### FILED SEPTEMBER23,2014 In the Office oftheClerkofCourt W A StateCourtofAppeals, Division III

INTHE COURTOFAPPEALS OF THE STATE OF WASHINGTON DIVISION THREE FERRYCOUNTY, ) ) No. 31331-0-III Respondent, ) ) V. ) ) GROWTHMANAGEMENTHEARINGS ) UNPUBLISHED OPINION BOARD; ENVIRONMENTAL AND ) LANDUSE HEARINGS OFFICE; ) CONCERNEDFRIENDS OF FERRY ) COUNTY; DAVIDL. ROBINSON; ) FUTUREWISE; SCOTT L. SIMMONS; ) RIPARIAN OWNERS OFFERRY ) COUNTY andFERRYCOUNTY ) CATTLEMAN'SASSOCIATION, INC., ) ) Appellants. ) FEARING, 

### J.

- We review for the secondtime the issue ofwhether, underthe GrowthManagementAct (GMA), Ferry County includedbest available science (BAS) when failing to identify any important local habitats and species aspartofits critical

areas ordinance. We also askwhetherany departure from bestavailable sciencebyFerry Countywas reasonablyjustified.No. 31331-0-III Ferry County v. Growth Mgmt. Hearings

In December 2011, the Growth ManagementHearings Board (GMHB) found Ferry County noncompliant again with the GMA, while ruling that the county enacted a critical areas ordinance that, withoutreasonablejustification, departed from best available science. Ferry County appealed the GMHB's decision to the superior court, arguing it included best available science in its decision notto designate any species orhabitats of local importance, and, ifand when it departed from BAS, it did sothrough a reasoned legislative process. The superior court agreed and reversed the GMHB. Futurewise and Concerned Friends ofFerry County, parties to the GMHB hearing, appeal the superior court decision to this appeals court. This reviewing court sits in the sameposition as the superior court and, underthe GMA, must bestow limited deference to the GMHB's findings. We hold thatthe GMHB did not abuse its discretion when rulingFerry County noncompliant with the GMA. Therefore, we reverse the superior court and affirm the decision ofthe GMHB. FACTS Ferry County lies in northeastern Washington, bordered on the westby Okanogan County, the eastby Stevens County, the south byLincoln County, and the north by British Columbia. The county was created in 1899 from the western end ofStevens County and is named for Washington's last territorial and first state governor, ElishaP. Ferry.

2No. 31331-0-II1 Ferry County v. Growth Mgmt. Hearings

As ofthe 2010 census, Ferry County'spopulation was 7,551. 16.7 percent ofthe county citizens are Native American. The city ofRepublic, the county's only incorporated community, serves as county seat. The city'spopulation is 1,073. The county comprises 2,257 square miles. Ferry County is the fourth smallest in population ofWashington's 39 counties butranks eighth amongst counties in territory. The county's population density is 3.43 persons per square mile. Only Garfield County, with 3.19 personsper square mile, has a lowerpopulation density. By contrast, King County contains 953.3 persons per square mile. The rugged Kettle River Range covers most ofFerry County and runs from the Canadian Borderto the ColumbiaRiver, the county's southern edge. Lake Roosevelt, the reservoir created in 1941 by the impoundment ofthe Columbia Riverby the Grand Coulee Dam, sits mostly in Ferry County. The Okanogan Highland extends north to south along the western edge ofthe county. Ferry County boasts the tallest year-round travelable pass in the state-ShermanPass at 5,575 feet. The south halfofFerry County lies within the boundaries ofthe Confederated Tribes ofthe ColvilleNation (Colville Tribes) and the north halfisJargely occupiedby the ColvilleNational Forest, leaving only 18 percent ofthe county's land as taxable. Ferry County'sprincipal industries are logging and mining, although tourism and recreation are increasing in economic importance. Republic sustains the last operational goldmine in the state. The median income for a household in Ferry County is $36,921. 

### 3No. 31331-0-111 Ferry County v. GrowthMgmt. Hearings Only Okanogan County, with a median income of$35,161, has a lower income rate. Twenty and one-halfpercentofthe Ferry County population lives belowthe poverty line. We outline some ofthe provisions ofthe GMA so that the underlying facts may be betterunderstood. The GMA requires counties to compose plans to responsibly manage their growth and to enact regulations to effectuate thoseplans. As part ofthose plans and regulations, local governments by ordinance must designate andprotectthe habitat of endangered, threatened, and sensitive species (ETS) offish and wildlife and species of local importance. RCW 36.70A.020(9), (10); RCW 36.70A.060(2); RCW 36.70A.l70(1)(d); WAC 365-190-130(2). When designating and protecting these environmentally critical areas, a local government entity must "includethe best available science." RCW 36.70A.172. The meaning ofthis statutory clause is the subject ofthis appeaLThe Washington Department ofFish and Wildlife (DFW) aids local government entities in identifYing critical habitats for priority species. The DFW develops lists, categorizedby region, ofpriority fish and wildlife species requiring protective measures and management guidelines. Priority species include species designated as endangered, threatened, or sensitive (state listed species); species that will be reviewedby DFW for possible listing as endangered, threatened, or sensitive (state candidate species); species

or groups ofanimals susceptible to significantpopulation declines within a specific area

or statewidebyvirtue oftheir inclination to aggregate (vulnerable aggregations); and 4No. 31331-0-III Ferry County v. Growth Mgmt. Hearings species ofrecreational, commercial, and/or tribal importance that are vulnerable. The DFWregional lists are called PHS lists, short for priority habitat and species lists, and are the primary means used by DFW to provide fish, wildlife, and habitat information to local governments, state and federal agencies, landowners, consultants, and tribes for land use planningpurposes. DFWproduces and distributes over4,000 copies ofthe PHS lists annually. DFW's listings include maps ofknown locations ofpriorityhabitats and species. The DFW complies its PHS data through field observations, scientific survey mapping projects, and geographic information systemtechnology. The DFW data is "extensive[ly] peer-review[ed]." Administrative Record (AR) at 658,690. A county should consult current information on priority habitats and species identified by DFW. WAC 365-190-130(4)(a). In 1993, pursuant to the GMA, Ferry County adopted its first interim critical areas ordinance, whichread, in relevantpart, '''The Washington Department ofWildlife Priority Habitats and Species quad overlay maps will be used to identify [areas with which endangered, threatened, and sensitive species have a primary association].'" Ferry County v. ConcernedFriends o/Ferry County (CFFC), 155 Wn.2d 824, 828, 123 P.3d 102 (2005). In 1997, Ferry County adopted its first amendments to the ordinance. The legislature created a GMHB to review a county's compliance with the GMA. Under the GMA, a party appearing at a county's GMA proceedings may file apetition with the GMHB to obtain aruling that the county failed to comply with the law. On 5 

# I jNo. 31331-0-III Ferry County v. Growth Mgmt. Hearings August 29, 1997, Concerned Friends ofFerry County (CFFC), in GMHB Case No. 97-1­ 0019, petitionedthe GMHB for review ofFerry County's critical areas ordinance and amendments. In an order datedJuly 31, 1998, the GMHB found that Ferry County failed to include best available science when evaluating critical areas and thus the county was noncompliant with RCW 36.70A.172. Under the GMA, the Washington governor holds powerto fine a county in violation ofthe GMA, but typically the only remedy for noncompliance is a GMHB orderdirecting the county to amend its ordinances andplans to become compliantby a deadline date. The GMHB imposed the latterremedy with its July 31, 1998, order. On December 7, 1998, Ferry County adopted more amendments to its comprehensive plan and critical areas ordinance. The 1998 version listed four ETS species in its designation ofcritical areas: Bald Eagle Ferruginous Hawk Lynx Peregrine Falcon Inresponse, Kevin Robinette, a DFWhabitat biologist, sent a December 16, 1998 lettertoFerry County and others. Robinette wrote that Ferry County's amendments remained weak in several areas. He opined that the county's list offour ETS species was incomplete and omitted at least the bull trout. Based on the PHS list, DFW, through Robinette, recommendedthat Ferry County list twelve species, in its critical areas

6No. 31331-0-II1 Ferry County v. Growth Mgmt. Hearings ordinance, as ETS: American White Pelican BaldEagle Bull Trout Ferruginous Hawk Gray Wolf Grizzly Bear Lynx Peregrine Falcon Pygmy Rabbit Sandhill Crane

.Upland Sandpiper

Woodland Caribou The GMHB conducted a hearingto determine ifFerry County had complied with the GMA and its July 31, 1998, order. Duringthe hearing, Ferry County agreed it rejected DFW'srecommendations. The county contended: "[O]ur scientist states that [the peregrine falcon] is not in the county and doesn'thave a primary association meaning it doesn'thave nesting habitat inthe county. So then we say we have to balance that with whatthe petitionerhas given us. Theyhaven't given us anythingto let us thinkthat the PeregrineFalconis in the county. All that Mr. Robinette states is that the Peregrine Falcon is among a whole slew ofspecies that are in Region 1 and Ferry County is in Region 1. End ofstory. That is not what the law states. We have our local discretion." 155 Wn.2d at 828-29 n.3. On September 30, 1999, afterthe compliance hearing, the GMHB issued another noncompliance order. The GMHB found thatthe record again provided no evidence that Ferry County considered BAS in designating fish and wildlife habitat conservation areas and identification ofpriority habitats and species. Accordingto the GMHB, the county 7No. 31331-0-III Ferry County v. Growth Mgmt. Hearings provided no rationale for excluding species designated by DFWexceptvague references to constitutional authority and a local legislative authority's discretion. In response to the GMHB's September 1999 order, Ferry County obtained two letters from its scientist, Dr. Donald McKnight. Dr. McKnight is a retired wildlife biologist with 30 years ofexperience withthe AlaskaDepartment ofFish and Game. His last position with Alaskawas ChiefWildlife Planner. He holds a Ph.D in Wildlife Ecology from Utah StateUniversity. Ferry County asked Dr. Donald McKnight to opine regarding the current status and distribution in Ferry County ofbird and mammal species listed by the DFW, with special attention to thepotential adverse effects ofdevelopment in the county upon these animals and their habitats. In two 1999 letters, Dr. McKnight concluded thatthe woodland caribou, grizzly bear, timber wolves, pygmyrabbit, ferruginous hawk, peregrine falcon, sandhill crane, upland sandpiper, and the American whitepelican did notrequire consideration as ETS species in Ferry County. In making his conclusions, McKnight consulted a book on bird breeding locationspublished in 1997 and "'various other field guides and wildlifetexts.'" 155 Wn.2d at 829. McKnight also spoke to Dana Base, a DFWwildlife biologist for Ferry County, regarding distribution ofpygmy rabbits. McKnight did not cite ordiscuss Base'sresearch or scientific methods. McKnight did not travel to Ferry County. Ferry County again amended its ordinance on February 28, 2000. TheFebruary 8No. 31331-0-III Ferry County 

