IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

WHIDBEY ENVIRONMENTAL ACTION 

NETWORK,

No. 52923-8-II

 Appellant,

v.

GROWTH MANAGEMENT HEARINGS 

BOARD,

PUBLISHED OPINION

 Additional Party,

ISLAND COUNTY,

 Respondent,

GLASGOW, J.—Whidbey Environmental Action Network (WEAN) challenged Island 

County’s critical areas ordinance adopted under the Growth Management Act (GMA), chapter 

36.70A RCW. Relevant to this appeal, WEAN argued that the County’s critical areas ordinance

was insufficient to protect the western toad, which the Washington Department of Fish and 

Wildlife has listed for protection as a priority habitat species.

After finding multiple iterations of the ordinance noncompliant with the GMA, the Western 

Washington Growth Management Hearings Board ultimately upheld the version of the ordinance

at issue here as adequately protecting the western toad under the GMA and best available science. 

The version of the ordinance at issue designates all presently-known and later-identified

occurrences of western toad breeding sites as critical areas, as well as all upland occurrences 

known on the date the ordinance was adopted. The ordinance does not designate later-discovered 

Filed

Washington State

Court of Appeals

Division Two

September 1, 2020
No. 52923-8-II

2

upland western toad occurrences as critical areas. The ordinance requires a biological site 

assessment for any development project proposed within 1,000 feet of a critical area, though the 

County can waive this requirement if the impacts of the development would be minor. On appeal, 

the superior court affirmed the Board’s ruling.

WEAN appeals, arguing that the Board’s ruling was contrary to law, unsupported by 

substantial evidence, and arbitrary and capricious. WEAN reasons that the ordinance improperly 

distinguishes between upland dispersal habitat and wetland breeding habitat where the 

Department’s best available science established that any occurrence must be protected. WEAN 

also argues that the ordinance fails to adequately apply the precautionary approach, as the GMA 

requires when the science is uncertain. WEAN contends that the 1,000-foot radius for requiring a 

biological site assessment is arbitrary in that it universally applied to all critical areas and was not 

western toad-specific. WEAN also challenges the provision enabling the County to waive the 

biological site assessment requirement if development impacts will be minor.

We hold that WAC 365-190-130(4)(b) expressly establishes that the Department’s priority 

habitat and species information for candidate species is the “best available science” and the 

Department has established that any occurrence of the western toad should be designated as a 

critical area. The Board misapplied the GMA’s best available science requirement by upholding 

the County’s decision that only those upland occurrences known to the County at the time the 

ordinance was adopted would be designated as critical areas. This decision also violated the 

precautionary approach because the lack of scientific understanding regarding upland western toad 

habitat means upland occurrences should be designated and protected when they are discovered. 
No. 52923-8-II

3

We also hold that the provision granting the planning director unrestricted discretion to 

waive the required biological site assessment is contrary to law. However, we reject WEAN’s 

challenge to the 1,000-foot radius for requiring a biological assessment because WEAN has failed 

to meet its burden to show that the 1,000-foot radius was arbitrary and capricious. 

We accordingly reverse the Board’s ruling upholding the County’s decision not to 

automatically designate any later-identified upland occurrences and the provision allowing the 

County to waive the biological site assessment when the planning director determines development 

impacts will be minor. We affirm in all other respects. 

FACTS

The Department lists the western toad as a “[c]andidate species” because the toad is a 

candidate for listing as sensitive, threatened, or endangered. Administrative Record (AR) at 4071. 

Candidate species are also classified as “priority species,” under the “Priority Habitats and Species 

Program,” which means the western toad is “a priority for conservation and management and 

requires protective measures for survival.” AR at 4071, 4080. 

The Department classifies the western toad’s “[p]riority [a]rea” as “[a]ny occurrence.” AR 

at 4073. This designation “[a]pplies to a priority species with limiting habitat that is not known or 

to a species that is so rare that any occurrence is important in a land use decision.” AR at 1424. 

The Department defines “[o]ccurrence” as a “[f]ish and wildlife observation from a source deemed 

reliable by [Department] biologists. An occurrence may represent an observation of an individual 

animal or a group of animals.” Id. (bold type omitted). “‘Occurrences are based on evidence of 

historical presence, or current and likely recurring presence, at a given location.’” AR at 5718.
No. 52923-8-II

4

The County’s deadline for updating its critical areas ordinance designating critical areas

for habitat protection was December 1, 2005, which it missed. RCW 36.70A.130(4)(b). The 

County ultimately updated its designations in a 2014 ordinance that included protections for 

western toad habitat. The next deadline for the County to review and update its critical areas 

ordinance is in 2024. 

WEAN challenged the 2014 ordinance under the GMA, and the Board ultimately agreed with 

WEAN that the ordinance was flawed in several respects and ordered the County to amend it. The 

County enacted a new ordinance in response to the Board’s order, which WEAN continued to 

challenge. Relevant to this appeal, WEAN argued that the ordinance did not adequately protect the

western toad. The Board agreed, ruling that this second ordinance was flawed in that it did not 

clearly protect the western toad’s breeding site and did not protect upland, nonbreeding habitat at 

all. The Board once more ordered the County to address its continued noncompliance with the 

GMA and include best available science. 

