Whidbey Envtl. Action Network v. Growth Mgmt. Hearings Bd.

• Decision Date: 01 September 2020
• Docket Number: No. 52923-8-II,52923-8-II
• Citation: 14 Wash.App.2d 514,471 P.3d 960
• Court: Washington Court of Appeals
• Parties: WHIDBEY ENVIRONMENTAL ACTION NETWORK, Appellant, v. GROWTH MANAGEMENT HEARINGS BOARD, Additional Party, Island County, Respondent

14 Wash.App.2d 514

471 P.3d 960

WHIDBEY ENVIRONMENTAL ACTION NETWORK, Appellant,

v.GROWTH MANAGEMENT HEARINGS BOARD, Additional Party,Island County, Respondent,

No. 52923-8-II

Court of Appeals of Washington, Division 2.

Filed September 1, 2020

Bryan James Telegin, Attorney at Law, 1424 4th Ave. Ste. 500, Seattle, WA, for Appellant.

Jesse Eldred, Barbara Dykes Ehrlichman, Island County Prosecuting Attorney, Po Box 5000, Coupeville, WA, for Respondent.

Lisa M Petersen, WA State Attorney General's Office (LAL), 800 5th Ave. Ste. 2000, Seattle, WA, Licensing & Administrative Law Atty. General, Attorney at Law, 800 Fifth Ave., Suite 2000, Ms-tb-14, Seattle, WA, for Other Parties.

PUBLISHED OPINION

Glasgow, J. ¶1 Whidbey Environmental Action Network (WEAN) challenged Island County's critical areas ordinance adopted under the Growth Management Act (GMA), chapter 36.70A RCW. Relevant to this appeal, WEAN argued that the County's critical areas ordinance was insufficient to protect the western toad, which the Washington Department of Fish and Wildlife has listed for protection as a priority habitat species.

¶2 After finding multiple iterations of the ordinance noncompliant with the GMA, the Western Washington Growth Management Hearings Board ultimately upheld the version of the ordinance at issue here as adequately protecting the western toad under the GMA and best available science. The version of the ordinance at issue designates all presently-known and later-identified occurrences of western toad breeding sites as critical areas, as well as all upland occurrences known on the date the ordinance was adopted. The ordinance does not designate later-discovered upland western toad occurrences as critical areas. The ordinance requires a biological site assessment for any development project proposed within 1,000 feet of a critical area, though the County can waive this requirement if the impacts of the development would be minor. On appeal, the superior court affirmed the Board's ruling.

¶3 WEAN appeals, arguing that the Board's ruling was contrary to law, unsupported by substantial evidence, and arbitrary and capricious. WEAN reasons that the ordinance improperly distinguishes between upland dispersal habitat and wetland breeding habitat where the Department's best available science established that any occurrence must be protected. WEAN also argues that the ordinance fails to adequately apply the precautionary approach, as the GMA requires when the science is uncertain. WEAN contends that the 1,000-foot radius for requiring a biological site assessment is arbitrary in that it universally applied to all critical areas and was not western toad-specific. WEAN also challenges the provision enabling the County to waive the biological site assessment requirement if development impacts will be minor.

¶4 We hold that WAC 365-190-130(4)(b) expressly establishes that the Department's priority habitat and species information for candidate species is the "best available science" and the Department has established that any occurrence of the western toad should be designated as a critical area. The Board misapplied the GMA's best available science requirement by upholding the County's decision that only those upland occurrences known to the County at the time the ordinance was adopted would be designated as critical areas. This decision also violated the precautionary approach because the lack of scientific understanding regarding upland western toad habitat means upland occurrences should be designated and protected when they are discovered.

¶5 We also hold that the provision granting the planning director unrestricted discretion to waive the required biological site assessment is contrary to law. However, we reject WEAN's challenge to the 1,000-foot radius for requiring a biological assessment because WEAN has failed to meet its burden to show that the 1,000-foot radius was arbitrary and capricious.

¶6 We accordingly reverse the Board's ruling upholding the County's decision not to automatically designate any later-identified upland occurrences and the provision allowing the County to waive the biological site assessment when the planning director determines development impacts will be minor. We affirm in all other respects.