### v. Growth Mgmt. Hearings 28,2000version ofthe ordinance listed only two ETS species, the bald eagle and the lynx. Instead ofadding species, the new ordinance removed two species, the ferruginous hawk and peregrine falcon, which the county had included in its December 1998 plan. Ferry County decided to list only the bald eagle and the lynxbased on the recommendations contained in the two letters from Dr. DonaldMcKnight. The county's

new list was contrary to evidence thatboth the bull trout and peregrine falcon were present in Ferry County. The United States Fish and Wildlife Service manages a bull trout recovery area in Ferry County and the Colville Tribes manages peregrine falcons as partofits gamebirdpopulations. At a March 27,2000, compliance hearingbefore the GMHB, counsel for Ferry County remarked, '''Now, there is one species that is endangered, threatened or sensitive that was not adopted by the county atthis time. I can't concede that it's in the county but

we are looking at it and it's thebull trout.'" 155 Wn.2d at 829 nA. In another order ofnoncompliance issued on May 23, 2000, the GMHB observed that Ferry County could choose to reject the DFWrecommendation, as long as that decision is based on a sound, reasonedprocess which includes BAS. However, the GMHB concluded that Ferry County's species listingwas not based on BAS: "The County has consulted with a credentialed biologist, but the process he undertook to develop his recommendations is inadequate. There is no evidence in the record that that [sic] the consultant coordinated his recommendation with any other scientists with expertise in Ferry County, such as the Colville [T]ribe, U.S. Forest Service, orthe DFW. There is no 9 

### j 

# , INo. 31331-0-II1 Ferry County v. Growth Mgmt. Hearings 

# I 1 evidencethat anyon-site field observations were conducted. With specific reference to thePeregrine Falcon, his recommendation seems to conflict with activities of the Colville Tribe. Regarding Bull Trout, a sensitive species documentedto exist in Ferry County, he makes no mention atall. 

# I The [GMHB] determines the Countyhas not provided a scientific 

### I foundation, evidence ofanalysis, or areasonedprocess tojustify their 

## I listing, while rejecting the recommendations ofendangered, threatened and 

# I sensitive species and wildlifehabitat conservation areas providedby DFW. 

# l 1 Such action was a mistake and is clearly erroneous.

....Ferry County is not in compliance with RCW 36.70A.l72 regarding protection ofwildlifehabitat." 155 Wn.2d at 830 (emphasis added). The GMHB directed the county to designate fish and wildlife habitat and species utilizing BAS within 120 days. Ferry County soughtjudicialreview ofthe GMHB's May 2000 decision. The county argued that the decision was not supported by sufficient evidence. The superior court affirmed the GMHB's noncompliance order. In doing so, the trialjudgereasoned: "Thebest available science means more than simply submitting the opinion ofsome person to a decision maker, in this instance the [GMHB] of County Commissioners

.... Under no circumstances can it be argued here that the County has submitted any informationthat would rise to the level ofbest available science. And theprocess that was presented to the [GMHB] here is simply a two-page summary letter, two letters by aperson identified as a wildlife biologist whichjustifiedthe County'sdecision to move away from the science they hadpreviously adopted in their interim critical area ordinances and in the first go rounds ofthe comprehensive plan, and the basis for that change was in no way explained by the conclusory statements ofthe biologist that was hired by the County. I understand

...the problems ofsmall counties and small towns in meeting this requirement ofprocess. There is no[t] $50,000 that can be allocated to prepare a study. Butthat doesn'tmean that the County is 10No. 31331-0-III Ferry County v. GrowthMgmt. Hearings

without any responsibility at all to show not only to the Growth Management Hearings [GMHB] butto its citizens that it iscomplying with the law in considering best available science." 155 Wn.2d at 831. Ferry County appealed the superior courtruling to the Court ofAppeals. The Court ofAppeals also affirmed the GMHB, holdingthat substantial evidence supported the GMHB's finding thatFerry County erred in not basing its species listing on BAS. Ferry County v. ConcernedFriends of Ferry County, 121 Wn. App. 850, 857, 90 P.3d 698 (2004). The state Supreme Court granted review and also affirmed the GMHB. CFFC, 155 Wn.2d at 836-37. During argumentbefore the Supreme Court, Ferry County's counsel conceded thatthe county was incorrect for failing to designate the bull trout as an endangered, threatened or sensitive species. CFFC, 155 Wn.2d 824 at 829 n.4. The CFFC courtnoted thatneither the GMHB nor Washington courts had adopted any definition for the "best available science" under RCW 36.70A.172, but instead had employed various factors when reviewing whether a county complied with the GMA. One reason for rejecting an unbending definition was to afford counties discretion when reviewing and applying BAS. CFFC, 155 Wn.2d at 834. Atthe least, however, a local government must "'analyze the scientific evidence and other factors in a reasoned process.'" CFFC, 155 Wn.2d at 835 (citation omitted). A county shouldproducevalid scientific information and consider competing scientific information and other factors III 

# I I i 

# ! I No. 31331-0-111 Ferry County v. GrowthMgmt. Hearings 

## 1 

# I through analysis constituting areasoned process. 155 Wn.2d at 835. Ferry County need 

## t not develop the scientific information through its own means, but "[b]ecause it chose to 

# I disagree with or ignore scientific recommendations and resources provided by the state 

# i 

# I 1 agencies and the Colville Tribes, which itcould do, the county necessarily had to unilaterally develop and obtain valid scientific information." 155 Wn.2d at 836. BAS does notrequire the use ofaparticularmethodology, but at a minimum BAS requires the 

# 1 

# j use ofa scientificmethodology. 155 Wn.2d at 837. The steps taken by Ferry County in 

# I analyzing the information did not constitute a reasoned process. The record showedno evaluation ofthe scienceproduced by Dr. McKnight, nor any comparing ofthe science 

# 1 ] provided byDr. McKnightto any other resources, such as science available from state or federal agencies or the Colville Tribe. A "'[c]ounty cannot choose its own science over all other science and cannot use outdated science to support its choice.'" 155 Wn.2d 837­ 38. 

# i The Supreme Court, in CFFC, 155 Wn.2d 824, even refused to accept Dr. McKnight's letter as constituting science because McKnight used no scientific methods 

# 1 

# I in gaining the information and did not discuss the methods used by the sources he cited. 

# I McKnight engaged in no site observations. Accordingly, the Supreme Courtruled that 

# j substantial evidence supported the GMHB's decision that Ferry County failed to include 

## 1 BAS in its 2000 designation ofcritical areas. CFFC, 155 Wn.2d at 838-39. 

# 1 

# 1 

# I 12No. 31331-0-III Ferry County v. Growth Mgmt. Hearings

After the 2005 Supreme Court decision, the legislature provided rulemaking authority to the Department ofCommerce. Pursuant to the legislature's direction, the Department ofCommercepromulgated criteria for determining which information is BAS. WAC 365-195-900-905. Since the 2005 Supreme Court decision, Ferry County has amended its comprehensiveplan and critical area ordinance many times. On May 18, 2006, Futurewise filed apetition for review in GMHB Case No. 06-1-0003. Futurewise, like Concerned Friends ofFerry County before it, alleged Ferry County failed to comply with the GMArelating to designating critical areas andprotecting fish and wildlifehabitat conservation areas. On October 6, 2006, the GMHB, in Futurewise's challenge, issued

an order finding Ferry County in noncompliance. The GMHB has since found Ferry County noncompliant in one orboth ofthe proceedings on June 9, 2008, February 13, 2009, March 17,2009, February 23, 2010, and March 3, 2010. Each time, the GMHB found the County failed to comply with the GMA because it refused to include BAS in designating and protecting critical areas, in particular, fish and wildlife critical habitat

areas. In 2010, DFWprovided Ferry County an updated list of31 priority species with federal or state listing status known to inhabit the county. DFWencouragedthe county to review the list when amending its critical areas ordinance. The species are: BaldEagle 13No. 31331-0-II1 Ferry County v. Growth Mgmt. Hearings

Black-Backed Woodpecker Bull Trout California Floater Columbia Spotted Frog Common Loon Fisher Flammulated Owl GoldenEagle Gray Wolf Grizzly Bear Ferruginous Hawk Juniper Hairstreak Lewis Woodpecker Loggerhead Shrike Lynx Merlin Merriam's Shrew Northern Goshawk Pileated Woodpecker Peregrine Falcon Preble's Shrew Shepard's Parnassian Silver-Bordered Fritillary Spotted Frog Townsend's Big-Eared Bat Vaux's Swift Western Grebe Western Toad White-Headed Woodpecker Wolverine Yellow-Billed Cuckoo ARat 1484-87. The 2010 DFW listremoved from its 1998 DFW list, the American white pelican, pygmyrabbit, upland sandpiper, and woodland caribou. Presumably, the "hawk" included on the 20I 0 list is the ferruginous hawk. OnJuly 5, 20I0, Karin Divens ofDFW sent a letterto Irene Whipple, Planning 14No. 31331-0-III Ferry County 

### v. GrowthMgmt. Hearings

Director ofFerry County. The letter discussed an amended critical areas ordinance and read, in part: "We are disappointed to see changes to the latest version

... , especially when the latest revisions remove much ofthe previous protections to priority habitats and species. We document our concerns with these changes and offerthe following recommendations. In the draft CAO, we do not find that endangered, threatened and sensitive species are designated orprotected. WAC 365-190-080(2) defines fish and wildlife habitat critical areas to include "areas with which endangered, threatened, and sensitive species have aprimary association." Although, the draft code supports habitatprotection for these species, there are not sufficient development regulations to protect these species. Critical areas ordinances play an importantrole in ensuringthe long-term survival offish and wildlife species in Ferry County

.... If FWHCAs are designated for upland habitat, projects occurring in these areas can be conditioned to avoid nest disturbance, avoid activities in certain times ofyear during breeding season, and employ other management orincentive strategies to accommodate fish and wildlife in the developing landscape. WDFW appreciates the inclusion ofHabitats and Species ofLocal Importance under Section 9.00 Fish and Wildlife Habitat Conservation Areas

.... However, the ordinance fails to designate the majority oflocally vulnerable species and their associated habitats found in Ferry County. The classification of"Habitats and species oflocal importance" appears to defer entirelyto a nominationprocess. Reliance on a future, potential nomination oflocal habitats or species does notprovide protectionto those habitats and species currently known to exist in Ferry County, based on BAS. 

# j As stated in aprevious comment letter

... , WDFW would like to reiterate that these sections fail to designate the majority oflocally 

# I i vulnerable species and their associatedhabitats found in Ferry County

.... 

