# FILE IN CLERKS OFFICE 1UPRE1E COURT, STATE OFWASHtm'ON 

### A G 292013 WliPREME COURT OF THE STATE OF WASHINGTON

FRIENDS OF THE COLUMBIA GORGE, ) INC., and SAVE OUR SCENIC AREA, ) No. 88089-1 ) Petitioners, ) ) v. ) EnBanc ) STATE ENERGYFACILITY SITE ) EVALUATION COUNCIL and ) CHRISTINE 0. GREGOIRE, governor ) ofthe STATE OF WASHINGTON, ) ) Respondents, ) ) and ) ) WHISTLING RIDGE ENERGYLLC, ) SKAMANIA COUNTY, and KLICKITAT ) COUNTYPUBLIC ECONOMIC ) DEVELOPMENT AUTHORITY, ) ) Intervenors-Respondents. ) 

### 'AUG 

### 29 2013 ) Filed
C. JOHNSON, J.-This case concerns the siting ofa wind powered energy facility under the energy facilities site locations act (EFSLA), chapter 80.50 RCW. This statutory scheme creates an administrative body not only to evaluate applications for the construction and operation ofenergy facilities in the state, but also to conduct hearings and adjudications before ultimately making aFriends ofColumbia Gorge v. EFSEC, No. 88089-1
recommendation to the governor. Here, the administrative body, after reducing the scope ofthe project applied for, recommendedthat Governor Gregoire approve the project, which she did. Opponents ofthe projectthen soughtjudicialreviewunder the Administrative Procedure Act (APA), chapter 34.05 RCW. The superior court certifiedthe issue directly to this court as allowed underEFSLA. The challenge here focuses onthe site certification agreement and whether it, and the process leading up to it, complied with the statutory and regulatory requirements. In

### Residents Opposedto Kittitas Turbines v. State EnergyFacility Site Evaluation Council, 165 Wn.2d 275, 197 P.3d 1153 (2008) 

### (Residents), we resolved many ofthe foundationaljurisdictional, procedural, reviewability, and substantive issues relevantto the statutory interplay and applicability. Some ofthe issues in this case touch uponthe analysis and conclusions resolved by that opinion. Forthe reasons that follow, we find no basis to reverse the Eriergy Facility Site Evaluation Council's (EFSEC) recommendation orthe governor's approval of the project. I. FACTS AND PROCEDURAL HISTORY
a. GENERAL OVERVIEW Whistling Ridge Energy Project (WREP) submitted an applicationto EFSEC to build and operate a windpowered energy facility in southeasternWashington.

2Friends ofColumbia Gorge v. EFSEC, No. 88089-1
EFSEC conductedthe required hearings and adjudications 1before making a recommendation, which the governor followed, to approve a modified version of theproject. The governor executed a site certification agreement (SCA) that acts essentially as a contractbetweenthe State and applicant, specifyingthe conditions and requirements ofapproval. Administrative Record (AR) at 29266-330. Petitioners now challenge the process and substance ofthat approval. There are several parties to the current appeal. Two environmental groups, Friends ofthe Columbia Gorge and Save Our Scenic Area (collectivelyFriends),
are the petitioners and seek invalidation ofthe SCA and remandto EFSEC for further study and evaluation ofthe project. The otherparties write in supportofthe project. EFSEC and the governor defend approval ofthe project in ajointbrief, as do Skamania County andthe Klickitat CountyPublic Economic Development Authority. WREP also filed a briefarguing that this court should affirm EFSEC's recommendation andthe governor's execution ofthe SCA. The project site is located in a rural portion ofsoutheast Washington. The initial application was for 50 wind turbines, thoughthe ultimate recommendation and agreementprovide for 35, partially in response to concerns regarding views from the ColumbiaRiver Gorge National Scenic Area. Theprojectwould sit on

1Petitioners make no argument that EFSEC failed to conduct any required hearing, adjudication, or public meeting. Instead, our review is ofthe record made by EFSEC. 3Friends of Columbia Gorge v. EFSEC, No. 88089-1 roughly 1,152 acres, though only about 57 acres would be permanently developed. The land is owned by a parent company ofWREP and has been logged for most of the last century. There are few large conifers, no late-successional stands, and no old forest habitats. The land contains a network oflogging roads, two clear-cut corridors for Bonneville Power Administration high voltage lines, as well as a natural gas pipeline onthe north end ofthe site. No windturbine wouldbe within 4,000 feet ofa residence. The project site is also within sight ofa national scenic areathat is protected by both federal law and a compactbetween Washington and Oregon. No issues in the present appeal relate directly to the national scenic area or compact. Further, the ColumbiaRiver Gorge is recognizedby many for its pristine natural environment and beauty. The project site also appears to lie within the habitat of many species ofwildlife. Itis part ofa northern spotted owl special emphasis area2 and is either home or a migratoryroute for 90 species ofbirds and 15 species of bats. Economically, the area has seen a significant decline since the spotted owl
was listed as an endangered species, which greatly reduced the output ofthe lumber industry in the region. Much ofthe land in the county is owned by the state and federal governments, protectedunder various statutes, or used for commercial

2 WAC 222-16-086. 4Friends ofColumbia Gorge v. EFSEC, No. 88089-1


### forestland. Only three percent ofthe county is available for residential, commercial, or industrial use. b. STATUTORY SCHEME 

