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Opinion Information Sheet

			

                                                                     FILED
                                                                JUNE 14, 2012
                                                          In the Office of the Clerk of Court
                                                        WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                           DIVISION THREE 

No. 29763-2-III
Yakima County v. E. Wash. Growth Mgmt. Hearings Bd.

YAKIMA COUNTY; YAKIMA                                     No.  29763-2-III
COUNTY FARM BUREAU, INC.,                       )
                                                )
                      Respondents and           )
                      Cross-Appellants.         )
                                                )
              v.                                )         PUBLISHED OPINION
                                                )
EASTERN WASHINGTON GROWTH                       )
MANAGEMENT HEARINGS BOARD;                      )
FUTURWISE; AND CONFEDERATED                     )
TRIBES AND BANDS OF THE                         )
YAKAMA NATION,                                  )
                                                )
                       Appellants and           )
                       Cross-Respondents,       )
                                                )
ISABEL L. CAMPBELL, WES HAZEN;                  )
UPPER WENAS PRESERVATION                        )
ASSOCIATION; YAKIMA VALLEY                      )
AUDUBON SOCIETY; WASHINGTON                     )
STATE DEPARTMENT OF FISH AND                    )
WILDLIFE; WASHINGTON STATE                      )
DEPARTMENT OF COMMERCE;                         )
COLUMBIA READY-MIX, INC. ;                      )
FRIENDS OF THE WENAS; YAKIMA                    )
COUNTY CATTLEMEN'S                              )
ASSOCIATION; CENTRAL PRE-MIX                    )
CONCRETE CO., INC.,                             )
                                                )
                      Defendants.               )
                                                )

       Brown, J. ? Futurewise and the Confederated Tribes and Bands of the Yakama 

Nation (Yakama) appeal the Yakima County Superior Court's reversal of two Eastern 

Washington Growth Management Hearings Board (GMHB) determinations that Yakima 

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No. 29763-2-III
Yakima County v. E. Wash. Growth Mgmt. Hearings Bd.

County Critical Areas Ordinance No. 13-2007 violated certain riparian requirements of 

the Growth Management Act (GMA), chapter 36.70A RCW.  Generally, Futurewise and 

Yakama contend the superior court should have left intact the GMHB's stream buffer 

width and ephemeral stream decisions requiring further Yakima County (County) action, 

apparently considered adverse to development interests.  In a consolidated cross appeal, 

the County and the Yakima County Farm Bureau, Inc. jointly contend the superior court 

erred in reaching the ephemeral streams issue because it should have been considered

moot or otherwise barred by the statute of limitations.  We agree with Futurewise and 

Yakama that the GMHB correctly decided the stream buffer width issues and that the 

superior court erred in reversing them, but we reach and disagree with their ephemeral 

stream arguments and affirm on that issue.  Accordingly, we reverse in part, and affirm in 

part.

                                            FACTS

       The Washington legislature adopted the GMA in 1990 to minimize the threats to 

the environment, economic development, and public welfare by uncoordinated and 

unplanned growth.  RCW 36.70A.010; Whidbey Envtl. Action Network v. Island County, 

122 Wn. App. 156, 163, 93 P.3d 885 (2004) (WEAN).  Under the GMA, local 

governments are required to enact development regulations protecting "critical areas,"

including fish and wildlife habitat conservation areas, wetlands, frequently flooded areas, 

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Yakima County v. E. Wash. Growth Mgmt. Hearings Bd.

critical aquifer recharge areas, and geologically hazardous areas.  RCW 36.70A.030(5); 

RCW 36.70A.060(2).  Concerning these critical areas, local governments must include 

the "best available science" to create their development regulations, typically in the form 

of critical areas ordinances with special consideration given to conservation or 

enhancement of anadromous fisheries.  RCW 36.70A.172(1).  County comprehensive 

land use plan and development regulations must be reviewed and updated periodically as 

needed.  RCW 36.70A.130(1)(a).

       Yakima County enacted its first critical areas ordinance in 1994 (amended in 

1995).  Under RCW 36.70A.130(4)(c), the County was required to complete periodic 

review and evaluation by December 2006.  To that end, it convened a "best available 

science" advisory group composed of state, federal, tribal, and private scientific 

professionals in late 2002.  Noting little guidance had been given for designating and 

protecting critical areas, the advisory group sought to assist the County in (1) 

documenting the best available science, (2) explaining the County's rationale when it 

departed from science-based recommendations, and (3) identifying potential risks to the 

critical areas if the County did depart from the science-based recommendations.  In 

March 2004, the advisory group issued a public-comment first draft.  The October 2006

final draft is a 350-page synthesis of scientific reports and studies called "Yakima 

County's Review of Best Available Science for Inclusion in Critical Areas Ordinance 

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Yakima County v. E. Wash. Growth Mgmt. Hearings Bd.

Update" (BAS Review).

       The County, in March 2004, began a public hearings process to discuss 

amendments to the critical areas ordinance.  The process culminated with the enactment 

of Ordinance No. 13-2007 that included a new critical areas ordinance codified in 

Yakima County Code (YCC) Title 16C. An amended comprehensive plan and zoning 

code were adopted as Ordinance No. 15-2007.

       Futurewise, Yakama, the Washington State Departments of Fish and Wildlife and 

Commerce, and others filed five separate GMHB petitions for review of Ordinance No. 

13-2007 and Ordinance No. 15-2007 in February 2008.  The GMHB consolidated the 

five petitions as case no. 08-1-0008c.  Later, others intervened as petitioners and 

respondents, including the Farm Bureau.  After the County enacted Ordinance No. 2-

2009 amending YCC Title 16C, the Department of Fish and Wildlife and the Department 

of Commerce withdrew from the petition for review.

