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Michelle McConnell
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From:
Sent:
To:
Subject:
Attachments:
Jeanie Orr
Thursday, January 22,20097:11 AM
Michelle McConnell
FW: PDSMP
HamaHama1973-29.pdf
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From: John Fabian [mailto:fabianj@olympus.net]
Sent: Wednesday, January 21, 2009 10:03 PM
To: #Long-Range Planning
Subject: PDSMP
Dear Planning Commission Members
I have attached the 1976 decision of the Shorelines Hearings Board dealing with the
Hama Hama shoreline mining permit granted by Mason County. The planned mining
operation there consisted of a gravel strip mine,conveyor belt, 200-foot pier, and barges.
The county permit was appealed by the Department of Ecology and the case was
presented by the Attorney General, Slade Gordon.
The Shorelines Hearings Board ruled in favor of the state and negated the county permit.
I urge you to read the entire document, because it is an excellent case study dealing with
Hood Canal, shorelines of state-wide significance, and appropriate considerations dealing
with major industrial activities.
In particular, I urge you to read the "Findings of Facts" beginning on page 2 and the
"Conclusions of Law" beginning on page 9.
The statement "Intensive land uses or developments within the shoreline of Hood Canal,
a shoreline of state-wide significance should be discouraged or prohibited." provides
excellent guidance for the Jefferson County Shoreline Master Plan.
1
jq
I request that the Planning Commission use this as a precedent and structure the
proposed SMP to prohibit mining operations within all shorelines of state-wide significance
in Jefferson County.
Thank you for your consideration and for your service to the citizens of Jefferson County.
John Fabian
100 Shine Road
Port Ludlow, WA 98365
2
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1
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BEFORE THE
SHORELINES HEARINGS BOARD
STATE OF WASHINGTON
S IN THE !olATTER OF A SUBSTANTIAL
DEVELOPMENT PERMIT ISSUED BY
4 MASON COUNTY TO THE llAMA HAMA
COMPANY
5
STATE OF WASHINGTON,
6 DEPARTMENT OF ECOLOGY and
SLADE GORTON, ATTORNEY GENERAL,
Appellants,
8
9
v.
MASON COUNTY and THE lLJ\.~ HAMA
10 COMPANY,
11
12
Respondents.
13 PER W. A. GISSBERG:
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SHB No. 115
F!NAL FINDINGS OF FACT,
CONCLUSIONS OF LAW
AND ORDER
t~ Th1S matter, a regues~ for review of a substant~al development
15 permit issued by Mason count~ to The Hama Hama Company, came before the
16 Sho=el~nes Hea~~~gs Board (C~r~s S~~th, w. A. G~ssberg, Robert E. Beaty,
17 Robert F. Hintz and Gerald D. Probst on May 24, 25, the afternoon of
18 May 26, May 27 and 28, 1976 1n Lacey, Wash1nqton. Ellen D. Peterson,
c; .. ... 0 :9:ol...OS-S.6i
1 hear1ng examiner, presided.
2 Appellants Washington State Department of Ecology and Slade Gorton,
3 Attorney General, appeared through Robert V. Jensen, Assistant Attorney
4 General; respondent Mason County appeared through Spec1al Deputy
5 Prosecutor William Vetter; respondent The Hama Hama Company appeared
6 pro se, and Hood Canal Environmental Council, amicus curiae, through
7 its attorney, Philip M. Best.
S Having heard the testimony, having cons1dered the transcr1pt or
9 portions thereof, having examined the exhibits, and having considered
10 the arguments and briefs, the Shorelines Hearings Board makes these:
11 FINDINGS OF FACT
12 I
.3 Hood Canal is a glacially carved fjord some 60 miles long which
14 possesses 242 m1les of shorel1ne, the majority of which is privately
15 owned. Because of its attract1veness and relat1vely close proximity
16 to Seattle and Tacoma, the Canal is extremely popular as a recreation
17 destination and as a s1te for second homes. The waters of Hood Canal
18 are classified as AA, and the ma1ntenance of that excellent water quality
19 des1gnat1on is a problem because of the slow flushing time for the inlet--
20 a minimum of nearly six ~onths 1S required for a changeover of Hood Canal
21 as a whole, which is not conduc1ve to the assimilation of waste pollutants.