### The legislature passed EFSLA as an expedited and centralized process for reviewing potential energy sites in Washington State. The statedpolicy ofthe statute is "to recognize the pressingneed for increased energy facilities" and promote the creation ofsuch facilities in a way that "will produce minimal adverse effects onthe environment, ecology ofthe land and its wildlife, and the ecology of state waters and their aquatic life." RCW 80.50.010. In orderto promote this policy, the legislature createdEFSEC, which evaluates proposals, conducts public hearings and adjudications, and makes a recommendation to the governor. RCW 80.50.030. EFSEC's members include a chair appointed by the governor with the advice and consent ofthe senate; representatives from the Washington State Department ofEcology, Department of Fish and Wildlife, Department ofCommerce, and Department ofNatural Resources, as well as the Washington Utilities and Transportation Commission of the locality where the site would be located; and an assistant attorney general as a Counsel for the Environment. Otherrepresentatives may become involved as special circumstances require.



### 5Friends ofColumbia Gorge v. EFSEC, No. 88089-1
Once an application is received, EFSEC must conduct informational public hearings in the county ofthe proposed site. After these hearings, EFSEC conducts
a hearing to determine whetherthe proposedproject is consistent with current land
use and zoning regulations. Finally, EFSEC must conduct an adjudicative hearing consistent with the APA that allows interestedparties to challenge initial determinations. EFSEC may also conduct additional hearings as necessary. RCW 80.50.090. After completing these steps, EFSEC submits a recommendationto the governor and, ifrecommending approval, submits a draft certification agreement. The governorthen decides whether to approve the application and execute an SCA, reject the application, or direct EFSEC to reconsider parts ofthe application. The governor's rejection ofthe application is final, though a new application canbe submitted ifthere is new information or conditions change. RCW 80.50.100. An executed SCA acts essentially as a contract betweenthe State and applicant, setting forth the conditions that mustbe satisfied for implementation of the project. The SCA acts "inlieu" ofany otherrequirements imposed by other regulatory bodies. 

### See RCW 80.50.120(3). Further, the provisions ofEFSLA can preempt any other rules or regulations promulgated within the state, including local landuse rules. RCW 80.50.110(1);

### Residents, 165 Wn.2d 275.

6Friends ofColumbia Gorge v. EFSEC, No. 88089-1

c. REVIEWPROCESS Here, petitioners do not argue thatEFSEC failed to follow the statutorily required steps. This process included a visit to the proposed site, several public hearings, an adjudication under the APA, a landuse consistency hearing, and reviewunder the State Environmental Policy Act (SEPA), chapter43.21C RCW. This process lastedthree years and, according to EFSEC, "set a record for length, volume, and number ofissues addressed." AR at 29346. Theseproceedings will be described briefly here with a more detailed account only in certain sections where necessary. EFSEC conductedtwo public hearings and received over 300public comments. In opposition, people were concerned aboutthe environmental impact ofdevelopment, as well as the scenic and aesthetic impact onthe national scenic
area. Those in favor ofthe projectviewedwind energy as an environmentally friendly energy source that was coexistentwiththe surroundingbeauty and also emphasizedthe economic impact ofthe project. The land use consistencyhearing was conducted as a separate adjudication. Theproject site is located in an unmapped zone ofSkamania County, whichmeans thatthe county does not have comprehensive zoning that covers the area. Thus, Friends focused much ofits argument onthe county's comprehensive code, which

7Friends a/Columbia Gorge v. EFSEC, No. 88089-1 designated the land as a conservancy area, and argued thatthis designation was inconsistent with an energy project. EFSEC found that windpowered energy was consistent with a conservancy designation and, even ifnot, the zoning code allowed any use in unmapped zones not found to be a nuisance by a court. Wind powerhad not been found a nuisance by any court and was thus allowable. The formal adjudicationtookplace over three days and involved 17 parties. EFSEC found that need existed for the project, especially considering RCW 80.50.01O's recognition ofthe "pressingneed for increased energy facilities" and legislationthatrequired sustainable energy to account for 15 percent ofthe State's energy supply by 2020. 

### See RCW 19.285.010. Accordingly, it found the main issue to be determining ifthe projectwould create a netbenefit after considering the impacts. The "mosthotly contested issue" involvedthe project's impact on the aesthetic and cultural heritage ofthe area, largely due to the project's visibility from the national scenic area. AR at 29346. EFSEC notedthatthe project was not the first developmentto occur in the area, as barge traffic, highways, and rail lines already existed. Atthe same time, it wanted to preserve the view from the national scenic area as much as possible. 3 Based on these concerns, EFSEC reduced the

3 The parties disputed whether federal law came into play under the ColumbiaRiver Gorge National Scenic Area Act. 16 U.S.C. § 544. EFSEC found that the act regulated land only 8Friends ofColumbia Gorge v. EFSEC, No. 88089-1
number ofallowable windmills from 50 to 35 and restricted where those windmills could be sited. EFSEC also addressed concerns regarding the project's impact on wildlife and wildlife habitat. Itrecognized that although there was a significant wildlife habitat, the project site was notpristine natural land. The Washington Department ofFish and Wildlife (WDFW) acknowledged that with appropriate mitigation
measures the project would comply with its guidelines. After considering various arguments and evidence, EFSEC determined that with appropriate mitigation
measures and monitoring, the project should go forward. Finally, EFSEC addressed several issues that are notpart ofthe current challenge, including noise issues, geological challenges, access road issues, cultural and archeological concerns, health and safetyplanning, and site restoration planning. However, boththe adjudicative order and SCArecognized that further study and agreement would be required on several issues. For example, a mitigationparcel was discussed butnot formally adopted, and WREP was required to continue discussions with relevant agencies to determine the parcel's adequacy. 4

within the national scenic area and did not apply to the project. That decision has notbeen challenged. 4 The parties dispute whether the mitigation parcel was accepted or played any role of EFSEC's determination. This issue will be addressed below. 9Friends ofColumbia Gorge v. EFSEC, No. 88089-1


