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Olympic Stewardship Foundation v. State

Court of Appeals of Washington, Division 2

June 20, 2017

OLYMPIC STEWARDSHIP FOUNDATION, J. EUGENE FARR, WAYNE and PEGGY KING, ANNE BARTOW, BILL ELDRIDGE, BUD and VAL SCHINDLER, RONALD HOLSMAN, CITIZENS' ALLIANCE FOR PROPERTY RIGHTS LEGAL FUND, MATS MATS BAY TRUST, JESSE A. STEWART REVOCABLE TRUST, CRAIG DURGAN, and HOOD CANAL SAND & GRAVEL, d/b/a THORNDYKE RESOURCES, Petitioners,
v.
STATE OF WASHINGTON ENVIRONMENTAL AND LAND USE HEARINGS OFFICE, acting through the WESTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD, STATE OF WASHINGTON DEPARTMENT OF ECOLOGY, JEFFERSON COUNTY, and THE HOOD CANAL COALITION, Respondents.

          Johanson, J.

         The subject of this appeal is Western Washington Growth Management Hearings Board's (Board) final decision and order that upheld Jefferson County's 2014 Shoreline Master Program (Master Program). Olympic Stewardship Foundation (OSF), Citizen's Alliance for Property Rights Jefferson County (CAPR), et al., and Hood Canal Sand and Gravel (S&G) appeal various aspects of the Board's decision. The appellants raise numerous and largely separate and distinct issues. Thus, in the published portion of the opinion, after providing brief background information and general standards of review, we address OSF's issues in Part One, CAPR's issues in Part Two, and S&G's issues in Part Three. We address the appellants' remaining arguments in Parts One, Two, and Three of the unpublished portion of the opinion respectively. Finding no error in the Board's decision, we affirm.

         BACKGROUND

         Since 1974, Jefferson County (the County) has had several Master Programs. Under the Shoreline Management Act of 1971 (SMA), [1] each County is required to adopt and administer a Master Program. Citizens for Rational Shoreline Planning v. Whatcom County, 172 Wn.2d 384, 387, 258 P.3d 36 (2011). A Master Program is a combination of planning policies and development regulations that addresses shoreline uses and development. WAC 173-26-020(24), -186.

         In 2003, the Department of Ecology (DOE) formally adopted guidelines (Master Program guidelines) for the development and approval of new and updated Master Programs by local governments.[2] Ch. 173-26 WAC. The SMA and the Master Program guidelines afford substantial discretion to local governments to adopt Master Programs that reflect local circumstances. WAC 173-26-171(3)(a). But Master Programs must comply with Master Program guidelines and will not be effective until reviewed and approved by the DOE. RCW 90.58.080(1), .090. A Master Program becomes part of Washington's shoreline regulations once approved by the DOE. Citizens for Rational Shoreline Planning, 172 Wn.2d at 392. The Board hears challenges to the DOE approval of Master Programs or amendments. RCW 90.58.190(2)(a).

         In January 2004, the legislature mandated that all jurisdictions update their Master Programs by 2014. Ch. 173-26 WAC; RCW 90.58.080(7).

         In 2005, the County initiated the Master Program amendment process. The County's Department of Community Development (DCD) formed two advisory committees to assist staff and consultants with planning and executing the Master Program amendment process. The DCD formed the Shoreline Technical Advisory Committee to compile and review current scientific and technical information. The DCD also established a Shoreline Policy Advisory Committee to assist with the development of goals, policies, and regulations based on the scientific and technical information. Between 2006 and 2008, the DCD informed the public about the update through e-mail and through numerous open public events to ensure public participation in the amendment process and provide the public with opportunities to comment on the Master Program.

         In preparation for the Master Program amendment, the DCD staff worked with an outside consultant and the Shoreline Technical Advisory Committee to prepare the November 2008 "Final Shoreline Inventory and Characterization Report" (SI). The SI was based on over 200 sources, many of which focused on Western Washington and the Puget Sound and some discussed marine environments. The DOE provided technical support to the County for preparing the SI by conducting a detailed watershed characterization[3] of East Jefferson County using a landscape analysis. This analysis identified areas that were the most important to maintaining ecosystems; areas that degraded the ecosystems because of human-caused alterations; and areas that were best suited for protection, development, and/or restoration.

         A 2004 report relied on by the SI documented pollution from toxic substances, runoff from rainwater, loss of habitat, and declines in key parts of the food web ecology in many areas of the Puget Sound. The report further noted that the region's population was expected to grow by another 1.4 million people over the next 15 years.

         The SI stated that the County's shoreline contains critical habitats and is home to numerous threatened and endangered species, including declining salmonid species. From that evaluation, the SI concluded that "virtually all of the County's nearshore marine environment supports or has the potential to support highly valuable and ecologically sensitive resources." Administrative Record (AR) at 6273.

         The SI evaluated key species, habitats, and ecosystems in specific areas in the county shoreline. The SI also described development adjacent to individual shoreline segments, including the armoring, [4] marinas, beach access stairs, docks, and other structures for each shoreline area. In addition, the SI included a large map folio detailing the characteristics of the County's state shorelines including marine and freshwater shoreline planning areas, water flows for rivers and streams, soil types, channel migration zones and flood plains, areas designated as critical areas and critical shoreline habitats, and the locations of aquatic vegetation, shoreline use patterns, and shellfish harvesting areas.