22 ~he ent~re area along the Canal at the base of the Olympic Mounta1ns 1S
23 forest land of rough terrain and supports sizeable populations of
24 animal species 1nd1genous to western Wash1ngton. Bear, deer, elk and
~5 beaver are plent1ful. The S1X maJor rivers which empty into the Canal
26 abound in steelhead, trout and spawn1ng salmon. The waters of the
27 Canal support a wide variety of f1sh and shellf1sh.
FINAL FINDINGS OF FACT,
S F No 892'-"'-
CONCLUSIONS OF LAW AND ORDER 2
1 II
2 The Hama Hama Company, (here~nafter "Company") be1ng des~rous of
3 m1n1ng h1gh qual~ty sand and gravel from ~ts property found that ~t
4 would be necessary (for econo~ic reasons) to ut11~ze the waters of
5 Hood Canal and puget Sound for barge transport. Accord1ngly, the
6 Company in July, 1973, f1led 1ts app11cat1on w1th Mason County (here1n-
7 after "County") for a substantial development permit lito construct a
8 p1er and barge loadJ.nq facility to load sand and gravel on barges"
9 (ExhibJ.t A-el) (c)). Accompanying the app11catJ.on was an env1ronmental
10 1mpact statement (EIS) prepared by the pres1dent of the Company w1thout
11 the benefJ.t of any supervJ.S1on or dJ.rection on the part of the County.
12 That statement was reviewed by the County's only planner who sat1sfJ.ed
13 himself of its complJ.ance with the State Environmental policy Act (SEPh
14 GuidelJ.nes of the Department 0= Ecology (DOE) ,1 and circulated it as a
15 draft EIS to other governmental agencies for review and comment.
16 DOE rece1ved the draft EIS on August 13, 1973, the date set for
17 hearJ.ng on the shorelJ.ne permit applicat1on. However, the hearing date
18 was cont1nued to September 24th, to allow other agencies sufficJ.ent time
19 to ma~e the1r co~~ents on the draft EIS. As a result of a spec1f1c
20 request from DOE, the County agaJ.n continued the hear1ng on the permJ.t
21 and the tJ.me for rece1v~ng draft EIS co~ments to October 15, 1973, at
22 w~1ch t~rne the perM1t was granted. No~w~thstand1ng such, DOE d~d not
23
23
1. The GU1delines prepared by DOE were not b1nd1ng upon other
agencies. However, S1nce that t1me the Counc~l on
Env1ronmental PolJ.CY pursuant to leg1slat1ve d1rect10n has
promulgated GU1del1nes ~nterpret1ng and 1mplement1ng SEPA.
24
26
FINAL FINDINGS OF FACT,
2; I CONCLUSIONS OF LAW AND ORDER
3
c; F '0 ":1-'\
1 communicate its written co~~ents to Mason County unt11 October 24, 1973.
2 The comments of others Wh1Ch were timely rece1ved by the County were
3 physically attached to the draft EIS, together with a terse summary
4 thereof, uti11zed by the County as its f1nal EIS, and cons1dered 1n its
5 favorable act10n on the permit. The County Comm1ssioners were adv1sed of,
6 and they took 1nto acco~~t, DOE's orally expressed concern over
7 potential n01se and aesthetics.
8 III
9 The Company owns about 3,800 acres of land on the west side of Hood
10 Canal and immediately south of the Hamma Harnma R1ver and east of John's
11 Creek, a tributary to the river, with1n which is about a JOO-acre logged
12 off hill, some 300 to 350 feet in elevation, from which the min1nq of
~3 sand and gravel would occur. It is estimated that the h11l conta1ns one
14 hundred m1l1ion tons of materials and that the mining would occur
15 for 20 to 100 years depending upon market conditions. A small portion
16 of the northerly face of the hill has been utilized intermittently since
17 1931 as a source of gravel to supply local needs, including the State
IS Department of Highways.
19 IV
20 Except for a small portion border1ng State Highway 101 which would
21 be m1ned 1n the later years of its use, the h1l1 is outside of the 200
22 foot shore11ne area and the reclamat10n and operat1onal ~~n1ng plan 15
23 such that the excavation would be v1sible only for a short dis~ance to
24 motorists travell~ng south on State H1ghway 101.
''j v
26 A vital part of the Company's planned min1nq operation 1S the
27 FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
4
S F '0 99:!I-A
1 construct1on of a p1er and conveyor system wh1ch w111 proJect apprOX1-
2 mately 200 feet perpend1cularly to the shorel~ne out into the waters
3 of Hood Canal. At r1ght angles to the end of the p1er (and roughly
4 parallel to the shore) 1S a plar~ed 360 foot long load~ng p1er. The
5 deck below the conveyor w111 be approx1mately e1ght feet above mean
6 h1gher h1gh water and the uppermost portion of the conveyor system will
7 r1se about 50 feet above that water Mark.
