### IN THE SUPREME COURT OF THE STATE OF WASHINGTON

WILD FISH CONSERVANCY; CENTER ) FOR FOOD SAFETY; CENTER FOR ) No. 99263 -1 BIOLOGICAL DIVERSITY; and FRIENDS ) OF THE EARTH, ) En Banc ) Appellants, ) ) v. ) ) WASHINGTON DEPARTMENT OF FISH ) AND WILDLIFE, ) ) Respondent, ) ) and ) ) COOKE AQUACULTURE PACIFIC, LLC, ) ) Intervenor
- Respondent. ) ) Filed JOHNSON, J
. — This case involves a challenge brought under chapter 34.05 RCW , the Washington Administrative Procedur e Act (APA) , to a marine finfish aquaculture permit issued by the Washington Department of Fish and Wildlife (W DFW), allowing Cooke Aquaculture Pacific LLC to change fish species to : January 13, 2022Wild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263-1

2 commercially farm s teelhead trout in Puget Sound

. 1 The Wild Fish Conservancy (WFC) 2 filed an appeal with King County Superior Court , challenging WDFW’s approval of the permit that allow s Cooke to transition from farming Atlantic salmon to s teelhead trout. The WFC alleges (1) WDFW’s conclusion that an environmental i mpact s tatement (EIS) was not required was clearly erroneous and (2) WD FW violated the State Environmental Policy Act (SEPA), ch. 43.21C RCW, by failing to consider and disclose appropriate alternatives to the proposal under RCW 43.21C .03 0(2)(e)

. T he WFC urges this court to reverse the permit approval and order WDFW to complete an EIS
. 3 The King County Superior Court found WDF W’s SEPA analysis was not clearly erroneous and the steelhead permit application did not trigger RCW 43.21C.030(2)(e). W e affirm

.

1 The Swinomish Indian Tribal Community submitted briefing as amicus curiae on behalf of the appellants, as did the Washington State Department of Ecology and the Jamestown S’Klallam Tribe on behalf of the respondents.
2 The WFC is joined by the Center for Food Safety, Center for Biological Diversity, and Friends of the Earth as appellants in this action.
3 The WFC filed a motion for judicial notice, requesting this court take judicial notice of the Washington State Department of Ecology’s State Environmental Policy Act Handbook (2018 Updates) and Ecology’s SEPA Environmental Checklist (WAC 197 -11-960) (July 2016). Ecology is required by statute to adopt rules interpreting and implementing SEPA. RCW 43.21C.110(1); ch. 197-11 WAC. As a part of its statutory obligation to provide guidance on compliance with SEPA, Ecology is further required to “publish an annual state environmental policy act handbook or supplement.” RCW 43.21C.300. Though the WFC’s motion for a judicial notice is not necessary for the court to consider these materials issued as part of Ecology’s statutory duty to promulgate rules and guidance to implement SEPA, we nonetheless grant the motion.Wild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

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3 FACTS AND PROCEDURAL HISTORY This case is a challenge to a specific permit: an approval to cultivate all

female , sterile steelhead trout in existing marine aquaculture net

- pen facilities. WDFW’s decision to approve this permit was based on an environmental assessment of the specific and limited proposal to rear steelhead in existing net

- pen facilities where Atlantic salmon were previously reared

. This action does not challenge the siting of the net pens nor does this action challenge lawful fish farming operations in existing marine

- based facilities

. Our limited role in this case is to determine whether WDFW ’s environmental assessment of steelhead fish farming in existing net

- pen facilities was clearly erroneous

. We are also asked to interpret subsection RCW 43.21C.030(2)(e) of SEPA and determine whether WDFW was required to perform an alternatives analysis under subsection (2)(e)

. I. General Overview Cooke owns several commercial salmonid farming operations that have operated in Puget Sound for over 30 years. Most recently, Cooke has reared nonnative finfish Atlantic salmon in its various marine

- based net

- pen facilities. On August 19, 2017, on e of Cooke’s Cypress Island net pens collapsed, rel easing an estimated 263,000 non native Atlantic salmon into Puget Sound

. Understandably, this net pen failure generated widespread public concern .Wild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263-1

4 Community stakeholders pushed the legisl ature to reassess marine

- based finfish aquacultures in Washington. In response , the legislature enacted a new statute prohibiting the Washington Department of Natural Resources (DNR) from further issuing aquatic

- land leases where the use includes nonnative marine finfish aquaculture. One of the intended aims of this law was to phase out nonnative fish farming in Washington waters. RCW 79.105.170; RCW 77.125.050. T he statutory changes do not ban marine finfish farms altogether but do ban the rearing of nonnative finfish and impose an additional requirement on the relevant administrative agencies to design statewide guidance to eliminate fish escapes from marine net pens and eliminate any negative impacts to water quality and native fish, shellfish, and wildl ife. E NGROSSED H.B. (EHB) 2957 , 65th Leg., Reg. Sess. (Wash. 2018). II. Cooke’s Permit Application In January 2019, Cooke submitted two marine finfish aquaculture permit applications to WDFW: one application requested renewal of an existing permit to farm nonnative Atlantic salmon and the other application was a proposal toWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263-1

5 transition its finfish aquaculture operations from farming Atlantic salmon to farming native steelhead trout. 4 T he new permit application to farm s teelhead presented a change in Cooke’s operations and required an environmental assessment under SEPA. Between March and September 2019, Cooke worked with WDFW to develop the required d ocumentation, including a SEPA environmental c hecklist. See WAC 197

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- 960. After evaluating Cooke’s initial submission, WDFW required Cooke submit an updated e nvironmental c hecklist with additional requested information and data. The agency also required Cooke hire independent experts to review and update the 1990 p rogrammatic e nviro nmental impact statement (PEI S)

— the most recent EIS on marine net

- pen aquaculture in Puget Sound

. The agency spent approximately 10 months reviewing the materials and information submitted by Cooke, the 1990 PEIS and its update, and additional scientific reports. On October 1, 2019, WDFW announced its decision to issue a mitigated determination of nonsignificance (MDNS) and a five

- year marine aquaculture permit to Cooke to farm all

- female, sterile steelhead trout in Cooke’s existing

4 WDFW approved Cooke’s renewal application to continu e its Atlantic salmon farming operations for the duration of its valid DNR leases. The agency determined it was not required to perform an environmental assessment under SEPA because the renewal request did not establish a material change from Cooke’s curr ent activities. WAC 197 -11- 800(13)(i) (“The renewal or reissuance of a [business] license regulating any present activity or structure [requires no SEPA action] so long as no material changes are involved.”). It is unclear, based on the record, whether Coo ke continues to farm Atlantic salmon in any of its net pens.Wild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263-1

6 marine net pens. The MDNS included a 12

- page summary of the key issues that WDFW considered in its decision

- making process. It also included 22 mitigating provisions that the agency imposed on Cooke’s steelhead permit. WDFW then invited the public , a ffected tribes, and other agencies to comment on the MDNS

. Generally, a n agency that issues an MDNS is required to open the comment period for 14 days

. WDFW , however, initially opened the comment period for 21 days and extended it twice for a total of 53 days, closing it on November 22, 2019

. 5 After the close of the comment period, the agency held a government
- to
government meeting with representatives of the Swinomish Indian Tribal Community to discuss the MDNS. The final MDNS included a 19

- page summary of the submitted comments, a 34

- page document explaining the scientific basis for its determination and providing substantive responses to the comments, and modif ications to the mitigating provisions in response to some of the public’s voiced concerns. The agency imposed an additional seven mitigating provisions to the final steelhead permit. The WFC prepared and submitted a report during the comment period in which it raised concerns that it continues to advance in this action. The

5 WDFW reported they received 3,578 comments, 884 of which were unique comments. The remaining comments were identical or nearly identical or submitted more than once by the same author.Wild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

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7 organization argued that WDFW erroneously arrived at the co nclusion that the ste elhead net pens will not have a probable, significant adverse impact on the environment, and therefore, WDFW should have prepared an EIS under SEPA. Appellants’ Opening Br. at 36

- 49. The WFC critiqued WDFW’s analysis, stating that the agency relied on an “insufficient [] update [ to ] an entirely stale EIS,” thereby ignoring the best available science developed over the last 30 years. A dministrative R ecord (AR) at 3701. It also raised several “reasonable, safer alternatives” to raising steelhead trout that i n its opinion, WDFW should have considered. AR at 3701. Its comment call ed for an EIS that includes a “no

- action alternative” based on the “cessation of operation of the pens (and cessation of any environmental risk) after the legislative non

- native aquacu lture phase out takes effect in 2022.” AR at 3703. T he WFC argues that WDFW was required to evaluate and disclose alternatives to the steelhead permit but failed to do so. WDFW imposed 29 mitigating provisions on the final steelhead aquaculture permit. A comparison of the Atlantic salmon renewal permit and the steelhead trout permit reveals the relative extent to which WDFW imposed conditions on Cooke’s steelhead permit aimed at mitigating any potential environmental impacts. Both permits require Cooke a dhere to the requirements set o ut in its (1) p lan of
o peration, (2) f ish e scape p revention , r esponse, and r eporting p lan, and (3)

r egulated f infish p athogen r eporting p lan . Similar to the Atlantic salmon permit,Wild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263-1