         In the SI report, the County designated S&G's shoreline property as a "conservancy" area based on the property's environmental attributes, including: high-functioning shoreline resources with a low degree of modification or stressors, the presence of salmonid habitats, the presence of erosive or hazardous slopes, and the presence of commercial shellfish beds.

         A 2009 action agenda by the Puget Sound Partnership identifies six broad categories of threats to the region's ecology, including habitat alteration, pollution, surface/groundwater impacts, artificial propagation, harvest, and invasive species. The agenda notes that these issues are likely to be exacerbated in the future by climate change and population growth.

         In February 2010, the DCD staff and consultants prepared the "Cumulative Impacts Analysis" (CIA). The CIA assessed the total collective effects that the goals, policies, shoreline designations, and regulations proposed in the locally approved Master Program (Draft Master Program) would have on shorelines if all allowed use and development occurred.

         In March 2010, the DCD sent the Draft Master Program to the DOE for review. The DOE also considered and sent comments about the CIA to the Jefferson County Board of Community Commissioners (Commissioners). In January 2011, the DOE concluded that the County met the SMA's procedural and policy requirements and announced conditional approval of the Draft Master Program with some required and recommended changes along with findings and conclusions to support the decision. After further edits and communication with the DOE, the Commissioners approved and adopted the County's final Master Program in December 2013. In February 2014, the DOE approved the Master Program and it became effective. The Master Program is codified at ch. 18.25 Jefferson County Code (JCC).[5]

         Appellants OSF, CAPR, and S&G (collectively petitioners) each timely filed petitions for review with the Board to challenge the County's Master Program. The Board consolidated the petitions and conducted a hearing on the merits. On March 16, 2015, the Board upheld the Master Program, denied all of the petitioners' claims, and dismissed their petitions. Petitioners appealed to the Jefferson County Superior Court in April. In September 2015, upon a motion by the DOE that was supported by the County, we granted direct review removing the petitions from the superior court. Petitioners appeal the Board's decision and order.[6]

         ANALYSIS

         Legal Principles[7]

         A. The Growth Management Hearings Board

         Challenges to a Master Program are governed by the SMA and are adjudicated by the Board. RCW 90.58.190(2)(a). The Board is charged with ensuring that Master Programs comply with the Growth Management Act (GMA), [8] the SMA, and the DOE guidelines. RCW 36.70A.280; RCW 90.58.190(2), .200, .060; WAC 173-26-171 through -251.

         A petitioner has the burden of proof in any appeal to the Board for review of the DOE's approval of a Master Program or amendment. RCW 90.58.190(2)(d). Where a challenge is to provisions regulating shorelines of statewide significance (SSWS), "the board shall uphold the decision by the [DOE] unless the board, by clear and convincing evidence, determines that the decision of the [DOE] is noncompliant with the policy of [the SMA] or the applicable guidelines, or chapter 43.21C RCW as it relates to the adoption of master programs." RCW 90.58.190(2)(c).

         If a challenge is to provisions regulating shorelines not in the SSWS category, the Board shall review the proposed Master Program "solely for compliance with the requirements" of the SMA, the applicable Master Program guidelines, and other internal consistency provisions from the GMA. RCW 90.58.190(2)(b). With respect to provisions affecting only shorelines, a petitioner must establish that the provisions at issue are "clearly erroneous" in view of the entire record before the Board. RCW 36.70A.320(3) (emphasis added).

         The County has shorelines falling under both categories. The Board thus examined the County's Master Program under both SSWS and shoreline scopes of review and applicable burdens of proof.

         B. Administrative Procedure Act

         The Administrative Procedure Act (APA), ch. 34.05 RCW, governs judicial review of challenges to actions by growth management hearings boards. RCW 34.05.570; Quadrant Corp. v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd, 154 Wn.2d 224, 233, 110 P.3d 1132 (2005). Under the APA, the party asserting invalidity bears the burden of establishing the invalidity. Quadrant Corp., 154Wn.2dat233.

         The decision is invalid if it suffers from at least one of nine enumerated infirmities. RCW 34.05.570(3). We must grant relief from the decision if

(a) [t]he order, or the statute or rule on which the order is based, is in violation of constitutional provisions on its face or as applied;
(d) The agency has erroneously interpreted or applied the law;
(e) The order is not supported by evidence that is substantial when viewed in light of the whole record before the court, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this chapter;
(i) The order is arbitrary or capricious. RCW 34.05.570(3).

         We give due deference to the Board's specialized knowledge and expertise. Buechel v. Dep't of Ecology, 125 Wn.2d 196, 202-03, 884 P.2d 910 (1994).

         We apply the substantial evidence review standard to challenges to the Board's factual findings under RCW 34.05.570(3)(e) to determine if there is a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of the order. Spokane County v. E. Wash. Growth Mgmt. Hr'gs Bd, 176 Wn.App. 555, 565, 309 P.3d 673 (2013). We view the evidence in the light most favorable to the party which prevailed in the highest forum that exercised factfinding authority, and we give deference to the Board's factual findings. DeFelice v. Emp't Sec. Dep't, 187 Wn.App. 779, 787, 351 P.3d 197(2015).

         We apply the arbitrary and capricious review standard to challenges under RCW 34.05.570(3)(i), determining whether the decision constitutes willful and unreasoning action taken without regard to or consideration of the facts and circumstances surrounding the action. Spokane County, 176 Wn.App. at 565-66. If there is room for two opinions, action taken after due consideration is not arbitrary and capricious even if a reviewing court may believe it to be erroneous. Spokane County, 176 Wn.App. at 566.