8 On the hill, the gravel would be loaded onto the conveyor system
9 wh1ch would follow a natural gulley down the h1ll and then by a tunnel
10 under the highway, and thence to the end of the pier and conveyor belt
11 1nto a wa1ting barge. The pier and barge loading faC11.1ties will be
12 v1s1ble from the h1ghway and from the waters of Hood Canal. It w111
13 apparently be a permanent 1nstallation wh1ch w1l1 remain in place even
14 after all of the sand and gravel have been m1ned from the h11l. Its
15 ultimate use 1S not now known nor planned.
16 VI
17 As the president of the COI!lpany testif1ed, there 1S now a "fa.1rly
18 natural" beach at the s1te. Except for the intrusion of the h1ghway
19 and the recent logg1ng of the h111, the shore11ne of the s1te has
20 reta1ned 1tS natural character1st.1CS notw1thstand.1ng the fact that at
21 one t.1me 1n the past, the H~ma Ha~~a estuary was f11led w1th pil1ngs
22 and log storage. At any event, tne spec1f1c area of the s1te proposed
23 for construct1on of the p1er and barge fac1l.1t1es 1S a natural shorel1ne.
2~ VII
25 Although a DOE w1tness expressed concern that 1f there was pollut'
26 from the proJect .1t could sp111 onto the estuary, the appellant fa1led to
27 FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AL'ID ORDER
5
!l F '0 99!B-.\
1 prove that the projec~ wcul~ pollute the waters of the state, except for
2 acc1dental sp~lls of sa~c and g~avel which w1ll occur at the barge load~n
3 site. However, there ~s no biota which is unique to the site of the
4 proposed p~er. A b~olog~st w~tness for appellant admitted that the
5 effect of the proJect on the river delta would be minimal unless the
6 pier were ultimately to be utilized as a marina.
7 VIII
8 The site of the pier construc~ion is with~n an area which produces
9 well for salmon sports fishermen and the pier would interfere with
10 some deep troll and cut~~oat fishermen who elect to fish in shallower
11 waters than others. In short, the public's right of navigation will
. '2 be impaired.
13 IX
14 The Department of Natural Resources (DNR) granted the Company a
15 surface mining permit and approved its reclamation plan on August 1,
16 1973. The existing one to six inch soil cover of the hill is sparse
17 and the present land use capability of the soil for crops is very
18 limited. The U. S. Soil Conservation Service strongly supports ~he
1~ reclar.4tion plan because upon ~ts comple~ion the m~xtu=e of reserved
20 f~nes, clay and soil will have created about one to two feet of top
21 5011 whose crop capabi11ty will have been increased so as to sustain
22 the grow1ng of Chr1sb~s ~ra~s.
23 X
24 The increasing population pressures of urban King County are moving
~J the locat~on of sand and gravel pits therein further away from their
26 place of use and thereby causing greater truck haul costs and thus
27 FI~AL FINDINGS OF FACT,
CONCLUSIONS OF LAw AND O!IDER
6
C 'I:" '" r-q;~. \
1 mak~ng ~t likely that a longer, but cheaper, water haul of sand and
2 gravel w~ll become More corpet1t1ve.
3 It would cost five m1ll~on ~n 1971 dollars and ten m11l~on 1n
4 present dollars to develop the s1te as a productive p~t. The Company
5 has not made a ~arket survey to deterre~ne the demand for gravel, but
6 is nonetheless conf~dent that ~f ~t can obtain all of the var10US
7 governmental permits requ1red, some enterprise would be 1nterested in
8 purchasing the right to remove gravel from the site. Such "interest"
9 is confirmed by Ideal Basic Industr~es, the largest producer of cement
10 in the State of Washington and the United States, which des1res to
11 enter into the concrete bus1ness. Controll~ng ~ts own supply of sand
12 and gravel is a condition to doing so. Although Ideal has made a
13 feas1bility study, (the results of wh1ch were not divulged) no decision
14 has been made by it to purchase or lease the s1te. The outcome of these
15 permlt proceed1ngs ~s one of the factors wh1ch it will take 1nto
16 account. Except for the potential of marketing the gravel to Ideal,
17 there does not appear to be a suff1c1ently v1able demand for sand and
18 gravel in the quant1t~es requ1red of the project to enable the Company
19 to econo~~cally s~cceec In ~~s prop05~d venture. Nonetheless, there
20 1S always a demand for long-term sources of sand and gravel.
