Swinomish Indian Tribal Community v. Western Washington Growth Management Hearings Board

¶55

Owens, J. (dissenting)

The majority affirms the Western Washington Growth Management Hearings Board’s (Board) finding that Skagit County’s “no harm” standard establishes an appropriate baseline for protecting critical areas within agricultural areas of long-term commercial significance. Under this standard, farmers must ensure that their agricultural practices do not cause further substantial harm to the present degraded conditions of the riparian fish and wildlife habitat. Because I read the Growth Management Act (GMA), chapter 36.70A RCW, as requiring enhancement under certain circumstances where existing conditions are degraded and cannot adequately support anadromous fisheries, I would hold the “no harm” standard fails to satisfy the GMA’s mandate to “adopt development regulations that protect critical areas.” RCW 36.70A.060(2). Thus, I respectfully dissent.

¶56 The legislature adopted the GMA after finding that “uncoordinated and unplanned growth, together with a lack of common goals expressing the public’s interest in the conservation and the wise use of our lands, pose a threat to the environment, sustainable economic development, and the health, safety, and high quality of life enjoyed by residents of this state.” RCW 36.70A.010. Among others, the legislature listed the following planning goals: “[m]ain-tain and enhance natural resource-based industries, including productive timber, agricultural, and fisheries industries,” “[e]ncourage the conservation of. . . productive agricultural lands,” “conserve fish and wildlife habitat,” *446 and “[p]rotect the environment and enhance the state’s high quality of life, including air and water quality.” RCW 36.70A.020(8)-(10). To accomplish these goals, the GMA specifically requires local jurisdictions to “adopt development regulations that protect critical areas.” RCW 36.70A-.060(2). “ ‘Critical areas’ ” include “fish and wildlife habitat conservation areas.” RCW 36.70A.030(5)(c). In designating and protecting critical areas, the GMA directs local jurisdictions to “include the best available science” and “give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fisheries.” RCW 36.70A.172G).

¶57 Pursuant to the GMA’s mandate to protect critical areas, Skagit County adopted an ordinance governing the protection of anadromous fish habitat within agricultural areas of long-term commercial significance. This ordinance includes minimal protective regulations and an adaptive management program aimed at protecting the existing functions and values of the fish and wildlife habitat. In particular, this ordinance requires “no evidence of significant degradation to the existing fish habitat characteristics of the watercourse” and mandates compliance with state water quality standards, total maximum daily load requirements, the state hydraulics code, and specified watercourse protection measures. Skagit County Ordinance 020030020(3)(a)(v), (i)-(iv) (codified at Skagit County Municipal Code 14.24.120(3)(a)(v), (i)-(iv)). In reviewing whether this ordinance complies with the GMA, the Board deemed that the combination of minimal protective regulations, namely the “no harm” standard, and the adaptive management program, which detects habitat deterioration, in theory, provides adequate protection for the critical areas. However, the Board found that Skagit County failed to establish benchmarks and implement triggers for corrective action, which are necessary for identifying deterioration and responding effectively with protective measures.

¶58 The majority affirms the Board’s decision, holding the “no harm” standard adequate if combined with a *447 functional program for adaptive management. The majority’s interpretation, however, conflicts with the legislature’s broad protection mandate for critical areas, particularly with respect to fish and wildlife habitat supporting ana-dromous fisheries. The legislature specifically directed local jurisdictions to “give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fisheries.” RCW 36.70A.172(1) (emphasis added).

¶59 In implementing this legislation, the Department of Community, Trade, and Economic Development (CTED) promulgated rules to explain the criteria for determining whether local jurisdictions gave adequate “special consideration” to conservation or protection measures under RCW 36.70A.172(1). In this regulation, CTED clarifies that conservation or protection measures “include measures that protect habitat important for all life stages of anadromous fish, including, but not limited to, spawning and incubation, juvenile rearing and adult residence, juvenile migration downstream to the sea, and adult migration upstream to spawning areas.” WAC 365-195-925(3). CTED further explains that local jurisdictions must consider “the best available science relevant to stream flows, water quality and temperature, spawning substrates, instream structural diversity, migratory access, estuary and nearshore marine habitat quality, and the maintenance of salmon prey species.” Id. These measures “can include the adoption of interim actions and long-term strategies to protect and enhance fisheries resources.” Id.