### Based on the adjudicative order, EFSEC recommended that the governor approve the project and provided a draft SCA. 5 

### Governor Gregoire chose to execute the SCA, which allowed the project to go forward as long as numerous conditions were met. Friends argues thatmany ofthese conditions necessarily imply that all issues were not "resolved" within the meaning ofthe APA. Where relevant, they will be discussed below. After the governor's decision, Friends timely filed forjudicial review as allowed under RCW 80.50.140(1) and the APA. The superior court certifiedthe petition this court. RCW 80.50.140(1). II. ISSUES (l)WhetherWREP's application satisfied chapter 463-60 WAC's requirements that an application include: • an assessment ofthe risk ofavian collisions "during day and night." • consideration ofthe WDFW's 

### WindPower 

### Guidelines. • a discussion ofmitigation measures. 6 

### (2)WhetherEFSEC complied with chapter 463-62 WAC, whichrequires: • an applicant demonstrate no net loss offish and wildlife habitat. • fish and wildlife surveys be conducted during all seasons ofthe year.

5When EFSEC filed the adjudicative order, the final environmental impact statement (FEIS) had not yetbeen prepared. The formal recommendation was not made until EFSEC had evaluated and approved ofthe FEIS. 6 WASH. DEP'T OF FISH AND WILDLIFE, Wind Power Guidelines (Apr. 2009), http://wdfw.wa.gov/publications/00294/wdfw00294.pdf. 

### 10}riends ofColumbia Gorge v. EFSEC, No. 88089-1 (3)Whether EFSEC formally adopted a specific mitigationparcel for the project. (4)Whether, by failing to require safety lighting to be radar activated or limit the amount oftime turbine blades would spin, EFSEC violated RCW 80.50.010's directive to use available and reasonable methods to produce minimal adverse effects onthe environment. (5)Whether EFSEC erred in finding that the proposedprojectwas consistent with local land use ordinances. (6)WhetherEFSEC erred in delaying review underthe ForestPractices Act of 1974 (Forest Practices Act), chapter 76.09 RCW. (7)Whetherthe SCA is internally inconsistent in its treatment ofthe Forest Practices Act. (8)WhetherFriends is entitledto any costs and fees. III. ANALYSIS
a. STANDARD OF REVIEW Under EFSLA, our review is governed by the APA. Althoughthe governor's execution ofthe SCA would likely be consideredthe "final decision" triggering review, we have recognized that there are no rules governing howthe governor may exercise his or her discretion in approving orrejecting the project. Thus, the decision would arguably be insulated fromjudicial review despite EFSLA's direction otherwise. Therefore, we considerthis process as the granting ofa "license," which "includes the agency process respecting the issuance
... ofa

11Friends ofColumbia Gorge v. EFSEC, No. 88089-1


### license." RCW 34.05.010(9)(b). Under the APA, reliefis granted only in the following situations: (a) The order, or the statute orrule on which the order is based, is in violation ofconstitutional provisions on its face or as applied; (b) The order is outside the statutory authority orjurisdiction of the agency conferred by any provision oflaw; (c) The agency has engaged in unlawful procedure or decisionmakingprocess, orhas failed to follow a prescribedprocedure; (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 ofthe whole record before the court, which includes the agency record forjudicial review, supplemented by any additional evidence received by the court underthis chapter; (f) The agency has not decided all issues requiring resolution by the agency; (h) The order is inconsistent with arule ofthe agency unless the agency explains the inconsistencyby stating facts and reasons to demonstrate a rational basis for inconsistency; or (i) The order is arbitrary or capricious. RCW 34.05.570(3); 

### Residents, 165 Wn.2d at 303-05. Although it is sometimes difficultto tell which standard Friends is attempting to assert, most ofthe allegations appear to involve EFSEC's supposed failure to follow its own regulations or resolve all issues requiring resolution and we address the arguments through that lens. We review whether an agency has followed prescribedprocedure de novo. 7 

### An agency

7Kittitas County v. E. Wash. Growth Mgmt. Hearings Bd., 172 Wn.2d 144, 155,256 P.3d 1193 (2011).


### 12Friends ofColumbia Gorge v. EFSEC, No. 88089-1
fails to resolve all issues when findings are not made onmatters that establish the existence ornonexistence ofdeterminative factual matters. 8 Atthe outset, it is worth emphasizing EFSLA's unique statutory framework. The legislature granted much discretion to bothEFSEC and the governor. The governor's decision to approve or deny does not appear**t~** be subjectto any restrictions, andthe restrictions placed onEFSEC appearto be largelyprocedural with some guidance as to what issues shouldbe considered. The framework requires the involvement ofvarious stakeholders, including environmental groups, throughoutthis process and in EFSEC's ultimate decision. The legislature has recognizedthe importance of increasingthe State's energy output, as have the voters when they called for Washington's energy to beprovidedby increasingly sustainable sources. When these factors are combinedwiththe deferential nature ofreview under the APA and the fact thatreview can easily be certifiedto this court, the nature ofourreview is necessarily limited.

