Sound Action v. Wash. State Pollution Control Hearings Bd.
| Decision Date | 09 May 2023 |
| Docket Number | 57308-3-II |
| Parties | SOUND ACTION, Appellant, v. WASHINGTON STATE POLLUTION CONTROL HEARINGS BOARD, WASHINGTON DEPARTMENT OF FISH AND WILDLIFE, and MARCUS GERLACH Respondents. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Marcus Gerlach owns waterfront property on which he seeks to build structures such as a dock and a bulkhead. Such work requires the approval of the Washington State Department of Fish and Wildlife (WDFW) in the form of a Hydraulic Project Approval (HPA). In 2019, WDFW approved Gerlach's application and subsequently issued an HPA.
Sound Action challenged the HPA before the Washington State Pollution Control Hearings Board (PCHB), making various arguments that the HPA did not comply with the Hydraulic Code.[1]The PCHB affirmed the issuance of the HPA. On appeal, Sound Action argues that the PCHB erred by: (1) limiting the testimony of Sound Action's Executive Director; (2) excluding federal permitting and mitigation standards as evidence; (3) concluding that Gerlach submitted a complete HPA application even though the application did not have complete information regarding construction plans or project impacts and mitigation; (4) concluding that the threshold determination issued by the City of Bainbridge Island fulfilled the HPA application requirement to submit a notice of compliance with the State Environmental Policy Act (SEPA);[2] (5) concluding that former RCW 77.55.141 (2010)[3] applied to Gerlach's application; (6) concluding that WDFW followed the proper mitigation sequence and that the project achieves no net loss, as required by the Hydraulic Code; and (7) ruling that WDFW could waive the requirement for Gerlach to submit a seagrass and macroalgae survey.
We hold that Sound Action's arguments are without merit. Accordingly, we affirm the superior court's order affirming the PCHB's decisions.
Gerlach owns waterfront property located within Eagle Harbor on Bainbridge Island. Eagle Harbor is a heavily developed basin in Kitsap County within Puget Sound.
WDFW is responsible for issuing HPAs in accordance with the Hydraulic Code. See, e.g., WAC 220-660-010. An HPA is a permit for construction of a project that will have an impact on the waters of the state. See RCW 77.55.011(11), (19)[4]; WAC 220-660-020.
Sound Action is a non-profit organization that seeks to protect nearshore habitat and species in Puget Sound. It carries out this work by reviewing every HPA and associated application materials for nearshore development projects to ensure that WDFW has followed the applicable regulations and best available science
Gerlach first applied for an HPA for construction of a new bulkhead, pier, ramp, boatlift, gatehouse, and float in August 2012. WDFW informed Gerlach that his application was incomplete because he was required to submit a SEPA determination along with his application.[5] In addition, WDFW's letter indicated that Gerlach needed to follow the proper mitigation sequence for avoiding, minimizing, and mitigating ecological impacts caused by the project.
At the same time, Gerlach had an application pending for a Shoreline Substantial Development Permit (SSDP) with the City of Bainbridge Island for substantially the same project. In March 2013, the city issued a "Notice of Administrative Decision and Mitigated Determination of Nonsignificance (MDNS)" in a combined document with a "Permit Decision" section and a "SEPA Decision" section. Administrative Record (AR) at 585. Regarding the permit, the city approved the "boathouse/gatehouse, retaining wall[,] and dock" subject to certain conditions, and it denied the bulkhead. Id. (boldface omitted). The bulkhead was apparently denied due to the city's "shoreline standards and regulations."[6] Id. at 1228.
Regarding the SEPA determination, the city determined that Gerlach's proposal did not have a probable significant impact on the environment so long as the mitigation conditions were followed. "This determination was made and mitigation measures were applied after review of a completed environmental checklist and other information on file with the lead agency." Id. at 585. This portion of the document did not mention the bulkhead, but the "Description of Proposal" in the document stated: "110 linear feet of bulkhead; a 174 foot dock with boat hoist; a 196 square foot gatehouse/boathouse; and a 50 linear foot retaining wall." Id. Gerlach appealed the permit decision and SEPA determination, and that litigation continued until 2018.