       The GMHB held a hearing on the merits in March 2010 and issued its 96-page 

final decision and order in April 2010.  Relevant here, the GMHB concluded (1) the 

County's decision not to designate and regulate Type 5 ephemeral streams under the 

critical areas ordinance "failed to comply with the GMA due to the important role these 

streams play in maintaining the overall health of the stream corridor system," (2) the 

County's standard stream buffers were not supported by the best available science, (3) the 

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Yakima County v. E. Wash. Growth Mgmt. Hearings Bd.

County's standard wetland buffers were within the range of the best available science,

and (4) the allowed minimum adjustments to the stream and wetland buffers failed to 

comply with the GMA.  Administrative Record (AR) at 3726-27, 3760, 3769, 3774.

       The County and the Farm Bureau filed separate but later consolidated petitions for 

judicial review of the GMHB's order in the Yakima County Superior Court.  In February 

2011, the superior court concluded the issue of the County's regulation of ephemeral 

streams was not moot or barred by the statute of limitations, and reversed the GMHB's 

order that Ordinance No. 13-2007 must designate ephemeral streams as critical areas.  

The superior court found the ordinance's stream buffer widths were within the range of 

the best available science or were reasonably justified outside that range, and therefore 

reversed the GMHB's decision concluding that the buffers violated the GMA.

       Futurewise and Yakama each filed timely notices of appeal in March 2011.  The 

County and the Farm Bureau filed cross-appeals later that month.  The appeals and cross

appeals were consolidated by this court for review.  

                                         ANALYSIS

                           A.  Buffers and Allowable Adjustments

       The issue is whether the superior court erred in reversing the GMHB's decision

that the standard stream buffers and adjusted minimum stream and wetland buffers

adopted in the critical areas ordinance did not comply with the GMA, and that the 

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Yakima County v. E. Wash. Growth Mgmt. Hearings Bd.

wetland buffers did comply.  Futurewise and Yakama contend the County's adopted 

stream and wetland buffers fail to protect all the functions and values of these critical 

areas, as required by RCW 36.70A.172(1). The County and the Farm Bureau 

(collectively, "County") respond that the GMHB failed to give proper deference to the 

County's planning choices related to buffers, which fall within the range of the BAS 
Review recommendations.1

       The GMHB adjudicates GMA compliance and invalidates noncompliant 

comprehensive plans and development regulations.  Swinomish Indian Tribal Comty. v. 

W. Wash. Growth Mgmt. Hearings Bd., 161 Wn.2d 415, 423, 166 P.3d 1198 (2007).  

Comprehensive plans and development regulations are presumed valid when adopted and 

the GMHB will find compliance with the GMA unless it concludes the county, city, or 

agency action is clearly erroneous in light of the record and the goals and requirements of 

the GMA.  Id. at 423-24; Kittitas County v. E. Wash. Growth Mgmt. Hearings Bd., 172 

Wn.2d 144, 155, 256 P.3d 1193 (2011); RCW 36.70A.320(1).  An action is clearly 

erroneous if the GMHB develops a firm conviction that a mistake has been committed.  

       1 Futurewise argues that the County did not assign error to the GMHB's "findings 
of fact" and therefore cannot challenge these findings on appeal.  RAP 10.3(g) requires a 
party to assign error to each finding of fact it contends was improperly made, or to clearly 
disclose the error in the associated issue pertaining to the error.  As the County notes, the 
GMHB did not enter formal findings of fact.  More importantly, the County adequately 
addresses the GMHB's factual findings in its argument challenging the GMHB's 
conclusions.  We are sufficiently apprised of the challenged findings for review.  
Daughtry v. Jet Aeration Co., 91 Wn.2d 704, 709-10, 592 P.2d 631 (1979).

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Yakima County v. E. Wash. Growth Mgmt. Hearings Bd.

Id.

       We review the GMHB's decision under the Administrative Procedure Act, 

applying chapter 34.05 RCW standards directly to the record before the GMHB.  Kittitas, 

172 Wn.2d at 155. The parties address three grounds for relief: (1) the GMHB

erroneously interpreted or applied the law (RCW 34.05.570(3)(d)), (2) the GMHB's 

order is not supported by substantial evidence (RCW 34.05.570(3)(e)), and (3) the 

GMHB's order is arbitrary or capricious (RCW 34.05.570(3)(i)).  We review the 

GMHB's legal conclusions de novo and its findings for substantial evidence.  Id.  

Although we generally defer to the GMHB's GMA interpretations, its interpretations are 

not binding.  Id. at 154; WEAN, 122 Wn. App. at 164. We will find an order arbitrary 

and capricious if it was willful, unreasoning, and made without regard to the facts and 

circumstances.  Kittitas, 172 Wn.2d at 155.  

       First, regarding stream buffers, under the GMA the County is required to adopt 

development regulations to protect critical areas, including wetlands and fish and wildlife 

habitat conservation areas.  RCW 36.70A.030(5), .060(2). Fish and wildlife habitat 

conservation areas include "[w]aters of the state" (WAC 365-190-130(1)(f)); this includes 

all streams.  RCW 90.48.020.  In YCC 16C.06, the County sets protections for the 

"stream corridor system," including "hydrologically related critical areas, streams, lakes, 

ponds, and wetlands." YCC 16C.06.01(1).  The stream corridor system includes 

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Yakima County v. E. Wash. Growth Mgmt. Hearings Bd.

perennial and intermittent streams (excluding ephemeral streams) in the stream channel.  

YCC 16C.06.03(2).  As defined in the BAS Review, perennial streams generally flow 

year-round and are fed mostly by groundwater; intermittent streams flow at limited times, 

usually more than 30 days per year, and are fed by groundwater and precipitation; and 

ephemeral streams flow fewer than 30 days a year solely in response to precipitation.  