8 the s teelhead permit requires Cooke update these three plans annually in consultation with , and to be approved by , WDFW. Also , the s teelhead permit , unlike the Atlantic salmon permit, requires Cooke draft its f ish e scape p revention,

r esponse, and r eporting p lan in consultation with DNR , Department of Ecology , and “ [a] ffected treaty tribes.” AR at 4534
. ANALYSIS I. Statutory Backgrou nd T he Washington L egislature enacted SEPA in 1971 as the St ate ’s analog to the National Environmental Policy Act of 1969 (NEPA) , 42 U.S.C. § 4321
. It passed SEPA with the express purpose (1) T o de clare a state policy which will encourage productive a nd e njoyable harmony between humankind and the environment; (2) t o prom ote efforts which will prevent or eliminate damage to the environment and biosphere; (3) and [to] stimulate the health and welfare of human beings; and (4) to enrich the understanding of the ecological systems and natural resources impo rtant to the state and nation. R CW 43.21C.010 (alteration in original). In passing SEPA, the legislature express ed “the clear aim of injecting environmental awareness into all levels of governmental decision

- making.” Columbia Riverkeeper v. Port of Vancouver USA , 1 88 Wn.2d 80, 104, 392 P.3d 1025 (2017) (Stephens, J., dissenting)

. The legislature delegated to Ecology the responsibility of adopting and amending rules of interpretation and implementation of SEPA for the purpose ofWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

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9 providing statewide uniform rules and guidelines to all branches of government. RCW 43.21C.110(1); ch. 197

- 11 WAC. Accordingly, Ecolog y promulgated the SEPA regulations in accordance with the APA rule making procedures. Ch. 34.05 RCW ; ch. 197

- 11 WAC
. Under SEPA, Ecology is also required to “publish an annual state environmental policy act handbook or supplement” to assist others in compl ying with the statute . RCW 43.21C.300. WDFW adopted Ecology’s regulations and relies on Ecology’s SEPA handbook to guide its own SEPA procedures and analyses

. See W ASH . S TATE D EP ’ T OF E COLOGY , S TATE E NVIRONMENTAL P OLICY A CT H ANDBOOK (2018) (SEPA Handbook)

. W hen a proposed agency action requires SEPA environmental review, the relevant agencies will identify the “lead agency” responsible for the environmental analysis and procedural steps under SEPA. The lead agency must evaluate the proposal’s likely envir onmental impacts through a series of specified procedures created by Ecology. SEPA Handbook at 8. Part of this process includes the “threshold determination” of whether the action will result in “probable significant adverse environmental” impacts. WAC 197

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- 330 (1)(b) ; RCW 43.21C.031
. If the agency determines the proposal is not likely to have significant adverse impact s on th e environment, it will issue a d etermination of n onsignificance (DNS) , and no further environmental review is required. WAC 197

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- 3 40
. If the agency finds the proposal will likely have significant adverse impact s on th e environment, it willWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263-1

10 issue a determination of significance (DS) and the process of preparing an EIS begins . RCW 43.21C.031
. An EIS is an impartial discussion and analysis of the proposal’s probable, significant adverse environmental impacts and the reasonable alternatives that would avoid or minimize adverse impacts or enhance environmental quality. WAC 197

- 11

- 400, - 402; RCW 43 .21C.031
. Washington regulations allow for a third threshold determination. An agency may issue a n MDNS when the proposal can be conditioned to have no probable , significant adverse impacts by imposing specific mitigation measures . WAC 197

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- 350. When an agency makes an MDNS threshold determination, it is not finding that the proposal will not have probable, significant adverse environmental effect s. Rather, the agency determines that by requiring certain specific mitigations, 6 it can reduce the environmental impacts to a level acceptable under SEPA. An MDNS does not function to evade environmental review or undermine SEPA’s purpose. The requirement of an EIS may be “superseded by the MDNS”;

6 Ecol ogy’s SEPA regu lations define “mitigation” as “(1) Avoiding the impact altogether by not taking a certain action or parts of an action;
“ (2) Minimizing impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps to avoid or reduce impacts; “(3) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment; “(4) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action; “( 5) Compensating for the impact by replacing, enhancing, or providing substitute resources or environments; and/or
“ (6) Monitoring the impact and taking appropriate corrective measures.” WAC 197-11- 768.Wild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263-1

11 and the imposition of numerous mitigation measures that specifically target a proposal’s potential adverse impacts “may provide more effective environmental protection than promulgation of an EIS, since an EIS does not automatically result in substantive mitigation. ” Anderson v. Pierce County , 86 Wn. App. 290, 305, 936 P.2d 432 (1997). II. Whether WDFW violated RCW 43.21C.030(2)(e) by failing to study, develop, and describe appropriate alternatives to the proposal B oth parties request this court interpret RCW 43.21C.030(2)(e). Fi r st, t he WFC requests we “give effe ct” to the subsection (2)(e) requirement to study alternatives by concluding the subsection applies to proposals with any adverse environmental impact. Appellants’ Opening Br. at 2 2 . WDFW agrees that subsection (2)( e)’s alternatives analysis “potentially” applies to proposals that do not require an EIS but disagrees that a proposal with any amount of adverse impact trigger s the subsection. WDFW ’s Corrected Resp. Br. at 35. Second, the WFC requests that we conclude the permit here presented the types of unresolved conflicts that trigger subsection (2)(e) and that we hold that WDFW violated SEPA by failing to study and disclose appropriate alternatives to the permit. Appellants’ Opening Br. at 20

- 22. WDFW contends the permit did not trigger subsection (2)(e ) and asks this court adopt and apply the Washington Pollution Control Hearings Board’s interpretation of the subsection

. See MarineWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

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12 Envtl. Consortium v. State ( Marine Envtl. Consortium II) , No s . 96

- 257 through 96

- 266 & 97

- 110, 1998 WL 933353, at *21 (Wash. Pollution Control Hr’gs Bd. Nov. 30, 1998) ; WDFW ’s Corrected Resp. Br. at 35

- 42. Third, WDFW reasons that even if the permit did trigger subsection (2)(e) , the imposed mitigation measures should be t reated as appropriate alternatives to satisfy SEPA. WDFW’s Corrected Resp. Br. at 35

- 42. The WFC disagrees with this interpretation of subsection (2)(e) and suggests we hold the subsection (2)(e) alternatives analysis requires that an agency consider a “no action” alternative to the prop osal. Appellants’ Reply Br. at 9 ; Appellants’ Answer to Ecology ’ s Amicus Curia e Br. at 17

- 18
. Before addressing the merits of the subsection (2)(e) issue , we consider Cooke’s argument that the WFC’s subsection (2)(e) argume nt contains a procedural issue fatal to its argument . Cooke argues the WFC’s allegation that WDFW violated subsection (2)(e) is actually a challenge to the SEPA regulations promulgated by Ecology, and therefore, the WFC was required to join Ecology as a pa rty in this action. Cooke ’s Resp. Br. at 2

- 3. In response, the WFC argues it is not challenging the validity of a rule; rather, it challenges “ [W] DFW’s failure to comply with a statutory mandate.” Appellants’ Reply Br. at 11. The APA requires the agency wh o promulgated the rule “ be made a party to the proceeding ” in an “action challenging the validity of a rule

. ” RCWWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

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13 34.05.570(2)(a). Here, Ecology promulgated the rules that implement SEPA; however, Ecology is not a party to this action. Therefore, if the WFC’s subsection (2)(e) argument is a challenge to the validity of the regulations, its action must be dismissed for failing to comply with the APA requirements. The WFC’s initial argument, both at the trial court level and in its opening brief, asserts a statutory violation. At the trial court level, WDFW argued that Ecology’s rules do not require an evaluation of alternatives outside of a D S that leads to an EIS. T he WFC noted this same fact in its opening brief before this court by highlighting that “a gencies throughout the [s]tate do not conduct alternatives analyses where a DNS is made, but instead only study alternatives for proposals that require an EIS.” Appellants’ Opening Br. at 22. The WFC therefore argues it is merely pointing out the absence o f any Ecology regulation interpreting when subsection (2)(e) requires alternatives independent of an EIS. But by emphasizing that Ecology has not issued guidance on subsection (2)(e), the WFC’s argument could be viewed as challenging the insufficiency of Ecology’s regulations with respect to subsection (2)(e). The WFC is effectively arguing that Ecology has failed to exercise its “authority and responsibility for full and appropriate independent adoption of rules, assuring consistency with [SEPA].” RCW 43. 21C.110(1). Pointing out that Ecology has not issued a regulation or guidance on how to interpret subsection (2)(e) show s the importance of having theWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