8 Weyerhaeuser v. Pierce County, 124 Wn.2d 26, 36, 873 P.2d 498 (1994). 13Friends ofColumbia Gorge v. EFSEC, No. 88089-1
b. CHALLENGES UNDERTHEWASHINGTON ADMINISTRATIVE CODE Friends' challenges under the Washington Administrative Code (WAC) arise out oftwo separate chapters. The chapters serve slightly different functions,
so the challenges are addressed by WAC chapters. 

### i. Chapter 463-60 WAC: Applications for Site Certification Friends raises several challenges as to the sufficiency ofWREP's application. Applications are discussed in chapter 463-60 WAC, which opens with
a general "[p]urpose" section. The chapter sets forth guidelines for preparation ofapplications [under EFSLA]
.. The application 

### shallprovide the council with information regarding the applicant, the proposedproject design and features, the natural environment, and the built environment. This information shall be in such detail 

### as determined by 

### the council to enable the council to go forward with its applicationreview. WAC 463-60-010 (emphasis added). TheW ACs further state that "[t]he applicant 

### must address all sections ofthis chapter and must substantially comply with each section, show it does not apply or secure a waiver from the council." WAC 463- 60-115 (emphasis added). Friends essentially challenges the completeness ofthe application by quoting several regulations that provide that the application "shall" include certain information. As discussed below, many ofthe alleged omissions are rather

14Friends of Columbia Gorge v. EFSEC, No. 88089-1


### technical and ignore the broader framework ofthe application process. The abovequoted WACs showthatthese regulations are intended to provide "guidelines" as to what information will be considered, with the overall goal ofproviding EFSEC with enough information to proceed. The application need only substantially comply with the regulations and, ultimately, it is withinEFSEC's purview to determine when it has sufficient information to proceed. Though we neednot adopt WREP's broadrule that no challenge can be brought for EFSEC's failure to follow its own rules on the completeness ofan application, we recognize thatthe approval process is abroad one. Once the application is submitted, EFSEC must gather public feedback, 9 

### hold a land use consistency hearing,10 

### go through a water and air permitting process,11 

### and follow SEPA12 

### before making its recommendation. And,
even once the project is approved, the SCA can impose additional studies and ongoing requirements. Essentially, the application is the starting point ofa longer process and more specific decisions are addressedthroughout the process. Any minor deficiencies in the application itselfare to be expected and do not warrant

9 RCW 80.50.090(1) (requiring EFSEC to conduct a public hearing). 10 RCW 80.50.90(2). 11 RCW 80.50.040(9) (requiring compliance with water pollution controls under chapter 90.48 RCW). 12Ch. 43.21C RCW; WAC 197-11-938(1). 15Friends ofColumbia Gorge v. EFSEC, No. 88089-1


### reversal. Invalidation ofthe completed review and recommendation would also defeat the purpose ofthe extendedhearings and ongoing oversight ofthe project. Further, Friends could notbe "substantially prejudiced" by claimed application shortcomings as required by RCW 34.05.570(1)(d). For these reasons, we conclude that WREP substantially complied with the requirements ofchapter 463-60 WAC in its application. 1. Risk ofNighttime Avian Collisions Friends argues that WREP did notmeetthe application requirements of WAC 463-60-332(2)(g), which state that the required "discussion ofimpacts shall also include
... [a]n assessment ofrisk ofcollision ofavian species with any project structures, during day and night, migrationperiods, and inclement weather." Importantly, the referenced "discussion ofimpacts" is part ofthe application, not part ofEFSEC's ultimate findings. Thus, Friends' complaintthat EFSEC failed to make any specific factual or legal findings based on WAC 463- 60-332(2)(g) in its adjudicative order is misfocused. Opening Br. ofPet'rs at 21. The remaining challenge here seems to focus on the adequacy ofthe assessmentbecause the application actually did contain an "assessment" of nighttime collisionrisks. Friends cites to language on the absence ofdata on nighttime flight patterns butthis language refers to the lack ofnighttime

16Friends ofColumbia Gorge v. EFSEC, No. 88089-1


### observation data. In its application, WREP used daytime survey datato create an index based on other similar windpoweredprojects that allowed it to create a total-both day and night-fatality estimate based on actual reported postconstruction data. 13 A total fatality estimate necessarily includes an assessment ofnighttime collisionrisks, especially since the estimate is based on real collision data, which includes nighttime collisions, at other sites. The methodologyused to arrive at this number was part ofthe application, and EFSEC had every opportunityto and did consider its adequacy. All that WAC 463-60-332(2)(g) requires is thatthe application contain an "assessment" ofcollision risk during day and night. EFSEC has discretion to evaluate the methodologyused in the assessment. The application contains such an assessment, and WREP satisfied what is required in the application. 2. Conformance with WDFW WindPower Guidelines Friends next asserts thatEFSEC "erred when it determined thatthe Applicant satisfiedthe requirements ofthe WDFW's Wind Power Guidelines." Opening Br. ofPet'rs at 22. Again, this challenge is based on a regulation in