         We review de novo a challenge under RCW 34.05.570(3)(d) that asserts that the Board erroneously interpreted or applied the law. City of Redmond v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd, 136 Wn.2d 38, 46, 959 P.2d 1091 (1998). In doing so, "'[w]e accord deference to an agency interpretation of the law where the agency has specialized expertise in dealing with such issues, but we are not bound by an agency's interpretation of a statute.'" Quadrant Corp., 154 Wn.2d at 233 (alteration in original) (quoting City of Redmond, 136 Wn.2d at 46).

         "Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration." Holland v. City of Tacoma, 90 Wn.App. 533, 538, 954 P.2d 290 (1998). We also do not consider claims unsupported by legal authority, citation to the record, or argument. RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).

         PART ONE - OSF APPEAL

         OSF appeals the Board's final decision and order that upheld Jefferson County's 2014 Master Program. Specifically, OSF argues that (1) the Board's decision to uphold the Master Program is based on an erroneous SMA interpretation, (2) the Board erred when it approved the Master Program because it did not comply with several provisions of the SMA, and (3) the Board erred when it upheld the Master Program "no-net-loss" requirement for permit applicants because that requirement conflicts with the SMA by improperly restricting development and the SMA "minimization standard" must control instead. We reject OSF's arguments.

         Analysis

         I. Board Properly Interpreted the SMA

         First, OSF argues that the Board's decision to uphold the Master Program is based on an erroneous SMA interpretation that private property rights are secondary to the SMA's purpose of protecting the environment. We disagree.

         A. Applicable Law

         The SMA's policy and use preference for shorelines is detailed in RCW 90.58.020:

The legislature finds that the shorelines of the state are among the most valuable and fragile of its natural resources and that there is great concern throughout the state relating to their utilization, protection, restoration, and preservation. In addition it finds that ever increasing pressures of additional uses are being placed on the shorelines necessitating increased coordination in the management and development of the shorelines of the state. . . .
. .. This policy contemplates protecting against adverse effects to the public health, the land and its vegetation and wildlife, and the waters of the state and their aquatic life, while protecting generally public rights of navigation and corollary rights incidental thereto.
The legislature declares that the interest of all of the people shall be paramount in the management of shorelines of statewide significance. The [DOE], in adopting guidelines for shorelines of statewide significance, and local government, in developing master programs for shorelines of statewide significance, shall give preference to uses in the following order of preference which:
(1) Recognize and protect the statewide interest over local interest;
(2) Preserve the natural character of the shoreline;
(3) Result in long term over short term benefit;
(4) Protect the resources and ecology of the shoreline;
(5) Increase public access to publicly owned areas of the shorelines;
(6) Increase recreational opportunities for the public in the shoreline;
(7) Provide for any other element as defined in RCW 90.58.100 deemed appropriate or necessary.
In the implementation of this policy the public's opportunity to enjoy the physical and aesthetic qualities of natural shorelines of the state shall be preserved to the greatest extent feasible consistent with the overall best interest of the state and the people generally. To this end uses shall be preferred which are consistent with control of pollution and prevention of damage to the natural environment, or are unique to or dependent upon use of the state's shoreline.

(Emphasis added.)

         This SMA policy is also informed by the State Environmental Policy Act (SEPA), ch. 43.21C RCW, which states that "to the fullest extent possible: (1) [t]he policies, regulations, and laws of the state of Washington shall be interpreted and administered in accordance with the policies set forth in this chapter." RCW 43.21C.030. Among the SEPA policies applicable to the SMA are the recognition of "the responsibilities of each generation as trustee of the environment for succeeding generations, " RCW 43.21C.020(2)(a), and the recognition that "each person has a fundamental and inalienable right to a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment." RCW 43.21C.020(3). Accord Puget Soundkeeper All. v. Pollution Control Hr'gs Bd., 189 Wn.App. 127, 148, 356 P.3d 753 (2015).

         The Master Program guidelines direct how the SMA policy provision should be implemented. For example, the Master Program guidelines state that single-family residences are a priority use for shoreline development "when developed in a manner consistent with control of pollution and prevention of damage to the natural environment'' WAC 173-26-241(3)(j) (emphasis added). The Master Program guidelines acknowledge that any development, including residential development, may cause significant damage to the shoreline and provides that Master Programs must mitigate such environmental damage. WAC 173-26-241(3)(j). Specifically, the Master Program guidelines state, "Master programs shall include policies and regulations that assure no net loss of shoreline ecological functions will result from residential development." WAC 173-26-241(3)(j) (emphasis added). The concept of "no net loss" is incorporated into the SMA and elsewhere in the Master Program guidelines. RCW 90.58.620; WAC 173-26-186(8).

         B. No Erroneous Interpretation

         OSF argues that the Board's decision to uphold the Master Program was based on an erroneous interpretation of the SMA that property rights are secondary to the primary goal of protecting, restoring, and enhancing the environment. OSF specifically challenges two passages of the Board's decision.

         The first statement that OSF challenges is that private property rights are secondary to the SMA's primary purpose of protecting state shorelines as fully as possible. However, OSF ignores that the statement is consistent with our interpretation of the SMA. The Board's statement is a quote from Samson v. City of Bainbridge Island, which states, "[C]ontrary to the appellant's claims that RCW 90.58.020 states a policy of protecting private property rights, . . . private property rights are 'secondary to the SMA's primary purpose, which is to protect the state shorelines as fully as possible.'" 149 Wn.App. 33, 49, 202 P.3d 334 (2009) (internal quotation marks omitted) (quoting Lund v. Dep't of Ecology, 93 Wn.App. 329, 336-37, 969 P.2d 1072 (1998)). Samson refutes the general idea that the SMA must always prioritize private property rights.