21 Recent enviro~~ental regulat10ns have made it more diff1cult to
22 obta1n perm1ts for sand and gravel operat1ons and therefore 1t is l1kely
23 that demand for approved s1tes w111 1ncrease. The S12e and scale of
24 the rn~n~ng opera t10n proposed (but not 1. ts appearance) would be
25 comparable w1th the largest presently operat1ng p1tS l.n the state, at
26 Stel.lacoo~. Those nearby t~o pltS have an estl.mated remaining life of
27 FINAL FINDINGS OF FACT,
CONCLUSIONS OF LA1V' AND ORDER
7
to F ....0 99!S.A
1 15 and 40 years respectively.
2 XI
3 The only other econom1cally viable use of the gravel hill would be
4 for res1dential purposes and to be successful such a development would
5 require that access be provided to the waters of Hood Canal.
6 XII
7 The_greatest amount of noise which would emanate from the entire
8 operation would be from the gravel crusher from which at a distance of
9 50 feet there would be decibel read1ngs of about 95 on the "At! scale.
10 Noise reduces 2 decibels for every hundred feet. Because of the noise-
11 buffering nature of the trees and the distance from the proposed
~2 operations, the inhabitants of the nearest (1/4 quarter ~ile) residences
13 would be unaffected by the noise. However, noise from the operation of
14 the conveyor belt and the barge puller on the pier over the waters of
15 Hood Canal would obviously introduce a pollutant not now present in
16 that environment.
17 XIII
18 The min~ng and processing of sand and gravel will create fug1tive
19 dust and air pollution where none now eX1st. lihile the frequency of
20 such ~rr1tants may be m~t1gated dur~ng periods of ra~nfall and the record
21 does not reveal the intensity of that pollutant, the sheer magn1tude
22 of the proposed venture guarantees that it w111 be cons1derable and
23 that such can be detr1mental to public health.
24 XIV
5 At the time of the 1ssuance of the permit the County had not
26 developed any ascertainable master program.
27 FINAL FI~~INGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
8
S F ~o 9121./\
1 xv
2 Any Conclus~on of Law here~nafter stated wh~ch may be deemed a
S Finding of Fact ~s hereby adopted as such.
4 From these F~ndings of Fact the Shorelines Hearings Board comes
5 to these
6 CONCLUSIONS OF rAW
1 I
8 Intensive land uses or developments within the shoreline of Hood
9 Canal, a shorel~ne of state-w~de significance, should be discouraged
10 or prohib~ted. It is diff~cult to perce~ve a use more intensive and
11 1ncompatible with the present shore11ne and aesthetics of Hood Canal
12 than the construction proposed by the Company. The pier~ conveyor and
13 barge load1ng facilities will intrude upon the magnif~cent grandeur that
14 is now eX1stent, converting the natural characteristics and beauty of
15 the existing shoreline into one marred by this proposed industr~al
16 enterpr~se. Only when there is a clearly defined and present necessity
17 for tolerat~n9 an abuse of nature's scene should an intrusion of the
18 type here suggested be allowed 1n Hood Canal. Under what circumstances
19 such a r.ecess~ty ~1ght be found to exist, we need not now determ1ne.
20 Suff~ce it to say that it is not now present.
21 II
22 The forego1ng delineation of our view f1nds statutory support in
23 the pOlicy sect10n of the Shorel1ne Management Act of 19712 wherein
24 the Department of Ecology, in adopting GU1del~nes for shorelines of
5
26 2. RCW 90.58.020.
27 FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
9
& F ~o H21.A
1 state-w1de s~gn1ficance, ~s d2rected to prefer uses wh1ch:
2 (I) Recogn1ze and protect the state-w~de 1nterest
over local ~nterest;
3 (2) Preserve the natural character of the shore11ne;
(3) Result 1n long term over short term benef1t;
4 (4) Protect the resources and ecology of the shorel~ne;
(5) Increase publ1c access to publ1cly owned areas of
5 the shorel1nesi
(6) Increase recreat10nal opportun1t1es for the public
6 in the shore11ne:
7 Test2ng the proposed use and development aga1nst the foregoing
8 statutory prov2so, we conclude that the permit does not at this time
9 fall w1th~n any of the forego~ng statutorily preferred uses.
