                                                                                          Filed
                                                                                    Washington State
                                                                                    Court of Appeals
                                                                                     Division Two

                                                                                      June 20, 2017




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION II
 OLYMPIC STEWARDSHIP FOUNDATION,                                 No. 47641-0-II
 J. EUGENE FARR, WAYNE and PEGGY
 KING, ANNE BARTOW, BILL ELDRIDGE,
 BUD and VAL SCHINDLER, RONALD
 HOLSMAN, CITIZENS’ ALLIANCE FOR
 PROPERTY RIGHTS LEGAL FUND, MATS
 MATS BAY TRUST, JESSE A. STEWART
 REVOCABLE TRUST, CRAIG DURGAN,
 and HOOD CANAL SAND & GRAVEL,
 d/b/a THORNDYKE RESOURCES,

                              Petitioners,

        v.

 STATE OF WASHINGTON                                     PART PUBLISHED OPINION
 ENVIRONMENTAL AND LAND USE
 HEARINGS OFFICE, acting through the
 WESTERN WASHINGTON GROWTH
 MANAGEMENT HEARINGS BOARD,
 STATE OF WASHINGTON DEPARTMENT
 OF ECOLOGY, JEFFERSON COUNTY, and
 THE HOOD CANAL COALITION,

                              Respondents.

       JOHANSON, J. — The subject of this appeal is Western Washington Growth Management

Hearings Board’s (Board) final decision and order that upheld Jefferson County’s 2014 Shoreline

Master Program (Master Program). Olympic Stewardship Foundation (OSF), Citizen’s Alliance

for Property Rights Jefferson County (CAPR), et al., and Hood Canal Sand and Gravel (S&G)
No. 47641-0-II


appeal various aspects of the Board’s decision. The appellants raise numerous and largely separate

and distinct issues. Thus, in the published portion of the opinion, after providing brief background

information and general standards of review, we address OSF’s issues in Part One, CAPR’s issues

in Part Two, and S&G’s issues in Part Three. We address the appellants’ remaining arguments in

Parts One, Two, and Three of the unpublished portion of the opinion respectively. Finding no

error in the Board’s decision, we affirm.

                                        BACKGROUND

         Since 1974, Jefferson County (the County) has had several Master Programs. Under the

Shoreline Management Act of 1971 (SMA),1 each County is required to adopt and administer a

Master Program. Citizens for Rational Shoreline Planning v. Whatcom County, 172 Wn.2d 384,

387, 258 P.3d 36 (2011).       A Master Program is a combination of planning policies and

development regulations that addresses shoreline uses and development.              WAC 173-26-

020(24), -186.

         In 2003, the Department of Ecology (DOE) formally adopted guidelines (Master Program

guidelines) for the development and approval of new and updated Master Programs by local

governments.2 Ch. 173-26 WAC. The SMA and the Master Program guidelines afford substantial

discretion to local governments to adopt Master Programs that reflect local circumstances. WAC

173-26-171(3)(a). But Master Programs must comply with Master Program guidelines and will




1
    Ch. 90.58 RCW.
2
  The DOE acts “primarily in a supportive and review capacity with an emphasis on providing
assistance to local government and on insuring compliance with the policy and provisions of this
chapter.” RCW 90.58.050.

                                                 2
No. 47641-0-II


not be effective until reviewed and approved by the DOE. RCW 90.58.080(1), .090. A Master

Program becomes part of Washington’s shoreline regulations once approved by the DOE. Citizens

for Rational Shoreline Planning, 172 Wn.2d at 392. The Board hears challenges to the DOE

approval of Master Programs or amendments. RCW 90.58.190(2)(a).

       In January 2004, the legislature mandated that all jurisdictions update their Master

Programs by 2014. Ch. 173-26 WAC; RCW 90.58.080(7).

       In 2005, the County initiated the Master Program amendment process. The County’s

Department of Community Development (DCD) formed two advisory committees to assist staff

and consultants with planning and executing the Master Program amendment process. The DCD

formed the Shoreline Technical Advisory Committee to compile and review current scientific and

technical information. The DCD also established a Shoreline Policy Advisory Committee to assist

with the development of goals, policies, and regulations based on the scientific and technical

information. Between 2006 and 2008, the DCD informed the public about the update through e-

mail and through numerous open public events to ensure public participation in the amendment

process and provide the public with opportunities to comment on the Master Program.

       In preparation for the Master Program amendment, the DCD staff worked with an outside

consultant and the Shoreline Technical Advisory Committee to prepare the November 2008 “Final

Shoreline Inventory and Characterization Report” (SI). The SI was based on over 200 sources,

many of which focused on Western Washington and the Puget Sound and some discussed marine

environments. The DOE provided technical support to the County for preparing the SI by




                                              3
No. 47641-0-II


conducting a detailed watershed characterization3 of East Jefferson County using a landscape

analysis. This analysis identified areas that were the most important to maintaining ecosystems;

areas that degraded the ecosystems because of human-caused alterations; and areas that were best

suited for protection, development, and/or restoration.

       A 2004 report relied on by the SI documented pollution from toxic substances, runoff from

rainwater, loss of habitat, and declines in key parts of the food web ecology in many areas of the

Puget Sound. The report further noted that the region’s population was expected to grow by

another 1.4 million people over the next 15 years.

       The SI stated that the County’s shoreline contains critical habitats and is home to numerous

threatened and endangered species, including declining salmonid species. From that evaluation,

the SI concluded that “virtually all of the County’s nearshore marine environment supports or has

the potential to support highly valuable and ecologically sensitive resources.” Administrative

Record (AR) at 6273.

       The SI evaluated key species, habitats, and ecosystems in specific areas in the county

shoreline. The SI also described development adjacent to individual shoreline segments, including

the armoring,4 marinas, beach access stairs, docks, and other structures for each shoreline area. In

addition, the SI included a large map folio detailing the characteristics of the County’s state



3
 “‘Watershed’ means a geographic region within which water drains into a particular river, stream
or body of water.” Jefferson County Code (JCC) 18.25.100(23)(h).
4
  “‘Shore armoring’ or ‘structural shoreline armoring’ refers to the placement of bulkheads and
other hard structures on the shoreline to provide stabilization and reduce or prevent erosion caused
by wave action, currents and/or the natural transport of sediments along the shoreline. Groins,
jetties, breakwaters, revetments, sea walls are examples of other types of shoreline armoring.”
JCC 18.25.100(19)(l).

                                                 4
No. 47641-0-II


shorelines including marine and freshwater shoreline planning areas, water flows for rivers and

streams, soil types, channel migration zones and flood plains, areas designated as critical areas and

critical shoreline habitats, and the locations of aquatic vegetation, shoreline use patterns, and

shellfish harvesting areas.

       In the SI report, the County designated S&G’s shoreline property as a “conservancy” area

based on the property’s environmental attributes, including: high-functioning shoreline resources

with a low degree of modification or stressors, the presence of salmonid habitats, the presence of

erosive or hazardous slopes, and the presence of commercial shellfish beds.

       A 2009 action agenda by the Puget Sound Partnership identifies six broad categories of

threats to the region’s ecology, including habitat alteration, pollution, surface/groundwater

impacts, artificial propagation, harvest, and invasive species. The agenda notes that these issues

are likely to be exacerbated in the future by climate change and population growth.

       In February 2010, the DCD staff and consultants prepared the “Cumulative Impacts

Analysis” (CIA). The CIA assessed the total collective effects that the goals, policies, shoreline

designations, and regulations proposed in the locally approved Master Program (Draft Master

Program) would have on shorelines if all allowed use and development occurred.

       In March 2010, the DCD sent the Draft Master Program to the DOE for review. The DOE

also considered and sent comments about the CIA to the Jefferson County Board of Community

Commissioners (Commissioners). In January 2011, the DOE concluded that the County met the

SMA’s procedural and policy requirements and announced conditional approval of the Draft

Master Program with some required and recommended changes along with findings and

conclusions to support the decision. After further edits and communication with the DOE, the


                                                 5
No. 47641-0-II


Commissioners approved and adopted the County’s final Master Program in December 2013. In

February 2014, the DOE approved the Master Program and it became effective. The Master

Program is codified at ch. 18.25 Jefferson County Code (JCC).5

         Appellants OSF, CAPR, and S&G (collectively petitioners) each timely filed petitions for

review with the Board to challenge the County’s Master Program. The Board consolidated the

petitions and conducted a hearing on the merits. On March 16, 2015, the Board upheld the Master

Program, denied all of the petitioners’ claims, and dismissed their petitions. Petitioners appealed

to the Jefferson County Superior Court in April. In September 2015, upon a motion by the DOE

that was supported by the County, we granted direct review removing the petitions from the

superior court. Petitioners appeal the Board’s decision and order.6

                                            ANALYSIS

                                         LEGAL PRINCIPLES7

                         A. THE GROWTH MANAGEMENT HEARINGS BOARD

         Challenges to a Master Program are governed by the SMA and are adjudicated by the

Board. RCW 90.58.190(2)(a). The Board is charged with ensuring that Master Programs comply




5
  Specific provisions of the Master Program contested by petitioners are not included in the fact
section but are included in the analysis sections in which they are discussed.
6
  Two organizations, Futurewise and the Washington Environmental Council, filed an amicus brief
in which they argue that the Board properly evaluated and upheld the Master Program. Pacific
Legal Foundation also filed an amicus brief in which they argue that the Board’s decision should
be reversed because the Board improperly interpreted the SMA and concluded that the necessary
showing was made for the imposition of riparian buffers.
7
    These standards of review and rules of law are applied throughout the opinion.

                                                  6
No. 47641-0-II


with the Growth Management Act (GMA),8 the SMA, and the DOE guidelines. RCW 36.70A.280;

RCW 90.58.190(2), .200, .060; WAC 173-26-171 through -251.

        A petitioner has the burden of proof in any appeal to the Board for review of the DOE’s

approval of a Master Program or amendment. RCW 90.58.190(2)(d). Where a challenge is to

provisions regulating shorelines of statewide significance (SSWS), “the board shall uphold the

decision by the [DOE] unless the board, by clear and convincing evidence, determines that the

decision of the [DOE] is noncompliant with the policy of [the SMA] or the applicable guidelines,

or chapter 43.21C RCW as it relates to the adoption of master programs.” RCW 90.58.190(2)(c).

        If a challenge is to provisions regulating shorelines not in the SSWS category, the Board

shall review the proposed Master Program “solely for compliance with the requirements” of the

SMA, the applicable Master Program guidelines, and other internal consistency provisions from

the GMA. RCW 90.58.190(2)(b). With respect to provisions affecting only shorelines, a petitioner

must establish that the provisions at issue are “clearly erroneous” in view of the entire record

before the Board. RCW 36.70A.320(3) (emphasis added).

        The County has shorelines falling under both categories. The Board thus examined the

County’s Master Program under both SSWS and shoreline scopes of review and applicable

burdens of proof.

                              B. ADMINISTRATIVE PROCEDURE ACT

        The Administrative Procedure Act (APA), ch. 34.05 RCW, governs judicial review of

challenges to actions by growth management hearings boards. RCW 34.05.570; Quadrant Corp.




8
    Ch. 36.70A RCW.

                                                7
No. 47641-0-II


v. Cent. Puget Sound Growth Mgmt. Hr’gs Bd., 154 Wn.2d 224, 233, 110 P.3d 1132 (2005). Under

the APA, the party asserting invalidity bears the burden of establishing the invalidity. Quadrant

Corp., 154 Wn.2d at 233.

       The decision is invalid if it suffers from at least one of nine enumerated infirmities. RCW

34.05.570(3). We must grant relief from the decision if

                (a) [t]he order, or the statute or rule on which the order is based, is in
       violation of constitutional provisions on its face or as applied;
                ....
                (d) The agency has erroneously interpreted or applied the law;
                (e) The order is not supported by evidence that is substantial when viewed
       in light of the whole record before the court, which includes the agency record for
       judicial review, supplemented by any additional evidence received by the court
       under this chapter;
                ....
                (i) The order is arbitrary or capricious.

RCW 34.05.570(3).

       We give due deference to the Board’s specialized knowledge and expertise. Buechel v.

Dep’t of Ecology, 125 Wn.2d 196, 202-03, 884 P.2d 910 (1994).

       We apply the substantial evidence review standard to challenges to the Board’s factual

findings under RCW 34.05.570(3)(e) to determine if there is a sufficient quantity of evidence to

persuade a fair-minded person of the truth or correctness of the order. Spokane County v. E. Wash.

Growth Mgmt. Hr’gs Bd., 176 Wn. App. 555, 565, 309 P.3d 673 (2013). We view the evidence in

the light most favorable to the party which prevailed in the highest forum that exercised fact-

finding authority, and we give deference to the Board’s factual findings. DeFelice v. Emp’t Sec.

Dep’t, 187 Wn. App. 779, 787, 351 P.3d 197 (2015).

       We apply the arbitrary and capricious review standard to challenges under RCW

34.05.570(3)(i), determining whether the decision constitutes willful and unreasoning action taken

                                                8
No. 47641-0-II


without regard to or consideration of the facts and circumstances surrounding the action. Spokane

County, 176 Wn. App. at 565-66. If there is room for two opinions, action taken after due

consideration is not arbitrary and capricious even if a reviewing court may believe it to be

erroneous. Spokane County, 176 Wn. App. at 566.

       We review de novo a challenge under RCW 34.05.570(3)(d) that asserts that the Board

erroneously interpreted or applied the law. City of Redmond v. Cent. Puget Sound Growth Mgmt.

Hr’gs Bd., 136 Wn.2d 38, 46, 959 P.2d 1091 (1998). In doing so, “‘[w]e accord deference to an

agency interpretation of the law where the agency has specialized expertise in dealing with such

issues, but we are not bound by an agency’s interpretation of a statute.’” Quadrant Corp., 154

Wn.2d at 233 (alteration in original) (quoting City of Redmond, 136 Wn.2d at 46).

       “Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial

consideration.” Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998). We also

do not consider claims unsupported by legal authority, citation to the record, or argument. RAP

10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).

                                  PART ONE – OSF APPEAL

       OSF appeals the Board’s final decision and order that upheld Jefferson County’s 2014

Master Program. Specifically, OSF argues that (1) the Board’s decision to uphold the Master

Program is based on an erroneous SMA interpretation, (2) the Board erred when it approved the

Master Program because it did not comply with several provisions of the SMA, and (3) the Board

erred when it upheld the Master Program “no-net-loss” requirement for permit applicants because

that requirement conflicts with the SMA by improperly restricting development and the SMA

“minimization standard” must control instead. We reject OSF’s arguments.


                                                9
No. 47641-0-II


                                             ANALYSIS

                          I. BOARD PROPERLY INTERPRETED THE SMA

       First, OSF argues that the Board’s decision to uphold the Master Program is based on an

erroneous SMA interpretation that private property rights are secondary to the SMA’s purpose of

protecting the environment. We disagree.

                                       A. APPLICABLE LAW

       The SMA’s policy and use preference for shorelines is detailed in RCW 90.58.020:

       The legislature finds that the shorelines of the state are among the most valuable
       and fragile of its natural resources and that there is great concern throughout the
       state relating to their utilization, protection, restoration, and preservation. In
       addition it finds that ever increasing pressures of additional uses are being placed
       on the shorelines necessitating increased coordination in the management and
       development of the shorelines of the state. . . .
               . . . This policy contemplates protecting against adverse effects to the public
       health, the land and its vegetation and wildlife, and the waters of the state and their
       aquatic life, while protecting generally public rights of navigation and corollary
       rights incidental thereto.
               The legislature declares that the interest of all of the people shall be
       paramount in the management of shorelines of statewide significance. The [DOE],
       in adopting guidelines for shorelines of statewide significance, and local
       government, in developing master programs for shorelines of statewide
       significance, shall give preference to uses in the following order of preference
       which:
               (1) Recognize and protect the statewide interest over local interest;
               (2) Preserve the natural character of the shoreline;
               (3) Result in long term over short term benefit;
               (4) Protect the resources and ecology of the shoreline;
               (5) Increase public access to publicly owned areas of the shorelines;
               (6) Increase recreational opportunities for the public in the shoreline;
               (7) Provide for any other element as defined in RCW 90.58.100 deemed
       appropriate or necessary.
               In the implementation of this policy the public’s opportunity to enjoy the
       physical and aesthetic qualities of natural shorelines of the state shall be preserved
       to the greatest extent feasible consistent with the overall best interest of the state
       and the people generally. To this end uses shall be preferred which are consistent
       with control of pollution and prevention of damage to the natural environment, or
       are unique to or dependent upon use of the state’s shoreline.

                                                 10
No. 47641-0-II



(Emphasis added.)

       This SMA policy is also informed by the State Environmental Policy Act (SEPA), ch.

43.21C RCW, which states that “to the fullest extent possible: (1) [t]he policies, regulations, and

laws of the state of Washington shall be interpreted and administered in accordance with the

policies set forth in this chapter.” RCW 43.21C.030. Among the SEPA policies applicable to the

SMA are the recognition of “the responsibilities of each generation as trustee of the environment

for succeeding generations,” RCW 43.21C.020(2)(a), and the recognition that “each person has a

fundamental and inalienable right to a healthful environment and that each person has a

responsibility to contribute to the preservation and enhancement of the environment.” RCW

43.21C.020(3). Accord Puget Soundkeeper All. v. Pollution Control Hr’gs Bd., 189 Wn. App.

127, 148, 356 P.3d 753 (2015).

       The Master Program guidelines direct how the SMA policy provision should be

implemented. For example, the Master Program guidelines state that single-family residences are

a priority use for shoreline development “when developed in a manner consistent with control of

pollution and prevention of damage to the natural environment.”           WAC 173-26-241(3)(j)

(emphasis added). The Master Program guidelines acknowledge that any development, including

residential development, may cause significant damage to the shoreline and provides that Master

Programs must mitigate such environmental damage. WAC 173-26-241(3)(j). Specifically, the

Master Program guidelines state, “Master programs shall include policies and regulations that

assure no net loss of shoreline ecological functions will result from residential development.”

WAC 173-26-241(3)(j) (emphasis added). The concept of “no net loss” is incorporated into the

SMA and elsewhere in the Master Program guidelines. RCW 90.58.620; WAC 173-26-186(8).

                                                11
No. 47641-0-II


                               B. NO ERRONEOUS INTERPRETATION

       OSF argues that the Board’s decision to uphold the Master Program was based on an

erroneous interpretation of the SMA that property rights are secondary to the primary goal of

protecting, restoring, and enhancing the environment. OSF specifically challenges two passages

of the Board’s decision.

       The first statement that OSF challenges is that private property rights are secondary to the

SMA’s primary purpose of protecting state shorelines as fully as possible. However, OSF ignores

that the statement is consistent with our interpretation of the SMA. The Board’s statement is a

quote from Samson v. City of Bainbridge Island, which states, “[C]ontrary to the appellant’s claims

that RCW 90.58.020 states a policy of protecting private property rights, . . . private property rights

are ‘secondary to the SMA’s primary purpose, which is to protect the state shorelines as fully as

possible.’” 149 Wn. App. 33, 49, 202 P.3d 334 (2009) (internal quotation marks omitted) (quoting

Lund v. Dep’t of Ecology, 93 Wn. App. 329, 336-37, 969 P.2d 1072 (1998)). Samson refutes the

general idea that the SMA must always prioritize private property rights.

       The Board properly quoted Samson to support its analysis that even though single-family

homes are one of the priority uses under the SMA, the County may still restrict structures or uses

on residential property in furtherance of ecological protection goals. In fact, reasonable and

appropriate uses should be allowed on the shorelines only if they will result in no net loss of

shoreline ecological functions and systems. See RCW 90.58.020; WAC 173-27-241(3)(j). The

Board’s quotation of Samson does not demonstrate that the Board erroneously interpreted the

SMA.

       The second passage that OSF challenges states,


                                                  12
No. 47641-0-II


         [T]he Board finds that RCW 90.58.020 establishes state policy to manage
         shorelines with an emphasis on the maintenance, protection, restoration, and
         preservation of “fragile” shoreline “natural resources,” “public health,” “the land
         and its vegetation and wildlife,” “the waters and their aquatic life,” “ecology” and
         “environment.”

AR at 7483. But this language comports with the SMA policy provision quoted above. See RCW

90.58.020. We hold that the two passages OSF relies on do not demonstrate that the Board

erroneously interpreted the SMA.9

                            II. MASTER PROGRAM COMPLIES WITH SMA

         OSF argues that the Board erred when it approved the Master Program because the Master

Program did not comply with the SMA. Specifically, OSF argues that the Board erred when it

upheld (1) the Master Program’s designation of all the county shorelines as “critical areas” and (2)

the Master Program’s imposition of a 150-foot standard marine buffer.10 These arguments fail.