In April 2016, Gerlach submitted a new HPA application outlining the same overwater project. After WDFW informed Gerlach that his application was incomplete, Gerlach supplemented his application materials with updated and revised project plans and the MDNS from the city, which he sent on May 24, 2016. Even after receiving these supplemental materials, WDFW maintained that Gerlach's application was incomplete because he needed a valid SEPA determination and completed project plans and specifications. WDFW also communicated with at least one employee of the City of Bainbridge Island, who informed WDFW that the parties were awaiting a hearing before a Hearing Examiner on the combined SSDP and SEPA decision. Therefore, according to the employee, Id. at 596.
In February 2019, "[a]fter review by Deputy Assistant Director Margen Carlson, WDFW determined that [a] statutorily complete application was received on 5/24/16." Id. at 1480. WDFW then accepted Gerlach's application and assigned it to Nam Siu, a WDFW biologist, for processing. No explanation was given as to why WDFW changed its prior determination that the application was incomplete.
WDFW first issued an HPA for Gerlach's project in September 2019. Sound Action filed an informal appeal[7] with WDFW. Based on this appeal, WDFW determined that the HPA listed incorrect dimensions for the overwater structures and that the HPA must be revised to correct these dimensions. No action was taken on any other issue raised by Sound Action's informal appeal.
WDFW issued a new HPA in January 2020. The HPA provides that it "pertains only to those requirements of the Washington State Hydraulic Code," that "[a]dditional authorization from other public agencies may be necessary for this project," and that the person to whom the HPA is issued is responsible for obtaining additional authorization from local, state, or federal agencies if required. Id. at 21.
Following the outcome of the informal appeal, Sound Action filed a formal appeal with the PCHB. The legal issues were articulated in the PCHB's order as follows:
Prior to the hearing on Sound Action's appeal, Gerlach moved for summary judgment on several issues. Relevant here, Gerlach argued at summary judgment that all required vegetation surveys were completed before WDFW issued the HPA, and that there is no eelgrass or macroalgae at the site.[8] In support of his motion, Gerlach submitted a January 2012 vegetation survey that he included in his initial HPA application materials. The survey was performed by Chad Croker, the owner of Northwest Marine. The survey did not detect the presence of eelgrass at the site.
WDFW submitted a declaration by Siu, the biologist who had been assigned to Gerlach's HPA application for processing. Siu stated that he was familiar with Eagle Harbor because he had performed work there over the years, including numerous vegetation surveys. One of these surveys was in the area directly offshore of Gerlach's property. Siu also declared that he was able to observe the project site from the neighboring property during May 2019.[9] Siu held the opinion that there was no seagrass or macroalgae at the project site based on his observations, his experience and familiarity with Eagle Harbor, and his review of Gerlach's HPA application materials.
In response, Sound Action submitted a declaration by Amy Carey, the Executive Director of Sound Action. Carey declared that she personally reviews "every HPA permit for marine projects in the Salish Sea," which has totaled over 2,500 permits during her time at Sound Action. Id. at 744. Carey's declaration discussed surveys that indicated the presence of kelp and macroalgae "in close proximity" to Gerlach's property. Id. at 747. In addition, Carey reviewed aerial photographs of the site and claimed that these photographs show evidence of vegetation such as kelp and macroalgae.
The PCHB granted summary judgment in favor of Gerlach, ruling that WDFW properly waived the requirement for a vegetation survey because of the evidence that seagrass and macroalgae were not present at the site.[10]
Following various motions in limine, the PCHB made the following rulings relevant here. First, the PCHB ruled that Carey did not qualify as an expert in "biology, marine biology and nearshore or intertidal ecology, and the impacts to nearshore ecological systems from the overwater structure." Id. at 1143. The order reviews Carey's qualifications regarding her scientific knowledge, skill, experience, training, and...
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