### 1 We strongly encourage the county to revisit its BAS on record and 

## t I designate habitats and species oflocal importance pro-actively. 

## I J J 15 

# I ·fNo.31331-0-III Ferry County v. Growth Mgmt. Hearings

WDFWstrongly recommends thatconsultation with agency information be a requirementfor applicants seekingdevelopmentpermits for sites with known PHSspecies

. ... Furthermore, WDFWstrongly encourages that the CAO requires WDFWapprovalfor habitat managementplans created for sites with state-listedendangered, threatened, or sensitive species." AR at 1127-28. Karin Divens's letterthen listed habitats and species that should be identified and protected as priority habitats and species in the Ferry County critical areas ordinance. The species have already been listed herein. The letter proceeded further and read towards its end: WDFW strongly recommends the strike out language in Section 7.4.18 be retained as follows: "Fish and wildlife habitat conservation areas shall be protected by buffers as set forth in the Critical Areas Ordinance." AR at 1132. On September 10,2010, and April 4, 2011, the GMHB found Ferry County to continueto be noncompliant with its earlier orders and the GMA. In 2011, Ferry County conducted areview of22 ofthe 31 species identifiedby DFW for possible local importance designation. The county documented the review in a four-page document. The review noted the protected status ofeach species. The review designated priority areas for each species, which areas included the entire county, the species' breeding area, the species' foraging areas, ormigratory stopovers. The review

16No. 31331-0-III Ferry County v. Growth Mgmt. Hearings

identified the habitats in which each species couldbe found. Examples ofhabitats included wetlands, streams, ponds, riparian areas, meadows, forests, snags, shrub-steppe, grasslands, cliffs, old growth forest, aspen groves, logs, caves, open water, freshwater lakes, and the eastside steppe. The review concluded that the loggerhead shrike,juniper hairstreak, Shepard'sparnassian, and ferruginous hawk did not inhabit Ferry County. The 20II Ferry County review designated no species as important and did not referto any science or a scientific methodology. The Ferry County review recommended to excludethe golden eagle as a species oflocal importance solely upon economic impact. Forthejustification ofomitting several other species, the reviewreasoned that logging or grazing is "underotherjurisdictions." Presumably, the otherjurisdictions are the National Forest Service and the Colville Tribes. In April 2011, Ferry Countypresented a draft ofa new critical area ordinance to DFWbiologist Karin Divens. The county based its drafts on the completed review ofthe 22 species. The proposed ordinance read: 2. Ferry County has reviewed the Washington State Department of Fish and Wildlife's Priority Habitat and Species list. There are currently no candidate species or species ofconcern that have been identified as species oflocal importance. AR at 336. The proposed ordinance, however, created aprocess by whichthe public could nominate a species or area for inclusion in a critical area as a species or habitat of local importance.

17No. 31331-0-II1 Ferry County v. Growth Mgmt. Hearings

Karin Divens urged Ferry County to reconsider its decisionto not designate any species. Divens explained in a lettertothe Ferry County GMHB ofCounty Commissioners: Thepresence ofState, Federal and Tribal land in a County does not diminish the importance ofprotection ofa species and associatedhabitats on private lands. Local governments shouldprovide clearprocess for designating and protectingFish and Wildlife Habitat Conservation by utilizing BAS and developing protective policies and regulations. Unfortunately, wildlife species do not adhere toproperty boundaries. Protecting habitats with which specieshave association is very important as wildlife species are extremely mobile and movereadily aboutthe landscape. Protectingthe habitatwill not only benefit state and federally listed species, but will also prevent future listings, while protecting species that are important to the local area and local economy through the influx of consumptive and non-consumptive dollars. Whilethe greaterproportion ofland within Ferry County is held in public ownership, these lands are generally higher in elevation and tendto be less ecologicallyproductive comparedto areas predominately inprivate ownership at lower elevation. These low elevation, private lands are characterized by ajuxtaposition ofagriculture, woodlands, andriparian zones, which are higher inproductivity than high elevation forests and are important to wildlife in avariety ofways includingproviding movement corridors and winter and springrange to migrating deer

.... These lowland areas in private ownership also have important riverine and open waterhabitats and wetlands. There are documented nesting sites for bald eagle and golden eagle in the valley bottoms, as well as documented nesting sites for state listed woodpecker species. These habitatsprovide for close association ofotherpriority species such as Great Blue Heron and many waterfowl species. AR at 1134.

18No.3l33l-0-II1 Ferry County v. Growth Mgmt. Hearings

On July 25,2011, the Ferry County Board ofCommissioners enacted Ordinance 2011-02, which updated the critical area ordinance and was consistent with the proposed ordinance given to Karin Divens. Critical Areas Ordinance 2011-02 is the ordinance at issue on appeal and reads, in pertinentpart: An ordinance adopting development regulations as required by RCW 36.70A.030(7). WHEREAS, RCW 36.70A.172 states "In designating and protecting critical areas under this chapter, counties and cities shall include the best available science in developing policies and development regulations to protect the functions and values ofcritical areas.... WHEREAS, in orderto come into compliance with the Growth Management Act per the Growth Management Hearings Board Order, Sections 2.00,3.00,4.00,4.01, 8.03, 9.00, 9.01, 9.02, 9.03, 9.04 were amended

.... WHEREAS, the measures adopted through this ordinance are designed to meet these requirements. NOW, THEREFORE, BE IT ORDAINED by the Board ofFerry County Commissioners, as follows: Section 9.00 FISH AND WILDLIFE HABITAT CONSERVATIONAREAS Fish and wildlife habitat conservation areas are defined as land management areas for maintaining species in suitable habitats within their natural geographic distribution so that isolated sUbpopulations are not created

.... To maintain viable populations ofwildlife species, there must be adequate environmental conditions for reproduction, foraging, resting, cover, and dispersal ofanimals at a variety ofscales across the landscape. Key factors affecting habitat quality include the presence ofessential resources such as food, water, and nest building materials, the complexity ofthe environment, and the presence or absense [sic] ofpredator species and diseases. Ferry County protects habitat for fish and wildlife species using this ordinance and associated protection measures described below. 19

# I
t No. 31331-0-111 Ferry County v. GrowthMgmt. Hearings 

# 1 i Ferry County has a very high proportion offederal, state and other publicly and tribally owned land. These lands are generally managed for the conservation ofwildlife habitat. Consequently, one ofFerry County's approaches to protecting all wildlife habitat types is to depend on the management ofthese lands by the responsible agency; i.e. Colville Confederated Tribes, U.S. Fish and Wildlife, U.S. Forest Service, U.S. Bureau ofLandManagement, Washington Department ofFish and Wildlife, Washington Department ofNatural Resources, etc. 

### Section 9.01 CLASSIFICATION 

# I The following sixhabitat areas shall be classified fish and wildlife habitat conservation areas. 

### 1) Areaswith which endangered, threatened and sensitive species have a primary association. a) Federally designated endangered and threatened species are those 

# I fish and wildlife species identifiedby the U.S. Fish and Wildlife Service and the National Marine Fisheries Service that are in danger ofextinction or threatened to become endangered. The U.S. Fish and Wildlife Service and the National Marine Fisheries Service should be consulted for current listing status. b) State designated endangered. threatened, and sensitive species are those fish and wildlife species native to Ferry County identified by the Washington DepartmentofFish and Wildlife, that are in danger of extinction, threatened to become endangered, vulnerable, ordeclining and are likely to become endangered or threatened in a significantportion of theirrange within the county without cooperative management orremoval ofthreats

.... 2) 

### Habitats and species oflocal importance. There arehabitats or species that due to their decliningpopulation, sensitivity to habitat manipulation orothervalues make them important on a local level. Habitats oflocal importance may include a seasonal range orhabitat element with which a given species has a primary association, and which, if altered, may reduce the likelihood that the species will maintain and reproduce overthe longterm. These habitats and species may be identified and nominated for inclusion orremoval as Habitats and Species ofLocal Importance by state agencies, Ferry County, and local individuals, organizations ortribes. Review ofaHabitat and Species ofLocal Importance application is a legislative action, and shall be processed during 20No. 31331-0-III Ferry County v. Growth Mgmt. Hearings

the Comprehensive Plan amendment cycle. Upon adoption ofa compliant Critical Areas Ordinance, the County upon receipt ofa completed nominating orremoval form for each species, habitat and/or areawill review the application using the following process. 

### a) Petition to nominate orremove an area or a species to this category shall contain all ofthefollowing for each species or habitat: Final approval by the Board ofCounty Commissioners of nominations will become designated "Habitats and Species ofLocal Importance," and will be subject to the provisions ofthis ordinance. Habitats and species nominated and affordedprotection underthe category "Habitats and Species ofLocal Importance" shallthenbe subject to review under this ordinance. 

### Section 9.02 Habitat areas that meet the above classification criteria [Section 9.01] are designated as fish and wildlife habitat conservation areas and are subject to theprovisions ofthis ordinance and shall be managed with the Best Available Science on a [case] by [case] basis. 

### BIBLIOGRAPHY The following documents are referred to in this ordinance and are includedby reference for use orguidance. Changes to these documents by the author or authoring agency require review by Ferry County for effect on 

# I this ordinance and possible need for other adjustments to the ordinance l before being approved for inclusion in the ordinance by act ofthe Board of County Commissioners: Section 3.00: • Natural Resources Conservation Service Field Office Technical Guide • • WAC 232-12-014, Wildlife Classified as Endangered Species, 01-30-06; • WAC 232-12-297, Endangered, Threatened, and Sensitive Wildlife Species Classification, 01-28-02;

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# j No. 31331-0-III Ferry County 

### v. Growth Mgmt. Hearings

• Washington Department ofFish and Wildlife, Classification System for Priority Habitat, updated 2/4/98; • Washington Department ofFish and Wildlife, PriorityHabitat and Species Program, initiated 1989; Section 4.02: • WAC 365-195-905, Criteria for Determining Which Information is the Best Available Science, 08-27-00; Classification ofRisk to Structural Development; Section 9.00: • WAC 365-190-080(5), Minimum guidelines to classify agriculture, forest, mineral lands, and critical areas,-Critical Areas, Fish and wildlife conservation areas, 04-15-91 ; Section 9.01: • RCW90.58. Shoreline Management Act, 1971; • WAC 222-16.031, Interim watertype system, 07-01-05; • WAC 232-12-011, Wildlife classified as protected shall not behunted or fished, 01-30-06; • WAC 232-12-014, Wildlife classified as endangered species, 01-30-06; • WAC 365-190-080 (5) (c)(ii), Minimum guidelines to classify agriculture, forest, mineral lands and critical areas,-Critical Areas, Sources and methods-species oflocal importance; 04-15-91; • Washington Department ofFish and Wildlife Maps (Fish Planting); Section 9.04 • Divens, Karin, Department ofFish and Wildlife Priority Habitats and Species Biologist, letterto Irene Whipple, 3-25-10 • Transcription ofdiscussion with Karin Divens at the Planning Commission regular meeting; 4-14-10; • Divens, Karin, Department ofFish and Wildlife Priority Habitats and Species Biologist, letter to Honorable Joe Bond, 4-26-10 The Ferry County Board ofCommissioners attachedto Ordinance Nos. 2011-02

22No. 31331-0-III Ferry County v. GrowthMgmt. Hearings findings offact, which read: Findings ofFact: (ExhibitA) In designating and protecting the functions and values ofcritical areas, Ferry County has included BestAvailable Science (BAS)perRCW 36.70A.172 and WAC 365-195 in developing policies and development regulations. In considering BAS, Ferry County has consultednumerous times with WDFW

.... Ferry County's landbase is predominately State and federal owned. The Board finds thatthe economic base is hampered and in decline due to the lack ofprivate ownership ofthe land. In RCW 36.70A.OIO, "the legislature finds thatuncoordinated and unplanned growth, togetherwith a lack ofcommon goals expressingthe public's interest in the conservation and the wise use ofour lands, pose a threatto the environment, sustainable economic development, and the health, safety, andhigh quality oflife enjoyedby residents ofthis state. Itis in the public interestthat citizens, communities, local governments, and the private sector cooperate and coordinate with one another in comprehensive land use planning. Further, the legislature finds that it is in the public interestthateconomic developmentprograms be shared·with communities experiencing insufficient economic growth." The Board finds that human health and safety concerns and sustainable economic development is ofthe utmost importance to Ferry County. Ferry County has reviewedthe changes and finds that CAO is consistent and implements the goals and policy ofthe comprehensive plan. Ferry County finds that it must balancethe goals ofthe GMAwhile giving a high degree ofweightto local conditions. Ferry County has removed most RCW and WAC citations and replaced this with language consistent with current law andrule as to create an opportunity for local public participation and local deference as laws and rules change in the future. 