More than one-half of the stream corridors in Yakima County flow on an intermittent or 

ephemeral basis.  

       YCC 16C.06.01(1) describes the stream corridor system as "a fragile and highly 

complex relationship of geology, soils, water, vegetation, and wildlife."  In developing 

regulations designed to protect the functions and values of the stream corridor system, the 

County sought to "conserve, protect, and, where feasible, restore and enhance this 

complex relationship." YCC 16C.06.01(1). To that end, the County "established a 

system of vegetative buffers that are necessary to protect the functions and values of 

certain hydrologically related critical areas." YCC 16C.06.16.  The County recognizes

buffers prevent or reduce impact on the functions and values of streams and provide 

wildlife habitat through avoidance of human activities.

       Vegetative buffers are defined in YCC 16C.02.415 as the area extending landward 

from the ordinary high water mark of a stream or wetland "allowed to provide, under 

optimal conditions, adequate soil conditions and native vegetation for the performance of 

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No. 29763-2-III
Yakima County v. E. Wash. Growth Mgmt. Hearings Bd.

the basic functional properties of a stream corridor, wetland and other hydrologically 

related critical areas." In 1995, the County adopted maximum and minimum vegetative 

buffer widths based on categories of streams related to water flow.  Former YCC 

16A.06.16. The stream types and their buffers were:

Stream Type                                                Buffer Width, in feet
                                                           Standard/(minimum adjustments)

Type 1 shoreline streams                                   100
Type 2 streams                                               75/(25)
Type 3 streams (Perennial)                                   50/(25)
Type 4 streams (Intermittent)                                25/(15)
Type 5 streams (Ephemeral)                                 No buffer standards

       Type 1 streams are major shoreline waters regulated under the Shoreline Master 

Program rather than under the critical areas ordinance; Type 1 buffers are not challenged 

here.  YCC 16C.06.06(1).  Type 2 streams are specific surface water streams designated 

in Appendix A of YCC 16C.  YCC 16C.06.06(2).  Type 3 streams are all perennial 

streams not classified as Type 1 or 2.  Type 4 streams are all intermittent streams not 

classified as Type 1, 2, or 3.  YCC 16C.06.06(3), (4).  Type 5 ephemeral streams are not 

regulated as critical areas.  YCC 16C.06.06(5).  

       The planning commission and the BAS Review emphasized that riparian buffers 

are valuable tools for protecting the functions and values of fish and wildlife habitat.  In 

its findings and recommendations to the County for amendments of the critical areas 

ordinance, the planning commission observed the main goal of the BAS Review regarding 

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No. 29763-2-III
Yakima County v. E. Wash. Growth Mgmt. Hearings Bd.

buffers was to examine the range of science and to assess how the current buffers fit 

within that range.  The BAS Review advisory committee found no buffer studies specific 

to the arid regions in Yakima County.  Even so, Table 2 of the BAS Review identified a 

range of buffer widths acceptable for different functions:

Function                                                   Buffer Range, in feet

Large woody debris/structural complexity                     90  --  525
Organic matter input                                       170  --  262
Stream bank stabilization                                    10  --  170
Sediment control                                             12  --  600
Nutrient and pollutant inputs control                        13  --  860
Microclimate                                               141  --  784
Stream shading/water temp. moderation                        33  --  525
Terrestrial wildlife habitat                                 25  --  984

       These functions generally correspond to the various functions and values 

recognized in YCC 16C.06.05 for stream channels, streams, lakes, ponds, and wetlands: 

contributing woody debris and organic matter to the aquatic environment; stabilizing the 

stream bank and shore; transporting and storing sediment; filtering harmful substances; 

creating a dynamic habitat mosaic; providing sufficient shade to maintain optimal water 

temperatures; and supporting a diversity of wildlife habitat.  The planning commission 

combined the various functions listed in the BAS Review to create buffer width ranges

and retained the 1995 stream buffers for Type 2, 3, and 4 streams.  Therefore, the County 

did not amend the 1995 buffer widths in Ordinance No. 13-2007.

       On review of the standard stream buffer widths, the GMHB noted RCW 

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Yakima County v. E. Wash. Growth Mgmt. Hearings Bd.

36.70A.060(2) and RCW 36.70A.172 require development regulations to protect all of 

the functions and values of critical areas, based on the best available science.  Noting a 

site-specific analysis of each stream is not always possible; the GMHB approved the 

County's reliance on standardized buffer widths, as long as they were supported by the 

best available science. But after consulting the BAS Review, the GMHB concluded the 

County's standard buffers for Type 2 through Type 4 streams fell below the mean buffer 

for all functions, and below the range of buffer widths for all functions except 

temperature control and pollutant filtration.  "Except for a handful of isolated studies 

limited to a particular function," the GMHB reasoned, "almost all of the studies cited 

within the BAS Review recommend buffers of greater than 75 feet." AR at 3767.

Finding the County provided no reasoned justification for departing from the best 

available science; the GMHB concluded Ordinance No. 13-2007 was non-compliant with 

the GMA.

