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Court of Appeals Issues New Opinion Upholding Jefferson County's Channel Migration Zone Critical Area Ordinance

Yesterday, Division II of the Court of Appeals withdrew its prior opinion in Olympic Stewardship Foundation v. Western Washington Growth Management Hearings Board, 4027-6-II, and issued a new opinion. The new opinion finds that the County properly applied "best available science" in requiring retention of vegetation in valley bottoms with migrating river channels.

We agree with the Board that the County addressed the relevant sources of best available scientific information included in the decision malting on the record as WAC 365-195-915(1)(b) requires. As the Board observed, the BOCC 2008 ordinance specifically identified a 24-page bibliography of scientific literature that the BOCC evaluated in order to develop the critical areas regulations See Ordinance 03031708 at 17 Ex A. Additionally, the findings in the 2008 ordinance singled out detailed studies and reports by the Department of Ecology, the Bureau of Reclamation, Perkins Geosciences, and a former manager of the County natural resources division. Ordinance 03031708 at 910. The 2009 ordinance incorporated these findings and cited additional studies and maps by Perkins Geosciences as the scientific basis for addressing the Board's final decision and order. Finally, as the Board recognized, these studies and reports discuss in part the specific value at issue here, the importance of vegetation in the river environment "especially in regards to its significant role in erosion control bank stabilization bank protection and bank accretion." 1 AR at 825.
We do not read Concerned Friends of Ferry County as imposing a duty on a county to describe each step of the deliberative process that links the science that it considers to the adopted policy or regulation. Nor does the relevant Department of Commerce regulation impose such a duty -- rather it requires that counties "address...on the record ... [t]he relevant sources of best scientific information included in the decision making." WAC 365-195.915(1)(b). Here because the County complied with this requirement we conclude that the Board correctly applied RCW 37.70A.172(1). [Emphasis added.]

So, as long as you cobble together a bibliography, you're home free.

Full post as published by Environmental Law in Washington State on January 27, 2012 (boomark / email).