### Changes to the CriticalAreas Ordinance: (findings)

23No. 31331-0-III Ferry County v. GrowthMgmt. Hearings

1. In accordance with WAC 232-12-014 and WAC 232-12-011, Ferry County adopted the Washington State Fish and Wildlife recommendations pertainingto the Endangered, Threatened and Sensitive species list. Ferry County recognizes that the Endangered, Threatened, and Sensitive species list changes periodically, therefore Ferry County chose not to list the species individually. Ferry County will consultwith and use the most current Department ofFish and Wildlife Endangered, Threatened, and Sensitive species list. 2. Ferry County has reviewed the Washington State Department of Fish and Wildlife's Priority Habitat and Species list. There are currently no candidate species or species ofconcernthathave been identified as species oflocal importance. 8. For organizational purposes, in section 4.01, language was removed to emphasize Ferry County's use ofBestAvailable Science and for consistency and accuracy ofcurrent law and regulation, as well as consistency internally within revised CAO. 

### I L Section 9.01(2), new language was added to illustrate Ferry County's extensive efforts toprotect Fish and Wildlife conservation areas. WAC references were removed to reflect current rules and to eliminate inconsistent language. Language was deleted to reflect areview ofall 29 species associated with Ferry County being reviewed utilizing BAS and givingjustification for any deviation from BAS. Language was added and organizational changes were made to simplifY the CAO for use and understanding in protecting species and habitat.

... 14. In Section 9.02 ofthe Critical Areas Ordinance, language was added to include and utilize Best Available Science to properly designate Fish and Wildlife Habitat. 16. In Section 9.04 ofthe Critical Areas Ordinance, Ferry County removed language and added a map to define and specifY the location of Fish and Wildlife Conservation Areas. Ferry County removed inaccurate information and added relevant information to showthatthe Priority Habitats and Species program will be used to betterdetermine the mapped polygon areas for Endangered, Threatened and Sensitive species. Language was added to clarifY for the generalpublic the Habitat and Management plan process.

24No. 31331·0-III Ferry County v. Growth Mgmt. Hearings

DFWBiologistKarin Divens had recommended to Ferry County that the critical

areas ordinancerefer explicitly to thehabitats primarily associated with the ETS species

so thatreview ofa development application is triggered notjustby the occurrence ofan individual species, some ofwhich are highly mobile, butby considering development impacts to primaryhabitat for that species. Section 9.01ofOrdinance 2011-02 merely refers to species listings maintainedbynamed federal and state agencies butdoes not provide any methodology for locating habitat areas. In reading Section 9.01(1), one cannot discern whathabitat areas or locations are designated. Section 9.01 also contains

no list ofpriority species with endangered, threatened or sensitive status. Critical Areas Ordinance 2011·02, section 9.04 refers to a map, titled Fish and Wildlife HabitatConservation Areas ofFerry County, as showing the approximate location and extent offish and wildlifehabitat areas for endangered, threatened and sensitive species, butthe map is not contained in the record. On March 2, 2011, the Colville Tribes commented onthe critical areas ordinance, stating that section 9.04 needs to have the Tribal Critical Habitat maps. Although the ordinance contains these habitat maps, the record does notrenectFerry County's consideration ofthe tribal critical habitat maps. Ferry County, by Resolution 2011-41, entered additional findings offact in 

# I , support ofOrdinance 2011-02. The findings read, in part: WHEREAS, based onpublic input, review and analysis ofbest 

# I

25 

# I I r

# 1 1 

# I No. 31331-0-III Ferry County v. GrowthMgmt. Hearings



### , I available science (BAS) pertinent to Ferry County and otherrelevant 

### J information, the Planning Department developed the Critical Areas Ordinance and ComprehensivePlan proposal tailored to address the 

### J compliance orders; 

# 1 4. The planning Commissionreviewed the BAS as provided by the WDFW, the Nature Serve [sic], and the U.S. Fish and Wildlife Bull Trout Recovery plan in consideration ofthe "Species ofConcern' and 'Candidate Species' on the WDRW Priority Habitat and Species List (PHS list) for Ferry County. The Review and findings ofthis BAS is in the Record as a document titled "2011 Ferry CountyReview ofWashington Fish and Wildlife PHS Candidate Species for Possible Habitats and Species ofLocal Importance Designation." AR at 1539. 

# I In the resolution, the Ferry County GMHB ofCommissioners declared: In review ofthe BAS in the Record: a. Itwas found that there was NO specific mapped area in Ferry County for 12 ofthe State candidate species to the PHS list for Ferry County. 

# I b. Itwas found that specific mapped area was unknown for 2 ofthe State candidate species on the PHS list for Ferry County. c. Itwas found that current breeding habitat status is unknown for 10 ofthe State candidate species onthe PHS list for Ferry County. d. Itwas found that there are Riparian and Wetlandbuffers in place concerning 6 ofthe State candidate species on the PHS list for Ferry County. e. Itwas found that there are no buffer recommendations for six of the State candidate species on the PHS list for Ferry County. f. Itwas found that protection of5 ofthe State candidate species on the PHS list for Ferry Countywouldhavenegative impact to the recreational and tourism economy or the entire economy ofFerry County. g. Itwas found that 2 ofthe State candidate species on the PHS list for Ferry County are extirpated. h. Itwas found that BAS did notprovide specific protection measures or managementplans for 7 ofthe State candidate species onthe PHS list for Ferry County. 

### 26 

# 1 1 

# jNo. 31331-0-III Ferry County v. Growth Mgmt. Hearings


### i. Itwas found that in the U.S. Fish and Wildlife documents that there is no designated critical habitat for bull trout in Ferry County even though bull trout is a State candidate species on the PHS list for Ferry County. k. Itwas found that the breeding habitat for 1 ofthe State candidate species on the PHS list for Ferry County is actually in the Okanogan County portion ofthe Colville Confederated Tribes Reservation. 

### 1. Itwas found that species distribution does not include Ferry County for 2 ofthe State Candidate species on the PHS list for Ferry County. AR at 1539. According to the Ferry County Board ofCounty Commissioners, BAS reflected thatnone ofthe 22 "StateCandidate Species" warrant designation as "Species ofLocal Importance." ARat 1539-40. Therecord, however, does not address whythe county analyzed only 22 ofthe 31 species the DFW listed on its PHS list as occurring in Ferry County. The county's review did not include thebald eagle, peregrine falcon, flammulated owl, common loon, fisher, gray wolf, grizzly bear, or lynx. Ferry County asserted the July 2011 ordinance and resolution brought it into compliancewiththe GMA's critical areas provision. Thus, Ferry County moved the GMHB in boththeFuturewise andthe Concerned Friends ofFerry County casesto find it compliant with the GMA. Bothpetitioners objected to Ferry County's motion, arguing that the county's refusal to follow DFW's recommendations was not supported by BAS

or a reasonedprocess. On October 7,2011, the GMHB conducted a compliance hearing inthe consolidated Futurewise and Concerned Friends ofFerry County cases. Bywritten 27No. 31331-0-III Ferry County v. Growth Mgmt. Hearings

decision on December 1, 2011, the GMHB agreed with Futurewise and Concerned Friends and held the July 2011 critical area ordinance noncompliant with the GMA. The December 1decision is what this courtreviews. Portions ofthe decision read: II. BURDEN OF PROOF Forpurposes ofBoard review ofthe comprehensive plans and development regulations adopted by local governments in response to a noncompliance finding, the presumption ofvalidity applies and the burden is on the challengerto establish thatthe new adoption is clearly erroneous in view ofthe entire record before the board and in light ofthe goals and requirements ofthe chapter. In orderto find the County's action clearly erroneous, the Board must be "left with the firm and definite convictionthat a mistake has been made." Within the framework ofstate goals and requirements, the Board must grant deference to local governments in how they plan for growth

.... IV. DISCUSSION Ifa county chooses to disagree with or ignore scientific recommendations and resources provided by state agencies or Indian tribes, which a county could do, the county must unilaterally develop and obtain valid scientific information. The GMA does notrequire a county to follow BAS; rather it is required to "include" BAS in the record. A county may depart from BAS ifitprovides a reasoned justification for such departure. The Department ofCommerce Minimum Guidelines also state that counties and cities should identify and classify seasonal ranges and habitat elements where federal and state listed endangered, threatened and sensitive species have aprimary association and which, ifaltered, may reduce the likelihoodthatthe species will persist overthe long term. Counties and cities should consult current information onpriority habitats and species identified by the Washington Department ofFish and Wildlife (WDFW). The goal offish and wildlife habitat conservation is to manage land so as to maintain species in suitable habitats within their natural geographic distribution so that isolated subpopulations are not created. 28 

## iNo.31331-0-III Ferry Countyv. Growth Mgmt. Hearings



### 3. Recent Legislative Action by FerryCounty On July 25,2011, Ferry County passed Critical Areas Ordinance #2011-02 amending Critical Areas Ordinance# 2009-05, Sections 9.00, 9.01,9.02,9.03, and 9.04, relating to Fish and Wildlife Conservation Areas. On July 25, 2011, Ferry County adopted Resolution No. 2011-41 entitled "Findings ofFact for the Comprehensive Plan and Critical Areas Ordinance Relating to Fish and Wildlife Habitat ConservationAreas." 