10 III
11 The pol~cy section of the Shorel~ne Act also mandates the
12 preservat10n of the "pub11c's opportun1ty to enJoy the physical and
13
aesthetic qual~ties of natural shorelines of the state
..
The
14 landward port1on of the shorel1ne of the s~te 1S not natural, but rather
15 15 transversed by a public h1ghway. The water portion of the shoreline,
16 however, 1S now ~n 1t5 natural state and must be preserved for preferred
17 uses "whJ.ch are cons1stent W.l.th control of pollut1on and prevent~on of
18 damage to the natural envJ.ronment, or are unique to or dependent upon
19 use of the state's shoreline."3
20 The substant1al development ~s not consJ.stent w1th the control of
21 dust, noise and visual pollut1on, nor 1S 1ts use unique to or dependent
22 upon use of the staters shorel~ne.
~3 IV
24 In DOE v. Hayes, SHE 108, there was enunc1ated what we then and
t)-
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26
3. RCW 90.58.020.
2i FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
10
S F "'0 ''':!lI.~
1
2
8
4
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now cons1der to be the mean1ng of a water-dependent use:
lI. . . IAl water-dependent co!'!..-nerce or industry, to which
prior1ty should be given, 1S one wh1ch cannot eX1st 1n
any other location and 1S dependent on the water by
reason of the 1ntr1nsic nature of its operat1ons. A
water-related 1ndustry or co~erce is one wh1ch 1S not
1ntr1ns1cally dependent on a waterfront location but
whose operation cannot occur economically without a
shorel1ne location."
7 Applying the above definition to the uses proposed by the Company
8 leads to the conclusion that they are not water-dependent. At the
9 most, they are arguably water-related.
10 The Leg1slature directed the Department of Ecology and local
11 governments to give an ordered preference of uses within shorelines
12 of state-wide significance. The Department complied by adopting 1ts
13
GU1del1nes which give preference to uses which favor public and long
range goals4 and preserve the natural character of the shoreline.S
14
15
16
17
18
The Legislature also directed that:
"In the implelilentat10n of th1S policy6 the public's opportunl.ty
to enjoy the physical and aesthetic qua11ties of natural
shore11nes of the state shall be preserved to the greatest
extent feasible. . . ." RCW 90.58.020.
19 Thus, the public's o?portuni~y to e~joy the aesthet1c qualities
20 of certain shorelines and the1r preservation is given special treatment
21 and emphasis.
22
23
4. WAC l73-16-040{5).
5. WAC 173-16-040(5) (b).
24
'5
6. The policy pf the Shore11ne Act is implemented by the proper
issuance or denial of development permits.
26
,,-
..I
FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
II
5 F ","0 99!I-A
1
2
a
The State Env~ron~ental Po11cy Act7 (SEPA), the pol1cies of wh~ch
are by ~ts terms suppler-entary8 to the Shorel~ne Managenent Act of
1971,9 declares that one of its ult~mate a1ms is to the end that the
4
5
6
state I'lay:
"Assure for all people of v;ash~ngton . . . esthetically
and culturally pleas~ng surround1ngsi"lO
7 Th1S Board has previously recognized aesthetics as prov1d1ng
8 grounds for vacat1ng a perrn~t for a road and boat launch1ng ramp at a
9 natural shoreline front~ng Hood Canal.ll
10
The courts of other jurisd1ct1ons have also done 50.12 We agree
11 that:
12 tiThe reluctance to uphold zoning regulations . . . des1gned
to preserve and improve the visual character of the phys1cal
13 environment on aesthetic grounds alone may be based on the
belief that aesthet1c evaluat10ns are a matter of ~ndiv~dual
14 taste and are thus too subJective to be appl~ed in any but an
arb1trary and capr~c~ous manner. (citing authority)
15 Accordingly, courts have engaged in a reason1ng process, often
amount1ng to noth1ng more than legal f1ct1on, 1n order to,
16 avoid recognizing aesthet1cs as an appropr1ate bas1s for the
17
18
7. RCW 43.2lC.OlO.
8. RCW 43.21C.060.
19
20
9. The Shoreline Management Act became e~fect1ve on May 21, 1971;
SEPA on August 9, 1971.
~l
lG. RC;'J 43.21C.020{2\(b).
t; 1
'1....