The County then enacted a third iteration of its critical areas ordinance, the version that is 

at issue in this appeal. See ISLAND COUNTY CODE (ICC) 17.02B. With respect to the western toad, 

the ordinance provides:

Western Toad breeding sites, as documented by scientifically verifiable data from 

[the Department], or a qualified professional, shall be protected through the 

county’s wetland and stream critical areas regulations . . . . Such breeding sites, as 

they are presently known and documented as provided above, or may later be 

identified through the processing of site-specific land use and development permits 

or other scientifically verifiable data, are designated as fish and wildlife habitat 

conservation areas. Also designated as fish and wildlife habitat conservation areas 

are the occurrences identified by Priority Habitat Species data from [the 

Department] as it existed on January 24, 2017.
No. 52923-8-II

5

ICC 17.02B.210 (emphasis added). In other words, the ordinance designates all presently-known 

and later-identified breeding sites as critical areas, but it only designates other upland occurrences 

of the western toad that were known on January 24, 2017, the date this ordinance was adopted. 

The practical effect of this provision at the time the ordinance was adopted was the designation of 

six individual occurrences—one associated with an aquatic breeding site and five associated with 

upland, nonbreeding sites. 

The ordinance also provides, in a provision that is more generally applicable to all protected 

species, that “[w]hen a development proposal is located within 1,000 feet of a habitat for a 

protected species or an identified fish and wildlife habitat conservation area or its buffer . . . a 

biological site assessment . . . shall be required.” ICC 17.02B.400(A). This requirement can be 

waived if the County’s planning director “determines that the proposed development would 

result in only minor impacts.” ICC 17.02B.400(A)(1).

WEAN again challenged the ordinance, but this time the Board upheld it as complying 

with the GMA. The Board upheld the County’s differing treatment of upland habitat and breeding 

sites, noting that the best available science was “thin” with respect to upland and dispersal habitat, 

while it clearly established that the western toad has a “‘primary association’” with wetlands as 

breeding habitat. AR at 5723. The Board also upheld the provision granting the planning director 

discretion to waive the biological site assessment requirement on the grounds that the provision

is presumed valid and the Board would not assume that the County would abuse its discretion 

when applying the waiver provision without any evidence that the County was likely to do so. 

WEAN moved for reconsideration. The Board denied the motion. This order denying 

reconsideration and the Board’s prior order finding compliance are the basis for the current appeal. 
No. 52923-8-II

6

In its denial of reconsideration, the Board again concluded that the best available science did not 

support any additional designations. 

Although the Board noted “the importance of upland, non-breeding dispersal areas for the 

Western toad,” it concluded that the best available science considered by the County demonstrated

that additional areas beyond the currently documented occurrences did not warrant designation. 

AR at 5972. The Board pointed to material prepared by an outside consultant commissioned by 

the County in support of treating breeding and upland habitat differently. The County’s consultant 

concluded that breeding sites “‘represent areas with which the species is known to have a primary 

association.’” AR at 5973. The consultant opined that “‘[g]iven the variety of upland habitats used 

by western toad and the predominantly rural nature of unincorporated Island County, upland 

habitat for western toad is not known to be limiting in the County.’” Id. In contrast, the consultant 

concluded that “‘Western toads are known to exhibit some level of breeding site fidelity, meaning 

that they return to the same wetland site in subsequent years. Therefore, a documented breeding 

area could be expected to support Western toads in years subsequent to the observation.’” Id.

The Board relied on the consultant’s analysis to conclude that the differences between 

breeding and upland habitat, the lack of understanding regarding the importance of upland habitat, 

and the relative abundance of upland habitat in the County, supported the County’s decision to 

treat breeding sites and upland habitat differently in the ordinance. The Board also noted that the 

1,000-foot requirement for a biological site assessment further served to protect the western toad, 

and WEAN had not shown that the County had failed to consider best available science in 

establishing that provision. 

WEAN appealed the Board’s ruling to the superior court, which affirmed. WEAN appeals. 
No. 52923-8-II

7

ANALYSIS

A. The GMA and Related Regulations

1. Critical area designations

The GMA requires cities and counties to adopt regulations to protect environmentally 

critical areas, which include habitats of priority species and species of local importance. See RCW 

36.70A.060(2), .170(1)(d); WAC 365-190-130(2)(b). Local governments must review and update 

their critical areas ordinances every eight years to ensure they continue to meet the GMA’s

standards. RCW 36.70A.130(5)(b).

Critical areas include fish and wildlife habitat conservation areas, which are defined as

“areas that serve a critical role in sustaining needed habitats and species for the functional integrity 

of the ecosystem, and which, if altered, may reduce the likelihood that the species will persist over 

the long term.” WAC 365-190-030(6)(a). “These areas may include, but are not limited to, rare or 

vulnerable ecological systems, communities, and habitat or habitat elements including seasonal 

ranges, breeding habitat, winter range, and movement corridors; and areas with high relative 

population density or species richness.” Id.

Local governments should also identify and designate “locally important habitats and 

species” by considering information regarding priority habitats and species identified by the 

Department. WAC 365-190-030(6)(a), -130(4)(b). “Priority habitat” includes priority species 

breeding habitat and seasonal ranges. AR at 4104. The Department’s “[p]riority habitat and species 

information includes endangered, threatened and sensitive species, but also includes candidate 

species and other vulnerable and unique species and habitats.” WAC 365-190-130(4)(b). “While 
No. 52923-8-II

8

these priorities are those of the [Department], they should be considered by counties and cities as 

they include the best available science.” Id. (emphasis added).