       The County contends the GMHB failed to properly defer to the County's growth 

plan under the GMA, failed to recognize the County used a reasoned process to establish 

its stream buffers, and failed to recognize the general buffer widths adopted are within the 

range of the best available science.  A county has broad discretion under the GMA in 

creating development regulations tailored to local circumstances.  Swinomish, 161 Wn.2d 

at 430.  In Kittitas County, 172 Wn.2d at 155, the court addressed the extent to which a 

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Yakima County v. E. Wash. Growth Mgmt. Hearings Bd.

growth board must defer to the counties' local planning processes.  The petitioners in 

Kittitas County argued "the mere presence of evidence supporting a county decision as 

comporting with the GMA entitles that county to Board deference." Id. at 156.  Finding 

this extreme stance would eliminate a growth board's evaluative role, the court concluded 

growth boards must consider anecdotal evidence provided by counties and defer to the 

counties' discretion when, within the constraints of the GMA, more than one appropriate 

planning choice exists.  Id. at 156-57.  Because the GMA merely requires the county to 

"include" the best available science in its record and does not require the county to follow 

the best available science, the county may depart from the best available science if it 

provides a reasoned justification for such a departure.  Swinomish, 161 Wn.2d at 430-31.

       Here, the County accepted the planning commission's assessment that the existing 

stream buffer widths fell within the BAS Review's "range" of general buffer widths 

related to the functions provided by vegetative buffers.  Although the stream buffers for 

Type 2, 3, and 4 streams fell within the BAS Review ranges for some functions, the 

buffers were insufficient for other functions.  In particular, the stream buffers adopted by 

the County for Type 2 streams (75 feet) and Type 3 streams (50 feet) do not meet the 

width requirements for the large woody debris/structural complexity (90 to 525 feet), the 

organic matter input (170 to 262 feet), or the microclimate (141 to 784 feet) functions 

listed in Table 2 of the BAS Review.  For Type 4 streams, the 25-foot buffers fail to 

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Yakima County v. E. Wash. Growth Mgmt. Hearings Bd.

protect the above functions plus the stream shading/water temperature function (33 to 525 

feet) in Table 2. The GMA requires regulations for critical areas to protect all functions 

and values of the designated areas, not just some of the functions.  WEAN, 122 Wn. App. 

at 174-75 (citing RCW 36.70A.172(1)).  Because the BAS Review concludes the relevant 

functions and values are included in Table 2, the stream buffer regulations should meet 
all those minimum standards.2  The stream buffers adopted in Ordinance No. 13-2007 do 

not fall within the minimum standards for each function.  Consequently, the County must 

provide a reasoned justification for the departure from those standards.  Swinomish, 161 

Wn.2d at 430-31.

       The superior court concluded the County met its burden of showing a reasoned 

justification for maintaining the 1995 stream buffers:

       Faced with a paucity of applicable [best available science], the County 
       performed a systematic analysis of the available data, including information 
       derived from the actual stream buffers which had been in place since 1995.  
       The County's determination that the existing buffers had been, for the most 
       part, adequately performing their intended function was a reasoned 
       justification for the buffers adopted in the [critical areas ordinance].

Clerks Papers (CP) at 1151. The record does not support this conclusion.  As noted by 

       2 The County claims that the GMHB's analysis of the best available science 
focuses on a particular study in the BAS Review?the so-called Knutson/Naef study?to 
the exclusion of all other scientific studies.  But the GMHB actually discusses the buffers 
recommended by the planning commission in Table 2 of the BAS Review as well as 
multiple other studies, including the one by Knutson/Naef.  The County's stream buffers 
fail to meet the minimum standard for all functions in most of the studies in the BAS 
Review.  See AR at 3197-3201, 3386-97, 3764-67.

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Yakima County v. E. Wash. Growth Mgmt. Hearings Bd.

the GMHB, "[s]ince the County did not believe it was deviating from [best available 

science], it made no specific findings" to explain its departure from the scientific studies 

or to identify other goals of the GMA it was implementing by making such a choice.  AR 

at 3767-68.  The record does not show the County systematically analyzed the efficacy of 

the stream buffers in place since 1995, or that "for the most part" these buffers had 

adequately performed their intended function.  

       If the absence of relevant scientific information creates uncertainty about the 

development risks to a critical areas function, the County must follow WAC 365-195-

920(1) and use a "'precautionary or a no risk approach'" that strictly limits land use 

activities until the uncertainty is sufficiently resolved.  Despite finding no specific science 

applies to Yakima County, the planning commission admits "the proposed buffers are 

already the minimum possible to protect stream functions." AR at 3479, 3476.  Given 

this background, the County failed to employ a no-risk approach in adopting stream 

buffers pending resolution of the uncertainty. WAC 365-195-920(1).

       The GMHB concluded the adopted standard stream buffer widths set forth in YCC 

16C.06.16 violated the GMA (specifically RCW 36.70A.060(2) and RCW 

36.70A.172(1)) because they were not supported by the best available science and the 

County provided no reasoned justification for departing from the best available science.  

Consistently, the GMHB concluded any further buffer reductions to minimum buffers by 

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administrative adjustment was not supported by the best available science. These

conclusions are supported by substantial evidence.  Kittitas, 172 Wn.2d at 155.

       Ultimately, the County failed to show it made appropriate planning choices within 

the GMA constraints.  Id. at 156-57. The GMHB remanded Ordinance No. 13-2007 to 

the County with orders to comply with the GMA.  Remand allows the County to 

reconsider the best available science and either amend the buffers to comply with that 

science or establish a reasoned justification for departure from that science.  Swinomish, 

161 Wn.2d at 430-31.

       Second, regarding wetland buffers, wetlands are areas "inundated or saturated by 

surface water or ground water at a frequency and duration to support . . . a prevalence of 

vegetation typically adapted for life in saturated soil conditions." RCW 36.70A.030(21).  