### 5. Board Analysis-Designation ofFish and Wildlife Habitat Conservation Areas The GMArequires counties to both Designate and Protect Fish and Wildlife HabitatConservation Areas (FWHC Areas). Designation is a fundamental first step that informs County decision makers and the public on determining the location ofFWHCAreas. The GMA's mandate to protect FWHC Areas cannotbe fulfilled unless people can figure out where FWHC Areas are located. When designating Fish and Wildlife Habitat Conservation Areas, BestAvailable Science (BAS) mustbe included in the record-the County mustrely on scientific information and must analyze that information using a reasoned process, i.e., a scientific methodology. Ferry County v. ConcernedFriends of Ferry County, 155 Wn.2d. 824, 836-837 (2005). In the present case, Ferry County made the following Finding of Fact: WHEREAS, based on public input, review and analysis ofbest available science (BAS) pertinentto Ferry County and other relevant information, the Planning Department developed the Critical Areas Ordinance and Comprehensive Plan proposal tailored to address the compliance orders; 

# i Butthe Board must examinethe entire record in this case to determine ifPetitioners have satisfied theirburden to demonstrate thatthe County failed to include BestAvailable Science as to FWHCArea designations andpolicy development. Critical Areas Ordinance # 2011-02, Section 9.01 states that six I habitattypes shall be classified fish and wildlife habitat conservation areas: 

## i 1) Areas with which endangered, threatened and sensitive species 

# l have a primary association. j 1 2) Habitat and species oflocal Importance. i 29No. 31331-0-III Ferry County v. Growth Mgmt. Hearings

Ordinance 2011-02, Section 9.02 entitled "DESIGNATION" provides: Habitat areas that meet the above classification criteria [Section 9.01] are designated as fish and wildlifehabitat conservation areas and are subjectto the provisions ofthis ordinance and shall be managed with the BestAvailable Science on a site by sitebasis. Thus, Section 9.02 "DESIGNATION" appears to be the main operative provision designating FWHC Areas in Ferry County and works in tandem with Section 9.01 "Classification." 

### Designation-Endangered,Threatened and Sensitive Species However, the Section 9.01 habitat classification "Areas with which endangered, threatened and sensitive species have aprimary association," and explanatory language contains no reference to 

### "habitats"butrefers only to 

### "species." WDFW BiologistKarin Divens had recommended "referring explicitly to the 

### habitatsprimarily associated with the 

### E/T/S species" so that "review ofa development application is triggered notjust by the occurrence ofan individual 

### species (some ofwhich are highly mobile), but by considering development impactto primary 

### habitatfor that species." There is no evidence in the record ofany scientific information that refutes the science provided by the WDFW Biologist on designating 

### EITIS habitats. Ferry Countyhas departed from or ignored the scientific recommendation by WDFW to designate 

### E/T/S habitats notjust

### species, without any reasonedjustification. This ordinance language in Section 9.01(1) also contains no indication that BAS was included or analyzed with areasoned process. Section 9.01(1) merely refers to 

### E/T/S species "listings" maintained by named federal and state agencies but does not provide any methodology for locatinghabitat areas. In reading the current language ofSection 9.01(1), one cannot discern what habitat areas or locations would meetthe classification criteria for an "Areawith which endangered, threatened and sensitive species have aprimary association." Also, there are no maps showing the locations ofsuch designated areas. Thus, contrary to WAC 365-190-080(4), the County did notuse any maps and did not use performance standards to designate Fish and Wildlife Habitat Conservation Areas.

30No. 31331-0-111 Ferry County 

### v. Growth Mgmt. Hearings Moreover, WAC 365-190-130(4)(a) states that counties should identifY and classifY seasonal ranges and habitat elements where federal and state listed endangered, threatened and sensitive (ETS) species have a primary association and which, ifaltered, may reduce the likelihood that the species will persist overthe longterm. Butthe ordinance language In Section 9.01 does not identifY any seasonal ranges orhabitat elements. CAO Section 9.01 also contains no list ofPriority Species with Endangered, Threatened or Sensitive status although such a list hadbeen provided by WDFW to Ferry County. Designation-Habitats and Species ofLocal Importance Regarding the classification "Habitats and species oflocal importance," CAO Section 9.01(2) provides: These habitats and species may be identified and nominated for inclusion orremoval as Habitats and Species of Local Importanceby state agencies, Ferry County and local individuals, organizations or tribes. Review ofa Habitat and Species ofLocal Importance application is a legislative action, and shall be processed during the Comprehensive Plan amendment cycle. Section 9.0 1(2)(a) requires submission ofapetition to nominate or remove an area or a species, containing a number ofitems. WAC 365-190-130(4)(b) states that counties and cities should identifY, classifY and designate locally importanthabitats and species. Further, counties "shou.ld consultcurrent information onpriority habitats and species identified by the Washington state department offish and wildlife." WDFW BiologistKarin Divens had recommended in pertinentpart as follows: WDFW is concerned thatthe process for nominating Habitats and Species ofLocal Importance is overly burdensome. As written, the nomination process is onerous because it would require applicants to propose specific and relevant protection regulations, propose management strategies, provide specifichabitat locations, andrequires an agency or qualified professional toprepare the information. The only appropriate requirement for designation is thatthe designation bebased onBest Available Science. WDFW has 31No. 31331-0-III Ferry County v. Growth Mgmt. Hearings

not developed management strategies for all priority species and habitats and therefore, strongly suggests elimination of the management strategy requirement. The term is not defined, and keeping this as aprecondition will likely result in the loss ofmany critical fish and wildlife resources... Limiting designation to mapped species and habitats is an overlyburdensome expectation to include in a nomination process ...not all habitats and species are mapped, and maps cannot account for the movement ofspecies seasonally and overtime. Therefore, we always recommend local governments designate species that are vulnerable to future listing, such as Candidate species, and include a site-specific review to verify the presence ofa designated FWHCA. This should be the same process for a listed species. The ordinance language in Section 9.01 contains no indication that BAS was included oranalyzed with areasoned process. The management strategy requirement in Section 9.01 (2) is contrary to the strong scientific recommendation that (1) management strategies do not exist for some species and habitats and (2) keeping this requirement will likely result in the loss ofmany critical fish and wildlife resources. Furthermore, limiting designation to mapped species and habitats is a departure from BAS since maps alone cannot account for the movement ofspecies seasonally and overtime. Moreover, as to the CAO'sdesignation ofHabitats and Species of Local Importance, WDFW stated: WDFW would like to reiterate that these sections fail to designate the majority oflocally vulnerable species and their associated habitats found in Ferry County. The classification of"Habitats and species oflocal importance and habitats for species oflocal importance" appears to defer entirely to a nomination process. Reliance on a future, potential nomination oflocal habitats or species does not provide protection to the habitats and species currently known to exist in Ferry County, based on best available science. We strongly encourage the county to revisit its BAS onrecord and designate habitats and species oflocal importanceproactively. 

### 32

# I No. 31331-0-III Ferry County v. GrowthMgmt. Hearings

In 20I0, WDFWprovided the County with a list of31 Priority Species known to occur in Ferry County with Federal and/or State listing Status (ETS). In 2011, the County completed areview of22 species for possible local importance designation. None ofthose species were designated, and the County'sreasoning did not include a reference to identifiable BAS orto a scientific methodology. For example, as to the decision notto list the GoldenEagle, the reasoningwas solely economic impact, with no reference to science. For several other species the reasoning was that logging orgrazing is "under otherJurisdictions," with no reference to science. Underthe GMA, Ferry County can list whatever species it deems appropriate ifit supports its decision by BAS. Ferry County asserts in briefingthat the "reasonedjustification" for departing from BAS does not need to be based on science itself, and the County cites to Swinomish Indian Tribal Community etal. v. WWGMHB, 161 Wn.2d 415,431, [166 P.3d 1198] (2007). In the Swinomish, the Washington Supreme Court held thatthe GMA'srequirementto 

### protect critical areas does not impose a requirementto 

### enhance critical areas by, for example, requiring farmers to replant areas adjacentto streams that were lawfully cleared in the past. The omission ofmandatory stream buffers from Skagit County's critical areas ordinance was ajustified departure from BestAvailable Science because the mandatory buffers would impose an obligationto enhance that goes above and beyondthe GMA's duty to 

### protect. In otherwords, BAS needs to be included in the decision-making process, but science cannot create new duties not imposed by law. In the present case, the record contains BAS relating to the designation andprotection ofFishand Wildlife Habitat Conservation Areas. Butnothing in the record suggests that this BAS would create any new duties not already imposed by law. In 2005, the Washington Supreme Court held in a case arising out of Ferry County that BAS requires the use ofa scientific methodology and a reasoned process. A county may depart from BAS ifitprovides a 

### reasoned justification for such departure. In the 2005 Supreme Court decision, the court noted: The fact thatthe county's listing omits both the peregrine falcon and the bull trout, both ofwhich are ETS species known to be present in Ferry County, further supports thatthe listing was not generated using BAS. 33No. 31331-0-III Ferry County v. Growth Mgmt. Hearings

These holdings ofthe Supreme Court are mandatory authority, and this Board must adhere to and apply the Supreme Court'sruling. In the presentcase, Ferry County failed to provide a reasonedjustification for departing from the BestAvailable Science in designating habitats and species known to bepresent in Ferry County. As in the earlierFerry County Supreme Court case, the omission here ofall 22 species ofpossible local importance supports a finding thatthe ordinancewas not generated using BAS.

. . . . There is no substantial evidence in the recordto support a County finding that BAS was included in designating Ferry County's Fish and Wildlife Habitat Conservation areas. Ferry County failed to include the BestAvailable Science in designated (1) Areas where ETS species have a Primary Association, and (2) Habitats and Species ofLocal Importance. Ordinance 2011-02 designations ofFish and Wildlife Habitat Conservation Areas (relating to ETS Habitats and Species, and Species ofLocal Importance) were clearly erroneous in view ofthe entire record before the [GMHB] and in light of the goals and requirements ofthe Growth ManagementAct. On remand, Ferry County should provide a reasonedjustification for departing from BestAvailable Science in designating Fish and Wildlife Habitat Conservation Areas. Clerk'sPapers (CP) at 13-28. By this new lawsuit, Ferry County seeks review ofthe GMHB's Compliance Order, entered December 1, 2011. The superior court granted Ferry County partial summaryjudgmentand ruled that the county had included BAS ordeparted from that science for ajustifiedreason when designating critical habitats. Accordingly, the court reversed the GMHB. Futurewise and ConcernedFriends ofFerry County appeal.