         The Board properly quoted Samson to support its analysis that even though single-family homes are one of the priority uses under the SMA, the County may still restrict structures or uses on residential property in furtherance of ecological protection goals. In fact, reasonable and appropriate uses should be allowed on the shorelines only if they will result in no net loss of shoreline ecological functions and systems. See RCW 90.58.020; WAC 173-27-241(3)0). The Board's quotation of Samson does not demonstrate that the Board erroneously interpreted the SMA.

         The second passage that OSF challenges states,

[T]he Board finds that RCW 90.58.020 establishes state policy to manage shorelines with an emphasis on the maintenance, protection, restoration, and preservation of "fragile" shoreline "natural resources, " "public health, " "the land and its vegetation and wildlife, " "the waters and their aquatic life, " "ecology" and "environment."

AR at 7483. But this language comports with the SMA policy provision quoted above. See RCW 90.58.020. We hold that the two passages OSF relies on do not demonstrate that the Board erroneously interpreted the SMA.[9]

         II. Master Program Complies with SMA

         OSF argues that the Board erred when it approved the Master Program because the Master Program did not comply with the SMA. Specifically, OSF argues that the Board erred when it upheld (1) the Master Program's designation of all the county shorelines as "critical areas" and (2) the Master Program's imposition of a 150-foot standard marine buffer.[10] These arguments fail. A. Incorporation of County's Critical Areas Ordinance Into the Master Program

         First, OSF argues that the Board erred when it upheld the Master Program because the Master Program incorporated the County's 2000 "Critical Area Ordinance" (CAO) designation of all shorelines as "critical areas" without proper review of the CAO by the DOE, which violates the SMA. We reject these arguments.

         1. Applicable Law

         The GMA governs the protection afforded to state shorelines. RCW 36.70A.480. CAOs adopted by local governments under the GMA apply to shorelines until the DOE approves a Master Program update, at which time the shorelines' critical areas are regulated exclusively under the SMA. RCW 36.70A.480(3)(d); Kitsap All. of Prop. Owners (KAPO) v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd, 160 Wn.App. 250, 257, 255 P.3d 696 (2011).

         The Master Program guidelines thus note that "[f]or the purposes of completeness and consistency, " local governments may include other locally adopted policies and regulations including CAOs into Master Programs. WAC 173-26-191(2)(b). This incorporation is allowed as long as the incorporated provisions meet SMA requirements. RCW 36.70A.480(4). Among those is the requirement of RCW 36.70A.480(4) that Master Programs "provide a level of protection to critical areas located within shorelines of the state that assures no net loss of shoreline ecological functions necessary to sustain shoreline natural resources as defined by [the DOE] guidelines." In other words, the incorporated CAO provision must be consistent with RCW 90.58.020 and applicable Master Program guidelines, achieve no net loss, and provide a level of critical areas protection at least equal to that provided by the local government's CAOs. RCW 90.58.090(4).

         2. Board Decision

         The Board concluded that the DOE's review assured that the incorporated CAO met the '"no net loss of ecological functions'" requirement for Master Programs prescribed in the GMA and as referenced in RCW 36.70A.480(4). AR at 7500. Thus, the Board concluded that OSF had not met its burden to establish that the County failed to meet the SMA or Master Program guideline requirements for the incorporation of the County's CAO into the Master Program.

         3. Analysis

         Here, the GMA and Master Program guidelines expressly provide that Master Programs may incorporate existing CAO provisions if they are consistent with the SMA and Master Program guideline requirements. RCW 36.70A.480(4); WAC 173-26-191(2)(b). OSF argues that the incorporation of the CAO into the Master Program "directly conflicts with the SMA" because the SMA allows for multiple uses of shorelines, but the critical areas designation prohibits reasonable and appropriate uses of the shoreline. Br. of Appellant (OSF) at 27.

         But OSF provides no factual support[11] for this assertion. Further, OSF states that the Board did not cite to evidence showing that the DOE reviewed the CAO provisions for consistency with the SMA and Master Program guideline. OSF also fails to provide legal authority that the Board must cite to such evidence, and OSF failed to provide any other analysis or factual support showing that the DOE failed to make the analysis OSF claims is needed. We hold that OSF has failed to establish that the Board erred when it concluded that the Master Program's CAO incorporation did not violate the SMA or Master Program guidelines.

         B. Adoption of 1 50-Foot Marine Buffers

         Next, OSF argues that the Board erred when it upheld the Master Program's imposition of a 150-foot marine buffer on all shoreline development because the Master Program was not supported by proper evidence and violated the SMA and Master Program guidelines. OSF's contentions are unavailing.

          1. Applicable Law

         When creating a Master Program, the DOE and the County are required to "[u]tilize a systematic interdisciplinary approach which will insure the integrated use of the natural and social sciences." RCW 90.58.100(1)(a). The Master Program guideline covering periodic review and amendments of Master Programs states that local governments should amend Master Programs when deemed necessary to reflect changing local circumstances, new information, or improved data. WAC 173-26-090. The GMA also addresses buffer regulations: "If a local jurisdiction's master program does not include land necessary for buffers for critical areas that occur within shorelines of the state, as authorized by RCW 90.58.030(2)(f), then the local jurisdiction shall continue to regulate those critical areas and their required buffers pursuant to RCW 36.70A.060(2)." RCW 36.70A.480(6) (emphasis added).