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14 a gency joined below. Because of Ecology’s expertise in interpreting SEPA, to which we accord substantial deference, Cooke’s argument that Ecology should have been joined has some force. Whether subsection (2)(e) applies to Cooke’s permit and , if it does, whether WDFW complied with (2)(e) are questions that implicate the extent to which Ecology’s existing regu lations sufficiently address subsection (2)(e)’s alternatives requirement. See, e.g. , Appellants’ Opening Br. at 22, 26 (noting that WAC 197

- 11

- 960 , providing a checklist for making the threshold determination of whether EIS is required, does not contain an alternatives consideration requirement) ; WDFW ’s Corrected Resp. Br. at 35

- 42 (arguing that Ecology’s rules requiring mitigation measures for an MDNS satisfy subsection (2)(e)’s alternatives consideration requirement); Br. of Amicus Curiae Ecology at 10 (same). Nonetheless, it is not necessary to resolve the procedural issue in this case where the WFC’s challenge under subsection (2)(e) clearly fails under a statutory analysis. We review questions of law, such as the interpretation of a statute, de novo. Generally, w here the statute is ambiguous and within the agency’s specialized expertise, we accord great weight to the agency’s interpretation

. Pos tema v. Pollution Control Hr’ gs Bd. , 14 2 Wn.2d 68, 77, 11 P.3d 726 (2000). However, this deference is accorded to the agency charged with the administration and enforcement of the relevant, ambiguous statute. Cowiche Canyon Conservancy v.Wild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

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15 Bosley , 118 Wn.2d 801, 8 13

- 14, 828 P.2d 549 (1992). Ecology, not WDFW, was designated by the legislature t o interpret and implement SEPA

. SEPA mandates we give substantial deference to rules adopted under RCW 43.21C.110, which outline s the required content of the SEPA rules. The legislature expressly authorized Ecology to adopt and amend the rules of interpret ation of SEPA to provide statewide guidance on how to comply with the statute’s requirements. RCW 43.21C.095 , .110. WDFW, like many other state entities, adopted the rules promulgated by Ecology and relies on Ecology ’s interpretation of SEPA to ensure its own compliance. While the legislature directs us to accord substantial deference to Ecology’s interpretation of SEPA, the agency’s regulations are silent regarding subsection (2)(e). The regulations d o not expressly require an alternatives analysis for pro posals that involve the types of “unresolved conflicts” that fall under subsection (2)(e) nor do the regulations provide specific guidance on how to interpret or apply subsection (2)(e). See generally ch. 197

- 11 WAC. Therefore, we conduct our statutory interpretation de novo without special deference to WDFW’s proposed interpretation of subsection (2)(e). WDFW proposes we adopt the Washington Pollution Control Hearings Board ’s (PCHB) interpretation of subsection (2)(e). The PCHB is a quasi

- judicial admin istrative agency created by the legislature to hear and decide appeals from certain enumerated decisions of various departments and government entities,Wild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

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16 including WDFW and Ecology. RCW 43.21B.110. We have consistently noted that the “apparent and desirable goal of [ch. 43.21B RCW] ” was to achieve “[u]niformity in administering the vast powers granted under our strong environmental and pollution control laws.” State ex rel. Martin Marietta Alum

. , Inc. v. Woodward , 84 Wn.2d 329, 333, 525 P.2d 247 (1974). Ther efore, while we do not provide deference to WDFW’s proposed interpretation, we do consider PCHB’s interpretation of subsection (2)(e) helpful in our own interpretation

. When engaging in statutory interpretation, our primary objective is to ascertain the intent of the legislature. Absent a statutory definition, we give effect to the statute’s plain and ordinary meaning as an expression of the legislature’s intent unless a contrary intent appears. Cowiche Canyon Conservancy , 118 Wn.2d at 814. The legislature, through SEPA, “authorize[d] and direct[ed] . . . to the fullest extent possible . . . [that] all branches of government

. . . shall . . . [ s ] tudy, develop, and describ e appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.” RCW 43.21C.030(2)(e). In addition to the subsection (2)(e) provision, SEPA requires every E IS include a “detailed statement” on “alternatives to the proposed action.” RCW 43.21C.030(2)(c)(iii).Wild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

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17 While Washington’s appellate courts have not weighed in on the proper interpretation of SEPA’s subsection (2)(e) provision , th e PCHB has considered the

m eaning of the subsection . The PCHB held RCW 43.21C.030(2)(e) “may, depending on the circumstances, mandate an alternatives analysis outside of the EIS process.” Marine Env tl . Consortium v. State ( Marine Envtl. Consortium I) , No s . 96

- 257 through 96

- 266, 1997 WL 394651, at *8 (Wash. Pollution Control Hr’gs Bd. May 27, 1997). The PCHB reasoned: If subsection (2)(e) is co

- extensive with subsection (2)(c)(iii), then the qualifying language of subsection (2)(e) is superfluous. The qualifying clause only has m eaning if the alternatives analysis mandated by subsection (2)(e) exists independent of the alternatives analysis required for EIS preparation by subsection (2)(c)(iii). “Statutes should be construed as a whole, all language used should be given effect, an d related statutes should be considered in relation to each other and whenever possible harmonized.” The qualifying language of subsection (2)(e) evinces a legislative intent to require alternatives analysis outside of the EIS process under special circums tance s involving resource conflicts. M arine Env tl . Consortium I , 1997 WL 394651, at *8 ( citation omitted) (quoting State v. Walter , 66 Wn. App. 862, 870, 833 P.2d 440 (1992))

. The PCHB seems correct that the subsection (2)(e) alternatives analysis is independent of the alternatives requirement under an EIS. Therefore, an agency may be required to assess alternatives to a proposal that is not likely to result in significant adverse environmental impacts.Wild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

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18 If subsection (2)(e) applies to proposals th at do not require an EIS, t he relevant inquiry asks, W hen does a situa tion involve “unresolved conflicts concerning alternative uses of available resources”? The WFC maintains the permit proposal here triggered the subsection (2)(e) alternatives analysis as demonstrated by the submitted comments that raised concerns regarding the adverse impacts fish farming has on the environment . Appellants’ Opening Br. at 29. It also argues we should follow NEPA’s interpretation of the identical subsection under 42 U.S. C. § 4332(e)(2)(E). The NEPA regulations, unlike SEPA’s regulations, expressly require every environmental assessment to discuss alternatives as required by § 4332(e) (2)(E). 40 C
. F
. R
. § 1508.9(b) (2020)

. Alternatively , WDFW argues the steelhead permit did not involve the type of unresolved conflicts that would require a subsection (2)(e) analysis under SEPA

. WDFW’s Corrected Resp
. Br. at 38. WDFW instead direct s us to the PCHB decision in Marine Environmental Consortium I
. In that case, the PCHB noted the subsection (2)(e) alternatives analysis “ may never have been performed to date during SEPA’s twenty

- six year history.” Marine Env tl . Consortium I , 1997 WL 394651, at *8. Nevertheless, the PCHB engaged in its own interpretation of the subsection i n a case that mirrors the present action. In Marine Environmental Consortium II , the appellants challenged the approval of a water permit for the same net

- pen facilities involved in the presentWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

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19 action. The PCHB was asked to determine whether the water permit for existing net
- pen facilities triggered the subsection (2)(e) alternatives analysis. PCHB held it did not. It considered whether the activities authorized under the permit created “unresolved conflicts conc erning alternative uses of available resources.” Marine Envtl. Consortium II , 1998 WL 933353, at *21

. It based its analysis on the question of whether the existence of the net

- pen facilities “ have impacts which effectively exclude other beneficial uses of ava ilable resources of Puget Sound

. ” Marine Envtl. Consortium II , 1998 WL 933353, at *21

. It further inquired whether the facilities “present an ‘either/or’ choice between salmon farming and other uses
or resources . ” Marine Env tl

. Consortium II , 1998 WL 933353, at *21

. The PCHB considered whether the farmed salmon posed an unacceptable risk to native salmonids, thereby threa tening them with extinction. It reasoned that if the farmed salmon threatened wild salmon id with extinction, then that would
cons titute an “unresolved conflict” because it would create an “either/or” scenario between farmed salmon and wild salmon id

. The PCHB concluded the measures undertaken by Ecology and WDFW were “reasonably calculated” to prevent or reduce these risks to an acce ptable degree under SEPA

. Marine Envtl. Consortium II , 1998 WL 933353, at *22. Therefore, the net

- pen facilities did not involve the type of unresolved conflicts that would trigger subsection (2 ) (e). The PCHBWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