FACTS

¶7 The Department lists the western toad as a "[c]andidate species" because the toad is a candidate for listing as sensitive, threatened, or endangered. Administrative Record (AR) at 4071. Candidate species are also classified as "priority species," under the "Priority Habitats and Species Program," which means the western toad is "a priority for conservation and management and requires protective measures for survival." AR at 4071, 4080.

¶8 The Department classifies the western toad's "[p]riority [a]rea" as "[a]ny occurrence." AR at 4073. This designation "[a]pplies to a priority species with limiting habitat that is not known or to a species that is so rare that any occurrence is important in a land use decision." AR at 1424. The Department defines "[o]ccurrence" as a "[f]ish and wildlife observation from a source deemed reliable by [Department] biologists. An occurrence may represent an observation of an individual animal or a group of animals." Id. (bold type omitted). " ‘Occurrences are based on evidence of historical presence, or current and likely recurring presence, at a given location.’ " AR at 5718.

¶9 The County's deadline for updating its critical areas ordinance designating critical areas for habitat protection was December 1, 2005, which it missed. RCW 36.70A.130(4)(b). The County ultimately updated its designations in a 2014 ordinance that included protections for western toad habitat. The next deadline for the County to review and update its critical areas ordinance is in 2024.

¶10 WEAN challenged the 2014 ordinance under the GMA, and the Board ultimately agreed with WEAN that the ordinance was flawed in several respects and ordered the County to amend it. The County enacted a new ordinance in response to the Board's order, which WEAN continued to challenge. Relevant to this appeal, WEAN argued that the ordinance did not adequately protect the western toad. The Board agreed, ruling that this second ordinance was flawed in that it did not clearly protect the western toad's breeding site and did not protect upland, nonbreeding habitat at all. The Board once more ordered the County to address its continued noncompliance with the GMA and include best available science.

¶11 The County then enacted a third iteration of its critical areas ordinance, the version that is at issue in this appeal. See ISLAND COUNTY CODE (ICC) 17.02B. With respect to the western toad, the ordinance provides:

Western Toad breeding sites, as documented by scientifically verifiable data from [the Department], or a qualified professional, shall be protected through the county's wetland and stream critical areas regulations .... Such breeding sites, as they are presently known and documented as provided above, or may later be identified through the processing of site-specific land use and development permits or other scientifically verifiable data, are designated as fish and wildlife habitat conservation areas. Also designated as fish and wildlife habitat conservation areas are the occurrences identified by Priority Habitat Species data from [the Department] as it existed on January 24, 2017.

ICC 17.02B.210 (emphasis added). In other words, the ordinance designates all presently-known and later-identified breeding sites as critical areas, but it only designates other upland occurrences of the western toad that were known on January 24, 2017, the date this ordinance was adopted. The practical effect of this provision at the time the ordinance was adopted was the designation of six individual occurrences—one associated with an aquatic breeding site and five associated with upland, nonbreeding sites.

¶12 The ordinance also provides, in a provision that is more generally applicable to all protected species, that "[w]hen a development proposal is located within 1,000 feet of a habitat for a protected species or an identified fish and wildlife habitat conservation area or its buffer ... a biological site assessment ... shall be required." ICC 17.02B.400(A). This requirement can be waived if the County's planning director "determines that the proposed development would result in only minor impacts." ICC 17.02B.400(A)(1).

¶13 WEAN again challenged the ordinance, but this time the Board upheld it as complying with the GMA. The Board upheld the County's differing treatment of upland habitat and breeding sites, noting that the best available science was "thin" with respect to upland and dispersal habitat, while it clearly established that the western toad has a " ‘primary association’ " with wetlands as breeding habitat. AR at 5723. The Board also upheld the provision granting the planning director discretion to waive the biological site assessment requirement on the grounds that the provision is presumed valid and the Board would not assume that the County would abuse its discretion when applying the waiver provision without any evidence that the County was likely to do so.

¶14 WEAN moved for reconsideration. The Board denied the motion. This order denying reconsideration and the Board's prior order finding compliance are the basis for the current appeal. In its denial of reconsideration, the Board again concluded that the best available science did not support any additional designations.

¶15 Although the Board noted "the importance of upland, non-breeding dispersal areas for the Western toad," it concluded that the best available science considered by the County demonstrated that additional areas beyond the currently documented occurrences did not warrant designation. AR at 5972. The Board pointed to material prepared by an outside consultant commissioned by the County in support of treating breeding and upland habitat differently. The...