The GMA specifically defines wetlands as critical areas to be protected by development 

regulations.  RCW 36.70A.030(5), .060(2); WAC 365-190-030(4)(a). According to the 

BAS Review, Washington has lost about 25 percent of its inland wetlands due to 

agricultural conversion, development, construction of levees and dams for flood control 

and irrigation, groundwater withdrawal, and other factors.  Approximately two percent of 

the Yakima basin is wetland. In the semi-arid lowlands of Yakima County, these 

wetlands are critical to many species of wildlife because wetlands provide vegetation for 

food and cover, support invertebrates, and provide water.  Wetland functions are grouped 

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in three broad categories: biogeochemical functions (improving water quality by trapping 

and transforming chemicals and sediment); hydrologic functions (maintaining water flow 

and recharge); and food web and habitat functions (supporting wildlife).  Buffers around 

wetlands protect mainly the water quality and wildlife habitat functions.

       The BAS Review advisory group consulted several scientific studies on wetlands, 

including a wetland science synthesis produced by the State Department of Ecology

(Ecology), the State Department of Fish and Wildlife, and Sheldon and Associates, Inc., 

as well as a synthesis prepared by the United States Environmental Protection Agency.  

The buffer recommendations for protecting wetlands ranged from 25 feet to 197 feet as a 

minimum and 98 feet to 350 feet as a maximum. The BAS Review noted a study 

summarizing research conducted before 1990 concluded that minimal effectiveness in 

protecting both water quality and wildlife habitat requires buffers between 49 and 98 feet.  

       Ordinance No. 13-2007 retained the wetland buffers adopted in 1995, stating 

"there has been no evidence or testimony that any significant environmental degradation 

has occurred with the existing wetland buffers." AR at 2812-13. The existing buffers are 

grouped according to wetland types: Type 1 (unique or rare, relatively undisturbed, 

sensitive to disturbance, with a high level of functions, and impossible or too difficult to 

replace in a human lifetime); Type 2 (more common but still need a relatively high degree 

of protection, with high levels of some functions, and difficult but not impossible to 

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replace); Type 3 (smaller, less diverse, and/or more isolated from other natural 

resources); and Type 4 (with the lowest level of functions, often heavily disturbed, could 

be replaced and even improved).  YCC 16C.06.16; YCC 16C.07.04.  The standard

buffers retained in Ordinance No. 13-2007 include:

       Type 1 wetlands?200 feet 
       Type 2 wetlands?100 feet 
       Type 3 wetlands?75 feet 
       Type 4 wetlands?50 feet.  

The adjustment minimum for all types is 25 feet.  YCC 16C.06.16, Table 6-2.  All of the 

standard buffers and none of the adjusted minimum buffers fall within the recommended 

buffer dimensions of most of the summarized studies found in the BAS Review. 

       Ecology sent several letters to the County during and after development of 

Ordinance No. 13-2007 urging adoption of wider wetland buffers to reflect the increased 

threats to critical wetland areas from high intensity land use.  The buffers recommended 

by Ecology were:

       Type I?250 feet 
       Type 2?200 feet 
       Type 3?150 feet 
       Type 4?50 feet (the same as the Type 4 buffers already adopted).  

AR at 1844.  The County planning commission was aware most of the development 

projects proposed near wetlands are high impact uses, but chose not to include land use 

intensity in its consideration of wetland buffers:

       Very few uses that require permits fall in the low-intensity category.  

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       Moderate-intensity uses will be uncommon and generally found in rural 
       areas.  Many [critical areas ordinance] permits that the Planning Division 
       tends to see fall in the high-intensity use category.  Almost all urban permit 
       applications would be high-intensity.  The wetland buffers recommended 
       by the [planning commission] in the [critical areas ordinance] are very close 
       to the wetland buffers proposed by [Ecology] for moderate intensity uses, 
       and less than the high-intensity uses.  This is one reason the [planning 
       commission] chose not to use the use-intensity-based buffer system.  Using 
       the concept of a use-intensity-based buffer, but not using the buffer widths 
       and the science it was built on would not meet the requirement of using 
       [best available science].

AR at 3480; see also AR at 1844, 3279, 3770-71.  

       In its review of the wetland buffers, the GMHB acknowledged the BAS Review 

shows the importance of assessing the intensity of urbanization and other land use 

adjacent to wetlands.  "In fact," the GMHB states, "the BAS Review shows in all but a 

few functions, urbanization results in major disturbances of environmental factors or 

major negative impacts." AR at 3770-71. Even so, the GMHB concluded that the 

adopted wetland buffers were within the range of the BAS Review and that the County 

was not required to adopt Ecology's recommendations.

       As noted, Futurewise did not petition the superior court for review of the GMHB's 

decision upholding the County's standard wetland buffers and no party addresses whether 

the issue is properly before us.  "The Administrative Procedure Act provides the 

exclusive means for seeking judicial review of agency action."  King County v. Cent.

Puget Sound Growth Mgmt. Hearings Bd., 138 Wn.2d 161, 178, 979 P.2d 374 (1999) 

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(citing RCW 34.05.510)).  Both the Administrative Procedure Act and the GMA require a 

party seeking judicial review of a growth board's decision to file a petition for review 

within 30 days after the decision is filed.  Id.; RCW 34.05.542(2); RCW 36.70A.300(5).  

Because Futurewise did not file a petition for review, it waived review of the GMHB's 

decision upholding the standard wetland buffers.  King County, 138 Wn.2d at 178.  

       The County timely petitioned for judicial review of the GMHB's conclusion that 

the adjusted minimum wetland buffer width of 25 feet was not within the range of the 

best available science.  As with adjustments to the minimum stream buffers, the minimum 

wetland buffer is permitted if the developer shows constraints due to existing structures, 

parcel size, and property boundaries.  YCC 16C.03.23(1).  An adjustment permit may be 

granted based on certain considerations, including the proximity of the project to a 

critical area, the project's impact on the critical area, and the overall intensity of the 

proposed use.  YCC 16C.03.23(3)(b).  The 25-foot minimum buffer adjustment may be 

reduced further if the developer shows a hardship caused by parcel boundaries or existing 

on-site development. YCC 16C.03.23(3)(d).  The adjustment must not result in 

degradation of the critical area and must include buffer averaging or buffer enhancement 

to enhance the functions and values of the hydrologically related critical area. YCC 

16C.03.23(3)(a), (b)(vi).  