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20 performed a similar analysis on the impacts to water quality, shellfish harvesting, recreational activities, and sport fishing. It held that [t] he existence of commercial salmon farms as permitted uses does not preclude other beneficial uses in Puget Soun d , such as shellfish harvesting, commercial or sport fishing, navigation or recreational boating. Likewise, the existence of the salmon farms does not operate to the exclusion of available resources, such as native salmon runs, sediment and water quality, or marine mammals. In short, salmon farming in Puget Sound does not present the citizens of the State of Washington with an “either/or” choice with respect to other beneficial uses and important resources. Marine Env tl . Consortiu m II , 1998 WL 933353, at *22. Focusing on the words in RCW 43.21C.030(2)(e) , the PCHB ’ s interpretation of the provision is sensible. The plain and ordinary meaning of the statute’s language supports the PCHB’s interpretation. A situation is “ unresolved ” when it is left “ undecided ” or “ unsolved. ” W EBSTER ’ S T HIRD N EW I NTERNATIONA L D ICTIONARY 2508 ( 2002 ). A “ conflict ” is a type of “ competition ” or “ clash ” between “ opposing or incompatible forces

. ” W EBSTER ’ S , supra , at 47 6
. And an

“ alternative ” is the “ offering [ of ] a choice between two things where in if one thing is chosen the other is rejected.” W EBSTER ’ S , supra , at 63
. In other words, e ither option may be chosen but not both. An alternative use necessarily entails rejecting the other available use

. Finally, a resource is “available” when it is “capable of use for the accomplishment of a purpose.” W EBSTER ’ S , supra , at 150
.Wild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

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21 Therefore, a n alternatives analysis is appropriate when a proposal involves a competition over the use of a resource whereby selecting one manner of using the resource will preclude all other uses. T hese competing uses cannot be theoretical. The choice is between different uses of available resources. The competing options for ho w to use the resource must concern a resource that is actually capable of being used to accomplish its relative purpose. Finally, this competition must be unsolved, unsettled, or, in other words, actively in dispute. The steelhead permit did not involve th is type of conflict. During the comment period for the steelhead permit, t he majority of submissions that proposed some type of alternative suggested alternatives related to siting , i.e., the location of the net pens. But the WDFW permit does not implicat e the siting of the already existing net

- pen infrastructure. Similarly, t he other alleged conflicts the WFC raises are beyond the scope of the steelhead permit proposal

. B ecause t he permit authorizes Cooke only to transition its current fish farming activities from Atlantic salmon to steelhead trout , i t does not present a situation involving a choice between uses where the selection of one option would preclude the other. This interpretation does not foreclose the possibility that a proposal with a DNS or MDNS might trigger subsection (2)(e ). For instance, subsection (2)(e) may conceivably be triggered by a permit to expand an applicant’s existing net
- penWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

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22 facilities because a n expansion of infrastructure might result in the exclusion of other uses of the available resources , such as the use of the p hysical location of the new net pens . This hypothetical proposal may require a subsection (2)(e) alternatives analysis even if the agency determined that as mitigated , the permit would not have probable, significant environmental impacts. Similarly , subsection (2)(e) may be triggered by an application that is one of multiple proposals , competing to use the same available resource , regardless of whether the proposal
res ults in a DNS, MDNS, or DS
. N evertheless, the challenged steelhead permit, regardless of its MDNS classification, does not involve the type of unresolved conflicts concerning alternative uses of available resources that trigger s a subsection (2)(e ) analysis. The trial court declined to find WDFW erroneously interpreted RCW 43.21.C.030(2)(e )

. For reasons stated above, we affirm and conclude the steelhead permit did not trigger subsection (2)(e)

. III. Whether WDFW’s finding that t he permit to farm s teelhead would not have probable, significant adverse environmental impacts was clearly erroneous This c ourt’s review of the steelhead p ermit is governed by the APA , RCW 34.05.570, and SEPA , RCW 43.21C.090. “ The burden of demonstrating the invalidity of agency action ” rests with the WFC. See RCW 34.05.570(1)(a). Additionally, we review the agency action at the time the action was taken. RCWWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263-1

23 34.05.570(1)(b). Thus, we “stand[] in the same position as the superior court” during our review. Wenatchee Sportsmen Ass’n v. Chelan County , 141 Wn.2d 169, 176, 4 P.3d 123 (2000). In any action challenging a governmental agency’s determination, S EPA requires the court give substantial weight to the agency’s decision. RCW 43.21C.090. We also recognize and defer to the administrative agency’s environmental expertise. Pease Hill Cmty. Grp

. v. County of Spokane , 62 Wn. Ap p. 800, 809, 816 P.2d 37 (1991). We apply the “clearly erroneous” standard of review when reviewing an agency’s decision to issue an MDNS and not require an EIS
. We look beyond whether substantial evidence exists to support the agency’s decision. Rather, we review the entire record and determine whether, based on the entirety of the evidence, we are “ ‘ left with the definite and firm convicti on that a mistake has been committed. ’ ” PT Air Watchers v. Dep’t of Ecology , 179 Wn.2d 919, 9 26 , 319 P.3d 23 (2014) (internal quotation marks omitted) (quoting Ancheta v. Daly , 77 W n .2d 255, 259

- 60, 461 P.2d 531 (1969) ). When reviewing a SEPA action, “ the court is required to consider the public policy and environmental values of SEPA as well.” Sisley v. San Juan County , 89 Wn.2d 78, 84, 569 P.2d 712 (1977). A revie w of the record must show that “‘environmental factors were considered in a manner sufficient to amount to prima facie compliance with the proceduralWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263-1

24 requirements of SEPA. ’ ” Chuckanut Conservancy v. Dep’t of N at. Res. , 156 Wn. A pp. 274, 286

- 87, 232 P.3d 1154 (2010) (quoting Juanita Bay Valley Cmty. Ass ’ n
v. C ity of Kirkland , 9 W n. App. 59, 73, 510 P.2d 1140 (1973) )

. In e nacting EHB 2957, Washington made it unlawful to farm nonnative finfish in Washington waters. The act outlined a phase

- out process, prohibiting the issuance of nonnative finfish aquaculture permits after existing DNR leases expire. RCW 77.125.050. Cooke’s DNR leases expire in November 2022 , at which point the company will not be able to farm Atlantic salmon

. The WFC argues that WDFW’s MDNS determination was clearly erroneous because it failed to account for the reality that absent agency action, Cooke must cease all fish farming operations in Puget Sound . WDFW contends it properly conducted its analys is by assessing the environmental impacts of both Atlantic salmon and steelhead farming. The WFC asserts that WDFW’s MDNS determination was clearly erroneous, in part, because it measured the impacts of steelhead farming against the impacts of continuing Atlantic salmon farming , and therefore, it relied on a “fictitious” environmental baseline

. Appellants’ Opening Br

. at 29. And as a result, the agency erroneously limited its analysis and public disclosure of impacts to the differences between rearing Atlantic salmon and rearing steelhead trout. Appellants’ Opening Br

. at 30. The WFC raises three main arguments in support ofWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263-1

25 its position. First, the baseline is inconsistent with legally authorized uses because Cooke is permitted to rear Atlantic s almon in only four of its net

- pen facilities ; Cook e does not hold valid leases from the DNR for its other facilities. Appellants’ Opening Br

. at 3 5. Second, the WFC argues that the baseline fails to account for the enactment of E HB 2957, which effectively makes it unlawful for Cooke to farm Atlantic salmon in Puget Sound after its final DNR lease expires in 2022. Appellants’ Opening Br
. at 35. Finally, the WFC argues the baseline fails to account for the fact that Cooke, as a practical matter, cannot continue farming Atlantic salmon past its 2020 harvest. Appellants’ Opening Br

. at 35. The WFC concludes that this “ficti o nal environmental baseline” resulted in the erroneous finding that steelhead farming is not likely to have a significant adverse impact because the baseline assumes continued risks posed by Atlantic salmon farming. Appellants’ Reply Br

. at 11

- 12
. In response , WDFW denies that it compared the impacts of farming Atlantic salmon with those of farming steelhead in order to overlook , hide , or otherwise minimize the potential adverse impacts of steelhead farming on the environment. WDFW’s Corrected Resp
. Br
. at 13

- 15. The agency argues it relied on 30

- plus years of scientific data to find that farming Atlantic salmon has not been shown to cause significant adverse environmental impacts. WDFW’s Corrected Resp. Br
. at 15. T he agency also contends that it did not need to pretend that the baseline forWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263-1

26 Cooke’s steelhead application is a “‘no

- operations ’ ” scenario nor must it ignore the fact that these net

- pen facilities already exist and are in operation. WDFW’s Corrected Resp. Br. at 16. The agency concludes that it properly analyzed all reasonable potential impacts of the proposal and carefully designed mitigating conditions to minimize or avoid adverse environmental impacts. WDFW’s Corrected Resp. Br
. at 16. It further concluded that wit h the imposed mitigation provisions, neither Atlantic salmon farming nor steelhead farming will have probable , significant adverse effects on the environment. The WFC relies on Chuckanut Conservancy , 156 W n . App. 274 , and NEPA case law to assert that WDFW should have compared the impacts of steelhead farming with the impacts of no fish farming. It does so by first invoking the term “baseline , ” which comes from NEPA jurisprudence. A “baseline” is a practical tool used in environmental analysis to identify the possible consequences of a proposed agency action. The basic idea is that establishing baseline environmental conditions is necessary to determine the effect a proposal will have on the environment. Chuckanut Conser vancy , 156 W n . App. at 284 n.8 (citing Am. Rivers v. Fed. Energy Regulatory Comm’n , 201 F.3d 1186, 1195 n.15 (9th Cir. 1999) )