         The Master Program guidelines also establish the type of scientific evaluation required for Master Programs:

Before establishing specific master program provisions, local governments shall analyze the information gathered in (c) of this subsection and as necessary to ensure effective shoreline management provisions, address the topics below, where applicable.
(i) Characterization of functions and ecosystem-wide processes.
(A) Prepare a characterization of shoreline ecosystems and their associated ecological functions. The characterization consists of three steps:
(I) Identify the ecosystem-wide processes and ecological functions based on the list in (d)(i)(C) of this subsection that apply to the shoreline(s) of the jurisdiction.
(II) Assess the ecosystem-wide processes to determine their relationship to ecological functions present within the jurisdiction and identify which ecological functions are healthy, which have been significantly altered and/or adversely impacted and which functions may have previously existed and are missing based on the values identified in (d)(i)(D) of this subsection; and
(III) Identify specific measures necessary to protect and/or restore the ecological functions and ecosystem-wide processes.

WAC 173-26-201(3)(d) (emphasis added). 2. Board Decision

         The Board devoted 10 pages of its decision to discussing the Master Program buffer imposition and the evidence supporting it. The Board analyzed the Master Program buffer guidelines and opined that the guidelines permitted local governments to provide land for buffers for critical areas. The Board further found the "[Master Program], the SI, and the CIA replete with scientific evidence demonstrating how the County met legal requirements to establish buffers and address vegetation conservation." AR at 7496. And the Board concluded that the County assembled scientific justification for the buffer width selected. The Board deemed OSF's arguments with respect to WAC 173-26-090 and -201 abandoned for lack of legal argument. The Board also acknowledged that RCW 36.70A.480 stated that a local government may include land necessary for buffers for critical areas, but the Board did not analyze whether the Master Program violated or complied with this statute.

         3. Analysis

         Here, the Master Program imposed a standard 150-foot buffer for all freshwater and marine water shorelines. JCC 18.25.270(4)(e). Challenging these provisions, OSF argues that the scientific information gathered in the SI and CIA are insufficient to justify the 150-foot buffers. OSF highlights some of the scientific resources the Master Program apparently relied on, but it does so largely without citation to the record. OSF makes many assertions about the insufficiency of the SI. OSF also states that the "Schaumburg Report" included in the supplemental evidence it submitted on appeal undermines the science that the Master Program relies on.[12] OSF s arguments attack the adequacy of the selected buffer width. The County's choice of 150 feet, however, is supported by the scientific evidence summarized and discussed below and is consistent with the policies of the SMA and the provisions of the SMA guidelines.

         a. Sufficient Evidence Supports the Master Program's Buffer Provision

         OSF fails to explain how the evidence supporting the buffer provision was insufficient or how the conclusions in the Schaumburg Report undermine the Master Program's buffer provisions such that they must be stricken and reevaluated. When assessing the sufficiency of evidence, we view the evidence in the light most favorable to the party who prevailed in the highest forum that exercised fact-finding authority, here the Board. City of University Place v. McGuire, 144 Wn.2d 640, 652, 30 P.3d 453 (2001). Accordingly, based on the evidence below, we hold that the scientific evidence is sufficient to support the buffer requirement. i. Documented Impacts Of Development And Support for Shoreline Buffers

         The SI documented the impacts of development on shorelines and provided support for the buffer requirement. The SI reports that potential and documented direct impacts from the development of piers, docks, and other shoreline modifications include loss of shoreline/riparian vegetation, burying of habitats, damage from equipment to eggs incubating on the beach, and lowering and coarsening of beach profiles. Indirect impacts can and have occurred from sediment transport and impoundment and from water quality degradation from development that affects forage fish and herring habitats. The SI further documented how development, near-shore armoring, and vegetation removal impacted ecological functions.

         The SI contained support for the adoption of a 150-foot shoreline buffer[13] based on analysis of numerous factors including comparably sized buffers adopted by other Washington counties and the documented effect of different-sized buffers on various types of shoreline hazards.[14] The SI also states that "[depending on the specific nearshore resources being protected and the specific functions being provided by the buffer, recommended widths may differ." AR at 2446.

         ii. Cumulative Impact Analysis on Known and Potential Ecological Harm

         The CIA provided information about known and potential ecological harm to shorelines resulting from construction and development. The CIA stated that "Jefferson County's shorelines are in relatively good condition ecologically compared to more developed areas of the Puget Sound basin." AR at 2361. The CIA commented on the Draft Master Program's limitations on development:

Importantly, the [Master Program] expressly prohibits any use/development that would cause a net loss of ecological functions or processes. As a result, the County must deny shoreline use and development proposals unless impacts are fully mitigated. Specific performance standards contained in the [Draft Master Program] that will prevent cumulative impacts from occurring are summarized in this document. AR at 5650 (emphasis added). The CIA further stated, "The [Draft Master Program] imposes strict limits on construction of new bulkheads (or other types of structural shoreline stabilization or armoring) and expansion of existing bulkheads on residential properties to prevent adverse effects on net shore-drift, beach formation, juvenile salmon migratory habitat and other shoreline functions."

AR at 2363. The CIA clarified that it evaluated the Draft Master Program to determine whether it contained adequate measures to mitigate use and development such that they would result in no net loss of ecological functions compared to baseline conditions. This evaluation presumed impacts will occur, but it evaluated whether there were adequate measures in place so post-development conditions are no worse overall than before development.