       As the GMHB noted, the 25-foot minimum wetland buffer adjustment could 

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Yakima County v. E. Wash. Growth Mgmt. Hearings Bd.

reduce a buffer nearly 90 percent (from 200 feet to 25 feet).  Just two studies in the BAS 

Review synopsis of buffer dimensions based on multiple wetland functions suggest a 

minimum buffer of 25 feet, and one of those studies concluded the minimum necessary to 

protect buffers and streams is 49 feet.  The County gives no basis in the BAS Review for 

such a reduction and does not require individual adjustments to be based on the best 

available science. Additionally, the County does not provide a reasoned justification for 

departing from the best available science.  Thus, the GMHB did not err in concluding the 

provision in Ordinance No. 13-2007 and YCC 16C.06.16 allowing administratively 

approved minimum wetland buffers of 25 feet is clearly erroneous and violates the GMA.  

Kittitas, 172 Wn.2d at 155; Swinomish, 161 Wn.2d at 430-31.  

       Third, regarding exemptions, Futurewise originally assigned error to the 

exemptions to the critical areas ordinance found in former YCC 16C.03.07, former YCC 

16C.03.08, and former YCC 16C.03.09, adopted in Ordinance No. 13-2007.  Pending 

resolution of this case, the County enacted Ordinance No. 6-2011, which repealed the 

exemptions in question.  Futurewise agrees with the County that the issue of whether the 

former exemptions violate the GMA is now moot.  

       In sum, substantial evidence supports the GMHB's conclusion that the standard 

stream buffers and the administrative minimum adjustments of the stream and wetland 

buffers violate the GMA because they are not supported by the best available science and 

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Yakima County v. E. Wash. Growth Mgmt. Hearings Bd.

that the County failed to present a reasoned justification for departure from the best 

available science.  Accordingly, we reverse the superior court's order reversing the 

GMHB's buffer width decisions.

                               B.  Type 5 Ephemeral Streams

       Futurewise contends the superior court erred in reversing the GMHB's decision 

that the County's critical areas ordinance must include protections for Type 5 ephemeral 
streams as critical areas.3  As discussed above, we review the GMHB's legal conclusion 

de novo and its findings for substantial evidence.  Kittitas, 172 Wn.2d at 155. Like the 

GMHB, we must defer to the County's planning actions unless they are clearly 

erroneous.  RCW 36.70A.320(3), .3201.

       The County argues, as it did unsuccessfully before the GMHB and the superior 

court, that the issue of critical areas protection for ephemeral streams has been waived or 

is time-barred.  Former YCC 16C.06.16, Table 6-2 (adopted in Ordinance No. 13-2007),

established for Type 5 ephemeral streams: "No buffer standards[.] Type 5 streams are 

not regulated."  In its petition to the GMHB, Futurewise challenged the County's decision 

to exclude Type 5 ephemeral streams from classification as critical areas requiring 

buffers.  Later, the County adopted Ordinance No. 2-2009, amending Table 6-2:

       No buffer standards ? Type 5 streams are not regulated through buffer 
       requirements, but activities such as clearing, grading, dumping, filling, or 

       3 The Yakamas, and significantly the state departments of Fish and Wildlife, 
Commerce, and Ecology, do not challenge the designation of Type 5 ephemeral streams 
as not regulated under the critical areas ordinance.

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Yakima County v. E. Wash. Growth Mgmt. Hearings Bd.

       activities that restrict or block flow, redirect flow to a point other than the 
       original exit point from the property or result in the potential to deliver 
       sediment to a drainage way/channel, are regulated under clearing and 
       grading regulations.  These drainages may also be protected under 
       geologically hazardous area, floodplain, stormwater, building and 
       construction, or other development regulations.

YCC 16C.06.16; CP at 1078.  The County contends Ordinance No. 2-2009 was enacted 

after complex settlement negotiations.  After this amendment, the Department of Fish and 

Wildlife and the Department of Commerce withdrew their petitions challenging 

Ordinance No. 13-2007. The County argues because former YCC 16C.06.16, Table 6-2, 

is no longer in effect and Futurewise failed to assign error to the new Table 6-2, we 

should consider Futurewise's challenge to YCC 16C.06.16 untimely and moot.

       Neither the GMHB nor the superior court found Futurewise's issue regarding the 

designation and protection of ephemeral streams untimely or moot.  The GMHB noted 

Ordinance No. 2-2009 did not change the designation or buffer widths for Type 2, 3, and 

4 streams and merely added clarifying language to the Type 5 ephemeral stream 

designation.  Because the context of Futurewise's argument regarding the designation of 

ephemeral streams as critical areas remained unchanged, the GMHB concluded its 

challenge to Table 6-1 of YCC 16C.06.16 was not moot.  The superior court agreed, 

additionally deciding Futurewise was not required to assign error to Ordinance No. 2-

2009 because the provisions in former YCC 16C.06.16 that Futurewise originally 

challenged were retained in the amended code.  "If the rule were otherwise," the court 

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No. 29763-2-III
Yakima County v. E. Wash. Growth Mgmt. Hearings Bd.

stated, "a municipality could serially readopt a challenged ordinance in the hope the 

challenger would fail to appeal at some point, allowing the municipality to claim the 

original challenge had been rendered moot" or untimely.  CP at 1149.

       An issue is not moot if we can provide any effective relief.  City of Sequim v. 