When a local government designates a critical area, it must preserve the area’s “existing 

functions and values.” WAC 365-196-830(4). Local governments should use maps and 

performance standards to designate critical areas, but performance standards are preferred. WAC 

365-190-080(4). Significantly for purposes of this case, WAC 365-190-040(5)(b) provides that 

government inventories and maps should indicate these designations, but “where critical areas 

cannot be readily identified, these areas should be designated by performance standards or 

definitions, so they can be specifically identified during the processing of a permit or development 

authorization.”

2. Best available science and the precautionary approach

The GMA requires local governments to use “best available science” when designating 

and protecting critical areas. RCW 36.70A.172(1). “No precise definition of ‘best available 

science’ is found in the statutes or in case law, but the phrase is generally interpreted to require 

local governments to analyze valid scientific information in a reasoned process.” Kitsap All. of 

Prop. Owners v. Cent. Puget Sound Growth Mgmt. Hr’gs Bd., 160 Wn. App. 250, 267, 255 P.3d 

696 (2011). The record must show that the County considered the best available science 

substantively in its designation and protection of a critical area. Id.

“By RCW 36.70A.172(1), ‘the Legislature left the cities and counties with the authority 

and obligation to take scientific evidence and to balance that evidence among the many goals and 

factors to fashion locally appropriate regulations based on the evidence not on speculation and 

surmise.’” Ferry County v. Growth Mgmt. Hr’gs Bd., 184 Wn. App. 685, 734, 339 P.3d 478 (2014) 
No. 52923-8-II

9

(quoting Honesty in Envtl. Analysis & Legislation (HEAL) v. Cent. Puget Sound Growth Mgmt. 

Hr’gs Bd., 96 Wn. App. 522, 531, 979 P.2d 864 (1999)). “Mere inclusion of scientific sources in 

a critical areas ordinance is not sufficient. To demonstrate that [best available science] has been 

included, counties and cities should address the [best available science] on the record.” Id. at 735-

36 (citation omitted).

The GMA “does not require the county to follow [best available science]; rather, it is 

required to include [best available science] in its record. Thus, a county may depart from [best 

available science] if it provides a reasoned justification for such a departure.” Id. at 740. However, 

that “departure from [best available science] in a critical areas ordinance should be rare.” Id. 

The relevant regulations expressly establish that the Department’s priority habitat and 

species information includes the best available science. WAC 365-190-130(4(b); Ferry County, 

184 Wn. App. at 734; see also Olympic Stewardship Found. v. W. Wash. Growth Mgmt. Hr’gs Bd., 

166 Wn. App. 172, 193, 274 P.3d 1040 (2012) (“[The GMA’s] regulations are the proper starting 

point for determining whether a county has complied with RCW 36.70A.172(1)’s ‘best available 

science’ requirement.”).

Further, WAC 365-195-920(1) and (2) provide: “Where there is an absence of valid 

scientific information or incomplete scientific information relating to a county’s or city’s critical 

areas, leading to uncertainty about which development and land uses could lead to harm of critical 

areas,” counties and cities should follow a “‘precautionary or a no risk approach’” to strictly limit 

development until the uncertainty is resolved and, as an interim approach, use “an effective 

adaptive management program that relies on scientific methods to evaluate how well regulatory

and nonregulatory actions achieve their objectives.”
No. 52923-8-II

10

B. Burden of Proof and Standard of Review

The Administrative Procedure Act, chapter 34.05 RCW, governs appellate review of the 

Board’s decisions under the Act. Swinomish Indian Tribal Cmty. v. W. Wash. Growth Mgmt. Hr’gs 

Bd., 161 Wn.2d 415, 424, 166 P.3d 1198 (2007). “On appeal from the superior court, we sit in the 

same position as the superior court and review the agency’s order based on the administrative 

record rather than the superior court’s decision.” B&R Sales, Inc. v. Dep’t of Labor & Indus., 186 

Wn. App. 367, 374, 344 P.3d 741 (2015). “We treat any findings of fact or conclusions of law the 

superior court made as surplusage.” Morawek v. City of Bonney Lake, 184 Wn. App. 487, 491, 337 

P.3d 1097 (2014).

The party asserting the invalidity of an agency’s decision has the burden of demonstrating 

invalidity. RCW 34.05.570(1)(a); PacifiCorp v. Wash. Utils. & Transp. Comm’n, 194 Wn. App. 

571, 586, 376 P.3d 389 (2016). RCW 34.05.570(3) sets out nine grounds for invalidating an agency 

decision. WEAN’s challenge argues three of those grounds: (1) the Board misapplied the law, (2) 

the Board’s factual findings were not supported by substantial evidence, and (3) the Board’s 

decision was arbitrary and capricious. RCW 34.05.570(3)(d), (e), (i).

Under the error of law standard, we give substantial weight to the agency’s interpretation 

of the law it administers, but we are not bound by it. Life Care Ctrs. of Am., Inc. v. Dep’t of Soc.

& Health Servs., 162 Wn. App. 370, 374-75, 254 P.3d 919 (2011). We review the Board’s factual 

findings for substantial evidence, asking whether the record contains evidence sufficient to 

convince a rational, fair-minded person that the finding is true. B&R Sales, 186 Wn. App. at 375. 