. T he WFC asks us to find that WDFW clearly erred by not establishing a “no action” or “no operations” scenario as its environmental baseline

. We find no case authority that this type of baseline is required in an agency’s analysis prior toWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

- 1

27 making a threshol d determination. To the extent that SEPA and its regulations require a “no action” analysis, it is required only after the agency has made its threshold determination that an EIS is required. WAC 197

- 11

- 440(5) (requiring a “no action” analysis during prepa ration of an EIS). However, under the heightened scrutiny of an EIS, an agency needs only to establish “baseline environmental data on the ‘existing environment’” in order to “identify and describe the extent of a proposal’s environmental impacts

. ” R ICHARD L. S ETTLE , T HE W ASHINGTON S TATE E NVIRONMENTAL P OLICY A CT : A L EGAL AND P OLICY A NALYSIS § 14.01 [2][a] at 14

- 57 (2021). In arriving at its conclusion that a “no action” baseline is appropriate, the WFC states that an agency must “‘ analyze the proposal’s impacts against existing uses, not theoretical uses. ’ ” Appellants’ Opening Br. at 30 (quoting Chuckanut Conservancy , 156 Wn. App. at 290). And , according to the WFC, the continuation of Atlantic salmon farming is a “theoretical use” because it will soon be unlawful for Cooke to continue its Atlantic salmon operations. The organization further supports its position by explaining that a n action will not significantly affect t he environment when a proposal “‘ change[s] neither the actual current uses to which t he land was put nor the impact of continued use on the surrounding environment. ’ ” Chuckanut Conservancy , 156 W n . App. at 285 (alteration in original) (quoting ASARCO Inc. v. Air Quality Coal. , 92 Wn.2d 685, 70 6 , 601 P.2dWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

- 1

28 501 (1979 ) ) ; Appellants’ Opening Br. at 30
. This logic flows from the judicially created definition of “significantly” within the context of SEPA:

“ [T] he term ‘significantly’ has been defined to include the examination of at least two relevant factors: (1) the extent to which the action will cause adverse environmental effects in excess of those created by existing uses in the area , and (2) the absolute quantitative adverse environmental effects of the action itself, including the cumulative harm that results from its contribution to exis ting adverse conditions or uses in the affected area

. ” ASARCO , 92 Wn.2d at 705 ( some emphasis added and omitted ) (quoting Narrowsview Pres. Ass’n v. City of Tacoma , 84 Wn.2d 416, 423, 526 P.2d 897 (1974))

. In Chuckanut Conservancy , the C ourt of A ppeals reviewed a lead agency ’s SEPA determination of nonsignificance involving a proposal to continue logging within a specific forest. The court anchored its analysis on the definition of “significantly” within the SEPA context to assist in its assessment of th e proposal’s environmental impacts. It borrowed from the definition in ASARCO to reason that an agency must analyze a proposal’s impacts against the impact of existing uses of the affected area. See Chuckanut Conservancy , 156 W n . App. 274. However, i n relying on this definition from case law, Chuckanut Conservancy did not seem to consider that after the decision in ASARCO and the cases that it relied on , Ecology issued a regulation outlining the various factors that an agency must use in determining whe ther a proposal’s impacts will beWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263-1

29 “significant.” See WAC 197

- 11

- 330(3)

. 7 Here, t he factor most relevant to this case states that “ [t] he absolute quantitative effects of a proposal are also important [in determining a proposal’s significance], and may result in a significant adverse impact regardless of the nature of the existing environment .” WAC 197

- 11

- 330(3)(b) (emphasis added)

. It follows that an assessment of the “nature of the existing environment” is relevant to a threshold determinatio n analysis

. Similarly, Professor Richard L. S ettle, author of The Washington State Environmental Policy Act: A Legal and Policy Analysis , reasons that “a proposal must degrade the existing condition of the environment to have significant adverse impact. Mere failure to restore or improve environmental quality is not a significant adverse impact under SEPA.” S ETTLE , supra , § 13.01 [1], at 13

- 22 (citing Thornton Creek

7 “In determining an impact’s significance (WAC 197 -11-794), the responsible official shall take into account the following, that: “(a) The same proposal may have a significant adverse impact in one location but not in another location;
“ (b) The absolute quantitative effec ts of a proposal are also important, and may result in a significant adverse impact regardless of the nature of the existing environment;
“ (c) Several marginal impacts when considered together may result in a significant adverse impact; “(d) For some propo sals, it may be impossible to forecast the environmental impacts with precision, often because some variables cannot be predicted or values cannot be quantified.
“ (e) A proposal may to a significant degree:
“ (i) Adversely affect environmentally sensitive o r special areas, such as loss or destruction of historic, scientific, and cultural resources, parks, prime farmlands, wetlands, wild and scenic rivers, or wilderness;
“ (ii) Adversely affect endangered or threatened species or their habitat;
“ (iii) Conflict with local, state, or federal laws or requirements for the protection of the environment; and “(iv) Establish a precedent for future actions with significant effects, involves unique and unknown risks to the environment, or may affect public health or safety. ” WAC 197-11-330(3).Wild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

- 1

30 Legal Def. Fu nd v. City of Seattle , 1 13 Wn. App. 34, 59, 52 P.3d 522 (2002) (assessing whether a proposal would “adversely impact existing environmental conditions”) )

. While it is undeniably useful to establish a baseline environmental condition with which to compare a proposal’s impact, nothing in SEPA’s statute, regulations,
or cases requires a “no action” baseline analysis in arriving at a threshold determination

. Rat her than establishing the baseline on the current uses of the land (as the WFC suggests), the appropriate baseline to compare the proposal’s environmental impacts is t he condition of the existing environment

. To the extent that WDFW compared the impacts of Atlantic salmon farming to steelhead farming, WDFW’s assessment of the potential impact of the steelhead permit on the quality of the Puget Sound environment , as it exists now after decades of finfish farming, was appropriate

. Therefore, we hold WDFW ’s threshold determination was not clearly erroneous when it compar ed the impacts of steelhead farming to the current, existing condition of the environment of Puget Sound , which has been subject to commercial salmonid farming for over three decades

. The WF C, again relying on NEPA jurisprudence, asserts WDFW failed to take a “hard look” at the adverse impacts of rearing steelhead trout in Puget Sound

. Appellants’ Opening Br

. at 36

- 49. The “hard look” doctrine w as first introduced by the District of Columbia Court of Appeals in 1972 and recognized by the UnitedWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263-1

31 State s Supreme Court in 1976

. Kleppe v. Sierra Club , 427 U.S. 390, 410 n.21, 96 S. C t. 2718, 49 L. Ed. 2d 576 (1976) (“The only role for a court is to insure that the agency has taken a ‘hard look’ at environmental consequences; it cannot ‘interject itself within the area of discretion of the executive as to the choice of the action to be taken.’” (quoting Nat. Res. Def . Council, Inc. v. Morton , 458 F.2d 827, 838 (D.C. Cir. 1972) ))

. Generally, in taking a “‘ hard look ’ ” at an agency’s decision, the Ninth Circuit Court of Appeals has considered whether the decision was “‘f ully informed and well

- considered. ’ ” Blue Mountains Biodiversity Project v. Blackwood , 161 F.3d 1208, 1211 (9th Cir. 1998) (quoting Or

. Nat

. Res

. Council v. Lowe , 109 F.3d 521, 526 (9th Cir. 1997) ; Save the Yaak Comm

. v. Blo ck , 84 0 F.2d 714, 717 (9th Cir. 1988) ). S imilar to NEPA , “SEPA does not demand any particular substantive result in governmental decision making.” Stempel v. Dep’ t of Water Res. , 82 Wn.2d 109, 118, 508 P.2d 166 (1973). Instead, SEPA “‘is an attempt by the people to shape their future environment by deliberation, not default. ’ ” Sisley , 89 Wn.2d at 89 (quoting Stempel , 82 W n .2d at 118 )

. SEPA demands a “thoughtful decision

making process” where government agencies “conscientiously and systematically consider environmental values and consequences.” ASARCO , 92 Wn.2d at 700 ; S ETTLE , supra , § 3.01 [2], at 3 -4.Wild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263-1

32 W e assess the validity of an agency’s threshold determination by determining whether the environmental factors were “ evaluated to such an extent as to constitute prima facie compliance with SEPA procedural requirements. ” Hayden v. City of Port Townsend , 9 3 Wn.2d 870, 880, 613 P.2d 1164 (1980), overruled on other grounds by Save a Neighborhood Env’ t (SANE) v. City of Seattle , 101 Wn.2d 280, 676 P.2d 1006 (1984)