Malkasian, 157 Wn.2d 251, 259, 138 P.3d 943 (2006).  Our central issue is, considering 

the best available science, whether the County's failure to designate and protect 

ephemeral streams as critical areas violates the GMA.  The amendment of YCC 

16C.06.16, Table 6-1, by Ordinance No. 2-2009 does not affect this issue.  Thus, 

Futurewise was not required to challenge Ordinance No. 2-2009 to pursue this issue 

before the GMHB or in the superior court.  Therefore, the issue is not untimely or moot 

because we can provide effective relief.  Id. at 259-60.

       As noted, critical areas encompass waters of the state, including streams "and all 

other surface waters and watercourses within the jurisdiction of the state of Washington."  

RCW 90.48.020; WAC 365-190-130(2)(f). Local jurisdictions are required to designate 

critical areas "where appropriate" and to adopt development regulations to protect those 

areas.  RCW 36.70A.170(1)(d), .060(2).  In designating and protecting these critical 

areas, the County must include the best available science.  RCW 36.70A.172(1).

       The County defines a stream as "water contained within a channel, either 

perennial, intermittent or ephemeral." YCC 16C.02.370.  In YCC 16C.06.03(2), 

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No. 29763-2-III
Yakima County v. E. Wash. Growth Mgmt. Hearings Bd.

however, the County limits the hydrologically-related critical areas to perennial and 

intermittent streams, excluding ephemeral streams.  And, under YCC 16C.06.06(5) "Type 

5" ephemeral streams are not regulated.  Futurewise argues that by refusing to designate 

ephemeral streams as critical areas, the County effectively sidestepped the need to 

develop regulations based on the best available science to protect these streams.  The 

question then would be whether the County properly included the best available science 

in its decision to designate Type 5 ephemeral streams as non-critical areas, or if not, 

whether it had a reasoned justification for departing from the best available science.  

Swinomish, 161 Wn.2d at 430-31.

       The BAS Review, in defining streams by water flow, describes ephemeral streams 

as those that "flow only in response to precipitation, with no groundwater interaction, and 

usually flow less than 30 days per year." AR at 3134. Ephemeral streams typically are 

found on steep ridges, although in the more arid areas of Yakima County, even low-

gradient streams may flow on an ephemeral basis.  In fact, more than one-half of the 
stream corridors in the county flow only intermittently or ephemerally.4 Although the 

BAS Review states buffers should be continuous along a stream channel "[t]o the extent 

possible," it also notes that intermittent and ephemeral streams with a relatively flat slope 

may not need the full buffer width, which may be reduced to whatever is necessary to 

       4 The BAS Review does not state what actual percentage of the streams in Yakima 
County is ephemeral.

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No. 29763-2-III
Yakima County v. E. Wash. Growth Mgmt. Hearings Bd.

protect the stream from upslope sedimentation and changes in stream temperature.  AR at 

3200. Some cited studies recommend buffers on steep slopes at least 98 feet wide to 

maintain an influx of large woody debris and to trap sediment.  

       In its findings and recommendations to the County after public hearings and 

consideration of the BAS Review, the planning commission recommended distinguishing 

between intermittent and ephemeral streams based on "significant functional 

difference[s]." AR at 3475.  The planning commission describes ephemeral streams as 

"stormwater driven," without riparian vegetation, and therefore not fish and wildlife 

habitat in themselves, although they may have "some habitat value." AR at 3475.  

Without citation to the BAS Review record, the planning commission additionally states 

the BAS Review acknowledges "that there must be a point along a stream corridor where 

the stream is no longer regulated as fish and wildlife habitat," and the BAS Review 

"indicates that the best point to make this distinction is between ephemeral and 

intermittent streams." AR at 3475. "Consequently," the planning commission concludes, 

"Type 5 streams are recommended to not be regulated as fish and wildlife habitat, though 

they may be protected under geologically hazardous area, floodplain, stormwater, 

construction, grading or other development regulations." AR at 3475.

       The County in Ordinance No. 13-2007 accepted the planning commission's 

recommendation "that Type 5 streams do not constitute fish and wildlife habitat 

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No. 29763-2-III
Yakima County v. E. Wash. Growth Mgmt. Hearings Bd.

conservation areas, but may be regulated as other critical areas or other regulations." AR 

at 2812.  A portion of the statement that Type 5 streams are not regulated "'as streams, 

but may be protected under geologically hazardous areas, floodplain, stormwater, 

construction, grading or other development regulations'" was stricken from former YCC 

16A.06.06(5) (now YCC 16C.06.06(5)) as unnecessary.  In a letter to the County 

responding to the changes enacted in Ordinance No. 13-2007, Ecology did not assign 

error to the designation of Type 5 ephemeral streams as unregulated under the critical 

areas ordinance, but did recommend reinstating the deleted phrase in YCC 16A.06.06(5) 

to alert the public that other protection measures should be applied to protect the 

"valuable riparian habitat" of Type 5 streams. AR at 1848.

       As noted, language similar to the phrase deleted in Ordinance No. 13-2007 was 

added to YCC 16C.06.16, Table 6-1, in Ordinance No. 2-2009.  This language indicates 

that although Type 5 streams are not regulated with buffers, activities that block or 

redirect the flow of ephemeral streams or affect their ability to filter sediment are 

regulated under clearing and grading regulations.  Additionally, "[t]hese drainages may 

also be protected under geologically hazardous area, floodplain, stormwater, building and 

construction, or other development regulations." CP at 1078. After adoption of 

Ordinance No. 2-2009, no party other than Futurewise has continued to challenge the 

designation of Type 5 ephemeral streams.

                                               27 

No. 29763-2-III
Yakima County v. E. Wash. Growth Mgmt. Hearings Bd.