13 To obtain the estimates, WREP's consultant used its daytime observations to develop an index number that was compared with other already existing sites. Based onthis index, postconstruction fatality numbers at other sites, and a regression analysis, the consultant estimated a fatality rate of0.9 to 2.9 fatalities per megawattper year. AR at 5086-116. The estimated energy output for the originallyproposedproject was 75 megawatts, which would make an estimated 67.5 to 217.5 fatalities per year, though the revised estimate would likely be smaller due to the reduced size ofthe project. 17Friends a/Columbia Gorge v. EFSEC, No. 88089-1 

### chapter 463-60 WAC and whether EFSEC erred in finding that the requirements satisfied are irrelevant to a challenge as to the sufficiency ofthe application, especially since the regulation itselfdoes notrequire full compliance. It 

### states, "The application shall give due consideration to any project-type specific guidelines established by state and federal agencies
....The application shall describe how such guidelines are satisfied. For example, wind generationproposals shall consider [WDFW guidelines]." WAC 463-60-332(4) (emphasis added). This is not a mandatory compliance rule, but simply requires that the application considerthese guidelines. EFSEC can then later decide the guidelines with which
an applicant must comply. Furthermore, as the title suggests, the guidelines themselves provide only guidance. The document's introduction states that "[t]he purpose ofthe WDFW Wind Power Guidelines is to provide consistent statewide guidance for the development ofland-based wind energy projects that avoid, minimize and mitigate impacts." 14 

### WDFW has found WREP's habitat evaluationto be consistent with its guidelines, stating that the "pre-project assessment and avian/bat use surveys are consistent
. .. with the WDFW WindPower Guidelines." 15 

### AR at 15820 (emphasis

14 WIND POWER GUIDELINES, supra, at 1. 15 Friends accuses WDFW ofinitially finding that the application did not comply with the WindPower Guidelines and changing its statement in response to pressure from WREP. Reply 

### 18Friends ofColumbia Gorge v. EFSEC, No. 88089-1 added). Friends does not meet its burdenunderthe APAto reverse the agency's recommendation. 3. Absence ofa Wildlife Mitigation Plan Every application must include a "detailed discussion ofmitigation measures." WAC 463-60-332(3). Friends faults WREP for submitting an application with minimal discussion ofmitigation measures. While the application did not fully detail the mitigation measures, such a requirement would be unrealistic. The application is the first step in a longerprocess. In many situations,
as here, the final size and location ofthe site is notknown until afterthe adjudication, making a full discussion ofspecific mitigation measures inthe application unnecessary. Moreover, the adjudication process serves to bring to lightmore specific environmental concerns that may need to be mitigated. The WACs require that an application contain a discussion ofproposedmitigation
measures. WREP's application contained a discussion, which EFSEC apparently found sufficientto substantially comply with its requirements. Further, mitigation
measures are required by boththe adjudicative order and SCA, whichmeans that
Br. ofPet'rs at 20 n.62. Not only is this argument raised inthe reply brief, its implicationthat WREP exerted undue influence seems unjustified. The first letterreflects a first impression of the initial application and, rather than suggesting thatthe project should not go forward, WDFW appeared to simply want additional information. The subsequent chain ofletters suggeststhat WREP addressed these initial concerns with additional materials and documentation thatWDFW found satisfactory. See AR at 17973-75,4026-47, 20222-28. Nothing in the record suggests that WREP improperly persuaded WDFW to change its opinion. 19Friends a/Columbia Gorge v. EFSEC, No. 88089-1 

### adequate mitigation is a condition required for the completed project. Friends has notmet its burdenunder the APA to showthat WREP did not substantially comply with WAC 463-60-332(3). Friends also seeks remand because ofapparent inconsistencies in the amount ofimpacted wildlife habitat, which in turn affects the mitigationrequirements in WAC 463-60-332(3). As withthe above sections, any inconsistencies in the adjudicative order are not properly addressed in a challenge to the application under chapter 463-60 WAC. However, when the record is viewed in its entirety, it becomes clearthat the claimed inconsistencies are the result oftypographical
errors or misstatements and that, overall, the numbers have been fairly consistent throughout: the total project area is roughly 1,152 acres; the area subjectto micrositing (i.e., where windmills mightultimately be located) is roughly 384 acres; and roughly 108 acres will be developed, but only about 57 acres will be permanently developed. Any differences that exist are insignificant, making remand unnecessary onthis issue. 

### ii. Chapter 463-62 WAC: Construction and Operation Chapter 463-62 WAC'spurpose is to "implement" the legislative policy found in RCW 80.50.010, namely, to balance the need for new energyproduction with environmental and societal considerations. "The council shall apply these

20Friends ofColumbia Gorge v. EFSEC, 

### No. 88089-1
rules to site certification agreements issued" by the council. WAC 463-62-010(1). Moreover, "[t]heprovisions ofthis chapter shall apply to the construction and operation ofenergy facilities." WAC 463-62-010(2). Friends' arguments here misunderstand the nature ofthe chapterby pointing to alleged deficiencies in WREP's preapplication wildlife survey, as well as EFSEC's adjudicative order. These regulations apply to the SCA and the later ongoing operation and construction ofthe facility and do not control the application and review process. As discussed in greater detail below, we find no basis in the regulations supporting Friends' arguments. 1. No NetLoss EFSLArequires thatprojects result in "no net loss" ofwildlife habitat. WAC 463-62-040(2)(a). Friends notes that the no net loss rule is not mentioned in the application orthe EFSEC order and argues thatEFSEC violated the APA with this omission. However, as discussed above, the no net loss rule is part ofthe ongoing operation standards for energy facilities, not an application requirement. Thus, the topic did not need to be addressed in the EFSEC order as long as it