34No.31331-0-III Ferry County 

### v. Growth Mgmt. Hearings

LAWANDANALYSIS

Assignments ofError Futurewiseraises a procedural argument, that, ifaccepted, would end our review and require a ruling in its favor. Futurewise contends that the GMHB's factual findings

are verities on appeal because Ferry County failed to assign error to any ofthe Board's findings. The GMHB entered a finding offact that "no substantial evidence in the record

... support[ed] a County finding that BAS was included in designating Ferry County's Fish and WildlifeHabitat ConservationAreas." CP at 28. Ferry County does not specifically assign error to the finding. RAP IO.3(h) applies to appeals from a superior court'sreview ofadministrative agency rulings and reads: (b) Assignments ofError on Review ofCertain Administrative Orders. In addition to the assignments oferrorrequired by rule IO.3(a)(3) and 1 O.3(g), the briefofan appellant orrespondent who is challenging an administrative adjudicative order underRCW 34.05 or a final order under RCW41.64 shall set forth a separate concise statement ofeach error which aparty contends was madebythe agency issuing the order, together with the issues pertaining to each assignment oferror. RAP IO.3(h) applies to a party contending that the administrative agency decision was in error, regardless oftheparty's designation as appellant or respondent before the appellate court. 3KARLB. TEGLAND, WASHINGTONPRACTICE: RULES PRACTICE RAP 10.3 drafters' cmt. 1994 amends. at 54 (7th ed. 2011). In turn, RAP IO.3(g) demands a separate assignment oferror for each finding offact a party contends was improperly 35No. 31331-0-III Ferry County v. Growth Mgmt. Hearings

made must be included withreference to the finding by number. Unchallenged agency factual findings are verities on appeal. Hilltop Terrace Homeowner'sAss'n v. Island County, 126 Wn.2d 22,30,891 P.2d 29 (1995). Ifwe strictly followed RAP 10.3, we would affirm the GMHB's finding that the 2011 ordinance did not include BAS and thereby affirm the Board. Other courtrules apply. RAP 10.3(g) permits review whenthe claimed error is clearly disclosed in a related issue. RAP 1.2 directs this courtto liberally interpretthese rules. These RAPs allow appellate review ofadministrative decisions in spite of technical violations when aproper assignment oferror is lacking butthe nature ofthe challenge is clear and the challenged finding is set forth in the party's brief. Fuller v. Emp'tSec. Dep't, 52 Wn. App. 603,605-06,762 P.2d 367 (1988). In a section labeled assignment oferrors in its brief, Ferry County asked whether "BASregarding habitats and species oflocal importance [was] included in the record or

was there any BAS that was not included in the record?" Br. ofResp't at 2. In the argument section ofthe brief, the county "clearly discloses" the error it alleges when it argued it complied withthe GMA mandateto include BAS in therecord. Futurewise thoroughly addressed the issue in its briefand shows no prejudice by Ferry County's failure to strictly follow the rules. Therefore, we reject Futurewise's argument and address the merits ofthe appeal.

36No. 31331-0-111 Ferry County 

### v. Growth Mgmt. Hearings

Overview ofGrowth Management Act Ferry County contends the GMHB committed at least four errors. First, the Board concluded that the GMArequires counties to designate and protect habitats or species of local importance, when the law contains no such requirement. Second, the GNIHB impermissibly shifted theburden ofproofto the county and it relieved Futurewise from establishing that the county omitted any BAS from the record. Third, contrary to the GMHB's finding, the county included BAS in the record. Fourth, the county engaged in

a reasoned legislativeprocess when it departed from the protections BAS recommended. Before addressing Ferry County's four discrete assignments oferror, we review

more ofWashington's Growth Management Act (GMA), chapter 36.70A RCW, which controls our decision. The Washington legislature adopted the GMA in two installments, during 1990 and 1991, in response topublic concerns about rapid population growth and increasing developmentpressures in the state, especially in the Central Puget Sound region. Alan D. Copsey, IncludingBestAvailableScience in the Designation and Protection o/CriticalAreas Under the Growth ManagementAct, 23 SEATTLEU. L. REv. 97,97 (1999). Passage ofthe Act demanded political compromises that create internal inconsistencies, vague language, and gaps in the Act. Richard L. Settle, The Growth ManagementRevolution in Washington: Past, Present, andFuture, 16 U.PUGET SOUND L. REV. 867, 872 (1993). The Act contains awkward sentences and murky words. The centralpurpose ofthe GMA is to coordinate land use, zoning, subdivision, 37No. 31331-0-II1 Ferry County 

### v. Growth Mgmt. Hearings planning, development, natural resources, public facilities, and environmental laws into

one scheme in orderto concentrate new development in compacturban growth areas, while conserving environmentally critical land and valuable natural resources. Richard L. Settle, supra at 872-73. As part ofthis planning system, "local governments also must designate urban growth areas, forest lands, agricultural lands, mineral resource lands and criticalareas, and develop regulations to assure their conservation." 24 TIMOTHY BUTLERAND MATTHEW KING, WASHINGTON PRACTICE: ENVIRONMENTALLAWAND PRACTICE 

### § 18.1 (2nd ed. 2007) (emphasis added). Our appeal concerns critical areas. Since the GMAwas directed at congestion in King, Pierce, and Snohomish counties, application ofthe Act to rural eastern Washington has created controversy. Two former members ofthe state high court, Justice J. Johnson and Justice R. Sanders, havepenned orjoined several dissents that questionthe wisdom ofimplementingthe GMA in northeastern counties ofthe state. See CFFC, 155 Wn.2d at 836-37 (Johnson, J., dissenting (opinion, pp. 844-56); Kittitas County 

### v. E. Wash. Growth Mgmt. Hearings Bd., 172 Wn.2d 144,256PJd 1193 (2011) (Johnson, J., dissenting (opinion, pp. 191­ 207). Eastern and western Washington may have a difficult marriage, butwe remain one state subjectto the same law. Under the GMA, all Washington counties must adopt developmentregulations that designate and protect critical areas, including fish and wildlife habitat conservation

areas. RCW 36.70A.060(2). A number ofsections within the GMA, beginning with 38No. 31331-0-III Ferry County

### v. Growth Mgmt. Hearings

RCW 36.70A.060, address the designation ofenvironmentally "critical areas." RCW 36.70A.060reads: (2) Each county and city shall adopt development regulations that protectcriticalareas that are required to be designated underRCW 36.70A.170. For counties and cities that are required orchoose to plan under RCW 36.70A.040, such developmentregulations shall be adopted on orbefore September 1, 1991

.... (3) Such counties and cities shall review these designations and developmentregulations when adopting their comprehensive plans under RCW 36.70A.040 and implementing developmentregulations underRCW 36.JOA.120 and may alter such designations and developmentregulations to insure consistency. (Emphasis added.) RCW 36.70A.170 repeats the demands ofRCW 36.70A.060. RCW 36.70A.170 provides: (1) On or before September 1, 1991, each county, and each city, shall designate where appropriate: (d) Critical areas. (2) In makingthe designations required by this section, counties and cities shall consider the guidelines established pursuantto RCW 36.70A.050. RCW 36.70A.030(5) defines "critical areas" as: (5) "Critical areas" include the following areas and ecosystems: (a) Wetlands; (b) areas with a critical recharging effect on aquifers used for potable water; (c) fish and wildlife habitat conservation areas; (d) frequently flooded areas; and (e) geologically hazardous areas.... This appeal concerns only fish and wildlife habitat conservation areas. The first step required for a county's implementation ofthe GMA is the designation and adoption ofinterim developmentregulations to protectnatural resource 39No. 31331-0-III Ferry County

### v. Growth Mgmt. Hearings

lands and critical areas. RCW 36.70A.060(2); RCW 36.70A.170. This step comes first in orderto preclude irreversible environmental harm during the lengthy preparation process ofGMAcomprehensiveplans and developmentregulations. Settle, supra at 908. GMHBs are authorized to invalidate noncomplying comprehensiveplans and development regulations. SwinomishIndian Tribal Cmty., 161 Wn.2d at 423. The Board presumes the validity ofdevelopmentregulations andrelated amendments that a county adopts underthe GMA. RCW 36.70A.320(1). TheBoard must find compliance unless a county's action is clearly erroneous. RCW 36.70A.280(l)(a), .320(3). A county's action is clearly erroneous ifthe Board has a firm and definite conviction thatthe county made a mistake. Thurston Countyv. W. Wash. Growth Mgmt. Hearings Bd., 164 Wn.2d 329, 340-41, 190 P.3d 38 (2008); Olympic Stewardship Foundation v. W. Wash. Growth Mgmt. Hearings Bd., 166 Wn. App. 172, 187,274P.3d 1040, review denied, 174 Wn.2d 1007 (2012). In 1997, the legislature amendedthe GMA, requiring the GMHB reviewing local government compliancewith the GMAto "grant deference to counties and cities in howthey plan for growth," provided those plans are "consistent with the requirements and goals of[the GMA]." RCW 36.70A.3201. Before this court, Ferry County emphasizes the need for the GMHB to defer to the county's decisions. The county provides no analysis as to the line between according deference and ruling there was error, and suggests the Board must grant unlimited deference. Nevertheless, counties remain constrained by the goals and requirements 40 

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# lNo. 31331-0-111 Ferry County v. Growth Mgmt. Hearings

ofthe GMA. King County. v. Cent. PugetSound Growth Mgmt. Hearings Ed., 142 Wn.2d 543,561, 14 P.3d 133 (2000). A county may not "pointto any evidence and demand unbounded deference." Kittitas County, 172 Wn.2d at 157. One disappointed with the GMHB's ruling may seekredress from the superior court. This reviewing courtreviews decisions ofthe GMHB under the Administrative Procedure Act (APA), chapter 34.05 RCW, which calls for a review ofthe record created before the GMHB-notthe decision ofthe superior court. Buechelv. Dep'tof Ecology, 125 Wn.2d 196,202, 884 P.2d 910 (1994). Ferry County, the party challenging the GMHB decision, bears the burden ofprovingthe decision invalid. RCW 34.05.570(1)(a). The court must grantrelieffrom the decision if, as relevant here: (d) The agency has erroneously interpreted or applied the law; (e) The order is not supported by evidence that is substantial when viewed in light ofthe whole record

... ; [or] (i) The order is arbitrary or capricious. RCW 34.05.570(3)(d)-(e), (i). This appeals courtreviews the GMHB'sJegal conclusions de novo, giving substantial weight to its interpretation ofthe statute it administers where the agency has specialized expertise in dealing with such issues. City of Redmondv. Cent. PugetSound GrowthMgmt. Hearings Bd., 136 Wn.2d 38,46,959 P.2d 1091 (1998); City of Burien v. Cent. PugetSound GrowthMgmt. Hearings Bd., 113 Wn. App. 375, 382, 53 P.3d 1028 (2002). This court reviews the GMHB's factual determinations for substantial evidence. 41No. 3l33l-0-III Ferry County v. Growth Mgmt. Hearings