       The GMHB found the County failed to show with the best available science that 

the clearing, grading, and other development regulations referred to in YCC 16C.06.16, 

Table 6-1, will protect the functions and values that ephemeral streams provide to the 

overall stream corridor system.  Further, finding that ephemeral streams play an important 

role in the hydrological, biogeochemical, and ecological health of the stream corridor

system, the GMHB concluded not designating ephemeral streams as critical areas violates 

RCW 36.70A.170 (requiring designation of critical areas where appropriate).  The 

superior court on review reversed the GMHB's decision, the superior court reversed,

concluding "the Board's interpretation of [the statute defining "waters of the state"] 

ignores that fact that there must be some lower limit to the definition of 'waters of the 

state.'" CP at 1150. We agree with the superior court assessment.

       The County has discretion to designate an area as a critical area "where 

appropriate," and must "include" the best available science when deciding what to 

designate as a critical area.  RCW 36.70A.170(1)(d), .172(1), .060.  The requirement to 

include the best available science does not mean the County must follow the best 

available science.  Swinomish, 161 Wn.2d at 430.  But the record must contain evidence 

the County considered the best available science substantively in its development of the 

critical areas ordinance.  Kitsap Alliance of Property Owners v. Cent. Puget Sound 

Growth Mgmt. Hearings Bd., 160 Wn. App. 250, 267, 255 P.3d 696 (2011).

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No. 29763-2-III
Yakima County v. E. Wash. Growth Mgmt. Hearings Bd.

       Here, the record suggests that although the County substantively considered the 

best available science contained in the BAS Review, it may have departed from that 

science when it concluded that ephemeral streams are not critical areas.  Apparently, none 

of the studies in the BAS Review indicate ephemeral streams are without function or 

value for maintaining fish and wildlife habitat, and none state that buffers are 

unnecessary along ephemeral stream channels.  Thus, assuming the County may have 

departed from the best available science when it decided not to designate or regulate 

ephemeral streams as critical areas, the question becomes whether the County provided a 

reasoned justification for this departure.  Swinomish, 161 Wn.2d at 430-513.  

       Although recognizing ephemeral streams have some habitat value, the planning 

commission concluded from the BAS Review that the lack of riparian vegetation along 

ephemeral streams and their brief existence as stormwater drainage did not justify their 

regulation as fish and wildlife habitat.  This did not mean, however, these stream 

channels should not be regulated at all.  The planning commission recommended 

ephemeral streams could be protected under other regulations, including geologically 

hazardous area, floodplain, stormwater, construction, and grading regulations. The 

County, in Ordinance No. 13-2007, concluded although Type 5 ephemeral streams are 

not fish and wildlife conservation areas, these streams "may be regulated as other critical 

areas or other regulations." AR at 14. And presumably in response to Ecology's 

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No. 29763-2-III
Yakima County v. E. Wash. Growth Mgmt. Hearings Bd.

insistence that the county code should alert the public that ephemeral streams are 

protected in regulations other than the critical areas ordinance, the County in Ordinance 

No. 2-2009 warned that land use activities that restrict, block, or redirect the stream flow,

or that could affect sediment delivery, are regulated under clearing and grading 

regulations.  YCC 16C.06.16, Table 6-1; CP at 1078. Additionally, the language 

proposed by the planning commission and Ecology was included in Table 6-1.

       The GMHB concluded the County provided insufficient science to support its 

decision not to regulate ephemeral streams as critical areas and did not show that other 

regulations will protect the functions and values of these streams.  Our deference to the 

GMHB's decision is superseded by the GMA's requirement that growth boards give 

deference to a county's planning processes.  Kittitas, 172 Wn.2d at 154. When more than 

one appropriate planning choice exists, the growth board must defer to a county's 

discretion.  Id. at 156.  This deference is bounded, however, by the goals and 

requirements of the GMA.  Id.  

       Although one of the central GMA requirements is to protect critical areas, local 

governments are urged to maintain and enhance natural resource-based industries, to 

conserve agricultural lands, and to discourage incompatible uses.  Swinomish, 161 Wn.2d 

at 424 (citing RCW 36.70A.020(8), .060(2)). Here, the County apparently concluded 

from the BAS Review that ephemeral streams did not serve as significant fish and 

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No. 29763-2-III
Yakima County v. E. Wash. Growth Mgmt. Hearings Bd.

wildlife habitat and had a limited effect on the functions and values of other streams in 

the stream corridor system.  The County further concluded those ephemeral stream 

functions recognized as somewhat valuable to the stream corridor system?sediment and 

large woody debris dispersal?would be protected by other development regulations.  

Accordingly, the County chose not to regulate ephemeral streams under the critical areas 

ordinance but under other land use ordinances. In other words, the County concluded 

that designating ephemeral streams as critical areas was not "appropriate." RCW 

36.70A.170(1)(d). This decision, choosing among multiple planning choices for 

protecting the functions and values of ephemeral streams, was the result of a reasoned 

process.  See Ferry County, 155 Wn.2d at 835 (growth boards require counties to 

consider competing scientific information and other factors in a reasoned process of 

analysis).

       In sum, the GMHB failed to defer to the County's reasoned justification for 

refusing to designate Type 5 ephemeral streams as critical areas subject to critical areas 

regulations.  Accordingly, the superior court did not err in reversing the GMHB's 

decision that YCC 16C.06.16, Table 6-1, adopted in Ordinance No. 13-2007, violated the 

GMA.  Therefore, we affirm that portion of the superior court's decision.

       Reversed in part.  Affirmed in part.

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No. 29763-2-III
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                                            ______________________________________
                                            Brown, J.

WE CONCUR:

___________________________
Korsmo, C.J.

___________________________
Sweeney, J.

                                               32