### is required by the SCA and complied with by WREP. The SCA requires that WREP submit a mitigation plan prior to site preparation and outlines several ways in which WREP
can satisfy the no net loss rule. For example, WREP could establish a mitigation

21Friends ofColumbia Gorge v. EFSEC, No. 88089-1 

### parcel on its own or contribute money to a third party. AR at 36709. Atthis stage, Friends has not shown that WREP failed to comply with the no net loss rule. 2. EFSEC Wildlife Survey and Assessment Requirements WAC 463-62-040(2)(±) states that in order to achieve EFSEC's intent ofno net loss ofhabitatfunctions, "[f]ish and wildlife surveys shall be conducted during all seasons ofthe year to determine breeding, summer, winter, migratory usage, and habitat condition ofthe site." Friends relies on this quoted language to argue that surveys are required '"during all seasons ofthe year to determine
.... migratory usage ... ofthe site."' Opening Br. ofPet'rs at 19 (alterations in original), 

### also quoted in Reply Br. ofPet'rs at 16. From this language, Friends argues thatbecause WREP did not conduct surveys during the migratory period of the olive-sided flycatcher, the requirementto "determine migratory usage" was not satisfied. However, this requirement is part ofthe ongoing oversight ofthe project and is not relevantto the sufficiency ofpreapplication studies. In essence, WAC 463- 62-040(2)(±) requires that the SCA and the ongoing oversight mechanisms ensure that WREP studies wildlife impacts in all seasons. If, for example, an unexpectedly high number ofolive-sided flycatcher mortalities occur, WREP mightbe required to implement additional mitigation measures. This section does not, however,

22Friends ofColumbia Gorge v. EFSEC, No. 88089-1 provide a basis for challenging preapplication wildlife studies. Friends hadthe opportunity to submit contradictory evidence during the adjudication. EFSEC considered the evidence submitted byFriends and determined that the benefits of the project outweighed the costs. Even ifthe regulation did apply as Friends suggests it does, no violation has been shown. When the regulation is read as a whole, it requires the surveys to be conductedthroughout the year so as to understand flight patterns during different
seasons. Here, as Friends acknowledges, surveys were conductedbetween September 11 and November 4, 2004; May 15 and July 14, 2006; and December4, 2008 and May 29, 2009. Thus, WREP conducted surveys during 11 months ofthe year and all four seasons. Friends' ability to find a roughly two-month period where no surveys were conducted fails to demonstrate that surveys were.not "conducted during all seasons," especially since there is no indication that WREP intentionally skippedthis period oftime in its studies. This argument was raised in the process. EFSEC properly consideredthe conflicting evidence and made its recommendation in light ofthe entire record. Friends thus fails to meet its burden under the APA.

23Friends a/Columbia Gorge v. EFSEC, No. 88089-1

c. EXISTENCE OF A MITIGATION PARCEL As the no net loss rule suggests, mitigation parcels are often required. See WAC 463-62-040. During the adjudication, WREP proposed a 1 00-acre mitigation parcel. Friends argues that WREP proposedthe site too late in the adjudication for Friends to contestthe site andthat EFSEC made contradictory statements as to the nature ofits decision regarding the mitigationparcel. Though none ofthe parties address ripeness, this dispute does not appear to be ripe. The only finding EFSEC made as to habitat mitigation was that it was required. 16 Similarly, the SCA acknowledges that a parcel has beenproposedbutmakes no finding as to the adequacy ofthatparcel, insteadrequiring WREP to work with WDFWto take appropriate mitigation measures. As the actual mitigation measures are yetto be determined, there appears to be no agency action for Friends to challenge. 17

16 Friends also argues that EFSEC made inconsistent statements about the mitigation parcel, making it impossible to tell whether it was accepted or not. However, this argument relies on selective quotation ofthe record. For example, it cites EFSEC manager AI Wright's statement that "EFSEC had 'considered and favorably regarded' the mitigation parcel" as evidence that the parcel played a role in EFSEC's decision. Opening Br. ofPet'rs at 39 (citing ARat 28720). However, the sentence concludes that "[EFSEC] did not make a finding onthat particular issue because it was never culminated into a stipulated agreement to the Council." AR at 28720. Read as a whole, EFSEC's order and the SCA state that the parcel mightbe adequate and that further negotiations would need to occurbetween WREP and WDFW before a final determination was made. 17 EFSEC and the governor make the alternative argument that offering the mitigation parcel in rebuttal testimony was properbecause the testimony was filed on December 16, 2010, and the adjudication did not begin until January 3, 2011. We need not address this argument because, regardless ofwhether this was enough to time for Friends to prepare a challenge to the parcel, EFSEC itselfheld that the parcel had not been formally offered and the issue is not ripe. 24Friends ofColumbia Gorge v. EFSEC, No. 88089-1
Friends also makes the argument that deferring acceptance ofthe mitigation parcel essentially insulates the decision from scrutiny or participationby either Friends or bythe public. WREP appears to agree with this argument, suggesting that opponents have already hadtheir chance to challenge the project. Resp. Br. of Intervenor-Resp'tWREP at 35-38. EFSEC and the governor make a more measured response, writing thatFriends will still have an opportunity for input. Br. ofResp'ts at 34, 65. Although it is unclear whatthe scope ofFriends' involvement
can or will be in the future, it is premature to address the issue here. Adopting Friends' position would require thatthe final order and SCA completely resolve every potential issue. But complete resolution at the planning stage wouldbe impractical due to the complicated nature ofthe projects and the likelihood that additional issues will arise later. Moreover, EFSEC has discretion to seekpublic comment or conduct additional adjudications ifnecessary. Friends may have ample opportunity for continued participation. The issue is notripe for our resolution. d. AESTHETIC, HERITAGE, AND RECREATIONAL MITIGATION Friends next argues thatthe project violates RCW 80.50.010's directive to
use "available and reasonable methods" so that approvedprojects "produce minimal adverse effects onthe environment." These potential adverse effects include aesthetic, heritage, andrecreational resources. RCW 80.50.010(2); WAC