     A. INCORPORATION OF COUNTY’S CRITICAL AREAS ORDINANCE INTO THE MASTER PROGRAM

         First, OSF argues that the Board erred when it upheld the Master Program because the

Master Program incorporated the County’s 2000 “Critical Area Ordinance” (CAO) designation of

all shorelines as “critical areas” without proper review of the CAO by the DOE, which violates the

SMA. We reject these arguments.




9
  OSF also argues that the Board’s interpretation of the SMA conflicts with law from numerous
cases that hold that “while the SMA emphasizes protection of natural shorelines, it simultaneously
allows for development, expressing the intent to protect private property rights.” Br. of Appellant
(OSF) at 22. This argument is unpersuasive because as analyzed above, the two passages from the
Board decision do not conflict with the SMA’s balancing of preservation and development.
10
  OSF concedes in its reply that the County has general authority to update the Master Program.
We accept OSF’s concession that the Master Program update itself was legally mandated, and we
disregard OSF’s argument that the Master Program update needed justification.

                                                 13
No. 47641-0-II


1.     APPLICABLE LAW

       The GMA governs the protection afforded to state shorelines. RCW 36.70A.480. CAOs

adopted by local governments under the GMA apply to shorelines until the DOE approves a Master

Program update, at which time the shorelines’ critical areas are regulated exclusively under the

SMA. RCW 36.70A.480(3)(d); Kitsap All. of Prop. Owners (KAPO) v. Cent. Puget Sound Growth

Mgmt. Hr’gs Bd., 160 Wn. App. 250, 257, 255 P.3d 696 (2011).

       The Master Program guidelines thus note that “[f]or the purposes of completeness and

consistency,” local governments may include other locally adopted policies and regulations

including CAOs into Master Programs. WAC 173-26-191(2)(b). This incorporation is allowed as

long as the incorporated provisions meet SMA requirements. RCW 36.70A.480(4). Among those

is the requirement of RCW 36.70A.480(4) that Master Programs “provide a level of protection to

critical areas located within shorelines of the state that assures no net loss of shoreline ecological

functions necessary to sustain shoreline natural resources as defined by [the DOE] guidelines.” In

other words, the incorporated CAO provision must be consistent with RCW 90.58.020 and

applicable Master Program guidelines, achieve no net loss, and provide a level of critical areas

protection at least equal to that provided by the local government’s CAOs. RCW 90.58.090(4).

2.     BOARD DECISION

       The Board concluded that the DOE’s review assured that the incorporated CAO met the

“‘no net loss of ecological functions’” requirement for Master Programs prescribed in the GMA

and as referenced in RCW 36.70A.480(4). AR at 7500. Thus, the Board concluded that OSF had

not met its burden to establish that the County failed to meet the SMA or Master Program guideline

requirements for the incorporation of the County’s CAO into the Master Program.


                                                 14
No. 47641-0-II


3.     ANALYSIS

       Here, the GMA and Master Program guidelines expressly provide that Master Programs

may incorporate existing CAO provisions if they are consistent with the SMA and Master Program

guideline requirements. RCW 36.70A.480(4); WAC 173-26-191(2)(b). OSF argues that the

incorporation of the CAO into the Master Program “directly conflicts with the SMA” because the

SMA allows for multiple uses of shorelines, but the critical areas designation prohibits reasonable

and appropriate uses of the shoreline. Br. of Appellant (OSF) at 27.

       But OSF provides no factual support11 for this assertion. Further, OSF states that the Board

did not cite to evidence showing that the DOE reviewed the CAO provisions for consistency with

the SMA and Master Program guideline. OSF also fails to provide legal authority that the Board

must cite to such evidence, and OSF failed to provide any other analysis or factual support showing

that the DOE failed to make the analysis OSF claims is needed. We hold that OSF has failed to

establish that the Board erred when it concluded that the Master Program’s CAO incorporation did

not violate the SMA or Master Program guidelines.

                          B. ADOPTION OF 150-FOOT MARINE BUFFERS

       Next, OSF argues that the Board erred when it upheld the Master Program’s imposition of

a 150-foot marine buffer on all shoreline development because the Master Program was not

supported by proper evidence and violated the SMA and Master Program guidelines. OSF’s

contentions are unavailing.




11
   The only factual citations in support of OSF’s arguments about the CAO are to declarations that
are not in our record and to its brief submitted to the Board characterizing the CAO. These
citations do not support OSF’s argument.

                                                15
No. 47641-0-II


1.     APPLICABLE LAW

       When creating a Master Program, the DOE and the County are required to “[u]tilize a

systematic interdisciplinary approach which will insure the integrated use of the natural and social

sciences.” RCW 90.58.100(1)(a). The Master Program guideline covering periodic review and

amendments of Master Programs states that local governments should amend Master Programs

when deemed necessary to reflect changing local circumstances, new information, or improved

data. WAC 173-26-090. The GMA also addresses buffer regulations: “If a local jurisdiction’s

master program does not include land necessary for buffers for critical areas that occur within

shorelines of the state, as authorized by RCW 90.58.030(2)(f), then the local jurisdiction shall

continue to regulate those critical areas and their required buffers pursuant to RCW

36.70A.060(2).” RCW 36.70A.480(6) (emphasis added).

       The Master Program guidelines also establish the type of scientific evaluation required for

Master Programs:

       Before establishing specific master program provisions, local governments shall
       analyze the information gathered in (c) of this subsection and as necessary to ensure
       effective shoreline management provisions, address the topics below, where
       applicable.
               (i) Characterization of functions and ecosystem-wide processes.
               (A) Prepare a characterization of shoreline ecosystems and their
       associated ecological functions. The characterization consists of three steps:
               (I) Identify the ecosystem-wide processes and ecological functions based
       on the list in (d)(i)(C) of this subsection that apply to the shoreline(s) of the
       jurisdiction.
               (II) Assess the ecosystem-wide processes to determine their relationship to
       ecological functions present within the jurisdiction and identify which ecological
       functions are healthy, which have been significantly altered and/or adversely
       impacted and which functions may have previously existed and are missing based
       on the values identified in (d)(i)(D) of this subsection; and
               (III) Identify specific measures necessary to protect and/or restore the
       ecological functions and ecosystem-wide processes.


                                                16
No. 47641-0-II


WAC 173-26-201(3)(d) (emphasis added).

2.     BOARD DECISION

       The Board devoted 10 pages of its decision to discussing the Master Program buffer

imposition and the evidence supporting it. The Board analyzed the Master Program buffer

guidelines and opined that the guidelines permitted local governments to provide land for buffers

for critical areas. The Board further found the “[Master Program], the SI, and the CIA replete with

scientific evidence demonstrating how the County met legal requirements to establish buffers and

address vegetation conservation.” AR at 7496. And the Board concluded that the County

assembled scientific justification for the buffer width selected.     The Board deemed OSF’s

arguments with respect to WAC 173-26-090 and -201 abandoned for lack of legal argument. The

Board also acknowledged that RCW 36.70A.480 stated that a local government may include land

necessary for buffers for critical areas, but the Board did not analyze whether the Master Program

violated or complied with this statute.

3.     ANALYSIS

       Here, the Master Program imposed a standard 150-foot buffer for all freshwater and marine

water shorelines. JCC 18.25.270(4)(e). Challenging these provisions, OSF argues that the

scientific information gathered in the SI and CIA are insufficient to justify the 150-foot buffers.

OSF highlights some of the scientific resources the Master Program apparently relied on, but it

does so largely without citation to the record. OSF makes many assertions about the insufficiency

of the SI. OSF also states that the “Schaumburg Report” included in the supplemental evidence it




                                                17
No. 47641-0-II


submitted on appeal undermines the science that the Master Program relies on.12 OSF’s arguments

attack the adequacy of the selected buffer width. The County’s choice of 150 feet, however, is

supported by the scientific evidence summarized and discussed below and is consistent with the

policies of the SMA and the provisions of the SMA guidelines.

       a.      SUFFICIENT EVIDENCE SUPPORTS THE MASTER PROGRAM’S BUFFER PROVISION

       OSF fails to explain how the evidence supporting the buffer provision was insufficient or

how the conclusions in the Schaumburg Report undermine the Master Program’s buffer provisions

such that they must be stricken and reevaluated. When assessing the sufficiency of evidence, we

view the evidence in the light most favorable to the party who prevailed in the highest forum that

exercised fact-finding authority, here the Board. City of University Place v. McGuire, 144 Wn.2d

640, 652, 30 P.3d 453 (2001). Accordingly, based on the evidence below, we hold that the

scientific evidence is sufficient to support the buffer requirement.

               i.      DOCUMENTED IMPACTS OF DEVELOPMENT AND SUPPORT                 FOR   SHORELINE
BUFFERS

       The SI documented the impacts of development on shorelines and provided support for the

buffer requirement. The SI reports that potential and documented direct impacts from the


12
   The Schaumburg Report was written by an environmental consultant for OSF and asserts that
the evidence relied upon from the CIA and SI does not include any research on the county marine
environment or the efficacy of buffers in such environments. The Schaumburg Report further
concludes that the evidence relied on for the Master Program was mostly “[s]ynthesized science”
or review summaries of existing scientific literature rather than original, applicable research. Decl.
of Kim Schaumburg Re Cited Scientific Literature in Support of Jefferson County Marine Buffers
and Limits on Use, at 3 (included in (OSF’s) Second Suppl. Evidence Submitted Re Constitutional
Claims), Olympic Stewardship Found. v. W. Wash. Growth Mgmt. Hr’gs Bd., No. 47641-0-II (Mar.
16, 2016). And the Schaumburg Report states that the relevance of freshwater studies to marine
environments was not properly established but, rather, presumed based on the recommendation of
one scientific workshop.


                                                 18
No. 47641-0-II


development of piers, docks, and other shoreline modifications include loss of shoreline/riparian

vegetation, burying of habitats, damage from equipment to eggs incubating on the beach, and

lowering and coarsening of beach profiles. Indirect impacts can and have occurred from sediment

transport and impoundment and from water quality degradation from development that affects

forage fish and herring habitats. The SI further documented how development, near-shore

armoring, and vegetation removal impacted ecological functions.

       The SI contained support for the adoption of a 150-foot shoreline buffer13 based on analysis

of numerous factors including comparably sized buffers adopted by other Washington counties

and the documented effect of different-sized buffers on various types of shoreline hazards.14 The

SI also states that “[d]epending on the specific nearshore resources being protected and the specific

functions being provided by the buffer, recommended widths may differ.” AR at 2446.




13
  A “buffer” refers to the horizontal distance that structures have to be set back, landward, from
the shoreline high-water mark. A buffer area is required to be maintained in a vegetated,
undisturbed, and undeveloped condition to protect shoreline functions and processes.
14
   The SI refers to a 2001 study of findings from the Canadian Ministry of Forestry in British
Columbia recommending buffers of 300 to 450 feet for marine shores depending on the type of
shore, wind conditions, and other factors. Other 2001 studies concluded that a 50-foot buffer is
estimated to be approximately 60 percent effective at removing sediment, while an 82- to 300-foot
buffer would remove approximately 80 percent of sediment, that a buffer as small as 27 feet could
reduce nitrogen by up to 60 percent and widths of up to 200 feet could reduce nitrogen by 80
percent, and that control of fecal coliform from agriculture or septic systems could be achieved
with a 115-foot buffer. A 2003 study stated that although sediment carried into nearshore marine
environments will seldom be of a magnitude to significantly compromise water clarity, the
minimum recommended buffer width for sediment control and pollutant removal is 98 feet. A
2004 study showed a minimum buffer of 79 feet was needed to control agricultural runoff for 20
percent slopes with slight erosion, while a 160-foot buffer would be needed to control 30 percent
slopes with severe erosion. Further, a 1997 study showed for Washington State that the average
width reported to retain riparian function for wildlife habitat was 288 feet.

                                                 19
No. 47641-0-II


               ii.    CUMULATIVE IMPACT ANALYSIS ON KNOWN AND POTENTIAL ECOLOGICAL
HARM

       The CIA provided information about known and potential ecological harm to shorelines

resulting from construction and development. The CIA stated that “Jefferson County’s shorelines

are in relatively good condition ecologically compared to more developed areas of the Puget Sound

basin.” AR at 2361. The CIA commented on the Draft Master Program’s limitations on

development:

       Importantly, the [Master Program] expressly prohibits any use/development that
       would cause a net loss of ecological functions or processes. As a result, the County
       must deny shoreline use and development proposals unless impacts are fully
       mitigated. Specific performance standards contained in the [Draft Master
       Program] that will prevent cumulative impacts from occurring are summarized in
       this document.

AR at 5650 (emphasis added). The CIA further stated, “The [Draft Master Program] imposes strict

limits on construction of new bulkheads (or other types of structural shoreline stabilization or

armoring) and expansion of existing bulkheads on residential properties to prevent adverse effects

on net shore-drift, beach formation, juvenile salmon migratory habitat and other shoreline

functions.” AR at 2363. The CIA clarified that it evaluated the Draft Master Program to determine

whether it contained adequate measures to mitigate use and development such that they would

result in no net loss of ecological functions compared to baseline conditions. This evaluation

presumed impacts will occur, but it evaluated whether there were adequate measures in place so

post-development conditions are no worse overall than before development.

       With respect to the Draft Master Program’s water impact, the CIA noted that nutrients and

matter entering marine waters via streams and rivers from agricultural operations, wastewater




                                               20
No. 47641-0-II


treatment plants, and storm water runoff from residential landscapes affects the quality of the

County’s marine waters. The CIA addressed how buffers could help with this issue:

       Riparian buffers offer discernable water quality protection from nearshore nutrient
       sources. The effectiveness of riparian buffers for protecting water quality depends
       on a number of factors, including soil type, vegetation type, slope, annual rainfall,
       type and level of pollution, surrounding land uses, and sufficient buffer width and
       integrity. Soil stability and sediment control are directly related to the amount of
       impervious surface and vegetated cover.

AR at 5679.

       The imposition of buffers protects shoreline ecological functions, processes, and habitat.

The CIA also extensively discussed the buffers as part of the Master Program’s no-net-loss

compliance and what the impact of the buffer imposition would be on existing structures.

       The Master Program’s buffer requirement is amply supported by the scientific evidence.

     b.    THE MASTER PROGRAM’S BUFFER PROVISION DOES NOT VIOLATE                    THE   SMA   OR
MASTER PROGRAM GUIDELINES

       OSF next asserts that under GMA provision RCW 36.70A.480(6) and Master Program

guideline WAC 173-26-090, protection measures, like the buffers, that differ from an existing

Master Program can be implemented only if the County proves such measures are necessary. We

disagree.

       RCW 36.70A.480(6) states that if a local Master Program does not include “land necessary

for buffers for critical areas that occur within shorelines of the state,” then local governments

should continue to regulate critical areas and buffers pursuant to the GMA. (Emphasis added.)

The Master Program guideline states that local governments should amend Master Programs when

“deemed necessary to reflect changing local circumstances, new information or improved data.”

WAC 173-26-090 (emphasis added).


                                                21
No. 47641-0-II


       These provisions do not mean that a jurisdiction may impose or increase buffers only if

necessary to serve a purpose of the SMA. The first provision, RCW 36.70A.480(6), merely

specifies that if a Master Program does not include buffers necessary for critical areas, the

jurisdiction shall continue to regulate those critical areas under the GMA. The second, WAC 173-

26-090, describes when local governments should amend Master Programs in response to changing

circumstances or information. Neither provision engraft a requirement of necessity on the

adoption or amendment of Master Program provisions.

       Additionally, OSF argues that the Board erred when it upheld the 150-foot buffer

regulation where the County failed to establish a baseline of whether development proposals would

impact ecological functions in order to determine if the 150-foot buffer was too extreme of a

mitigation measure as required by Master Program guideline WAC 173-26-201(3)(d).15 The

Master Program guideline WAC 173-26-201(3)(d) requires that before local governments

establish Master Programs, they must characterize the functions and ecosystem processes of the

area regulated by (1) identifying ecosystem-wide ecological functions and processes, (2) assessing

the processes to determine their relationship to the ecological functions in the jurisdiction to

determine which functions are healthy, have been altered or adversely impacted, or are missing,

and (3) identifying specific measures necessary to protect and/or restore ecological functions and

ecosystem-wide processes.

       The Board deemed OSF’s arguments with respect to WAC 173-26-201 abandoned for lack

of legal argument. The Board further found that the “[Master Program], the SI, and the CIA [were]



15
  OSF also cites to “WAC 173-26-201(2)(d)(A)(i)-(iii)” and “WAC 173-26-201(3)(d)(i)(v).” Br.
of Appellant (OSF) at 33. But these rules as cited do not exist.

                                               22
No. 47641-0-II


replete with scientific evidence demonstrating how the County met legal requirements to establish

buffers and address vegetation conservation.” AR at 7496. And here, OSF fails to explain why

the evidence the Board deemed sufficient to meet the County’s legal requirements is not sufficient

under Master Program guideline WAC 173-26-201(3)(d). “Passing treatment of an issue or lack

of reasoned argument is insufficient to merit judicial consideration.” Holland, 90 Wn. App. at

538; see also RAP 10.3(a)(6). We thus decline to consider this issue further in the absence of

reasoned argument as to why the evidence is not legally sufficient under the relevant Master

Program guideline. For these reasons, the Board did not err in upholding the Master Program’s

imposition of a 150-foot marine buffer.

              III. INCORPORATION OF “NO NET LOSS” INTO THE MASTER PROGRAM

       OSF next argues that the Board erred when it upheld the Master Program “no-net-loss”

requirement for permit applicants because that requirement conflicts with the SMA by improperly

restricting development. OSF further argues that the SMA “minimization standard” must control

instead, otherwise all new development will be prohibited. OSF’s arguments do not persuade us.

                                      A. APPLICABLE LAW

       The SMA’s stated policy and use preference provision states, “[T]hat unrestricted

construction on the privately owned or publicly owned shorelines of the state is not in the best

public interest.” RCW 90.58.020. Thus, the policy notes, “Permitted uses in the shorelines of the

state shall be designed and conducted in a manner to minimize, insofar as practical, any resultant

damage to the ecology and environment of the shoreline area and any interference with the

public’s use of the water.” RCW 90.58.020 (emphasis added). The SMA states that amended

Master Programs approved after September 2011 may include provisions authorizing changes in


                                               23
No. 47641-0-II


“(b) . . . occupancy, or replacement of the residential structure if it is consistent with the master

program, including requirements for no net loss of shoreline ecological functions.”            RCW

90.58.620(1) (emphasis added).

        In adopting the Master Program guidelines, the DOE adopted the phrase “no net loss of

ecological functions” as a guiding principle for considering whether or not to approve local

government programs. WAC 173-26-186(8)(d). In construing this principle, the Master Program

guidelines acknowledge that any development has potential for “actual, short-term or long-term

impacts” and that mitigation and other measures can assure the “end result will not diminish the

shoreline resources and values as they currently exist.” WAC 173-26-201(2)(c).

        The Master Program guidelines underscore the SMA policies and state,

        The principle regarding protecting shoreline ecological systems is accomplished by
        these guidelines in several ways, and in the context of related principles. These
        include:
                ....
                (b) Local master programs shall include policies and regulations designed
        to achieve no net loss of those ecological functions.
                (i) Local master programs shall include regulations and mitigation
        standards ensuring that each permitted development will not cause a net loss of
        ecological functions of the shoreline; local government shall design and implement
        such regulations and mitigation standards in a manner consistent with all relevant
        constitutional and other legal limitations on the regulation of private property.

WAC 173-26-186(8) (emphasis added). The Master Program guidelines state that the concept of

“net”

        recognizes that any development has potential or actual, short-term or long-term
        impacts and that through application of appropriate development standards and
        employment of mitigation measures in accordance with the mitigation sequence,
        those impacts will be addressed in a manner necessary to assure that the end result
        will not diminish the shoreline resources and values as they currently exist.

WAC 173-26-201(2)(c).


                                                 24
No. 47641-0-II


                                        B. BOARD DECISION

       The Board concluded that the County correctly included the no-net-loss provision in the

Master Program because the SMA clearly adopted the concept in RCW 90.58.620 and the Master

Program guidelines require that no net loss be included in Master Programs. Thus, the Board

concluded that OSF did not carry its burden to show that the Master Program’s incorporation of

the no-net-loss requirement violated the SMA.