SwinomishIndian Tribal Cmty., 161 Wn.2d at424. Substantial evidence exists where there exists a sufficient quantity ofevidence to persuade a fair-minded person ofthe truth

or correctness ofthe order. Spokane County v. E. Wash. GrowthMgmt. Hearings Bd., 176 Wn. App. 555, 564-65, 309 P.3d 673 (2013), review denied, 179 Wn.2d 1015 (2014). Finally, courts review challenges that a GMHB order is arbitrary and capricious under RCW 34.05.570(3)(i) by determining whether the orderrepresents '''willful and unreasoning action, taken without regard to or consideration ofthe facts and circumstances surroundingthe action.'" Kittitas County, 172 Wn.2d at 154; City of Redmond, 136 Wn.2d at46-47 (citation omitted). Habitat and Species ofLocal Importance We now beginto answer the questions raised by Ferry County's four assignments oferror. The GMHB faulted Ferry County for failing to designate any habitat or species oflocal importance. Ferry County argues it has no obligationto designate any habitat or species oflocal importance. Futurewise argues thatFerry County must designate species and habitats oflocal importance. We do notdefer to the GMHB on this issue, sincethe obligations ofcounties planningunder the GMA is a question oflaw this court reviews de novo. Kittitas County, 172 Wn.2d at 154. We find this dispute unimportant. AssumingFerry County did not have to donate any species, it passed a critical area ordinance. That ordinance must comply with the GMA, which requires itto include BAS when it decides whetherto designate species and 42No. 31331-0-III Ferry County v. GrowthMgmt. Hearings

habitats oflocal importance. Honesty in Envtl. AnalysisandLegislation (HEAL) v. CentralPugetSoundGrowth Mgmt. Hearings Ed., 96 Wn. App. 522, 527,979 P.2d 864 (1999). "RCW 36.70A.172(1) provides that counties and cities 'shall include' best available science in developing bothpolicies and regulations regarding critical areas. Inclusion ofBAS in the development ofcritical areas policies and regulations is therefore

a mandate ofthe GMA." HEAL, 96 Wn. App. at 528. The GMHB did not require the county to designate any species or habitat oflocal importance. The GMHB found the county enacted a critical area ordinance. Therefore, the GMHB initially ruled that Ferry County must include BAS inthe adoption ofthat regulation. In the alternative, the county mustprovide areasonedjustification for departing from BAS. Burden ofProof Ferry County argues the GMHB improperly shiftedthe burden ofproof. Under the GMA, the county's ordinances are presumptively valid upon adoption. RCW 36.70A.320(1). The burden is on the petitionerbefore the GMHB to demonstrate that any action taken by the county is not in compliance with the GMA. RCW 36.70A.320(2). In its compliance order, the GMHB recited these presumptions, requiring Futurewise "establish thatthe new adoption is clearly erroneous in view ofthe entire record before the Board and in light ofthe goals and requirements ofthe chapter." CP at 43No. 31331-0-III Ferry County v. Growth Mgmt. Hearings

14. Afterward, the GMHB found the county out ofcompliancewith the GMA because "no substantial evidence in the record

... support[ed] a County finding that BAS was included in designating Ferry County'sFish and Wildlife Habitat Conservation Areas." CP at 28. While the GMHB correctly recited the presumption, its finding evidences a shift in the burden ofproduction. The GMA requires a county include BAS in its designation of critical areas, but the burden ofshowing a county failed tocomply with this direction falls to petitioners like Futurewise. RCW 36.70A.320. ForFuturewise to prevail, the GMHB should have found substantial evidence that BAS was not included in the record. Insteadthe GMHB found "no substantial evidence" that BAS was included. CP at 28. This improperly shifted the burden to Ferry County. Had the GMHB correctly placedthe burden on Futurewise, the county argues, Futurewise would have hadto provide substantial evidence that the county excluded BAS from its designation ofcritical areas. The standard for including BAS and whether substantial evidence supports the GMHB's finding is the subject ofthe next section. The harmless error doctrine applies to misstating the burden ofproofifthe facts the GMHB found were otherwise sufficientto concludethe county failed to include BAS. City o/Vancouver

### v. State Pub. Emp'tRelations Com 'n, 180 Wn. App. 333, 354-57, 325 P.3d 213 (2014). This is because, under the APA,judicialreliefis appropriate only ifthe "'person seekingjudicialreliefhas been substantially prejudiced by the action 

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# INo. 31331-0-III Ferry County v. Growth Mgmt. Hearings complained of.'" RCW 34.05.570(l)(d); City o/Vancouver, 180 Wn. App. at 357. In its second finding, the GMHB found "Ferry County failed to include the BestAvailable Science in designating

...Habitats and Species ofLocal Importance." CP at 28. This finding does not evidencethe same shift in burdens as the first. Ifsubstantial evidence supports that finding, the GMHB's error was harmless. Best Available Science The GMHB concluded Ferry County failed to include the BAS in designating habitats and species oflocal importance. Ferry County challenges this finding. This courtreviews the GMHB's factual findings for substantial evidence. Substantial evidence exists where there exists '''asufficient quantity ofevidence to persuade a fairmindedperson ofthe truth orcorrectness ofthe order.'" Spokane County, 176 Wn. App. at 565 (citation omitted). In 1995, the state legislature amended the GMA to clarify the standards under which counties are to designate and protect critical areas. The amendment found in RCW 36.70A.l72(l)reads: (1) In designating and protecting critical areas underthis chapter, counties and cities shall include the best available science in developing policies and development regulations toprotect the functions and values of critical areas. The GMA does not define the term "best available science." The Department of Commerce, however, has adopted regulations to assist a county in including BAS in a 

# j I. 45No. 31331-0-II1 Ferry County v. Growth Mgmt. Hearings

critical area ordinance. The regulations recognize the importance ofthe inclusion ofBAS to decisions affecting endangered, threatened, and sensitive species. WAC 365-195­ 900(3), WAC 365-195-905(2) and WAC 365-195-910 encourage a countyto use

resources available from state and federal agencies. The responsibility for including best available science lies with the county. WAC 365-195-905(3). A countymay consult with qualified scientists, but scientists should follow criteria contained in the regulations. WAC 365-195-905(3). "Science," for purposes ofBAS, is information produced through the scientific process. WAC 365-195-905(5). The information should be peerreviewed. WAC 365­ 195-905(5)(a)(l). The information should be obtained by methods that can be replicated and thatreach logical conclusions. WAC 365-195-905(5)(a)(2)-(3). The scientific information shouldbethe result ofappropriate statistical or quantitative methods. A county need not develop the scientific informationthrough its own means, but it mustrely on scientific information. CFFC, 155 Wn.2d at 836. By RCW 36.70A.l72(1), "theLegislature left the cities and counties with the authority and obligation to take scientific evidence and to balancethat evidence among the many goals and factors to fashion locally appropriateregulations based on the evidence not on speculation and surmise." HEAL, 96 Wn. App. at 531. The GMA directs counties to determine what lands are primarily associated with listed protected species, andthen to adoptregulations protectingthose lands. RCW 36.70A.020(9), .030(5), .060(2),

.170(l)(d). "The GMA 

### 46No. 31331-0-III Ferry County v. Growth Mgmt. Hearings requires the county to designate andprotect all critical areas within its boundaries." Stevens County v. Futurewise, 146 Wn. App. 493, 511, 192 P.3d 1 (2008). Generally the DFW'spriority habitat maps are the BAS on the county's critical areas for listed species. Futurewise, 146 Wn. App. at 512. In an earlier generation ofthis case, Ferry County argued that its citation to regulations on the subject ofcritical areas met compliance with the GMA's demand for BAS. CFFC, 155 Wn.2d 824. The high court disagreed because dependence on another body'srule-makingremoves the county from therole ofconsidering scientific information in a reasoned process ofanalysis. CFFC, 155 Wn.2d at 835. Although the county is notrequired to use a particularmethodology, it must, at a minimum, use some kind ofscientific methodology. CFFC, 155 Wn.2d at 83'6-37. Growth boards require countiesto consider competing scientific information and other factors in a reasoned process ofanalysis. CFFC, 155 Wn.2d at 835. One Washington court has emphasizedthe importance ofBAS in the setting of adopting a critical areas ordinance. TheHEAL court wrote: While the balancing ofthe many [GMA] factors and goals could mean the scientific evidence does notplayamajorrole in the final policy in some GMA contexts, it is hard to imagine in the context ofcritical areas. The policies at issue here deal with critical areas, which are deemed "critical"because they may be more susceptible to damage from development. The nature and extent ofthis susceptibility is a uniquely scientific inquiry. Itis one in which the best available science is essential to an accurate decision about whatpolicies and regulations are necessary to mitigate and will in fact mitigate the environmental effects ofnew 47No. 31331-0-III Ferry Countyv. Growth Mgmt. Hearings development. HEAL, 96 Wn. App. at 532-33. A math teacher requires a studentto demonstrate the manner in which she arrived at herresult in addition to showingthe result. This requirement informs the teacher whether the studentthoroughly and correctly performed the calculation. The GMA has a similar demand. The Act affords a county deference when reviewing the scientific evidence, butthe BAS mustbe included in the record and must be considered substantively in the development ofcritical areas policies and regulations. HEAL, 96 Wn. App. at 532. Mere inclusion ofscientific sources in a critical area ordinance is not sufficient. HEAL, 96 Wn. App. at 531. To demonstrate thatBAS has been included, counties and cities should address the BAS on the record. WAC 365-195-915(I). A '''writtenrecord'" need notbe a discrete document but mustprovide an actual explanation. Kittitas County, 172 Wn.2d at 158. In short, the county should show its work. Ferry County argues it considered all BAS about habitats and species that might be considered important from a local perspective. Itcontends it reviewed the DFW's PHS list, DFWLiving with Wildlife Series; and a US Department ofFish and Wildlife email ofJanuary 26, 2005. The ordinance also lists other guides and letters from Karin Divens that the county reviewed. Based on these sources, the county found no candidate species or species ofconcern that have been identified as species oflocal importance. 48No. 31331-0-II1 Ferry County v. Growth Mgmt. Hearings

The county argues the inclusion ofthese legal and scientific authorities referenced in the record fulfill its obligations under the GMA. Ferry County inaccurately describes the science upon which it relied, and the county disagreed or ignored DFW's science without developing or obtaining its own valid scientific information. Therefore, we must uphold the GMHB's finding. The bibliography Ferry County attached to its critical area ordinance separates the

sources upon which it relied for each section ofthe ordinance. Section 9.01-02 designates species and habitats oflocal importance and the bibliography lists six sources for those sections. The bibliography for designating species and habitats oflocal importance omits the Natural Resources Conservation Service Field Office Technical Guide, the Soil Conservation Service manual, the National Cooperative Soil Survey, the DFWClassification System for Priority Habitat, updated February 4, 1998, the DFW Priority Habitat and Species Program, initiated 1989, DFWrepresentative Karin Divens's letters, and the transcription ofthe county's meeting with Karin Divens. Ofthe six

sourcesthe county lists in this section, one is a statute and two are WAC regulations, which are not considered scientific sources. The only scientific source identified as supportingthe critical area ordinance section on habitat or species oflocal importance is Washington Department ofFish and Wildlife Maps (Fish Planting). This is not a comprehensive source for designating and