25Friends o.fColumbia Gorge v. EFSEC, No. 88089-1
463--47-110(1)(b). Friends points to two potential measures that were overlooked: radar-activated safety lighting and a reduction in the amount oftime turbine blades would spin. 18 Friends' argument seems to be that the statute's use of"minimal" requires EFSEC to impose every mitigation measure so thatthe impact is objectively minimized. However, this argument reflects an extreme reading ofthe statute and misunderstands EFSEC's role in balancing competing interests. EFSEC did restrict the number and location ofturbines largely in response to aesthetic concerns. Further, both the adjudicative order and the SCA require additional aesthetic mitigation tactics, including the use ofmicrositing and limiting how onsite maintenance buildings will look. These measures are sufficientto show compliance with RCW 80.50.010. And since the proposal was reduced and conditioned, the argument, in essence, is that these measures were not enoughto satisfy the statute. However, since the burden is on Friends to establish noncompliance, we reject the challenge. RCW 34.05.570(1)(d).

18 The requirement to "produce minimal adverse effects onthe environment" is also stated in WAC 463-14-020(1), as well as alluded to in WAC 463-60-085(1). Friends reiterates this same argument withregards to these WAC sections. These arguments are unpersuasive for the same reasons described here. 26Friends ofColumbia Gorge v. EFSEC, No. 88089-1

e. CONSISTENCY WITH COUNTY CODE 

### i. RelevantFacts Before WREP submitted its application, the county soughtto update its zoning code to specifically authorize wind generation facilities andthen issued a mitigated determination ofnonsignificance, which would have avoided SEPA review for the changes. However, the county's hearing examiner found this inappropriate and determined that SEPA review wouldbe required before the code changes couldbe adopted. The county, citing budgetary concerns, decidednotto challenge that decision or go through SEPAreview. Because ofthis action, WREP submitted an application through EFSLA. The land use consistency hearing occurred onMay 7, 2009, and was conducted as an adjudicationunderthe APA. In the adjudicative order, EFSEC chastised Friends for raising numerous "arguments [that] have little or no relevance." AR at 29339. Ultimately, the dispute largely centered on the legal effect ofthe county's comprehensiveplan and various forest practices rules. EFSEC dismissed these arguments and found thatthe project complied withthe county's code because the project site was located in an unmapped zone and all activities not declared a nuisance by a court were allowed inunmapped zones. It

27Friends ofColumbia Gorge v. EFSEC, No. 88089-1
also found thatrenewable energy fit with the comprehensiveplan's conservancy designation. Friends now challenges the determination ofconsistency. ii. 

### Analysis Afterthe informational public hearing, EFSEC is required to "conduct a public hearing to determine whether or not the proposed site is consistent and in compliance with city, county, or regional land use plans or zoning ordinances." RCW 80.50.090(2). Ifconsistent, the localjurisdiction cannot subsequently amend any rules to affect the proposed site. Ifinconsistent, EFSEC canpreemptthe conflicting regulations and allow the projectto move forward. RCW 80.50.110(2); 

### Residents, 165 Wn.2d at 311 n.13. A certificate from local authorities is considered 

### ''primafacie proofofconsistency and compliance with such land use plans and zoning ordinances 

### absent contrary demonstration by anyonepresentat the hearing." WAC 463-26-090 (second emphasis added). The parties make numerous arguments regarding whetherthe project is consistent with Skamania County's comprehensive plan or ifconsistency with the comprehensive plan is even required. These arguments are unnecessary, however,
as the project is authorized outrightby the local zoning code. Underthe county's zoning code, areas "where no formal adoption ofany zoningmap has taken place will be designated as unmapped." Skamania County Code (SCC) § 21.64.010. In

28Friends ofColumbia Gorge v. EFSEC, No. 88089-1
these unmapped areas, "all uses which have notbeen declared a nuisance by statute, resolution, ordinance, or court of jurisdiction are allowable." 

# sec § 21.64.020. The code's conditions are satisfiedhere because the proposedproject site lies outside ofthe formal zoning map andbecause wind farms have notbeen declared a nuisance by any ofthe relevant authorities. Using a disjunctive, EFSLA requires only thatthe projectbe consistent with either "landuse plans or zoning ordinances." RCW 80.50.090(2) (emphasis added). Becausethe use is allowed by the zoning ordinance, it need not be consistent with "landuse plans."**Thq~:,,we** affirm EFSEC's determination ofconsistency and need not address the majority of the remaining arguments. iii. Moratorium Atthe time ofthe EFSEC hearing, Skamania County hadpassed a moratoriumprohibiting, inrelevantpart, the "acceptance and processing of [SEPA] checklists related to forest practice conversions." AR at 16856. Friends argues.thatthis mor(;ltorium is a "landuse regulation" and is inconsistent with the project. EFSEC and WREP make a threshold argumentthatthe moratorium is not
a "zoning ordinance" under EFSLA, which would meanthat its consistency with the project is irrelevant.