                                            C. ANALYSIS

       OSF points to two Master Program provisions to argue that the Board erroneously approved

the DOE’s and the County’s application of “no net loss.” JCC 18.25.270(2)(b), .100(14)(e). The

first provision covered critical areas, shoreline buffers, and ecological protections and states, “Uses

and developments that cause a net loss of ecological functions and processes shall be prohibited.

Any use or development that causes the future ecological condition to become worse than current

condition shall be prohibited.”     JCC 18.25.270(2)(b). The second provision is the Master

Program’s definition of “no net loss” that states,

       “No net loss (NNL)” means the maintenance of the aggregate total of the county
       shoreline ecological functions over time. The no net loss standard contained in
       WAC 173-26-186 requires that the impacts of shoreline use and/or development,
       whether permitted or exempt from permit requirements, be identified and mitigated
       such that there are no resulting adverse impacts on ecological functions or
       processes.

JCC 18.25.100(14)(e). OSF argues that these provisions conflict with the policy of the SMA

because the SMA no-net-loss policy is a concept gauged over time that recognizes that

development will occur. It requires planning and mitigation measures, not prohibitions like those

in the Master Program. This argument is unpersuasive.



                                                  25
No. 47641-0-II


       As set out above, the Master Program guidelines state that Master Programs “shall include

policies and regulations designed to achieve no net loss of those ecological functions” and “(i) . . .

shall include regulations and mitigation standards ensuring that each permitted development will

not cause a net loss of ecological functions of the shoreline.” WAC 173-26-186(8)(b). By

necessity, a proposal not complying with these mandatory directives would be prohibited. The

denial of noncomplying proposals, however, is a common and effective feature of most regulatory

systems. Nothing in the SMA suggests an intention to permit proposals that violate its terms.

These mandatory directives from the Master Program that OSF challenges are consistent with the

SMA policy set out in RCW 90.58.020, interpreted consistently with SEPA, as discussed above.

       The County’s Master Program complies with these standards through its policy to

“[e]nsure, at minimum, no net loss of shoreline ecological functions and processes,” JCC

18.25.010(1)(c), and through its mandate that “[u]ses and developments that cause a net loss of

ecological functions and processes shall be prohibited.” JCC 18.25.270(2)(b). The Master

Program prohibitions do not go beyond the SMA or the guidelines, as OSF contends, because the

very definition of “no net loss” in the Master Program incorporates the Master Program guideline

definition of “no net loss” from WAC 173-26-186(8) and -201(2)(c). JCC 18.25.100(14)(e).

       Additionally, the Master Program guideline definition of “net” does not prohibit

development—the Master Program requires application of appropriate development standards and

employment of mitigation measures in accordance with the mitigation to assure the development

will not result in diminished shoreline resources and values as they exist before the development.

WAC 173-26-186(8). We hold that the Master Program’s no-net-loss provision does not conflict

with the SMA or the Master Program guidelines.


                                                 26
No. 47641-0-II


                      IV. MASTER PROGRAM RESTORATION REQUIREMENTS

       OSF next argues that the Board erred when it dismissed OSF’s argument that the Master

Program’s permitting standards violated the law because they imposed restoration requirements

that go beyond the SMA requirements to minimize impacts, that violate the SMA RCW 90.58.020

policy of protecting private property rights, and that unduly burden development rights in violation

of Master Program guideline WAC 173-26-186. OSF argues that the Board’s failure to address

the specific SMA language that OSF cited to support its argument constitutes reversible error under

RCW 34.05.570(3)(b), (d), and (f). Again, we disagree.

                                       A. APPLICABLE LAW

       The APA governs judicial review of agency orders in adjudicative proceedings.

       The court shall grant relief from an agency order in an adjudicative proceeding only
       if it determines that:
                ....
                (b) The order is outside the statutory authority or jurisdiction of the agency
       conferred by any provision of law;
                ....
                (d) The agency has erroneously interpreted or applied the law;
                ....
                (f) The agency has not decided all issues requiring resolution by the agency.

RCW 34.05.570(3).

       The SMA policy and preferred use provision states that while coordinated planning is

necessary to protect the public interest associated with state shorelines, the policy also recognizes

and protects private property rights “consistent with the public interest.” RCW 90.58.020. The

Master Program guidelines require local governments to include restoration and shoreline

enhancement goals in their Master Programs:

       For counties and cities containing any shorelines with impaired ecological
       functions, master programs shall include goals and policies that provide for

                                                 27
No. 47641-0-II


       restoration of such impaired ecological functions. These master program
       provisions shall identify existing policies and programs that contribute to planned
       restoration goals and identify any additional policies and programs that local
       government will implement to achieve its goals.

WAC 173-26-186(8)(c) (emphasis added).

                                      B. BOARD DECISION

       The Board concluded that OSF failed to establish that the Master Program provisions

containing restoration requirements violated the law, including RCW 90.58.020 or WAC 173-26-

186.

                                          C. ANALYSIS

       OSF argues that the Board erred when it dismissed OSF’s argument that the Master

Program’s permitting standards imposed restoration requirements that go beyond the SMA

requirements to minimize impacts, that violate the SMA RCW 90.58.020 policy of protecting

private property rights, and that unduly burden development rights in violation of Master Program

guideline WAC 173-26-186. In its reply brief, OSF clarifies that its argument is that Master

Program guideline WAC 173-26-186 directs local governments to make use of established

nonregulatory policies and programs to contribute to restoration, but the Master Program goes

beyond this requirement because it imposes restoration and shoreline enhancement requirements

on permit applicants.

       OSF does not support its first assertion that the Master Program restoration provisions go

beyond the SMA requirements to minimize impacts. OSF neither points to any SMA mitigation

provisions nor explains how the Master Program provisions go beyond them or why that would

constitute error. Therefore, we hold that OSF’s argument that the Board erred in this regard fails.



                                                28
No. 47641-0-II


       In support of OSF’s arguments that the Master Program violated SMA policy provision

RCW 90.58.020 and Master Program guideline WAC 173-26-186, OSF points specifically to the

restoration requirements in the following four Master Program provisions.16

       First,

       [t]o ensure that statewide interests are protected over local interests, the county shall
       review all development proposals within shorelines of statewide significance for
       consistency with RCW 90.58.030, this program, and the following, which are not
       listed in priority order:
                (1) When shoreline development or redevelopment occurs, it shall include
       restoration and/or enhancement of ecological conditions if such opportunities exist.

JCC 18.25.250 (emphasis added).

       Second, “[w]henever possible, nonregulatory methods to protect, enhance, and restore

shoreline ecological functions should be encouraged for residential development.”                  JCC

18.25.500(1)(j) (emphasis added). Third, “[s]ingle-user moorage for private/recreational float

planes may be permitted as a conditional use where construction of such moorage . . . (iii) Includes

ecological restoration, in addition to mitigation, to compensate for the greater intensity of use

associated with the float plane moorage.” JCC 18.25.350(6)(k) (emphasis added).

       And fourth, “[m]arinas may be permitted on marine and river shorelines when they are

consistent with this program and when the proponent demonstrates to the county’s satisfaction that

all of the following conditions are met: . . . (iii) The project includes ecological restoration

measures to improve baseline conditions over time.” JCC 18.25.350(7)(a) (emphasis added).




16
  The Board addressed none of these provisions. But neither the DOE nor the County argues that
OSF failed to raise these provisions below, so we consider them. OSF’s brief implies it raised the
language of these provisions to the Board, but provides no cite to the record in support.

                                                  29
No. 47641-0-II


       The first of these provisions requires that on SSWS, shoreline development or

redevelopment “include restoration and/or enhancement of ecological conditions if such

opportunities exist.”   JCC 18.25.250(1).    The second provision applies to only residential

development but extends to all shorelines. JCC 18.25.500(1)(j). It is an admonition, not a

requirement, encouraging nonregulatory methods of restoration “[w]henever possible.” JCC

18.25.500(1)(j). The third and fourth Master Program provisions cover boating facilities and

marinas attached to residential development and plainly mandate restoration measures be included

with development. JCC 18.25.350(6)(k)(iii), (7)(a)(iii).

       But besides asserting in a conclusory manner that these provisions “go beyond” the SMA

requirements to minimize impacts of development, OSF does not explain how requiring permit

applicants to implement restoration measures is error requiring reversal of the Master Program or

remand to strike these provisions of the Master Program. OSF provides no argument or analysis

to show how these provisions violate private property rights in violation of RCW 90.58.020. And

OSF provides no argument or analysis of how these provisions unduly burden development rights.

       The challenged Master Program provisions comport with the SMA policy to coordinate

development planning in order to protect public interest in shorelines and with the Master Program

guidelines to include restoration goals and policies. RCW 90.58.020; WAC 173-26-186(8)(c).

The applicable guideline, WAC 173-26-186(8)(c), states in pertinent part,

       For counties and cities containing any shorelines with impaired ecological
       functions, master programs shall include goals and policies that provide for
       restoration of such impaired ecological functions. These master program
       provisions shall identify existing policies and programs that contribute to planned
       restoration goals and identify any additional policies and programs that local
       government will implement to achieve its goals. These master program elements
       regarding restoration should make real and meaningful use of established or funded


                                               30
No. 47641-0-II


       nonregulatory policies and programs that contribute to restoration of ecological
       functions.

       Although this guideline does not require that impaired ecological functions be restored as

a condition of permit approval, nothing in it prevents a local government from imposing such a

requirement. To the contrary, the restoration requirements in this Master Program, discussed

above, are consistent with the directive of WAC 173-26-186(8)(c) that local governments adopt

goals and policies for restoration of shorelines with impaired ecological functions. The Master

Program’s restoration requirements are also consistent with the core policy of the SMA “to protect

the public interest associated with the shorelines of the state while, at the same time, recognizing

and protecting private property rights consistent with the public interest.” RCW 90.58.020. We

hold that OSF fails to show that the Board erred by dismissing OSF’s arguments related to the

restoration provisions.

       In conclusion, we reject OSF’s arguments and affirm the Board’s decision on these

grounds. We now turn to CAPR’s arguments.

                                 PART TWO – CAPR APPEAL

       CAPR also appeals from the Board’s final decision and order that upheld the 2014 Master

Program. CAPR argues that the Board erred by upholding the Master Program because (1) the

Master Program delegated excessive discretion to regulators, rendering certain provisions

unconstitutionally vague; (2) the Master Program failed to demonstrate sufficient evidence of harm

to the shorelines, resulted in de facto prohibitions in violation of the SMA and permit applicants’

due process rights, and imposed permit conditions that violated landowners’ due process rights;

and (3) the Master Program lacked support from scientific evidence and the DOE failed to identify

the scientific sources relied upon. We reject these arguments.

                                                31
No. 47641-0-II


                                            ANALYSIS

                                          I. VAGUENESS

       CAPR argues that the language of certain Master Program provisions is unconstitutionally

vague because it delegates excessive discretion to county employees who will enforce it.17 CAPR

argues that this argument is compounded by the Master Program’s liberal construction provision.

We disagree with both arguments.

                        A. STANDARD OF REVIEW AND APPLICABLE LAW

       Constitutional issues are questions of law that we review de novo. Ass’n of Wash. Spirits

& Wine Distribs. v. Wash. State Liquor Control Bd., 182 Wn.2d 342, 350, 340 P.3d 849 (2015).

The party challenging a statute’s or regulation’s constitutionality bears the burden of proving its

unconstitutionality beyond a reasonable doubt. Madison v. State, 161 Wn.2d 85, 92, 163 P.3d 757

(2007). An ordinance or regulation is void for vagueness and violates constitutional due process

if it is framed in terms so vague that persons of common intelligence must guess at the ordinance

or regulation’s meaning and differ as to its application. Postema v. Pollution Control Hr’gs Bd.,

142 Wn.2d 68, 114, 11 P.3d 726 (2000).

                                      B. BOARD DECISION

       The Board concluded that it had no jurisdiction to consider constitutional issues.




17
  CAPR also argues that because the Master Program is vague, it violates RCW 90.58.020, .900,
former RCW 90.58.030(3)(c) (2014), WAC 173-26-176, and -191, but provides no argument or
analysis as to why the Master Program violates these provisions. We do not consider claims
unsupported by legal analysis. RAP 10.3(a)(6); Cowiche Canyon, 118 Wn.2d at 809.

                                                32
No. 47641-0-II


                                              C. ANALYSIS

          First, CAPR argues that the Master Program’s liberal construction provision18

“compound[s]” the “lack of clarity” in the Master Program. Br. of Appellant (CAPR) at 27. And

CAPR argues that the SMA, not a Master Program, is exempt from strict construction. This liberal

construction provision, however, merely specifies that the Master Program shall be interpreted

consistently with its policies and purposes and with those of the SMA. If anything, this direction

adds to the clarity of the Master Program. It does not contribute to any vagueness.

          Second, CAPR argues that several Master Program provisions state that those seeking

permits on private property are “encouraged” to offer public access as part of the development. 19

And CAPR argues that this “loose” language will lead to coercive negotiation between developers

and regulators. This argument is speculative and lacks factual support. CAPR fails to explain or

argue how the language is vague and fails to offer legal argument as to how the language violates

the law.




18
  The Master Program liberal construction provision states,
      This program is exempt from the rule of strict construction; therefore this program
      shall be liberally construed to give full effect to its goals, policies and regulations.
      Liberal construction means that the interpretation of this document shall not only
      be based on the actual words and phrases used in it, but also by taking its deemed
      or stated purpose into account. Liberal construction means an interpretation that
      tends to effectuate the spirit and purpose of the writing. For purposes of this
      program, liberal construction means that the administrator shall interpret the
      regulatory language of this program in relation to the broad policy statement of
      RCW 90.58.020, and make determinations which are in keeping with those policies
      as enacted by the Washington State Legislature. [Ord. 7-13 Exh. A (Art. I § 8)].
JCC 18.25.080.
19
     See JCC 18.25.290(1)(e), .450(1)(e), (6)(b), .470(1)(d), .500(4)(e), (f), (h).

                                                    33
No. 47641-0-II


         Third, CAPR argues that the Master Program goal provision addressing global climate

change and sea level rise20 is vague such that it is arbitrary and capricious and improperly gives

regulators the power to impute requirements on permit applicants based on regulators’ personal

preferences.21 But this Master Program provision is contained in the Master Program “goals”

section for shoreline use. See JCC 18.25.180(2). And the Master Program guidelines state that

SMA’s policy goals may not be achievable and that such policy goals should be pursued only via

development regulations where such regulations do not unconstitutionally infringe upon private

property rights. WAC 173-26-186(5).

         CAPR challenges the constitutionality of the Master Program provisions it points to here

and thus bears the heavy burden to prove unconstitutionality beyond a reasonable doubt. Madison,

161 Wn.2d at 92. For the above reasons, we hold that this goal provision is not vague. We hold

also that CAPR’s mere assertions that the Master Program will be administered arbitrarily or

capriciously are speculative and do not meet CAPR’s burden of proof to establish that the Master

Program is unconstitutionally vague.

                      II. LACK OF IDENTIFIED HARM, DE FACTO PROHIBITIONS,
                          AND LAND OWNERSHIP DUE PROCESS VIOLATIONS

         CAPR argues that the Board erred in upholding the Master Program because the County

and the DOE (1) failed to demonstrate sufficient evidence of harm to the shorelines, (2) imposed




20
     See JCC 18.25.180(2)(j).
21
   CAPR also cites to Master Program provision JCC 18.25.300(1)(b), which states that
“[p]roponents of a development on no-bank or low bank marine shorelines are encouraged to locate
the bottom of a structure’s foundation higher than the level of expected future sea-level rise.” But
CAPR provides no legal analysis of why this language is unconstitutionally vague.

                                                34
No. 47641-0-II


de facto prohibitions on common developments, and (3) imposed permit conditions that violate

land owners’ due process rights. CAPR’s contentions are unavailing.

                 A. SUFFICIENT EVIDENCE OF IDENTIFIED HARM TO SHORELINES

       CAPR argues that the Board erred in approving the Master Program because the County

and the DOE failed to show evidence of actual, demonstrated harm to the shorelines from

residential development, which is necessary to justify restricting citizens’ private property rights.

We disagree.

1.     APPLICABLE LAW

       As noted, Master Programs must comply with the provisions of the SMA, ch. 90.58 RCW,

the policy of the SMA articulated in RCW 90.58.020, the Master Program guidelines codified in

ch. 173-26 WAC, and certain other statutory provisions. RCW 90.58.190(2)(b). Master Programs

are also subject to the grant of general police power of article XI, section 11 of the Washington

Constitution. Section 11 states that “[a]ny county, city, town or township may make and enforce

within its limits all such local police, sanitary and other regulations as are not in conflict with

general laws.” (Emphasis added.) Regulations are consistent with article XI, section 11 unless

“(1) the Ordinance conflicts with some general law; (2) the Ordinance is not a reasonable exercise

of the County’s police power; or (3) the subject matter of the Ordinance is not local.” Weden v.

San Juan County, 135 Wn.2d 678, 692-93, 958 P.2d 273 (1998). Stated another way, the

regulation must tend to “‘promote the health, safety, peace, education, or welfare of the people’”

and must bear a reasonable relationship to accomplishing the purpose pursued. Biggers v. City of

Bainbridge Island, 162 Wn.2d 683, 711, 169 P.3d 14 (2007) (Fairhurst, J., dissenting) (quoting

Weden, 135 Wn.2d at 700).


                                                 35
No. 47641-0-II


        These constitutional and statutory limitations do not require that local governments justify

each Master Program provision by showing actual, demonstrated harm to the shorelines in the

absence of the provisions. CAPR relies on the statement from Biggers that “[s]tanding alone,

theoretical harm is not enough to deny private property owners fundamental access to the

application review process or protection and use of their property.” 162 Wn.2d at 687. This

statement, though, was made in deciding a challenge to a series of rolling moratoria imposed by

the City on certain shoreline development. The court held that those moratoria were not authorized

by the SMA. Biggers, 162 Wn.2d at 697.

        A requirement to show actual, demonstrated harm before adoption of a Master Program

provision is not found in the SMA and would actively contradict SMA policies stated in RCW

90.58.020 and SEPA policies. RCW 43.21C.020; Puget Soundkeeper All., 189 Wn. App. at 148.

Such a requirement would also abandon the deferential test for exercises of the police power found

in Crane Towing, Inc. v. Gorton, 89 Wn.2d 161, 168-69, 570 P.2d 428 (1977) (quoting State v.

Conifer Enters., Inc., 82 Wn.2d 94, 96-97, 508 P.2d 149 (1973)), which held that when analyzing

an act of state police power, the court will place the burden of establishing invalidity on the party

challenging legislation, and will presume that reasonably conceivable facts exist justifying the

legislation, that the legislature passed the statute with reference to those facts, and that the statute

is constitutional. For these reasons, Biggers must be confined to its narrow factual scope: the

adoption of development moratoria. In adopting Master Program provisions, local governments

are not required to demonstrate actual harm in their absence.




                                                  36
No. 47641-0-II


2.     BOARD DECISION

       The Board stated that CAPR spent three pages of its brief addressing “what it states is a

failure of the County to base its regulatory [Master Program] scheme on an adequate ‘scientific

base.’” AR at 7531. But the Board concluded that CAPR failed to actually name an SMA

provision or Master Program guideline that requires a “scientific base” to be established, and

therefore CAPR failed to show any provision or guideline was violated when such a scientific base

was not established. Elsewhere in the Board’s decision, it also concluded that the SI was replete

with scientific evidence showing that the County inventoried the shoreline and evaluated

cumulative impacts from development.

3.     ANALYSIS

       As shown above, the County is not required to show “actual, demonstrated” harm to the

shorelines to justify the Master Program restrictions on landowners’ use of their property. Instead,

Master Program restrictions must comply with the SMA, the Master Program guidelines, and

certain other statutes, as well as meet the deferential reasonableness standard of article XI, section

11.

       Here, CAPR failed to identify which Master Program provisions it claims improperly

restrict landowners’ rights. But the record supports the Board’s conclusion that the SI inventoried

the conditions of the shoreline and the harm from development. The SI contains a 121-page section

describing conditions adjacent to individual shoreline segments including the armoring, marinas,

beach access stairs, docks, and other structures for each shoreline reach. The SI contains a 66-

page overview of key species, habitats, and ecosystem evaluations of specific areas in the county

shoreline. The SI documents that the shoreline contains critical habitats and is home to numerous


                                                 37
No. 47641-0-II


threatened and endangered species, including declining salmonid species. The SI documents how

development impacts ecological functions.

