HomeMy WebLinkAboutCL07 2025 08 05 JC and Applicant's Joint Respondents Response to MDNS Appeal Brief FINALJOINT RESPONSE TO MDNS APPEAL
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Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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BEFORE THE JEFFERSON COUNTY
HEARING EXAMINER
MARILYN SHOWALTER and JAN WOLD
Appellants,
vs.
JEFFERSON COUNTY,
Respondent,
and
ROCK ISLAND SHELLFISH; ROBERT CARSON,
Respondent.
Case No.: 072525
(SDP2024-00006)
JEFFERSON COUNTY AND
APPLICANT’S JOINT RESPONSE TO
MDNS APPEAL
I.INTRODUCTION
This case is remarkable for the contentions that Appellants do not make.
Appellants do not claim that Rock Island Shellfish’s proposed oyster farm
(“Project”), as conditioned in the mitigated determination of non-significance
(“MDNS”), has significant environmental impacts. Nor do Appellants specifically
request for an environmental impact statement to be prepared for the Project.
Appellants substantive concerns are limited to questions concerning documents
and measures referenced in the MDNS, speculation as to compliance and
enforcement issues, and upland activities not included as part of the Project – none
of which provide a basis for finding the MDNS clearly erroneous.
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JOINT RESPONSE TO MDNS APPEAL
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1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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Appellants’ primary focus in this appeal is procedural, and many of their
complaints concern broader issues as to the County’s administration of its
regulatory and environmental review programs. The County shares Appellants’
desire for effective administration of the County Code and, like any local
government, is always striving to improve its processes. To the extent Appellants
criticize specific procedural decisions made for the Project, they fail to demonstrate
that any reversible errors were made or that they suffered any prejudice.
For the reasons set forth below and to be presented at hearing, Appellants
will fail to demonstrate the MDNS is clearly erroneous, and therefore their appeal
should be denied and the MDNS should be affirmed.1
II. AUTHORITY AND ARGUMENT
A. Burden of Proof and Standard of Review.
Appellants bear the burden of proof. Jefferson County Hearing Examiner
Rules of Procedure (Rules of Procedure) 5.14(j). The Project’s MDNS is entitled to
substantial weight and may be overturned only if Appellants can prove it is clearly
erroneous. Rules of Procedure 5.14(j)(i), RCW 43.21C.090; Anderson v. Pierce
County, 86 Wn. App. 290, 936 P.2d 432 (1997). A decision is clearly erroneous when
the reviewing body “is left with the definite and firm conviction that a mistake has
been committed.” Moss v. City of Bellingham, 109 Wn. App. 6, 13, 31 P.3d 703
(2001). Rules of Procedure 1.1(d) similarly define the standard of review.
An MDNS is a SEPA determination that a project, as mitigated, does not
have probable significant environmental impacts and hence preparation of an
environmental impact statement (“EIS”) is not required. Moss, 109 Wn. App. at 14-
15. Thus, the focus in an MDNS appeal is whether the challenged project, as
conditioned, has probable significant impacts, and appellants bear the burden of
1 As set forth in Respondents’ motion to dismiss, Appellants’ appeal should be dismissed because they failed to provide timely comments to Jefferson County on the environmental impacts of the Project. Respondents provide this MDNS appeal response brief in the alternative.
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1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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demonstrating such impacts. Id. at 23-24, 29; WAC 197-11-330(1)(c). An impact is
probable only if it is “likely or reasonably likely to occur.” WAC 197-11-782. An
impact is significant only if it will have “more than a moderate adverse impact on
environmental quality.” WAC 197-11-794.
To prevail, Appellants must prove that SEPA’s substantive or procedural
requirements have been violated, and this evaluation is conducted in light of the
burden Appellants face to demonstrate the Project has probable significant impacts
warranting EIS preparation. Moss, 109 Wn. App. at 23. For example, in Moss, the
court determined that a DNS was issued prematurely under SEPA, prior to
imposition of mitigating conditions. 109 Wn. App. at 24-25. However, this was not
reversible error, given the project received considerable review and was
subsequently conditioned, and the appellants “have not shown that the approved
project, as mitigated, remains above the significance threshold.” Id. at 25.