         With respect to the Draft Master Program's water impact, the CIA noted that nutrients and matter entering marine waters via streams and rivers from agricultural operations, wastewater treatment plants, and storm water runoff from residential landscapes affects the quality of the County's marine waters. The CIA addressed how buffers could help with this issue:

Riparian buffers offer discernable water quality protection from nearshore nutrient sources. The effectiveness of riparian buffers for protecting water quality depends on a number of factors, including soil type, vegetation type, slope, annual rainfall, type and level of pollution, surrounding land uses, and sufficient buffer width and integrity. Soil stability and sediment control are directly related to the amount of impervious surface and vegetated cover.

AR at 5679.

         The imposition of buffers protects shoreline ecological functions, processes, and habitat. The CIA also extensively discussed the buffers as part of the Master Program's no-net-loss compliance and what the impact of the buffer imposition would be on existing structures.

         The Master Program's buffer requirement is amply supported by the scientific evidence. b. The Master Program's Buffer Provision Does Not Violate the SMA or Master Program Guidelines

         OSF next asserts that under GMA provision RCW 36.70A.480(6) and Master Program guideline WAC 173-26-090, protection measures, like the buffers, that differ from an existing Master Program can be implemented only if the County proves such measures are necessary. We disagree.

         RCW 36.70A.480(6) states that if a local Master Program does not include "land necessary for buffers for critical areas that occur within shorelines of the state, " then local governments should continue to regulate critical areas and buffers pursuant to the GMA. (Emphasis added.) The Master Program guideline states that local governments should amend Master Programs when "deemed necessary to reflect changing local circumstances, new information or improved data'' WAC 173-26-090 (emphasis added).

         These provisions do not mean that a jurisdiction may impose or increase buffers only if necessary to serve a purpose of the SMA. The first provision, RCW 36.70A.480(6), merely specifies that if a Master Program does not include buffers necessary for critical areas, the jurisdiction shall continue to regulate those critical areas under the GMA. The second, WAC 173-26-090, describes when local governments should amend Master Programs in response to changing circumstances or information. Neither provision engraft a requirement of necessity on the adoption or amendment of Master Program provisions.

         Additionally, OSF argues that the Board erred when it upheld the 150-foot buffer regulation where the County failed to establish a baseline of whether development proposals would impact ecological functions in order to determine if the 150-foot buffer was too extreme of a mitigation measure as required by Master Program guideline WAC 173-26-20l(3)(d).[15] The Master Program guideline WAC 173-26-201 (3)(d) requires that before local governments establish Master Programs, they must characterize the functions and ecosystem processes of the area regulated by (1) identifying ecosystem-wide ecological functions and processes, (2) assessing the processes to determine their relationship to the ecological functions in the jurisdiction to determine which functions are healthy, have been altered or adversely impacted, or are missing, and (3) identifying specific measures necessary to protect and/or restore ecological functions and ecosystem-wide processes.

         The Board deemed OSF's arguments with respect to WAC 173-26-201 abandoned for lack of legal argument. The Board further found that the "[Master Program], the SI, and the CIA [were] replete with scientific evidence demonstrating how the County met legal requirements to establish buffers and address vegetation conservation." AR at 7496. And here, OSF fails to explain why the evidence the Board deemed sufficient to meet the County's legal requirements is not sufficient under Master Program guideline WAC 173-26-201(3)(d). "Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration." Holland, 90 Wn.App. at 538; see also RAP 10.3(a)(6). We thus decline to consider this issue further in the absence of reasoned argument as to why the evidence is not legally sufficient under the relevant Master Program guideline. For these reasons, the Board did not err in upholding the Master Program's imposition of a 150-foot marine buffer.

         III. Incorporation of "No Net Loss" Into the Master Program

         OSF next argues that the Board erred when it upheld the Master Program "no-net-loss" requirement for permit applicants because that requirement conflicts with the SMA by improperly restricting development. OSF further argues that the SMA "minimization standard" must control instead, otherwise all new development will be prohibited. OSF's arguments do not persuade us.

         A. Applicable Law

         The SMA's stated policy and use preference provision states, "[T]hat unrestricted construction on the privately owned or publicly owned shorelines of the state is not in the best public interest." RCW 90.58.020. Thus, the policy notes, "Permitted uses in the shorelines of the state shall be designed and conducted in a manner to minimize, insofar as practical, any resultant damage to the ecology and environment of the shoreline area and any interference with the public's use of the water'' RCW 90.58.020 (emphasis added). The SMA states that amended Master Programs approved after September 2011 may include provisions authorizing changes in "(b) . . . occupancy, or replacement of the residential structure if it is consistent with the master program, including requirements for no net loss of shoreline ecological functions." RCW 90.58.620(1) (emphasis added).

         In adopting the Master Program guidelines, the DOE adopted the phrase "no net loss of ecological functions" as a guiding principle for considering whether or not to approve local government programs. WAC 173-26-186(8)(d). In construing this principle, the Master Program guidelines acknowledge that any development has potential for "actual, short-term or long-term impacts" and that mitigation and other measures can assure the "end result will not diminish the shoreline resources and values as they currently exist." WAC 173-26-20l(2)(c).

         The Master Program guidelines underscore the SMA policies and state,

The principle regarding protecting shoreline ecological systems is accomplished by these guidelines in several ways, and in the context of related principles. These include:
(b) Local master programs shall include policies and regulations designed to achieve no net loss of those ecological functions.
(i) Local master programs shall include regulations and mitigation standards ensuring that each permitted development will not cause a net loss of ecological functions of the shoreline; local government shall design and implement such regulations and mitigation standards in a manner consistent with all relevant constitutional and other legal limitations on the regulation of private property.