       We view the evidence in the light most favorable to the respondents. City of University

Place, 144 Wn.2d at 652. Here, there is sufficient evidence to persuade a fair-minded person that

the Board’s conclusion that the record contained sufficient evidence to justify the permit condition

provisions in the Master Program based on identified harm is correct. We hold that CAPR’s

argument regarding the sufficiency of the evidence of harm to shorelines fails.

                                 B. NO DE FACTO PROHIBITIONS

       CAPR argues that the Board erred when it upheld the Master Program because Master

Program permit requirements result in de facto prohibitions22 of common development actions

including beach access structures, boating facilities, armoring, and developing in flood-prone

areas. This argument is unpersuasive.

1.     APPLICABLE LAW

       The Master Program guidelines state that Master Programs shall include goals, policies,

and actions for restoration of impaired shoreline ecological functions. WAC 173-26-201(2)(f).

Master Programs shall also implement standards to ensure “[d]evelopment in flood plains should

not significantly or cumulatively increase flood hazard.” WAC 173-26-221(3)(c)(i). And new

development or new uses in shoreline jurisdiction, including the subdivision of land, should not

be established when it would be reasonably foreseeable that the development or use would require




22
  A “de facto prohibition” occurs when a land use is not expressly prohibited, but is prohibited in
fact because restrictions render such use impractical. 83 AM. JUR. 2D Zoning and Planning § 132
(2017).

                                                38
No. 47641-0-II


structural flood hazard reduction measures within the channel migration zone or floodway. WAC

173-26-221(3)(c)(i).

          Single-family residences are a priority use under the SMA. WAC 173-27-241(3)(j). But

a Master Program may still restrict or limit residential development. Buechel, 125 Wn.2d at 209.

The SMA and the Master Program guidelines endorse, and in some instances require, the use of

conditional use permits. RCW 90.58.100(5); WAC 173-26-191(2)(a)(iii)(B). The Master Program

guidelines further state that the conditional use permit process is a method used to ensure

uncommon impacts do not result in net loss. WAC 173-26-201(3)(d)(iii).

2.        BOARD DECISION

          The Board found that CAPR failed to meet its burden of proof to establish that any of the

Master Program provisions at issue resulted in de facto prohibitions of the uses in violation of the

SMA or Master Program guidelines.

3.        ANALYSIS

          First, CAPR cites to Master Program provisions related to the permit requirements for

building beach access structures, boating facilities, and beach armoring.23 And CAPR asserts that

the public access and conditional use permit requirements included within these provisions will

render a “de facto” prohibition on these types of development. CAPR offers legal citation for the

propositions that the right to exclude others is an important property right and that access to the

waterfront often lends property great value. And CAPR makes various further assertions including

that these provisions are unfair, facially unconstitutional, and impossible to comply with and favor

subjective standards. But CAPR fails to provide legal analysis or factual support for these


23
     JCC 18.25.340, .290, .100(3)(q), .590(1), .330 to .410.

                                                  39
No. 47641-0-II


assertions or for the proposition that these provisions result in “de facto prohibition” of the types

of development they govern.

       The record shows that the developments that CAPR claims are “de facto prohibited” are

actually allowed. And these developments are allowed with some restrictions in certain areas that

CAPR fails to establish are improper restrictions under the SMA and Master Program guidelines.

Beach access structures, like stairs, are not prohibited:       they are allowed in conservancy,

residential, and high-intensity environments with a conditional use permit. And although CAPR

correctly asserts that single-family residences are a priority use under the SMA, a Master Program

may still restrict or limit residential accessory development. RCW 90.58.030(3)(e)(vi); Buechel,

125 Wn.2d at 209.

       The Master Program also allows boat launches in all environments except priority aquatic

areas and allows boat launches in natural and conservancy areas with a conditional use permit.

Piers, docks, and floats are allowed everywhere except priority aquatic and natural environment

areas and are allowed in conservancy environments with a conditional use permit. And armoring

is prohibited in only natural environments. Besides arguing that these requirements will be

“virtually impossible” to comply with, CAPR does not offer legal analysis or factual support to

show boating facilities or armoring are de facto prohibited or that the restrictions placed on their

development violate the SMA or Master Program guidelines.

       Finally, CAPR cites to a Master Program goal provision related to flood control and asserts

it is part of a “regulatory maze” at odds with the SMA and Master Program guidelines. Br. of

Appellant (CAPR) at 40. But the Master Program provision at issue, JCC 18.25.380(1)(a), simply

states that “[t]he county should prevent the need for flood control works by limiting new


                                                 40
No. 47641-0-II


development in flood-prone areas.” This provision comports with the Master Program guideline

mandating that Master Programs shall implement standards to ensure “[d]evelopment in flood

plains should not significantly or cumulatively increase flood hazard” and shall restrict

development or new uses if it is reasonably foreseeable that such development would require

structural flood hazard reduction measures within the channel migration zone or floodway. WAC

173-26-221(3)(c)(i). We acknowledge that conditional use permits may burden some property

owners, but we hold that CAPR fails to show that use of permitting processes and the other

challenged provisions result in de facto prohibitions.

                 C. PERMIT PROVISIONS DO NOT VIOLATE DUE PROCESS RIGHTS

       Relying on Presbytery of Seattle v. King County, 114 Wn.2d 320, 329-30, 787 P.2d 907

(1990), CAPR argues that the Master Program 150-foot buffer and permit provisions violate

applicants’ substantive due process rights. We disagree.

       The parties dispute whether the Presbytery substantive due process test applies to facial

challenges such as the one before us. We need not reach that issue because the Supreme Court’s

decision in Amunrud v. Board of Appeals, 158 Wn.2d 208, 143 P.3d 571 (2006), makes clear that

the test in Presbytery does not apply to this appeal, whether its challenge is characterized as facial

or as applied.

       Decisions such as Presbytery and Guimont v. Clarke followed a three-part test under which

courts examined “‘(1) whether the regulation is aimed at achieving a legitimate public purpose;

(2) whether it uses means that are reasonably necessary to achieve that purpose; and (3) whether

it is unduly oppressive on the landowner.’” 121 Wn.2d 586, 609, 854 P.2d 1 (1993) (quoting

Presbytery, 114 Wn.2d at 330).


                                                 41
No. 47641-0-II


        In Amunrud, however, our Supreme Court severely limited the application of the third

prong of that test. First, the court held that if a state action does not affect a fundamental right, the

proper standard of review is a rational basis test, under which a challenged law must be rationally

related to a legitimate state interest. Amunrud, 158 Wn.2d at 222. Second, the court assumed that

any necessary state of facts that it could reasonably conceive of existed when it determined whether

a rational relationship existed between the challenged law and a legitimate state interest. Amunrud,

158 Wn.2d at 222. And finally, the Amunrud court concluded that the court must apply only this

rational basis test, so it need not also evaluate whether the challenged law is unduly oppressive on

individuals. 158 Wn.2d at 226. Thus, the “unduly oppressive” element need not be evaluated

where a recognized fundamental interest is not implicated.

        Turning to what counts as a fundamental interest, Amunrud cited to the United States

Supreme Court’s recognition of “certain liberty interests protected by the due process clause but

not explicitly enumerated in the Bill of Rights” and specified also that the right to pursue a

particular profession is not a fundamental right. 158 Wn.2d at 220. None of these liberty interests

are at stake in the present appeal.24

        More to the point, we are aware of no case law holding that property owners have a

fundamental right to do what they wish on their property without being troubled by reasonable

regulation. Such a rule would contradict the broad and ample scope of the police power long



24
   In its regulatory takings cases, the Supreme Court has recognized a number of “fundamental
attributes of ownership” including the right to possess, to exclude others, and to dispose of
property. Presbytery, 114 Wn.2d at 329-30. The Supreme Court has also recognized the right to
make some economically beneficial or productive use of land. Guimont, 121 Wn.2d at 599.
Because petitioners do not argue that the presence of these interests triggers the “unduly
oppressive” inquiry, we do not reach it.

                                                   42
No. 47641-0-II


recognized under state and federal law. See, e.g., W. Coast Hotel Co. v. Parrish, 300 U.S. 379,

390, 57 S. Ct. 578, 81 L. Ed. 703 (1937); Weden, 135 Wn.2d at 692-93. Just as the right to pursue

a particular profession is not a fundamental right but is a right which is nevertheless subject to

reasonable government regulation, Amunrud, 158 Wn.2d at 220, so, for substantive due process

purposes, is the right to use one’s property.

       The challenged Master Program does not threaten the fundamental interests that trigger

heightened scrutiny under Amunrud. Therefore, under that opinion, the “unduly oppressive”

criterion from prior substantive due process case law does not apply. The challenged portions of

the Master Program are rationally related to serving a legitimate state interest. Therefore, they do

not offend the doctrine of substantive due process.

                      III. EVIDENTIARY SUPPORT OF THE MASTER PROGRAM

       CAPR argues that the Board erred when it upheld the Master Program because (1) the SI

was insufficient, (2) the CIA was insufficient, (3) the DOE failed to identify the sources reviewed

and relied upon to update the Master Program, and (4) the record has insufficient science to support

the imposition of the Master Program buffer requirement.25            We disagree with CAPR’s

contentions.




25
  CAPR asserts that both the SI and CIA were incomplete because they are based on only “photos
and literature” and lack sufficient field verification of existing conditions. Br. of Appellant
(CAPR) at 20. But as a general note, Master Program guideline WAC 173-26-201(2)(a) clarifies
the nature of the scientific information that must be gathered and states that “[a]t a minimum, make
use of and, where applicable, incorporate all available scientific information, aerial photography,
inventory data, technical assistance materials, manuals and services from reliable sources of
science.” (Emphasis added.)

                                                43
No. 47641-0-II


                                    A. STANDARD OF REVIEW

       We review an agency determination for substantial evidence by determining whether there

is a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of

the order. Spokane County, 176 Wn. App. at 565. In doing so, we view the evidence in the light

most favorable to the respondents. City of University Place, 144 Wn.2d at 652.

                      B. VERIFICATION OF EXISTING CONDITIONS IN THE SI

       CAPR argues that the Board erred when it concluded that the SI contained sufficient

evidence to support the Master Program. Specifically, CAPR argues that the SI supporting the

Master Program does not contain sufficient inventory of shoreline conditions and development or

sufficient analysis of how those conditions relate to marine habitats to fulfill Master Program

guideline WAC 173-26-201(3)(c) and thereby impermissibly places the burden on property owners

to evaluate cumulative impact of development on the shoreline.26 We disagree.

1.     APPLICABLE LAW

       Master Program guideline WAC 173-26-201(3)(c) requires that when local governments

prepare a Master Program, they must inventory their shoreline conditions. The guideline states

that local governments shall

       [g]ather and incorporate all pertinent and available information, existing inventory
       data and materials from state and federal agencies, individuals and
       nongovernmental entities with expertise, affected Indian tribes, watershed
       management planning, port districts and other appropriate sources.
               ....



26
  CAPR also asserts that the County violated Master Program guidelines “WAC 173-26-171 to
251” but cites to and provides analysis related to only WAC 173-26-201(3)(c). Br. of Appellant
(CAPR) at 20. “Passing treatment of an issue or lack of reasoned argument is insufficient to merit
judicial consideration.” Holland, 90 Wn. App. at 538. Thus, we do not address this assertion.

                                                44
No. 47641-0-II


                Local government shall, at a minimum, and to the extent such information
       is relevant and reasonably available, collect the following information:
                (i) Shoreline and adjacent land use patterns and transportation and utility
       facilities, including the extent of existing structures, impervious surfaces,
       vegetation and shoreline modifications in shoreline jurisdiction.

WAC 173-26-201(3)(c).

2.     BOARD DECISION

       The Board concluded that the SI was replete with scientific evidence showing that the

County inventoried the shoreline, evaluated cumulative impacts from development, and

documented current conditions. The Board opined that nothing in the SMA or Master Program

guidelines required field verification of existing conditions. The Board further noted that the SI

contains an overview of the key species and habitats within the County, an inventory that covers

each shoreline area or “reach” in the County, and maps showing the shoreline areas and detailing

different characteristics of the shorelines.

3.     ANALYSIS

       CAPR fails to show that the Board erred when it concluded that the SI contained sufficient

evidence to support the Master Program. First, field verification of each shoreline area’s condition

is not required by Master Program guideline WAC 173-26-201(3)(c) or any other SMA rule or

Master Program guideline.

       Second, the record supports the Board’s conclusion that the SI inventoried shoreline

conditions and development impacts. Overall, the SI was based on over 200 sources, many of

which focused on Western Washington and the Puget Sound and some discussed marine

environments. Specifically looking at the SI’s inventory of the County’s shoreline, the SI contains

a 66-page overview of key species, habitats, and ecosystem evaluations of specific areas in the


                                                45
No. 47641-0-II


county shoreline. The SI contains a 121-page section describing conditions adjacent to individual

shoreline segments including the armoring, marinas, beach access stairs, docks, and other

structures for each shoreline reach. The SI contains a 33-page map folio detailing characteristics

of the County’s state shorelines.27

        The SI documents that the County’s shoreline contains critical habitats and is home to

numerous threatened and endangered species, including declining salmonid species. And from

that evaluation, the SI concluded that “virtually all of the County’s nearshore marine environment

supports or has potential to support highly valuable and ecologically sensitive resources.” AR at

6273.

        The SI also documents how development, near-shore armoring, and vegetation removal

impact ecological functions. The watershed characterization and landscape analysis of East

Jefferson County identified areas that are the most important to maintaining ecosystems, areas with

human-caused alterations that degrade the ecosystems, and areas that are best suited for protection,

development, and/or restoration.

        Beyond citing to two portions of the SI’s “Background and Limitations” section,28 CAPR

fails to analyze how the data contained in the SI is insufficient to fulfill the requirements of Master



27
   These maps detail marine and freshwater shoreline planning areas, stream flows for rivers and
streams, soil types, channel migration zones and flood plains, areas designated as critical areas and
critical shoreline habitats, and the locations of aquatic vegetation, shoreline use patterns, and
shellfish harvesting areas.
28
   The SI’s introductory section entitled “Background and Limitations” acknowledges that the SI
is “not intended as a full evaluation of the effectiveness of the SMA or County’s existing shoreline
policies or regulations” and that the SI “did not include field verification of shoreline conditions.”
AR at 3464. The SI then states, “[C]onsiderable effort was put forth to ensure that the information
presented is complete and accurate as of the date of publication.” AR at 3464.

                                                  46
No. 47641-0-II


Program guideline WAC 173-26-201(3)(c). We must view the evidence relied on by the Board in

the light most favorable to the respondents. City of University Place, 144 Wn.2d at 652; Spokane

County, 176 Wn. App. at 565. In doing so, we hold that there is a sufficient quantity of evidence

to persuade a fair-minded person of the correctness of the Board’s order that the SI fulfilled the

requirements of WAC 173-26-201(3)(c). Accordingly, we hold that the SI inventoried the

shoreline and documented current conditions in accordance with WAC 173-26-201(3)(c).

            C. EXISTING SYSTEMS AND FUTURE DEVELOPMENT EVALUATION IN THE CIA

       CAPR argues that the Board erred in upholding the Master Program because the CIA

supporting the Master Program does not contain sufficient evidence to fulfill the requirements of

Master Program guidelines WAC 173-26-186(8)(a) and (d), which require evaluation of the

effectiveness of the past Master Program in light of reasonably foreseeable development. We

disagree.

1.     APPLICABLE LAW

       Master Program guideline WAC 173-26-186(8) addresses how local governments should

address protection of shoreline ecological functions:

       It is recognized that shoreline ecological functions may be impaired not only by
       shoreline development subject to the substantial development permit requirement
       of the act but also by past actions, unregulated activities, and development that is
       exempt from the act’s permit requirements. The principle regarding protecting
       shoreline ecological systems is accomplished by these guidelines in several ways,
       and in the context of related principles. These include:
                (a) Local government is guided in its review and amendment of local master
       programs so that it uses a process that identifies, inventories, and ensures
       meaningful understanding of current and potential ecological functions provided
       by affected shorelines.
                ....
                (d) Local master programs shall evaluate and consider cumulative impacts
       of reasonably foreseeable future development on shoreline ecological functions and
       other shoreline functions fostered by the policy goals of the act. To ensure no net

                                                47
No. 47641-0-II


       loss of ecological functions and protection of other shoreline functions and/or uses,
       master programs shall contain policies, programs, and regulations that address
       adverse cumulative impacts and fairly allocate the burden of addressing cumulative
       impacts among development opportunities. Evaluation of such cumulative impacts
       should consider:
               (i) Current circumstances affecting the shorelines and relevant natural
       processes;
               (ii) Reasonably foreseeable future development and use of the shoreline;
       and
               (iii) Beneficial effects of any established regulatory programs under other
       local, state, and federal laws.

(Emphasis added.)

2.     BOARD DECISION

       The Board concluded that neither the SMA nor the Master Program guidelines, including

WAC 173-26-186(8)(d), require analysis of how an existing regulatory scheme protects shorelines

as compared to an amended Master Program. The Board concluded that the CIA identified,

inventoried, and documented current and potential ecological functions provided by affected

shorelines and proposed policies and regulations to achieve no net loss as required by WAC 173-

26-186(8).

3.     ANALYSIS

       CAPR fails to show that the Board erred when it concluded that the CIA contained

sufficient evidence to support the Master Program. First, Master Program guideline WAC 173-

26-186(8)(d) states that the County “should” consider the “(iii) [b]eneficial effects of any

established regulatory programs under other local, state, and federal laws.” Thus, as the Board

concluded, this Master Program guideline did not require a Master Program to contain analysis of

how an existing regulatory scheme would protect shorelines as compared to an amended Master




                                                48
No. 47641-0-II


Program.    Rather, it encouraged counties to consider the benefits of established regulatory

programs in general.

       Second, the record supports the Board’s conclusion that the CIA inventoried current and

potential ecological functions of the county shoreline and the proposed policies and regulations.

The CIA included comment on the Draft Master Program’s limitations on development:

       Importantly, the [Master Program] expressly prohibits any use/development that
       would cause a net loss of ecological functions or processes. As a result, the County
       must deny shoreline use and development proposals unless impacts are fully
       mitigated. Specific performance standards contained in the [Draft Master
       Program] that will prevent cumulative impacts from occurring are summarized in
       this document.

AR at 5650 (emphasis added). The CIA further states that “[t]he [Draft Master Program] imposes

strict limits on construction of new bulkheads (or other types of structural shoreline stabilization

or armoring) and expansion of existing bulkheads on residential properties to prevent adverse

effects on net shore-drift, beach formation, juvenile salmon migratory habitat and other shoreline

functions.” AR at 2363. The CIA clarifies that it evaluates the Master Program to determine

whether it contains adequate measures to mitigate use and development such that they will not

result in a net loss of ecological functions compared to baseline conditions. This evaluation

presumes impacts will occur, but it evaluates whether there are adequate measures in place so post-

development conditions are no worse overall than before development.

       The CIA further noted that piers, docks, and other over-water structures can have adverse

effects including changing wave patterns, currents’ littoral drift, or movement of aquatic life.

Shading from piers can also alter juvenile salmon migration behavior, result in increased predation

and disrupt feeding areas, change marine vegetation, decrease survival due to dislocation of herring

eggs spawned on pilings at high tide elevations, and reduce eel grass and kelp beds.

                                                49
No. 47641-0-II


       CAPR fails to analyze how the data contained in the CIA is insufficient to fulfill the

requirements of Master Program guidelines WAC 173-26-186(8)(a) and (d). Again, we must view

the evidence relied on by the Board in the light most favorable to the respondents. City of

University Place, 144 Wn.2d at 652; Spokane County, 176 Wn. App. at 565. In doing so it appears

there is a sufficient quantity of evidence to persuade a fair-minded person of the correctness of the

Board’s order that the CIA fulfilled the requirements of WAC 173-26-186(8)(a) and (d). Thus,

we hold that the CIA sufficiently inventoried how the Master Program would impact ecological

functions in accordance with WAC 173-26-186(8)(a) and (d).

              D. SOURCES RELIED ON BY THE DOE FOR MASTER PROGRAM UPDATE

       CAPR argues that the Board erred when it upheld the Master Program because the DOE

failed to identify the information it reviewed and relied on when approving the updated Master

Program in violation of RCW 34.05.272(2)(a).29 CAPR fails to show that we can address this

issue and also fails to support this argument.