We do not reweigh evidence or judge witness credibility, but instead defer to the agency’s broad 

discretion in weighing the evidence. PacifiCorp, 194 Wn. App. at 588-89.
No. 52923-8-II

11

“An agency’s action is arbitrary and capricious only if it ‘is willful and unreasoning and 

taken without regard to the attending facts or circumstances.’” Id. at 587 (internal quotation marks 

omitted) (quoting Att’y Gen.’s Office v. Wash. Utils. & Transp. Comm’n, 128 Wn. App. 818, 824, 

116 P.3d 1064 (2005)). “‘Where there is room for two opinions, an action taken after due 

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

erroneous.’” Id. (internal quotation marks omitted) (quoting Att’y Gen.’s Office, 128 Wn. App. at 

824). “‘Neither the existence of contradictory evidence nor the possibility of deriving conflicting 

conclusions from the evidence renders an agency decision arbitrary and capricious.’” Id. (quoting 

Att’y Gen.’s Office, 128 Wn. App. at 824).

C. Application of the Relevant Regulations and Best Available Science on Western Toads

Under WAC 365-190-130(4)(b), the Department’s priority species habitat information is 

considered best available science. The Department has classified the western toad’s “[p]riority 

[a]rea” as “[a]ny occurrence.” AR at 4073. The Department’s “[a]ny [o]ccurrence” designation 

“[a]pplies to a priority species with limiting habitat that is not known or to a species that is so rare 

that any occurrence is important in a land use decision.” AR at 1424. The Department has defined

“[o]ccurrence” as a “[f]ish and wildlife observation from a source deemed reliable by [Department] 

biologists. An occurrence may represent an observation of an individual animal or a group of 

animals.” Id. “‘Occurrences are based on evidence of historical presence, or current and likely 

recurring presence, at a given location.’” AR at 5718.

WEAN argues that the County violated the GMA’s requirement that it use best available 

science in designating critical areas when it failed to provide for the automatic designation of 

newly-identified upland occurrences of the western toad, as it did for newly-identified breeding 
No. 52923-8-II

12

sites. WEAN contends that the Board’s decision upholding the ordinance on this basis was 

arbitrary and capricious and unsupported by substantial evidence. WEAN’s argument also 

implicates whether the Board misapplied the GMA’s best available science requirement or the 

related regulations, and so committed legal error. 

The County argues that it properly designated every known occurrence of the western toad 

at the time the ordinance was adopted and it was not required to do more. The County also argues 

that it went beyond what the GMA requires by providing for automatic designation of lateridentified breeding sites and that it was not required to extend this “‘extra’” protection to 

nonbreeding sites as well because its current plan of simply updating its designations in 2024 with

newly discovered occurrences satisfies the GMA’s requirements. Resp’t’s Br. at 33 (emphasis 

omitted).

The Board agreed with the County that newly-identified upland occurrences of western 

toad need not be designated in the critical areas ordinance until the critical areas ordinance is 

updated, which should occur in 2024 if the County meets its deadline: 

The science available in 2016/2017 in regards to the Western toad may not be the 

same in 2024 when Island County next reviews its critical area regulations. If [best 

available science] at that time indicates a need to designate and/or regulate activity 

in additional areas for protection of the toad, the County will need to include 

consideration of that [science]. 

AR at 5971; see also RCW 36.70A.130(1)(a), (c), (5), (6), as amended by ENGROSSED SUBSTITUTE 

HOUSE BILL 2342, ch. 113, LAWS Of 2020; SUBSTITUTE HOUSE BILL 2246, ch. 20, LAWS OF 2020 

(requiring review of critical areas ordinances every eight years).

WEAN, the County, and the Board all agree, however, that the Department’s designation 

of the western toad’s habitat priority area as “any occurrence” is based on best available science, 
No. 52923-8-II

13

and that “any occurrence” is a priority area for protection. The crux of this dispute is whether “any 

occurrence” can be limited to occurrences that have been documented by the date a critical areas 

ordinance was adopted. 

1. Plain and ordinary meaning

We conclude that limiting “any occurrence” to occurrences that have been documented by 

the date a critical areas ordinance was adopted is contrary to the plain meaning of the words “any

occurrence.” One dictionary definition of “any” is “used . . . to indicate one that is selected without 

restriction or limitation of choice <[Any] child would know that>.” WEBSTER’S THIRD NEW 

INTERNATIONAL DICTIONARY 97 (2002) (emphasis added). In addition, the Department defines 

“[o]ccurrence” as a “[f]ish and wildlife observation from a source deemed reliable by [Department] 

biologists.” AR at 1424 (bold type omitted). This language supports WEAN’s contention that the 

“any occurrence” designation requires a continuous updating of the County’s designations, 

because an occurrence happens any time a reliable source makes a wildlife observation, not several 

years later when the County is scheduled to update its regulations.

2. Regulatory preference for definitional or performance standards

Limiting “any occurrence” also fails to read the classification in context with WAC 365-

190-040(5)(b)’s admonition to designate critical areas with performance standards or definitions 

rather than static designations “where critical areas cannot be readily identified . . . so they can be 

specifically identified during the processing of a permit or development authorization.” This 

provision supports WEAN’s argument that using definitional criteria (here, the Department’s 

definition of “occurrence”) permits ongoing identification of critical areas meeting the definition 

before the ordinance is updated, sometimes many years later.
No. 52923-8-II

14

In upholding the County’s decision not to automatically designate later-identified upland 

occurrences, the Board relied on maps of western toad occurrences as they were known in 2017. 