29Friends ofColumbia Gorge v. EFSEC, No. 88089-1
EFSLA defines a "zoning ordinance" as "an ordinance ofa unit oflocal government regulating the use ofland and adopted pursuantto chapter
... 36.70[]
or 36.70A." RCW 80.50.020(22). In addition to beingpassedby a local unit of government, the moratorium is entitled "Ordinance 2010-10" (emphasis added) and it explicitly references chapters 36.70 and 36.70A RCW. See AR 16854-856. However, the moratorium does notregulate how land is used. Rather, it regulates the county's processing ofSEPA checklists and is not land use regulation within the definition provided by EFSLA. But even ifthe moratorium were a landuse regulation within the meaning of EFSLA, it would notbe inconsistent with the projectbecause the moratorium only restricts the county's acceptance and processing ofSEPA checklists. Underthe county's code, a SEPA checklist is "notneeded if
... SEPA compliance has been initiated by another agency." SCC 16.04.070(A). Here, EFSEC initiated SEPA review and the county will not need to accept orprocess a SEPA checklist. Since the county will neither accept nor process any SEPA checklists, the moratorium is not implicated. It should also be noted that the moratorium appears to have been directed more toward stoppingresidential expansionthanpreserving forestland or prohibiting all construction. Thus, we holdthatthe moratorium does not apply to this project.

30Friends of Columbia Gorge v. EFSEC, 

### No. 88089-1
f. FAlLURE

### ToFULLYRESOLVE ISSUES 

### Friends alleges that EFSEC's postponement oftwo remaining issues means**t~mt** 

### it failed to resolve all contested issues, thereby warranting remand. The first issue iJ!.volves the fact that the micrositing will take place, making the final location ofthe windmills unknown. However, Friends withdrew this argument in its reply briefbased on the admission thatthe windmills will be located in predefined corridors. We neednot address this issue. The remaining issue is whetherEFSEC's decision to defer review 

### of compliance withthe ForestPractices Actwas improper. The SCArequires an application to be submitted 60 days before engaging in certain activities. This requirement continues throughoutthe life ofthe project. The Department of Natural Resources (DNR\ which typically processes applications under the Forest Practices Act, has input on any permitting under the Act. WREP is required to coordinate with DNRbefore submitting final applications to EFSEC. As in much ofits briefing, Friends appears to argue that every subissue mustbe resolved before an issue is "dispos[ed] of' for the purposes ofWAC 463-30-320(6). No authority is cited for the ideathatthe ForestPractices Actmustbe dealt with in an EFSEC adjudication. To the extentthatthe Act's applicability is a "contested issue[]," WAC 463-30-320(6), EFSEC resolved this issue by requiring continuing

31Friends of Columbia Gorge v. EFSEC, No. 88089-1 compliance with the Act. Also, byrequiring applications to be submitted 60 days before engaging

# in forest practices, EFSEC mirroredthe statute'stime frame for submitting·applications rather than requiring the applications to be submittedyears in advance. WeholdthatEFSEC sufficiently resolved this issue. As discussed above in section III.C, Friends' remaining concerns about the availability ofpublic participation andjudicial review are notripe. g. SCA's INTERNAL INCONSISTENCY Friends further asserts that the SCA is inconsistent in its treatment ofForest Practices Act compliance. This inconsistency is explained bythe different nature ofthe two quoted sections. Section IV.L ofthe SCArelates to the construction of the facility, while section VII.E relates to the ongoing operations atthe facility and any later activities that might involve forest practices. AR29293, 29302. Even if this did not fully explain the slightly different language, it is unclear whythis inconsistency would cause sufficientprejudice to warrantreversal. The Forest Practices Actapplies and any problem at some future time wouldhave to be resolved on the specific facts at issue.

32Friends of Columbia Gorge v. EFSEC, No. 88089-1
h. ATTORNEYFEES AND COSTS Friends also seeks costs and fees. However, Friends is not a prevailing party and is therefore not entitledto recover its costs and fees under the equal access to justice act, RCW4.84.350. 19 IV. CONCLUSION BecauseFriends fails to meet its burdenunderthe APA, we affirm EFSEC's recommendation and the governor's acceptance and approval ofthe WREP project.

19 Friends also argues that regardless ofwhether itprevails, it shouldbeentitled to onehalfthe cost ofpreparing and transmitting the administrative recordunder RCW 34.05.566(5)(a) because respondentparties unreasonablyrefused to stipulate to a shortened record. We also deny this request. Friends spent a great deal oftime and moneyto create this record and, giventhe number ofparties and issues, it would have been difficult and time-consuming to arrive at a stipulatedrecord, especiallybefore the issues hadbeennarrowedby any stipulation. Friends' request for one-halfthe cost ofpreparing and transmitting the adjudicative record is denied. 33Friends ofColumbia Gorge v. EFSEC, No. 88089-1

WE CONCUR: 

# lnada&n'

# c

# '9·**~**

34