Appellants also must demonstrate that any SEPA violations have caused
them prejudice. Errors do not result in prejudice when appellants receive notice of
a threshold determination and are able to challenge it. Moss, 109 Wn. App. at 29.
Contrast with Ellensburg Cement Products, Inc. v. Kittitas County, 171 Wn. App.
691, 287 P.3d 718 (2012) (reversing a local decision upholding a DNS when the
administrative appeal process violated SEPA by not providing an open-record
hearing as required by RCW 36.70B.060; the SEPA appeal was conducted entirely
through written submissions, preventing appellants from submitting evidence and
depriving them of a meaningful SEPA review).
B. The County Did Not Clearly Err in Issuing the MDNS.
Appellants’ Notice of Appeal alleges the County made numerous procedural
and substantive errors in issuing the MDNS. Appellants sought a summary
determination in their favor on the alleged procedural errors in their motion to
dismiss. As set forth in Respondents’ response to Appellants’ motion to dismiss and
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1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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summarized below,2 Appellants’ procedural arguments fail for multiple reasons: (1)
the County did not commit specific, alleged errors; (2) many alleged errors do not
relate to SEPA compliance; (3) the alleged errors are minor and do not warrant
reversal of the MDNS; and (4) Appellants suffered no prejudice. Appellants’
substantive SEPA compliance arguments similarly lack merit.
1. The County Committed No Reversible Procedural Errors.
Case number [Notice of Appeal Issues A.1.a, A.1.c]. The notice of application
(“NOA”) initially had one digit incorrect in the case number (“SDP2024-00001”
instead of “SDP2024-00006”). This was a non-prejudicial scrivener’s error that was
timely corrected. First Frostholm Decl. ⁋ 8.
Comment deadline [Notice of Appeal Issues A.1.b, A.1.c]. The NOA initially
had the incorrect month (“May” instead of “August”). This was a non-prejudicial
scrivener’s error and timely corrected for the public notices published in the
newspaper and posted on the property. Exhibit C to First Frostholm Decl.; Exhibit
A to First Carson Decl.
Email address [Notice of Appeal Issues A.1.d, A.1.e]. JCC 18.40.220(3)
allows commenters to provide comments by mail, email, personal delivery, or
facsimile. The County accepted comments submitted by any of these methods,
including email. Appellants complain that an email address was not specified in
the NOA, but this is not a required content of the NOA. JCC 18.40.190. The NOA
must, and did, include the name and telephone number of the contact project
planner. JCC 18.40.190(7). County Ex. 4.
County website [Notice of Appeal Issues A.1.f, A.1.g, A.1.h]. Appellants
argue that the NOA includes website links that did not work. But website links are
not required by SEPA, and hence this cannot form a basis for reversal. The NOA
2 For brevity, Respondents summarize their response in this brief and incorporate by reference their response to Appellants’ motion to dismiss, which addresses Appellants’ alleged procedural errors.
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1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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includes the contact information for the planner, and all records for the Project are
available at the County’s offices.3
Development of conditions [Notice of Appeal Issue A.1.i]. Appellants
complain that there is a backward sentence regarding development of conditions.
Consistent with SEPA, the MDNS contains conditions to ensure the Project, as
mitigated, does not have probable significant impacts, and Appellants do not
contend the Project has significant impacts as mitigated. County Ex. 34 pp. 1-2.
Conditions are not being developed post-approval in violation of SEPA or the
County’s Shoreline Master Program (“SMP”), as Appellants contend.
Further appeals [Notice of Appeal Issues A.1.j, A.1.k]. The NOA correctly
states the final permit decision will be made by the Hearing Examiner, and while it
inadvertently references the wrong jurisdiction for appeals post Hearing Examiner
decision, the correct jurisdiction will be provided in the final permit decision.
Additional permits [Notice of Appeal Issue A.1.l]. Appellants withdrew this
issue in their reply brief on their motion to dismiss. Appellants’ Reply to Response
to Appellants’ Motion to Dismiss p. 3.