These maps presented only a static snapshot of the western toad’s dispersal at that time, in contrast 

to the “performance standards or definitions” that should be used to identify critical areas that 

currently exist but have not yet been identified. WAC 365-190-040(5)(b). Although both maps and 

performance standards can be used to designate critical areas, “because maps may be too inexact 

for regulatory purposes, counties and cities should rely primarily on performance standards to 

protect critical areas.” WAC 365-190-080(4)(a). Thus, WAC 365-190-040(5)(b) and -080(4)(a)

support ongoing designation of later-identified upland occurrences.

In its decision on reconsideration, the Board reasoned that “best available science” requires 

only that a local government consider science available at the time the critical areas ordinance is 

adopted and it need not account for later identification of habitat. But this interpretation of the term 

“best available science” flatly contradicts these regulations that contemplate definitional and 

performance standards so that critical areas can be identified as covered species and habitat are 

discovered between ordinance updates. We reject the Board’s reasoning. 

3. Precautionary approach

Finally, limiting any occurrence as the County suggests also fails to apply the precautionary 

approach required where the science is uncertain. WAC 365-195-920(1). WAC 365-195-920(1) 

and (2) provide: “Where there is an absence of valid scientific information or incomplete scientific 

information relating to a county’s or city’s critical areas, leading to uncertainty about which 

development and land uses could lead to harm of critical areas,” counties and cities should follow 

a “‘precautionary or a no risk approach’” to strictly limit development until the uncertainty is 
No. 52923-8-II

15

resolved and, as an interim approach, use “an effective adaptive management program that relies 

on scientific methods to evaluate how well regulatory and nonregulatory actions achieve their 

objectives.”

1

As an initial matter, the County argues that the “‘no risk’” approach WEAN advocates for 

is stricter than the “‘no harm’” approach required by the GMA. Resp’t’s Br. at 35-36 (emphasis 

omitted) (citing Swinomish, 161 Wn.2d at 427-30). But the portion of the court’s opinion that the 

County relies on does not discuss the precautionary approach or suggest a lesser standard than that 

articulated in WAC 365-195-920. Rather, the Washington Supreme Court upheld a Skagit County 

ordinance requiring the agricultural industry to do “no harm” to critical areas, rejecting 

Swinomish’s argument that the GMA required the county to enhance fish habitat rather than 

merely protect it. Swinomish, 161 Wn.2d at 427-30. The court discussed WAC 365-195-920 later 

in the opinion, and it did not indicate that it was adopting a lesser standard than what appeared in 

the regulation. Id. at 436. Instead, the court explained that the regulation requires local 

governments to “either be certain that their critical areas regulations will prevent harm or be 

prepared to recognize and respond effectively to any unforeseen harm that arises.” Id.

There are two Court of Appeals cases that analyze the “‘precautionary or [] no risk 

approach’” outlined in WAC 365-195-920(1). In Yakima County v. Eastern Washington Growth 

Management Hearings Board, 168 Wn. App. 680, 279 P.3d 434 (2012), Yakima County enacted 

 

1 The County argues that this issue is not properly before us because the Board never ruled on it. 

See Somers v. Snohomish County, 105 Wn. App. 937, 945, 21 P.3d 1165 (2001) (“The question of 

whether a county is in compliance with the [GMA] is an issue over which the [Board] has exclusive 

subject matter jurisdiction.”). WEAN argued to the Board that the County failed to apply the 

precautionary approach, and the Board rejected WEAN’s challenge. This was sufficient to 

preserve the issue for appeal.
No. 52923-8-II

16

a new critical areas ordinance that maintained stream buffers that had been in place since 1995. 

The Board ruled that these buffers were not supported by best available science and the County 

had not provided a reasoned justification for departing from that science. Id. at 693. Division Three

agreed with the Board in this regard, rejecting the County’s argument that, given the lack of 

scientific certainty regarding what buffers were needed, the County reasonably concluded that the 

existing buffers were minimally adequate. Id. Division Three reasoned: “If the absence of relevant 

scientific information creates uncertainty about the development risks to a critical areas function, 

Yakima County must follow WAC 365-195-920(1) and use a ‘precautionary or a no risk approach’

that strictly limits land use activities until the uncertainty is sufficiently resolved.” Id. (internal 

quotation marks omitted).

In Ferry County, 184 Wn. App. at 742, Ferry County refused to list certain species in its 

critical areas designation because the Department could not confirm the species’ breeding habitat. 

Division Three upheld the Board’s conclusion that this did not constitute a reasoned justification 

for departing from the best available science because the Department had determined that breeding 

habitats are not the only habitats requiring protection. Id. The court reiterated that “[i]n the absence 

of scientific evidence, a county should adopt a precautionary or no risk approach. WAC 365-195-

920.” Id. The court also explained that “even if the lack of science were a valid reason to not 

designate a species, Ferry County provided no explanation for why, in particular, the breeding 

locations of a species must be known in order to designate them as locally important.” Id.

Here, both the County and the Board acknowledge that the extent of the western toad 

population and its upland habitat are unknown. The Department classifies species habitat for 
No. 52923-8-II

17

protection upon “[a]ny [o]ccurrence” when “a priority species [has] limiting habitat that is not 

known.” AR at 1424 (bold type omitted). 