       As a threshold matter, CAPR fails to show how this issue is properly before us. CAPR

provides no citation to the record that they argued before the Board that the DOE violated RCW

34.05.272(2)(a), and the Board did not address whether CAPR showed a violation of RCW

34.05.272(2)(a). Thus, because we review issues only raised before the Board, we hold that this

issue is beyond the scope of this appeal.




29
  “Before taking a significant agency action, the [DOE] must identify the sources of information
reviewed and relied upon by the agency in the course of preparing to take significant agency
action,” and the DOE must place an index of the records relied upon on their web site. RCW
34.05.272(2)(a).

                                                 50
No. 47641-0-II


         Additionally, even if we hold that the issue was properly before us, this argument still fails

for lack of legal analysis. Besides asserting that the DOE’s approval of the Master Program

violates RCW 34.05.272(2)(a), CAPR offers no legal analysis to demonstrate such violation. We

do not consider claims unsupported by legal analysis. RAP 10.3(a)(6); Cowiche Canyon, 118

Wn.2d at 809. Thus, even if this argument was properly before us, we do not consider this issue

because CAPR fails to support it.

       E. SUFFICIENCY OF EVIDENCE SUPPORTING THE MASTER PROGRAM BUFFER PROVISION

         CAPR argues that the Board erred when it upheld the Master Program 150-foot buffer

provision because there was insufficient scientific evidence to support this provision as required

by the SMA provisions RCW 90.58.100(1)(a) and (d).30 CAPR’s contentions are unavailing.

1.       STANDARD OF REVIEW AND APPLICABLE LAW

         We review this challenge for substantial evidence. Spokane County, 176 Wn. App. at 565.

The SMA requires that “to the extent feasible,” the DOE should “(a) [u]tilize a systematic

interdisciplinary approach which will insure the integrated use of the natural and social sciences

and the environmental design arts.” RCW 90.58.100(1). And “to the extent feasible,” the DOE

should “(d) [c]onduct or support such further research, studies, surveys, and interviews as are

deemed necessary.” RCW 90.58.100(1).

2.       BOARD DECISION

         The Board concluded that counter to CAPR’s assertion that there is no scientific

justification in the record for the 150-foot buffer, the SI includes “summary references to numerous




30
     CAPR cites to RCW 90.59.100(1)(a) and (d), but we assume they mean chapter 90.58 RCW.

                                                  51
No. 47641-0-II


scientific studies which address varying buffer width recommendations.” AR at 7521. The Board

noted that these studies covered the effectiveness of various buffer widths to protect water quality,

wildlife habitats, and travel corridors. The studies further recommended buffers consisting of

ranges. The Board concluded that the County was required to adopt a Master Program to ensure

no net loss, and in doing so, the County assembled “a considerable amount of scientific

information, including information related to buffer widths.” AR at 7522. The Board further

concluded that the County had the latitude to adopt a buffer width within the range of widths from

the assembled scientific information. Thus, the Board found that CAPR failed to meet its burden

to show a violation of RCW 90.58.100(a) and (d).

3.     ANALYSIS

       CAPR fails to show that the Board erred when it found that the record contained sufficient

evidence to support the 150-foot buffer provision. The record supports the Board’s finding. The

SI referenced many scientific studies analyzing the effect of different sized buffers on various

types of shoreline hazards.31 The 150-foot shoreline buffer fell within the range of the buffer

widths discussed in these studies.

       In addition, the SI and CIA documented the ecological harms that buffers, in general, could

help reduce or prevent. A 2004 report relied on by the SI documented pollution from toxic



31
   The SI refers to a 2001 study of findings from the Canadian Ministry of Forestry in British
Columbia recommending buffers of 300 to 450 feet. Other 2001 studies concluded that an 82- to
300-foot buffer would remove approximately 80 percent of sediment. A 2003 study stated that the
minimum recommended buffer width for sediment control and pollutant removal is 98 feet. A
2004 study showed a minimum buffer of 79 feet was needed to control agricultural runoff for 20
percent slopes with slight erosion, while a 160-foot buffer would be needed to control 30 percent
slopes with severe erosion. Further, a 1997 study showed for Washington State the average width
reported to retain riparian function for wildlife habitat was 288 feet.

                                                 52
No. 47641-0-II


substances, run off from rainwater, loss of habitat, and declines in key parts of the food web

ecology in many areas of the Puget Sound. The CIA states that nutrients and matter entering via

streams and rivers from agricultural operations, wastewater treatment plants, and storm water

runoff from residential landscapes harms the quality of the County’s marine waters. And the CIA

addresses how buffers can help with this issue:

       Riparian buffers offer discernable water quality protection from nearshore nutrient
       sources. The effectiveness of riparian buffers for protecting water quality depends
       on a number of factors, including soil type, vegetation type, slope, annual rainfall,
       type and level of pollution, surrounding land uses, and sufficient buffer width and
       integrity. Soil stability and sediment control are directly related to the amount of
       impervious surface and vegetated cover.

AR at 5679.

       The CIA documented that the imposition of buffers protects shoreline ecological functions,

processes, and habitat. The CIA also contains extensive discussion of the buffers as part of the

Master Program’s no-net-loss compliance and what the impact of the imposition of the buffers

would be on existing structures.

       Viewing the evidence relied on by the Board in the light most favorable to the respondents,

there is a sufficient quantity of evidence to persuade a fair-minded person of the correctness of the

Board’s order that the 150-foot buffer provision was supported by sufficient evidence to comply

with RCW 90.58.100(1)(a) and (d). City of University Place, 144 Wn.2d at 652; Spokane County,

176 Wn. App. at 565. Additionally, CAPR does not refute the Board’s finding that the County

had the latitude to adopt a buffer width within the range of widths from the assembled scientific




                                                  53
No. 47641-0-II


information with any legal support.32 We hold that the evidence supporting the buffer provision

was sufficient to meet the requirements of RCW 90.58.100(1)(a) and (d).

       In conclusion, we reject CAPR’s arguments and affirm the Board’s decision on these

grounds. We now address S&G’s arguments.

                                 PART THREE – S&G APPEAL

       S&G appeals the Board’s final decision and order.33 S&G claims error regarding the

prohibition of mining in conservancy-designated environmental areas. S&G argues that the Board

erred by upholding the mining limitation because (1) it violates the SMA and Master Program

guidelines, (2) it was not supported by sufficient scientific evidence, and (3) the County failed to

offer the public sufficient opportunity to comment. Disagreeing with S&G’s contentions, we

affirm the Board’s decision to uphold the Master Program provision prohibiting mining in

conservancy-designated areas.

              I. HOOD CANAL MINERAL RESOURCE LAND OVERLAY DESIGNATION

       In 2004, the County adopted an ordinance creating a 690-acre “Mineral Resource Land

Overlay” (Overlay) designation on lands in unincorporated Jefferson County west of Hood Canal.




32
  In its reply brief, CAPR asserts that the DOE’s scientific data was insufficient to impose the
150-foot buffers and that the DOE disregarded data showing shoreline development would not
have ecological impacts justifying the 150-foot buffers. Because CAPR fails to include legal
analysis to support this argument, we do not consider it. RAP 10.3(a)(6); Cowiche Canyon, 118
Wn.2d at 809.
33
  S&G includes the appropriate standards of review in its briefing, but in its analysis it fails to
apply any standard of review. The County and the DOE also fail to apply any standard of review
when addressing S&G’s arguments.

                                                54
No. 47641-0-II


Jefferson County Ordinance (JCO) 08-0706-04.34          The Overlay designates the property as

“Mineral resource lands,” “land primarily devoted to the extraction of minerals or lands that have

a known or potential long-term commercial significance for the extraction of minerals.” JCC

18.10.130(M).

       S&G mines sand and gravel (aggregate) from its property within the Overlay and transports

the aggregate from where it is mined to a “Shine Hub” where the aggregate is trucked to markets.

JCO 08-0706-04, at 17. The Shine Hub is also located within Overlay-designated land. JCO 08-

0706-04, at 9. But S&G also owns additional property that is located outside the Overlay; this

shoreline property is zoned as rural residential. JCO 08-0706-04, at 22 (“the land within the newly

designated [Overlay] is not within any Shoreline designation”); Figure 3-5, Suppl. Impact

Statement (SEIS), Overlay, S&G parcel report and map.35

       In 2004, when the County approved the Overlay, it made several relevant findings related

to S&G’s then-existing mining operations and its proposed future marine transport of aggregate

from a marine transport pier to be located on its shoreline property (pit-to-pier project). The

County found that installation of the marine transport pier would increase S&G’s mining and allow

it to sell the aggregate in more distant markets in a way it could never competitively do using only




34
  S&G cited to JCO 008-40706, but there appears to be no such ordinance. A copy of the 2004
Overlay ordinance can be found attached to the County’s response brief as an appendix and is
available at http://test.co.jefferson.wa.us/weblinkexternal/O/doc/318714/Page1.aspx.
35
   A copy of figure 3-5 is attached as appendix 1 to Hood Canal Coalition’s (Coalition) brief and
was published as part of the SEIS for the Overlay. S&G’s parcel report and map from the Jefferson
County assessor’s office is attached as appendix 2 to the Coalition’s brief and are available at
http://www.co.jefferson.wa.us/assessors/parcel/parcelprint.asp?value=721194002 and http://
maps.co.jefferson.wa.us/website/mspub/viewer.htm?mapset=parcels&values=721194002.

                                                55
No. 47641-0-II


trucks, because truck transport is too costly to the end user. JCO 08-0706-04, at 18. The County

also found that truck transport and the proposed marine transport are independent methods because

they would serve different markets. JCO 08-0706-04, at 18.

          The Overlay ordinance further clarified that marine transport from the pit-to-pier project

would not entirely replace truck traffic to get the aggregate to market. JCO 08-0706-04, at 18.

Rather, projections were that aggregate transfer by truck from S&G’s mine would increase by 50

percent in the next decades whether or not the pit-to-pier project was approved. JCO 08-0706-04,

at 18. None of the County’s Overlay findings stated that allowing marine transport from the Hood

Canal shoreline was essential to or intrinsic to allow mining within the Overlay-designated land.

                      II. MASTER PROGRAM REVIEW AND APPROVAL PROCESS

          During two open comment periods spanning over two-and-a-half months, the County

received approximately 600 comments. The July 2009 Draft Master Program included a mining

regulation in conservancy-designated areas, which stated, “Conservancy: Mineral extraction and

processing use and development may be allowed as a conditional use subject to the policies and

regulations of this Master Program.” AR at 2271. An open comment period on this draft occurred

between August 19 and September 8, with a public hearing on September 8. Following receipt of

these comments and several public hearings on the Master Program update, the Commissioners

directed the DCD to incorporate changes based on the public comments.

          In October 2009, the DCD staff released the Draft Master Program for the Commissioners’

review.      The Draft Master Program contained a revised mining limitation that stated,

“Conservancy: Mining use and development are prohibited, except for transportation of minerals

by road.” AR at 2269 (emphasis added). In December, the Commissioners formally approved the


                                                  56
No. 47641-0-II


Draft Master Program. The land proposed for S&G’s pit-to-pier project is among that classified

as conservancy land.

       In March 2010, the DCD sent the Draft Master Program to the DOE for review. From

April to May, the DOE conducted a statewide public comment period on the Draft Master Program.

       In January 2011, the DOE conditionally approved the Draft Master Program with some

required and recommended changes along with findings of fact and conclusions of law to support

its decision. From June 22 to July 25, the Commissioners had another open public comment period

on the Draft Master Program. After further edits and communication with the DOE, in December

2013, the Commissioners approved and adopted the County’s final Master Program.36 In February

2014, the DOE approved the Master Program and it became effective. Ch. 18.25 JCC.

                       III. MASTER PROGRAM MINING AND PIER PROVISIONS

       The Master Program defines “mining” to include “[a]ll methods of transporting minerals

to and from the mine,” including marine transportation methods such as “conveyors, piers, and

barges.”    JCC 18.25.100(13)(h)(i)(D).     The Master Program prohibits mining within most

shoreline   environments,   including     the   “conservancy”   shoreline   environment.   JCC

18.25.480(3)(d).37 The Master Program allows mining, including mine-related transportation,




36
  The Commissioners offered the final of six total public hearings during the Master Program
update process on April 15, 2013, but this hearing was specifically to address provisions in the
Master Program related to net pen fin fish aquaculture.
37
  “Conservancy. Mining use and development are prohibited, except for transportation of
minerals by road.” JCC 18.25.480(3)(d).

                                                 57
No. 47641-0-II


only in the “high intensity” shoreline environment. JCC 18.25.480(3)(f). 38 The Master Program

also allows industrial and commercial piers in “[h]igh [i]ntensity” areas and in “[p]riority

[a]quatic” and “[a]quatic” areas if the use is allowed in the upland shoreline environment. JCC

18.25.350(2)(f), (a), (b).

              IV. NO CONFLICT WITH THE SMA AND MASTER PROGRAM GUIDELINES

        S&G argues that the Master Program’s mining limitation conflicts with the SMA and

Master Program guidelines. We disagree.

                                     A. BOARD DECISION

        The Board noted that mining is not completely prohibited under the Master Program and

that the Master Program allows mining in high-intensity designated areas. And the Board found

that S&G failed to meet its burden to show that the Master Program violated the SMA or Master

Program guidelines for prohibiting mining in some instances.

                                   B. SMA REQUIREMENTS

        S&G argues that the Board erred when it rejected S&G’s challenge that the Master

Program’s mining limitation violates SMA’s enunciated policy provision contained in RCW

90.58.020 and an SMA provision contained in RCW 90.58.100(2)(a) ensuring that Master

Programs incorporate economic development plans. These arguments are unpersuasive.

        The SMA’s policy provision states,

              The legislature declares that the interest of all of the people shall be
        paramount in the management of shorelines of statewide significance. The [DOE],
        in adopting guidelines for shorelines of statewide significance, and local
        government, in developing master programs for shorelines of statewide


38
  “High Intensity. Mining use and development may be allowed as a conditional use (CUP).”
JCC 18.25.480(3)(f).

                                              58
No. 47641-0-II


       significance, shall give preference to uses in the following order of preference
       which:
               (1) Recognize and protect the statewide interest over local interest;
               (2) Preserve the natural character of the shoreline;
               (3) Result in long term over short term benefit;
               (4) Protect the resources and ecology of the shoreline;
               (5) Increase public access to publicly owned areas of the shorelines;
               (6) Increase recreational opportunities for the public in the shoreline;
               (7) Provide for any other element as defined in RCW 90.58.100 deemed
       appropriate or necessary.

RCW 90.58.020 (emphasis added).

       And the provision further clarifies that

       [a]lterations of the natural condition of the shorelines of the state, in those limited
       instances when authorized, shall be given priority for single-family residences and
       their appurtenant structures, ports, shoreline recreational uses including but not
       limited to parks, marinas, piers, and other improvements facilitating public access
       to shorelines of the state, industrial and commercial developments which are
       particularly dependent on their location on or use of the shorelines of the state.

RCW 90.58.020 (emphasis added). The SMA also requires Master Programs to include an

economic development element for the location and design of industries, port facilities, and other

developments particularly dependent on their location or their use of the shoreline. RCW

90.58.100(2)(a).

       Mining-related facilities like marine transport piers could be “industrial and commercial

developments which are particularly dependent on their location on or use of the shorelines.”

RCW 90.58.020. But these SMA provisions that S&G relies on do not mandate that Master

Programs must allow all industrial uses, like mining, in every shoreline environment. RCW

90.58.020, .100(2)(a). To the contrary, they anticipate Master Programs that allow, condition, or

prohibit various uses in different shoreline environments in conformance with the order of

preference in RCW 90.58.020, above.


                                                  59
No. 47641-0-II


       In addition, SEPA requires that the laws of the State, including the SMA, be interpreted

and administered in accordance with the policies of SEPA. RCW 43.21C.030. Among those

policies is the recognition of “the responsibilities of each generation as trustee of the environment

for succeeding generations,” RCW 43.21C.020(2)(a), and the recognition that “each person has a

fundamental and inalienable right to a healthful environment and that each person has a

responsibility to contribute to the preservation and enhancement of the environment.” RCW

43.21C.020(3). Accord Puget Soundkeeper All., 189 Wn. App. at 148. In Lands Council v.

Washington State Parks & Recreation Commission, 176 Wn. App. 787, 808, 309 P.3d 734 (2013),

we recognized this notion of trusteeship to be the “quickening principle” of SEPA. The County

acted consistently with these principles and purposes.

       S&G bears the burden of establishing the invalidity of the Master Program. Quadrant

Corp., 154 Wn.2d at 233. We hold that S&G fails to show that the Master Program mining

limitation violates the SMA.

                        C. MASTER PROGRAM GUIDELINE REQUIREMENTS

       S&G argues that the Board erred when it rejected S&G’s challenge that the Master

Program’s mining limitation violated Master Program guidelines WAC 173-26-231(3)(b)

and -201(2)(d). These arguments are unpersuasive.

       WAC 173-26-231 contains the shoreline modifications guidelines for piers and docks.

WAC 173-26-231(3)(b) states, “New piers and docks shall be allowed only for water-dependent

uses or public access.” These guidelines further clarify that Master Programs shall allow only

“shoreline modifications that are appropriate to the specific type of shoreline and environmental

conditions for which they are proposed.” WAC 173-26-231(2)(c).


                                                 60
No. 47641-0-II


       Master Program guideline WAC 173-26-201(2)(d) states that preference should be given

to uses “that are unique to or dependent upon a shoreline location.” (Emphasis added.) But this

guideline also states that “[s]horeline areas, being a limited ecological and economic resource, are

the setting for competing uses and ecological protection and restoration activities.” WAC 173-26-

201(2)(d). And this guideline notes that for SSWSes, Master Programs should give priority and

preference first to “(i) [r]eserve appropriate areas for protecting and restoring ecological functions

to control pollution and prevent damage to the natural environment and public health” and second

to “(ii) [r]eserve shoreline areas for water-dependent” uses like transportation uses. WAC 173-

26-201(2)(d) (emphasis added).

       S&G is correct that WAC 173-26-231(3)(b) allows for docks and piers to be built for water-

dependent uses. But S&G ignores the fact that the same guideline clarifies that such modifications

are allowed contingent on the environmental designation of the area where development is

proposed, like the conservancy designation at issue here. WAC 173-26-231(2)(c). And contrary

to S&G’s argument, WAC 173-26-201(2)(d) does not state that development, including that

needed for mining transport, must be allowed in every environmental area. Rather, this guideline

is clear that Master Programs must recognize the competing needs for use, but that the first

preference is given to environmental protection and restoration. WAC 173-26-201(2)(d). S&G

bears the burden of establishing the invalidity of the Master Program. Quadrant Corp., 154 Wn.2d

at 233. We hold that S&G fails to show that the Master Program provision prohibiting mining in

conservancy areas violates these Master Program guidelines.




                                                 61
No. 47641-0-II


                         V. SCIENTIFIC SUPPORT OF THE MASTER PROGRAM

          S&G next argues that the Board erred when, in violation of the SMA and Master Program

guidelines, it upheld the Master Program provision “banning” mining in conservancy areas

because there is insufficient scientific and technical analysis to support this limitation on mining.39

We disagree.

                                     A. STANDARD OF REVIEW

          As previously noted, we review an agency determination for substantial evidence by

determining whether there is a sufficient quantity of evidence to persuade a fair-minded person of

the truth or correctness of the order. Spokane County, 176 Wn. App. at 565. In doing so, we view

the evidence in the light most favorable to the respondents. City of University Place, 144 Wn.2d

at 652.

                                        B. APPLICABLE LAW

          The SMA states that “[i]n preparing the master programs, and any amendments thereto, the

[DOE] and local governments shall to the extent feasible:                (a) [u]tilize a systematic

interdisciplinary approach which will insure the integrated use of natural and social sciences and

the environmental design arts.” RCW 90.58.100(1) (emphasis added).




39
  S&G includes a false premise within this argument that the Master Program renders an “outright
ban on marine transport of aggregate.” Br. of Appellant (S&G) at 29. The Master Program
prohibits mining within most shoreline environments, including the “conservancy” shoreline
environment. JCC 18.25.480(3)(d). But the Master Program allows mining, including mine-
related transportation, in the “high-intensity” shoreline environment. JCC 18.25.480(3)(f). The
Master Program also allows industrial and commercial piers in “[h]igh-[i]ntensity” areas and in
“[p]riority aquatic” and “[a]quatic” areas if the use is allowed in the upland shoreline environment.
JCC 18.25.350(2)(f), (a), (b).