WAC 173-26-186(8) (emphasis added). The Master Program guidelines state that the concept of "net"

recognizes that any development has potential or actual, short-term or long-term impacts and that through application of appropriate development standards and employment of mitigation measures in accordance with the mitigation sequence, those impacts will be addressed in a manner necessary to assure that the end result will not diminish the shoreline resources and values as they currently exist.

WAC 173-26-20 l(2)(c).

         B. Board Decision

         The Board concluded that the County correctly included the no-net-loss provision in the Master Program because the SMA clearly adopted the concept in RCW 90.58.620 and the Master Program guidelines require that no net loss be included in Master Programs. Thus, the Board concluded that OSF did not carry its burden to show that the Master Program's incorporation of the no-net-loss requirement violated the SMA.

         C. Analysis

         OSF points to two Master Program provisions to argue that the Board erroneously approved the DOE's and the County's application of "no net loss." JCC 18.25.270(2)(b), .100(14)(e). The first provision covered critical areas, shoreline buffers, and ecological protections and states, "Uses and developments that cause a net loss of ecological functions and processes shall be prohibited. Any use or development that causes the future ecological condition to become worse than current condition shall be prohibited." JCC 18.25.270(2)(b). The second provision is the Master Program's definition of "no net loss" that states,

"No net loss (NNL)" means the maintenance of the aggregate total of the county shoreline ecological functions over time. The no net loss standard contained in WAC 173-26-186 requires that the impacts of shoreline use and/or development, whether permitted or exempt from permit requirements, be identified and mitigated such that there are no resulting adverse impacts on ecological functions or processes.

JCC 18.25.100(14)(e). OSF argues that these provisions conflict with the policy of the SMA because the SMA no-net-loss policy is a concept gauged over time that recognizes that development will occur. It requires planning and mitigation measures, not prohibitions like those in the Master Program. This argument is unpersuasive.

         As set out above, the Master Program guidelines state that Master Programs "shall include policies and regulations designed to achieve no net loss of those ecological functions" and "(i). . . shall include regulations and mitigation standards ensuring that each permitted development will not cause a net loss of ecological functions of the shoreline." WAC 173-26-186(8)(b). By necessity, a proposal not complying with these mandatory directives would be prohibited. The denial of noncomplying proposals, however, is a common and effective feature of most regulatory systems. Nothing in the SMA suggests an intention to permit proposals that violate its terms. These mandatory directives from the Master Program that OSF challenges are consistent with the SMA policy set out in RCW 90.58.020, interpreted consistently with SEP A, as discussed above.

         The County's Master Program complies with these standards through its policy to "[e]nsure, at minimum, no net loss of shoreline ecological functions and processes, " JCC 18.25.010(1)(c), and through its mandate that "[u]ses and developments that cause a net loss of ecological functions and processes shall be prohibited." JCC 18.25.270(2)(b). The Master Program prohibitions do not go beyond the SMA or the guidelines, as OSF contends, because the very definition of "no net loss" in the Master Program incorporates the Master Program guideline definition of "no net loss" from WAC 173-26-186(8) and -201(2)(c). JCC 18.25.100(14)(e).

         Additionally, the Master Program guideline definition of "net" does not prohibit development-the Master Program requires application of appropriate development standards and employment of mitigation measures in accordance with the mitigation to assure the development will not result in diminished shoreline resources and values as they exist before the development. WAC 173-26-186(8). We hold that the Master Program's no-net-loss provision does not conflict with the SMA or the Master Program guidelines.

         IV. Master Program Restoration Requirements

         OSF next argues that the Board erred when it dismissed OSF's argument that the Master Program's permitting standards violated the law because they imposed restoration requirements that go beyond the SMA requirements to minimize impacts, that violate the SMA RCW 90.58.020 policy of protecting private property rights, and that unduly burden development rights in violation of Master Program guideline WAC 173-26-186. OSF argues that the Board's failure to address the specific SMA language that OSF cited to support its argument constitutes reversible error under RCW 34.05.570(3)(b), (d), and (f). Again, we disagree.

         A. Applicable Law

The APA governs judicial review of agency orders in adjudicative proceedings.
The court shall grant relief from an agency order in an adjudicative proceeding only if it determines that:
(b) The order is outside the statutory authority or jurisdiction of the agency conferred by any provision of law;
(d) The agency has erroneously interpreted or applied the law;
(f) The agency has not decided all issues requiring resolution by the agency. RCW 34.05.570(3).

         The SMA policy and preferred use provision states that while coordinated planning is necessary to protect the public interest associated with state shorelines, the policy also recognizes and protects private property rights "consistent with the public interest." RCW 90.58.020. The

         Master Program guidelines require local governments to include restoration and shoreline enhancement goals in their Master Programs:

For counties and cities containing any shorelines with impaired ecological functions, master programs shall include goals and policies that provide for restoration of such impaired ecological functions. These master program provisions shall identify existing policies and programs that contribute to planned restoration goals and identify any additional policies and programs that local government will implement to achieve its goals.

WAC 173-26-186(8)(c) (emphasis added).

         B. Board Decision

         The Board concluded that OSF failed to establish that the Master Program provisions containing restoration requirements violated the law, including RCW 90.58.020 or WAC 173-26-186.