Distribution of NOA [Notice of Appeal Issue A.1.m]. Appellants complain
that the County did not directly send a copy of the NOA to Marilyn Showalter, but
Ms. Showalter did not submit a proper request requiring the County to send her a
copy of the NOA. Her request was much broader and did not comply with
procedures established in the Jefferson County Code. See also Respondents’ Reply
on Motion to Dismiss p. 4-6.
Location for filing MDNS appeal [Notice of Appeal Issues A.3.a, A.3.b]. The
MDNS correctly states that it may be appealed to the Hearing Examiner. County
3 While not required, online Project information is available at: https://test.co.jefferson.wa.us/WeblinkExternal/Browse.aspx?id=5992344&dbid=0&repo=Jefferson or file path: Jefferson County Department of Community Development Homepage - “Use the DCD Laserfiche Web Portal” – “Case files” – “Under Review” – “SDP2024-00006 Rock Island Shellfish”
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1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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Ex. 34 p. 2. It also states appeals may be filed with the Department of Community
Development (“DCD”). Appellants filed the MDNS appeal with the Hearing
Examiner and suffered no harm or prejudice from the latter statement regarding
filing with DCD. Nonetheless, DCD appreciates the latter statement may cause
some confusion and is correcting this in future decisions.
MDNS appeal contents [Notice of Appeal Issues A.3.c, A.3.d, A.3.e].
Appellants contend that the MDNS requests appeals to include some information
that is not required (statement of standing and signature) and did not state that a
copy of the MDNS must be attached to the appeal. None of these alleged errors
constitute SEPA violations, and Appellants suffered no prejudice regardless.
2. The County Committed No Substantive Errors.
Appellants contend the County committed five substantive errors in issuing
the MDNS. Notice of Appeal §§ B.1-B.5. Appellants do not, however, contend the
Project, as mitigated, has probable significant adverse environmental impacts
requiring preparation of an environmental impact statement. Given this is the
standard by which a MDNS is substantively evaluated, Moss, 109 Wn. App. 6, 23-
24, Appellants’ contentions fail as a matter of law. They also lack merit on
additional grounds.
a. Appellants’ Upland Use Arguments Are Misguided.
In Issues B.1 and B.2, Appellants critique MDNS Condition 1, which notes
that use of the upland parcels adjacent to the Project area would require additional
review. Appellants fail to allege that Condition 1 violates or is inconsistent with
any provision of SEPA (RCW Chapter 43.21C), the statewide SEPA regulations
(WAC Chapter 197-11), or the County’s implementing SEPA regulations (contained
within JCC Chapter 18.40). The only legal provisions Appellants reference in
Issues B.1 and B.2 are JCC 18.25.40 and 18.25.250, which are located within the
County’s SMP. Compliance with the SMP is evaluated as part of the Project’s
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1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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shoreline permit decision, not the MDNS appeal.
Any contention that Condition 1 violates SEPA would also fail on the merits.
Appellants appear to interpret Condition 1 in isolation rather than in the context of
the Project and limits imposed on agencies when exercising their substantive
SEPA authority. The Project is for the cultivation of oysters on the Property’s
tidelands. Rock Island Shellfish clarified and confirmed during the review process
that it is not seeking approval to use upland structures as part of the Project’s
shoreline permit. County Ex. 30. Condition 1 is intended to reflect this limit and
advise Rock Island Shellfish that it must seek additional approvals for use of
upland structures as part of the oyster farming operations.
The condition was not intended to prohibit any use of the uplands
whatsoever, nor could such a broad restriction be imposed consistent with SEPA.
WAC 197-11-660(1)(b) requires mitigation measures to be related to specific,
adverse environmental impacts clearly identified in environmental documents for a
proposal, so any measures must at least relate to the impacts of Rock Island
Shellfish’s oyster farming Project.
More broadly, the County and Rock Island Shellfish have been engaged in
discussions regarding upland development and activities. The parties expect to
work together to cooperatively and successfully resolve such issues. Such
discussions and related actions fall under the County’s enforcement authority, not
SEPA, and cannot provide a basis for reversing the MDNS. See JCC Title 19.
b. Appellants’ Challenge to MDNS Conditions 3 and 4 Fail.