                                                  62
No. 47641-0-II


          Master Program guidelines state that local jurisdictions are to “identify and assemble the

most current, accurate, and complete scientific and technical information available that is

applicable to the issues of concern.” WAC 173-26-201(2)(a) (emphasis added). Jurisdictions must

also “base master program provisions on an analysis incorporating the most current, accurate, and

complete scientific or technical information available.”        WAC 173-26-201(2)(a) (emphasis

added).

                                        C. BOARD DECISION

          The Board found that S&G failed to show insufficient evidence supported the Master

Program such that it violates the SMA and Master Program guidelines.

                                            D. ANALYSIS

          S&G argues that the Board erred when it upheld the Master Program because there is

insufficient evidence to support the Master Program’s mining limitation in violation of SMA

provisions RCW 90.58.100(1) and WAC 173-26-201(2)(a).40 This argument is unpersuasive.




40
   S&G also asserts that the mining limitation is not in line with the SMA policy provision RCW
90.58.020 and conflicts with the Master Program guideline WAC 173-26-201(2)(d), which sets
out priority uses under the SMA. But S&G fails to offer any legal analysis showing how the
Master Program conflicts with this SMA provision or this Master Program guideline. And as was
discussed above, the SMA policy provision establishes a clear order of priority for use on the
shoreline—but it does not include mining or mining-related activity like marine transport nor does
it mandate that Master Programs allow all industrial uses in every environment. RCW 90.58.020.
Master Program guideline WAC 173-26-201(2)(d) also does not state that development, including
that needed for mining transport, must be allowed in every environmental area. Rather this
guideline is clear that Master Programs must follow a process in which first preference is given to
environmental protection and restoration. WAC 173-26-201(2)(d).

                                                  63
No. 47641-0-II


       S&G fails to point to any evidence that the County failed to consider relevant evidence as

required under RCW 90.58.100(1) and WAC 173-26-201(2)(a).41 There is also scientific evidence

in the record supporting the Board’s conclusions.

       The SI report and CIA demonstrate that the County inventoried and evaluated Hood

Canal’s shorelines and made the conservancy designation based on the scientific analysis

available. The County documented that Hood Canal contains salmonid habitat, salt marshes, and

lagoons, erosive and/or hazardous slopes, and commercial shellfish beds. And in the SI, the

County designated the S&G shoreline property as a “conservancy” area based on its environmental

attributes. These include: high-functioning shoreline resources with a low degree of modification

or stressors, the presence of salmonid habitats, the presence of erosive or hazardous slopes, and

the presence of commercial shellfish beds. Direct impacts from the development of piers, docks,

and other shoreline modifications can include loss of shoreline/riparian vegetation, burying of

habitats, damage from equipment to eggs incubating on the beach, and lowering and coarsening of

beach profiles. Indirect impacts can occur from sediment transport and impoundment and water

quality degradation from development that affect forage fish and herring’s habitats.

       The CIA stated that “the type and intensity of uses allowed in areas designated Natural and

Conservancy are tightly controlled since these areas are the most sensitive to future development

and the most vital to protect.” AR at 5683. The CIA further noted that piers, docks, and other



41
   S&G cites to a letter to the DOE arguing that the prohibition of aquaculture was not properly
supported by science as evidence of the “necessary procedures” the County and the DOE had to
engage in “when it came to banning marine transportation of aggregate.” Br. of Appellant (S&G)
at 30. But this letter does not establish the rules the County and the DOE had to follow nor illustrate
how the implementation of the Master Program with respect to mining violated these rules. We
hold that S&G’s argument based on this record cite fails.

                                                  64
No. 47641-0-II


over-water structures can have adverse effects including blocking or baffling wave patterns,

currents, littoral drift, or movement of aquatic life. Shading from piers can also alter juvenile

salmon migration behavior, result in increased predation, disrupt feeding areas, change marine

vegetation, decrease survival due to dislocation of herring eggs spawned on pilings at high tide

elevations, and reduce eel grass and kelp beds.

       We must view the evidence relied on by the Board in the light most favorable to the

respondents. City of University Place, 144 Wn.2d at 652. And in doing so, it appears there is a

sufficient quantity of evidence to persuade a fair-minded person that the record supported that the

Master Program mining limitation is in compliance with SMA provision RCW 90.58.100(1) and

Master Program guideline WAC 173-26-201(2)(a). We hold that the Master Program was

sufficiently supported by scientific evidence in accordance with RCW 90.58.100(1) and WAC

173-26-201(2)(a).

                       VI. PUBLIC COMMENT ON THE MINING LIMITATION

       S&G argues that insertion of the mining limitation into the Master Program after public

hearings and the opportunity for public comment on the Draft Master Program had closed violated

the SMA, Master Program guidelines, and S&G’s due process rights. We hold that S&G fails to

show that the SMA, Master Program guidelines, and S&G’s due process rights were violated.

          A. PUBLIC COMMENT UNDER THE SMA AND MASTER PROGRAM GUIDELINES

1.     STANDARD OF REVIEW

       “Procedural errors, such as lack of proper notice, are questions of law reviewed de novo.”

Cent. Puget Sound Reg’l Transit Auth. v. Miller, 156 Wn.2d 403, 412, 128 P.3d 588 (2006). A




                                                  65
No. 47641-0-II


challenger of notice bears the burden of proof that the notice was defective. Cent. Puget Sound

Reg’l Transit Auth., 156 Wn.2d at 412-13.

2.     APPLICABLE LAW

       The SMA requires that the DOE and the County make reasonable efforts to inform and

offer involvement opportunities to “all persons and entities having an interest in” the Master

Program update. RCW 90.58.130. The Master Program guidelines state that in order to fulfill this

duty, the DOE and the County shall establish and engage in “early and continuous” public

participation procedures including “broad dissemination of informative materials, proposals and

alternatives, opportunity for written comments, public meetings after effective notice, provision

for open discussion, and consideration of and response to public comments.” WAC 173-26-090.

“Local governments may modify the timing of the various steps, integrate the process into other

planning activities, add steps to the process, or work jointly with other jurisdictions or regional

efforts, provided the provisions of this chapter are met.” WAC 173-26-201(3)(a).

3.     ANALYSIS

       S&G argues that the County “failed to provide any public participation whatsoever” on the

mining limitation in the Draft Master Program and thereby violated SMA provision RCW

90.58.130 and Master Program guideline WAC 173-26-090. Br. of Appellant (S&G) at 33.42 This

argument is unpersuasive.




42
   S&G alleges that the County inserted the mining limitation the day it adopted the Master
Program and neglected to notify the public of the mining limitation beforehand in any materials,
Draft Master Programs, or hearings. But S&G fails to support these assertions with any citation
to the factual record.

                                                66
No. 47641-0-II


       S&G had the opportunity to comment on the Master Program provision regarding mining

in the conservation area. The July 2009 draft of the Master Program contained a provision that

allowed mining in the conservation area. And that draft was open to public comment from August

19 to September 8. S&G had the opportunity to comment on whether mining should be allowed

in conservation areas. Master Program guidelines require the County to solicit public comment

and hold at least one public hearing on a Draft Master Program before it goes to the DOE. WAC

173-26-100(1). The County did so here. S&G does not point to anything in the record showing

that the Commissioners changed or intended to change their proposal on the mining provision in

the Draft Master Program before the public comment period. Apparently, it was only after

considering the public’s comments that the Commissioners found that mining should be prohibited

in conservation areas.43

       The SMA and Master Program guidelines do not require that the County provide

opportunity for public comment every time a part of a Draft Master Program is changed. In fact,

if this requirement existed, a local government would be faced with the choice of conducting an

indefinite string of hearings or never making changes in response to public comments.

       And here, S&G fails to establish that the County violated the SMA or the Master Program

guidelines when the Commissioners reviewed the comments submitted between August 19 and




43
   S&G also argues that the original version of the Master Program that went through an extensive,
multi-year public process did not include the mining limitation. And S&G argues that the original
Master Program without the mining limitation was recommended by the County’s planning
commission and staff. But besides citing to one Draft Master Program from 2009, S&G does not
support these assertions with any citation to the factual record. But even if we assume this assertion
is true, we hold that it does not establish that S&G was deprived of all opportunity to comment on
this provision.

                                                 67
No. 47641-0-II


September 8 and exercised their discretion to adjust the Master Program. We note that the Master

Program guidelines indicate that the County has some discretion during the Master Program

modification process because “[l]ocal governments may modify the timing of the various steps,

integrate the process into other planning activities, [and] add steps to the process.” WAC 173-26-

201(3)(a). Further, it seems apparent that S&G had to know that a proposal to allow mining in a

conservancy area would spark opposition and that the Commissioners could be persuaded by that

opposition.

       We hold that in compliance with WAC 173-26-090, S&G was notified that the issue of

whether to allow mining in the conservancy environment was before the Board. We further hold

that S&G had an opportunity to comment about that issue before the Commissioners made changes

to the Draft Master Plan. We reject S&G’s argument and hold that the County followed the SMA

and Master Program guidelines to ensure all persons had full opportunity to comment.

                                    B. DUE PROCESS RIGHTS

       S&G argues that its procedural due process rights to notice and “to subsequently participate

in the process” of adopting the mining limitation were also violated. Br. of Appellant (S&G) at

36. We reject this argument.

       “Procedural errors, such as lack of proper notice, are questions of law reviewed de novo.”

Cent. Puget Sound Reg’l Transit Auth., 156 Wn.2d at 412. The due process clause in the

Fourteenth Amendment of the United States Constitution provides that no State shall deprive any

person of life, liberty, or property without due process of law. U.S. CONST. amend. XIV, § 1.

       Due process includes the requirement that notice must apprise interested citizens of the

nature and purpose of the hearing so they can participate effectively. Responsible Urban Growth


                                               68
No. 47641-0-II


v. City of Kent, 123 Wn.2d 376, 386, 868 P.2d 861 (1994). “If notice fails to apprise parties of the

nature and purpose of proceedings the good intentions of officials in satisfying statutory

requirements are irrelevant.” Responsible Urban Growth, 123 Wn.2d at 386.

       In support of its argument, S&G cites to Harris v. County of Riverside, 904 F.2d 497, 503

(9th Cir. 1990).44 But Harris is distinguishable. Steven Harris bought a small piece of commercial

land intending to use the property for an all-terrain vehicle rental facility. Harris, 904 F.2d at 498.

The Riverside County Board of Supervisors published notice of a public hearing related on a

general plan amendment that would encompass over a hundred square miles. Harris, 904 F.2d at

499.   The enacted general plan redesignated Harris’s property from land accommodating

commercial uses to residential. Harris, 904 F.2d at 499. Harris did not receive notice of the

change prior to its enactment.      Harris, 904 F.2d at 499.       The Harris court held that the

redesignation deprived Harris of his land’s commercial use, specifically targeted his property for

a zoning change after notice had been published, and therefore deprived him of due process. 904

F.2d at 501-02, 504.

       But as discussed above, S&G had the opportunity to comment on mining in the

conservation areas when this provision was originally drafted. And absent any proof to the

contrary, given that the original provision spoke to whether mining would be allowed in

conservancy areas, S&G had notice this provision could be at issue. Thus, Harris, where no notice

was given, is factually distinguishable.




44
  The Board did not review this issue because it found that it had no jurisdiction to consider
constitutional issues.

                                                  69
No. 47641-0-II


       Harris is also distinguishable because Harris’s property was rezoned from commercial to

residential and the court found his property was specifically targeted. 904 F.2d at 501-02. Here,

S&G’s property was not specifically targeted. The Master Program is a general shoreline plan that

prohibits mining in all conservancy areas, not just on S&G’s conservancy shoreline property.

       Finally, although S&G argues that the mining limitation prevented S&G from utilizing

marine transport of its aggregate, this is an exaggeration. Marine transport of aggregate is

prohibited only in conservation areas, but is allowed in high-intensity areas. JCC 18.25.480(3)(f).

       We affirm the Board’s decision to uphold the Master Program provision prohibiting mining

in conservancy-designated areas.

                                              CONCLUSION

       The parties’ challenges to the Board’s decision, as addressed above, fail. Finding no error

in the Board’s decision, we affirm.

       A majority of the panel having determined that only the foregoing portion of this opinion will

be printed in the Washington Appellate Reports and that the remainder shall be filed for public record

in accordance with RCW 2.06.040, it is so ordered.

                                      FURTHER DISCUSSION

                                   PART ONE - OSF APPEAL

       In response to OSF’s remaining arguments, we hold that the Board correctly upheld the

natural shoreline designation and that OSF’s constitutional challenge fails. We do not consider

issues related to the Board’s dismissal of some of OSF’s arguments. And we deny OSF’s request

for appellate fees.




                                                 70
No. 47641-0-II


                              I. NATURAL SHORELINE DESIGNATION

       OSF briefly argues that the Board erred when it did not review or reverse the part of the

Master Program that designated 41 percent of shorelines as “‘[n]atural [s]horelines’” without

authorization from the SMA or guidelines and without considering the actual conditions of the

County. Br. of Appellant (OSF) at 39. We reject this argument.

                                       A. APPLICABLE LAW

       The Master Program guidelines govern environmental designations and set out the

following requirements for such designations in Master Programs:

       Master programs shall contain a system to classify shoreline areas into specific
       environment designations. This classification system shall be based on the existing
       use pattern, the biological and physical character of the shoreline, and the goals and
       aspirations of the community as expressed through comprehensive plans as well as
       the criteria in this section.

WAC 173-26-211(2)(a). The Master Program guidelines further require that environmental

designations be consistent with the SMA, Master Program guidelines, and Master Programs.

WAC 173-26-211(3). A shoreline area is designated as natural in order to “protect those shoreline

areas that are relatively free of human influence or that include intact or minimally degraded

shoreline functions intolerant of human use.” WAC 173-26-211(5)(a)(i).

                                       B. BOARD DECISION

       The Board found that OSF failed to provide legal argument demonstrating how the County

violated criteria for designating areas of land in the SMA or Master Program guidelines or how

the Master Program “‘over-designated’ natural areas.” AR at 7503. The Board further found that

the Master Program meets SMA guideline requirements, though it did not specify why it found so.




                                                71
No. 47641-0-II


                                         C. ANALYSIS

       To support its argument that the Board should have reversed this “over-designation,” OSF

cites to Master Program guidelines WAC 173-26-211(2)(a) and (3) in a footnote.45 But OSF does

not offer any legal analysis as to why the Master Program’s natural designation violated these

provisions. OSF further argues that neither the Board nor respondents addressed the criteria for

reclassifying rural residential-zoned properties as “natural shorelines” in violation of Master

Program guidelines WAC 173-26-211(2)(a), (5)(a)(i) through (iii). But OSF fails to provide a

record cite demonstrating that the areas the Master Program designated natural were previously

rural residential areas, explain the significance of that change, or analyze how these Master

Program guidelines show that the natural designation is improper.

       Even so, the record supports the natural designation. Based on the SI, the County

designated the county shorelines as natural if they had “minimal shoreline modification,” “other

high quality/pristine habitat characteristics,” or “were important feeder bluffs or otherwise

unsuitable for development.” AR at 3686. This action comports with the Master Program

guidelines for designating natural shorelines.     WAC 173-26-211(5)(a)(i).      The shoreline

environmental designations were produced for public comment and were developed with extensive

input from the Shoreline Technical Advisory Committee and Shoreline Policy Advisory

Committee after review of the aerial photography of the marine shoreline. And the Master




45
  OSF provides no analysis explaining how the Board made a procedural error by its “refusal to
review” the natural shoreline environmental designation. Br. of Appellant (OSF) at 40. We are
not required to consider claims unsupported by legal authority or argument. RAP 10.3(a)(6);
Cowiche Canyon, 118 Wn.2d at 809. Thus, we need not consider whether the Board made such a
procedural error.

                                              72
No. 47641-0-II


Program also allowed for residential development in the natural areas where the prior Master

Program prohibited it. We hold that OSF’s argument that the natural shoreline designation

constituted error fails.

                           II. DOCTRINE OF UNCONSTITUTIONAL CONDITIONS

          OSF argues that the Board erred when it upheld the Master Program provisions that use

the permit process to compel shoreline property owners to (1) set aside tracts of property for

generic buffers and (2) dedicate public access easements because these provisions violate the

doctrine of unconstitutional conditions. OSF states that its argument is a facial challenge that these

Master Program provisions cannot meet the nexus and proportionality standards set forth in Nollan

v. California Coastal Commission, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987), Dolan

v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994), and Koontz v. St. Johns

River Water Management District, ___ U.S. ___, 133 S. Ct. 2586, 2594, 186 L. Ed. 2d 697

(2013).46

          OSF further argues that case law establishes that the Master Program buffer provision

qualifies as an exaction subject to Nollan and Dolan because the Master Program buffer provision

requires property owners to surrender a valuable real property interest. OSF argues that the fact

that the Master Program buffer provision allows for minor variances does not remedy the fact that

the Master Program does not meet nexus and proportionality tests. Finally, OSF argues that the

public trust doctrine does not vest ownership of private land to the public such that the Master

Program public access provisions are not in violation of the doctrine of unconstitutional conditions.




46
     OSF confirms in its reply brief that it does not raise an as-applied challenge.

                                                   73
No. 47641-0-II


We do not reach all of the arguments, but rather hold that OSF fails to establish that the

Nollan/Dolan tests can be applied to a facial taking claim.

                                       A. BOARD DECISION

       The Board concluded that it had no jurisdiction to consider constitutional issues.

                                       B. APPLICABLE LAW

       Under the “‘unconstitutional conditions’” doctrine, the government may not require a

person to give up a constitutional right in exchange for a discretionary benefit. Dolan, 512 U.S.

at 386. A plaintiff alleging a violation of the “unconstitutional conditions” doctrine, however,

must first establish that a constitutional right is being infringed upon. Guimont, 121 Wn.2d at 595.

Administrative regulations are presumed to be constitutional. Bang D. Nguyen v. Dep’t of Health,

Med. Quality Assur. Comm’n, 144 Wn.2d 516, 536, 29 P.3d 689 (2001). Thus, the party

challenging a statute’s or regulation’s constitutionality bears the burden of proving its

unconstitutionality beyond a reasonable doubt. Madison, 161 Wn.2d at 92.

       Nollan, Dolan, and Koontz all involve a special application of the “unconstitutional

conditions” doctrine protecting federal Fifth Amendment rights to just compensation for property

the government takes when owners apply for land-use permits. Koontz, 133 S. Ct. at 2594. Nollan

and Dolan stand for the proposition that the government may not condition approval of a land-use

permit on the owner’s relinquishment of a portion of his property unless there is a nexus and rough

proportionality between the government’s demand and the effects of the proposed land use.

Koontz, 133 S. Ct. at 2591. In City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S.

687, 702-03, 119 S. Ct. 1624, 143 L. Ed. 2d 882 (1999), the Supreme Court made clear the limited

scope of the Nollan/Dolan test:


                                                74
No. 47641-0-II


       [W]e have not extended the rough-proportionality test of Dolan beyond the special
       context of exactions—land-use decisions conditioning approval of development on
       the dedication of property to public use. See Dolan, [512 U.S.] at 385; [Nollan, 483
       U.S. at 841].

Later, in Koontz, 133 S. Ct. at 2599, the Court extended the Nollan/Dolan test to certain “monetary

exactions.”

       The nexus test permits only those conditions necessary to mitigate a specific adverse

impact of a proposal. Nollan, 483 U.S. at 837. The rough proportionality test limits the extent of

required mitigation measures to those that are roughly proportional to the impact they are designed

to mitigate. Dolan, 512 U.S. at 391.

                                 C. OSF’S FACIAL CHALLENGE

1.     CHALLENGED MASTER PROGRAM PROVISIONS

       Here, the Master Program imposed a standard 150-foot buffer for all freshwater and marine

water shorelines. JCC 18.25.270(4)(e).47 For residential development, the Master Program states

that property owners are “encouraged, but not required, to provide public access to the shoreline.”

JCC 18.25.500(1)(i). “New multi-unit residential development, including subdivision of land into

more than four parcels, is strongly encouraged to provide public access/open space area equal to

at least 30 percent of the total development/subdivision area for use by development residents and

the public.” JCC 18.25.500(1)(i). The Master Program further states that “[n]ew or amended

subdivisions, except those for lot line adjustment and lot consolidation purposes” shall provide




47
  OSF also cites to the county CAO to show that the Master Program requires that “as a mandatory
condition on all new permit approvals” a buffer must be designated by legally binding document
or easement and to show that the buffer areas must be retained in their natural condition. Br. of
Appellant (OSF) at 45. See JCC 18.22.270, (5)(a); JCC 18.25.100(3)(t).

