The Legislature has enacted a number of statutes creating quasi-judicial hearing boards and commissions that provide the first tier of litigation of various environmental and land-use disputes. These include the:
- Pollution Control Hearings Board (PCHB)1
- Shorelines Hearings Board (SHB)2
- Forest Practices Appeals Board (FPAB)3
- Hydraulic Appeals Board (HAB)4 and
- Growth Management Hearings Board (GMHB).5
Practice before each of these boards is governed by statutory and regulatory provisions, in addition to the requirements of the Administrative Procedure Act (APA). If a board has not adopted procedural rules, the model rules adopted by the chief administrative law judge govern procedures before the board.6
Most of the environmental boards hear cases de novo (unless otherwise provided by law); they consider and review all evidence properly presented to them.7 In many cases, the board hearing provides the parties with their only opportunity to create a record.8 Since this record is considered by every other reviewing body from the superior courts to the state Supreme Court and (potentially) the U.S. Supreme Court,9 it is essential that the practitioner thoroughly understand the rules of the board before which he appears.
The PCHB hears and decides appeals from decisions by the Department of Ecology, the Office of Marine Safety, local air pollution control boards and local health departments.10 Cases are typically heard by a three-member panel according to the procedural rules set forth in RCW Chapter 43.21B and WAC 371-08.
The SHB hears appeals from the decisions of local and state governmental entities concerning the development of the state's shorelines.11 Cases are heard by a six-member panel according to the procedural rules set forth in WAC 461-08.
Jurisdiction over appeals relating to Shoreline Master Programs is governed by RCW ¤ 90.58.190. The SHB may only hear appeals of master program approval or denial decisions by the Department of Ecology.12
The FPAB presides over challenges to decisions issued by the Department of Natural Resources regarding the harvest of timber and forest practices on public and private lands.13 A six-member panel hears cases under the procedural rules set forth in WAC 223-08.
The HAB has jurisdiction over decisions emanating from the Department of Agriculture concerning state hydraulic permits.14 Appeals are heard by an administrative law judge according to the model rules of procedure set forth in WAC 1-08.
The GMHB was established by the Legislature under the Growth Management Act15 to hear specific types of cases. Cases are heard by a three-member panel sitting in one of three jurisdictions within the state. Procedures are set forth in WAC 242-02.16
The GMHB may review only two kinds of petitions: (1) asserted noncompliance with the requirements of RCW Chapter 36.70A, RCW Chapter 90.58 as it relates to the adoption of Shoreline Masters Programs or amendments, or RCW Chapter 43.21C as it relates to plans and development regulations; or (2) claims that the 20-year growth management population projections adopted by the Office of Financial Management pursuant to RCW ¤ 43.62.035 are inaccurate.17
Petitions for review by the GMHB may be filed by the state, a county or a city that plans pursuant to new RCW Chapter 36.70A, a person who has exhausted administrative review processes available within the city or county, a person certified by the governor within 60 days of filing the request for review with the GMHB or a person qualified pursuant to RCW ¤ 34.05.530.18
The decisions of these boards can be found on Westlaw as well as the Environmental Hearings Office Web site19 and the GMHB Web site.20
Matthew King is a Seattle attorney whose practice emphasizes construction, environmental and land-use law. He can be reached at 206-623-2369 or via email at matthewking@abanet.org.
1 RCW ch. 43.21B.
2 RCW ¤ 90.58.170; ch. 43.21B.
3 RCW ¤ 76.09.210; ch. 43.21B.
4 RCW ¤ 75.20.130; ch. 43.21B.
5 RCW ¤ 36.70A.250.
6 RCW ¤ 34.05.250.
7 WAC 371-08-485(2), 371-08-475(4)(a). Note that the burden is a preponderance of the evidence, unless otherwise required by law. WAC 37-08- 485(2), as reported in WSR 02-06-013.
8 San Juan County v. Department of Natural Resources, 28 Wn. App. 796, 799, 626 P.2d 995 (1981) (appellate court review is of record before SHB); Buechel v. Department of Ecology, 125 Wn.2d 196, 884 P.2d 910 (1994) (same).
9 See PUD No. 1 of Jefferson County v. Washington Dep't of Ecology, 511 U.S. 700, 114 S. Ct. 1900, 128 L.Ed.2d 716 (1994) (case originated in PCHB).
10 RCW ¤ 43.21B.110(1).
11 Shoreline Management Act, RCW ch. 90.58.
12 Wells v. Whatcom County, 1998 WL 692065, SHB No. 98-054 (Order of Dismissal September 28, 1998).
13 Forest Practices Act, RCW ch. 76.09.
14 Hydraulics Code, RCW ch. 77.55.
15 RCW ch. 36.70A.
16 Growth Management Act, RCW ch. 36.70A.
17 RCW ¤ 36.70A.280.
18 RCW ¤ 36.70A.280(2).
19 www.eho.wa.gov
20 www.gmhb.wa.gov