-,)
ll. McCann, et al. v. Jefferson County, SHB No. 144 et seq.
12. Matter of McCor~1ck v. Lawrence (New York), 8 ERe 1461,
upholding the pron1b1t1on, for aesthet1c reasons, of boat-
houses on a lake re1at1vely undeveloped and in a relat1vely
pr1stine state; Donnelly v. Outdoor Advert1sing Board
(Mass.), 8 ERe 1671. Aesthet1cs alone Just1f1es total ban
of bill-boards.
24
25
26
27 FINAL FINDINGS OF FACT,
CONCLUSIO~S OF LAW A~~ ORDER
12
.. F 'n 99~1l-'\
1
2
3
exerC1se of the pOlice power . .
. .
"We feel that th1S approach . is no longer cons1stent with
,...hat we perce1veas the Modern trend in the law. rr13
4 V
5 The proposed development, being in a shoreline of state-wide
6 s1gnif1cance, 1S not consistent w1th WAC 173-16-040(5) wh10h requ1res
7 that preference must be 91ven to uses which favor pUblic and long-
8 range goals. No such preferent1al treatment is afforded to the public
9 by the proposed development. While the removal and use of gravel from
10 the hill may ultimately increase the product1vity of the land and hence
11 can be said to favor long-range goals and further the state-wide interest,
12 such cannot ~e said of the pier construction. It is the p1er and
13 conveyor system portion of the proposal_~1th1n the shoreline which we
14 f1nd to be 1ncons1stent with the Act and the DOE Guidelines.
15 VI
16 The perm1t issued by Mason County is 1nconsistent with the po11cy
17 of the Shoreline Management Act of 1971 and the Guidel1nes adopted by
18 the Department of Ecology pursuant thereto. The pe~1t must therefore
19 be vacated.
20 VII
21 DOE contends that the env1ron~ental 1mpact statement 1S inadequate
22 because 1t fa11s to d1SCUSS or quant1fy many potent1al adverse enV1ron-
23 mental 1mpacts of the proposal.
24 The EIS 1$ clearly not a ~odel for thoroughness in that the
25
26 13. Donnelly v. Outdoor Advert1s1ng, supra.
27 FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
13
S F 'D 1121-A
1
env~ronmental effects of the proposed act10n are not suff1C1ently
d~sc1osed, d1scussed and substant1ated by support1ve op1n~on and data.14
2
3 However, to the extent practicable at the t1me 1t was wr1tten, cons1der1nc
4
5
6
7
8
9
10
11
12
13
14
15
16
the lack of resources then ava11able to Mason County, and the state of
the art, ~ncluding that of the Department of Ecology, the statement was
remarkably well done when judged by the then-preva11ing standards.
Even though the statement may be inadequate when judged by today's
standards, the Department of Ecology must share the blame and
consequences therefor!. It did not respond to the draft statement within
the tLme nor in the manner contemplated by SEPA.
For SEPA to fulfill the h4gh hopes expressed in its leg1s1ative
enactment and by 1tS own terms, var10US units of government must
s4ncerely share the1r expert1se with one another 1n a manner and detail
calculated to ass1st in deve1op1ng the env1ronmental d1sclosures
contemplated by the Act. Regardless of ~ts reasons, DOE fa1led to
comment on the draft EIS 1n a manner helpful to Mason County or the
17
EIS process.
Indeed, only after the perm1t was issued and after ample
18
19
20
opportunity had been extended to ~t d1d DOE belatedly respond, and then
~ot ~n the deta11 which its superior expertise should d1ctate.
The Council on Env1ronmental Pol~cy has 1ssued off1cial guidelines,
21
now published as a part of the Wash1ngton Adm1n1strat~ve Code, which
22
speak to th~s 1ssue and more.
Wh1le the gU1del1nes took effect after
:?3
Mason County took the act10n wh~ch is the sUbJect of th1s rev~ewr and
we do not apply them retroact1vely, we may and do ut~11ze them as
24
n-
L;)
26 14. Lesch~ v. H19hway Carom., 84 Wn.2d 271 at 286 (1974).
27 FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
14
S F '0 99~I.A
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suggested interpretat10n of the statute.IS
The gU1del~nes, 1n pert~nent part provide:
WAC 197-10-405 . . . (2) Another pr1nc1pal function to be
served by the draft EIS process is to fac1litate the transmittal
to the lead agency from other governmental agenc~es and interested
citizens substantive 1nformat1on concerning the adverse 1mpacts
upon the environment discussed inadequately or erroneously ~n the
draft EIS. The draft EIS process also provides an opportunity for
reviewers of the document to bring to the attention of the lead
agency any 1ssue of potential environmental concern which should
be explored by the lead agency prior to the issuance of a final
EIS.