Given the acknowledged gaps in scientific knowledge about the extent of western toad 

upland habitat and its importance to the toad’s survival, Ferry County and Yakima County both 

suggest that the County here should have taken a more cautious approach toward upland habitat. 

It is true that in both of those cases the Board ruled that the counties violated the precautionary 

approach, whereas here the Board agreed with the County. Therefore, WEAN has a higher hurdle 

to clear in this case because it must show that the Board’s decision was invalid. PacifiCorp, 194 

Wn. App. at 586, 588-89. 

But the lack of scientific understanding regarding the importance of upland habitat and its 

relative scarcity in the County was a reason why upland occurrences should have received the 

same automatic designation as breeding sites. The Board understood that “‘this current limited 

understanding of upland habitat usage’” was a reason to require more from the County, not less. 

AR at 5973. In the face of this scientific uncertainty regarding the importance of upland habitat, 

the County was required to take the precaution of providing for automatic designation of upland 

occurrences of the western toad when they are identified. 

The precautionary principle requires the County to take a “precautionary or no risk 

approach,” Ferry County, 184 Wn. App. at 742, but the County is taking the very real risk that 

upland western toad habitat discovered after 2017 may be destroyed or compromised by 

development before the County updates its designations in 2024, or later if the County is not timely 

with its update. And the fact that locations of upland occurrences are not currently known does not 

mean they should not be designated when they are located. See id. Therefore, the Board’s decision 
No. 52923-8-II

18

to uphold the ordinance misapplied the law by failing to apply the precautionary principle in this 

case.

In sum, we conclude that the County and the Board misapplied what has been established 

by regulation to be the best available science when it limited any upland occurrence to any upland 

western toad occurrence known before the date the ordinance was adopted. This limitation on “any 

occurrence” conflicts with the plain meaning of the words, the regulatory admonition to use 

standards rather than designations that are fixed, and the precautionary principle also established 

by regulation. To the extent that the County and the Board failed to correctly apply the relevant 

regulations and the best available science, that is also arbitrary and capricious because it is 

unreasonable in light of current law.

4. The County’s other arguments regarding upland western toad habitat

The County and the Board relied on the County’s biological consultant’s materials that 

distinguish between more valuable breeding habitat and potentially less valuable upland habitat. 

There is substantial evidence in the record to support the conclusion that the value and scarcity of 

breeding and upland habitats are different. The consultant noted that the best available science in 

this case “‘indicates that wetland breeding habitats are critical to completion of the life cycle of 

the Western toad. In contrast, the upland habitat characteristics associated with Western toad are 

not well understood.’” AR at 5973). The science also showed that “[g]iven the variety of upland 

habitats used by Western toad and the predominantly rural nature of unincorporated Island County, 

upland habitat for Western toad is not known to be limiting in the County.” Id.

Nevertheless, the Board recognized that the best available science “supports the 

designation of ‘priority areas’ with any reliably documented ‘occurrence’ of Western toad, whether 
No. 52923-8-II

19

breeding or non-breeding.” AR at 5972 (bold type omitted). The Board also concluded that neither 

the GMA nor the best available science “distinguish[es] between breeding and non-breeding sites 

for purposes of complying with the current GMA requirement to update [fish and wildlife habitat 

conservation area] designations.” AR at 5974. And neither the County nor the Board disputes that 

the Department’s priority species habitat information and classification is considered best available 

science or that the Department has classified the western toad’s “[p]riority [a]rea” as “[a]ny 

occurrence.” AR at 4073. Instead, they read “any occurrence” to allow limitation based on the date 

of discovery, a position that is contrary to law for the reasons discussed above.2

The County also argues that, even assuming it departed from the best available science, it 

properly considered that science, but simply made a different policy choice than what WEAN 

advocated for. Although the County was not necessarily required to follow best available science, 

any departure from the best available science requires a reasoned justification and should be rare. 

Ferry County, 184 Wn. App. at 740. The County does not point to any such justification in the 

record or in its briefing apart from the general notion that sound policy must consider other factors 

beyond purely scientific evidence. Instead, the County maintains that it did not depart from the 

best available science because the science does not support designating unknown future upland 

occurrences due to the lack of knowledge about the western toad’s movements and seasonal 

 

2

In Ferry County v. Concerned Friends of Ferry County, 155 Wn.2d 824, 836, 123 P.3d 102 

(2005), the Supreme Court seemed to say that a local government could ignore a state agency’s 

scientific conclusions and recommendations in favor of legitimate, locally developed best 

available science. But that case was decided before WAC 365-190-130(4)(b) expressly established 

that the Department’s priority species habitat information is considered best available science. See 

Concerned Friends of Ferry County, 155 Wn.2d at 833 (reciting the text of an earlier version of 

the regulation simply allowing consideration of the Department’s priority species habitat 

information).
No. 52923-8-II

20

ranges. But WEAN is not arguing that the County must predict future occurrences, it merely argues 

that the County must treat any future occurrences as designated critical areas when they are 

discovered under the best available science.

In sum, neither of these additional arguments warrants departure from our conclusion that 

the County and Board misapplied the relevant regulations and the best available science as 

determined by the Department. 