. We also consider whether the decision to issue a n MDNS was “ based on information suff icient to evaluate the proposal’ s environmental impact. ” And erson , 86 Wn. App. at 302
. However, “ [a] n agency does not have to consider every conceivable environmental impact when making its threshold SEPA determination.” PT Air Watchers , 179 Wn.2d at 932 ; WAC 197

- 11

- 060(4)( a ) (SEPA requires consideration of environmental impacts, “with attention to impacts that are likely, not merely speculative

. ”). To make a threshold determination, an agency must determine whether the proposal will have a probable , significant adverse impact on the environment. A “signific ant” impact means a “reasonable likelihood” exists that the proposal will have “more than a moderate adverse impact on environmental quality.” WAC 197

- 11

- 794. The regulations also direct decision

- makers to consider a variety of factors in determining an impact’s significance. WAC 197

- 11

- 330(3). “Still, a precise and workable definition is elusive because judgments in this area are particularly subjective

— what to one person may constitute a significant or adverse effect onWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263-1

33 the quality of the environment may be of little or no consequence to another. ” Norway Hill Pres

. & Prot. Ass ’ n v. King County Council , 87 W n .2d 267, 277, 552 P.2d 674 (1976)

. WDFW considers an action to have a significant adverse environmental impact, thereby requiring an EIS, “if a review of the scientific literature, including any existing regulatory documents, including prior EISs, supplemented by data analysis and consultation with experts,” suggest s that the proposal will “produce a more than moderate adverse effect.” AR at 4505. In con sidering the environmental impacts of approving the steelhead permit, WDFW (1) evaluated the results from and the update to the 1990 PEIS on Washington fish farms in marine net pens , (2) considered over 460 relevant scientific studies and reports from as recent as 2020 , and (3) assessed the information and data provided during the public comment period and the information it acquired from consultations with experts within and outside of WDFW, including unpublished data and analyses. AR at 4507 , 4707

- 40 (fu ll bibliography), 4741

- 131 40. The WFC argues WDFW did not sufficiently assess the adverse impacts that farmed fish pose to wild salmonid in Puget Sound . Specifically, the WFC states that WDFW’s analysis is faulty regarding genetic and disease risks to wild salmonid and the bycatch of wild fish.Wild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263-1

34 WDFW published a justification report , 8 detailing how it arrived at its determination to issue an MDNS. This 34

- page report details the possible adverse environmental impacts of farming steelhead in net pens by comparing available data on steelhead trout with the substantial amount of scientific data available on Atlantic salmon and other salmonids. WDFW considered both the likelihood and significance of potential adverse effects on the environment. In its report , t he agency explained how the mitigating provision requirements function to lessen the probability and to reduce the impact of potential consequences steelhead farming poses to the environment. The report also includes the agency’s response t o concerns raised during the public comment period and its assessment of the scientific studies cited to in some comments. We find this justification report to be more than sufficient. The WFC argues WDFW failed to adequately assess the genetic risk that farmed steelhead pose to wild salmonid in Puget Sound . It raises a few specific concerns, including the impact of low

- level fish escapes, the consequences of a tsunami, and the inadequacy of the sterilization procedure in reducing these risks. WDFW addressed these concerns in its justification report. First, WDFW acknowledged that “gradual, low

- level leakage” can have a greater genetic impact on wild native fish than the rarer , large

- scale escape events.

8 The full justification report can be found in the AR at 4501-46.Wild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

- 1

35 AR at 45 74
. Despite the WFC’s claim that WDFW “fail[ed] to evaluate the risks to wild Puget Sound steelhead from [gradual escape],” WDFW’s report addresses the impacts of escapes generally and explains how the proposal is crafted to reduce these risks to an acceptable level , i.e., below “significant” level

. Appellants’ Op ening Br. at 38; s ee AR at 4522

- 31. To reduce the risk of escapes generally, WDFW conditioned the permit on specific mitigating provisions. It required the continuation of the v ideo monitoring protocol of net pens with the DNR. It also requires Cooke conduct a load analysis of the mooring and cage systems using environmental condition data that is consistent with the Norwegian aquaculture standard NS 9415. T he Norwegian standard has prove d effective in reducing the number of escaped Atlantic salmon from Norwegian fish farms. AR at 45 2 4

- 25
. WDFW also addressed how using sterilized, all

- female steelhead will reduce genetic risks to wild salmonid in the event that an escape does occ ur . Citing eight scientific studies f rom 1999 to 2019, WDFW concluded that “ [ t ] he use of triploid fish is recognized as normal aquaculture procedure that mitigates for the potential risks to the genetic structure and viability of wild populations from escaped farmed fish

. ” AR at 4526. Furthermore, the agency explained that a vailable da ta suggests that triploid, i.e., steri lized, finfish have lower survival rates compared to their d iploid, i.e., fertile , siblings, thereby reducing genetic risk to the wild population. AR at 4524.Wild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

- 1

36 The WFC argues that the use of all

- female , sterile fish in sufficiently reduces genetic risk to wild salmonid because the sterili zation process is less than 100 percent effective, which is compounded by the possibility that Cooke could rear up to 3.5 million steelhead. AR at 82. In addition to using sterilized fis h, WDFW highlights that the steelhead permit is for all

- female , triploid trout. Multiple studies from 1992 to 2017 support WDFW’s conclusion that the most effective strategy to mitigate the risk of large

- or small

- scale escapes is to use sterile , all

- female fish. AR at 4526. Also, Cooke will receive its steelhead from Troutlodge, a Washington company based out of Bonney Lake , which has a 99.83 percent success rate in sterilizing its fish. AR at 4527. Additionally, WDFW imposed a mitigating provisi on to address the triploidy error rate in Cooke’s steelhead trout. Cooke is required to employ a sampling method and statistical design, as approved by WDFW, to better estimate the triploidy error rate of the steelhead Cooke will receive. Cooke must sample and test every lot that is to b e transported to its marine net
- pen facilities. AR at 4436. Despite WDFW’s conclusion that all

- female , triploid steelhead, with the various mitigating conditions, would not have a probable, significant adverse impact on the environment, the WFC argues that WDFW ’s analysis is inadequate because it failed to identify levels of genetic introgression that would beWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

- 1

37 unacceptable. Appellants ’ Opening Br

. at 39. However, the agency estimated the genetic risk to native steelhead based on a worst

- case scenario escape and concluded that the genetic risks did not raise a probable, significant a dverse impact on wild salmonid. The WFC also raises concern s regarding the risks that earthquake

- induced tsunam is pose to the integrity of net pens. Appellants’ Opening Br

. at 39

- 40; AR at 3212

- 13. The WFC cited to the DNR and National Oceanic and Atmospheric Administration to show that these agencies have examined the general possible impacts of an earthquake

- induced tsunami in Washington. Appellants ’ Opening Br

. at 39

- 40. H owever, the WFC does not c ite to any evidence supporting its conclusion that “ [ a ] substantial tsunami is likely to occur during the life of these pens.” AR at 3212. WDFW claims it adequately addressed the impacts of a tsunami

- caused escape by analyzing the impacts of a worst

- case scenario escape, regardless of the cause of that escape. WDFW’s Corrected Resp
. Br
. at 24. According to WDFW, t he estimation of the r isk of introgression was “worst case scenario” because it considered a scenario where all 1,000,000 fish in Cooke’s largest facility escape. AR at 45 27 . The WFC points out that in the event of a tsunami, the worst

- ca se scenario is that all the net pens w ould fail and 3.5 million steelhead would escape. Appellants’ Reply Br

. at 17. In its report, WDFW explains its analysis is based on the highly unlikely scenario that all 1,000,000 fish surviv eWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263-1

38 the net pen failure

. It also reemphasizes the various mitigation measures specifically designed to eliminate the negative impacts of a potential fish escape. WDFW further considered the various risks that different pathogens, diseases, and infections pose to farmed salmonid a nd wild salmonid

. The WFC raised four major critiques of WDFW’s disease risk assessment. First, it raised the concern that high density net pens allow for rapid transmission of disease and the amplification of pathogen levels, which can impact nearby wild fish populations. The WFC also highlighted that disease transmission is more likely for fish within the same species. Appellants’ Opening Br

. at 40

- 41. In its risk assessment , outlined in its report, WDFW acknowledged and factored the disease risks that net

- pen aquaculture presents to wild populations. It detailed the specific factors that lead to high risk of infection and disease outbreak in net

pen aquacultures, and it made no claim that net pens pose no risk to wild fish. Howev er, it note d that these disease risk s may have a negative effect on wild populations when “ [l] eft unmitigated.” AR at 4510. As WDFW noted, Norway saw successful results in reducing its net