.L3
WAC 197-10-510 . . . Each state agency with jurisdiction,
when . . . rev1ew1ng a draft EIS, shall immediately begin the
research and, if necessary, field investigat10ns which it would
normally conduct in conJunction with whatever l1cense 1t requ1res
for a proposal1 or, 1n the event no license is involved the
agency with Jurisdict10n shall 1nvest~gate the impacts of the
act1vity it will undertake which gives it )urisd1ct1on over a
portion of the proposal. The end result of these investigat10ns
should be that each agency with Jurisdiction w111 be able to
transm1t to the lead agency substantive information on those
environmental impacts of the proposal wh1ch are within the
scope of the l~cense or act~v1ty of the agency with jur1sdiction.
An agency with jur1sdiction, in its response to the lead
agency, should also 1ndicate which of the impacts it has d1s-
covered may be mit1qated or avoided and how this might be accom-
pl1shed, and descr~be those areas of environmental risks
wh1ch remain after it has conducted the invest1qations that may
have been requ1red.
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WAC 197-10-520 RESPONSIBILITIES OF CONSULTED AGENCIES--
STATE AGENCIES WITH ENVIRONMENTAL EXPERTISE. (1) Each state
agency part1c1pating 1n pre-draft consultation, or reviewing
a draft EIS, lack1ng Jur~sd1ct10n, but possess1ng environ-
mental expert1se perta1ning to the impacts assoc1ated w1th a
proposal [see WAC 197-10-465], when requested by the lead
agency, shall provide to the lead agency that substant1ve data,
1~format1o~, ~est res~~~s 0= other nater1al relevant to the
proposal wn1ch ~he consulted agency then possesses relat1ng to
1ts area of spec1a1 expert1se.
I)')
......
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24
.,..
<>
15. No 011 v. Los Angeles, 7 ERC 1257.
26
FINAL FINDINGS OF FACT,
27 CONCLUSIONS OF LAW AND ORDER
lS
5 F '0 99!1l.A
1 WAC 197-10-545 EFFECT OF NO WRITTEN CO~~NT. If a con-
sulted agency does not respond~ith written comw~nts w1th1n
2 th1rty-f1ve days of the date of l~st~ng of the draft EIS ~n the
"EIS ava1lable Reg~ster,1I or faJ.ls to respond w1th1n the fJ.f-
3 teen-day extens~on period Wh1Ch ~ay have been granted by the
lead agency, the lead agency nay assume that the consulted
4 agency has no infor~ation relat1ng to the potent1al 1~pact
of the proposal upon the sUbJect area of the consulted agency's
5 jur~sd1ct1on or special expert1se. Any consulted agency which
fa11s to subm1t suhstantive information to the lead agency 1n
6 response to a draft EIS is thereafter barred from alleg1ng any
defects 1n the lead agency's compliance w1th WAC 197-10-400
7 through -495, or with the contents of the f1nal EIS.
8 In short, a governmental agency w1th expert1se which, hav1nq ample
9 opportunity to do so, does not timely point out def1cienc18s of a draft
10 EIS forecloses 1tS r1ght to thereafter attack the adequacy of the
11 f1nal statement dealJ.ng w1th that def1ciency.16
12 VIII
13 Any F1nd1ng of Fact which should be deemed a Conclusion of Law
14 1S hereby adopted as such.
15 Therefore, the Shorelines Hearings Board 1ssues this
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16. Natural Resources Defense Council v. TVA, ERC 1669 at 1672.
26
FINAL FINDINGS OF FACT,
27 CONCLUSIONS OF LAW A~~ ORDER
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.. F '0 n:!II.A.
1 ORDER
,
2 The substantial development perm1t be and the same is vacated.
3
DONE this
2nd
day of
July
, 1976.
4
SHORELINES HEARINGS BOARD
/J
~ :::r/vV..J::Iv
CHRIS SMITH, Chairman
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ROBERT E. BEATY, Member
!r~r
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,(},~t P e..-t~
GERALD D. PROBST, Member
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:;
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FINAL FINDINGS OF FACT,
27 CONCLUSIONS OF 4~W AND ORDER 17
S . :0. 0 89J&:-A