D. The 1,000-Foot Radius Prompting a Biological Site Assessment

A separate provision of the County’s critical areas ordinance provides that “[w]hen a 

development proposal is located within 1,000 feet of a habitat for a protected species or an 

identified fish and wildlife habitat conservation area or its buffer . . . a biological site assessment 

. . . shall be required.” ICC 17.02B.400(A). WEAN argues the 1,000-foot radius is insufficient 

because it was based on a rule designed for heron rookeries and it bears no relation to the dispersal 

patterns of the western toad. WEAN also argues that this provision ignores the precautionary 

approach required under WAC 365-195-920(1). The Board rejected WEAN’s arguments because

WEAN did not provide evidence that a 1,000-foot radius was inadequate. 

WEAN co-founder Steve Erickson testified: “‘The origin of that thousand foot figure in 

Island County’s ordinance was for protection of heron rookeries. Amphibians were not considered 

generally in determining that. Western toad was not considered specifically. Different species. 

Different situation. Different habitat requirements.’” AR at 5832. WEAN claims that the record 

“contains abundant evidence that Western toads routinely disperse much more than 1,000 feet from 

their breeding sites, anywhere from 3,000 feet to several kilometers.” Appellant’s Reply Br. at 22. 

WEAN primarily cites to portions of its own briefing from below, but there is some evidence in 
No. 52923-8-II

21

the record that western toads do typically move much farther than 1,000 feet from breeding sites. 

And WEAN points to science in the record suggesting that “overall contiguous forest cover values 

of 40%, 50%[,] and 60% within 100, 500[,] and 1,000 meter distances respectively from wetlands 

may represent critical thresholds for maintaining the full diversity of amphibians breeding in a 

wetland or stream.” AR at 5012.

The provision establishing a 1,000-foot radius for requiring a biological site assessment 

was not intended to be specific to the western toad. It applies broadly to all fish and wildlife habitat 

conservation areas designated in Island County. WEAN does not show that western toads are 

harmed by the 1,000-foot radius such that its application to western toad habitat is arbitrary and 

capricious. Moreover, this provision simply provides a minimum radius within which the County 

must require an assessment for all designated areas. Nothing prevents the County from requiring 

or implementing such assessments further than 1,000 feet away from designated occurrences of 

the western toad when appropriate. 

In addition, WEAN does not adequately explain why it is improper for the County to adopt 

a uniform standard for requiring biological site assessments. Many counties have enacted similar 

uniform provisions requiring some manner of impact analysis if development is proposed within 

a certain radius of critical areas, without regard to the movement patterns of specific species. See, 

e.g., CHELAN COUNTY CODE 11.78.070, .080 (requiring certain review standards for developments 

proposed within 1,000 feet of a wildlife habitat conservation area); CLALLAM COUNTY CODE

27.12.320, .325 (outlining standards for any development proposed “within the jurisdiction of . . . 

wildlife habitat conservation areas”); DOUGLAS COUNTY COde 19.18C.050(B)(1) (requiring a 

habitat management and mitigation plan for any development proposed within 1,000 feet of a listed 
No. 52923-8-II

22

species “den, nesting, or breeding site”); GARFIELD COUNTY CODE 14.6(B) (requiring a “[c]ritical 

[a]rea [r]eport” addressing all critical areas located within 300 feet of a project area); GRANT 

COUNTY CODE 24.08.320(d) (requiring a “site assessment report” covering “all area within 300 

feet of a proposed development activity”); LEWIS COUNTY Code 17.38.050(1)(b)(i) (requiring a 

“critical area assessment report” for any proposed development “within, abutting, or likely to 

adversely affect a critical area or buffer”); MASON COUNTY CODE 8.52.170(D)(1)(a)(iii) (requiring 

a “preliminary review” when a major development is proposed within a quarter of a mile of a 

“listed species point location”). WEAN has not met its burden to show that ICC 17.02B.400(A) is 

invalid or that the County was required to adopt a western toad-specific radius within which a 

biological assessment must occur. 

E. Enforcement

WEAN’s final argument is that the ordinance improperly and arbitrarily allows for its 

protective measures to be waived. Specifically, WEAN challenges the provision that allows the 

County to waive the requirement for a biological site assessment whenever it determines that 

development impacts will be minor. ICC 17.02B.400(A)(1). In its opening brief, WEAN suggests

that the term “minor” is so vague that it is unconstitutional. Appellant’s Br. at 35. But in its reply 

brief, WEAN retreats from this constitutional argument, arguing instead that this waiver provision 

is contrary to law because it undermines the enforcement of the ordinance to such an extent that it 

violates the GMA’s mandate to protect critical areas and “not allow a net loss of the functions and 

values of the ecosystem.” WAC 365-196-830(4); see Appellant’s Reply Br. at 23.

The Board declined to overturn this waiver provision because ordinances are presumed 

valid and the Board declined to assume that the County would abuse its discretion when applying 
No. 52923-8-II

23

the waiver. We agree with WEAN that this was error. This waiver provision is contrary to law 

because, unlike a long list of other counties, Island County has failed to provide any guidelines or 

parameters to ensure county officials comply with the precautionary principle and adequately 

protect critical areas when evaluating waivers. See WAC 365-195-920.