¶60 Nothing in the critical areas statute or its implementing regulations indicates that the legislature deemed the existing degraded conditions adequate to protect salmon habitat. To the contrary, the regulations demonstrate that preserving and enhancing fish and wildlife habitat to support salmon fisheries requires the implementation of complicated measures. Moreover, the legislature anticipated that protecting these critical areas may entail development regulations that change, modify, or stop exist *448 ing legal practices. For example, the legislature specifically qualified its mandate to protect agricultural, forest, and mineral resource lands with a prohibition on regulations that interfere with preexisting legal uses. RCW 36.70A-.060(1)(a). The legislature specifically did not include a similar provision in its mandate to protect critical areas, RCW 36.70A.060(2); in fact, the legislature removed the provision from the bill before enacting it. See Final Rep. on Engrossed Substitute H.B. 1025, at 3, 52d Leg., 1st Spec. Sess. (Wash. 1991). By omitting language that would prohibit regulations that restrict preexisting legal uses in critical areas under RCW 36.70A.060(2), the legislature demonstrated its intent for local jurisdictions to enact robust protection measures as necessary to ensure the continued viability of critical areas.

¶61 In addition to undermining the legislature’s intent to provide broad protection for fish and wildlife habitat, the majority’s holding relies on flawed reasoning. The majority observes that the legislature did not explicitly define “protect” in the G3VLA. After examining the dictionary, and the legislature’s use of the term “protect” in other statutory provisions, the majority reasons that “something can be protected without it being enhanced.” Majority at 428. Thus, according to the majority, enhancement is never a necessary component of protection. From this logic, the majority deduces that maintenance of the existing conditions always protects the fish and wildlife habitat, even where the conditions are presently degraded. Id. at 428-29.1 disagree. The fact that protection does not always require enhancement does not mean that protection never requires enhancement. Whether protection requires enhancement depends on the condition of the object to be protected. Where the conditions of the fish and wildlife habitat are degraded and thereby unable to support the anadromous fisheries, protection may require some level of enhancement.

¶ 62 The majority’s analogy to a dilapidated automobile is similarly unavailing. The majority explains that “an *449 individual charged with protecting his friend’s dilapidated automobile discharges that duty despite not refurbishing it. If the car is returned in its same condition, it was protected, but not enhanced.” Id. Contrary to the majority’s implication, the individual’s failure to enhance the car does not necessarily mean that he fulfilled his duty to protect the car. The majority provides no support to show how the car “was protected,” except that it “[was] not enhanced.” This analogy fails to recognize that depending on the circumstances, the individual would have had to do something in order to protect the car; in an unsafe neighborhood, this may have involved locking the doors or parking in a garage, and in flooded conditions, this may have involved moving the car to another street. Simply returning it in the same condition does not demonstrate how the individual protected it; rather, it shows only that the individual returned it without refurbishing it. In a similar fashion, the majority provides no support for its determination that Skagit County’s “no harm” standard “protects” the fish and wildlife habitat, except by showing that the standard does not enhance the habitat. 16

¶63 Although the majority recognizes that protection may result in enhancement, it holds that enhancement is an option, never a requirement. This conclusion ignores the legislature’s intent to provide genuine protection for fish and wildlife habitat critical areas supporting anadromous fisheries. Rather than assuming that existing conditions provide adequate protection, I would hold that the conditions of the salmon habitat dictate whether the local jurisdiction should employ preservation or enhancement measures. While I agree with the majority’s ultimate conclusion that Skagit County failed to establish baselines and imple- *450 merit an adequate monitoring system to protect the salmon habitat, I also believe that Skagit County failed to show that the “no harm” approach of maintaining existing conditions meets the GMA’s directive. Contrary to the majority’s position, I read the GMA to require that local jurisdictions take action to protect salmon fisheries; depending on the existing conditions, protection may entail preservation or enhancement. If the conditions are “dilapidated,” then merely maintaining them does not provide the protection the GMA requires.

After modification, further reconsideration denied April 4, 2008.

The majority contends that my approach “confuses the question of how an object is protected with the question of whether it was protected.” Majority at 429 n.4. However, in order to determine whether Skagit County’s ordinance adequately protected the riparian fish and wildlife habitat under RCW 36.70A-.060(2), we must first establish what procedures are necessary — i.e., how — to protect the critical areas. After that initial inquiry, we then examine whether Skagit County’s protection measures satisfied the “protect” requirement.