagan's proposal because he intended to log his land to convert the property to a cranberry bog. O'Hagan applied to the Department of Natural Resources (DNR) for this permit in April 1992.
DOE issued O'Hagan the sec. 401 water quality certificate and DNR issued the FPP, but both permits contained six conditions intended to mitigate wetland loss.3 The most significant condition required O'Hagan to agree to preserve two acres of forested wetland in perpetuity.
O'Hagan appealed the mitigation conditions on his sec. 401 certification to the Pollution Control Hearings Board (PCHB). The PCHB affirmed DOE's imposition of conditions.
O'Hagan also appealed the same six conditions on his FPP to the Forest Practices Appeals Board (FPAB). The FPAB invalidated the conditions as they applied to the FPP.
O'Hagan then appealed the PCHB decision and DOE appealed the FPAB decision, both to superior court. The superior court consolidated the appeals and affirmed both decisions in February 2000. Its decision allowed O'Hagan to log the disputed area without complying with any condition, but required that he comply with DOE's mitigation conditions to convert the land into a cranberry bog.
O'Hagan now appeals the superior court's affirmation of the PCHB decision. DOE maintains that this appeal is moot because O'Hagan's NWP 34 permit expired in February 2000, and he must reapply.
O'Hagan specifically contends that: (1) the State and the Corps do not have jurisdiction over Bog 33 as a wetland, (2) DOE has waived its sec. 401 certification requirement, (3) DOE's delay in making a sec. 401 determination resulted in a regulatory taking, (4) DOE's refusal to adopt NWP 34 and its imposition of mitigation conditions violated his substantive due process rights, and (5) the PCHB made erroneous findings of fact.
O'Hagan challenges the Corps's classification of Bog 33 as a wetland, and the State's authority to impose conditions on his conversion of the wetland to a cranberry bog.
Based on its inspection of Bog 33, the Corps determined that the area is a wetland and, therefore, is subject to regulation under sec. 404. 33 U.S.C. sec. 1344. A challenge to the Corps's determination is not properly before us and O'Hagan must instead bring this claim in federal court. See Mountain Rhythm Res. v. F.E.R.C., 302 F.3d 958, 964 (9th Cir. 2002).
O'Hagan also questions whether sec. 401 and state law empower DOE to impose conditions on his use of Bog 33. We review agency statutory interpretation under an error of law standard and may substitute our understanding of the law for the agency's interpretation. Burnham v. Dep't of Social & Health Serv., 115 Wn. App. 435, 438, 63 P.3d 816 (2003) (citing Valentine v. Dep't of Licensing, 77 Wn. App. 838, 844, 894 P.2d 1352 (1995)), review denied, No. 73885-8 (Wash. Nov. 4, 2003). But we give substantial weight to an agency's interpretation of statutes within its area of expertise. Aponte v. Dep't of Social & Health Serv., 92 Wn. App. 604, 616, 965 P.2d 626 (1998); Seatoma Convalescent Ctr., 82 Wn. App. 495, 512, 919 P.2d 602 (1996).
Section 401 of the Clean Water Act requires states to ensure compliance with federal water quality standards through water quality certification. 33 U.S.C. sec. 1341. `The Washington Legislature has authorized DOE to fully participate in the Clean Water Act's programs and to take all actions necessary to satisfy the Act's requirements.' Ventures Northwest Ltd. P'ship v. State, 81 Wn. App. 353, 362-63, 914 P.2d 1180 (1996); see RCW 90.48.260.
In making its decisions regarding O'Hagan's land, DOE relied on the Corps's classification of Bog 33 as a wetland, and on DOE's clear authority to regulate water quality. RCW 90.48.260. O'Hagan provides no reasoned argument showing that DOE did not act within this authority. Thus, his challenge to DOE's jurisdiction is without merit.
O'Hagan next claims that by not acting on his request for sec. 401 certification within one year, DOE waived its requirement that he obtain sec. 401 certification. Under sec. 401, the Corps may issue a sec. 404 permit only after the applicant has received proper State certification or when the State agency has waived certification. 33 U.S.C sec. 1341(a).
`If the State . . . fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal application.' 33 U.S.C sec. 1341(a)(1).
O'Hagan asks us to hold that DOE has waived the right to require him to apply for sec. 401 certification. But we need not reach the issue of a waiver because the issue is moot.
`A case is technically moot if the court cannot provide the basic relief originally sought, . . . or can no longer provide effective relief.' Snohomish County v. State, 69 Wn. App. 655, 660, 850 P.2d 546 (1993) (citing In re Detention of Swanson, 115 Wn.2d 21, 24, 804 P.2d 1 (1990); In re Detention of Cross, 99 Wn.2d 373, 376-77, 662 P.2d 828 (1983)). The State conceded in both its brief and at oral argument that O'Hagan does not need to obtain a new sec. 401 individual water quality certificate because his FPP allows him to log his property. Upon logging his property, O'Hagan's project will satisfy NWP 34 requirements, thereby also satisfying sec. 404 and sec. 401. Thus, whether DOE waived the right to impose the original sec. 401 requirement will not affect O'Hagan's ability to proceed. We may decide to hear a moot case if it involves issues of continuing and substantial public interest. Swanson, 115 Wn.2d at...
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