Island County’s waiver provision places no restrictions or guidelines on the County 

planning director’s discretion to deem development impacts minor enough to waive the biological 

assessment, giving a single County official nearly unfettered discretion. ICC 17.02B.400(A)(1). If 

a County official can unilaterally waive biological site assessments without any transparent 

process or criteria for making that decision, then there is reason to doubt that the County’s 

application of the assessment requirement in fact implements the precautionary approach required 

under WAC 365-195-920 in any meaningful way.3

In Swinomish, the Supreme Court held that the lack of an adequate monitoring system

negated any possibility that Skagit County’s adaptive management program could comply with 

the GMA. 161 Wn.2d at 436-37. The monitoring system was flawed because it lacked adequate 

benchmarks from which to measure new data collected in the future. Id. at 434-35. WEAN argues 

that a similar situation is present here—the waiver provision in the critical areas ordinance, ICC 

17.02B.400(A)(1), does not specify how the County will determine when a biological assessment 

is unnecessary, so the ordinance in essence contains inadequate benchmarks from which to 

 

3 The County points to other provisions in the ordinance that describe what must be included in a 

biological site assessment and establish guidelines for what level of detail it should contain. See

ICC 17.02B.400(B), .430(F)-(H). But these provisions, for the most part, only help guide the 

planning director’s discretion in carrying out the assessment; they do not guide the director’s 

decision in determining whether to waive the assessment in the first place. The ordinance does 

provide more detailed standards for determining when a biological site assessment is unnecessary 

in certain situations involving agricultural land. See ICC 17.02B.400(A)(2). 
No. 52923-8-II

24

measure when a proposed development may pose a risk to a critical area making waiver 

inappropriate. 

Although this case concerns enforcement rather than adaptive management, we agree that 

similar concerns are present here. As in Swinomish, the challenged waiver provision does not 

provide sufficient guidance to ensure compliance with the GMA’s requirements for protecting 

critical areas. ICC 17.02B.400(A)(1) also violates the precautionary approach mandated by WAC 

365-195-920(1) because it does not “strictly limit[] land use activities” until scientific uncertainty 

is resolved. Yakima County, 168 Wn. App. at 693. Instead, the provision allows a waiver to bypass 

a key mechanism for achieving more certainty—a site specific biological assessment—without 

any parameters guiding the grant or denial of a waiver. The waiver provision must provide some 

meaningful parameters for determining what constitutes a minor impact in order for the County to 

fulfill the requirements under the GMA and its corresponding regulations, including the 

precautionary requirement.

Many county codes allow some discretion to rest with county officials to determine how 

to implement certain aspects of their critical areas ordinances, but they also provide benchmarks 

so that discretion is not completely unfettered. See, e.g., ADAMS COUNTY CODE 18.06.560(C), 

.570(G) (County may waive required habitat survey or management and mitigation plan for “minor 

development” if “[(1)] [t]he proposed development is not within the extended proximity of the 

associated habitat; [(2)] [t]here is adequate information available on the area proposed for 

development to determine the impacts of the proposed development and appropriate mitigating 

measures; and [(3)] [t]he applicant provides voluntary deed restrictions that are approved by the 

county.”); BENTON COUNTY CODE 15.02.180(c)(2) (County may waive required critical area report 
No. 52923-8-II

25

if it determines that the best available science shows that the proposed activity is “unlikely to 

degrade the functions or values of the critical area” and there is substantial evidence that “(i) [t]here 

will be no alteration of the critical area or buffer; (ii) [t]he development proposal will not impact 

the critical area in a manner contrary to the purpose, intent, and requirements of [the county’s 

critical area regulations]; and (iii) [t]he proposal is consistent with other applicable regulations and 

standards.”); COLUMBIA COUNTY CODE 16.10.100(H)(3)(a) (same); FRANKLIN COUNTY Code 

18.08.090(B) (same); LINCOLN COUNTY Code 18.16.130(H) (same); WHATCOM COUNTY Code 

16.16.250(D) (County may waive required critical areas review if (1) the proposed development 

is on a parcel that was approved under a previous review and conditions and regulations have not 

changed, (2) all critical areas on the parcel have been identified and the effects of the proposed 

development “have been thoroughly considered in accordance with the current regulations and 

best available science,” (3) the proposed development complies with all permit conditions, and (4) 

the proposed development “involves a use that is equally or less intensive than the development 

activity that was subject to the prior permit.”).

Unlike ICC 17.02B.400(A)(1), each of these comparable county provisions establishes

detailed benchmarks for determining when a required review of potential development impacts 

can be waived. By failing to provide meaningful standards in this context, ICC 17.02B.400(A)(1) 

violates WAC 365-196-830(4)’s mandate that “development regulations must preserve the 

existing functions and values of critical areas” and “may not allow a net loss of the functions and 

values of the ecosystem that includes the impacted or lost critical areas.”

We hold that ICC 17.02B.400(A)(1) is contrary to law because it fails to ensure adequate 

protection of critical areas and does not comply with the precautionary principle.
No. 52923-8-II

26

CONCLUSION

We reverse the Board’s ruling upholding the County’s decision to designate only upland 

occurrences of the western toad known when the critical areas ordinance was adopted, instead of 

also designating later-discovered upland occurrences. We also reverse the Board’s ruling 

upholding the provision allowing the County to waive the biological site assessment when the 

planning director determines development impacts will be minor. We affirm in all other respects. 

Glasgow, J.

We concur:

Lee, C.J.

Cruser, J.