In Issues B.3 and B.4, Appellants challenge MDNS conditions 3 and 4, which
require compliance with the terms and conditions of a programmatic Endangered
Species Act and Essential Fish Habitat consultation for shellfish activities in
Washington State referenced in Project application materials, along with relevant
conservation measures that resulted from the programmatic consultation.
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1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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Appellants do not claim that these terms, conditions, and conservation
measures are inadequate to mitigate the Project’s probable impacts below the
significance threshold. Rather, they merely contend additional specification should
be provided as to the programmatic consultation and relevant conservation
measures. Notice of Appeal §§ B.3, B.4. Appellants cite no provision of SEPA that
requires Conditions 3 or 4 to be more specifically stated, and no such provision
exists. Further, the programmatic consultation is specifically identified in the
Project’s application materials, County Ex. 2 at 2, 35, 36, 58, 81, 88, 91, and the
consultation documents are publicly available on the U.S. Army Corps of Engineers
(Seattle District) website.4 See also Rock Island Shellfish Exs. 1-4. The terms and
conditions of the programmatic consultation, along with listed species and critical
habitat, are fully set forth in these documents. Id.
The conservation measures specified by the U.S. Army Corps of Engineers
associated with the programmatic consultation are included with the Project’s
application materials. County Ex. 2 at 124-28. Rock Island Shellfish will comply
with all conservation measures, though some measures place restrictions on
activities beyond those proposed by Rock Island Shellfish in the Project (e.g.,
placement of gravel or shell for substrate enhancement, oyster dredge harvesting,
etc.).5 Id. It is evident from the Project’s application materials which of these
measures restrict activities beyond those proposed by Rock Island Shellfish, and
there is no need for the MDNS to separately provide this specification.
c. Appellants’ Speculation of Non-Compliance with MDNS
Condition 5 Provides No Basis for Reversing the MDNS.
WAC 197-11-660(1)(c) provides that mitigation measures shall be reasonable
4 https://www.nws.usace.army.mil/Missions/Civil-Works/Regulatory/Permit-Guidebook/
5 The programmatic consultation covers a wide variety of common shellfish cultivation activities (including oyster, clam, mussel, and geoduck) across all inland marine waters within Washington State (including Puget Sound, Hood Canal, Grays Harbor, and Willapa Bay), and hence some of the conservation measures restrict activities that are not proposed for any particular farm and may not apply depending on the geographic location of the farm.
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1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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and capable of being accomplished. MDNS Condition 5 requires Rock Island
Shellfish to maintain record-keeping logs of materials retrieved within the project
area as well as for spills and cleanups, and to make these logs available to the
County upon request.
Appellants do not, and cannot credibly, contend that Condition 5 is incapable
of being accomplished. Rather, Appellants speculate whether these records will be
made and maintained. Notice of Appeal § B.5. However, speculation as to
compliance with conditions of approval and the effectiveness of those conditions
cannot provide a basis for reversing the MDNS. Anderson v. Pierce Cty., 86 Wn.
App. 290, 305, 936 P.2d 432 (1997) (speculation as to the effectiveness of mitigation
measures does not provide a basis for holding an MDNS to be clearly erroneous);
Landau v. San Juan Cty., No. 45693-8-I, 2001 Wash. App. LEXIS 419, at *17 (Ct.
App. Mar. 12, 2001) (speculation as to non-compliance with mitigation measures or
lack of enforcement provides no basis for reversing MDNS). If there are issues as to
Rock Island’s compliance with Condition 5, the County will investigate and
undertake appropriate actions pursuant to its enforcement authority. JCC Title 19.
III. CONCLUSION
For the foregoing reasons, the Hearing Examiner should deny Appellants’
appeal and affirm the MDNS.
RESPECTFULLY SUMBITTED this 5th day of August, 2025.
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JAMES KENNEDY Jefferson County Prosecuting Attorney ______________________________ Ariel Speser, WSBA #44125 Civil Deputy Prosecuting Attorney Jefferson County
PLAUCHÉ & CARR LLP
By: /s/Jesse DeNike Jesse DeNike, WSBA #39526 1218 Third Avenue, Suite 2000 Seattle, WA 98101 Phone: 206-588-4188 Email: jesse@plauchecarr.com
Attorney for Rock Island
Shellfish
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