                                                75
No. 47641-0-II


public access in accordance with the general public access provision of the Master Program, JCC

18.25.290. JCC 18.25.500(4)(g). The Master Program states, “Industrial and port uses located in

shoreline jurisdiction should provide public access,” also in accordance with the general public

access provision of the Master Program, JCC 18.25.290. JCC 18.25.470(1)(d). And the Master

Program states approval for applications to build beach access structures and for new docks or

boating facilities should include public access provisions. See JCC 18.25.340(1)(i), .350(1)(f).

2.     FAILURE TO MAKE THRESHOLD FACIAL CHALLENGE SHOWING

       OSF presents a facial challenge to these Master Program provisions.48 In contrast, the

cases OSF relies on all present an as-applied challenge. Nollan, Dolan, and Koontz all present as-

applied constitutional taking challenges to land-use permit processes. See Nollan, 483 U.S. at 831-

32; Dolan, 512 U.S. at 391; Koontz, 133 S. Ct. at 2602.

       To make out a “facial” takings claim, “the landowner must show that the mere enactment

of the regulation constitutes a taking.” Guimont, 121 Wn.2d at 605 (citing Keystone Bituminous

Coal Ass’n v. DeBenedictis, 480 U.S. 470, 493, 107 S. Ct. 1232, 94 L. Ed. 2d 472 (1987)). Our

Supreme Court further elucidated this rule by stating,

       The test for a facial challenge is a high one, in part because the landowner has not
       presented any evidence about the particular impact of the regulation on his or her
       parcel of land. Thus, to succeed in proving that a statute on its face effects a taking
       by regulating the uses that can be made of property, the landowner must show that


48
   OSF cites to Master Program provision JCC 18.25.290(2)(l) for the proposition that “[t]he
[Master Program] requires that landowners dedicate a public access easement across their land as
a mandatory condition on certain development applications.” Br. of Appellant (OSF) at 47. But
this Master Program provision does not state that. The provision offers the general direction that
“[p]ublic access easements and permit conditions shall be recorded on the deed of title and/or the
face of a short or long plat as a condition running, at a minimum, for a period contemporaneous
with the duration of the authorized land use. Recordation shall occur at the time of final plat
approval or prior to final occupancy.” JCC 18.25.290(2)(l).

                                                 76
No. 47641-0-II


       the mere enactment of the statute denies the owner of all economically viable use
       of the property.

Guimont, 121 Wn.2d at 605.

       OSF does not make this threshold showing. The nature of the Nollan/Dolan test is fact

specific. The nexus test permits only those conditions necessary to mitigate a specific adverse

impact of a proposal, Nollan, 483 U.S. at 837, while the rough proportionality test limits the extent

of the mitigation measures to those that are roughly proportional to the impact they are designed

to mitigate. Dolan, 512 U.S. at 391. Given these limitations, it will be an unusual instance, at

best, when the “mere enactment” of a restriction could be said to violate these standards of nexus

and proportionality. See Guimont, 121 Wn.2d at 605. OSF has not shown that the mere enactment

of the challenged Master Program provisions fails under either the nexus or proportionality

standards. Therefore, OSF’s facial challenge under Nollan and Dolan also fails.

       OSF further argues that Washington courts have “long-recognized the viability of a facial

takings claim brought under Nollan and Dolan,” citing to three cases. Reply Br. of Appellant

(OSF) at 21. All three cases are distinguishable. The first two cases, Margola Associates v. City

of Seattle, 121 Wn.2d 625, 854 P.2d 23 (1993), and Orion Corp. v. State, 109 Wn.2d 621, 653-57,




                                                 77
No. 47641-0-II


747 P.2d 1062 (1987), do not apply the Nollan/Dolan nexus and proportionality tests to facial

constitutional claims.49

       The third case, from this court, KAPO, 160 Wn. App. at 270, considered whether a marine

shoreline buffer requirement imposed under the GMA violated an impact fee statute, RCW

82.02.020. The KAPO court did not analyze whether the petitioners met the threshold showing for

a facial constitutional takings challenge or even clarify that petitioners raised such a challenge.

Rather, the KAPO court opined that the impact fee statute does not preclude a dedication of land

or an easement within a proposed development if the local government can demonstrate that such

dedication or easement is “‘reasonably necessary as a direct result of the proposed development or

plat to which the dedication of land or easement is to apply.’” 160 Wn. App. at 271 (quoting RCW

82.02.020). The KAPO court then applied the nexus and proportionality tests to determine if the

ordinance violated RCW 82.02.020. 160 Wn. App. at 272-74. KAPO does not support the validity

of OSF’s facial challenge based on Nollan and Dolan.

       OSF has not shown how the mere enactment of the challenged Master Program provisions

has taken its property under the Nollan/Dolan test.         Therefore, OSF’s constitutional facial

challenge fails.




49
  Margola merely cites to Nollan for the proposition that the government must pay compensation
for physically occupying or authorizing a third party to occupy private property. 121 Wn.2d at
647. Margola does not apply the Nollan/Dolan test, but rather engages in the facial-challenge
threshold showing that OSF failed to engage in: Margola analyzes whether a plaintiff class met
the threshold facial challenge of whether the municipal ordinances at issue lead to a physical
invasion of property by the government. 121 Wn.2d at 647. Orion dealt with an as-applied
challenge, not a facial challenge. The Orion court also stated that for a constitutional taking facial
challenge, the property owner must show that “the challenged regulation denied all economically
viable use of his or her property.” 109 Wn.2d at 656.

                                                 78
No. 47641-0-II


                       III. BOARD DISMISSAL OF ABANDONED ARGUMENTS

       OSF argues that the Board committed legal or procedural error when it refused to consider

several of OSF’s arguments, but concedes that any error was harmless. The DOE argues that

because OSF fails to identify the issues it alleges were improperly dismissed by the Board and

admits that any error was harmless, we should reject OSF’s arguments of error. RAP 10.3(a)(6).

We agree with the DOE.

       OSF asserts that the Board committed “a legal or procedural error” because the Board

refused to consider several of OSF’s arguments below. Br. of Appellant (OSF) at 48. But OSF

fails to specify what that error is, fails to identify what arguments the Board supposedly failed to

consider, and concedes that the error “appears harmless.” Br. of Appellant (OSF) at 48. “Passing

treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration.”

Holland, 90 Wn. App. at 538; RAP 10.3(a)(6). We hold that OSF gave only passing, unsupported

treatment to this issue and do not consider it.

                                        IV. ATTORNEY FEES

       OSF argues that if it prevails, it should be entitled to attorney fees and costs under

Washington’s “Equal Access to Justice Act,” RCW 4.84.350, and RAP 18.1.

       “Where a statute authorizes fees to the prevailing party, they are available on appeal as

well as in the trial court.” Eagle Point Condo. Owners Ass’n v. Coy, 102 Wn. App. 697, 716, 9

P.3d 898 (2000). RCW 4.84.350(1) governs awards of fees and expenses following judicial review

of agency action and states that

       [e]xcept as otherwise specifically provided by statute, a court shall award a
       qualified party that prevails in a judicial review of an agency action fees and other
       expenses, including reasonable attorneys’ fees, unless the court finds that the
       agency action was substantially justified or that circumstances make an award

                                                  79
No. 47641-0-II


        unjust. A qualified party shall be considered to have prevailed if the qualified party
        obtained relief on a significant issue that achieves some benefit that the qualified
        party sought.

        We decline to award OSF attorney fees because OSF is not the prevailing party. In

conclusion, we reject OSF’s arguments that the Board erred.

                                    PART TWO – CAPR APPEAL

        In response to CAPR’s remaining arguments, we hold that (1) the Master Program

adequately considered economic impacts and (2) the Board did not deny due process to CAPR.

                                I. CONSIDERATION OF ECONOMIC IMPACTS

                    A. SMA AND MASTER PROGRAM GUIDELINE REQUIREMENTS

        CAPR argues that because the County did not include analysis in the Master Program of

how it would affect economic issues, the Board erred when it found the Master Program conformed

to the SMA and Master Program guidelines. CAPR also argues that the adoption of the Master

Program violated ch. 43.21H RCW, the “State Economic Policy Act” (SECPA). We disagree.

1.      APPLICABLE LAW

        The SMA provides the Master Program requirements for incorporating social science:

“[i]n preparing the master programs, and any amendments thereto, the [DOE] and local

governments shall to the extent feasible: (a) [u]tilize a systematic interdisciplinary approach

which will insure the integrated use of the natural and social sciences and the environmental design

arts.” RCW 90.58.100(1) (emphasis added). The SMA further clarifies that local governments

shall also “to the extent feasible . . . (e) [u]tilize all available information regarding . . . economics.”

RCW 90.58.100(1) (emphasis added). The DOE and local governments shall also, to the extent




                                                    80
No. 47641-0-II


feasible, “[c]onduct or support such further research, studies, surveys and interviews as are

deemed necessary.” RCW 90.58.100(1)(d) (emphasis added).

       The scientific requirements for a Master Program are also reiterated in the Master Program

guidelines that state local jurisdictions are to “identify and assemble the most current, accurate,

and complete scientific and technical information available that is applicable to the issues of

concern” and to base Master Program provisions on an analysis incorporating such information.

WAC 173-26-201(2)(a) (emphasis added). The SMA also speaks to development priorities, noting

that single-family residences are the most common form of shoreline development and are a

priority use when developed in a manner consistent with control of pollution and prevention of

damage to the natural environment. RCW 90.58.030(3)(e)(vi); see also WAC 173-27-040(2)(g);

WAC 173-26-241(3)(j). And the SMA encourages that Master Programs speak to economic

development through other types of uses:

       The master programs shall include, when appropriate, the following:
                (a) An economic development element for the location and design of
       industries, projects of statewide significance, transportation facilities, port
       facilities, tourist facilities, commerce and other developments that are particularly
       dependent on their location on or use of the shorelines of the state.

RCW 90.58.100(2) (emphasis added).

2.     BOARD DECISION

       The Board concluded that the County factored regulatory compliance into its goals and

regulations through consideration of economic “feasibility” required by RCW 90.58.020 and that

CAPR failed to meet its burden to show the Master Program failed for lack of support from social

sciences. The Board further concluded that neither the SMA in RCW 90.58.100(1) nor the Master




                                                81
No. 47641-0-II


Program guidelines in WAC 173-26-201(2)(a) required the type of economic analysis suggested

by CAPR.

3.     ANALYSIS

       CAPR argues that the Board erred because the Master Program violated the SMA and

Master Program guidelines cited above. CAPR rests this argument on its claim that the Master

Program did not include an economic analysis about how the Master Program would affect

residential property values, property insurance rates, opportunities for financing and refinancing,

costs of regulatory compliance, property tax collections, and tax burden distributions across the

County.50 But as the Board concluded, neither the SMA nor the Master Program guidelines

required this type of economic analysis. See RCW 90.58.100(1)(a), (d), (e), (2)(a), .030(3)(e)(vi);

WAC 173-26-201(2)(a).

       The SMA requires local governments, to the extent feasible, to incorporate social sciences

into the Master Program, to utilize available information regarding economics, and to conduct or

support further research as is deemed necessary. RCW 90.58.100(1)(a), (d), (e). CAPR bears the

burden of establishing the invalidity of the Master Program. Quadrant Corp., 154 Wn.2d at 233.

But CAPR provides no support for its proposition that it was feasible for the County to incorporate

into the CIA additional, available economic information that was needed to analyze the economic

effects of the Master Program. Nor does CAPR demonstrate that the County should have

conducted any further economic research.




50
  CAPR cites to Armstrong v. United States, 364 U.S. 40, 49, 80 S. Ct. 1563, 4 L. Ed. 2d 1554
(1960). But Armstrong considered a Fifth Amendment takings claim that is a claim that CAPR
does not assert. See 364 U.S. at 49.

                                                82
No. 47641-0-II


        Further, the record supports the Board’s conclusion that the County solicited, considered,

and incorporated the economic feasibility of regulatory compliance into the Master Program.

During the 2008 to 2009 comment period, the County received public comment, including that

submitted by CAPR, inquiring about the economic impact of the Master Program. The CIA

reported public requests for analysis of the economic impacts of the Draft Master Program, but

noted it did not contain such an assessment because none is required at the local level. The CIA

further noted that there was no evidence of decreased waterfront property values over the past 40

years under SMA regulation.

        The CIA also contained recommendations that developments that have unanticipated or

uncommon impacts, which cannot be reasonably identified during the drafting of the Master

Program, should be evaluated via the shoreline substantial development and conditional use permit

process. This process would ensure that all impacts are addressed and that there is no net loss of

ecological function after mitigation.

        The Master Program included numerous provisions in which application of shoreline

regulations and restrictions are conditioned on the feasibility of such restrictions.51 The Master

Program states that whether an action, including a development project, mitigation, or preservation

requirement is infeasible depends on weighing relative public costs and public benefits. JCC




51
   See JCC 18.25.180(2)(c), .210(3)(a)(i), .290(1)(j), (2)(d), (e), (j), .310(2)(c), .340(1)(f), (4)(f),
.350(1)(h), (6)(j)(i), (ii), (7)(c)(ii), .380(1)(d), (f)(ii), .410(1)(c), (l), (m), .450(6)(c)(ii), .470(1)(g),
(5)(c)(ii), (6)(a)(i), .480(1)(d)(iii), .490(1)(d), (3)(c), .500(4)(e), (f)(ii), (h), .520(1)(a), (j), (3)(d),
(e), (f), .530(1)(a)(ii), (c), (g), (2)(d), (e), (f), (3)(a), (b), (d)(viii), (ix), (5)(c), (8)(a), (b).

                                                      83
No. 47641-0-II


18.25.100(6)(b). More importantly, the definition of feasible alternatives includes ones that can

be accomplished at reasonable cost. JCC 18.25.100(6)(c)(i)(D).52

       The record shows that the County utilized economic information. The CIA acknowledged

citizens’ requests about the economic impacts of the Draft Master Program. And the CIA noted

that there is no evidence of decreased waterfront property values over the past 40 years under SMA

regulation. The Master Program’s bibliography further evidences the County’s reliance on sources

that address economics.53 CAPR fails to explain why the incorporation of economics into the

Master Program and the County’s evidence that the Board deemed sufficient under the SMA and

Master Program guidelines are not sufficient. We hold that the Board did not err by concluding

that the SMA and Master Program guidelines did not require the economic analysis advocated for

by CAPR.




52
  CAPR argues that the Master Program feasibility provisions lack economic analysis, inure
against property owners, and fail to meet the requirements of RCW 90.58.100(1)(a). But CAPR
does not explain or establish how these alleged deficiencies violate either the SMA or the Master
Program guidelines. “Passing treatment of an issue or lack of reasoned argument is insufficient to
merit judicial consideration.” Holland, 90 Wn. App. at 538; see also RAP 10.3(a)(6).
        We do not consider claims unsupported by legal authority. RAP 10.3(a)(6); Cowiche
Canyon, 118 Wn.2d at 809.
53
   CAPR cites to the 612 entries in the Master Program’s bibliography to contend that there is no
mention of the economic impacts of the Master Program. The bibliography lists only titles of
articles, web sites, or other resources. Based on titles alone, it is impossible to discern what of
these resources the County relied on to create the Master Program. But just based on titles alone,
some of the resources appear to address some of the economic issues CAPR raises here. AR at
2393 (e.g., “Efficacy and Economics of Riparian Buffers on Agricultural Lands”); AR at 2394
(e.g., “Sound Science: Synthesizing ecological and socioeconomic information about the Puget
Sound ecosystem”); AR at 2400 (“Critical Areas Assistance Handbook: Protecting Critical Areas
Within the Framework of the Washington Growth Management Act, Washington State
Department of Community, Trade and Economic Development”).

                                                84
No. 47641-0-II


                               B. STATE ECONOMIC POLICY ACT

       CAPR argues that the adoption of the Master Program violated SECPA. We disagree.

1.     APPLICABLE LAW

       The SECPA ensures “that economic values are given appropriate consideration along with

environmental, social, health, and safety considerations in the promulgation of rules by state and

local government.” RCW 43.21H.010. The SECPA’s legislative responsibility provision states,

       All state agencies and local government entities with rule-making authority under
       state law or local ordinance must adopt methods and procedures which will insure
       that economic impacts and values will be given appropriate consideration in the
       rule-making process along with environmental, social, health, and safety
       considerations.

RCW 43.21H.020.

2.     BOARD DECISION

       The Board did not address this issue.

3.     ANALYSIS

       CAPR cites to the SECPA’s purpose provision and legislative responsibility section above

and argues that the County had no proper procedures in place to comply with these provisions.

CAPR further asserts that the County should have anticipated, quantified, and considered the

economic effects of the “stigma” associated with nonconforming uses and structures resulting from

the Master Program and that the DOE should have ensured that the County took these steps prior

to approving the Master Program.

       These arguments are unpersuasive because the SECPA provisions do not delineate such

requirements. See RCW 43.21H.010, .020. And CAPR does not cite to any other portion of the

SECPA, other legal authority, or the record to support this argument. We do not consider claims


                                               85
No. 47641-0-II


unsupported by legal authority or the record. RAP 10.3(a)(6); Cowiche Canyon, 118 Wn.2d at

809.

       Further, as analyzed above, the record demonstrates that the County considered economic

information. CAPR fails to explain why the incorporation of economics into the Master Program,

the County’s evidence, and the County and the DOE’s processes do not fulfill SECPA’s mandates.

We hold that the Master Program update did not violate SECPA as argued by CAPR.

                                    II. NEUTRAL TRIBUNAL

       CAPR argues a violation of their due process right to a neutral tribunal (1) because the

Board’s standard of review for a Master Program involves a presumption of validity and (2)

because the Board is not an impartial or detached judicial body. From this, CAPR contends it was

denied proper adjudication. We disagree.

                                    A. PRINCIPLES OF LAW

       Constitutional issues are questions of law that we review de novo. Ass’n of Wash. Spirits,

182 Wn.2d at 350. Challenges to a Master Program are governed by the SMA and are adjudicated

by the Board. RCW 90.58.190(2)(a). The Board reviews Master Programs for compliance with

the SMA and the Master Program guidelines. RCW 90.58.190(2), .200, .060; WAC 173-26-171

to -251; RCW 36.70A.280.

       Where a provision regulating SSWS is challenged, “the board shall uphold the decision by

the [DOE] unless the board, by clear and convincing evidence, determines that the decision of the

[DOE] is noncompliant with the policy of RCW 90.58.020 or the applicable guidelines, or chapter

43.21C RCW as it relates to the adoption of master programs.” RCW 90.58.190(2)(c). And where

a challenge is to provisions regulating shorelines, the Board shall review the proposed Master


                                               86
No. 47641-0-II


Program “solely for compliance with the requirements,” the applicable guidelines, and other

internal consistency provisions.      RCW 90.58.190(2)(b) (emphasis added).         With respect to

provisions affecting only shorelines, a petitioner must establish that the provisions at issue are

“clearly erroneous” in view of the entire record before the Board. RCW 36.70A.320(3).

          The Board was established under the GMA, which states that the “legislature intends that

the board applies a more deferential standard of review to actions of counties and cities than the

preponderance of the evidence standard provided for under existing law.” RCW 36.70A.3201.

The GMA further clarifies the reasoning behind the deference given to Board decisions:

          Local comprehensive plans and development regulations require counties and cities
          to balance priorities and options for action in full consideration of local
          circumstances. The legislature finds that while this chapter requires local planning
          to take place within a framework of state goals and requirements, the ultimate
          burden and responsibility for planning, harmonizing the planning goals of this
          chapter, and implementing a county’s or city’s future rests with that community.

RCW 36.70A.3201.