- pen aquaculture disease risk by implementing a variety of mitigatin g measures, including vaccinations, early pathogen detection programs, and veterinarian prescribed treatments. AR at 4510. Based on this, WDFW imposed numerous mitigating provisions on Cooke’s permit that implement similar preventative and responsive disea se - management procedures.Wild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

- 1

39 WDFW noted that its disease management procedures are focused primarily on prevention; it starts at “ the source material.” AR at 4508. These procedures focus on the health of the broodstocks (parents), embryos, and fish. The WDFW permit requires Cooke to sample and test its embryos and fish at various stages of the fish life. AR at 4508, 4436

- 37. Specifically, Cooke must receive a finfish transport permit from WDFW before it can transport its embryos from a spawning facility ( Troutlod g e) to its freshwater facilities . The same permit is required to transfer its fish from fres hwater hatcheries to marine net pens and to transport fish between farm sites. AR at 4514, 4435

- 36. WDFW will deny a permit, and thereby prevent transport , if any samples test positive for pathogens on the Washi ngton regulated pathogens list. Ch. 220

- 370 WAC ; AR at 4437. Cooke’s permit is conditioned on their compliance with WDFW finfish transport permit requirements

. AR at 4435. WDFW imposed additional testing requirements on Cooke as a condition of its steelhead permit to account for piscine orthoreovirus (PRV) testing

. The permit requires pre

- marine smolts be tested, prior to transfer from Cooke’s freshwat er facilities to its marine net pens, for both regulated and reportable pathogens. The various PRV variations are listed as reportable pathogens. AR at 4436. This accounts for the lack of PRV testing under the finfish transport permit for any transport from freshwater t o marine net pens. Additionally, WDFW imposed anWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

- 1

40 annual testing requirement of Cooke’s broodstock of embryos or fish that are transport ed from the spawning facility to Cooke’s freshwater facility within three months of transfer. Finally, for both of these additional testing requirements, WDFW modified the proposed permit ’s mitigating provisions by increas ing the sample size that must be tested for pathogens

. In addition to complying with the various pathogen testing procedures, Cooke will use a locally derived steelhead trout br oodline to stock its marine net pens. Troutlodge will supply Cooke with a steelhead broodline derived from the Puyallup River. WDFW reasoned that using this native broodline will r educ e the risk of introduction of non native pathogens to net pens and in turn reduce the risk to wild salmonid. Furthermore, Cooke is required to annually review and update its regulated f

infish pathogen reporting p lan in consultat ion with, and to be approved by, WDFW
. WDFW also reserved the right to conduct facility inspections a t its discretion . WDFW committed to conduct ing facility inspections at least once a year and to sampling the fish for both regulated pathogens and PRV , in addition to th e standard sampling and testing

. WDFW noted that it has seen success in the reduction of disease risk with Cooke’s Atlantic salmon operations via the implemen tation of single generation net pens, 30

- day fallow periods, and use of vaccinations and antibiotic treatmentsWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

- 1

41 as prescribed and recommended by a veterinarian. As part of the steelhead permit, Cooke must continue to maintain si ngle generation stocking of net pens to reduce risk of pathogen transmission by breaking pathogen transmission chain. It also must fallow its net pens f or at least 42 days after harvest to allow for net pen cleaning and repair and to break any potential pathogen chain. In comments, the WFC raised a concern that novel viruses were found in endangered salmon in British Columbia , and one study appeared to find evidence that these novel viral infections “ may ori ginate from farmed salmonids.” AR at 3711 (citing Gideon J. Mordecai et al., E ndangered Wild Salmon Infected b y Newly Discovered Viruses , E L IFE (Sept. 3, 2019), https://elifesciences.org/articles/47615 ). WDFW considered the Mordecai study, assessed its relevance and weight, and reached the conclusion that the study “provide[d] no evidence for either pathogen amplification within farmed fish and disease transmissio n from farm fish to wild fish, or viral evolution (virulence or new species) associated with net

- pen aquaculture.” AR at 4513. Based on studies from 2011, 2015, and 2017, WDFW reasoned that the incidence of disease in wild fish was “either extremely low or
non - existent in the wild populations.” AR at 4511. And even for transmissions that are associated with disease outbreaks in net pens, there is limited evidence that these transmissions result in disease in the wild population. WDFW thoroughly considered a study raised by the WFC in its comment
.Wild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263-1

42 The second major complaint by the WFC is the prevalence and risk of transmission of the i nfectious hematopoietic necrosis virus (IHNV)

. The WFC
reason s that IHNV presents a risk to steelhead to a higher degree than WDFW determined. IHNV presents in three different genogroups in North America (U, M, and L). The WFC, and WDFW, note that the M

- genogroup is associated with high mortality and infects primaril y steelhead. The WFC acknowledged the accuracy of WDFW’s assertion that the M

- group is not currently present in Puget Sound

. However, the WFC argued that “no reason [exists] to assume” that this M

- group will not return to Puget Sound waters. Appellants’ Op ening Br

. at 41. We disagree. WDFW found the M

- group is dominant only in the lower Columbia River and appeared on Washington’s outer coast between 2007 and 2013. No evidence in the record suggests, nor does the WFC assert , the M

- group has been found in So und waters. AR at 4514 , 13770

- 72 (e

- mails between Kenneth Warheit of WDFW and Hugh Mitchell of AquaTactics Fish Health discussing M

- group prevalence in Sound ). Nevertheless, Cooke vaccinates its Atlantic salmon, and will use the same vaccines for its steelhead, for multiple variations of the IHNV, including the M

- group. The WFC implied that WDFW did not provide sufficient information regarding the ef fectiveness of the IHNV vaccine. To support its argument, the WFC cites to a 2006 study that found a mortality rate of 20 to 35 percent in fishWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

- 1

43 that were exposed to IHNV 6 months and 13 months after vaccination. Appellants’ Opening Br

. at 41

- 42. While it does not app ear that WDFW addressed that specific data point in its justification report , WDFW did detail the specific DNA

- vaccine used by Cooke to protect against IHNV. Citing to five different studies, WDFW reasoned this specific vaccine is “highly efficacious” in steelhead trout, and it “appears efficacious in Atlantic salmon where Cooke’s Puget Sound net
- pens have tested negative” for IHNV since 2012 when there was an outbreak among unvaccinated Atlantic salmon. AR at 4515. WDFW also states that no evidence exists that the IHNV was transmitted from the unvaccinated farmed Atlantic salmon to the wild fish. AR at 4515. Finally, IHVN is a regulated pathoge n under WAC 220

- 370

- 050(20)(a)(i ), and as noted above, WDFW will not issue a f infish transport permit for any lot that tests positive for a regulated pathogen, and WDFW imposed additional testing requirements with a higher sample size. AR at 4508 , 4513 , 4435

- 36 (mitigating provisions imposing requirements to sample and test broodsto ck and smolts prior to transfer to fresh water facilities and marine net pens). The WFC’s third major concern regarding disease risk is PRV
. The WFC points to the 2017 Morton study to support its assertion that salmon fish farms increase PRV infection rates for wild Pacific salmon. Appellants’ Opening Br

. at 43 (citing Alexandra Morton et al., The Effect of Exposure to Farmed Salmon onWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263-1

44 Piscine Orthoreovirus Infection and Fitness in Wild Pacific Salmon in British Columbia, Canada , P LOS O NE ( Dec. 13, 2017), https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0188793 ); AR at 9984

- 10001
. Relying on this study, the WFC asserts that PRV

- 1 infections in Cooke’s steelhead farms could have significant adverse impacts on the wild salmonid populations by reducing the wild salmon’s fitness for survival and reproduction , “even though the PRV infection does not progress to a disease.” Appellants’ Opening Br. at 43

. The WFC claims the 2017 Morton findings “remain[] the best available science” on this issue, and therefore, WDFW should have given its findings deeper consider ation. 9 Appellants’ Opening Br. at 43. The record shows WDFW considered the 2017 Morton article in detail and compared its findings to those of several other recent studies. AR at 4518

- 19. WDFW summarized the 2017 Morton findings regarding the possibility that a PRV infection may lower the fitness of wild fish by negatively impacting their ability to complete a migration. It also cited to the 2019 Zhang study, which found that a

9 The authors of the Morton study “stress[ed] the correlational nature of the present findings, but believe, in keeping with the Precautionary Principle , that they warrant furt her research attention.” AR at 9992. Based on the existence of various other scientific articles and studies within the record and the 2017 Morton authors’ own concession, we do not agree that the 2017 Morton article is the “best available science” on the issue of how PRV a ffects wild salmonid populations. “The evidence, based solely on molecular screening tests from this observational study, and constrained by limited access to farmed Atlantic salmon samples of known provenance, cannot be definitive. Nonetheless, we view it as providing an early warning sign of a potentially serious problem that warrants immediate and ongoing research.” AR at 9997.Wild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

- 1

45 high PRV viral load “had no effect on the oxygen affinity and carrying capacity of the red blood cells even for individuals with minor heart pathology.” AR at 4519 (citing Yangfan Zhang et al., High