49No. 31331-0-III Ferry County 

### v. Growth Mgmt. Hearings protecting wildlife and habitats in Ferry County. Nordid Ferry County explainhow it utilized the fish planting maps in creatingthe ordinance. We could end our analysis herebutwe go further and discuss the other science

sources that Ferry County cites in support ofotherportions ofthe critical area ordinance. Regulations direct a county to considerthe Department ofFish and Wildlife's priority habit and species lists, which are peerreviewed by wildlife scientists. WAC 365-190­ 130(4)(b). The county analyzed only 23 ofthe 31 species the DFW lists as occurring and being locally important in Ferry County. The county's review did not include the bald eagle, peregrine falcon, flammulated owl, common loon, fisher, gray wolf, grizzly bear,

or lynx. Ferry County provided no explanation for omitting areview ofthe 8 species. Ferry County refused to list any ofthe 22 species that it placed on its 2011 review. Most ofthe reasons the county offered for its refusal are notbased in science. Those non-scientificreasons are addressed later. The scientific reasons Ferry County offered

are addressed now. Ferry Countyrefusedto listthe Columbia spotted frog because chemical runoff from residential and agricultural areas is insignificant, trouthave a negative effect on the frog, and there is no winter grazing. No scientific evidence in the record supports these statements. Ferry County refusedto designate the western toad as locally importantbecause "losses occur even in pristine areas due to unknown causes." ARat 1506. Ferry County 50No. 31331-0-III Ferry County v. Growth Mgmt. Hearings provided no scientific support in the record for this assertion. Ferry County refused to designate the black-backed woodpeckerbecause most private property does not experience large high intensity fires or insect infestations, factors DFWidentifies as harmful to the woodpecker. Again, the record lacks scientific support for the county's conclusion. Ferry County refused to designate Vaux's swift, inpart, because insecticide use in Ferry County is limited. The county refused to designate the yellow-billed cuckoo that possibly thebird may be extirpated in Ferry County. The record supports neither ofthese statements. Ferry County refused to designate the bull troutbecause it does nothave critical habitat in Ferry County. The county cites a US Fish and Wildlife e-mail dated January 26,2005, to support this conclusion, butthe e-mail is not in the record. The only science

source in thebibliography critical area ordinance oflocally important species is the "DFWMaps (Fish Planting)." This source does not support a finding ofan absence of the bull trout in the county. To the contrary, DFWrecommended Ferry County list the bull trout and the department's map for bull trout identifies Ferry County as "apriority

areawherethe species is known to occur." AR at 664. The county refused to designate Townsend's big-earedbat as a species oflocal importance, in part, because no private demolition occurs in Ferry County. Again, nothing in therecord supports the county's statement. 51No. 31331-0-III Ferry County v. Growth Mgmt. Hearings Ferry County refused to designate the Wolverine because ofitspossible extirpation in the contiguous United States. A 2001 report from the State ofWashington

on its lynx recovery plan describes the population ofwolverines in Washington as "low density." AR at 672. Under a goal ofthe GMA, low density species should be protected. The DFW'sPHS lists wolverines as occurring in Ferry County. In sum, contrary to DFW'srecommendations, Ferry County refused to designate any species orhabitats as locally important. In support ofits lack ofdesignations, the county uses DFW biologistKarin Divens's letter for support, in which she explains the DFW cannot force the county to designate any species or habitats. Divens is correctthat DFW cannot force the county to designate any species orhabitats. The county may disagree with or ignore DFW's recommendations. But in choosing this course ofaction, the county "necessarily ha[s] to unilaterally develop and obtain valid scientific information." CFFC, 155 Wn.2d at 836. The county failed to develop or obtain any valid scientific information supporting its refusal to designate any habitats or species as locally important. Substantial evidence supports the GMHB's finding that the county failed to include BAS in its designation ofspecies and habitats oflocal importance. The county may depart from BAS, butmust do so using a reasonedprocess. This is the subject ofthe final section ofthis opinion.

52No. 31331-0-1I1 Ferry County v. Growth Mgmt. Hearings

Reasoned Departure Ferry County denies it avoided BAS, but argues, assuming it did, its departure resulted from a reasonedjustification. The GMHB found Ferry County "failedto provide

areasonedjustification for departing from the Best Available Science." CP at 27. This court reviews the GMHB's factual findings for substantial evidence. Substantial evidence exists whenthere exists "a sufficient quantity ofevidence to persuade a fairminded person ofthe truth orcorrectness ofthe order." Spokane County, 176 Wn. App. at 564-65 (citation omitted). Futurewise argues the county's departure from BAS must be based in science, citing CFFC, 155 Wn.2d at 837. We disagree. The CFFC court analyzed whetherFerry County departed from BAS using a reasoned process and found the county'sprocess insufficient because the county did not evaluate the science produced by Dr. McKnight or compare his science with any otherresources. CFFC, 155 Wn.2d at 837. The court analyzed Ferry County'sprocess for departing from BAS in scientific terms because the county departed from BAS for scientificreasons. CFFC, 155 Wn.2d at 837. The court subsequently clarified that the GMA does not require the county to follow BAS; rather, it is required to include BAS in its record. Thus, a county may depart from BAS ifit provides a reasonedjustification for such a departure. Swinomish Indian Tribal Cmty., 161 Wn.2d at 431-32. Our courthas declared, however, that departure from BAS in a critical areas ordinance should be rare. HEAL, 96 Wn. App. at 532-33. 53No.3l33l-0-III Ferry County v. GrowthMgmt. Hearings

What constitutes a sufficiently reasoned process for departing from BAS is poorly defined in GMAjurisprudence. Butreasoned means rational and supported by evidence. In Swinomish Tribal Community, BAS supported riparian buffers to protect fish habitat in agricultural areas, butthose areas had been diked and drained as much as 100 years ago. 161 Wn.2d at 431. Skagit County departed from BAS because it would require the county to restore habitats that no longer existed. The courtupheld the county's justification for departing from BAS because the GMA does notrequire counties to enhance critical areas, only to protectthem. 161 Wn.2d at431. The proposed buffers

were inconsistent with the goals ofthe GMA. This division ofthe Court ofAppeals agreed Stevens County departed from BAS for an insufficiently reasoned process in Stevens County, 146 Wn. App. 493. Stevens Countytied its classification ofcritical habitat to lands designated for protection by federal or state rule making. We found Stevens County failed to comply with the GMA because its critical areas ordinance removed the county from the role ofconsidering scientific information in areasoned process ofanalysis. 146 Wn. App. at 514-15. When departing from BAS, a county must again show its work. In Yakima County

v. 

### E. Wash. GrowthMgmt. Hearings Bd., 168 Wn. App. 680, 693, 279 P.3d 434 (2012),

we affirmed the GMHB because the county failed to provide in the record ajustification for rejecting BAS with regard to stream buffers.

54No. 31331-0-III Ferry County 

### v. Growth Mgmt. Hearings Ferry County contends its departure from BAS was reasonable for various reasons. The county argues that 4 ofthe 31 DFWdesignated species are not found in Ferry County. The county argues it did not list two species because they are federally listed and sevenETS species because they are being addressed in otherrevisions to the county's ordinance. The record does notreflect any review or analysis ofthese species. Like the Stevens County and Yakima County decisions, we find the county's lack of analysis is not areasonedjustification.orprocess, which couldjustify departing from BAS. Even ifFerry County had reviewedthese species, their status as federally listed or ETS species does not reflect any reason they should not also be designated as species of local importance. Ferry County next argues it departed from science because wetland and riparian regulations and buffers already protect 11 species onthe DFWlist. But as Futurewise argues, protection by otherregulations is irrelevant. Otherwise the GMA's critical habitatprovisions are superfluous since state and federal rules already seek to protect ETS species. More importantly, nothing in therecord supports the county's assertion. There is no evidence that the county analyzed regulations and determined existing regulations were sufficientto protectthese 11 species. Ferry County argues it departed from BAS that recommended designating 

# I nineteen species because the land they inhabit is underthe authority ofthe federal, tribal,

or state government, orthe DFWdid not list any occurrences ofthe species in Ferry 

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# t . !**~'**No. 31331-0-II1 Ferry County v. Growth Mgmt. Hearings County. Futurewise argues the county hasjurisdiction over developments that are not forested practices on forested private land. The county'sjurisdiction is not delineated in the record. Assuming the county's assertion is accurate, the county still fails to offer a

reason for departing from BAS. Karin Divens explainedthe lack ofa reasonedjustificationbehind relying on state and federal protection in herJuly 2011 letterto the County Commission. ARat 1134. As Divens noted, thejurisdiction ofother sovereigns on Ferry County land does not diminish the need for designating the species' habitats as locally important. By relinquishing to otherjurisdictions, Ferry County removes itselffrom the role of considering scientific information in a reasoned process ofanalysis, which it cannot do. Ferry County also refused to list some species because DFW'sPHS list could not confirm theirbreeding habitat. This assertion is not a reasonedjustificationbecause breeding habitats are not the only habitats needingprotection. DFW explained the other

reasons for protectingpriority habitats in its PHS list: Priority habitats are habitat types or elements with unique or significant value to a diverse assemblage ofspecies. Apriorityhabitatmay consist ofunique vegetation type (e.g., shrub-steppe) or dominant plant species (e.g.,juniper savannah), a described successional stage (e.g., oldgrowth forest), or a specific habitat feature (e.g., cliffs). AR at 657 (emphasis in original). The county failed to analyze these otherreasons for protecting theirhabitat. Again, a failure to analyze BAS does not constitute a sufficiently reasoned process for departing from BAS. Stevens County, 146 Wn. App. at 514-15; 56No.31331-0-III Ferry County v. Growth Mgmt. Hearings

Yakima County, 168 Wn. App. at 693. In addition, Ferry County pointed to the lack of information as a reason for not designating these species and their habitats. In the

.absence ofscientific evidence, a county should adopt a precautionary orno risk approach. WAC 365-195-920. But even ifthe lack ofsciencewere a valid reason to not designate a species, Ferry County providedno explanation for why, inparticular, the breeding locations ofa species must be known in orderto designate them as locally important. Finally, Ferry Countyjustifies its refusal to list some species because protection of the species will negatively impact the entire economy ofFerry County. For support of this contention, Ferry County emphasizes that only 18 percent ofland within Ferry County is privately owned. Butnothing in the record analyzes how designating the species couldharm private ownership orthe economy ofFerry County. Therecord does not show that protecting any species will thwart any planned development. The record does not showthat protectedhabitats will interfere with the county's mining, logging or other industries. We want Ferry County to economically succeed but reject the implicationthat protecting endangered wildlife and habitat is necessarily bad for the economy. The GMA does not seek to preclude all development, but to manage development. Homes and other structures may bebuilt in a place and mannerto protect wildlife. Mining and logging can be perfermed withpreservation ofhabitat in mind. For all we know, Ferry County could promote its emerging tourism industry by conserving its wildlife. 57No. 31331-0-III Ferry County v. GrowthMgmt. Hearings

Substantial evidence supports the GMHB's finding that the county failed to provide a reasonedjustification for departing from theBAS. CONCLUSION We uphold the GMHB's December 2011 noncompliance order and reverse the trial court'spartial summaryjudgment order. A majority ofthepanel has determinedthis opinion will not be printed inthe Washington Appellate Reports, but it will be filed for publicrecord pursuant to RCW 2.06.040.

# ,1~,~ Fearing, J. WE CONCUR:

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