                             B. APPLICATION OF THE LAW TO THE FACTS

          CAPR argues that the Board’s standards of review under the SMA, RCW 90.58.190, and

the GMA, RCW 36.70A.320, deny challengers of Master Programs their due process rights to a

neutral tribunal.54 In support of its argument, CAPR relies on Concrete Pipe & Products of

California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602,

113 S. Ct. 2264, 124 L. Ed. 2d 539 (1993), Ward v. Village of Monroeville, Ohio, 409 U.S. 57, 93

S. Ct. 80, 34 L. Ed. 2d 267 (1972), and Marshall v. Jerrico, Inc., 446 U.S. 238, 100 S. Ct. 1610,

64 L. Ed. 2d 182 (1980). CAPR’s reliance on these cases is unpersuasive.



54
     The Board did not review this issue.

                                                  87
No. 47641-0-II


       First, in Guimont v. City of Seattle, 77 Wn. App. 74, 86 n.10, 896 P.2d 70, review denied,

127 Wn.2d 1023 (1995), Division One of this court held that Concrete Pipe’s rationale applies to

only federal economic legislation. CAPR argues that Guimont’s holding is a “crabbed reading that

this Court needs to revisit.” Br. of Appellant (CAPR) at 47 n.21. But it is difficult to discern how

CAPR would apply Concrete Pipe here.

       CAPR fails to analyze how or why we should apply Concrete Pipe when that opinion

specifically analyzed the due process implications within the context of a complex federal

employer pension plan statute. We are not persuaded to deviate from Guimont and thus do not

apply Concrete Pipe here.

       Second, Ward does not support CAPR’s argument. In Ward, the “mayor’s court” convicted

a defendant of two traffic offenses in the Village of Monroeville. 409 U.S. at 57-58. There, the

Supreme Court held that the defendant was denied a trial before a disinterested and impartial

judicial officer as guaranteed by the due process clause as a result of the mayor’s financial interest

and role in collection activities. Ward, 409 U.S. at 58. Here, besides noting that the Board is not

an elected body, CAPR offers no analysis or record support to show a conflict of interest exists

between the Board and its reviewing capacity that is similar to that between the mayor and his

duties in Ward.

       Third, Marshall does not support CAPR’s argument either. The Supreme Court held that

the civil penalty provisions of the Fair Labor Standards Act, 29 U.S.C. § 216(e), did not violate

the due process clause by creating an impermissible risk of bias in the enforcement and

administration of the Fair Labor Standards Act. Marshall, 446 U.S. at 241-42. The Marshall

Court acknowledged the due process requirement of neutrality of officials performing judicial or


                                                 88
No. 47641-0-II


quasi-judicial functions. 446 U.S. at 242. And the Marshall Court stated that under the Fair Labor

Standards Act, the administrative law judge is required to conduct a de novo review of all factual

and legal issues. 446 U.S. at 245.

       Here, the sum of CAPR’s argument and analysis is that the Board “is not impartial or

detached, and its review is not de novo.” Br. of Appellant (CAPR) at 48. Without cite to the

record or legal analysis, we cannot evaluate the potential of bias here as the Supreme Court did in

Marshall. The GMA states that the legislature intended for the Board to grant local government

and agency regulations like the Master Program deference given the required consideration of local

circumstances. RCW 36.70A.3201. CAPR fails to demonstrate bias by the Board here. We hold

that CAPR has not shown that the Board’s standard of review is improper nor that the Board’s

review violated CAPR’s due process rights.

                                      III. ATTORNEY FEES

       CAPR argues that if it prevails, it should be entitled to attorney fees and costs under

Washington’s Equal Access to Justice Act, RCW 4.84.350. Because CAPR does not prevail on

appeal, we decline to award CAPR attorney fees.

       In conclusion, we reject CAPR’s arguments that the Board erred.

                                PART THREE – S&G APPEAL

                                     I. ISSUE PRESERVATION

       S&G also argues that (1) based in part on the findings in the 2004 Overlay, the Board erred

when it found S&G’s mining operation was not a water-dependent use that the SMA requires be

prioritized and (2) the Master Program conflicts with the “Aquatic Lands Act,” ch. 79.105 RCW,

and the “Surface Mining Act,” ch. 78.44 RCW. The DOE and the County argue that we should


                                                89
No. 47641-0-II


not consider these challenges because they were not raised to the Board.55 We hold that S&G’s

arguments related to the Overlay findings are preserved such that they may raise them here, but

that S&G’s argument regarding the Aquatic Lands Act and the Surface Mining Act cannot be

raised here for the reasons below.56

                                       A. APPLICABLE LAW

       Issues not raised before the agency may not be raised on appeal unless the party seeking to

raise a new issue shows an exception to this rule applies. RCW 34.05.554(1). Where no authorities

are cited in support of a proposition, we are not required to search out authorities, but may assume

that a diligent search has produced none. Frank Coluccio Constr. Co. v. King County, 136 Wn.

App. 751, 779, 150 P.3d 1147 (2007) (quoting DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d

122, 126, 372 P.2d 193 (1962)).

                                           B. ANALYSIS

       First, contrary to the County’s assertion, S&G does not argue on appeal that the Master

Program is invalid because it is inconsistent with the Overlay. Rather, using the Overlay findings




55
  The County also argues that S&G may not have standing and that S&G’s challenge may be
moot. But the County does not provide legal authority related to standing or mootness. We do
not consider claims unsupported by legal authority or argument. RAP 10.3(a)(6); Cowiche
Canyon, 118 Wn.2d at 809. Thus, we do not consider the County’s standing and mootness claims.
56
   The DOE and the County also argue that because the Board found S&G abandoned the issue of
whether the Master Program was inconsistent with the SMA and GMA, that issue is not properly
before this court. The County relies on RCW 34.05.554 and Concerned Coupeville Citizens v.
Town of Coupeville, 62 Wn. App. 408, 412-13, 814 P.2d 243 (1991). RCW 34.05.554 states that
issues not raised before the agency may not be raised on appeal. Arguably S&G raised the issue
of the Master Program’s consistency with the SMA and the GMA before the Board. Because the
County does not demonstrate that an issue held abandoned by the Board effectively also means it
was not raised to the Board under RCW 34.05.554, we address the issue.

                                                90
No. 47641-0-II


as supporting evidence for the first time on appeal, S&G argues, as it argued below to the Board,

that the Master Program violates the SMA and the Washington Constitution because it prohibits a

water-dependent use. The County provides no authority for the proposition that S&G cannot cite

to evidence like the Overlay findings for the first time on appeal in support of an issue it raised to

the Board. Where no authorities are cited in support of a proposition, we are not required to search

out authorities. Frank Coluccio Constr. Co., 136 Wn. App. at 779. Thus, we hold that S&G’s

arguments that incorporate reference to the Overlay findings are preserved on appeal.

       Second, S&G did not raise to the Board the issue that the Master Program was inconsistent

with the Aquatic Lands Act. Issues not raised before the agency may not be raised on appeal

unless an exception applies. RCW 34.05.554(1). And S&G does not argue any exception applies

allowing it to raise the issue now. We hold that S&G cannot raise the Aquatic Lands Act on appeal,

and therefore we do not address its related argument.

       Third, in a one-sentence argument to the Board, S&G raised the issue of the Master

Program’s inconsistency with the Surface Mining Act. And here, in support of its argument that

the Master Program conflicts with the Surface Mining Act, S&G merely quotes provisions of the

Surface Mining Act and makes no argument in support of this assertion. “Passing treatment of an

issue or lack of reasoned argument is insufficient to merit judicial consideration.” Holland, 90

Wn. App. at 538; RAP 10.3(a)(6). Thus, we hold that S&G’s argument related to the Surface

Mining Act does not merit judicial consideration, and we do not consider that argument.

                          II. S&G’S OPERATIONS ARE WATER RELATED

       S&G argues that the Board erroneously interpreted or applied the relevant law, Preserve

Our Islands v. Shorelines Hearings Board, 133 Wn. App. 503, 137 P.3d 31 (2006), to find S&G’s


                                                 91
No. 47641-0-II


operations were water related rather than water dependent. We disagree. Even assuming the

distinction between water related and water dependent is relevant,57 S&G’s argument still fails.

                        A. STANDARD OF REVIEW AND APPLICABLE LAW

       We may grant relief from the Board’s decision if it has erroneously interpreted or applied

the law. City of Redmond, 136 Wn.2d at 46. We give weight and deference to the Board’s

interpretation of statutes and regulations it enforces, but ultimately our review is de novo.

Quadrant Corp., 154 Wn.2d at 233.

       Under Master Program guidelines, “‘[w]ater-dependent use’” means “a use or portion of a

use which cannot exist in a location that is not adjacent to the water and which is dependent on the

water by reason of the intrinsic nature of its operations.” WAC 173-26-020(39). “‘Water-related

use’” means

       a use or portion of a use which is not intrinsically dependent on a waterfront
       location but whose economic viability is dependent upon a waterfront location
       because:
               (a) The use has a functional requirement for a waterfront location such as
       the arrival or shipment of materials by water or the need for large quantities of
       water; or
               (b) The use provides a necessary service supportive of the water-dependent
       uses and the proximity of the use to its customers makes its services less expensive
       and/or more convenient.

WAC 173-26-020(43).




57
  The Coalition argues that because the County was not obligated under the SMA or Master
Program guidelines to allow mining or mining-related marine activity on all shoreline
environments—whether or not water dependent—whether S&G’s mining operation is water
dependent or water related is largely irrelevant.

                                                92
No. 47641-0-II


                                        B. BOARD DECISION

       The Board found that “[S&G’s] proposed mining operation is not ‘dependent on the water

by reason of the intrinsic nature of its operations’” because it has the option of road transportation

for aggregates. AR at 7544. The Board determined that this fact was in contrast with Preserve

Our Islands in which the mining operation at issue was on an island and was dependent on water

transportation. The Board made this conclusion in order to answer S&G’s argument that in

violation of the SMA and WAC 173-26-186, the Master Program impermissibly treated two water-

dependent uses—salmon net pens and aggregate material transport—inconsistently by allowing

the former and prohibiting the latter. The Board generally found that the Master Program correctly

classified mining in the County as “water related” and noted it was not completely prohibited, but

was allowed in the Master Program in high-intensity designated areas. And the Board found that

S&G failed to meet its burden to show that the Master Program violated the SMA or Master

Program guidelines for prohibiting mining in some instances.

                                           C. ANALYSIS

       In Preserve Our Islands, the Preserve Our Islands group and King County appealed the

Shorelines Hearings Board order requiring the County to issue Glacier Northwest mine a

conditional use permit to build a barge-loading facility on the shoreline of Maury Island. 133 Wn.

App. at 509. Glacier owned a 235-acre mine on the shore of Maury Island, with the mine itself

located in an upland portion of the site. 133 Wn. App. at 510. The King County Master Program

designated the area in which Glacier’s barge facility would be built as a conservancy area. Pres.

Our Islands, 133 Wn. App. at 514. But the King County Master Program also allowed for such a




                                                 93
No. 47641-0-II


barge-loading facility to be permitted if the project was deemed water dependent. Pres. Our

Islands, 133 Wn. App. at 516-17.

       The Board found that the barge-loading facility was water dependent and should be

awarded a conditional use permit. Pres. Our Islands, 133 Wn. App. at 513. Preserve Our Islands

upheld the Board decision that the facility was water dependent based on a number of factors,

including: that the County zoned Glacier’s entire site for commercial mining and designated it as

mineral resource land without any restrictions on the size of use, that the mine was located on a

small island without viable large-scale ground transportation options, and that the mine could not

operate consistently with its designated principal use without barging. 133 Wn. App. at 526.

Preserve Our Islands further held that the barge-loading facility was an integral and necessary part

of Glacier’s principal use and that the entire facility must use the shorelines to operate consistently

with its county zoning as a commercially significant mining operation. 133 Wn. App. at 526.

       Preserve Our Islands is distinguishable from this case for several reasons. The record

supports the Board’s finding that, unlike the use at issue in Preserve Our Islands, S&G’s mining

operation is not on an island and can exist without the approval of the shoreline pit-to-pier project

with overland transportation. JCO 08-0706-04 at 18. The Overlay ordinance specifically stated

that the quantity of product moved by truck from S&G’s mine will increase by 50 percent over the

next decades whether or not the marine transport system is allowed. JCO 08-0706-04 at 18. The

record does not demonstrate that, as in Preserve Our Islands, S&G’s pier is an integral and

necessary part of S&G’s principal use such that it “must use” the shorelines in order to operate its

mine. 133 Wn. App. at 526-27.




                                                  94
No. 47641-0-II


       The Overlay ordinance stated that installation of a marine transport pier would increase

S&G’s mining and would allow it to sell its product more competitively in more distant markets

than it could using only trucks because truck transport is too costly to the end user. JCO 08-0706-

04 at 18. The Overlay ordinance further clarifies that marine transport from the pit-to-pier project

would not entirely replace truck traffic to get the aggregate to market. JCO 08-0706-04 at 18.

       Thus, marine transportation from a shoreline pier and barge could make extra profit and

business for S&G, but S&G has not shown that the pit-to-pier project was necessary and integral

to its mining operations, the way the requested pier was for Glacier, on an island, making it water

dependent in Preserve Our Islands. 133 Wn. App. at 513. S&G’s pit-to-pier project in the context

of its mining operation thus appears to be more like a “water-related” use that is not intrinsically

dependent on a waterfront location but for which economic viability is dependent on a waterfront

location. WAC 173-26-020(43).

       Although our review of the Board’s decision based on its interpretation of the law is de

novo, we give weight and deference to the Board’s interpretation of the statutes and regulations it

enforces. Quadrant Corp., 154 Wn.2d at 233. In light of the factual findings in the Overlay

ordinance and the differing facts in Preserve Our Islands, we hold that the Board did not err when

it distinguished Preserve Our Islands from S&G’s claims. We give deference to the Board’s

interpretation of the Master Program guidelines when it found that S&G’s operation was water

related, not water dependent. Thus, we hold that the Board did not err when it classified S&G’s

use as water related rather than water dependent.




                                                95
No. 47641-0-II


            III. NO CONFLICT WITH THE GMA AND THE GMA COMPREHENSIVE PLAN

       S&G next argues that the Master Program’s mining limitation is inconsistent with and

violative of the GMA58 and the County’s GMA Comprehensive Plan.59 The Coalition argues that

the SMA states that Master Programs are not reviewable under the GMA and that S&G fails to

demonstrate inconsistency between the Master Program and the GMA Comprehensive Plan. The

DOE argues that a Master Program need be consistent with only the Master Program guidelines,

not the GMA as a whole.60 We disagree with S&G’s contentions.61




58
  S&G argues that because the Board failed to address this issue, we should remand this matter to
the Board to “complete its work.” Br. of Appellant (S&G) at 9. But S&G provides no law or legal
analysis explaining how the Board made a procedural error by not addressing this issue. We do
not consider claims unsupported by legal authority or argument. RAP 10.3(a)(6); Cowiche
Canyon, 118 Wn.2d at 809. Thus, we do not consider whether the Board made such a procedural
error.
59
  S&G also argues that the Master Program “violates the mandates of its own” provisions because
the Master Program simultaneously prohibits marine transport of minerals and supports mining
operations, including marine transport. Br. of Appellant (S&G) at 23. This argument is
unpersuasive. In support of the argument, S&G cites to JCC 18.25.480(4)(b). Master Program
provision JCC 18.25.480(4)(b) states that mining operations include “[t]ransport of minerals” from
conveyor systems and barge terminals. And the Master Program prohibits mining use and
development except mining transport by road within most shoreline environments, including
“conservancy” shoreline environments. JCC 18.25.480(3)(d). But the Master Program allows
mining, including mine-related transportation, in the “high-intensity” shoreline environments with
conditional use permits. JCC 18.25.480(3)(f). Thus, the fact that transport is included in the
Master Program definition of mining operations and the fact that one provision of the Master
Program prohibits transport in particular areas with particular environmental designations does not
mean the Master Program violates its own provisions. We hold that this argument fails.
60
  The DOE also argues that S&G has waived this issue because S&G did not raise it before the
Board. But then in a footnote, the DOE acknowledges that S&G did raise the issue before the
Board, but that it did so inadequately. We hold that this issue is not waived.
61
  Notably, the Board did not address whether the Master Program violated the GMA generally.
The Board found that the Master Program did not violate the GMA provisions requiring Master
Programs to be consistent with GMA Comprehensive Plans. And the Board found that S&G had
                                             96
No. 47641-0-II


                                  A. VIOLATION OF THE GMA

       RCW 90.58.190 sets out the SMA rules for appeal to the Board of the adoption or

amendment of a Master Program. Where an appeal to the Board concerns shorelines, the Board

shall review the Master Program

       solely for compliance with the requirements of this chapter, the policy of RCW
       90.58.020 [SMA] and the applicable guidelines, the internal consistency provisions
       of RCW 36.70A.070 [a GMA provision specifying what must be contained in GMA
       Comprehensive Plans], 36.70A.040(4) [a GMA provision specifying who must
       implement a GMA Comprehensive Plan and when], 35.63.125, and 35A.63.105
       [both planning commission provisions], and chapter 43.21C RCW [SEPA] as it
       relates to the adoption of master programs and amendments under chapter 90.58
       RCW [SMA].

RCW 90.58.190(2)(b) (emphasis added). If the appeal to the Board concerns a SSWS, the Board

shall uphold the DOE’s decision unless the Board, “by clear and convincing evidence, determines

that the decision of the [DOE] is noncompliant with the policy of [SMA] RCW 90.58.020 or the

applicable guidelines, or chapter 43.21C RCW [SEPA] as it relates to the adoption of master

programs and amendments under this chapter.” RCW 90.58.190(2)(c).

       The County has some shorelines that are reviewable under RCW 90.58.190(2)(b) and

others that are reviewable under RCW 90.58.190(2)(c). The Board thus examined the County’s

Master Program under both SSWS and shoreline scopes of review and applicable burdens of




abandoned an argument that the Master Program was inconsistent with two GMA definition
sections for lack of legal argument.

                                              97
No. 47641-0-II


proof.62 But under either review, there is no requirement that the Master Program be consistent

with the GMA beyond the provisions listed in RCW 90.58.190(2)(b), above.                   RCW

90.58.190(2)(b), (c).63 The SMA clarifies that a Master Program must be consistent with a GMA

Comprehensive Plan and county planning efforts for a GMA Comprehensive Plan, but does not

state that Master Programs are evaluated based on the provisions in the GMA as a whole. RCW

90.58.190(2)(b); former RCW 36.70A.070 (2010); RCW 36.70A.040(4). Because a Master

Program is not reviewed for compliance with the GMA beyond these specific provisions, we hold

that S&G’s argument fails.

                 B. VIOLATION OF THE GMA COUNTY COMPREHENSIVE PLAN

       To support its argument that the Master Program mining limitation is inconsistent with and

thereby violative of the County’s GMA Comprehensive Plan, S&G cites to many GMA

Comprehensive Plan policies regarding sustainable development of industrial uses for mineral

resource lands. S&G then asserts that the Master Program “improperly nullifies these GMA-based

policies.” Br. of Appellant (S&G) at 25. The Coalition argues that S&G has failed to carry its




62
  The DOE and the Coalition argue that because Hood Canal shorelines are classified as SSWS,
the standard of reviewing the Master Program’s mining provision is limited to that set for SSWS.
The DOE and the Coalition are correct that S&G frames its argument using the example of the
prohibition of its pit-to-pier project, but it appears that S&G is challenging the entire Master
Program provision prohibiting mining in conservancy areas. Thus, we consider the standards of
review for SSWS and shorelines. The Coalition seems to acknowledge this because it also
analyzes both standards of review.
63
  The GMA also does not require Master Programs be reviewed under the GMA. The GMA
confirms that a Master Program should be adopted pursuant to the SMA rather than the GMA. See
RCW 36.70A.480(2). As noted, the SMA through RCW 90.58.190(2)(b) lists those provisions
under which a Master Program is reviewed.
                                              98
No. 47641-0-II


burden of demonstrating internal inconsistency between the Master Program and the County’s

GMA Comprehensive Plan goals. We agree with the Coalition.

        Under the APA, the party asserting invalidity bears the burden of establishing the

invalidity.   Quadrant Corp., 154 Wn.2d at 233.           As is common, the County’s GMA

Comprehensive Plan contains policies that may conflict in their application, such as those

encouraging both industrial development and environmental protection. WAC 173-26-176(2)

(stating, “The policy goals for the management of shorelines harbor potential for conflict”). S&G

fails to offer legal argument to show how the Master Program provision at issue nullifies the

County’s GMA Comprehensive Plan policies thereby making the Master Program invalid. We

agree with the Coalition and hold that S&G’s argument fails.

        In conclusion, we reject S&G’s arguments that the Board erred.

                                         CONCLUSION

        After review of the parties’ arguments and the record herein, we conclude that the Board’s

final decision and order that upheld the County’s Master Program was not error. We affirm.



                                                     JOHANSON, J.
 We concur:



 BJORGEN, C.J.




 MELNICK, J.




                                                99