- Load Reovirus Infections Do Not Imply Physiological Impairment in Salmon , F RONT IERS IN P HYSIOL OGY ( Mar. 13 2019) , https://www.frontiersi n.org/articles/10.3389/fphys.2019.00114/full )

. The WFC alleges that WDFW uses the 2019 Zhang study to “summarily discount[]” the 2017 Morton article. Appellants’ Opening Br. at 43. The WFC essentially argues that the reliance on the Zhang finding is misplaced in WDFW’s analysis because that study focused solely on PRV impacts to Atlantic salmon, not Pacific salmon. The WFC states that the Zhang finding is “inapposite to the [ 2017 M ort on] finding that PRV

1 reduces fitness in wild Pacific salmon” becau se anemia and jaundice, both PRV

associated diseases, impact only Pacific salmon. Appellants’ Opening Br. at 43
. The WFC also reasons that because anemia and jaundice impact only P acific salmon , it follows that the Zhang study found PRV

- 1 did not adversely impact Atlantic salmon’s blood oxygen levels. Appellants’ Opening Br. at 43 . While it is true that the 2019 Zhang study conducted its testing only on Atlantic salmon, WDFW did not base its conclusion on the Zhang article nor does the record show it fail ed to assess the impact of jaundice and anemia on Pacific salmon. WDFW explained that “neither jaundice/anemia (Atlantic, sockeye, and Chinook salmon) nor HSMI [heart and skeletal muscle inflammation] (Atlantic and sockeye salmon)Wild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263-1

46 developed” in fish that were infected with PRV

- 1 from the eastern North Pacific. AR at 4518 ( cit ing to four different studies that conducted these laboratory experiments ). WDFW further note d that in British Columbia, only 0.05 percent of farmed Pacific salmon deaths are associate d with jaundice. AR at 4518
. The WFC asserted that the 2018 D i Cicco study is consistent with the findings of the 2017 Morton article. The WFC quotes the Di Cicco article’s abstract, alleging that the study “conclud[es] that ‘migratory [Pacific] chinook salmon may be at more than a minimal risk of disease from exposure to the hi gh levels of [PRV

- 1] occurring i n salmon farms. ’ ” Appellants’ Opening Br. at 43

- 44 (alterations in original) ( quoting Emiliano Di Cicco et al., The Same Strain o f Piscine Orthoreovirus (PRV

- 1) Is Involved in the Development of Different, b ut Related, Diseases in Atlantic and Pacific Salmon in British Columbia , 3 FACETS 1 ( J une 18, 2018) , https://www.facetsjournal.com/doi/10.1139/facets

- 2018

- 0008 ); AR at 6431
. T he authors of the D i Cicco study suggest that Chinook salmon may face this risk, but a deeper reading of the study reveals that it sought to “resolve whether Strain PRV

- 1 is likely to play a causative role in the develo pment of jaundice/anemia in [British Columbia] [C] hinook s almon.” AR at 6433. I t concluded that its findin gs in British Columbia “suggest[] that PRV1, the only PRV strain detected in [B ritish C olumbia] salmon, likely causes both diseases, HSMI and jaundice/anemia, in Atlantic and Pacific salmon respectively.” AR atWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

- 1

47 6464. WDFW thoroughly considered the possible risks that PRV
- 1 and associated diseases, like jaundice and anemia, pose to both Atlantic salmon and P acific salmonids. Based on its comparison and assessment of over a dozen studies on the prevalence o f PRV
- 1, WDFW concluded the “disease is rare and the pathogenicity of the virus is low or non

- existent in net

- pen aquaculture in the eastern North Pacific.” AR at 45 19. In addition to relying on numerous recent scientific studies of PRV, WDFW included its own relevant data derived from its PRV

- 1 surveillance program at selected hatcheries in Washington. This surveillance program was establish in 2018 after Cooke’s predecessor’s net pen failure in 2017. It was established that a high likelihood exists that more or all of the farmed Atlantic salmon were positive with a PRV

- 1 strain from Iceland. ( WDFW conclude d that the PRV

- 1 was most likely from the broodstock the company received from Iceland.) S ince 2018, WDFW has analyzed 64 8 samples from various sa lmonids, including steelhead trout; 87 percent tested negative for PRV

- 1. WDFW found no evidence existed to establish that the 2017 net pen failure resulted in the transmission of the Icelandic PRV
- 1 to wild salmonid populations in Washington. AR at 4520. The WFC argues that at minimum, there exists scientific uncertainty regarding PRV

- 1 related impacts to Pacific salmon, requiring WDFW to describe aWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

- 1

48 worst
- case scenario per WAC 197

- 11

- 080(3) (b) , which provides that a n agency shall “generally indicate

. . . its worst case analysis and the likelihood of occurrence, to the extent this information can reasonably be developed.” But the “worst

- case scenario” analysis is required only when “there [is]

. . . scientific uncertainty concerning significant impac ts” and “information relevant to adverse impacts is important to the decision and the means to obtain it are speculative or not known.” WAC 197

- 11

- 080 ( 2 ), (3) (b)

. WDFW, supported by the s cientific studies in the record, explained in its justification repor t that PRV

- 1 impacts both Atlantic salmon and Pacific salmon , but it is rare that the fish contract the disease. While t he associated diseases and infections may pose a risk to salmonids, Pa cific salmon are known to be susceptible only to PRV
- 1

- related jaundice or anemia, a nd available data shows that jaundice/anemia in Pacific salmon is exceptionally rare

. Finally, WDFW highlighted that the prevalence of PRV in wild steelhead trout i s low (1 out of 375 samples) ; however, it did not rely on the low prev alence within wild steelhead to reach its conclusion that there is a low risk of PRV
- 1 transmission from farmed Atlantic salmon and steelhead to wild salmonid populations

. Rather, WDFW explained that it anticipates that PRV

- 1 prevalence among all

- female , t riploid st eelhead trout in Cooke’s net pens will be more similar to that of farmed Atlantic salmon in Puget Sound

. Based on its analysis of PRV

- 1 prevalence and transmission among varying salmonid populations, includingWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

- 1

49 Atlantic and Pacific salmon and steelhead, WDFW concluded that the transmission from farmed Atlantic salmon to wild salmonid populations presents a low risk and the transmission from farmed steelhead presents the same or even lower risk. The WFC’s fourth and final major disease concern is the impact of s ea lice on wild salmonid

. WDFW concluded that sea lice in Puget Sound net
- pen facilities are monitored and do not reach a level of concern. The WFC argues that WDFW’s assessment of the prevalence of sea lic e is clearly erroneous because it relied on 2006 data rather than “more current information” that alle gedly undermines the 2006 data. Appellants’ Opening Br. at 44. However , the WFC does not point us in the direction of this new data. In its assessment, WDFW pointed to multiple studies , including two published in 2011 , showing that surface water salinity in Puget Sound remained at or below a specified level, which results in the high mortality of sea lice. The WFC, claiming that more current information e xists, cites to a DNR comment explaining that low summer stream flows may temporarily increase the salinity in Puget Sound , thereby making it more favorable for s ea lice. To support its assertion, the DNR cited a study published in 2003. Whereas, WDFW reli ed on two studies published in 2011 that examined 2006 data

. Compare AR at 2926 , with AR at 4521. The WFC’s argument that WDFW relied on outdated reports in the face of more current information is without merit. The other evidence the WFC cites is a comment from an individual who found a wildWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263

- 1

50 salmonid with sea lice near Cooke’s Hope Island facility. The discovery of one fish with sea lice does not refute WDFW’s findings based on scientific data nor does it establi sh the agency’s conclusion was clearly erroneous. Finally, the WFC argues WDFW’s threshold determination was clearly erroneous because the record does not show the agency adequately considered the harm posed by bycatc h and other ecological interactions. “ Bycatch ” refers to the inadvertent “catching” of wild fish during harvest. The WFC alleges WDFW “failed to require Cooke to monitor or report this bycatch” during harvest operations. Appellants’ Opening Br. at 45. This allegation is unsupported in the
reco rd . As a condition of the permit, C ooke must report the number and species of bycatch caught during harvesting every time it harvests. Also, WDFW, the DNR, and Ecology retain ed the right to monitor Cooke’s harvesting activities at the agencies’ request. The WFC also revisits the ecological impacts of escaped steelhead on wild salmonid. As noted before, WDFW imposed numerous mitigation measures to reduce the likelihood of an escape and to reduce the environmental impact in the event of an escape. After ca reful review of the record, WDFW’s justification report, mitigating provision requirements , and concerns raised by the WFC, we conclude WDFW evaluated the relevant environmental factors sufficiently to constitute prima facieWild Fish Conservancy v. Dep’t of Fish & Wildlife , No. 99263-1

51 compliance with SEPA. Therefore , WDFW’s threshold determination was not clearly erroneous. We affirm the trial court’s order and uphold the steelhead permit

.

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