         C. Analysis

         OSF argues that the Board erred when it dismissed OSF's argument that the Master Program's permitting standards imposed restoration requirements that go beyond the SMA requirements to minimize impacts, that violate the SMA RCW 90.58.020 policy of protecting private property rights, and that unduly burden development rights in violation of Master Program guideline WAC 173-26-186. In its reply brief, OSF clarifies that its argument is that Master Program guideline WAC 173-26-186 directs local governments to make use of established nonregulatory policies and programs to contribute to restoration, but the Master Program goes beyond this requirement because it imposes restoration and shoreline enhancement requirements on permit applicants.

         OSF does not support its first assertion that the Master Program restoration provisions go beyond the SMA requirements to minimize impacts. OSF neither points to any SMA mitigation provisions nor explains how the Master Program provisions go beyond them or why that would constitute error. Therefore, we hold that OSF's argument that the Board erred in this regard fails.

         In support of OSF's arguments that the Master Program violated SMA policy provision RCW 90.58.020 and Master Program guideline WAC 173-26-186, OSF points specifically to the restoration requirements in the following four Master Program provisions.[16]

First,
[t]o ensure that statewide interests are protected over local interests, the county shall review all development proposals within shorelines of statewide significance for consistency with RCW 90.58.030, this program, and the following, which are not listed in priority order:
(1) When shoreline development or redevelopment occurs, it shall include restoration and/or enhancement of ecological conditions if such opportunities exist.

JCC 18.25.250 (emphasis added).

         Second, "[w]henever possible, nonregulatory methods to protect, enhance, and restore shoreline ecological functions should be encouraged for residential development." JCC 18.25.500(1)(j) (emphasis added). Third, "[s]ingle-user moorage for private/recreational float planes may be permitted as a conditional use where construction of such moorage . .. (iii) Includes ecological restoration, in addition to mitigation, to compensate for the greater intensity of use associated with the float plane moorage." JCC 18.25.350(6)(k) (emphasis added).

         And fourth, "[m]arinas may be permitted on marine and river shorelines when they are consistent with this program and when the proponent demonstrates to the county's satisfaction that all of the following conditions are met: . . . (iii) The project includes ecological restoration measures to improve baseline conditions over time." JCC 18.25.350(7)(a) (emphasis added).

          The first of these provisions requires that on SSWS, shoreline development or redevelopment "include restoration and/or enhancement of ecological conditions if such opportunities exist." JCC 18.25.250(1). The second provision applies to only residential development but extends to all shorelines. JCC 18.25.500(1)(j). It is an admonition, not a requirement, encouraging nonregulatory methods of restoration "[w]henever possible." JCC 18.25.500(1)(j). The third and fourth Master Program provisions cover boating facilities and marinas attached to residential development and plainly mandate restoration measures be included with development. JCC 18.25.350(6)(k)(iii), (7)(a)(iii).

         But besides asserting in a conclusory manner that these provisions "go beyond" the SMA requirements to minimize impacts of development, OSF does not explain how requiring permit applicants to implement restoration measures is error requiring reversal of the Master Program or remand to strike these provisions of the Master Program. OSF provides no argument or analysis to show how these provisions violate private property rights in violation of RCW 90.58.020. And OSF provides no argument or analysis of how these provisions unduly burden development rights.

         The challenged Master Program provisions comport with the SMA policy to coordinate development planning in order to protect public interest in shorelines and with the Master Program guidelines to include restoration goals and policies. RCW 90.58.020; WAC 173-26-186(8)(c). The applicable guideline, WAC 173-26-186(8)(c), states in pertinent part,

For counties and cities containing any shorelines with impaired ecological functions, master programs shall include goals and policies that provide for restoration of such impaired ecological functions. These master program provisions shall identify existing policies and programs that contribute to planned restoration goals and identify any additional policies and programs that local government will implement to achieve its goals. These master program elements regarding restoration should make real and meaningful use of established or funded nonregulatory policies and programs that contribute to restoration of ecological functions.

         Although this guideline does not require that impaired ecological functions be restored as a condition of permit approval, nothing in it prevents a local government from imposing such a requirement. To the contrary, the restoration requirements in this Master Program, discussed above, are consistent with the directive of WAC 173-26-186(8)(c) that local governments adopt goals and policies for restoration of shorelines with impaired ecological functions. The Master Program's restoration requirements are also consistent with the core policy of the SMA "to protect the public interest associated with the shorelines of the state while, at the same time, recognizing and protecting private property rights consistent with the public interest." RCW 90.58.020. We hold that OSF fails to show that the Board erred by dismissing OSF's arguments related to the restoration provisions.

         In conclusion, we reject OSF's arguments and affirm the Board's decision on these grounds. We now turn to CAPR's arguments.

         PART TWO - CAPR APPEAL

         CAPR also appeals from the Board's final decision and order that upheld the 2014 Master Program. CAPR argues that the Board erred by upholding the Master Program because (1) the Master Program delegated excessive discretion to regulators, rendering certain provisions unconstitutionally vague; (2) the Master Program failed to demonstrate sufficient evidence of harm to the shorelines, resulted in de facto prohibitions in violation of the SMA and permit applicants' due process rights, and imposed permit conditions that violated landowners' due process rights; and (3) the Master Program lacked support from scientific evidence and the DOE failed to identify the scientific sources relied upon. We reject these arguments.

          Analysis

         I. Vagueness

         CAPR argues that the language of certain Master Program provisions is unconstitutionally vague because it delegates excessive discretion to county employees who will enforce it.[17] CAPR argues that this argument is compounded by the Master ...


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